PHILADELPHIA &: R. R. CO. fl. SMITH.
J. C. Ball and R. E. Boutwell are guilty as charged In the Indictment herein, And as found by the jury; and it is ordHed that they be remanded to the custody of the marshal, and be by him committed to the county jail of Lamar county to await the judgment and sentence of the court. It is further ordered that the defendant M. F. Ball be discharged, and go hence without day.' If this could be regarded as the judgment of the court, it was void because entered on Sunday. Mackalley's Case, 9 Coke, 61b; Swann v. Broome, 3 Burrows, 1595; Baxter v. People, 3 Gilman, 368; Chapman v. State, 5 Blackf. 111. But it is clear that It cannot be treated as a judgment. and is In effect nothing more than a remand for sentence."
The judgment of the circuit court is affirmed,
PHILADELPHIA & R. R. CO. v. SMITH.
(CIrcuit Court ot Appeals, Third Circuit. November 26, 1894.) No. 2.
An embankment had been erected by defendant's lessor In "n,:h a position 8S to prevent the flow of water through a small run, fed by springs, on plaintiff's land, and a ditch had been constructed to conduct sucL water along the embankment, and into a river. Held, in an action fOl' damages to plaintiff's land, caused by defendant's allowing the ditch to become obstructed (the defendant contending tbat such damages were caused, in whole or In part, by plaintiff's fallure to keep the run on his own land in proper condition), that the doctrine ot contributory negligence had no application, but each party was responsible for the damage caused by his own conduct.
SAME-LIABILITY OF PURCIIASER.
Where the owner of land erects upon it a structure which is a nuisance to the owner of adjoining land, a purchaser or lessee from him wbo erects the nuisance Is not liable for continuing to maintain the offending structure, without notice trom the adjoining owner, ana a request to remove it.
In Error to the Circuit Court of the United States for the District of New Jersey. This was an action by Abraham Smith against the Philadelphia· & Reading Railroad Company to recover damages for a nuisance. On trial in the circuit court, the plaintiff had a verdict. A motion by defendant for a new trial was granted, unless the verdict was in part remitted. 57 Fed. 903. Judgment was entered for plaintiff. Defendant brings error. John R. Emery, for plaintiff In error. R. V. Lindabury, for defendant in error. Before ACHESON and DALLAS, Circuit Judges, and WALES, District Judge. DALIu\..S, Circuit Judge. On May 14,1879, the Delaware & Bound Brook Hailroad Company leased its railroad to the Philadelphia & Reading HaUl'oad Company, plaintiff in error, and the latter compan." entered nnder the lease. Long prior to the demise, an embankment forming part of the roadbed had been so constructed as to prevent the flow of water through a small run, fed by springs, on
lan,dof the plaintiff below; and a ditch had been dug along the foot of the eI'n1:>ankment to conduct the water to the Raritan. river and there it. The first connt of the declaration avers that this ditch "fails altogether to drain the water of said springs from the plailltiff's said farm"; and, on behalf of the plaintiff, evidence to show that the defendant allowed it to become filled, and tlj.at, f.!,lthough the plaintiff had cleaned his spring run out once after the railroad ditch was dug, such cleaning proved to be useless, because tJ,le spring run had no outlet. This was contradicted by .the witnesSes for the defendant, and upon the question thus presented the COUl't instructed .. the jury that, if any portion of the plaintiff's damage was due to his fanure to keep the run in proper condition on his own land, ",he could, not recover for such portion"; "that if by any act of omission or commission, permitted the ditch upon' his own properly to become so clogged up or filled up that the water, instead of going down to the property of the defendant, went out over his own property, soaked through the ground, and over the top of it, 1;10 as to render it acid or boggy, for that part of the damages he cannot recover." i.The defendant was not satisfied with this, but asked for further instruction "that the plaintiff was bound to keep open bis spring-ruu ditch upon his own land, and if the situation of the ditch was such that, from freshets or other causes, the ditch became filled, he cannot recover, if his negligence to keep the ditch open contributed to his injury." This point was evidently framM upon the theory that if the plaintiff's neglect had caused him any damage, he could not recover at all,-not even fol' that which hadbeeu caused wholly by the defendant; and it was disaffirmed upon the ground that failure to keep his spl'ing run bar his l'ight of recovery to the extent of any damage open would which actua.lly resulted solely from the defendant's wrong, even if the plaintiff had been additionally damnified through his own want of care. In this there was no error. The doctrine of contributory negligence has no application. One who decisively contributes to bring a mischief on himself may not impute it to another, but he who does hurt to his neighbor cannot escape liability for the damage thereby oecasioned by showing that the person he has injured has also sustained other 01' additional damage of the same charactel' through separate acts or omissions of his own. In such cases, each party is chargeable with the consequences of his own conduct, and neither of them is at liberty to shift his burden to the shoulders of the other. This view of the law was appropriately applied by the court below, and therefore the second assignment of error is not sus· tained. The remaining assignments relied upon relate to the cause of action set out in the count. That count alleges that the embankment· already mentioned diverts the ancient course of the water of the Raritan l'iver, in times of freshet, to the injury of the plaintiff's land, and this allegation is to be now accepted as true. It also avers that the defendant became the lessee and possessor of the l'ailroad after the embankment had been erected, but "has since continued, used, and maintained it," and of these facts there is no
PHILADELPHIA &: B. R. CO. tI. SMITH.
doubt. It further alleges, however, that the plaintiff "requested the said defendant to remove the said obstruction," but of such request no proof wha.tever was made or evidence offered, and thus arises the more important question in the case, viz. is the appellant liable, without request or notice, for the damage caused to the appellee by the existence of this embankment, although the appellant did not erect it, and has maintained and used it only as a part of its roadway? From the report of Penruddock's Case, 5 Coke, 101, it appears that the house of the defendant had been built by his feoffor on his own freehold, but so near to a house which was afterwards, and before suit brought, conveyed to the plaintiff, that the former discharged water upon the latter. The plaintiff brought his action quod permittat, and one of the points presented and considered was whether the action would lie against the feoffee of him who had erected the house which caused the nuisance, and it was held by the king's bench, affirming the judgment of the common pleas, that it would, but only after request for abatement. The court said:
"And if It be not reformed after request made, the quod permittat lies against the feotree, and he shall recover damages if he do not reform it; but without request made it doth not lie against the feotree, but against him who did the wrong It lies without any request made, for the law doth not require any request to be made to him who doth the wrong hlmselt."
The judgment in the Case of Rolf, which was decided about 15 years earlier, seems to have been to the same effect, but the Penruddock Case has, for about three centuries, been regarded as the leading one on the subject, and as settling the law of England with respect to it. Pollock on Torts, which was first published in 1886 or 1887, has already passed through three editions, and in the latest of these its eminent author still retains his citation of that case as authority for the proposition, which he lays down without hesitancy or qualification, that "if one who has erected a nuisance on his land conveys the land to a purchaser who continues the nuisance, the vendor remains liable, and the purchaser is also liable if, on request, he does not remove it." If it had been deemed necessary, other authorities might have been added in support of this statement, and among them the case of Jones v. Williams, 11 Mees. & W. 176, in which Baron Parke followed the Case of Penruddock, and quoted with approval Jenkins' Sixth Century, case 57 (where he assumes the Penruddock Case to have been referred to), for 'this recital of the law:
"A. builds a house so that It hangs over the house of B., and Is a nuisance to him. A. makes a feoffment of his house to C., and B. a feoffment of his house to D., and the nuisance continues. Now D. cannot abate the said nuisance, or have a quod permittat for it, before he makes a request to C. to abate it, for C. Is a stranger to. the wrong. It would be otherwise if A. continued his estate, for he did the wrong. If nuisances are increased after several feoffments, these increases are new nuisances, and may be abated without request."
It is not necessary to make any further reference to the English Reports. The industry of appellee's counsel has not enabled him to show that the doctrine maintained in the cases we have mentioned
682 hasbJ).eD"dtscavded by the'Eu'glish courts, and it is entirely safe to assume, that lthaa not been. ltis, however, eontended that it has been departed from, ot' ma.terially qualified, in this country, andespeciaIly in the. state of :New Jersey, the SUbject-matter of this controversy is situated. If this was so, it would, we think, be uBfortunate; . for, in our opinion, the requirement of notice in cases of this sort imposes no hardship upon plaintiffs, and is, in fairness, due to defendants. A grantee should not, of course, be held responsible for the .creation of an injurious structure by his gra.ntor, and, if not notified. of objection, he may be ignorant of its harmful nature,or may legitimately. presume that it is voluntarily submitted to; andthereforelil plaintiff ought not to be permitted to recover damages for injury alleged to have been d()ne to him by the maintenance of a pre-existing condition during a period when, with full knowledge of his hurt,he had made no complaint of it, nor requested the removal of its causei As was said in Central Trust Co. of New Xork v.Wabash, St.L;& ,Po By. Co., infra,' "The subject has been fully.coIisideredbythe courts bpth in England and in this country," and with viz. wlle,re the party was not the. original creator of the., nuisance, he must have notice of it, and a request must benil),det6lremove it, before,ltnyaction can be brought." , There .may ,be dlyergence in eXP,l:es,sionsof different judges, but that this is' a correct statement of the effect of the decisions therec'anbe no dOUbt. !eentral Trust()); of New York v. 'Wabash, IS-tiL, &I'P. Ry. 00.,51 Fed. 4:4:1; Plummer V. Harper, 3N. H. '88; Curtice v, Thompson, 19 No' H. 471; CarlElton v. Redington, 1 Fost. (N. H.) 291;' Johnson V. Lewi$, 13 Conn. 303; Noyes v. Stillman, 2:lConn. 14; Oonhocton Road V. ' Railroad Co., 'oi'N. Y. 573; Ahern -<'.Steele, 115 N. Y. 203, 22 N. E. n3; McDonough v. Gilman, 3 Allen, 264; NichOlsv.City ofB08ton:,98 Mass. 39; Grigsby V. Water Co., 40 Cal. 396; Castle v. Smith (Cal.) 36 Pac. 859. It is, hOwever, further contended that in this particular case tl6tice wa.$'ttotrequisite-First, ''because the defendant has made use of the embankment ever since it acquired possession of the same, with a liliowledge of its injuriolls results; and, second, because the defendant has actively maintained and continued the embankment by repairing and stoning the same." The assertions of law and of fact embodied in these propositions have had our careful bllt we have not been convinced tbat either of them is well founded.' We are by no means satisfied that knowledge by a defendant of the damage caused to a plaintiff renders a request to abate unnecessary. The general principle that ordinarily actual lctJ.()wledgesUpersedes a requirement of notice is not overlooked, but here not only is notice required to direct attention to the damage , occasioned .by the nuisance alleged, but a request to abate is also needed to inform him who continues it that it is not assented to. As was said in Johnson v. LeWis, supra, the plaintiff "should be pre!Jumed to acquiesce until he requests a removal of the nuisance"; and, if this view be correct, kIiQwledge of the injury done, even if tantamount to notice of that fact, is still not equivalent to all that is requisite, for it does not rebut the presumption of acquiescence.
But it is not necessary to pass upon this point, and do not do so. For the present purpose, it is sufficient to say that we find upon the record before us no evidence whatever that the appellant actually knew of the hurt done by the embankment,and that noth· ing appears which, in our opinion, would warrant us in charging it with constructive knowledge of it. As to the second proposition, it must be admitted that the appel· lant has maintaiued the embankment; that it uses it as part of its roadbed, and for that use ha.s repaired and preserved it. Does it follow that this action, though brought without notice or requej'lt, can be ma.intained? There certainly is nothing in the Penruddock Case, or in any of those which follow its lead, upon which an affirmative answer to this inquiry could be based. There are cases to the effect that a feoffee or lessee is liable, without request, where he in· creases the nuisance; but where this is shown he is held to be liable to the extent of the increase only, and this upon the ground that to that extent the nuisance is a new one, and arises from his own act. This principle of liability has been applied, too, in cases where the cause or means of nuisance was not added to, but where the use made of it was such as to be in itself a nuisance, and, consequently, a new wrong. Of these, Moore v. Browne, 3 Dyer, 319, is an example. It was an action on the ease for diverting the water of a conduit pipe. It appeared that the husband of the defendant had attached to the main a small pipe with a cock, thereby drawing water, at his pleasure, to serve his house. The wife continued to draw after his death, and for this she was held liable as for a new diversion. The distinction between such a case .and that now under consideration is manifest. Continuance in the active commission of a wr-ong, by the use of pre-existing means, is one thing, but the use of a wrongful structure in a manner and for a pur-pose wholly disassociated from the wrong is quite another and a very different thing. The use of this embankment by maintaining tracks on it neither renders it more injurious, nor inflicts 'any separate injury. If it had been constructed for the pur-pose of accumulating water, and the appellant had used the water so accumula.ted, the cases would be more like; as it is, they are essentially dissimilar. If the complaint was, not merely of the maintenance of the embankment by the defendant, but that the defendant backed up and used the water, there would have been no necessity to allege who erected it, or that request had been made for its removal, because the conduct of the defendant itself would have been the basis of the action, and not the presence of an embankment which it had not constructed. There is another class of cases, represented by Irvine Y. Wood, 51 N. Y. 228, in which it is held that, where a positive legal duty is attached to the possession of property, a failure on the part of its possessor to dischar-ge that duty is not justified by the fact that its performance was rendered necessary by the condition in which the property had come into his hands. But what duty with respect to this embankment, either to the appellee or to the public, has the appellant neglected? It is not only admitted, but is insisted, that it has been kept in repair, and it is not pretended that
the appellant hM :bE:en of any want of care to the damage of the appellee. No,1t!is thee:x:istence of the embankment which is complained of,and, to' assert that there is, in the absence of request, a duty ,to remove it; is to beg the question at issue, not to solve it. Irvine v. Wood,andother like cases, do not determine it, for they did not involve nor induce its consideration. ' But it has ,insisted that, although the views we have e:x:· may prevaij ,in England, and throughout the United States generl,t1}y, they are not in accord with the law of New Jersey, and therefol;e ::we have, given to the decisions of the courts of that state especial consideration. The earliest of these is to be found in the repQrt of ,tpe case of Pierson v. Glean (1833) 14 N. J. Law, 36. There the was whetl1er a party upon whose land a dam had been erected by a prior oWl,1er was, without request,liable for the nuisance tilerepy occasioned, and it was held that he was not. The defendant had set up, by pleas, that no request had been made, and to those pleas the plaintiff demurred. In the opinion of the court (Hornblowel" C. J.), the law on the, subject is said to have been then settled;, and the Penruddock Case, and others, are referred to as supporting this statement and conclusion:
"As well, then, upon the good sense and common justice of the case, as upon the ground of unquestioned authority, I am of the opinion that the deIQurrer ought to be overruled."
In Beavers v. Trimmer (1855) 25N. J. Law, 97, the defendant demurred to the declaration, assigning for cause:
"(1) That there is no allegation that the defendant erected the dams, etc.; (2) t,hat there is no averment of a request to remove them."
And as to these two causes the court, citing Pierson v. Glean and other authorities, said:
"Where the action is brought for the erection or continuance of a nuisance, it is necetl$ary to allege that the defendant erected or continues It; and if the action Is not brought ualnst the original erector, but against the feoffee, lessee, etc., a special requlfi to remove it must be alleged."
Then followed the decision in Canal, etc., Co. v. Ryerson (1859) 27 N. J. Law, 457; and it is argued that by it the two preceding cases were overl'Uled, or at least so modified and limited as to render them ineffective;in the present case. The first of these suggestions encounters the, objection that no intention to supplant the earlier cases is expressed in the later one; and the alternative position rests upon a "construetionof the judgment in the Ryerson Case which is inaccurate and . inadmissible. Pierson v.Glean was e:x:plained and disoverruled; and, although the learned judge who delivered :theopinion had concurred in the judgment in Beaversv. Triinmer, thatcasl'l was not even mentioned. In Oanal,etc., Co. v. Ryerson, the action '-was brought for damage done to the plaintiff's 'land by the defendant's use of,and omission to repair,' certain works of its canal, for the creation of which, it was not responsible; and in a single sentence of the opinionof,the court we have the substance of the utmost which it contains to give color to the view which the appellee asks to take of. it as a :whole. That sentence is, "An ac·
PHILADEI,PHIA &: R. R. CO.
tion may be maintained against a party who continues a nuisance erected by another, without a request to abate it"; and the question which confronts us is, what is the precise thought intended to be expressed by this inexplicit language? In what sense were the words "continues a nuisance" used; or, to put it differently, what was in mind as constituting a continuance of a nuisance? If this question can be satisfactorily answered, all difficulty as to the. true purport and effect of the opinion may be overcome. In the first place, it may be said that it is scarcely conceivable that a different significance was purposed to be ascribed to the term "continuance of a nuisance" from that which had been theretofore attached to it. The Penrud· dock Case was not rejected, and the decisions which uphold its rule, though to some extent critically discussed, were not disapproved. It was said that Penruddock's Oase does not support the doctrine which was contended for in the case which was under consideration, but it was not intimated that the doctrine which it does support is not in conformity with the law of New Jersey. It was out that it was not necessary to question the correctness of the decision in Pierson v. Glean, for, admitting its authority in its broadest extent, its principle was not pertinent. Indeed, the opinion in the Ryerson Case cannot be carefully read without discerning that the object of its author was, not to discard or overthrow an established doctrine, but to demonstrate its inapplicability to a particular case. The right of the defendant to maintain the works there in question was upheld (page 467), and the instruction of the trial judge that there was no liability except for faulty construction or failure to repair was approved, the court saying:
"Although one of the counts of the declaration claims damages resulting from the erection of the dam and embankment, yet the charge of the court clearly excludes from their consideration all damages resulting from that cause alone."
In short, the defendant's liability was maintained (irrespective of the omission to repair, which was the actual basis of the decision) solely upon the ground of continuance of nuisance; and, as we have before said, the only question is as to what was in contemplation as evidencing or constituting a continuance. If it was intended to affirm that any use whatever of a structure which had been wrong· fully erected amounts to a continuance of the wrong, even though the acts of user are not themselves injurious, and do not newly cause or add to the original injury, then indeed this opinion would con· flict with the uniform current of authority. But we do not think tIl'lt it is fairly subject to such interpretation. It contains this de· fill :ng language:
"Whether there be in fact a continuance of the nuisance by the defellldant Is a question of evidence. If the defendant, by any active participation of bis, assent to the wrong, - - - he continues the nuisance."
There must be assent to the wrong, and to establish this there must be evidence of active participation in the wrong. Use of the thing complained of, for a purpose entirely apart from the hurt it occasions, is not enough. Such a use is, with respect to the injury, passive, and not active. It involves no participation in, no adoption or
,r :FEDEnALREPORTER, .vol. .,. ,.,' . '. . :.'
pf, the wrong committed by ,the, Creator of" the injurious ,illustrations. which accompany the .defini;Uon we have this very clear. It is, said:
"If,fol'.iil.stl\.nce, he [defendant] repairs theqam, and hQldsback the water upon p,ei&1lqorfor use of his own mill oreanal, he continues the nuisance; the defendant simply Suffer adam erected upon his land by · ..' a former to remain without being used by him, it is no continuance of the
is obvij)us. One who by repairing a dam water on 'allother's land, and uses that water for hIS ownwW?r,canaJ, actively participates in the wrong itself, and parof element of direct injury. He continues, not the dam" but, the by its means: .But where a to remain wIthout bemg used as or for the purposes of a the' charltcter of use ,referred to in., both illustrations mJ1st be,taken to be the same), there is ho use of ,it as a wrongnot a contiriuance of the has Men: saId make,s It unnece!!sary for us to further ¢qinmeht upon the opfntonin etc., do:v.Ryerson. The folfrom it do not require explanatory discussion. They ,its general tenor, alld support, we think, our apprehension 0t,its In speaking' bf Moore v. Browne, it is said:
principle of the case is that .lin act of hers,llI/propriating the water to her .thus recognizing the wrongful act of her husband, was a. cootinuance of the wrong." ,
"It is obvious that the defendant didnp. aetassenting to the wrong, or appropriating it. to his use, and, thereby a90PtIng or continuing the nuisance. He was n6 more .lhOle for the injury than he would, have been if a bad !lD,tereduVOIl,p:ispremises; 'and pla,ceda nuisance there without his assent.. The' case is "tl strict act'ordance With the principle adopted in Hughes v. Mung,l viz. tbat the defendant's living in the house did not amount to a continuance 9tthe nuisance l>Y him."
Conden, Oro. Eliz. 402, it is observed:
"But, the case being again, argued. the court held that the aCtion could not be maintained, .,on the ground that there was no offense done by the defendant,for he did, not do anything; and' therein the case was distinguished from tba case in 4 ,Assiz. pi. 3, for there the using was a new nuisance." ,
And in discnssingPierson v. Glean it is remarked:
hltis not the erection of Ii dam, but the holding back of the water upon the plaintiff'S lan'a, that constitutes the nuisance; and had the plaintiff, inRiead of demurring to the plea, replied tha,t ,the defendant had so held back tile water, .and had, by meanS. of the gates, from ,time to time, overflowed tIll} pbt:Intiff's lands,' the' case 'would have been brought directly withIn the authority of Moore v. Browne."
, A few, line$'further on it is Ryerson Case was."....
that the complaint in the
"Not that.lhEt.'.4j;\fe,ndants wrongfully,maiutained the4am, but. that they neglectt:!d, to, mainPHn.. and, k;eep in repaiJ:: .the g1)ard blll!lk erected to secure the plaintiff's llUld. from; ,'" 'lD.jury resul'ffng' tf:'om i.the ereetion"ot the dam. If " ':.. ,,' " ' ,'.' ; , ,,' -, i ' " " ; ·. ;' - ,
LONDON & SAN FRANCISCO BANK V.PARKE & LACY MACHINERY CO.
it was the defendant's duty to maintain and keep In repair the guard bailt, no notice can be necessary to sustain an action for damages resulting from lleglect of sucll duty."
LONDON & SAN FRANCISCO BANK, Limited, v. PARKE & LACY MACHINERY CO. (BUDKE MANUF'G CO. Intervener). (Circuit Court, D. Oregon. November 28, 1894.)
The B. Co. consigned goods to the P. & L. Co. upon an agreement that the 'Po & L. Co. should pay freight thereon, and, upon sale of the goods, account to the B. Co. for the price at which they were consigned. A receiver of the property of the P. & L. Co., having been appointed, took possession, among other things, of certain goods consigned under this agreement, on which the P. & L. Co. had paid $234.66 in freight. At the time the freight was paid the P. & L. Co. owed the B. Co. $2,000 on other consignments. Held, that the goods should be delivered by the receiver to the B. Co., and that if the B. Co. was under an obligation to pay the freight, as a condition precedent to its right of possession, It might be set off against the'debt due the B. QQ.
This was a suit by the London & San Francisco Bank, Limited, against the Parke & Lacy Machine C<>mpany. The Budke Manufacturing Company claimed a lien on certain goods held by the reeeiver, and prayed for an order fo'!.' the delivery of the same. Charles H. Woodward, fo'!.' intervenor, Budke Manuf'g Co. Wirt Minor, for receiver of the Parke & Lacy Machinery Co.