and far more difficult, I should think, to trace as preoise causes act· ing to occasion a loss. Applying the principles of construction already mentioned, it would be placing upon a policy-holder too great a burden to require him in a case like this to demonstrate with exactness what particular force operated to make his loss, and that there was some extraordinary action of the winds or currents, or extraordinary stages of water, or the like. It would emasculate these policies and reduce their value to permit this company to escape on the facts of Jhe case, because, forsooth, the witnesses could see nothing in wind, current, or navigation that was not in the usual and ordinary course. I have, following the counsel, treated this case as if this raft were a "vessel," but I think it is not. The policy is not one on a vessel, but on the em'go of a vessel, and is called by its terms a "cargo policy." I have not been able to find any discussions of the subject of insurance of rafts, but in an elaborate case the learned judge of the eastern district of Michigan, sitting in this court, held that a raft of logs floating unattached to any vessel and navigated by men upon it was· not a vessel within the admiralty jurisdiction. Raft of Logs, 1 Flippin, 543. I think it must be treated as the cargo of the tow-boat having it in charge, and not as a "vessel." But so treated the principles of insurance law applicable to the case are the same, and the distinction is quite immaterial. It is mentioned here merely out of caution, and to explain the method of dealing with the SUbject. On the whole, the plaintiff must have judgment for his partial loss, and if the parties cannot agree on the amount, I will adj udga it, on application to enter the judgment.
(Circuit Court, lV,. D.Mi880uN. October Term, 1882,)'
SURFACE WATER-INJURY FROM DIVERTING·
.The law regarding surface water is that ;no individual or corporation ('an tnakeany change thereof to the injury of anyone without being responsilJle in .damages for suoh injury.
2. :MUNICIPALCORPORATION-INCREABING FLOW OF SURFACE WATER.
,If a city constructs a sewerin such a mal!ner that an additional flow of RllTface water into a lot Is cauSed thereby, the owner I)f such lot may recover such .damages as may have been 'caused. I>.y such increased flow.
ARN 'V. OITY OF JUNSAS.
SAME-CONSTRUCTING SEWERS-INJURY TO PROPERTY.
A city, in the progress of constructi ng its sewerage, is not responsible for any depreciation in the rental value of property caused by the bad smells of a sewer in course of construction, unless it is kept open an unreasonable length of time.
BOllscaron et Kenyon, for plaintiff. Mr. Twitchell, for defendant. KUEKEL, D. J., (charging jury.) The plaintiff, Arn, brings this suit to recover of the City of Kansas damages for the diminution of the rental value of a house and lot situated at the junction of Nineteenth and Main streets, caused by the foul and filthy discharge of a sewer upon part of the plaintiff's premises, and for the washing away of the soil of part of the lot, thereby damaging the lot itself. It appears that a certain territory now within the city iimits of Kansas' City natUl"ally drains its surface water across Main street and into a lot adjoining the lot of plaintiff, from which it passes in its natural·:flow into the lot of plaintiff. It further appears that in 1877 the City of Kansas constructed a culvert across Main street to improve the street, and secure a proper passage over it afthe surface water flowing at the place of constructing the culvert. And it still further. appeal'S that in 1880 the progress of the city made' it necessary to construct a sewer from Walnut street along Eighteenth to Main street,andthenca along Main street into the culvert before spoken of, making the cuh vert a part oftha sewer which is now extended Nineteenth street, thence west and parallel to plaintiff's lot. The matter in dispute is, first, the location of the culvert, it beibg contended on the part of plaintiff that it is not located in the place of the old drainage, but that the location ha-a been so. made as to change the flow of the surface water, thereby. causing the water to w!i.sh away the soil and injure the value of the lot itself, as well ,aathe rental of the premises. The law regarding surface water is 'that. no made to the injury of ally one. No .itidivid, change thereof ual or corporation can make sllchchange, and· if it is done, and in" jury is incurred thereby. the is responsible in damageli. You are therefore instructedthMif you shall find from thetestimony that the defendant, the::City of Kansas, has constructed ,the sewer in question, not along the ancient drainage, but so diverted the natural course of the water as to change the force and effeot of the, flow that thesoil.<>f plaintiff'ldot was washed away, you should find this issue for plaintiff, and allQw'him suoh damage, as plaintiff has, stlatained thereby. But if the jury shall find from the evidence:that the ..eewer in controversy wasconstrueted uP<ul. the flow.of.
the water, they should find this issue for the defendaI;lt. It is an undisputed fact that the water fiowingthrough the sewer along Eighteenth street from Walnut to Main, and down Main street, carries off a part of the surface drainage which formerly flowed across Main street, at or near the place of the location of the culvert. But it is contended that by virtue of the improvements along Eighteenth and Main streets an additional amount of water is discharged into this sewer, and that such additional water increased the flow of water into plaintiff's lot, and injury resulted therefrom. Regarding this additional flow of water, if such has been shown to exist, you are instructed that plaintiff has a right to recover such damage as has been done by it to his lot. It is the damage done by the water which may have been added by virtue of the sewer spo'ken of, and not for the whole water; in otber words, if the sewer gathered otber than surface water, and damages were done on account of such increase of watel·, plaintiff may recover such damages. We now come to the injury which is claimed to have resulted from the discharge of nauseating and filthy water and deposits, affecting the rental value of the premises. Regarding this you are instructed that the City of Kansas, in the progress of constructing its sewerage, is not responsible for the bad smells of a sewer in course of its construction, unless kept open an unreasonable length of time. The reasonltbleness of the time is to be judged of by the circumstances testified to. If you shall find from the testimony that the sewer testified to was left an unreasonable time in the condition it was, and in consequence of the bad smells thereby created the plaintiff could not rent his house at what it was really worth, you will allow him the difference between the real :rental value and the rent he received, and this for the length of time the sewer was left open and plaintiff sustained damages in consequence thereof. As to the washing away of theaoil of plaintiff's lot you are instructed that if you shall find from the testimony that an increase of flowing water was caused by the sewer run into the culvert, and that such increase of water contributedto the washing away of the soil of plaintiff's lot, you will allow him such damages on that account as will compensate him for the restoration of the lot to the condition it would have been in had such additional flow of water not takonplace. In your verdict, if you find for the plaintiff, you will find the damages sustained on account of rental value and on account of damages to the lot separately, and then state the whole of the damages allowed. If you find, the issues for the defendant, you will so state.
NAT. BANK OF CHESTER (lQ. 'V ·.
OF CHESTBR 00.
NAT. BANK OF CHESTER CO.
COM'RS OF CHESTER CO.
(Circuit Oourt, E. D. Penn8ylvania. October 2, 1882.)
CONSTITUTION LAW-STATUTE-SUBJECT ExPRESSED INTITLE-REPUBLIOATION OF ORIGINAL ACT IN AMENDMENT-'l'AXA.:L'ION,-NATIONAL BANK.
Bysectid'n 17 ohctof June 7, 1879,.entitled "An act to provide revenue by taxation," the Pennsylvania legislature enacted that where any banks elected to pay a tax of six-tenths of 1per cent. on the value of the shares, the shares, capital, and profits of the bank should be exempt from other taxation. By act of Januaryl0, 1881, entitled "A supplement to an act entitled I An act to providcrevenue b,)' taxation, approved June 7, 1879,' " the portion of the seventeenth section of that act containing Ule above provisions was re-enacted, with the. exception that the exemption from was confined to .. so much of the capital and profits of such bank as shall not be invested in rcal estate." The whQle section was not re-enacted, and there were some immaterial verbal alterations in'the part which was set out. Held, that the act of January 10, 1881, did not violate the constitutional provision that no bill should contain more than one subject, it. did not viowhich shOUld be clearly expressed iutue tit Ie. Held, late a constitutional provision that no law should be amended by reference to the title only, but so much thereof as was amended should be re-enlictedand published at length.
SAME-REPUGNANCY IN STATUTE.
It appeared that at the time of the passage of the act of 1881 the only national bank property taxable for local purposes was its real estate. Held, that this did not render the act void for repugnancy. . PER BRADLEY, J" To declare an act of assembly repugnant the repugnancy face, and must be in contliet with the main intent and obmust appear upon ject of the enactment. . .
Motion for injunction upon a bill in equity by.the NationalB/tnk of Chester county, against the commissioners of Chester county, Pennsylvania, setting forth(1) That the plaintiff is an associationtorcarrY;ngon,' tne ousmess 01 banking, duly incorporated under the national bankaefof.June 3,1864. (2) 'rhat, under .the laws of the state of moneyed capital In the hands of individual citizens of said state is, exempt, from local taxation, is subject tOll. state tax of four mills on every dollar of the value thereof, and the shares of state and national banks are taxed at the same rate. .. , . (3) That the act of the legislature of Pennsylvania, approved June 7,1879, entitled "An act to provide revenue by taxation," in section17 thereof,provides as follows: ,,* * ... Incase any bank or savings institution, incorporated by this state, or any nationitl bank, elect to collect annu:ally from the shareholders thereof a tax of six-tenths of 1 per centum u,pon the par value of all the shares of said bank or savings institution, and pay the sanie in the state treasury on or before the twentieth day of June in every year, the sllai'es,
*Reported by Frank P. Pricharo, Esq" ofthe PWladelphia liar.