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cock, 128 Vt. 452. So, where the plaintiff's iron was damaged by rust by being stored in proximity to salt, it was held that the defendant might defend on the ground that the plaintiff assumed that risk at the time of the bailment, without shifting the burden of proof from the plaintiff to himself: Gay v. Bates, 99 Mass. 263.

THE NEGLIGENCE MUST BE THE CAUSE OF THE INJURY or the warehouseman will not be liable, though both the negligence and the injury be proved. Thus where the bailor's cotton was destroyed by fire, and it appeared that gunpowder was stored in the warehouse at the time, an instruction that this was sufficient proof of negligence to render the warehouseman liable, was held to have been rightly refused. Goldthwaite, J., passing on this point in the supreme court, said: "Without deciding the question whether the keeping of gunpowder in a cotton warehouse was a want of ordinary care in Hatchett, it is certain that if the destruction of the cotton was not connected with that act, but was owing to other causes, the bailee could not be held responsible on that ground:" Gibson v. Hatchett, 24 Ala. 201.

SUBSEQUENT DESTRUCTION OF THE GOODS DOES NOT EXCUSE.-Where the warehouseman has been guilty of negligence, causing an injury to the bailor's goods, the fact that the goods were afterwards wholly or partly destroyed, without fault on his part, by a calamity which would have happened even if he had not been guilty of the previous negligence, will not excuse him: Powers v. Mitchell, 3 Hill, 545.

LIABILITY EXTENDS ONLY TO PROPERTY BAILED.-A warehouseman is liable, as such, only with respect to the property intrusted to him. Hence he is not bound, unless made so by some statutory or municipal regulation, to provide posts for hitching horses for those coming to his warehouse for goods or to place guards on his wharf to prevent teams from falling into the water, and he is not liable for an injury caused by the absence of such safeguards: Buckingham v. Fisher, 70 Ill. 121.

LIABILITY FOR ACTS OF SERVANTS AND OTHERS.-Of course, a bailee for hire is liable for the negligence of his servants as well as for his own: Brind v. Dale, 8 Car. & P. 207. But only in the course of their ordinary employ. ment, as we have already noticed: Aldrich v. Boston etc. R. R. Co., 100 Mass. 31; S. C., 1 Am. Rep. 76. He is liable also for the negligence of other persons to whom he intrusts the goods: Dufour v. Mepham, 31 Mo. 577. As where he deposits the goods in the warehouse of a third person: Alabama etc. R. R. Co. v. Kidd, 35 Ala. 209.

BAILOR'S RIGHT TO INSURANCE MONEY COLLECTED ON GOODS.-In Sidaways v. Todd, 2 Stark. 400, it was held that where goods were deposited with a wharfinger for sale, the owner paying warehouse rent, and the wharfinger insured the goods, and on their being destroyed by fire, collected the insurance money, the owner was entitled to it. In Cole v. Favorite, 69 Ill. 457, it appeared that a warehouseman procured insurance on certain goods in his charge, pursuant to an agreement with the owner. A loss having happened, the warehouseman, under a subsequent agreement with the owner, brought an action on the policy, which was defeated by proof of the fact that he had, at the owner's request, given him a receipt showing that he received the property to be held up to a certain day anterior to the loss. In an action by the owner against the warehouseman, it was determined that the latter was not liable for the failure to recover the insurance on the property.

RIGHT TO REFUSE TO REDELIVER TO BAILOR.-In Gosling v. Birnie, 7 Bing. 339; and Holl v. Griffin, 10 Id. 246, it was decided that a wharfinger,

after having acknowledged the plaintiff's property in goods intrusted to him, and after having promised to deliver them to the plaintiff, could not set up title in another. But in Thorne v. Tilbury, 3 Hurlst. & N. 534, it was determined that such a bailee might refuse to redeliver the property to the bailor, if forbidden by the real owner. See, also, on this point, the decision in Ball v. Liney, 48 N. Y. 6; S. C., 8 Am. Rep. 511, referred to above. A refusal to deliver the property to the assignee of the bailor, except upon the production of the warehouse receipt, or upon the giving of an indemnity, is not a conversion for which a warehouseman will be liable, even though he may have said that he believed such assignee to be the owner: Patten v. Baggs, 43 Ga. 167. The owner, it seems, is the proper person to sue for a failure to deliver property intrusted to a warehouseman, and not one who has merely a special lien on it for advances, and who controls the shipment: Scott v. Jester, 13 Ark. 437.

AS TO THE LIEN OF A WAREHOUSEMAN, the doctrine of Schmidt v. Blood is recognized in McFarland v. Wheeler, 26 Wend. 478; and Morgan v. Congdon, 4 N. Y. 554.

LIABILITY OF OTHER BAILEES FOR PROPERTY LOST OR STOLEN.-See Foster v. Essex Bank, 9 Am. Dec. 168; Schieffelin v. Harvey, 5 Id. 206; Owens v. Geiger, 22 Id. 437.


[9 WENDELL, 315.]

CONTINUANCE OF A NUISANCE FOR TWENTY YEARS gives no prescriptive right to maintain it.

RIGHT TO OVERFLOW A PARTY'S LAND MAY BE ACQUIRED BY PRESCRIPTION so as to bar any action for the injury to the land.

ONE SUFFERING SPECIAL AND PECULIAR INJURY FROM A PUBLIC NUISANCE, occasioned by the maintenance of a dam rendering the adjacent country unhealthy, may have an action therefor.

ACTION on the case for maintaining a dam whereby the atmosphere was corrupted and the health of the plaintiff's family injuriously affected. There was evidence tending to show that the dam had been maintained for twenty years. The question as to whether the dam had rendered the neighborhood unhealthy and had caused sickness in the plaintiff's family was left to the jury. At the close of the plaintiff's evidence the defendants moved for a nonsuit, because: 1. The dam having been continued for twenty years, no action would lie. 2. This being a public nuisance, if a nuisance at all, no private action would lie therefor. Motion overruled. The judge charged the jury that if the sickness in the plaintiff's family was caused wholly or partly by said dam, he was entitled recover. Verdict for the plaintiff for seventy dollars damages. Motion for a new trial.

M. T. Reynolds, for the defendants.


J. L. Viele, for the plaintiff.

By Court, SUTHERLAND, J. There is no such thing as a prescriptive right, or any other right, to maintain a public nuisance. Admitting that the defendants' dam has been erected and maintained more than twenty years, and that during the whole of that period it has rendered the adjacent country unhealthy, such length of time can be no defense to a proceeding on the part of the public to abate it, or to an action by any individual for the special and peculiar injury which he may have suffered from it: 8 Cow. 152, 153; 4 Wend. 9, 25. If the defendants have for twenty years been permitted to overflow the plaintiff's land with their mill pond, so far as the injury to the land is concerned, they have by that length of possession acquired a right to use it in that manner, and are not responsible in damages to the plaintiff. So a man may overflow his own land; but if such overflow spread disease and death through the neighborhood, it may be abated, and he must respond in damages for the special injury which any individual may have sustained from it, and it would seem to be very absurd to contend that the defendants in a case like this would have greater rights or immunities. The motion for a nonsuit therefore was properly overruled. Whether the sickness of the plaintiff and his family was produced by the defendants' dam or not, was fairly and properly left to the jury as a question of fact. That it had some share in producing it, the evidence, I think, leaves little doubt. But whether it was the means or principal cause, is, in my opinion, upon the evidence detailed in the case, very questionable. The jury were the most competent judges upon this matter, and the well-established principles applicable to cases of this description will not authorize us to disturb their verdict.

Motion for new trial denied.

PRIVATE RIGHT OF ACTION FOR A PUBLIC NUISANCE.-As to the right of one suffering special and peculiar injury from a public nuisance to maintain an action therefor, see Burrows v. Pixley, 1 Am. Dec. 56; Hughes v. Heiser, 2 Id. 459; Lansing v. Smith, 21 Id. 89, and note; Baker v. Boston, 22 Id. 421. As to the right of a person aggrieved to abate a public nuisance, see Hart v. Mayor etc. of Albany, post, and cases cited in the note thereto. The doctrine of Mills v. Hall, that one sustaining a particular injury from such a nuisance, and he only, can have an action therefor, is approved in Myers v. Malcolm, 6 Hill, 296; Hay v. Cohoes Co., 3 Barb. 48; First Baptist Church v. Utica etc. R. R. Co., 6 Id. 317; Fort Plain Bridge Co. v. Smith, 30 N. Y. 62.



maintain it can never be acquired by prescription, is a principle for which Mills v. Hall is frequently referred to as authority: Renwick v. Morris, 7 Hill, 576; People v. Cunningham, 1 Den. 536; Partridge v. Gilbert, 3 Duer, 203; Marvin v. Brewster Iron Mining Co., 55 N. Y. 559; Campbell v. Seaman, 2 N. Y. Sup. Ct. (Thomp. & C.) 241; Crill v. City of Rome, 47 How. Pr. 406.

The principal case is cited also in Renwick v. Morris, 3 Hill, 623, and Harrower v. Ritson, 37 Barb. 309, to the point that, with respect to public nuisances, the remedy by abatement is co-extensive with that by indictment; and in Stevens v. Rhinelander, 5 Rob. 309, as to what constitutes a public nuisance.


[9 WENDELL, 338.]


TENANT IN COMMON CAN NOT MAINTAIN TROVER for a DispOSSESSION of the common chattel by his co-tenant.

SALE OR DESTRUCTION OF THE COMMON CHATTEL BY A CO-TENANT is a conversion for which trover lies.


has converted the same, claiming under the mortgagor, is ineffectual after an action commenced for the conversion, unless the costs are also tendered.

ERROR from the common pleas in an action of trover for a quantity of wheat, brought by the defendant in error as plaintiff below against the plaintiffs in error as defendants. The plaintiff claimed as purchaser under a justice's execution in his favor against one Jones for forty-one dollars and eighty-eight cents, said execution being made returnable in thirty days; and also as assignee of a mortgage of said wheat, made by Jones, dated October 9, 1829, which authorized the mortgagee to take possession of the wheat when harvested. The wheat was sowed in the fall of 1829, by Jones, on a farm in the possession of one Kelly, on the shares, Jones to have one third and Kelly two thirds, each harvesting his own. When the wheat was ripe, the plaintiff below harvested one third of it, and it was taken by the defendants. The defendants claimed under an execution against Jones in favor of Emmons, the lien of which was subsequent to the plaintiff's execution, and also to the mortgage. They also proved that at the date of the agreement between Jones and Kelly, the latter was tenant to one De Mott, who, in October, 1829, contracted to sell the farm, without a reservation of crops, to Emmons, who contracted to sell the same to

Farr; and that the latter entered into possession in the spring of 1830. An assignment from Kelly to Emmons, in October, 1829, of Kelly's interest in the agreement with Jones, was also proved, and also a tender by the defendants of the amount of the plaintiff's mortgage on the day it was due, after the commencement of this action, which tender was refused because the defendants declined to pay the costs. Verdict and judgment in favor of the plaintiff, when the defendants sued out this writ of error, relying on points made at the trial, which sufficiently appear from the opinion.

A. Gibbs, for the plaintiffs in error.

W. B. Canfield, for the defendant in error.

By Court, SAVAGE, C. J. The plaintiff below undertook to show title to the wheat in two ways: 1. By a judicial sale under his judgment and execution; and 2. As assignee of a mortgage. By the first, he acquired no interest in the wheat; and the execution being returnable in thirty instead of ninety days, was unwarranted by the statute, and void: 5 Wend. 276; but by the mortgage, of which the plaintiff was assignee, he did become entitled to take possession of Jones' part of the wheat, and this title is older than that of the purchase by Emmons under his judgment and execution. On the supposition, therefore, that Kelly and Jones were entitled to the crop, Smith, the plaintiff below, having the interest of Jones, was the owner of one third of the wheat, and the other two thirds belonged either to Emmons, as the assignee of Kelly's interest, or to Farr, to whom Emmons had sold the farm, without any reservation of the crops. The defendants, therefore, or one of them, were tenants in common with the plaintiff of the wheat. By the contract, Jones was to harvest one third and Kelly two thirds, but their interest was joint until a division; of the wheat, which was cut, the defendants were the owners of two thirds, and the plaintiff was owner of the remainder. The law is well settled that one tenant in common of a chattel can not bring trover against his co-tenant for dispossessing him. If one tenant in common of a chattel destroy or sell (which is constructively a destruction), then he is accountable in this action: 9 Cow. 230; 3 Johns. 175; 15 Id. 181. As this point disposes of the whole case, it seems unnecessary to consider the nature of Kelly's tenancy. The tender upon the mortgage was certainly ineffectual, as this suit was then commenced and there was no offer to pay the costs.

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