Volume 212 — Mississippi Reports

<center> <bold>On Suggestion of Error.</bold></center><bold>1. Negligence — doctrine of attractive nuisance — explosives.</bold> Where a boy thirteen years of age picked up a loaded anti-aircraft shell on the unused portion of a public street immediately adjacent to defendant's junk yard to which point he had been attracted by some aeroplane parts which he desired to look at for the purpose of ascertaining whether he would care to purchase some of them for use in making a miniature airplane, the Attractive Nuisance Doctrine is not applicable in an action by him for personal injuries caused by the explosion of the shell, since the facts are that he did not go upon defendant's premises. <bold>2. Trespass — applicability of rule as to wilful injury to</bold> <bold>trespasser — explosives.</bold> Inasmuch as the boy, in the above stated case, did not go upon the premises of the defendant either as a trespasser or otherwise, the rule which makes a defendant liable to a trespasser only for wilfully or wantonly injuring him, or proximately causing him to be injured, is not applicable.<page_number>Page 114</page_number> <bold>3. Appeal — judgment overwhelmingly sustained on one ground —</bold> <bold>harmless error.</bold> Where a junk dealer, in handling scrap iron, automobile parts, airplane parts, anti-aircraft shells and other kinds of junk, permitted loaded shells to be placed and to remain on unused portion of the street next adjacent to his junk yard, the question whether he was guilty of common law negligence was properly submitted to the jury, and when on that issue the negligence is established by the overwhelming weight of the evidence, the submission to the jury of the further issue whether the defendant was liable under the Attractive Nuisance Doctrine did not prejudice the rights of the defendant to the extent that it could reasonably be said that a different result would have been reached if the issue of liability on common law negligence alone had been submitted. <bold>4. Personal property — abandonment, when may be assumed, as</bold> <bold>against wrongful taking.</bold> In the case outlined in the foregoing headnotes the injured child was not to be denied a recovery on the ground that he was guilty of a wilful wrong in removing the shell from the place on the street where he found it and in taking it to his home, since he was entitled to assume that the shell had been thrown on the street and abandoned by the owner. <bold>5. Explosives — negligence — duty to keep explosives away from</bold> <bold>danger.</bold> Where in the case above outlined the defendant junk dealer admitted that he knew that the anti-aircraft shells brought to his yard from a military camp were dangerous and that up to a few months prior to the injury he had an employee whose duty it was to see that such shells were done away with, the jury was entitled to find that he was negligent in not continuing to see that these shells were not left exposed, either on his premises or in close proximity thereto through any fault of his own. Headnotes as approved by McGehee, C.J.

<bold>1. Death — statutory presumption of death after seven years —</bold> <bold>evidence.</bold> The statutory presumption of death after seven years ends when the person whose death is in question is shown to be alive. Sec. 1698 Code 1942. <bold>2. Homestead — conveyance without joinder by wife — lawful wife</bold> <bold>and not pretender.</bold> The statute which invalidates a conveyance or other incumbrance of the homestead unless signed by the owner's wife, if she be living with him, has reference to a lawful wife and does not include a woman who had pretended to marry the owner when she already had a husband, living then and still living, from whom she had not been divorced. Sec. 330 Code 1942. Headnotes as approved by Holmes, C.

<bold>1. Appeal — finding of facts by the chancellor.</bold> Where the evidence is conflicting, the findings of the chancellor will not be disturbed on appeal since he is better able to determine the truth of the matter than the appellate court. <bold>2. Waters — higher and lower lands.</bold> The servitude which the owner of the higher adjoining lands has upon the lower land for the discharge of surface water naturally flowing on the lower land from the dominant estate ordinarily extends only to surface water arising from natural causes, such as rain and snow and cannot be augmented and made more burdensome by the acts and industry of man. <bold>3. Waters — collected surface water.</bold> As a general rule a landowner cannot collect surface water into an artificial channel or volume, or precipitate it in greatly increased or unnatural quantities upon his neighbor, to the<page_number>Page 824</page_number> substantial injury of the latter, even though no more water is collected than would naturally have flowed upon the property in a diffused condition. <bold>4. Water — concentrated flow upon lower land.</bold> Where the substantial evidence showed that the defendant in grading his upper land had caused its surface water to be concentrated in an artificial manner and to be discharged upon a portion of complainant's lower lot in a more concentrated flow than would have resulted had the natural conditions been left undisturbed, complainant was entitled to a reasonable award for the damage caused and to an injunction commanding the defendant to take reasonable steps, which he could take without hardship, to remedy the situation, but in the allowance of damages only such as were the proximate result of the excessive discharge could be awarded. Headnotes as approved by Kyle, J.