property which she had wished to accomplish in making the first will. Upon inspection of the whole record, we are not satisfied that the trial judge could not properly have been convinced, in the course of the trial as conducted by him, that an injustice would be accomplished if the verdict of the jury were accepted, and a judgment rendered thereon; that the verdict was against the evidence, and so palpably against the evidence as to warrant his belief that the jury had either failed to apply to the facts the law as stated to them by the court, or had acted under the influence of some controlling prejudice. There is no error in the judgment of the superior court. All concur.

RIGHT TO OBJECT TO USE OF POND
BY OWNER OF WATER RIGHT.

Where in the natural use of a mill pond it is necessary in the summer months to draw the water so as to expose some portions of the bottom of the pond. persons who purchase property and live near the pond after it has been established and used cannot object to such use on the ground that bad odors arise from such use.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Nuisances, §§ 42-48, 139; vol. 48, Cent. Dig. Waters and Water Courses, §§ 195, 202, 261.]

Appeal from Superior Court, Litchfield County; William T. Elmer, Judge.

Suit by Amelia P. De Witt and others against William L. Bissell for injunction against opening the gates of a mill-pond dam and damages alleged to have been suffered by plaintiffs. From a judgment for plaintiffs, defendant appeals. Reversed.

The complaint alleges the following facts: On July 15, 1897, the plaintiff was, and ever since has been, the owner of a piece of land adjoining and bordering upon the east shore of Long Pond, on which piece of land is a dwelling house used by the plaintiff as a summer residence. At the outlet of said pond there is a dam, claimed to be owned by the defendant, which maintains the water of said pond at a higher level than its natural level. From July 15th to October 1st in each of the years 1897, 1898, and 1899, and from July 15th to the commencement of this suit on September 18th in the year 1900, the defendant drew off the water of said pond by raising the gate in said dam until a large area of the land which is covered by water when said pond is full was exposed, which exposed condition continued until October 1st in the years 1897, 1898, and 1899, when the defendant permitted said pond to fill up to its usual level as maintained by said dam, and continued in the year 1900 until the commencement of this suit. When the water was thus drawn off, the land thus exposed 60 A.-8

to the sun produced offensive stenches, unhealthy to the plaintiff and other inmates of said house, rendering said house uninhabitable, and constituting a nuisance. The defendant formerly operated a gristmill, machine shop, and foundry with the water flowing from said pond, which gristmill, etc., stood on a tract of land owned by the defendant below the outlet of said pond; but said mill, machine shop, and foundry have been abandoned, and the defendant has put the water drawn from said pond at the times above mentioned to no beneficial use. The acts of the defendant in creating such nuisance have injuriously affected the health and comfort of the plaintiff and her family, and the value of the plaintiff's said land has been depreciated. The plaintiff has often requested the defendant to cease drawing off the water as aforesaid, but the defendant, notwithstanding such requests, has continued to so draw it off, and the plaintiff is without adequate remedy at law. The prayer for relief asks an injunction restraining the defendant from drawing off the water below the level maintained by said dam when the gate therein is closed from July 15th to October 1st in each year, and $5,000 damages. The defendant's answer, after denying certain paragraphs of the complaint, sets up as a special defense to the plaintiff's cause of action as stated in the complaint the following: "(1) The defendant, on the 15th day of July, 1897, was, and for more than twenty years prior thereto had been, and still is, the owner of the dam and water privilege at the outlet of said Long Pond, and during all of said time was, has been, and still is, the owner and user of the water flowing therefrom; and during all of said time has been and still is entitled to the right to raise the water in said pond to the height of said dam, and to draw off and use all the water from said pond that would flow from the same. (2) Any and all acts of the defendant in raising and lowering the water of said Long Pond were done in the exercise of his legal right as owner and user, as set forth in paragraph 1 of this defense." The plaintiff, in her reply to the special defense, admitted so much of paragraph 1 as alleged that the defendant was on July 15, 1897, and for more than 20 years prior thereto had been, and still is, the owner of the dam at the outlet of Long Pond, and denied the remainder of said paragraph and paragraph 2. judgment of the court finds for the plaintiff the issues of fact raised by the pleadings, and adjudges that the defendant be perpetually enjoined from drawing off the water of Long Pond from July 15th to October 1st in each year, and that the plaintiff recover of the defendant $100 damages.

The

Charles E. Perkins and J. Henry Roraback, for appellant. Donald T. Warner, Hubert Williams, and Howard F. Landon, for appellees.

HAMERSLEY, J. (after stating the facts). It is alleged by the defendant and admitted by the plaintiff that the defendant is, and for more than 20 years last past has been, the owner of the dam, which is found to have existed for nearly 100 years, and to have been used by its owners for the purpose of storing water to the full capacity of the dam and drawing off the water thus stored as occasion required. It is also found that during the years mentioned in the complaint the defendant has, from July 15th to October 1st, substantially drawn off all the water stored for use by the dam-i. e., to the depth of about four feet at its gate; that when the water is drawn off to this extent the bottom of the pond at several points is exposed to the sun and air; that one of the portions thus exposed is opposite land owned by the plaintiff, and the exposure of this portion has caused an appreciable injury to the plaintiff's said property, for which injury the defendant is liable. It is not found that drawing off the water to the depth of two feet would cause this injury, and it plainly appears that drawing off the water to some extent might not harm the plaintiff. The judgment perpetually enjoins the defendant against any exercise of his admitted right to draw off the water during the periods mentioned, although some exercise of that right can work no injury to the plaintiff, and for this reason the judgment is plainly erroneous.

It appears that the defendant is the owner of a dam and water privilege at the outlet of Long Pond, and this property includes the power of storing the water flowing through the land on which the dam stands to the capacity of the dam, and of letting the water flow through its open gates as the owner may desire, and includes that qualified ownership in the water stored which the law recognizes. This property is subject to the rights belonging to other riparian owners as owners of the land and their rights acquired by appropriation or contract, but is in other respects similar to any property held in absolute ownership. It appears that the plaintiff in 1894 purchased a piece of land adjoining and bounded by the shore of Long Pond. On this land the plaintiff, shortly after its purchase, built a house for a summer residence. The real substance of the plaintiff's cause of action, as stated in the complaint and determined by the court, is this: The uncovered condition of Long Pond in the immediate neighborhood of the plaintiff's house results in the private nuisance described in the complaint, namely, offensive stenches unhealthy to the plaintiff and other inmates of her house, and injuriously affecting the value of her land. This uncovered condition of the pond is caused by the defendant's act in drawing off the water stored by his dam, and the defendant is therefore liable, whether owner of the dam or not, to the plaintiff, for the injury caused by this nuisance. The ulti

mate conclusion of the court is this: The defendant drew off the water of Long Pond, as alleged, and such acts constituted and created a nuisance, and entitled the plaintiff to damages on account of the appreciable injury thereby caused her property. Upon the trial the defendant claimed and asked the court to rule that the law is so that where, in the natural and necessary use of a mill pond, it is necessary in the summer months so to draw down the water as to expose some portions of the bottom of the pond, persons who purchase property and live near the pond after it has been established and used cannot object to such use on the ground that bad odors arise from such use. The court unqualifiedly overruled this claim, and in doing so plainly erred. Bierce v. Sharon Electric Light Co., 73 Conn. 300, 47 Atl. 324; State v. Sunapee Dam Co., 70 N. H. 458, 50 Atl. 108. We think this error was material, and seriously injured the defendant.

The conclusion of the court subjects the defendant's property to diminution or destruction, because its continued existence is inconsistent with the full enjoyment by the plaintiff of her property, and because, when such inconsistency exists between property such as the defendant's (i. e., a dam and water privilege) and property such as the plaintiff's (that is, land in the neighborhood of a mill and water privilege), the former property must be held and enjoyed in subordination to the latter. It is evident that in reaching such a conclusion the law determining the character and incidents of the defendant's property should be accurately understood and correctly applied. The owner of land on both sides and bed of a natural stream of water not navigable may erect a dam to create power to operate mills and machinery. He cannot do this so as to interfere with the right of proprietors of lands below to the natural flow of the water, nor so as to throw back the water upon the lands of those above without their consent; but, subject to these limitations, he may detain the water by a dam so as to create an artificial pond or enlarge a natural one, and use the water thus stored for his own purposes. He may open his gates and use the water, a few miles below as well as at the outlet of the dam. He may lease or grant the water to a lower riparian proprietor, and may use the water for any purpose, provided he does not thereby interfere with the rights of other proprietors, either above or below him. Such a dam and water privilege, with its incidental rights, constitutes property favored by the law since earliest times. Holyoke Co. v. Lyman, 15 Wall. 500, 21 L. Ed. 133; Smith v. Agawam Canal Co., 2 Allen, 356; Whittier v. Cocheco Mfg. Co., 9 N. H. 454, 458, 32 Am. Dec. 382; Nutall v. Bracewell, L. R. 2 Exch. 1; Miner v. Gilmour, 33 Law Times, 98. Not only has such property been always favored by the public policy of this state, but in later years the power of eminent domain has been push

ed to its limits in authorizing the acquirement of such property through proceedings for condemnation. Assuming, for the moment, that such property may become, by the mere fact of its existence, the occasion of a private nuisance injurious to the property of neighboring landowners, so as to make its owner liable in damages to such landowners, especially when he is chargeable with malicious or wanton disregard of their interests, it is evident that in determining the question of such liability all the facts and circumstances must be weighed in their relation to the law which establishes a dam and water privilege as property and defines its incidents. In the present case it is apparent from the action of the court in overruling the defendant's claim of law, as well as from the whole finding, that the law relative to this peculiar property in a dam and water privilege was not duly regarded in drawing the inferences from evidence and from the facts found as well as in reaching the ultimate conclusion. The error complained of indicates that the material conclusions of the court may have been, and probably were, influenced to the detriment of the defendant by an erroneous view of the law, and must therefore be treated as vitiating the whole judgment.

It was suggested in argument that the paragraph in the finding which states that in the year 1900, with his own hands, the defendant opened the gate of the dam, and permitted the water stored to flow out to the same extent and with similar effect upon the plaintiff's property, as in the former years mentioned, for no apparent purpose unless to assert his legal right to draw off the water as against any legal right in the plaintiff to have the water stored to the height of the dam, is sufficient to support at least that part of the judgment which gives the plaintiff damages. It may be doubtful whether, upon the pleadings, the defendant having established his ownership of the dam and water privilege, and that during the years 1897, 1898, and 1899 he had, in pursuance of his legal right, used the water drawn from the dam for operating mills located at a point two miles below its outlet and owned by the Sharon Electric Light Company, which paid him for the power, the court could properly render judgment only for the damage that might have been caused by this single act; but, if it had the power, it has not rendered such a judgment. The judgment for' damages covers the injury to the plaintiff's property caused by the defendant's drawing off the water from his dam from 1897 to 1900, and it is evident that the erroneous view of the law which influenced the court in drawing inferences from testimony and in reaching the conclusion that the property of the plaintiff was injured and the defendant was iiable for this injury, affected its conclusion in respect to damage, including any that may have been suffered in the year 1900.

1. Where one engaged in doing masonry work furnished a derrick, it was his duty to provide and maintain a reasonably safe derrick.

2. Where a master furnished a derrick to facilitate his servants in their work, he was bound to make reasonable inspection and repair of the derrick.

3. Where a master furnishes reasonably safe mechanical instrumentalities, and furnishes a fit agent to use and maintain the same, he is nevertheless liable for the negligence of the agent in his use of, or failure to use, the instrumentalities.

4. Where one of the cables supporting the mast of a derrick was spliced, but no "thimbles" to obviate friction were placed in the loops of the splice, and the constant friction caused the cable at the splice to become worn, the proximate cause of an injury to a servant resulting from the parting of the cable was not the failure to use the "thimbles," but the failure of the master's agent in charge of the work to inspect the splice and make proper repairs.

5. In an action for wrongful death, evidence as to the age of intestate's parents at the time of their death, as bearing on intestate's health and constitution, was not ground for reversal, as too remote.

Appeal from Superior Court, Fairfield County; William T. Elmer, Judge.

Action by Bianca Rincicotti, administratrix, against the John J. O'Brien Contracting Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The defendant was engaged in building a stone retaining wall along the Naugatuck river, in Ansonia. One Toole was the superintendent of the work, and had charge thereof and of the men employed upon it. The plaintiff's intestate was a mason so employed, and foreman of the masons. For the prosecution of the work the defendant used a heavy steam-hoisting derrick, having a mast 50 feet in height and a boom 58 feet long, operated by what is known as a "bull wheel." By its use the defendant was enabled to lift the heavy blocks of stone, of which the wall was constructed, from the cars, and swing them into position upon the wall. The derrick rested upon a foundation prepared for it, and was supported in its upright position by twisted wire cables which radiated in various directions from the top of the mast to secure points, where they were fastened. As the construction of the wall progressed so far that the boom would no longer serve at the point where stones were desired to be placed, the derrick was moved and relocated. Work upon the wall

had been in process for some time when the intestate received his injuries, and two such relocations had been made. Toole was an expert derrick rigger, and it was a part of his duty, and his duty alone, to take care and charge of the derrick, including its locations, removals, and preparation for use. The masons had no duty in that regard. At the time of the last location of the derrick, which, like the others, was made under Toole's direction, and about one month prior to the accident, it was supported in position by 6 cables, varying from 186 to 413 feet in length. One of them was 360 feet in length, and extended from the masthead across the river, where it was made fast to a tree. Owing to the distance which this cable had in the former locations of the derrick been required to span, Toole had spliced it. The new conditions necessitated the same extension, and the spliced cable was used, the point of splicing being about 15 or 20 feet from the tree and across the river. The splice was made by doubling back the end of each piece of the cable, inserting one of the loops thus formed into the other, and fastening each, and thus doubled back to the cable by iron clamps of approved design. Interlocked loops were thus made. As the result of the use of the derrick after the splicing, and the constant strain and friction at the points of contact within the loops, these parts of the cable had, before the accident, become chafed and worn, and some of the strands had parted. At the time of the accident the derrick was being used to carry a stone into position. When the stone was in mid-air, said cable parted at the worn and weakened part within one of the loops. As the result, the derrick fell, striking the intestate. Toole never at any time inspected the cable to ascertain its condition. In making cable splicings such as have been described, it is customary and prudent to place a device called a "thimble" in each of the loops in such manner as to furnish the bearing in both directions. By the use of the thimbles the cables are prevented from bending as sharply as they otherwise would, the tension is distributed, and the friction and chafing obviated. Added strength and durability are thus obtained. There were suitable thimbles furnished by the defendant in a chest upon or near the premises, which fact was known to Toole.

Seymour C. Loomis and Earnest C. Simpson, for appellant. Stiles Judson, Jr., and John J. Cullinan, for appellee.

PRENTICE, J. (after stating the facts). The plaintiff's intestate, while acting as the defendant's servant, received injuries, from which he died, by reason of the fall of an instrumentality used in the work upon which he was employed. The injuries were not occasioned by any negligence in the use of the instrumentality. The instrumentality

was not one whose construction, preparation, adaptation for use, care, or inspection entered into the performance of the intestate's work or duty, or was an incident of it. Fraser v. Red River Lumber Co., 45 Minn. 235, 47 N. W. 785; Burns v. Sennett & Miller, 99 Cal. 363, 33 Pac. 916; Robinson v. Blake Mfg. Co., 143 Mass. 528, 10 N. E. 314; Richards v. Hayes (Sup.) 45 N. Y. Supp. 234; Labatt on Master & Servant, § 589. It was a mechanical apparatus furnished by the master to co-operate with and facilitate the intestate and his fellow masons in the work upon which they were engaged. The duty of the defendant as master, under such circumstances and in respect to such an instrumentality, was to use reasonable care to provide one which should be reasonably · safe for the work to which it was to be put. McElligott v. Randolph, 61 Conn. 157, 22 Atl. 1094, 29 Am. St. Rep. 181; Gerrish v. New Haven Ice Co., 63 Conn. 16, 27 Atl. 235. This duty was a continuing one, and included that of maintenance. Hough v. Railway Co., 100 U. S. 213, 25 L. Ed. 612; Shanny v. Androscoggin Mills, 66 Me. 420; Ford v. Fitchburg R. Co., 110 Mass. 240, 14 Am. Rep. 598; Tierney v. Minneapolis, etc., R. Co., 33 Minn. 311, 23 N. W. 229, 53 Am. Rep. 35; Indiana Car Co. v, Parker, 100 Ind. 181; Moore v. Wabash, St. Louis & P. R. Co., 85 Mo. 588; Bailey v. Rome, W. & O. R. Co., 139 N. Y. 302, 34 N. E. 918. The duty of maintenance necessarily involved that of reasonable inspection and repair. Union Pacific R. Co. v. Daniels, 152 U. S. 684, 14 Sup. Ct. 756, 38 L. Ed. 597; Tierney v. Minneapolis, etc., R. Co., 33 Minn. 311, 23 N. W. 229, 53 Am. Rep. 35; Armour v. Brazeau, 191 Ill. 117, 60 N. E. 904; Comben v. Belleville Stone Co., 59 N. J. Law, 226, 36 Atl. 473; Munch v. Great Northern Ry. Co., 75 Minn. 61, 77 N. W. 541; Louisville, etc., R. Co. v. Utz, 133 Ind. 265, 32 N. E. 881; Richmond & Danville R. Co. v. Burnett, 88 Va, 538, 14 S. E. 372.

The defendant says that the cause of the accident was the failure to insert thimbles in the loops made in splicing the cable, and argues therefrom that as their absence was due to the failure of Toole, the superintendent, to insert them, and as the defendant had provided sufficient thimbles to be used when needed, it had not failed in its duty as master, and the intestate's injuries were the consequence of the negligence of Toole in respect to his service as the intestate's fellow servant. This contention is unsound in both its premise and the conclusions drawn therefrom. It is enough for our present purpose to pursue at length the first of these dual propositions. In thus limiting our discussion, however, we do not wish our silence to imply our assent to the legal principle which, in so far at least as maintenance and repair are concerned, is vigorously urged upon us, to wit, that a master upon whom rests the duty of using reasonable care to

provide and maintain for the use of his servants in their work reasonably safe mechanical instrumentalities may perform that duty by furnishing to a fit and competent agent the materials or parts out of or by means of which the instrumentality as a working entity can be either created or maintained, and that for the shortcomings of the agent in his utilization or failure to utilize this material or these parts the master assumes no responsibility. In so far as the defendant's contention assumes that there is a difference as respects the master's duty between construction and maintenance, it is without foundation. To whatever extent the contention is carried, it also involves principles which have had the repeated disapproval of this court. The master's duty requires performance. It may be performed in person, or by one delegated to that end. In either event, the thing required must be done. Delegation to a fit and competent agent is not sufficient. Wilson v. Willimantic Linen Co., 50 Conn. 433, 47 Am. Rep. 653; McElligott v. Randolph, 61 Conn. 157, 22 Atl. 1094, 29 Am. St. Rep. 181; Gerrish v. New Haven Ice Co., 63 Conn. 16, 27 Atl. 235.

Let us return now to the defendant's premise that the proximate cause of the injury complained of was the superintendent's failure to place thimbles in the loops of the splice. It is doubtless true that had thimbles been inserted in making the splice, the cables would not by use have become so worn and defective at the points of tension that they would have parted when they did. To this extent the failure to insert the thimbles was without doubt the cause-but the remote one of the accident. The proximate cause, however, was the worn and defective condition into which the cables had been suffered to lapse by being used for a considerable period of time without such repair or replacement as was necessary, as the splice was made, to maintain the requisite condition of strength. The cable as spliced was not able to stand as great a strain as one spliced with thimbles, but it does not appear that without them it was not originally sufficiently strong to do the work required of it. Its original strength became dissipated as the consequence of wear and tear and a failure in the duty of maintenance. The worn and weakened condition which resulted may not have been known to the defendant or its superintendent, and apparently was not, as it is found that no inspection was made. But that is of no legal consequence, since it is found that it was so apparent that an inspection would have revealed it. In other words, the failure which was the true proximate cause of the parting of the cable, and thus of the intestate's injuries, was one in the master's duty of reasonable inspection. The manner of the splice was known, for Toole made it; the consequences thereon of wear were palpable,

and therefore such as the defendant and Toole were bound to anticipate. The duty of inspection was one to be exercised in the light of these conditions. The facts, therefore, disclose a clear failure on the part of the defendant, as master, in the performance of its duty towards the intestate.

If it be suggested that the cable was by the manner of the splice inherently weak and thus defective, the master is not thereby exonerated. In that event, his failure in the duty of using reasonable care to provide reasonably safe instrumentalities only assumes a slightly different aspect; but it is the same duty. The duty of the master is the same in its essence whether it, in a given case, assumes the immediate form of original provision, maintenance, or inspection as an incident of maintenance. All are involved in the general duty of provision, which, as we have seen, is a continuing one and an unchanging one.

Three rulings upon the admission of evidence are assigned as erroneous. Only one is pursued in the brief. The intestate's widow being upon the stand, the court permitted the plaintiff to ask her the age of his parents at their death, as bearing upon his health and constitution. Her reply was 78 and 70 years, respectively. Rulings of this character, where the vice, if any, in the evidence offered, is remoteness, can seldom be of sufficient consequence to warrant the granting of a new trial. Much must be left to the discretion of the court. State v. Kelly, 77 Conn. 266, 58 Atl. 705. This ruling furnishes no exception to the general rule.

None of the corrections which the defendant claims should be made in the finding assumes any importance, in view of our conclusions.

There is no error. All concur.

1. As a general rule, as between life tenants of corporate stock held in trust and remaindermen, a cash dividend on the stock is to be regarded as income, and stock dividends as capital.

[Ed. Note.-For cases in point, see vol. 47, Cent. Dig. Trusts, § 385.]

2. The fact that undistributed profits of a corporation, or surplus in any form, have been invested by the corporation in permanent work, improvements, or extensions, does not render a cash dividend declared by the corporation out of proceeds of a sale of such improvements capital, instead of income.

3. The general rule that, as between life tenants of corporate stock held in trust and remaindermen, a cash dividend declared on corporate stock is to be regarded as income, and a stock dividend as capital, is not a rule yielding whenever an investigation appears to indicate its failure