making it a part of, and as high as, the dam, | finding that the damages to the orator conwhich has been done; and the dam includ- sequent on the dam remaining at its increasing the wing is from 16 to 22 inches higher ed height are comparatively slight, measurthan 2 feet and 8 inches above the "benched by those to the defendant if required to mark"; it being higher at the southerly lower it to normality, although a cogent fact end than at the northerly. The orator owns for consideration in shaping the mandate to the land described in the bill lying norther- be sent down, has but little, if any, force ly and easterly of the dam, a part of which upon the substantive equities involved, and is pasture and the rest meadow. As against none as against constitutional guaranties. the orator, the defendant has a right to main- The authority given to the village (section tain the dam at what may be termed its nor- 1) to "take or purchase, require and hold" mal height of two feet and eight inches property necessary for the purpose named, above the "bench mark," but not higher; "on payment of suitable damages or compenand the orator has the correlative right to sation," and (section 5) to exercise the powinsist that the stream shall flow in its nat- er of eminent domain "if the price" thereof ural channel and at its usual height or level, "or the damage occasioned cannot be agreed without obstruction or diversion other than upon, or if the owner or owners dispute the as affected by the dam in question so main- necessity for the taking," clearly shows the tained. contemplation of the act to be that the requisition, if it involves an effort on the part of the village, shall be by purchase, or by condemnation. These provisions, wholesome in nature, protect the owner as well as the village. Whether to construct and maintain such new plant was optional with the latter; but, having elected to do so, it must bear the burdens inseparably connected with the privilege granted. It is said in People ex rel. Burhans v. City of New York, 198 N. Y. 439, 92 N. E. 18: "The right of eminent domain is an attribute of sovereignty which the state may grant or withhold at its will. When it delegates that right, it may impose upon the donee any condition that does not encroach upon or abridge any of the constitutional rights of those whose property is to be taken. It may require the donee of the right to do more than is demanded by the Constitution, but it may not permit less to be done. If the donee accepts the right and exercises it, the conditions subject to which it is granted cannot be evaded or ignored. They are part and parcel of the grant." If the right to flow land of the orator is neces sary to the efficient operation of the plant authorized, the conditions of the act under which the defendant takes its power, as well as fair dealing, require that compensation be made therefor. And, if the authorized purposes of the plant are so far commercial as to make the taking of property not within the legitimate exercise of the power of eminent domain, the defendant can acquire such right of flowage by purchase only; for the state cannot authorize the taking of private property for private use against the will of the owner. In re Barre Water Co., 62 Vt. 27, 20 Atl. 109, 9 L. R. A. 195; Snow v. Sandgate, 66 Vt. 451, 29 Atl. 673.

No easement by way of right of flowage is claimed by the defendant in the orator's land. Yet it fairly appears that raising the dam to its present height raises the level of the water in the stream and on the bank or shore of his land, and in times of high water causes it to set back upon or to flow a portion of the pasture and of the meadow. It follows that if the purpose of the taking, as shown by the legislative enactments under which the defendant installed and is operating such new plant, constitutes a public use, within the meaning of article 2, c. 1, State Const. (a question not here decided), then the facts found show a taking of the orator's property for the use of the public without compensation, and in violation of his constitutional rights. Winn v. Rutland, 52 Vt. 481; Foster v. Stafford National Bank, 57 Vt. 128. The Supreme Court of the United States has said that "where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking within the meaning of the Constitution, and that this proposition is not in conflict with the weight of judicial authority in this country, and certainly not with sound principle." Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L. Ed. 557; United States v. Lynah, 188 U. S. 445, 23 Sup. Ct. 349, 47 L. Ed. 539; 1 Lewis, Em. Dom. (3d Ed.) § 280.

It is urged that the chancellor has found that, while there may be some slight damage to the orator in high water by reason of raising the dam, it is not irreparable, and is very slight as compared with the damage to the defendant if it is required to lower its dam to a point two feet and eight inches above the "bench mark." The force of this finding is materially lessened, however, when we consider what damages are irreparable is a question to be decided, not as a fact, but by the court from the facts presented. MeKinzie v. Mathews, 59 Mo. 99; Schuster v.

Regarding the doctrine of comparative equities invoked by the defendant, it is enough to say that in the circumstances of this case it has no application. As seen, the present height of the dam, considered with reference to the rights of the orator, is found to be from 16 to 22 inches higher than it should

Court of Appeals of New York to be equiva- | in good faith, that it was raised in the effilent to a finding that the dam raises the wa-cient installation of a plant authorized by ter the same number of inches on the ora- law, and that to lower it to its normal tor's premises. Rothery v. New York Rub-height would damnify the defendant to the ber Co., 90 N. Y. 30. The findings before us, amount of several thousand dollars, we are however, go to the extent of showing that of the opinion that the injunction should be by the unauthorized raise of the dam the wa- suspended for a reasonable time to allow the ter when high is caused to set back upon defendant to acquire the right of flowage in and cover a portion of the orator's land, and question by purchase, or by condemnation if in the spring of 1909 (the only spring since the taking be within its power of appropriathe raising of the dam) driftwood was left tion. Should resort be had to the latter thereon, also ice. It is a matter of common method, the entire damages with reference knowledge, whereof notice will be taken, to past as well as probable future injuries that in this mountainous state high water should be assessed. Childs v. Village of and ordinary freshets are likely to occur in Newport, 70 Vt. 62, 39 Atl. 627; Pinney v. such streams at different seasons of the year, Town of Winchester (Conn.) 76 Atl. 994. sometimes carrying down floodwood and large quantities of ice. In cases of this character, where some degree of injury is shown, the court will consider its probable continuance. If the injury seems likely to continue, equity will not refuse to interfere because the damage is slight. In Attorney General v. Sheffield Gas Consumers' Co., 3 De Gex, M. & G. 304, 52 Eng. Ch. 304, Lord Justice Knight Bruce said: "It has been argued that the annoyance (if any) felt, and possible to be feared, must be small, slight, and unfit for this court's interference. But the frequent recurrence forever or during a period probably long and unascertainable of an annoyance, slight in itself (slight I mean if occurring but upon a slight occasion, or recurring at very rare intervals), may much interfere with the reasonable convenience and comfort of life." The fact that the record contains no finding of damage to the orator in the spring of 1909 by reason of any raise of the dam above its normal height, which was not compensated for by the overflow, is not very material, as in any event the final decree must be in favor of the orator. The compensation for the right of flowage is to be détermined, not for any one year nor on the conditions shown during any one year, but for all, time on evidence legitimate for that purpose.

There can be no doubt that the record shows an invasion of the orator's rights, continuous in its nature, which continued a suffi

cient length of time under a claim of right may ripen into an easement, and entitles him to recover at least nominal damages. Willey v. Hunter, 57 Vt. 479. This presents a situation for which an adequate remedy can be had only in a court of equity where compensation may be awarded and also an injunction against the further continuance of the wrongful acts. Murphy v. Lincoln, 63 Vt. 278, 22 Atl. 418; Canfield v. Andrew, 54 Vt. 1, 41 Am. Rep. 828; Royce v. Carpenter, 80 Vt. 37, 66 Atl. 888; Cloyes v. Middlebury Electric Co., 80 Vt. 109, 66 Atl. 1039, 11 L. R. A. (N. S.) 693. However, it appearing that in raising the dam the defendant acted

It has sometimes been said that costs in chancery are largely in the discretion of that court, dependent upon the circumstances of the particular case. Yet the general rule in the nature of a principle is that the prevailing party in a suit in equity shall prevail as to costs as well as to the subject-matter of the suit, and it is the duty of the court to enforce this rule, unless the case discloses a reason why it should not be done. The discretion of the court is called into exercise only when the case discloses a show of reason, more or less strong, why costs should not be given. Thrall v. Chittenden, 31 Vt. 183; Stearns v. Wrisley, 30 Vt. 661. In recent years it has been the general practice of this court to leave the costs below to be determined there on remand of the case, as that court is in better position, in the exercise of discretion, to do justice between the parties. Yet where the case is one that does not, by the rule above stated, call for the exercise of discretion, the costs may as well be awarded by this court. And in the case at bar, since no show of reason is disclosed why costs should not follow the final decree, the mandate will direct that the orator recover

his costs.

Decree reversed and cause remanded with mandate.

1. BILLS AND NOTES (§ 456*)—ACTIONS-PAR

TIES ENTITLED TO SUE.

A person beneficially interested in a draft made payable to him in a fictitious name in which he conducts his business may sue thereon in his own name.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 13772, 1382; Dec. Dig. 8 456.*]

2. APPEAL AND ERROR (§ 169*)- QUESTIONS REVIEWABLE QUESTIONS NOT RAISED IN TRIAL COURT.

be raised in the Supreme Court on exceptions, A question not raised on the trial may not unless involved in the judgment rendered on

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

on defendant in favor of the Berwick Hotel, A general authority of an agent to do an and requested credit therefor on his bill, and act may be implied from a course of dealing, or a further advance of $110 in cash. This refrom a particular number of acts of a particular quest was granted, and the draft paid as kind authorized or assented to by the principal. and such an authority enables the agent to bind were the other two. On June 15, 1908, Scott, his principal without orders in dealing with who then owed plaintiff for board and cash those who have no notice of the want of lawful advanced, handed Boynton a draft for $250 power in the agent, and who act without col-drawn on defendant in favor of the Berwick lusion.

as treasurer, cashier, and the like. We hold, therefore, that this action is maintainable in the name of the plaintiff, who is the party · beneficially interested, and, indeed, the only party that can sue, for Berwick Hotel is not

plaintiff's hostelry is designated.

business except as above stated, and, when he made the draft in question, he was indebted to defendant. Plaintiff never caused defendant to be notified of the representations made by Scott to plaintiff and Boynton. On April 29, and on May 2, 1908, de-a legal entity, but only a name by which the fendant by letter remonstrated with Scott for making drafts on it, and notified him that it had not authorized payment, and could not accept drafts. And on June 12, 1908, defendant by letter notified Scott that "we are simply amazed that you will continue to draw drafts contrary to our wishes and instructions. In order to protect your credit we are paying this draft, but in no circumstances will any more drafts, checks, or orders for money of any kind, form, or description be paid. We cannot do business this way."

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

It is further objected that general assumpsit will not lie, but that the plaintiff should have declared specially. This question was not raised on trial, and therefore cannot be raised here, unless it is involved in the judgment, which was rendered on agreed facts, and to the rendition of which the only exception in the case was taken. But the question is not involved in the judgment, for its decision was not necessary to the validity of the judgment, and therefore the exception to the judgment does not raise the question. Farrant v. Bates, 60 Vt. 37, 11 Atl. 693; In re Hall's Estate, 70 Vt. 458, 41 Atl. 508; Baker v. Sherman, 73 Vt. 26, 50 Atl. 633. The ob

M. C. Webber, for plaintiff. E. H. O'Brien, jection is one that could be waived, and was for defendant.

ROWELL, C. J. It is objected that the action cannot be maintained in the name of the plaintiff because his name does not appear on the face of the draft in suit, which is drawn in favor of the Berwick Hotel, of which the plaintiff was sole proprietor at the time in question; and Bank of United States v. Lyman, in the federal Circuit Court for the District of Vermont, 20 Vt. 666, Fed. Cas. No. 924, is relied upon in support of the objection, and it does support it, for it holds precisely that. But such is not the law of this state, and has not been since the case of Arlington v. Hinds, 1 D. Chip. 431, 12 Am. Dec. 704, decided in 1824, in which the contrary was held, and which has been followed by this court ever since. Thus in Rutland & Burlington R. R. Co. v. Cole, 24 Vt. 33, the note sued upon was payable "to the order of Samuel Henshaw, Treasurer." Henshaw was the plaintiff's treasurer, and the note was given for assessments on shares of the plaintiff's capital stock owned by the defendant, and was declared upon as payable to the plaintiff. The same objection was made there as is made here, but it was beld that as the consideration moved from the plaintiff, and the note was in effect given to it, the action was maintainable in its name. There are many other cases in this state to the same effect, and among them is United States National Bank v. Burton & Sowles, 58 Vt. 426, 3 Atl. 756. That was assumpsit on a draft, and it was objected that the plaintiff could not maintain the action because the draft was indorsed to its cashier instead of to itself. But it was held to be the settled law of this state, contrary to the general commercial law, that an action upon a promissory note or a draft can be maintained in the name of the party beneficially interested when the instrument is in terms made payable or indorsed to his agent

Bickford v.

waived by not being made on trial, for it did
not go to the jurisdiction, but only to a mat-
ter of pleading and procedure. Even objec
tions to the form of action are waived, if not
made on trial. Bliss v. Allard, 49 Vt. 350.
And see Hammond v. Wilder, 25 Vt. 342;
Chaffee v. Hooper, 54 Vt. 513.
Gibbs, 8 Cush. (Mass.) 154, was assumpsit
against guarantors of a note who were sued
It was objected above for the
first time that the guaranty should have been
specially declared upon. But it was held
that the objection came too late, and the
plaintiff had judgment.

as makers.

As to the merits of the case, it is agreed that Scott had no authority to draw the draft in suit on the defendant, unless its acceptance of the three prior drafts was in law an implied authority, and we think it was, for it appears that those drafts were drawn without authority, and their payment was virtually holding Scott out to the plaintiff and accrediting him as having authority to draw the draft in suit. It was an approval of a series of like prior acts that well might have induced the plaintiff to believe that such authority existed, and to take the draft on the faith of it, and that he was thus induced, and did thus take the draft, is not questioned in argument except as hereinafter stated. If the defendant, after having accepted and paid the third draft, did not want to be bound by a fourth, it should have notified the plaintiff to that effect; and, as it did not, it is to be taken as assenting thereto. This is the doctrine of Keyes & Co. v. Union Pacific Tea Co., 81 Vt. 420, 71 Atl. 201, and it is applicable here. But the defendant says that it was the duty of the plaintiff to ascertain the extent of Scott's authority, and, not having done it, he took the draft at his peril. But that principle does not apply here, for the defendant is estopped by its acts and culpable silence to deny the authority. Locklin v. Dav's, 71 Vt. 321, 45 Atl. 224. There the

plaintiff was taken to have intended the nat- | note was small, and was settled after suit ural consequence of her silence, on the brought, but whether the defendants had preground that if one by words, conduct, or cul- viously assented to it did not appear. Jackpable silence, though not intending to de- son v. Bank, 92 Tenn. 154, 20 S. W. 802, 18 fraud, leads another who acts prudently to L. R. A. 663, 36 Am. St. Rep. 81, to which believe that a certain state of things exists, reference is made, is not much in point, for and who acts upon that belief, he is estopped the gist of the holding there is that a comto deny the existence of that state of things mercial traveler, employed to sell and take if the other party would be prejudiced there- orders for goods, to collect accounts, and to by; for such a denial would be a breach of receive money, and checks payable to the orgood faith, and therefore fraudulent. der of his principal, is not, by implication, authorized to indorse the checks in the name of his principal.