▲ Public Nuisance can be abated only by a public officer, except when the party desiring to abate it has some special interest in the abatement different from, and greater than, the interest of the community: Griffith v. Holman, 23 Wash. 347, 83 Am. St. Rep. 821, 63 Pac. 239; State v. Stark, 63 Kan. 529, 88 Am. St. Rep. 251, 66 Pac. 243. But if an individual suffers some particular loss or damage beyond that suffered in common with others, he has a right of action therefor: Knowles v. Pennsylvania R. R. Co., 175 Pa. St. 623, 52 Am. St. Rep. 860, 34 Atl. 974; First Nat. Bank v. Tyson, 133 Ala. 459, 91 Am. St. Rep. 46, 32 South. 144; Smith v. Mitchell, 21 Wash. 536, 58 Pac. 667, 75 Am. St. Rep. 858, and authorities cited in the cross-reference note thereto.

BETTIS v. MCNIDER.

[137 Ala. 588, 34 South. 813.]

DOWER-Assignment of-Effect on Rents.-After dower is assigned the seizure of the widow relates back to the date of the death of her husband, and she is entitled to the rents of the land due before as well as after the assignment of dower. (p. 60.)

DOWER-Assignment of-Effect on Rents Transferred.-An administrator's right to the possession of the lands of his intestate is subordinate to the widow's right of dower, and he can never acquire any title as against her to the rents arising from that portion of the estate assigned as dower so as to convey a superior title thereto to another by a transfer to him of the tenant's obligation, and the widow, after assignment of dower, has a right to recover the rents received by such transferee, in an action for money had and received. (p. 61.)

W. Cunninghame, for the appellant.

Davis & Gunn, for the appellee.

591 TYSON, J. This is an action for money had and received, brought by plaintiff against defendant for the proceeds of the sale of five bales of cotton, received by the latter from a tenant after the plaintiff's dower in the land on which the cotton was grown had been assigned to her. Prior to the assignment of dower, the administrator rented the land, taking the tenant's obligation for the delivery of the cotton, which he transferred to the defendant. The chief important question presented is, Did the transfer of the tenant's obligation to defendant by the administrator prior to the assignment of dower operate to defeat the plaintiff's right to the rent? Prior to the assignment of dower, a widow has no such title to the land as will support an action at law against an administrator or heir for rents collected. Her

remedy in such case is in equity. And upon proper bill she may recover them of the administrator or heir from the date of the death of the husband to the date of the assignment: Watts v. Williams, 38 Ala. 680; Slater v. Meek, 35 Ala. 538; Perrine v. Perrine, 35 Ala. 644; Beavers v. Smith, 11 Ala. 32; Tillman v. Spann, 68 Ala. 102, 107. After assignment, the widow is invested with a life estate in the lands set apart to her: Code, sec. 1522. She immediately becomes seised for life of a freehold estate, and has the same absolute ownership and control of the lands assigned as though her title had accrued by deed or will. The assignment, however, is not a conveyance, but the dowress, by intendment of law, is in by her husband.

The only object to be accomplished by the assignment is to give the widow a right of entry and to define the boundary of her possession, the allotment conferring upon her no new right to the land. And after the dower is assigned, her seisure relates back to the date of the death of her husband, and the antecedent seisure of the heir, which took effect on the death of the husband, is considered as never having had an existence, and she is in contemplation of law the immediate successor in title of the husband: 10 Am. & Eng. Ency. of Law, 2d ed., p. 152.

In Boyd v. Hunter, 44 Ala. 705, upon bill filed by a widow, after dower assigned, against the administrators 592 of her husband's estate and the tenants to whom they had rented the land prior to the allotment of dower, but whose obligation to pay the rent matured after dower was assigned, a recovery was allowed for the rents of the land collected by the administrators prior to the assignment of dower, and also for the rent falling due after the assignment. From this statement it will readily be seen that one of the questions presented was, Which of the two, the dowress or administrators, had the better right to rents accruing after the dower had been assigned? As indicated above, the decision was in favor of the widow. The court, after affirming the right of the widow to the rents collected by the administrators, said, in part, on this point: "It is further objected that Riggs and Hunter (the tenants) are liable at law, if at all, for the rents accruing after allotment of dower. These rents could certainly have been recovered in an action at law, but as the jurisdiction of equity had attached, that court will complete justice between the parties by settling . . . There would be more force a mere matter of account. in this objection if the assignment of dower per se evicted the tenant. But although as soon as the premises have been set out

....

and assigned to the wife, and the allotment confirmed by the court, the freehold vests in her by virtue of her husband's seisure, and her estate is a continuation of his by appointment of law, the tenant is not required to be ousted. . . . . Whether or not the tenants were at liberty to relinquish possession of any part of the dower interest on its assignment, there is no evidence that they did so. They were liable for the rent, which accrued during their possession." The continuation of the possession by the tenant after the plaintiff's right of entry accrued, notwithstanding he went into possession under the administrator, converted him into a tenant of the plaintiff, and that without attornment: Mills v. Clayton, 73 Ala. 359. This principle in no wise conflicts with the familiar rule which prohibits the tenant from denying the title of the landlord, in any proceeding instituted by the latter, for the recovery of rent or possession, but comes within the exception that a tenant may always show that, since the inception of the lease, the title of the landlord 593 has been extinguished or has passed from him, either by his own act or by operation of law: Davis v. Williams, 130 Ala. 534, 89 Am. St. Rep. 55, 30 South. 488. The administrator's right to the possession of the lands of the intestate being subordinate to the plaintiff's right of dower, he could never acquire any title as against her to the rents arising from that portion assigned as dower. This being true, he was powerless to convey a superior title to the rent to another by a transfer of the tenant's obligation. Furthermore, the obligation or contract in this case shows on its face that it was given for rent of lands belonging to the estate of the plaintiff's husband. The defendant, as assignee of it, being chargeable with the knowledge of the uncertainty of the administrator's tenure, the right of the plaintiff to an allotment of dower, when assigned that she would be entitled to the possession of the land, and of the liability of the tenant to her if he remained in possession, instead of to the holder of his contract for rent, cannot invoke the benefit of the doctrine of bona fide purchaser for value. In short, whatever title the defendant took by the transfer of the rent contract, he acquired subject to be defeated by the exercise of the right of the widow to dower, and this he was bound to know. He having no enforceable demand against the tenant, no title to the cotton which he received and converted, since it belonged to the plaintiff, he is a tort-feasor. But the plaintiff could waive the tort and bring and maintain this action against him for the proceeds of the cotton received by him from its sale. He has

money which ex aequo et bono belongs to plaintiff: Miller v. King, 67 Ala. 575; Steiner v. Clisby, 103 Ala. 181, 15 South. 612; 2 Ency. of Pl. & Pr. 1022.

Reversed and remanded.

That a Widow is entitled to her portion of the rents and profits of the estate from the date of her husband's death up to the time when her dower is assigned, see the monographic note to Sanders v. McMillian, 39 Am. St. Rep. 38.

SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY v. McTYER.

[137 Ala. 601, 34 South. 1020.]

TELEPHONE COMPANIES Negligence-Liability to Third Persons. If telephone service has been discontinued in, and the instruments removed from, a building in which a mercantile business is carried on, and the telephone company, instead of removing its wires as suggested by the owner of the building, merely cuts them loose from the instrument, twists their ends together and leaves them dangling in the building, so that atmospheric electricity, striking them somewhere along their course on the outside, will be inducted into the building and there discharged to the peril of persons and property therein, this is negligence per se on the part of the telephone company, and renders it liable in damages for whatever injuries may result to customers, persons and property rightfully on the premises. (p. 65.)

NEGLIGENCE-Pleading.-A complaint, though not in terms characterizing the failure to perform a plain duty as negligence on the part of the defendant, yet averring facts which constitute negligence per se, is sufficient as against demurrer. (p. 66.)

TELEPHONE COMPANIES--Negligence Defense. It being the duty of a telephone company to remove its wires from a building after the discontinuance of telephone service therein, and negligence per se to fail to do so, it is no defense for it in an action sounding in damages for injury to a third person resulting from such wires being negligently allowed to remain therein, that the company did all that could be done to obviate the danger of their being there. (p. 66.)

NEGLIGENCE Evidence-Instructions.-If, in an action to recover for negligence, the evidence tends to prove the injury complained of and the casual connection between the wrong complained of and the injury sustained, a general affirmative charge in favor of the plaintiff is properly given, and a general affirmative charge in favor of the defendant is properly refused. (p. 67.)

G. H. Fearons, J. M. Falkner and R. Rushton, for the appellant.

Swanson & Clayton, for the appellee.

611 MCCLELLAN, C. J. These may be said to be familiar facts in physics, and, therefore, within the common knowledge of mankind, and within the judicial knowledge of courts: That atmospheric electricity, or lightning, is frequently discharged from clouds and passes to the earth; that metal wires strung in the air are good conductors of electricity, much better than the air; that animal bodies, the bodies of human beings among the rest, are also better conductors than the air or than wood; that electricity so discharged in the vicinity of such wires is liable and apt to pass into them and along them to their ends, and thence through the best conductor at hand into the earth; that if a human body is in contact with the end of the wire, the current will pass through it to the ground, and that, though not in actual contact with the end of the wire whence the current must go to the ground, but near to it, the current, instead of passing through the air to the ground, will seek the 612 better conductor of the body, pass through the air to it and through it to the earth. Of course, the higher the wires extend, the nearer to the point of discharge in the air, the greater the likelihood that the current will pass into them, and the greater the extent of the wires horizontally, the more danger there is of receiving and carrying such electric currents. It may also be said to be common knowledge that where two wires are strung near to each other, within a foot or two, on poles through the air, after the manner of telephone and telegraph wires, there is a likelihood or liability that lightning, in its descent from the clouds, will strike and follow both of them to their ends, unless diverted by other more attractive conductors, and must necessarily then pass from them to the earth through the best conductor then in its general pathway.

The business of maintaining a telephone system by means of transmitters and receivers, and of poles extending many feet in the air, with wires strung upon them and extending for the transmission of words into houses, public and private, is recognized as a legitimate business. It is, too, a business of a public or quasi public nature, in that those engaged in it in a town or city, or given locality, and using public streets and roads for their lines of poles and wire may be said to be under a duty to supply telephone service within such territory to all persons who desire it and pay for it, so that a system of lines and instruments established in a community in a sense meets a public demand and conserves public convenience. If by the exercise of such reasonable precautions as a man of ordinary care