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Vol. I.]

MERRIFIELD v. City OF WORCESTER.

[No 11.

hold the municipal corporation responsible for these torts. The city would not be liable to an action for such direct acts of wrong, whether done by individual citizens or by its own officers, without proof of some special authority to do the acts, unless they resulted from or were connected with the exercise of some proprietary right by the city. Oliver v. Worcester, 102 Mass. 489, 497. From the report, we infer that the ground of liability is that the dirt, filth, and other materials were carried into the stream by means of certain drains or sewers constructed under authority therefor conferred upon the city council by the charter, Sts. 1848, č. 32, $ 14 ; 1866, c. 199, $ 30; and by the general laws. St. 1841, c. 115. Gen. Sts. c. 48, § 3.

The St. of 1867, c. 106, authorized the taking of Mill Brook and the entire diversion of its waters from the channel by which it passes the plaintiff's works. So far as he has suffered damage from any proper exercise of the power and rights conferred by that act, he must seek his remedy by a different proceeding from this, under the special provisions of the act itself. But the stream had not been so diverted at the time when this action was brought, and it does not appear that the injuries complained of were the result of any proceedings under that act. The allegations also cover a long period prior to its adoption.

It appears that in 1850, more than twenty years before the date of the writ in this case, a drain or sewer was constructed, by order of the city council, discharging from Thomas Street into Mill Brook, a short distance above the works of the plaintiff. This drain extended back to, and ran a short distance along Main Street. In 1857 and at various times subsequently this drain has been extended farther along Main Street ; and drains running along several other streets have been connected with it. The plaintiff contends that the injurious effects of the drainage into the brook have thus been constantly increasing, down to the time of action brought. The question, so far as material, it is agreed shall be submitted to assessors, if in any aspect of the case the plaintiff is entitled to have his damages assessed. The case, then, presents the question, upon what grounds, and to what extent, a city is responsible in damages for such effects produced by its system of drainage, or by the manner in which its drains are used and managed.

The right, of which the plaintiff alleges a violation, is not that of acquired property in possession. It is not an absolute right, but a natural one, qualified and limited, like all natural rights, by the existence of like rights in others. It is incident merely to his ownership of land through which the stream has its course. As such owner he has the right to enjoy the continued flow of the stream, to use its force, and to make limited and temporary appropriation of its waters. These rights are held in common with all others having lands bordering upon the same stream ; but his enjoyment must necessarily be according to his opportunity, prior to those below him, subsequent to those above. It follows that all such rights are liable to be modified and abridged, in the enjoyment, by the exercise by others of their own rights; and, so far as they are thus abridged, the loss is damnum absque injuria. The only limit that can be set to this abridgment through the exercise by others of their natural rights is in the standard or measure of reasonable use. Gould v. Boston Duck Co. 13

Vol. 1.]

MERRIFIELD v. CITY OF WORCESTER.

(No. 11.

Gray, 442; Haskins v. Haskins, 9 Gray, 390 ; Tourtellot v. Phelps, 4 Gray, 370, 376; Thurber v. Martin, 2 Gray, 394; Pitts v. Lancaster Mills, 13 Met. 156; Wadsworth v. Tillotson, 15 Conn. 366; Springfield v. Harris, 4 Allen, 494.

So the natural right of the plaintiff to have the water descend to him in its pure state, fit to be used for the various purposes to which he may have occasion to apply it, must yield to the equal right in those who happen to be above him. Their use of the stream for mill purposes, for irrigation, watering cattle, and the manifold purposes for which they may lawfully use it, will tend to render the water more or less impure. Cultirating and fertilizing the lands bordering on the stream, and in which are its sources, their occupation by farm-houses and other erections, will unavoidably cause impurities to be carried into the stream. As the lands are subdivided and their occupation and use become multifarious, these causes will be rendered more operative, and their effects more perceptible. The water may thus be rendered unfit for many uses for which it had before been suitable ; but so far as that condition results only from reasonable use of the stream in accordance with the common right, the lower riparian proprietor has no remedy.

When the population becomes dense, and towns or villages gather along its banks, the stream naturally and necessarily suffers still greater deterioration. Roads and streets crossing it, or running by its side, with their gutters and sluices discharging into it their surface water collected from over large spaces, and carrying with it in suspension the loose and light material that is thus swept off, are abundant sources of impurity, against which the law affords no redress by action. Flagg v. Worcester, 13 Gray, 601; Barry v. Lowell, 8 Allen, 127; Turner v. Dartmouth, 13 Allen, 291.

Upon the case stated in the pleadings and report, we must assume that the plaintiff is able to show an appreciable detriment to his rights in the stream. That detriment consists in its unfitness for certain uses in his works upon the stream ; whereby he is deprived of a capacity, incident to the ownership of his land, to make such use of its waters as they pass; or his right so to use them is impaired in value. At most it is but the deprivation of that natural advantage, already impaired by other causes against which he has no redress. There is no allegation of damage to his property otherwise than by this deprivation ; no allegation that a nuisance is created which injuriously affects his land or the occupation thereof.

It may readily be supposed that a small stream like Mill Brook, with a considerable city like Worcester upon either bank, and the adjacent lands descending rapidly towards its bed, would cease to preserve its waters from impurity, and become valueless for any purpose except that of drainage and the creation of power by its head and fall. All this may result even though no unjustifiable act be done to effect it. To enable a riparian owner to maintain an action for damages, he must show not only that the defendant has done some act which tends to injure the stream and which he has no legal right to do, or which is in excess of his legal right so as to be an unreasonable use thereof, but also that the detriment of which the plaintiff complains is the result of that cause. Where he can show an appreciable detriment to himself, and connect it with such

Vol. I.)

MERRIFIELD v. CITY OF WORCESTER.

(No. 11.

wrong by another, he may recover the damages shown to be due to that wrong. Merrifield v. Lombard, 13 Allen, 16.

It was decided in Child v. Boston, 4 Allen, 41, that in the laying out of common sewers, that is, “in determining what drains should be built and where they should discharge,” the duties of the aldermen (or mayor and aldermen) were of a quasi judicial nature ; that "they were required to act, not as agents of the city, or in any manner under the direction of the city, but as public officers."

For the incidental disadvantage, loss, or inconvenience necessarily resulting to individuals, in their rights of property, from such action ; or from the execution of the work in a proper and skilful manner, as so laid out ; or from the maintenance and use of the drains in a proper and reasonable manner, without negligence in their care and management, no action of tort can be maintained against the city. This exemption of municipal bodies and their officers from liability, and corresponding subordination of individual rights and interests to the safety, health, and welfare of the general public, is a principle of frequent application. Baker v. Boston, 12 Pick. 184; Taylor v. Plymouth, 8 Met. 462; Commonwealth v. Tewksbury, 11 Met. 55; Commonwealth v. Alger, 7 Cush. 53, 85; Belcher v. Farrar, 8 Allen, 325.

But in the construction of works so laid out, the town or city is responsible that it be done in a proper manner, and with a reasonable degree of skill and care ; and if, for want thereof, any unnecessary injury is caused to the property or rights of individuals, the town or city may be charged therewith in an action of tort. Perry v. Worcester, 6 Gray, 544; Sprague v. Worcester, 13 Gray, 193; Emery v. Lowell, 104 Mass. 13.

According to the rule laid down in Child v. Boston, the city is also responsible for the proper care and management and reasonable use of drains established in accordance with the general provisions of the statutes, and · liable in damages for injuries suffered by reason of negligence or other fault of the city, or its officers and agents having the charge thereof.

Whether the damage which the plaintiff has suffered is attributable in any degree to the improper construction or unreasonable use of the sewers, or to the negligence or other fault of the defendant in the care and management of them, is a question which does not appear by the report to have been tried. If it should be found to be so attributable, the action may be maintained ; and this question must be first determined by the assessors provided for by the report, who are “ to assess the damages sustained by the plaintiff, if any,” upon the rules and principles herein set forth.

A88e88ors to be appointed.

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A judgment note made more than four months prior to an adjudication of bank

ruptcy upon which an execution is issued within four months, is not necessarily fraudulent.

Mr. A. H. Coffroth, for plaintiffs in error.
Mr. A. J. Colborn, contra.

SHARSWOOD, J. This was a feigned issue in the court below to deter mine the validity of a judgment entered upon the 26th day of February, 1872, upon a judgment note executed by Lewis A. Turner, for the sum of $204, on the 21st October, 1871, for a just debt owing by him to Sleek & Blackburn. It was payable in sixty days. On the 10th of April, 1872, certain creditors of Turner presented a petition to the district court of the United States for the Western District of Pennsylvania to have Turner adjudicated a bankrupt. Under these proceedings, an assignment was made to the plaintiff below on July 5th, 1871, and the fund in court having been raised under an execution upon the judgment, the assignee came in and claimed the money on the ground that the judgment was a fraudulent preference, and void under the thirty-sixth section of the Bankrupt Law, the act of Congress of March 2, 1867. This section provides that “if any person, being insolvent or in contemplation of insolvency, within four months before the filing of the petition by or against him, with a view to give a preference to any creditor or person having a claim against him, or who is under any liability for him, procures any part of his property to be attached or seized in execution, or makes any.pledge, assignment, transfer, or conveyance of any part of his property, either directly or indirectly, absolutely or conditionally, the person receiving such payment, pledge, assignment, transfer, or conveyance, or to be benefited thereby, or by such attachment, having reasonable cause to believe such person is insolvent, and that such attachment, payment, pledge, assignment, or conveyance is made in fraud of the provisions of this act, the same shall be void, and the assignee may recover the property or the value of it from the person so receiving it or so to be benefited.”

On the trial of the feigned issue, the learned judge was requested to charge the jury “ that if the note on which the defendant's judgment was entered was given for a valuable consideration more than four months before the commencement of the proceedings in bankruptcy against L. A. Turner, then the judgment and fi. fa. issued thereon are valid, although the judgment was entered and fi

. fa. was issued within four months of the commencement of said proceedings in bankruptcy, and the verdict must be for the defendants.” This point the learned judge refused to affirm, but on the contrary, instructed the jury that when the entry of judgment and execution and levy are made within the four months before

Vol. I.]

MURPHY V. THE COMMONWEALTH.

[No. 11.

the petition of bankruptcy, the preference thus given is invalid, although the judgment note was given more than four months before. In this we think there was error, and as it was an error which ran through and infected the whole charge, it will be unnecessary to consider the other assignments.

It is clear that Turner did not procure the judgment to be entered on the 26th of February, 1872, within four months of the filing of the petition. As to that entry he was entirely passive. He had made and delivered the judgment note on October 4, 1871, more than four months before the petition, for an honest debt, to which he could interpose no defence. He was entirely passive so far as the entry of the judgment and the issuing of the execution was concerned. How then could he be said, in any sense, to have procured the judgment and execution, and thereby given the defendants a preference ? Had the note been a simple note, and the defendants had commenced suit upon it, and in due course obtained judgment for want of a plea or affidavit of defence, the case would have been no stronger. The supreme court of the United States have decided that something more than passive non-resistance in an insolvent debtor is necessary to invalidate a judgment and levy on his property when the debt is due and he has no defence. Wilson v. Bank of St. Paul, 31 Leg. Int. 29; 1 Am. L. T. R. (N. S.) 1. It was held also in that case, that though the judgment creditor may know the insolvent condition of the debtor, his levy and seizure are not void under the circumstances, nor any violation of the bankrupt law. We regard this decision as directly in point, and are bound to receive it as an authoritative exposition of the act of Congress by the highest tribunal in the land, invested by the Constitution with the power of deciding such questions in the last resort.

Judgment reversed, and venire facias de novo awarded.

COURT OF APPEALS OF VIRGINIA.

[TO APPEAR IN 24 GRATTAN.]

CRIMINAL LAW.- CONVICTION OF ASSAULT WILL NOT BAR INDICT

MENT FOR FELONY. · EVIDENCE OF WIFE OF CONFESSION OF HUSBAND. MALICE. PRACTICE.

MURPHY v. THE COMMONWEALTH.

1. The act of March 30th, 1871, Sess. Acts 1870–71, p. 332, does not give justices

of the peace jurisdiction to try a case of felony; and the conviction and punishment of a party by a justice for an assault and battery will not bar a prosecution for wounding with intent to kill, by the same act for which he was punished by

the justice. 2. If the accused has been indicted and convicted for a mere assault and battery in

the county court having jurisdiction of such offence generally, the conviction will not be a bar to an indictment for a felony, in the perpetration of which the assault

and battery was committed. 3. On a trial for an assault with intent to kill, the witness upon whom the assault

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