town which is entirely unrelated to any of the governmental functions
of the town. (Wis.) Lakeside Lumber Co. v. Jacobs, 1023.
9. MUNICIPAL CORPORATIONS-Power to Confer Special Priv-
ileges in Property of.-Any grant by a municipal board attempting
to confer on private persons any interest or right in public property
amounts to a diversion of such property from its rightful use, and is
unauthorized and void. (Wis.) Lakeside Lumber Co. v. Jacobs,
1023.
10. MUNICIPAL CORPORATIONS—Grant of Special Privileges
in Property of.-An attempt by a municipal board to grant to a pri-
vate person a right to lay a steam-pipe across a town lot is an attempt
to confer on him the right to devote such property to a merely private
use, wholly unrelated to any public town purpose, is beyond the power
of the board, void, and cannot be enforced. (Wis.) Lakeside Lum-
ber Co. v. Jacobs, 1023.
Abutting Owners-Interference with Access to Street.
11. CONSTITUTIONAL LAW-Damage to Private Property-In-
terfering with Ingress and Egress to Public Street.--The right of in-
gress and egress to lots abutting on a public street is property, and
interference with it is damage within the meaning of the provision
of the state constitution declaring that no private property shall be
taken or damaged for a public or private use without just compensa-
tion having first been made or paid into court for the owner. (Wash.)
Lund v. Idaho etc. R. R., 916.
12. AN INJUNCTION will be Granted Against the Construction
and Maintenance of a Railroad materially interfering with the com-
plainant's right of ingress and egress to his property abutting on a
public street, and thereby diminishing its value and rendering less
profitable his business thereon. (Wash.) Lund v. Idaho etc. R. R.,
13. INJUNCTION Against Construction of Railroad-When may
be Held in Abeyance.-In a suit to enjoin the construction and main-
tenance of a railroad in front of complainant's property, and thereby
materially affecting the right of ingress and egress to and from a
public street, an injunction may be held in abeyance for a stated
period to allow the railroad company to commence condemnation
proceedings. (Wash.) Lund v. Idaho etc. R. R., 916.
Dangerous Streets and Premises.
14. PUBLIC STREET—Injury to Blind Man by Falling into Hole.
Where a blind man walking along a street with which he is familiar
and feeling his way with a cane falls into an unguarded hole dug by
a telephone company, the question of his contributory negligence and
of the negligence of the company is for the jury. (Md.) Chesa-
peake etc. Tel. Co. v. Lysher, 389.
15. MUNICIPAL CORPORATION, Liability of for Negligence in
the Maintenance of Waterworks and Their Appliances.-If a muni-
cipality acquires and maintains a system of waterworks voluntarily
and with a view of obtaining revenue therefrom, including a supply
for fire protection, and the supplying of water for all uses and pur-
poses, it is not to be regarded as acting in its governmental capacity,
so as to relieve it from liability for the death of a human being due to
negligence. (Utah) Brown v. Salt Lake City, 828.
16. MUNICIPAL CORPORATION-Liability for a Conduit Con-
nected with Its Waterworks System.—Where a city maintains, in con-
nection with its waterworks system, a conduit through which water
is conducted for irrigation, for which no charge is made, it is required
to exercise the same degree of care as any private owner would be.
(Utah) Blown v. Salt Lake City, 825.
17. MUNICIPAL CORPORATION, Liability of for the Death of a
Child Playing in a Conduit Connected with the Waterworks System.-
Where a city maintained a conduit in connection with its water-
works system into which flowed the waters of a canal or stream, and
boys, to the knowledge of the city authorities, resorted to such con-
duit to play games, though the conduit was dark for several hundred
feet, and a boy entering such conduit was drowned, a verdict finding
the municipality liable for his death will be permitted to stand.
(Utah) Brown v. Salt Lake City, 828.
Presentation of Claims against City.
18. MUNICIPAL CORPORATION-Claim for Damages Resulting
in the Death of a Human Being, Presentment of, When Necessary.-
Where a statute provides for the presentment to the city council of
claims for damages within a time specified after the happening of the
damage, such presentment is a condition precedent to the maintenance
of an action against such city. (Utah) Brown v. Salt Lake City,
828.
MUNICIPAL CORPORATION — Damages, Claim for, When
Need not be Fresented-Negligence.-Under a statute providing that
all claims against a city for damages alleged to have arisen from the
defective, unsafe, dangerous or obstructed condition of any street, cul-
vert or bridge, or other negligence of the city authorities in respect
to such street, culvert or bridge, shall be presented to the city council,
in writing, within ninety days after the happening of such injury or
damage, a claim need not be presented if it is for the death of a
human being arising out of a defective condition of city property,
owned and maintained in its corporate capacity merely and over which
its dominion is the same as any other property owner. (Utah)
Brown v. Salt Lake City, 828.
Nuisance-Animals and Stockyards.
20. MUNICIPAL CORPORATION-Power to Declare Nuisance.—
A municipality has no power to declare anything a nuisance which is
not such by statute or at common law. (Md.) Mayor etc. of Hagers-
town v. Baltimore etc. R. R. Co., 382.
21. MUNICIPAL CORPORATION—Stockyard as Nuisance.-A
stockyard situated in a town is not a nuisance per se. (Md.) Mayor
etc. of Hagerstown v. Baltimore etc. R. R. Co., 382.
22. MUNICIPAL CORPORATION-Regulation of Domestic An-
imals.—A municipal ordinance making it unlawful for any person,
without obtaining a permit, to herd or keep domestic animals, tem-
porarily or permanently, within the city limits, at any point within
two hundred and fifty feet of two or more residences, unless the
animals are kept in an inclosed structure, is unconstitutional. (Md.)
Mayor etc. of Hagerstown v. Baltimore etc. R. R. Co., 382.
23. MUNICIPAL CORPORATION-Permit to Keep Animals.-An
ordinance which invests the mayor and council with arbitrary power
to grant or withhold a permit to keep domestic animals within the city
limits is unreasonable and void. (Md.) Mayor etc. of Hagerstown v.
Baltimore etc. R. R. Co., 382.
NAMES-Doctrine of Idem Sonans.-The names "Sarah Staun-
ton" ard "Sarah Stanton" are idem sonans. (Ill.) People v. Spoor,
Am. St. Rep., Vol. 126-75
1. NAVIGABLE STREAMS.—The Common Law of England that
the only navigable streams are those in which the tide ebbs and flows
has never been adopted in this country. (Or.) Kamm v. Normand,
698.
2. NAVIGABLE WATERS.-To Make a Stream a Highway, it
must at least be navigable or floatable in its natural state, at ordinary
recurring freshets, long enough to make it useful for some purposes
of trade or agriculture. (Or.) Kamm v. Normand, 698.
3. NAVIGABLE WATERS-Aiding by Artificial
stream which is not a highway cannot be made so by the use of dams
or other artificial means; nor can a stream, navigable in its natural
condition at certain stages of the water, be made so at other times
by artificial means, such as flooding and the like. (Or.) Kamm v.
Normand, 698.
4. NAVIGABLE WATERS.—Unless a Stream is in Fact Navigable
or floatable, it cannot be taken or used without the consent of the
owner, except by due process of law, however beneficial it might be
to private interest or to the public itself. (Or.) Kamm v. Normand,
698.
5. NAVIGABLE WATERS-Use of Stream for Floating Logs.-
Streams which in their natural course are useful for the transportation
of sawlogs during the whole or a part of each year are highways for
that purpose. (Or.) Kamm v. Normand, 698.
6. NAVIGABLE WATERS.—A Stream Capable of Floating Logs
unaided by artificial means, during freshets or stages of water oc-
curring with reasonable frequency and continuing long enough to
make its use of commercial value, is a public highway for that pur-
pose. (Or.) Kamm v. Normand, 698.
7. NAVIGABLE WATERS-Floating of Sawlogs.-A stream, to
be navigable or floatable for sawlogs, must be capable, in its natural
condition at ordinary recurring freshets, of being successfully and
profitably used for that purpose; and a stream not navigable or float-
able in its natural condition cannot be made so by artificial means,
nor can the capacity of a navigable stream be increased by such
means to the injury of a riparian proprietor without compensation.
(Or.) Kamm v. Normand, 698.
NAVIGABLE WATERS Stream Floatable for Short Period.—
A stream which will carry sawlogs only at times of freshets which
occur only a few times each year and continue but a few hours at a
ime is not navigable for the purpose of floatage, and cannot be made
o by means of a splash dam or other artificial structures, without
Arst acquiring the rights of the riparian proprietors. (Or.) Kamm
. Normand, 698.
Drawbridges-Negligence in Management.
9. WATERS-Navigable Streams-Drawbridges.-A drawbridge,
Constructed and maintained under and according to proper authority
over navigable waters, is not an unlawful obstruction to navigation, but
the owner is bound to provide for the safe and prompt passage of
Vessels through the draw. (Ala.) Southern Ry. Co. v. Reeder, 23.
10. WATERS—Navigable Streams - Drawbridges, Control of -
Damages. Reasonable care and diligence in the use and control of a
drawbridge over a navigable stream to permit the prompt passage of
vesels is required of those in whose custody it is, and the want of
such care and diligence carries liability for proximately resulting
injuries. (Ala.) Southern Ry. Co. v. Reeder, 23.
11. WATERS-Drawbridges-Signals for Opening-Statutory Reg-
ulations. A statute prescribing the signals to be given by a boat in
approaching a drawbridge over a navigable stream and the amount
which may be recovered for a failure to comply with such signals
need not necessarily prescribe an exclusive remedy for a failure to
obey such signals, as other signals may be agreed upon between boat
owners and bridge proprietors of a desire to pass through the bridge,
but in order to recover the penalty prescribed by the statute and
caused by the negligence of the bridge-tender, the statutory signals
must be given. (Ala.) Southern Ry. Co. v. Reeder, 23.
12. WATERS-Drawbridges-Signals for Opening-Damages for
Failure to Comply with.-Although a statute prescribes the signals
to be given in approaching a drawbridge over a navigable stream
for the opening of the draw and fixes the amount as a penalty to be
recovered for a failure to obey such signals, craftsmen and bridge
Proprietors may establish and use a signal different from that provided
by the statute, and a boat owner may recover damages for the neg-
ligent conduct of the bridge-tender in failing to open the draw, after
he is by such signal given a reasonable time and advised by those
in control of the approaching vessel of an intention to pass the draw.
(Ala.) Southern Ry. Co. v. Reeder, 23.
13. WATERS-Drawbridges-Signals for Opening-Negligence.-
After giving the proper signal, those in charge of a boat have a
right, in reliance upon the performance of the duty of opening of a
draw in a drawbridge, to approach the bridge at such speed and in
such control of the boat, and to such nearness to the bridge as rea-
sonable prudence and care, under all of the circumstances, require,
and if this duty is performed, negligence cannot be imputed to those
in charge of the boat. (Ala.) Southern Ry. Co. v. Reeder, 23.
14. WATERS Drawbridges-Signals for Opening-Negligence.-
A boat owner, after giving the proper signal for the opening of the
draw in a drawbridge, cannot, in reliance upon the performance of
his duty by the bridge-tender, disregard due prudence and care and
speculate upon the hazards and dangers incident to the occasion and
situation, but he must be at all times in such control of his vessel,
which must be so equipped with the necessary and adequate machinery
for control and operation as reasonable diligence requires, as that
injury naturally resulting from the negligence of the tender may be,
under skillful and prompt management, averted; otherwise the boat
owner is guilty of contributory negligence. (Ala.) Southern Ry.
Co. v. Reeder, 23.
WATERS-Drawbridges-Negligence-Question for Jury.-In
an action to recover for injuries to a boat caused by the negligence
of a bridge-tender in failing to open the draw of a drawbridge in
time, the issue of negligence on the part of the bridge-tender and
contributory negligence on the part of those in charge of the boat is
generally for the jury. (Ala.) Southern Ry. Co. v. Reeder, 23.
16. WATERS-Drawbridges-Negligence-Proximate Cause.-If a
drawbridge-tender is primarily negligent in failing to open the draw
in time after the proper signal has been given, the operation of the
boat by those in charge in undertaking to stop it in time to prevent
injury, and the striking of the bridge, are not such intervening causes
as to prevent the bridge-tender's original negligence from constituting
the proximate cause of the injury, when those in charge of the boat
are not guilty of contributory negligence. (Ala.) Southern Ry. Co.
v. Reeder, 23.
WATERS-Drawbridges-Signals to Open-Negligence. If the
proper signals to open the draw of a drawbridge are given by a boat
owner, the duty to safely and with due dispatch open the draw arises,
and the failure of the bridge-tender to understand the proper signals
or to hear them is negligence, and no excuse for a dereliction in duty.
(Ala.) Southern Ry. Co. v. Reeder, 23.
18. WATERS-Drawbridges-Collisions—Measure of Damages for
Negligence. In an action to recover for injury to a boat caused by
collision with a drawbridge on account of the failure of the bridge-
tender to open the draw in time upon proper signals, the measure
of damages is remuneration to the boat owner for necessary repairs
to the boat and the market value of its use during the time necessary
to make such repairs. (Ala.) Southern Ry. Co. v. Reeder, 23.
19.
WATERS-Drawbridges-Collisions-Evidence-Res Gestae.-
In an action to recover for injury to a boat caused by the negligence
of the tender of a drawbridge to open the draw in time upon proper
signals, evidence that on the next morning after the injury the bridge-
tender visited the boat and inquired of her master if he would take a
named sum and drop the matter, is not admissible as part of the res
gestae of the immediate transaction for redress of which the action
is brought. (Ala.) Southern Ry. Co. v. Reeder, 23.
Navigable Waters are in England synonymous with tide waters, 710,
711.
are natural highways, 719.
artificial means, employment of, whether creates, 728, 730.
at the common law, modification of as applied in the United
States, 711.
at the common law, what constitutes, 711.
bayous, when are, 733.
capacity essential to, 720.
capacity of for boating, fishing and the like, 723.
civil law law, doctrine of and its effect in the United States, 715-
civil law, doctrine of, difference between and the common law,
716, 717.
continuous capacity not essential to, 729, 730.
courses, whether essential to, 723-725.
definitions of, 710.
depth, whether a test of, 724, 731.
duration as a test of, 730.
drainage ditches, when are not, 733.
extent of actual use is not the test of, 722.
floatage and navigability, difference between, 725.
floatage, capacity for, when sufficient, 726-728.
improvement, capacity of for and its effect, 730, 731.
lakes and bays, when are, 732, 733.
marshes, when are, 732.
meanders by government as affecting the question of, 732.
obstructions as affecting the question of, 731.
statutory declaration is not necessary to, 717.
terminals as a test, 731.
tests of in America, 717-722.
tidal test, rejection of in America, 711-715, 718.
vessels, capacity for, whether essential to, 725, 726.
what are is a question of fact, 718.
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