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transmit them with care and diligence adequate to the business which they undertake, and if they fail in such care and diligence, they become responsible. Breese v. U. S. Tel. Co., 48 N. Y. (3 Sick.) 132; S. C., 8 Am. Rep. 526; Sweetland v. Illinois, etc., Tel. Co., 27 Iowa, 433; S. C., 1 Am. Rep. 285; Ellis v. Am. Tel. Co., 13 Allen, 226; Washington, etc., Tel. Co. v. Hobson, 15 Gratt. (Va.) 122.

A telegraph company, holding itself out to the public as ready and willing to transmit messages, pledges to the public the use of instruments proper for the purpose, and that degree of skill and care adequate to accomplish the object proposed, and in case of failure in any of these respects it is undoubtedly liable for the damages resulting. Bartlett v. Western Union Tel. Co., 62 Me. 209; S. C., 16 Am. Rep. 437. Circumstances in the nature of the instrumentality employed, which in a particular case prevent the proper accomplishment of the undertaking, such as a thunder storm, or the sickness of a skilled operator, may, however, be a sufficient excuse for delay; but a mistake, such as translating an order for "sacks" of salt as an order for "casks" of salt, is to be regarded as the result of negligence for which the company are liable. Leonard v. New York, etc., Tel. Co., 41 N. Y. (2 Hand) 544; S. C., 1 Am. Rep. 446. See, also, Dufbury v. Tel. Co., 3 Phil. (Penn.) 408. And in general, where the terms of a message sent by telegraph are seriously changed, and the name of the sender entirely disfigured, either by the transmission or the copying, it will import negligence on its face. Western Union Tel. Co. v. Meek, 49 Ind. 53.

When a telegraph company contracts to deliver market reports, it binds itself to procure and furnish correct reports, and is responsible for the loss occasioned by any mistake in them. If the company undertakes to furnish such reports from a point beyond its own line, it will be presumed, in the absence of evidence to the contrary, that the report was correctly delivered to it at the place where its own line commences; and the burden is upon the company to show that a mistake in the report occurred from causes which would relieve it from liability. Turner v. Hawkeye Tel. Co., 41 Iowa, 458; S. C., 20 Am. Rep. 605.

Telegraphic messages sent in cipher, the purport of which is entirely unknown to the officers or agents of the company, fall within that principle of the law of common carriers which exempts the carrier from responsibility on the ground of concealment by the owner of the goods in respect to their nature, amount, and value (see ante, Vol. 2, 18, 29); and in such case, upon a breach of the contract to transmit and deliver, the sender can recover only nominal damages, or the amount paid for VOL. IV.-88

sending the message.

S. C., 17 Am. Rep. 452.

Candee v. Western Union Tel. Co., 34 Wis. 471;

Telegraph companies have the right to make reasonable rules for the conduct of their business, and can limit their liability for mistakes not occasioned by gross negligence or willful misconduct, by notice brought home to the sender of the message or by special contract. Breese v. U. S. Tel. Co., 48 N. Y. (3 Sick.) 132; S. C., 8 Am. Rep. 526. And where the company furnishes its customers printed blanks containing the terms upon which it proposes to transmit messages, a delivery to the company for transmission, of a message written upon one of such blanks, is held to be an acceptance of the terms and constitutes a contract between the parties. Young v. Western Union Tel. Co., 65 N. Y. (20 Sick.) 163; Passmore v. Western Union Tel.. Co., 78 Penn. St. 238; Camp v. Western Union Tel. Co., 1 Metc. (Ky.).164; Wann v. Western Union Telegraph Co., 37 Mo. 472; Wolf v. Western Union Tel. Co., 62 Penn. St. 83; S. C., 1 Am. Rep. 387. According to the weight of authority, a regulation that the liability of the company for any mistake or delay in the transmission or delivery of a message, or for not delivering the same, shall not extend beyond the sum received for sending it, unless the sender orders the message to be repeated by sending it back to the office which first received it, and pays half the regu lar rate additional, is a reasonable precaution to be taken by the company, and binding upon all who assent to it, so as to exempt the company from liability beyond the amount stipulated, for any cause except willful misconduct or gross negligence. Id.; Grinnell v. Western Union Tel. Co., 113 Mass. 299; S. C., 18 Am. Rep. 485. But it is against public policy to permit telegraph companies to secure exemp tion from the consequences of their own gross negligence, by contract. Western Union Tel. Co. v. Graham, 1 Col. 230; S. C., 9 Am. Rep. 136; Hibbard v. Western Union Tel. Co., 33 Wis. 558; S. C., 14 Am. Rep. 775; Bartlett v. Western Union Tel. Co., 62 Me. 209; S. C., 16 Am. Rep. 437. And it is held in Illinois, that notwithstanding any special conditions which may be contained in a contract between a company and the sender of a message, restricting the liability of the former in case of an inaccurate transmission of the message, the company will still be liable for mistakes happening by their own fault, such as defective instruments, or carelessness or unskillfulness of their operators, but not for mistakes occasioned by uncontrollable causes. Tyler v. Western Union Tel. Co., 60 Ill. 421; S. C., 14 Am. Rep. 38. And. see Western Union Tel. Co. v. Meek, 49 Ind. 53.

It has been held that express stipulations in the contract for transmission bind the receiver as well as the sender. Aiken v. Western

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Union Tel. Co., 5 S. C. 358. But see contra, LaGrange v. Southwestern Tel. Co., 25 La. Ann. 383.

It was adjudged in a New York case that a telegraph company, who has been paid the whole compensation for transmission, irrespective of the question of contract, are liable in an action for negligence, to a party interested, for loss and damages in transmitting to him an erroneous message, though the error or mistake was made by one of the companies through whom they transmitted it. De Rutte v. New York, etc., Tel. Co., 30 How. (N. Y.) 403; S. C., 1 Daly, 547. But see Leonard v. New York, etc., Tel. Co., 41 N. Y. (2 Hand) 544; S. C., 1 Am. Rep. 446; Baldwin v. U. S. Tel. Co., 45 N. Y. (6 Hand) 744; S. C., 6 Am. Rep. 165.

If a telegraph company, engaged in constructing its line through a public and frequented street of a city, allows its wire to remain suspended across the street in a manner which obstructs travel, without guards, flags, or other notice to the public of the obstruction, it is held to be guilty of gross negligence. Western Union Tel. Co. v. Eyser, 2 Col. T. 141. And it is gross negligence in a telegraph company to employ an operator who is ignorant of the existence of a county town which is one of the stations on its line. Western Union Tel. Co. v. Buchanan, 35 Ind. 429; S. C., 9 Am. Rep. 744.

§ 21. Water-courses. It is an established general rule that every proprietor of land through which a natural water-course runs has an equal right, inseparably annexed to the soil, to the use of the water, for every useful purpose to which it can be applied, to which it can be applied, as it is accustomed to run, without diminution or alteration. Wadsworth v. Tillotson, 15 Conn. 366; Cowles v. Kidder, 24 N. H. 364; Pugh v. Wheeler, 2 Dev. & Bat. (N. C.) L. 50. But this is a mere privilege, running with the land, and the owner of the soil has no property in the water itself. Hill v. Newman, 5 Cal. 445; Van Hoesen v. Coventry, 10 Barb. 518. And to maintain the right to a water-course it must be made to appear that the water usually flows in a certain direction and by a regular channel with banks or sides. It need not be shown to flow continnally, and it may at times be dry, but it must have a well-defined and substantial existence. Wagner v. Long Island R. R. Co., 2 Hun (N. Y.), 633; S. C., 5 Sup. Ct. (T. & C.) 163; Barnes v. Sabron, 10 Nev. 217; Eulrich v. Richter, 37 Wis. 226. The use of the water of a stream for the purpose of irrigation is not permitted in England (Embrey v. Owen, 6 Exch. 353; Sampson v. Hoddinott, 1 C. B. [N. S.] 590); but in this country it is more generally allowed. Elliot v. Fitchburg R. R. Co., 10 Cush. 194. No proprietor can, however, under color of that right, or for the actual purpose of irrigating his

own land, wholly abstract or divert the water-course, or take such an unreasonable quantity of water, as to deprive other proprietors of the substantial benefits which they might derive from it, if not diverted or used unreasonably. Arnold v. Foot, 12 Wend. 330; Chatfield v. Wilson, 27 Vt. 670; Fleming v. Davis, 37 Tex. 173; Blanchard v. Baker, 8 Me. 253; Randall v. Silverthorn, 4 Penn. St. 173; Evans v. Merriweather, 4 Ill. 496.

In general, a riparian owner has no legal right to increase or diminish the quantity of water which flows through or along his land to the injury of another land-owner on the stream (Merritt v. Parker, 1 Coxe [N. J.], 460; Chasemore v. Richards, 2 Hurlst. & N. 168); unless he has gained such right by grant or prescription. Bucklin v. Truell, 54 N. H. 122; Belknap v. Trimble, 3 Paige, 577. But a riparian owner may erect a dam across a stream, using an ordinary and reasonable degree of care, and for the indirect and consequential damages thereby caused the law gives no redress. Hartzall v. Sill, 12 Penn. St. 248. He is, however, bound so to construct the dam that it will resist not only ordinary freshets, but also such extraordinary floods as may be reasonably anticipated. Gray v. Harris, 107 Mass. 492; S. C., 9 Am. Rep. 61; Bailey v. Mayor of New York, 3 Hill, 531; Everett v. Hydraulic, etc., Co., 23 Cal. 225. And he has no right to detain the water longer than is necessary for its profitable enjoyment, and he must return it to its natural channel before it passes upon the land of the proprietor below. Pool v. Lewis, 41 Ga. 162; S. C., 5 Am. Rep. 526.

So, a mill-owner has the right, in a reasonable manner, to discharge the waste from his mill, such as saw-dust, shavings, etc., into the stream, in the ordinary course of using such mill; but he has not the right, wantonly and needlessly and out of the ordinary course in such cases, and not in the service of his substantial interest and benefit in the use of his mill in a reasonable manner, to throw such waste, or permit it to go into the stream, to the injury of proprietors below. Jacobs v. Allard, 42 Vt. 303; S. C., 1 Am. Rep. 331.

The maxim, aqua currit et debet currere, absolutely prohibits an individual from interfering with the natural flow of water to the prejudice of another riparian owner upon any pretense, and subjects him to damages at the suit of any party injured without regard to any question of negligence or want of care. Parker v. Griswold, 17 Conn. 299; Pratt v. Lamson, 2 Allen, 275; Crooker v. Bragg, 10 Wend. 260; Overton v. Sawyer, 1 Jones' (N. C.) L. 308; Chatfield v. Wilson, 27 Vt. 670. And it is held that if one raises the water in a natural stream above its natural banks, and to prevent its overflow constructs

embankments which answer the purpose perfectly, but by the pressure of the water upon the natural banks of the stream percolation takes place, so as to drown the adjoining lands of another, an action will lie for the damages occasioned thereby. And it matters not whether the damage is occasioned by the overflow of, or the percolation through the natural banks, so long as the result is occasioned by an improper interference with the natural flow of the stream. Pixley v. Clark, 35 N. Y. (8 Tiff.) 520. But where one interferes with the current of a running stream, and causes damage to those who are entitled to have the water flow in its natural channel, such interference being in pursuance of legislative authority granted for the purpose of constructing a work of public utility, upon making compensation, he is liable only for such injury as results from the want of due skill and care in so arranging the necessary works as to avoid any danger reasonably to be anticipated from the habits of the stream and its liability to floods. Bellinger v. New York Central R. R. Co., 23 N. Y. (9 Smith) 42. See, also, Blood v. Nashua, etc., R. R. Co., 2 Gray, 137; Denslow v. New Haven, etc., Co., 16 Conn. 98; Conhocton, etc., R. R. Co. v. Buffalo, etc., R. R. Co., 3 Hun (N. Y.), 523; S. C., 5 Sup. Ct. (T. & C.) 651. Nor will an action lie against a party for so using or changing the surface of his own land as to dam up and obstruct the flow of surface water, or water collected by thaws and freshets and which had formerly been accustomed to flow over and across the lands of his neighbor. Wagner v. Long Island, etc., R. R. Co., 2 Hun (N. Y.), 633; S. C., 5 Sup. Ct. (T. & C.) 163; Wheeler v. Worcester, 10 Allen, 591; Rawstron v. Taylor, 11 Exch. 369. See post, tit. Water and Water

courses.

§ 22. Miscellaneous. It is a well-settled rule that if one do a lawful act upon his own premises he cannot be held responsible for injurious consequences that may result from it, unless it was so done as to constitute actionable negligence. Rockwood v. Wilson, 11 Cush. 221. Thus, where one places a steam boiler upon his premises and operates it with care and skill, so that it is no nuisance, in the absence of proof of fault or negligence upon his part, he is not liable for damages to his neighbor occasioned by the explosion of the boiler. Losee v. Buchanan, 51 N. Y. (6 Sick.) 476; S. C., 10 Am. Rep. 623; Marshall v. Welwood, 38 N. J. Law, 339; S. C., 20 Am. Rep. 394. But the owner of a building adjoining a street or highway is under a legal obligation to take reasonable care that it is kept in proper condition, so that it shall not fall into the street or highway and injure persons lawfully there. And from the happening of such an accident, in the absence of explanatory circumstances, negligence will be pre

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