forbids any person to be deprived of his property without due process of law.

The ownership of the offspring or increase of animals follows the ownership of the dam. And this rule applies to a mortgaged animal; therefore, if at the time of parturition it is under a mortgage encumbrance, the title of the offspring passes immediately to the mortgagee. Moreover an unborn animal may be sold. Thus A agreed with B that the foal of a mare should belong to C. Notwithstanding his agreement A sold the colt immediately after its birth to D. C however was held to be the rightful owner of the colt. Again, the natural increase of animals owned by a married woman belong to her though kept on a farm belonging to her husband.

Generally the owner of wild animals is liable for all the injuries done by them. Nor need knowledge of their viciousness be proved, for this is conclusively presumed. Thus the exhibitor of an elephant was held liable for an injury done by his beast. But where a horse on the highway was frightened by a passing elephant, the owner nevertheless was not liable without showing that horses generally were frightened whenever they passed the animal. Nor is the owner of bees liable for their accidental attack of a horse traveling along the highway. And if wild animals become domesticated to some degree and afterward relapse into their wild habits, and this is known by the owner, they fall under the rule that applies to wild animals, and the owner is liable for the consequences.

What is the rule of liability for injuries done by domestic animals? "The law," says a learned court, "imposes a stringent responsibility upon a man who knowingly keeps a vicious or dangerous animal. He is liable to any person who, without

contributory negligence, is injured by such animal, and he cannot exonerate himself by showing that he used care in keeping and restraining the animal. He takes the risk of being able to keep him safely, so that he shall not injure others. The owner's negligence is in keeping the animal, knowing that it is dangerous." (124 Mass. 44.) And on another occasion the court said, "The public are entitled to act upon the presumption that all dangerous animals are properly confined, and are therefore exonerated from any special caution against them, except when, without right, they go upon their owner's land, and within the place where they may be lawfully kept." (27 Pa. 331.) When dogs, whether mischievous or not, or whether the owner knows of their character or not, are actually doing mischief, or attempting to do it, or to destroy property, they may be killed. "The discrimination against dogs," says an eminent judge, "arises. from their proneness to mischief, their uselessness and liability to hydrophobia." The owner of a vicious dog therefore keeps him at his own risk, is indeed an insurer against all the harm that may reasonably have been expected from keeping him. In many states the common law liability of owners or keepers of dogs has been enlarged by statute. They are rendered liable for injuries whether they knew of their vicious character or not. Their statutory liability has been thus enlarged because it is so difficult to prove_they knew of their mischievous character. When several dogs belonging to different owners engage in a natural fray, each owner is liable only for the damage done by his dog. But when the damage done by each one cannot be separated, and all have equal fighting power, and there are no probable circumstances that greater damage was done

by one dog than by another, then each owner is equally liable. On the other hand if one dog is larger than another, a jury is justified, so the courts say, in apportioning a larger amount of damage to the owner of the bigger dog. If the doctrine of comparative negligence has been condemned as unpractical, the doctrine of comparative injury inflicted by little and big dogs during a mutual fray survives. A person who is not the owner of a vicious dog may make himself liable as the owner of one by knowingly keeping or harboring such a dog on his premises. But a master is not responsible for the act of his servant in keeping him if knowing nothing about his evil nature.

The owner of a domestic animal is not responsible for a personal injury caused thereby unless he knew of its vicious properties, or could have known had he been reasonably diligent. A person therefore who is bitten by a cat cannot recover in an action against the owner without proving that he knew of the animal's viciousness, and that the injury followed as the natural and probable consequence of the owner's wrong in keeping the animal. For the domestic cat is by nature ordinarily harmless and docile. If a person sells or transfers a domestic animal, knowing of its vicious character, he must inform the buyer, unless he knew of it; if he did, then the owner is free from blame. Nor is he liable whenever the injured party has contributed to the injury received through his own negligence.

Every person has a lawful right to drive trespassing animals from his property, using no more force than is needful for the purpose. A dog may be employed unless his size or his habits, or the mode of using him, is contrary to ordinary care

and prudence. A trespassing horse may be turned into the highway, and if he stray away, the owner has no cause of action against the one who let the animal loose. Such freedom of action does not extend to killing fowls or other trespassing animals. Almost everywhere statutes now define the duties of land owners to distrain animals that trespass on their land. These usually provide for impounding them, the appraisal of damage done by them and for their sale whenever the owner declines to pay the amount. If however the distrainer has not protected his land by a lawful fence, he has no right in many states of distraining animals, for they are innocent; nor can he seize them if they have wandered into his field while passing along the highway under the care of a reasonably vigilant driver. In driving them through the streets of cities and villages the law exacts the utmost vigilance to avoid injuries to passersby. Bulls while passing along the streets often become excited and inflict injuries for which their owners are obliged to respond. Furthermore, when horses, cattle, and other animals are intentionally turned loose or go without direction into the highway, contrary to the statute, their owners are liable for all damage done by them. Thus the owner of a horse that is frightened and injured by a runaway hog in the highway may recover for the damage even though the animal was there without the owner's knowledge.

Appropriation of Water.-In some states the rules relating to riparian proprietorship have been supplanted by other rules whereby the right to divert water is gained by prior appropriation. This rule is applied in those states where the most important use of water is for irrigation. Wherever

this rule prevails the right to water flowing in public streams may be acquired by its actual appropriation for a beneficial use. If it is used for irrigation

the appropriator is only entitled to the amount that is necessary to irrigate his land, by making a reasonable use thereof; and if the capacity of the canal or other aqueduct is greater than is needful to irrigate the lands of the appropriator, he will be restricted to the quantity required for the purposes of irrigation, watering his stock, and domestic use. And the same rule applies to an appropriation of water for any other purpose. As Judge Hawley has said, "The intention of the appropriator, his object and purpose in making the appropriation, his acts and conduct thereto, the character of the land owned by him, his necessities, ability, and surroundings, must be considered by the courts, in connection with the extent of his actual appropriation and use, in determining and defining his rights." The surplus water of a stream may be appropriated, subject to the rights of prior appropriators. These general principles are applied throughout the states on the Pacific coast.

Waste is not permissible; an excessive diversion of water therefore is unlawful. Nor is the use of water for irrigation regarded as superior to its use for mining and milling purposes. The right of the first appropriator is fixed by his appropriation, and when others appear and appropriate water, he cannot enlarge his original appropriation to their injury. Each subsequent locator therefore may insist that the prior appropriators shall be confined to the quantity they actually appropriated, or that was needful for the use they intended. Again, subsequent parties by purchase. from an appropriator must have a good title in order to secure his right for themselves.