had been expounded by the courts and acted | became taxable at the will of the legislaupon by the people. None of the cases cited had to do with such a peculiar situation and novel conditions as faced the legislature when it passed the act to tax special franchises. Certain expressions of learned judges used arguendo in discussing the subject of home rule are relied upon by counsel as establishing a principle that controls this case. Principles are not established by what was said, but by what was decided; and what was said is not evidence of what was decided, unless it relates directly to the question presented for decision. "General expressions," as the great Federal jurist once said, "are to be taken in connection with the cases in which those expressions are used." Cohen v. Virginia, 6 Wheat. 264, 399, 5 L. ed. 257. A more specific review of the authorities is unnecessary, for it is sufficient to state that neither singly nor collectively have they so construed the Constitution as to prevent the legislature, under the circumstances existing when it sought to promote a sound public policy by passing the act in question, from creating a new system of taxation, embracing within it a new character of property including incidental additions, and committing the power of assessment to a state board of experts. The remaining questions raised by the relators do not require elaborate consideration. We cannot sustain their position that the taxation of a special franchise impairs the obligation of a contract, and thus violates the Federal Constitution, article 1, § 10. The franchises are grants which usually contain contracts executed by the municipality, but executory as to the owner. They contain various conditions and stipulations to be observed by the holders of the privilege, such as payment of a license fee, of a gross sum down, of a specific sum each year, or a certain percentage of receipts, as a consideration or "in full satisfaction for the use of the streets." There is no provision that the special franchise, or the property created by the grant, shall be exempt from taxation. Such a stipulation would be void, for no municipality has power to withdraw property from the taxing power of the state, or to provide by ordinance or contract that it shall be free for all time from the common burden which property generally has to bear. Taxation is the rule, with every presumption to support it, while exemption is an exception, with every presumption against it. The condition upon which a franchise is granted is the purchase price of the grant, the payment of which in money, or by an agreement to bear some burden, brought the property into existence, which thereupon ture, the same as land granted or leased by the state. There is no implied covenant that property sold by the state cannot be taxed by the state, which can even tax its own bonds, given to borrow money for its own use, unless they contain an express stipulation of exemption. The rule of strict construction applies to state grants, and, unless there is an express stipulation not to tax, the right is reserved as an attribute of sovereignty. Special franchises were not taxed until by the act of 1899 amending the tax law they were added to the other taxable property of the state. This is all that the statute does, so far as the question now under consideration is concerned. No part of the grant is changed, no stipulation altered, no payment increased, and nothing exacted from the owner of the franchise that is not exacted from the owners of property generally. No blow is struck at the franchise as such, for it remains with every right conferred in full force, but, as it is property, it is required to contribute its ratable share, dependent only upon value, toward the support of government. No burden is placed upon it except such as is borne by the homes of the people and money saved for support in old age. While all attempts of municipalities to undermine or destroy franchises by changing the terms of the grant have been promptly repressed by the courts, there is no case which holds that a franchise, whether general or special, cannot be taxed the same as other private property. The relators accepted their franchises subject to the right of taxation that applies to all property in the state, and we agree with the learned referee that the special franchise tax takes nothing from the grant, exacts nothing as further compensation for the privilege, and impairs no contractual obligation. . The further contention of the relators that the act is impracticable and incapable of execution; that the special franchises should have been seperately assessed; that the state tax commissioners adopted no rule in making the assessments; that the relators did not have a proper hearing at the time provided for review; and that due process of law was not observed in the taxation of their property,-after due consideration, we overrule, without further expression of reasons than already appears. In reviewing these cases we have received great aid from the strong and exhaustive opinion of the late Judge Earl, for many years a distinguished member of this court, who, acting as referee, decided them in the first instance, after full and careful consideration of all the questions involved. It was the last judicial work of that ripe lawyer | Term affirmed, in each proceeding, with and eminent jurist, and we regard his de- costs. cision as one of the most able and profound judgments ever pronounced by him during his long and useful career. The order of the Appellate Division should be reversed, and judgment of the Special Parker, Ch. J., and O'Brien, Bartlett, Martin, Cullen, and Werner, JJ., concur. Reargument denied. WEST VIRGINIA SUPREME COURT OF APPEALS. Robert SNYDER v. damages for personal injuries alleged to have been caused by defendant's negligence. PHILADELPHIA COMPANY OF WEST Affirmed. (........W. Va...... .) 1. The summons in an action of tres pass on the case is not a part of the record until made so by oyer. 2. Advantage of a variance between the writ and declaration can be taken by plea in abatement only, and after oyer. 3. A summons setting forth the full corporate name of a defendant corporation, without reciting that it is a corporation, is sufficient. 4. The owner of a gas well situated near a public highway may lawfully open it for the purpose of allowing the gas to blow the water out of it, although the noise thereby made is clearly such as to frighten the horses of persons riding or driving along the highway; but in doing so he must exercise care not thereby to inflict injury upon such persons or their property. 5. Persons using horses on the highway in close proximity to such well, and seeing an agent of the owner at or near it, have the right to presume that he will not open it without warning, or first looking for travelers on the road, and are not guilty of contributory negligence in failing to turn and fly from it, or in failing to give warning of their presence. 6. When, by the negligent blowing off of such well, a teamster's horses become frightened, and, in attempting to control them, a line break, causing him to fall from his wagon, whereby he is injured, the proximate cause of the injury is the blowing off of the well, although the line is weak and wholly insufficient for such an emergency. 7. In such action, if the declaration shows the jurisdiction of the court, and no plea in abatement has been filed, the judgment will not be reversed for want of proof of the venue as laid. (November 21, 1903.) The facts are stated in the opinion. Messrs. Rucker, Anderson, & Hughes and J. W. McIntire, for plaintiff in error: Private ownership of property carries with it the right of the owner to use the property in his own way so long as he does not interfere with the rights of others, and courts of law will not interfere with the rightful dominion of a man over his own property. Dicken v. Liverpool Salt & Coal Co. 41 W. Va. 511, 23 S. E. 582; Woolwine v. Chesapeake & O. R. Co. 36 W. Va. 329, 16 L. R. A. 271, 32 Am. St. Rep. 859, 15 S. E. 81; Poling v. Ohio River R. Co. 38 W. Va. 645, 24 L. R. A. 215, 18 S. E. 782. Snyder is shown to have been guilty of such contributory negligence as precludes him from legal recovery. Where an injury of which a plaintiff complains has resulted from the fault or negli gence of himself, or where it has resulted from the fault or negligence of both parties without any intentional wrong on the part of the defendant, an action cannot be maintained. Williams v. Michigan C. R. Co. 2 Mich. 259, 55 Am. Dec. 59; Rathbun v. Payne, 19 Wend. 399; Brownell v. Flagler, 5 Hill, 582; Hartfield v. Roper, 21 Wend. 615, 34 Am. Dec. 273; Smith v. Smith, 2 Pick. 621, 13 Am. Dec. 464. In all cases where damages are sustained by the plaintiff in consequence of the use which the defendant makes of his own property, it is necessary to inquire, not only whether the defendant has been guilty of culpable negligence on his part, but whether the plaintiff is free from a similar charge. Bush v. Brainard, 1 Cow. 78, 13 Am. Dec. ERROR to the Circuit Court for Wetzel 513; Brown v. Maxwell, 6 Hill, 592, 41 Am, County to review a judgment in favor of plaintiff in an action brought to recover *Headnotes by POFFENBARGER, J. NOTE. For the similar question of the liabilIty of a railroad company for frightening horse by escape of steam or blowing of whistle, see, in this series, Sellick v. Lake Shore & M. S. R. Co. 18 L. R. A. 154; Bittle v. Camden & A. R. Co. Dec. 771; Cosulich v. Standard Oil Co. 122 N. Y. 118, 19 Am. St. Rep. 475, 25 N. E. 259. | 23 L. R. A. 283; Omaha & R. Valley R. Co. v. Clarke, 23 L. R. A. 504; Mitchell v. Nashville, C. & St. L. R. Co. 40 L. R. A. 426; and Kentucky & I. Bridge Co. v. Montgomery, 57 L B. A. 781. Mr. E. L. Robinson also for plaintiff in | oyer thereof. 4 Minor, Inst. 1266; 5 Rob. Pr. 98; Hogg, Pl. & Forms, 166, note 8; Mr. John A. Howard for defendant in Stephens v. White, 2 Wash. (Va.) 212; error. error. Watson v. Lynch, 4 Munf. 94. To have availed itself of the plea in abatement, oyer Poffenbarger, J., delivered the opinion of the writ must have been had, and the of the court: As the defendant in error, Robert Snyder, driving a two-horse wagon loaded with baled hay along a public road in Wetzel county, approached a point in the road from which a gas well owned by the Philadelphia Company of West Virginia stood about 50 feet distant, W. W. Little, an agent and employee of said company, opened the valve or gate of the pipe in which the gas was confined under great pressure, and permitted it to escape, thereby causing a hissing and roaring noise, which frightened plaintiff's horses, and caused him to be thrown, or to fall, from the top of the load of hay to the ground, where the wheels of the wagon passed over his leg, badly fracturing it, and | inflicting, as is claimed, permanent injury. In an action against the company he recovered a judgment for the sum of $2,500 as damages for the injury inflicted by the alleged negligence of said company. Of this judgment said company complains. The first assignment of error is predicated upon the action of the court in overruling the demurrer to the declaration and each count thereof. Upon the demurrer an effort is made to take advantage of the failure of the summons to say or recite that the defendant company is a corporation, it merely naming the defendant as the "Philadelphia Company of West Virginia.” An objection of this kind cannot be raised by demurrer. Advantage of it can be taken only by plea in abatement on the ground of a variance of the declaration from the writ. In cases other than misnomer "the defendant on whom the process summoning him to answer appears to have been served shall not take advantage of any defect in the writ or return, or any variance in the writ from the declaration, unless the same be pleaded in abatement." Code 1899, chap. 125, § 15; Hoffman v. Bircher, 22 W. Va. 537; Anderson v. Doolittle, 38 W. Va. 629, 18 S. E. 724. The omission does not make the writ void, for it is mere matter of description. The corporate name is fully set out, and the alleged defect is mere failure to describe the defendant as a corporation. This could have been cured by amendment, and said § 15 permits the amendment to be made. If the defect could be treated as a misnomer, the writ is amendable on mere motion accompanied by an affidavit of the right name, under § 14 of chapter 125. Such plea could not have been filed without having first made the writ a part of the record by demanding plea in abatement filed before any other plea was put in. A plea in abatement raises the question of jurisdiction, and after a general appearance the jurisdiction of the court for want of sufficient process cannot ordinarily be raised. 4 Minor, Inst. 1266. Objections which do not go to the substance of an action are treated as waived if not made when the occasion of them arises. "It is a wellestablished rule that, by appearing and pleading to the action, a defendant waives all defects in the process and in the service thereof. The cases go further, and imply such a waiver from the defendant's taking or consenting to a continuance as fully as they do from his pleading to the action. The object of the writ is to apprise the defendant of the nature of the proceeding against him. The fact of his taking or agreeing to a continuance is evidence of his having made himself a party to the record, and of his having recognized the case as in court. It is too late for him afterwards to say that he has not been regularly brought into court." Harvey v. Skipwith, 16 Gratt. 410. By appearance to the action for any other purpose than to take advantage of the defective execution or nonexecution of process, a defendant places himself expressly in the situation in which he would be if process were executed upon him. Mahany v. Kephart, 15 W. Va. 609; Bank of the Valley v. Bank of Berkley, 3 W. Va. 386; Chilhowie Lumber Co. v. Lance, 50 W. Va. 636, 41 S. E. 128. Had all these dilatory steps been taken by the defendant, they might have been unavailing even under adverse rulings of the courts, for many decisions hold that it is unnecessary to append the descriptive words "a corporation." See Gillett v. American Stove & Hollow Ware Co. 29 Gratt. 565, in which both writ and declaration omitted the words, but were held good; Woolf v. City S. B. Co. 7 C. B. 103; Norris v. Staps, Hobart, 210b; Henriques v. West India Co. 2 Ld. Raym. 1534; Rees v. Conococheague Bank, 5 Rand. (Va.)' 326, 16 Am. Dec. 755; Douglass v. Kanawha & M. R. Co. 44 W. Va. 267, 28 S. E. 705; State v. Dry Fork R. Co. 50 W. Va. 235, 40 S. E. 447; Baltimore & O. R. Co. v. Sherman, 30 Gratt. 602. In Woolf v. City S. B. Co. and Norris v. Staps it was said that the name argues a corporation, and that setting it forth impliedly amounts to an allegation that the defendants are a corporate body. The view has been adopted and is still adhered to both in Virginia and this state. Gillett v. Ameri can Stove & Hollow Ware Co. 29 Gratt. 565; | not to injure others. The criticism of the declaration is that it Although he has the right to the exclusive dominion and enjoy ment of his own property, and may do with it as he pleases, he must respect the lives, limbs, health, and property of others to the extent of exercising at least ordinary care for their safety in the use of his property. Such right of dominion and enjoyment in him is met and limited by the same right existing in other people. He must live and let live. He owes a duty to the other, and he must so use his own property as not to injure him. At least, negligence or wilful misconduct on the part of the one in the use of his own property, resulting in injury to the other, makes him liable. Powell v. Bentley & G. Furniture Co. 34 W. Va. 804, 12 L. R. A. 53, 12 S. E. 1085; Wilson v. Phænis Powder Mfg. Co. 40 W. Va. 413, 52 Am. St. Rep. 890, 21 S. E. 1035; McGregor v. Cam den, 47 W. Va. 193, 34 S. E. 936. The cases of Dicken v. Liverpool Salt & Coal Co. 41 W. Va. 511, 23 S. E. 582; Woolicine v. Chesapeake & O. R. Co. 36 W. Va. 329, 16 L. R. A. 271, 32 Am. St. Rep. 859, 15 S. E. 81, and Poling v. Ohio River R. Co. 38 W. Va. 645, 24 L. R. A. 215, 18 S. E. 782, relied upon by the plaintiff in error, do not support its contention. The language quoted from the first, "A party who is using his own property in a lawful way cannot be guilty of a breach of duty to anyone,"implies that he has not been guilty of negligence or wilful misconduct in the use thereof; and in all those cases it was determined by the processes of the law that there had been no negligence. This principle is very well illustrated in a line of decisions which hold that, although it is lawful for a manufacturing establishment to maintain a steam whistle, that whistle must be used with ordinary care and due regard for the rights of others, and if, by the negligent use thereof, horses are frightened and caused to run away and inflict injury, the owner of the plant is liable for the resultant damages. Between these cases and the one now under consideration there is a very close analogy. The principles upon which they stand are well estab lished by courts of high standing, as well as supported by fundamental principles of law, and their application to the facts of this case as set forth in the declaration makes it clearly good. "The use of a steam whistle in a manufacturing establishment is not a nuisance per se, but it may be used so as to become such. It has been held that the sounding of the steam whistle of a fac tory 15 feet from the platform on which a team is being unloaded is gross negligence which will render the factory owner liable, where the person in charge of the team is not first warned by the employees in charge of the whistle, although the whistle is in | from the mere prospect of such danger he plain view from such platform, and the was guilty of contributory negligence? The owner of the team, while acquainted with its groundlessness of this contention is too apoperation, fails to notify his driver thereof. parent to require the citation of any authorIf a horse frightened by such whistle, pulls ity. at the rope by which he is hitched, and is On the motion to set aside the verdict, thereby killed, the proprietor of the estab- which the court overruled, it is argued that lishment using the whistle will not be liable there was no proof of the ownership of the to pay damages, in any event, if it appear well by the defendant company. Throughout that the accident was the combined result the entire trial, with the exception of a of the noise of the whistle and the vicious single question propounded by counsel for habit of the horse." 1 Thomp. Neg. § 1261. the defendant, the defendant company was In Knight v. Goodyear's India Rubber Glove never referred to by either counsel or witMfg. Co. 38 Conn. 438, 9 Am. Rep. 406, nesses by its full name. For the most part Butler, Ch. J., said: "Their right to use a it was called the Philadelphia Company. whistle must be conceded, but, like all other The ownership of the well was not controrights, it must be so exercised as not to en-verted, nor was there even a suggestion or danger and injure others. It is no answer intimation throughout the whole trial that to say that they did not erect or blow the whistle for any such purpose, or that they had no knowledge that it frightened horses, or that they did not suppose it was calculated to frighten them. These facts, if they existed, they were bound to know or anticipate." the defendant company did not own and operate it. The plausible suggestion that the trial proceeded upon the tacit admission of the defendant's ownership of the well need not be adopted, if it could be. There seems to be enough evidence in the record to warrant the finding of the jury upon that point. In the testimony of a witness for the defendant, the following is found: Q. Are you acquainted with the oil well on what is called the Barr farm in this county, belonging to the Philadelphia Com. pany of West Virginia, or gas well? A. Yes, sir. Q. Do you remember the time that Robert Snyder was injured by falling off a wagon near that well? A. I recollect of hearing of it. Q. Do you know anything about the condition of the road, as to bushes along the edge of it at that time, between the road and the well? A. Yes, sir. The court refused to give an instruction, asked for by the defendant, telling the jury that if the plaintiff, knowing the danger of approaching the gas well, and having reason to anticipate danger, not dependent upon natural causes, but likely to happen by reason of the defendant operating its gas well, and having knowledge of the danger, approached the well, he was guilty of contributory negligence, and could not recover unless defendant's agent let off the gas with intent to frighten the horses. It is insisted that this instruction should have been given. As the plaintiff was proceeding along the public highway where he had the right to be, and the gas weli had not yet been opened, he was not bound to assume that it would be opened while he was passing. He admits in his testimony that he saw Little ap- The witness then proceeds to describe the proaching the derrick, and from this fact it location. Clearly, he testified to that well might have been inferred that Little in- as belonging to the defendant company, and tended to open the well; but, as plaintiff identified it as the well near which the plainwas already in the occupancy of the high- tiff was hurt. As there is no evidence to way, the team already in close proximity the contrary, this is sufficient upon which to to the well, where the noise, which the wit-rest the verdict as to the ownership of the nesses say was about five or six times as well, and on that ground the verdict cannot great as that of an ordinary locomotive be set aside. Had there been no adwhistle, was likely to frighten his horses, mission of ownership by the defendant, he was not bound to assume that the defendant's agent would do a negligent and reckless act. He had the right to assume that the agent would perform his duty and obey the law, by waiting until after the team had passed. All the evidence bearing on the question is to the effect that the plaintiff was so near the well when he saw Little going to it as to make his position dangerous if the well should be opened. Can it be said that because he did not turn back and fly or proof of it by his own witnesses, and no proof of it by the plaintiff, the verdict would have to stand upon the tacit admission of ownership, or else be set aside, but proof of it by the defendant relieves the court of the duty of saying whether it can stand upon the implied admission. Further argument on the motion to set aside the verdict is based upon the theory of contributory negligence on the part of the plaintiff, it being contended that, as the |