Irving Browne Isaac Grant Thompson.

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own advantage, because his neighbor's land is so situated as to be
incommoded by it.'* This is a mei'e reiteration of the doctrine of
" sauve qui peuf/^ or as popularly translated into our vernacular
**the devil take the hindmost.'* We prefer that asserted by this
court in Laumier v. Francis^ and repeated in McCormick v. K. C,
SI. Jo. d a B. R. R.

Nor do we think that equitable and just principles, as we under-
stand it, will materially retard agricultural operations or improve-
ments. The facts in the present case show that tlie defendant
could have built a rock culvert at the crossing of this hollow, at
about the same cost with the dirt embankment The engineer
seems to have been misled by the dry and rich soil which extended
YoL. XXXVI- 02

Digitized by



Shane v. Kansas Citj, etc.. Railroad Company.

to the very bottom or lowest part of the swale, portions of whicli
were in cultivation, and although the road was equally strong and
safe with a rock culvert or a dirt embankment, the engineer pi-e-
ferred the latter, as " not so liable to wash o::t when floods come ;
and drift wood and other debris fill the culvert and injure it or the
bank adjoining it." The first instruction given for the plaintifiT
contained all tlie law necessary to enable the jury to pass upon the
facts submitted, and the second and third, and the sixth given for
defendant certainly canuot be complained of by defendant. The
judgment of the Circuit Court is affirmed. Sherwood, C. J.,
and Henry and Nort6n', JJ., concur.

Note by the Rbportbr. — Houoh, J., dissenting, observed : "I adhere to the opinion
of this court in AfcCV>rmtefc v. AT. C, Si. Jo. & C. B. A. i2., 57 Mo. 433, the doctrine of
M'hich I cuuccive U> be at variance « ith the rule adopted by my associates for Uiis case.
In the case cited, the right of the proprietor of the Roil to change the flow» or obstruct the
natural course of surface water, is clearly and distinctly announced in the foIlowlng^
l&nfruago : 'The general rule, however, is that either municipal corporations or private
persons may so occupy and Improve their land, and use it for such purposes as they may
see fit, either by gi-adingf or filling up low places, or by erecting buildings thereon, or by
making any other improvement thereon, to moke it flt for cultivation or other profitable
or desirable enjoyment ; and it makes no dilTeroiico tiiat the effect of such improvement
is to change the flow of the surface water accumulating or falling on the surrounding
country so as either to increase or diminish the quantity of such water, which had pro-
viously flowed upon the land of the adjoining proprietors, to their inconvenience or Injury.
Ang. Wat. Cour., p. 122, § 108, and following, and cases there cited. Qoitdale v. Tuttle^
29 N. Y. 450 : Wafflfi v. X. Y. Cent. Ry. Co., 53 Darb. 413 ; Turner v. Inhabitants, etc., 13
AJIcn, 291 ; Imlcr v. City nf Springfield^ 55 Mo. 119 ; s. C, 17 Am. Itep. 645, and cases thcrR
cited. The same rule would apply to water flowing over the country, which had escaped
from the banks or natural channel of a running stream of water, by reason of a flood in
the strooni occasioned by heavy rains or the melting of fuow upon the surrounding

" In Goodale v. TiUtle, 29 N. Y. 459, cited by Judge Vories in support of his opinion in
the case just quoted from, Dknio. C. J., said : ' And in reaiject to the running off of surface
water caused by rain or snow, I know of no pHnclple which will prevent the owner of land
from filling up the wet and marshy places on his 01*01 soil for its amelioration and his own
advantage, Ix^cause his neighbor's land it* s«> situated as to be incommoded by it. Such a
doctrine would militate a;?ainst the well-settle^l rule that the owner of land has full
dominion over the whole space above and below the surface.' In (Junnon v. HargaiUm,
10 Allen, 10(1, BioELow, C. J ., said : ' The right of an owner of land to occupy and impro\-e
it in such manner and for such purposes as ho may kgo flt, either l>y changing the surfaie
or the erection of buildings or other structures thereon, is not restricted t>r modified by
the fact that his own land is so situated with reference to that of adjoining owners, tha«
an alteration in the mo<le of its improvement or occupation In any portion of it will cause
water, which may accumulate thereon by rains and snows falling on it« surface or flowing
on to it over the surface of adjacent lots, either to stand in unusual quantities on other
adjacent lands, or pass into and over the sani«^ in {jreater quantities or In other dlrectiouf:
than they were nccustome<l to flow.'

•• In iiojyt V. City of Htidtam, 27 Wis. G5tt, Ddcon, C. J., after stating the rule of the civfl
law of dominant and servient heritage, which he rejects, proceeds as follows : * The
df>ctrine of the common law is, that there exists no such natural easement or servitude in
favor of the owner of the superior or higher ground or fields as to mere surface water, or
t;ueh as falls or a<.cumulates by rain or the melting (»r Know, and that the proprietor of thft

Digitized by


OCTOBEK TERM, 1879. 49]

Shane v. Kansas Citj, etc.. Railroad Companj.

inferior or lower tenement or estate may. If he choose, lawfully obstruct or hinder
the natural flow of such water thereon, and in so doing may turn the same back
upon, or off, on, to or over the lands of other proprietors without liability for in
Juries ensuing from such obstruction or diversion. This is the rule in England, and
in Massachusetts. New Torlc, Connecticut, Vermont, New Jersey and New Hampshire,
as will be seen by the authorities cited in Pettigreto v. EvaiwiUe^ ^ Wis. 228 ; s. o., 8 Am.
Uep. 50, and also the following : Botclaby v. Speer^ 31 N. J. (2 Vroom), 851 ; Ditkinaon
V . Worcester, 7 Allen, 19; ChatJUld v. ITtteon, 28 Vt. 49 ; Sweit v. CuOs, 60 N. H. 439 ; s. c,
U Am. Rep. JJ7G; Trustees v. Youmam, 60 Barb. 316; Waffle v. N, Y. Cent. Ry, O)., 68 Id.
413. Excluding from its operation surface water falling or accumulating on his own land,
which, as decided in Pettigrew v. Village of Evansville^ the proprietor may not divert or
cause to flow upon the land of another to his injury, the rule of the common law is cor-
rectly stated in Dowlahu >^« Sp€a% that no legal right of any kind can be claimed, jure na-
turae in the flow of surface water, so that neither its retention, diversion or repulsion is an
actionable injury, even though damage ensue. An examination of the lost named case
will also show that the case of Karl v. Detlart, 1 Beas. 280, cited and relied upon in orgu-
ment here, has been virtually overruled.*

" In Bowlsbu V. Speer, mpra, Bkasely , C. J . , said : The owner of land may, at his pleas-
ure, withhold thewat4.*r falling on his property from passing in Its natural course ontci
that of his neighbor, and in the same manner may prevent the water falling on the land of
the latter from coming on to his own. * * * Nor does it seem to me that there is any
significance in the fact that there was on appreciable channel for this surface water over
the land of the defendant and into which it naturally ran. On every hill-side numbers of
such small conduits can be found, but it would be highly unreasonable to attach to them
all the legal qualities of water-courses. I am not willing to adopt a doctrine which wouUI
be accompanied with so much mischief. ' It appears from the statement of facts in that
case, that the defendant built a stable over a hollow on his own land, through which the
surface water was accustomed to pass, and this obstacle turned the course of the water,
BO that it ran on to the lot and into the cellar of the dwelling-house of the plaintiff. It was
held that the plaintiff had no right of action.

' ' In the case of LiiyltigsUm v. Mcrkmald, 31 Iowa, 160, in which a very able and most in-
teresting opinion was delivered by Judge Duxon, it appeared that the water naturally flowed
from the defendant's low or slough land Into and upon like land of the plaintiff. The de-
fendant constructed a mole or underground ditch about two hundred yards in length a
short distance below the surface. In his slough land, which terminated In an open end or
mouth near the land of plaintiff, and thus concentrated the water laterally received by it
throughout its whole length and emptied it in a body upon the land of the plaintiff. This
Judge Dillon decided the defendant had no right to do. Nor under the common-law rule,
OS laid down In McCormick v. R. R., aupra^ could this have been done. But Judge Dil-
lon, by way of caution perhaps, wisely observes in the same cose, that * it may be doubted
whether the common-law courts in this country would adopt what seems to be the rule of
the civil law. so far as to preclude the lower owner from making, in good faith, improve-
ments, which would have the effect to prevent the water of the upper estate from flowing
or passing away.' On a question like that now before us, the decisions in Louisiana can-
not be received as authority In this State, since, a.s is well known, they are based ui>on
positive provisions of the Civil Code regulating the subject in force in that State. 1*^.
Code, art. 656. In the case from that State cited in the opinion of the majority, Dl^ffel,
J., observes: ' This court has, on more than one occasion, expressly declared that a strict
and rigid application of the articles of the Code on the title of predial servitudes would bo
destructive to agricultural industry. Martin v. Jett, 12 La. 603 ; Sawen v. Shiff, 15 La.
.Vnn. 300.* And in the case last cited the same learne<l Judge further said that a strict appli-
cation of the articles of the Code ' would condemn to perpetual sterility all the rich lands
ia lower Louisiana bordering on the Mississippi river.*

" Judge Rbdfzild In commenting upon the case of Swett v. Cutts, 50 N. H. 43D; s. r, 9
.\m. Rep. 276, makes the following pointed and emphatic declarations on this subject: * It
must be conceded, we think, that the right of land owners to deal with surface water
mixed with the soil, or coming from underground springs, in any manner they may deem
nc»cessarA' for the improvement or better enjoyment of their ovm land, Is most unquestion-

Digitized by



Shane t. Kansas City, etc.. Railroad Company.

able, and If by so doing, in good faith and with no purpose of abridging or interfering with
any of their neighbors' rights, they necessarily do damage to their nei^ibors* lands, it
must be regarded as no infringement of the maxim, tic utere tuo ut aUenum non kBdoM,
but must be held damnum absque injuria,*

'* But there is a more potent reason for upholding in this State the common-law rule on
this subject than is to be found in all the learned judgments of the distinguished jurists
whose opinions have been cited. Section 8117 of the Revised Statutes, which has been in
force in this State since the year 1816, declares that the common law of England, when not
repugnant to the Constitution of the United States or the Constitution and laws of this State,
*shall be the rule of action and decision in this State, any law,custom or usage to the contrary
tiot\iithstandlng.* While common-law judgments are frequently Illustrated by reference
to the civil law, and while this court is at liberty to resort to any system of jurisprudence
for a rule of action when the common law and our statutes fail to furnish one, yet when
the common law does furnish a rule, under the statutes cited, I do not conceive that this
court is at liberty to disregard It.

'* Laumier v. Francis, 28 Mo. 181, referred to in the opinion of the court, was an action
against the defendant for levying a nuisance by accumulating a body of water on a lot In
his possession adjoining a building in the possession of the plaintiff. Judge LaoiURn,
after defining a servitude under the civil law, proceeds as foUows: ' We, of course, know
nothing about the facts of the present case ; but If such was the natural situation of these
lots, and the plaintiff dammed up the water on the defendant's lot by erecting a house
upon his own, it is very obvious that he cannot recover any damage occasioned thereby to
his own property. * * * In the case supposed, the plaintiff himself would be the autiior
of the nuisance, and of course could not hold another responsible for the damages that re-
sulted to him from his own set.' The judgment of the Circuit Court, however, was ex-
pressly reversed upon another ground, and no decision was, or could have been made upon
facts which were not before the court. On the facts supposed, no recovery could have
been had under the common law. For example, the defendant in this case could not have
recovered damages from any one for injury done to its embankment by the surface water
which it had dammed up. Besides, as Judge LxoNAan dted the case of Cooper v. Barber ,
8 Taunt. 99, in support of his views, there is as much ground for saying that he adopted the
common-law rule, as there is for saying that he adopted that of the civil law. Neither rule
was maintained as against the other in that case.

" If the defendant in this case had constructed a culvert or other opening In its embank-
ment for the passage of the flood through it upon the adjoining fields in the swale on the
other side of its road, as is suggested in the opinion of the court, I do not see why the de-
fendant would not have been liable for the injury thereby inflicted upon the owners of
such flelds, under the decision made at the present term in McCormick v. IT. C, St. Jo. A
C. B. R. R. (the present defendant), 70 Mo. 859; s. o., 86 Am. Rep. 43L So that if the com-
pany "builds an embankment without any opening, it will be liable for the damages arising
from the obstructed surface water on one side, and if it constructs an embankmwit with
an opening, it will be liable for the damage done by the surface water passing through it on
the other side.**

See AtchiMm^ etc., B, Co. v. Hammer, 2» Kans. 768 ; s. cu, 81 Am. Rep. 216 ; TayUir t.
FirkoB, 64 Ind. 167|; 8. a, 81 Am. Rep. 114.

Digitized by


APKIL TERM, 1880. i%

Sloan y. Campbell.

Sloan v. Campbell.

(71 Mo. 887.)
Vendor's lien — aseignabHUy,

Where a note la given for porchase-money of land, tbe transfer of the note
carries with it the vendor's lien.

rpHE opinion states tbe case. The plaintiff hod jadgment below.

Wooldridge A Daniel^ for appellant, cited Shall v. Biscoe^ 18 Ark.
162 ; Simpson t. Montgotnerg, 25 id. 372; Hechi t. Spears, 27 id.
229 ; a a, 11 Am. Rep. 784 ; 2 Story Eq. Jur. (9th ed.), § 1227, 456 ;
Oreen v. DetnosSf 10 Humph. 371 ; Ahrend a. Odiorne, 118 Mass.
261 ; 6. c, 19 Am. Rep. 449 ; Fain v. Inman, 6 Heisk. 5 ; s. c, 19
Am. Rep. 577 ; Dixon y. JJixon, 1 Md. Chan. Dec. 220 ; Mackreth
Y. Symmons' 1 Lead. Cas. in Eq. 275 ; 2 Wash. Real Prop. (3d ed.)
92, § 18 ; § 3, chap. 18, title "Mortgage."' Oann v. Cliester, 5
Yerg. 205 ; Sheraiz v. NicodemuSy 7 id. 9 ; Oreen v. Crockett, 2 Dev.
& Bat Eq. 390 ; Wehh y. BoHv^on, 14 Ga. 216; White y. WtUinms,
1 Pai. 502 ; Vichenson y. Chasey 1 Morris (Iowa), 492 ; Briggs v.
HilU 6 How. (Miss.) 362 ; Moreton v. Harrision, 1 Bland. 491 ;
Halloch V. Smithy 3 Barb. 267 ; Walker v. Williams, 30 Miss. 165 ;
Baum V. Origsbg, 21 Cal. 176 ; Wellborn v. Williams, 9 Ga. 89 ;
Adams y. Cowherd, 30 Mo. 458 ; Stevens v. Chadwick, 10 Eans. 406 ;
& c, 15 Am. Rep. 348 ; 3 Sngden on Vendors (6th Am. ed.), top p.

Charles W. Sloan and i?. 0. Boggess, for respondent

JTapton, J. The only question presented by the record in this
case is whether the plaintiff, an indorsee of a note mode to the
vendor of a tract of land for a part of the pnrchase-money of the
tract, can enforce his lien upon the land, there having been no trans-
fer of the land by the purchaser. The lien of a vendor of land for
his purchase-money secured by note, under the circumstances stated,
has never been questioned in this State. We have followed the de-
cisions in Mackreth v. Symmons, 15 Yes. 329, and we have allowed
this lien where there has been an absolute conveyance, as well as
where there was only a bond for the title, and without regard to

Digitized by



City of Carthage v. First National Bank of Carthage.

the form of the note or obligutiou. This has been conceded to the
legal representatives of the holder of the note, whether heirs or de-
visees, and the only question in this case is, whether it shall be ex-
tended to a purchaser for value. This was done in the case of
Admits V. Cowhe^'dy 30 Mo. 458, where there was only a bond for
title ; and since the rule in regard to this lien, in favor of the origi-
nal owner of the note, applied as Avcll where there was an absolute
conveyance, as where there was only a bond for title, we see no rea-
son why the principle asserted in that case should not be applied to
the present. This is positively asserted in Bailey y. Smock, 61 Mo.
213, and is obviously conceded in State National Bank v. Rohidoux^
57 id. .446. "We are aware that there Jire decisions of many of our
State courts against this conclusion, and very respectable authori-
ties are adverse to the enforcement of such liens under any circum-
stances, and very nice discriminations have been made in regard to
the principle upon which this lien was originally conceded. Some
courts call it a trust, and some an equity. But the only question
we have to decide, under the decisions of our court is, whether the
assignee for value of a note for the purchase-money of real estate
occupies a worse position than the heir or devisee of such note. No
reason has been suggested why such a discrimination should be
made, and we therefore simply assume it our duty to follow estab-
lished precedents here, upon a point where the diversity of opinions
in the State courts is irreconcilable. Judgment of the Circuit
Court is therefore affirmed.

Judgment affirmed.
All the judges concur.

CiTT OF Cabthage V. FiRST Natiokal Bakk of Cabthaos.

(71 Mo. fiOS.)

National bank — taxaUon — licente.

A city baa no power to exact a license fee from a National bank.

4CTI0N for license fee. The opinion states the case. The plaint-
iff had judgment below.

Digitized by


APRIL TERM, 1880. 495

CitT of Carthmge ▼. First National Bank of Carthage.

E^ <7. MonUigue, for appellant.
J/. G. McGregor y for respondent.

NoRTOX, J. By tlio record it appears that on the 27th day of
December, 1876, complaint was filed before G. M. Robinson, city
recorder of respondent, charging that appellant did set up, keep
and carry on the business of banking within the corporate limits
of said city, without first having obtained a license from said
city of Carthage as a banker, contrary to the provision of section 7
of ordinance No. 10, which section reads as follows, to wit: **No
person or corpomtion shall be authorized to set up, keep, carry on,
or maintain tho business of banking, money broker, or exchange
dealer, either under or by virtue of tlic laws of the State or of the
United States, nor shall any i)ersoii or corporation set up, carry on,
or maintain any pavings association or institution, for tho purpose
of dealing in exchange or doing a bankingor loan business within
the limits of tlie city of Carthage, unless such person or corpora-
lion shall first obtain a license fnmi said city as a banker, broker
or cxehango dealer/' On the trial of the cause before the city re-
corder, judgment for $100 was rendered for plaintiff, and on appeal
therefrom to the Common Pleas Court of Jasper couuty, defendant
demurred to the complaint on the ground that tho ordinance on
which it was bused was void, for want of authority in the general
assembly to authorize its enactment, and because the ordinance
imposed a tax on defendant. Tho demurrer was overruled and
judgment rendered for plaintiff, from Avnich defendant has appealed.

In tho case of McCuUoch v. State of Maryland, 4 Wheat 316, it
was held that Congress had the constitutional right to authorize
the incorporation of banks ; that a bank thus incorporated had a
right to establish its offices of discount and deposit within any State,
and tliat when so established the State could not tax it. This de-
cision was made with reference to tho question whether the State of
Maryland could impose a tax on the Bank of the United States,
incorjwrated under an act of Congress of April 10, 1816. The prin-
ciple therein announced, has been reaflSrmed and applied to the act
of Congress authorizing the incorporation of National banks, in the
following cases: Van Allen v. Assestsors, 3 Wall. 573 ; Bradley v.
People, 4 id. 459 ; Lionherger v. Rouse, 9 id. 408 ; Tappan v. Bank^
10 id. 490 ; Hepburn v. School Directors, 2J id. 480. In all of these

Digitized by



State ▼. EddiDgB.

cases it has been held that a State can only impose such a tax apon
these National banking corporations as is authorized in the act of
Congress creating them, and that said act only authorizes a tax on
the shares in such bank and not upon its capital stock ; that such
banks derived their authority to do business in the States by virtue
of a United States statute which is supreme. It therefore follows,
that the right of defendant to conduct its business as a banking
institution is in no way dependent on a license to be obtained either
from the State or any of its municipalities. The demurrer ought
to have been sustained and for the error committed in overruling
it the judgment is reversed, in which all concur.

Judgment reversed.

State v. Eddinos.

(70 Mo. 545.)

Criminal law — evidence -^ftynaer cros^sxamination ofpr%»oner.

If a prisoner testifies on his own belialf, liis answers on his cross-examinatkni
on a former trial of the same case may be used against him.*

CONVICTION of burglary with intent to commit rape. The
opinion states the facts.

Winslow and Reed <0 llalU for appellant,

J, L, Smifli, attorney-general, for the State.

IIenuy, J. The defendant was indicted at the October term of
the Randolph Circuit Court, 1879, charged in the first count with
having burglariously broken into the dwelling-house of one M. C.
McMillan, with intent to commit a rape upon the person of Ida
McMillan, then in said dwelling-house. The second count was the
Bame> except in charging the intent to have been to commit a rape
upon ^lary McMillan. The defendant was tried and convicted,
and from the judgment ho has prosecuted his appeal.

[Omitting a consideration of the evidence.]

On a former trial the defendant voluntarily offered himself as a
witness, and at the trial now under review Mr. Phillips, a juror on
the former occasion, was called by the State to testify what the

'S^Q state V. Deal (G8 Ind. 345), 34 Am. Hep. 963.

Digitized by


APRIL TERM, 1880. 497

State V. Eddings.

testimony of defendant then was. To this def enda^ t objected, and
the court overraled the objection, and witness testi Jed.

[Omitting his testimony.]

It is contended that his statement so made can o ly be received
in evidence as a confession, and to be admissible ai a confession it
must have been voluntary. He had his option ta testify or not,
and when ho voluntarily became a witness he volunt^ired to answer
all proper questions propounded on cross-exam inatio'^i. He became
as any other witness. He took the risk of answering any questions
on cross-examination, for the advantage of testifying in chief in
his own behalf. It cannot with any propriety be said that his
answers to questions asked him on cross-examination were involun-
tary. He chose to put himself in a position which invited them.
He offered himself as a witness to tell the whole truth, not only
what made for him, but what would be against him; not only to
answer questions propounded by his counsel, but those propounded
by the State. He was not to be treated as a witness as to his testi-
mony in chief, and as a party as to his testimony on cross-examina-
tion. In the case of People v. Arnold, decided at the April term,
1880, of the Supreme Court of Michigan, this question was involved,
and determined in favor of the State. The opinion was delivered
l>y Judge CooLEY, and the reasons assigned for the conclusion
reached are unanswerable.

His status was that of a witness. He was not compelled to
:issume that character, and the statute expressly provides that his
refusal or neglect to offer himself as a witness shall not raise any

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 56 of 123)