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with intent to harass and injure complainant, had purchased his lots and had excavated a large and deep hole on one of them that penetrated to the water of the stream; that the excavation was made wantonly and maliciously for the purpose of injuring complainant by polluting the water and by diminishing its flow, and that he intended to put bathing pools in the stream, if not restrained. The excavation referred to in the bill is the one to which we have confined the opinion so far. After the injunction was modified, appellee made other excavations on his lots, and there is considerable testimony in the record in reference to such excavations. The object in making such excavations, as claimed by appellee, was to obtain rock for paving purposes. There is some allusion to the rock as fertilizer, but there seems to be nothing of value in this. It is shown that the rock can be used for paving streets and roads. Appellee, of course, has the right to take rock out of his own land if he desires, provided that in doing 80 he does not divert or pollute the stream that flows through the land. It is claimed by appellant, and expert testimony was introduced tending to show, that blasting or excavating near the stream would have the effect to cause the rock in contact with it to fall in and thereby divert the channel of the water. The additional excavations are not shown to be over, or in immediate contact with, the stream, and the character of the communications between them is left in uncertainty. Water was found in such excavations, and it is shown that it has some temporary visible effect upon the water in appellant's reservoir, but whether this is caused by percolations or streams, and if the latter, their character and extent, is left in uncertainty. If 608 it is not affirmatively shown that subsurface water is supplied by a definite flowing stream, the presumption is, that it comes from ordinary percolations. The testimony is also indefinite as to the character of blasting done or contemplated by appellee, and our conclusion is, that the decree should be affirmed on the evidence. While appellee has the right to use the stream in the manner indicated, and may also make such legitimate use of his own property as he pleases, he must do so in a manner not to divert or pollute the stream of water flowing through the same.
On the allegations of the bill and the evidence submitted, the decree will be affirmed, and it is so ordered.
WATERCOURSE-WHAT IS.-A watercourse is a living stream with definite banks and channel and a mouth distinguishable from its source, not necessarily running all the time, but fed from more permanent sources than mere surface water. Chamberlain v. Hem. ingway, 63 Conn. 1; 38 Am. St. Rep. 330, and note.
WATERS–RIPARIAN RIGHTS. Each riparian proprietor is en. titled to a reasonable use of a natural stream, and if, by an unreasonable use of the water by an upper proprietor, a lower owner is deprived of bis enjoyment of the water, he is entitled to recover damages for the loss: White v. East Lake Land Co., 96 Ga. 415; 51 Am. St. Rep. 141, and note. Water is the common and equal property of every one through whose domain it flows, and the right of each to its use and consumption is the same: Tennessee etc. R. R. Co. v. Hamilton, 100 Ala, 252; 46 Am. St. Rep. 48, and note.
WATERS-MEASURE OF APPROPRIATION.-It is the policy of the law that a stream of water shall be appropriated to the extent only that it is put to for some useful and beneficial purpose: Wimer v. Simmons, 27 Or. 1; 50 Am. St. Rep. 685; Fort Morgan Land etc. Co. v. South Platte Ditch Co., 18 Col. 1; 36 Am. St. Rep. 259, and note; to the same effect see Combs v. Agricultural Ditch Co., 19 Col. 146; 31 Am. St. Rep. 275, and note.
SURFACE WATERS.-At common law, surface water was regarded as a common enemy, and any landowner had the right to expel it from
his own land without regard to the injury thereby occasioned to another proprietor: Mayor V. Sikes, 94 Ga. 30; 47 Am. St. Rep. 132, and note; to the same effect see Missouri Pac. Ry. Co. v. Keyes, 55 Kan. 205; 49 Am. St. Rep. 249, and note; in Beatrice v. Leary, 45 Neb. 149, 48 Am. St. Rep. 546, this rule was held subject to the limitation that every proprietor must so use his property as not to unnecessarily or negligenily injure his neighbor, while in Kansas City etc. R. R. Co. 1. Lackey, T2 Miss. 881; 48 Am. St. Rep. 589, it was held that one could not collect surface water and lawfully discharge It injuriously upon the land of another.
SURFACE WATER FLOWING IN A DEFINED COURSE, in its primitive condition seeking discharge in a neighboring stream, cannot be retarded or interfered with by a landowner to the injury of neigliboring proprietors: Wharton v. Stevens, 84 Iowa, 107; 35 Am. St. Rep. 296, and note.
WATERS-PERCOLATING-DIVERSION.-Although the course of percolating water is in some definite direction, the owner of the land in which it is found has exclusive jurisdiction over it, and does not violate the rights of another by appropriating to bis own use, though the effect is to divert its course from adjacent lands, or to destroy the advantages therefrom previously enjoyed by the adjoining proprietor: Gould v. Eaton, 111 Cal. 639; 52 Am. St. Rep. 201, aud note. Injury to a subterranean supply of water by the lawful acts of an adjacent owner done on his own premises is, unless the stream is well defined and its existence known or easily discernible, or unless the injury is caused by malice, damnum absque injuria: Willlams v. Ladew, 161 Pa. St. 283; 41 Am. St. Rep. 891, and note. See, also, Beatrice Gas Co. v. Thomas, 41 Neb. 662; 43 Am. St. Rep. 711, and especially the note thereto. .
AL 8. Rp. VOL LIII.-13
BOYNTON V. SPAFFORD,
(162 ILLINOIS, 113.) LIMITATIONS OF ACTIONS-NEGOTIABLE INSTRUMENTS.-A PAYMENT BY ONE JOINT DEBTOR, or an extension of time procured by him, without the knowledge, assent, or subsequent ratification by the other, does not stop the running of the statute of limitations as to the latter. Hence, such acts, by one joint debtor on a promissory note, will not keep the note alive against his codebtor.
CHATTEL MORTGAGES-PROCEEDS OF SALE-APPLI. CATION OF, AS A PAYMENT.-If a sheriff, on execution, seizes mortgaged chattels, and the mortgagee replevies them from the sheriff and sells under a power in his mortgage, the mortgagee must, in a proceeding by him to prove up the mortgage debt against the estate of his deceased joint debtor, be charged with the proceeds of the sale, although the action pending, involving the title, is undecided. The money received from such a sale is not in the custody of the law, and should be applied as a payment on the mortgage indebtedness.
Claim presented in the county court by Charles O. Boynton, against the estate of Charles H. Spafford, deceased. This claim was based on two promissory notes, owned and held by Boynton; one for thirteen hundred dollars, dated December 11, 1880, payable one year after date; and the other for thirteen hundred and fifty dollars, dated January 16, 1882, payable fifteen months after date. Each note was signed by both George J. Dettmer and C. H. Spafford. No payments on either note were made by Spafford, nor was the time of payment extended by him. All payments of interest or principal, on either note, were made by Dettmer. Spafford died on September 19, 1892. The county court refused to allow the claim and Boynton appealed to the circuit court, which found in favor of the claimant as to a portion of the claim, and gave him judgment for nine hundred and sixtysix dollars and sixty-five cents. Boynton appealed to the appellato court, which affirmed the judgment.
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Frost & McEvoy, for the appellant.
115 CRAIG, J. As this court does not pass upon questions of fact on an appeal of this character, the only question presented for our consideration is, whether the court erred in holding or refusing propositions of law.
At the request of the defendant, the court held that the note dated December 11, 1880, for thirteen hundred dollars, due in one year, was barred by the statute of limitations at the time it was filed, June 14, 1893, in the county court, against the estate of Charles H. Spafford, deceased. It was conceded on the trial that the claimant, Charles O. Boynton, was the owner and holder of both of said notes, and also that all payments of interest appearing on the back of said notes, as well as of any payments of principal thereon, were made by George J. Dettmer, and that the indorsements were all in the handwriting of Boynton. The note for thirteen hundred dollars, by its terms, became due on December 11, 1881, and under the statute of limitations it would be barred on the eleventh day of December, 1891, upon the expiration of ten years from the time it was due, unless revived by payments or an extension of the time of payment by the makers. No payments were made by Spafford, nor was the time of payment extended by him, as was found by the appellate court. Under this finding of fact, the note was barred by the statute, 90 far as Spafford was concerned, unless the payments made by the other joint maker, Dettmer, or the extension of payment procured by him, kept the note alive.
We understand the law to be settled that a payment by one joint debtor or an extension procured by him, without the knowledge or assent or subsequent ratification by the other, will not operate to bind such other joint debtor. This is the doctrine of Kallenbach v. Dickinson, 100 Ill. 427, 39 Am. Rep. 47, and we think it is well sustained by authority. Under the rule announced in the case cited, the court did not err in the proposition complained of.
116 It appears from the record that on or about the twentyfourth day of June, 1889, George J. Dettmer, one of the makers of the notes, executed to Boynton a chattel mortgage on certain personal property to secure the two notes in controversy and to secure another note which he had executed with other parties. The chattel mortgage was acknowledged and recorded as required by law. Dettmer sold a part of the mortgaged property and paid a portion of the proceeds to Boynton and retained
portion himself. In March, 1890, certain judgments were obtained against Dettmer, upon which executions were issued and placed in the hands of the sheriff. The sheriff, although notified of the mortgage, levied on the mortgaged property. After the levy, Boynton replevied the mortgaged property and sold the same, receiving two thousand dollars as the proceeds of the sale. On the trial, the court held that the money so received should be applied on the three notes described in the mortgage, and this ruling is relied upon as error. The action of replevin has been tried, but no judgment has ever been rendered in the case, and, upon the ground that the title to the mortgaged property has never been settled by a judicial decision, appellant claims that he should not be required to account for the property sold under the mortgage. No evidence of any character was introduced tending to impeach the validity of the mortgage, and, so far as appears from the record before us, it was a valid instrument, and, as Boynton has sold the mortgaged property and received the proceeds, no reason is perceived why he should not apply the money on the mortgage indebtedness.
But it is said the money derived from the sale of the mortgaged property is in the custody of the law, and that it should not be applied as a payment on the mortgage until ordered by the court before whom the action of replevin is pending. If the property had been sold under the order and direction of the court, and the money derived from the sale had been paid into court or held by 117 appellant under the order of the court, subject to such future order as the court might make, there might be much force in the position of appellant. But such was not the case. When the property was levied upon, appellant took it as mortgagee and sold it under the mortgage, disregarding the action pending involving the title. Under such circumstances, we perceive no reason why he should not apply the money on the mortgage indebtedness.
The judgment of the appellate court will be affirmed.
LIMITATIONS OF ACTIONS-NEW PROMISE OR PAYMENT BY ONE OF SEVERAL JOINT DEBTORS.-Some cases hold that a new promise or payment by one joint debtor bofore the statute of limitations has run forms a new point from which to reckon the limitation, not only as to himself, but as to his codebtors: Whitaker v. Rice, 9 Minn, 13; 86 Am. Dec. 78, and note; Colt v. Tracy, 8 Conn. 268; 20 Am. Dec. 110; but the weight of authority is, that every Joint debtor stands upon his own footing, and that a new promise or part payment by one of several joint debtors, whether made before or after the debt is barred, takes the case out of the statute only as to the party so promising: Notes to Van Keuren v. Parmelee, 51 Am.