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the serious injury and grievance from which the In the case of Goldsmid v. Tumbridge Wells appellant is manifestly so great a sufferer. Imp. Comm’rs, L. R., 1 Ch. App. 349, where the

So that the question to be decided is, can a pollution of a stream which had been going on court of equity intervene to stop the appellee for over twenty years was complained of, and the from committing the acts which constitute such continuance of the pollution was sought to be an inconsiderable part of the wrong complained maintained on

maintained on the ground of a prescriptive of, and which if stopped would leave the appel- right, an injunction was maintained on the

| lant still suffering from almost as great a griev- ground that the right to pollute the stream ance as he is now subject to?

could only be acquired by the continuance of the As to the right of the appellant to the free discharge of the sewer, prejudicially affecting use of the water of the stream for the purposes the estate, at least to some extent, for the period of his mill there can be no doubt. The site has of twenty years, and that the discharge had not been used for the present mill and one which prejudicially affected the estate for so long a pesucceeded uninterruptedly for fifty years or more. riod. See Moore v. Webb, 1 C. B. R. (N. S.) The appellant has carried it on since 1849 and 673. has owned it since 1853, and the right to the free In the case before us the appellant suffered no and unobstructed use of the water for the pur- injury at all eight years ago, and could hardly poses of operating the mill has been maintained be expected to go a mile away to look after the without pretense of objection or interference for mode in which the appellee was conducting his all this long period, and has thus become a pre-business upon his premises, when he himself scriptive right which no prescriptive right to was subjected to no inconvenience, and could use the stream for a sewer-way, if such exists, not look to the acts of the appellee as likely to could countervail, for the one must be so used as subject him to loss. not to impairor destroy the other. But the wrong It is no answer to a complaint of nuisance complained of and disclosed by the evidence that a great many others are committing simiamounts to a public nuisance, for which their lar acts of nuisance upon the stream. Each and can be no prescription. Wood on Nuisances, Severy one is liable to a separate action and to be 724; Commonwealth v. Upton, 6 Gray, 473; restrained. Wood on Nuisance, $ 689; Crossley Mills v. Hall, 8 Wend. 315.

v. Lightowler, L. R. 3 Eq. Cas. 279; Chipman v. But the appellee's slaughter-house was not Palmer, 16 N. Y. Sup. 517. erected until about 1874, and the pollution of the The extent to which the appellee has contribstream did not give any trouble of material im- uted to the nuisance may be slight and scarcely portance until about eight years ago, since which appreciable. Standing alone it might well be time it has been gradually growing worse. It

It that it would only very slightly, if at all, prove was natural for the complainant to bear evil as a source of annoyance. And so it might be as to long as it was slight rather than engage in a each of the other numerous persons contributing tedious and expensive litigation.

to the nuisance. Each standing alone might He could not be expected to sue until his right amount to little or nothing. But it is when all was materially interfered with. Crosby ". Bes- are united together and contribute to a comsey, 49 Me. 539.

mon result that they become important as facIf he had complained sooner he might have tors in producing the mischief complained of. been unable to make out a case of such interfer- And it may only be after from year to year the ence with the reasonable enjoyment of his prop- number of contributors to the injury has greatly erty as would have entitled him to the aid of a increased, that sufficient disturbance of the apcourt of equity. Until he received some substan. pellant's rights has been caused to justify a comtial injury he could not be expected to sue, and plaint. so there could be no prescription as against his One drop of poison in a person's cup may

have right to the free use of the water until that no injurious eftect. But when a dozen, or right was interfered with for the purpose for twenty, or fifty, each put in a drop, fatal results which he used it, and then only to the extent of may follow. It would not do to say that neither that interference.

was to be held responsible. The right of a riparian owner to have the In that state of facts, as in one presented by water of a stream come to him in its natural pu- this case, each element of contributive injury is rity, or in the condition in which he has been in a part of one common whole, and to stop the misthe habit of using it, for the purposes of his do- chief of the whole, each part in detail must be. mestic use or of his business, is as well recog- arrested and removed. nized as the right to have it flow to his land in

The right to pure air is held to be a natural its usual quantity. See Wood on Nuisance, s right and as incident to the enjoyment of land. 677; Gladfelter v. Walker, 40 Md. 1, 13; Wood Its sensible pollution by the exercise of a noxious v: Sutcliffe, 2 Sim. (N. S.) 163 ; 8 Eng. L. & Eq. trade, whereby the comfortable enjoyment of

; 217; Stockfort Water Works Co. v. Potter, 7 H. property is diminished, is a nuisance against & N. 159.

which courts of equity will always, when the And where any prescriptive right to pollute a state of the facts applies, give relief, and such instream has been gained it can only be main- jury as is not fairly and reasonably incident to tained to the extent that it is shown to have in- the ordinary use of property and renders surjuriously affected the interest complaining. rounding property physically uncomfortable will



be restrained. Wood on Nuisance $ 791; St. self to have suffered greatly and likely to suffer Helen's Sm. Co. v. Tipping, 11 H. of L. Cas. 649; more in the future from the nuisance to his propWalter v. Selfe, 4 Eng. L. & Eq. 20.

erty, whereby it is likely to become practically And the remedy in equity to prevent a nui- valueless unless the injury is restrained. He will sance is generally said to exist whenever that be entitled to the same relief against all the parnature of the injury is such that it cannot be ad- ties contributing to the injury, and as all are to equately compensated by damages orrvill occa- gether contributing to the same result, if the insion a constantly recurring grievance. An in- jury does not cease upon the granting of the injunction is the only effectual remedy to stop the junction in this case, he may be entitled to join injury. Adams' Eq. 211.

in one case all who still continue the injury, Especially is this the case when the injury is upon the prinsiple of the case of Thorpe 0. caused by so many that it would be difficult to Brumfitt, L. R. 8 Ch. 656, where it is held that apportion the damage or say how far any one the acts of several persons acting separately and may have contributed to the result, and so dam- without concert and entirely independent of ages would likely be but nominal, and repeated each other may together constitute a nuisance actions without any substantial benefit might be when the acts of either one alone would not crethe result.

ate it, and such persons may be joined as defendThis very difficulty in obtaining substantial ants in a bill for an injunction. And this illusdamages was stated in Cloves v. Staffordshire, tration is given: “Suppose one person leaves a etc. Co. L. R., 1 Ch. Ap. 142, to be a ground for wheelbarrow standing on a way that may cause relief by injunction. See Lingwood v. Stow- no appreciable inconvenience, but if a hundred market Co., L. R., S. 1 Eq. Ca. 77.

do so that may cause serious inconvenience Slaughter-houses are held to be prima facie nui- which a person entitled to the use of the way sances, Wood on Nuisance, $ 504 ; and that has a right to prevent; and it is no defense to where originally in a remote place, but the any person among the hundred to say that what building of houses near by renders them noxious. he does causes of itself no damage to the defendRex v. Cross, 2 C. & P. 483; Catlin v. Valentine, ant.” See Wood on Nuisance $ 800. 9 Paige, 575; Peck v. Elder, 3 Sandf. 126; Brady v. It has been urged in argument that to restrain Weeks, 3 Barb. Sup. C. R. 157.

the appellee and others engaged in the same ocIt is held that blood running into a stream cupation from doing the acts complained of will constitutes a nuisance that will be restrained. prove ruinous to their business and destructive In Att'y Gen'l v. Stewart, 5 C. E. Green, 419, the to a vast amount of capital invested in the busidefendants were enjoined from allowing blood from But we do not think the apprehension is slaughtered animals to run into a stream, on the well founded. Experience and the necessity of ground that it was per se a pollution and would the case have elsewhere applied the remedy in a render the stream offensive. In Rex v. Neil, 2 manner entirely satisfactory to those engaged in C. & P. 185, the right to stop nuisances in cases the business, and to the great relief of the public; where many contribute is thus stated:

besides converting into a matter of revenue the " It is not necessary that a public nuisance refuse and offal, before constituting an intolerashould be injurious to health; if there be smells ble nuisance. The business of the appellant and offensive to the senses, that is enough, as the those situated like him will certainly be deneighborhood has a right to fresh and pure air. stroyed if the condition of things shown in this It has been proved that a number of other offen- case is allowed to go on and increase, to say sive trades are carried on near this place, etc., nothing of the interference with the comfort, but the presence of other nuisances will not jus- health and development of the whole neighbortify any one of them; for the more nuisances hood affected by the pollution of the stream. there were the more fixed they would be; how- Certainly there must be a remedy and a prompt ever one is not to be less subject to prosecution and thorough one for such an evil in and adjabecause others are culpable.”

cent to a large and rapidly growing city; The law governing the right to an injunction and we know of no remedy equal to the emerto restrain a nuisance is well settled in Holsman gency but that of the protective and preventive 0. Boiling Sp. Bl. Co., 1 McCarter (N. J. Ch.) 335, interference by injunction. where a great many leading authorities are The appellee and those situated like him must collected.

learn to act upon the maxim sic utere tuo ut alienAnd the law is fully laid down by this court um non laedas. in Hamilton v. Whitridge, 11 Md. 128; Adams The pro forma decree below will therefore be v. Michael, 38 id. 123; Dittman v. Repp, 50 id. reversed and the cause remanded in order that 516.

an injunction may be issued as prayed in the And the doctrine is well settled that where bill. Under the circumstances of the case we the nuisance operates to destroy health or im- think the costs should be equally divided between pair the comfortable enjoyment of property, an the parties. action at law furnishes no adequate remedy, and Decree reversed and cause remanded. protection by injunction must be given. Daniell's Ch. Pr. 1858; 2. Story's Eq. 926; 2 Johns. Ch. 166.

We think that the complainant has shown him



STARE DECISIS COMMISSIONERS Cooper, 20 How. 467; Cumberland Coal Co. o. APPEALS—RIGHTS OF PURCHASER Skerman, 20 Md. 117; Mitchell v. Davis, 23 Cal. AT VOID SALE–INTEREST.

381 ; Parker v. Pomeroy, 2 Wis. 112; Booth v.

Commonwealth, 7 Met. 285; Craig v. Bagby, 1 SUPREME COURT OF TEXAS.

T. B. Monroe, 148; Groff v. Groff, 14 Serg. & R.

181 ; Wilcox v. Hawley, 31 N. Y. 648; Nichols J. R. & ADELIA BURNS

v. Midgepast, 27 Conn. 459; Chambers v. Smith,

30 Mo. 156 Jesso v. Carter, 28 Ala. 475. See, W. H. LEDBETTER.

also, Rom on Legal Judgments, ch. 14 p. 197, where

it is said: “If the rule of stare decisis is of any

February 14, 1882. value it should be adhered to, where the precise The questions decided by the Commissioners of Ap

question is again presented in the same court peals in arriving at their award, are as conclusively set- between the same parties, and on the same state iled as the law of the case as they would have been had the case been decided in the usual course of procedure

of facts," citing New Haven R. R. v. Ketcheson, by the supreme court.

34 How. 304. Appeal from Fayette county.

In view of this rule I would myself have GOULD, C. J.

thought it proper to dispose of all the questions With a single exception the questions now passed on in the opinion of the Commissioners sought to be presented were settled on a former of Appeals by a simple reference to that opinion appeal. 54 Tex. 374. By agreement of parties as having conclusively settled them for the purthe cause was, whilst pending in this court on poses of this appeal. The other members of the that appeal, referred to the Commissioners of court, however, entertain views which lead them appeals, and they having reported their award more readily to re-examine such huestions, and and opinion, said award was regularly made the the authorities have been looked into sufficiently judgment of this court. That a ward and judg- to satisfy us that the rules of law laid down by ment settled the questions of law decided therein the Commissioners of Appeals are supported by for the purposes of any further proceedings in the previous decisions of this court, and should the case as conclusively as if the appeal had be adhered to. been disposed of by this court, without reference

The principal question was as to Ledbetter's to the Commissioners of Appeals. It has even been suggested that by reason of the consent of right to recover back the purchase-money bid

and paid by him at an execution sale, void beparties to the reference, the award may be more conclusive on them than would be the adjudica- sell any property of the defendants in the exe

cause the execution conferred no authority to tion of the case by this court. However this cution, the amount so bid having been applied may be, we are satisfied that the questions de

to the payment of the judgment. cided by the Commissioners of Appeals in arriving at their award, are as conclusively settled Ledbetter was the attorney of the judgment as the law of the case, as they would have been creditor, and sued out the execution, not withhad the case been decided in the usual course of standing the judgment had been so far superprocedure by this court. How conclusive euch ceded that there could be no sale, though execuan adjudication by this court would be is a point tion might still issue, under which property on which the court expresses no opinion. Cases might be levied and held subject to the rehave occurred in which this court has deemed

sult of the appeal. After buying in the land itself justified in de parting from the law as de

at the sale he sued Burns and wife for its recovcided on the former appeal. See Layton v. Hall, ery, sequestered it and obtained possession by 25 Tex. 212; Reeves v. Petty, 44 Tex. 149; Rag- | himself replevying. When that suit was decided land v. Rogers, 42 Tex. 422; White, Smith & against him he brought this his second action Baldwin v. Downs, 40 Tex. 207.

of trespass to try title, seeking, however, as alSpeaking only for myself, I desire to say that ternative relief, the recovery back of the pur

, whilst on the authority of these cases it must be chase-money with interest, and asking for other conceded that, in this State, the rule making relief. the former decision the law of the case, is not By the award of the commissioners he was inflexible, but has its exceptions, that the rule allowed the recovery sought, and to secure him itself is well established, is founded on the pol.therein, was subrogated to the lien of the origiicy of preventing endless litigation, and that it nal judgment which had been in part paid by should not be departed from, even for the pur- his purchase. His right to recover back the pose of re-investigating the correctness of the purchase-money is, we think, complete both on former decision, save for urgent reasons.

principle and authority. If the judgment credReference is made to some authorities support- itor had been himself the purchaser at a sale, ing the rule. Wells on Res Adjudicata, Chap. void because of the character of the process, and 44; Burke v. Matthews, 37 Tex. 74; Corning v. had thereby apparently satisfied his judgment Troy Nail Company, 15 How. 466; Ogden v. Lar- “without any gain to himself or loss to the deroke, 74 Ill 510; Donner v. Palmer, 51 Cal. 629; fendant,” he could, on motion, have had the satDodge v. Gaylor, 53 Ind, 368, citing numerous, isfaction set aside, or in this State, have mainauthorities. For convenience of reference some tained an action on the judgment as unsatisfied. of these authorities are given here. Roberts v. Townsend v. Smith, 20 Tex. 465; Freeman on


French v4

Judgments, Sec. 478; Freeman on Executions, SPECIFIC PERFORMANCE OF A PAROLE Sec. 352.

CONTRACT. In such a case if a third person become the purchaser he may recover back the "purchase- HOLMES COUNTY COMMON PLEAS. money paid to the use of defendant and interest." Stone v. Darnell, 25 Tex. Sup. 435; Free

John E. R. EWING ET AL. man on Judgments, Sec. 478; Freeman on Executions, Sec. 352.

MARY J. RICHARDS ET AL. Brown v. Lane, 19 Tex. 203, was not a case where the execution conferred no power to sell,

A contract made between the father and mother of a but where the sale was void for other reasons.

child born out of wedlock, that the mother would sur.

render to the father all her claim to the custody and con. It is not in conflict with Sione v. Darnell.

trol of the child, in consideration that he would take the Where the process confers no authority to sell, child into his family, raise him, and give him a sbare of and for that reason there is no valid sale, it seems

his property equal with the rest of his children, when

clearly and satisfactorily made out by proof, will sus. that the maxim of caveat emptor does not apply. tain the claim of the child for an heir's portion of the Freeman on Executions, Sec. 301, and note 7 father's estate. The right of action to the child to reand note 2.

cover such share, accrues upon the death of the father, Ledbetter was the attorney of the judgment

C. F. VOORHES, J. plaintiff

, but was not, for that reason, precluded John E. R. Ewing, Sarah M. Mitten and Infrom recovering back money paid without con- nis M. Ewing, and Samuel Swartz, as adminissideration. His position can scarcely be such as trator of the estate of John Ewing Jr., deceased, to give him less rights than the plaintiff.

file their petition, in which they alleged that on The cases are numerous in this state in which the 18th day of October, 1831, John Ewing Jr. equitable relief, predicated on these rights of the was born, being the illegitimate son of John judgment plaintiff or the purchaser, has been Ewing, Sr. and Margaret Gushwa. That Ewing, liberally extended. Harrison v. Oberthin, 40

Harrison v. Oberthin, 40 Sr., and Gushwa never intermarried but were -; Peters v. Clemens, 52 Tex. 140; both afterwards married to other parties. The 0. Wellborn, 21 Tex. 773; Andrews v. Richardson, resentatives of John Ewing, Jr., deceased, and 21 Tex. 296; Howard v. North, 5 Tex. 315, 317. the defendants, Mary J. Richards and Édith

But we do not find it necessary to enquire Ewing are the only heirs and legal representa whether Ledbetter should have been granted the tives of John Ewing, Sr., who died on the 24th equitable relief of subrogation or not, for it now of July, 1880. appears that he has been reimbursed and does It is averred in the petition that in the month not need subrogation. Burns and wife were en- of April, 1839, John Ewing, Sr., and Margaret titled to recover of him rent during the time Gushwa entered into a verbal agreement wherethat he held possession after replevying, and that by, John, Sr.,

by John, Sr., promis,ed and agreed in conclaim was before the court on the last trial. The sideration that Margaret Gushwa would then decourt set off the rents due Burns and wife liver and surrender to John, Sr., their illegitimate against Ledbetter's moneyed demand and found son, John Jr., he would take him into his family; a balance of $123 in favor of Ledbetter.

that he would raise him and give him a share of In stating this account Ledbetter was held to his property, the same as the rest of his chil. be subrogated to the judgment lien, and as that dren. That in pursuance to the agreement, judgment bore 10 per cent. interest, he was al-John, Jr., was received into the family of John, lowed interest at that rate. We think that he Sr.; that he was ever after called by the name of was only entitled to legal interest. Stone v. Dar- John Ewing, Jr.; that he was regarded and treatnell, 25 Tex. Sup. supra. Even had the case ed by John, Sr., as his son; that he remained been one for partial subrogation, Ledbetter, in with, and obediently served his father until he equity, could claim nothing more than his arrived at the age of twenty-one years, when he money and 8 per cent. interest. Stating the was married, and he was then provided with a account anew with interest at 8 per cent., it is home upon his father's premises, and the plaintfound that there is a balance of $39.76 due iffs were born to him as the issue of his marriage, Burns and wife, with interest from April 1, all of whom were treated and regarded by John, 1881.

Sr., as his grandchildren. The judgment will be reversed and rendered In 1861, John, Jr., volunteered as a soldier in in their favor for that sum with interest, but the service of the United States, with the knowl. will, in all other respects, be affirmed.

edge and approval of his father, and died on the 3d of April, 1863.

John, Sr., at his death, was possessed of perAn Irishman was accused of some crime, and his sonal property amounting to the sum of $11,225, wife tried to encourage him by reminding him and owned in real estate some seven tracts of that he was certain of having an upright judge land in Holmes county, which are described in to try him. But he replied promptly, “ Indade, the petition and are regarded of large value. He thin, it is not an upright jedge at all I want; it's made a will in which he gave to Mary J. Richa jedge that'll lane a little.” Not a bad type of ards, his daughter, three of the tracts of land, and some people's theology.

to his granddaughter, Edith Ewing, he gave one

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his death, which occurred on the 24th day of July, 20 Such were the terms of the contract as admit

tract, having died intestate as to the last three alleged, would not secure to them the relief praytracts of land described in the petition.

ed for, then the demurrer should be sustained The plaintiffs ask the decree of a specific per- and the petition be dismissed. formance of the contract made between John The plaintiffs ask nothing by reason of the Ewing, Sr., and Margaret Gushwa, and that Ewing blood that may run in their veins. Althey may have decreed to them an equal one- though John Ewing, Sr., may have been as truly third interest of the estate after the payment of the father of John Ewing, Jr., as he was the father debts.

of Mary J. Richards, yet John, Jr., having been To the petition, the defendants interpose a de: born out of wedlock and no intermarriage of his murrer, stating as the reason therefor: 1st. That parents, he is interdicted by law from making the petition does not state facts sufficient to con- any claim to the estate under the laws of destitute a cause of action. 2d. That there is a seent. But the claim of the plaintiffs is, that misjoinder of parties plaintiff

. 3d. That sev- their ancestor, John, Jr., was the illegitimate son erat causes of action are improperly joined. Ath. of John Ewing, Sr.; that their relation was That the cause of action did not accrue in six mutually recognized; that when John, Jr., was years. 5th. That the cause of action did not seven and one half years of age, an agreement accrue in four years. 6th. That the cause of was made between his father and mother whereaction did not accrue in twenty-one years. by he was taken into his father's family, and

The plaintiffs ask for the specfic performance there remained under his control and parental of the contract made in April, 1839, between direction, rendering obedient service until he arJohn Ewing, Sr., and Margaret Gushwa, which rived at the age of twenty-one years. In conwas to be performed by Ewing when he made a sideration for said services and obedience, etc., disposition of his estate. This he was not bound the father agreed that he would give him an to do by the contract until he made a disposition equal share in his property with his other chilto his other children, “when John, Jr., was to dren. It is averred that this contract was stricthave a like share with the other children.

ly kept and fully performed on the part of John, John, Sr., made his will disposing of a part of Jr., until he arrived at the age of majority, behis estate to his legitimate children, leaving a ing, as long as the parties had power to contract

at for his 1880. As to the portion of his estate that was ted by the demurrer, and if the contract is such not disposed of by his will, it remained for a a one as a court of equity has power to enforce, disposition after his decease, so looking at the then the demurrer should be overruled. terms of the agreement and the disposition made It is conceded that the contract was verbal of the estate by John, Sr., we think the right of and that it was entered into in 1839. But it is action accrued to the plaintiffs at the death of averred that by its terms, John, Jr., was to live John, Sr., and it does not occur to the court how in the family as a son and be in parental subjecthe statutes of limitation, raised by the demur- tion to John, Sr., from that date until the time rer, can furnish a defence against the action, when he would be released from the obligation and this disposes of the 4th, 5th, and 6th causes of further servitude by operation of law, which assigned in the demurrer.

happened when he attained the age of majority, The second cause for demurrer is, that there is for which services John, Sr., obligated himself a misjoinder of parties plaintiff. If John, Jr., that he should have with his other children an had survived his father, he would have been the equal division of his estate. John Jr., went into proper party plaintiff. When he is dead we are the family and service of his father and there renot able to see a necessity for any person to stand mained for a period of some thirteen and one half in his place and demand his rights besides his years, rendering to his father obedience and serchildren and his adıninistrator. These are now vice that in law belonged to his mother only, the plaintiffs, and we think necessarily and but by the contract was rendered to his father. properly and this supposed defect does not exist So if it is conceded that the averinents of the pein the case.

tition are true, there was on the part of the anThe third ground for the demurrer is, that cestor of the plaintiffs an exact and full performseveral causes of action are improperly joined inance of the terms of the contract, which he had the petition. This objection is not apparent a right to expect would bring to him an equal from reading the petition. In it there appears share with the other children of John Ewing, Sr., to be a brief single statement of a contract claim- of his estate. ed to have been made between the tes ator and But ive are reminded by the demurrer that' Gushwa, which was not performed by Ewing, Sr., under the statute of frauds, contracts in relation and which is here sought to be enforced.

to real estate, or any interest therein, and conThe first cause for the demurrer is, that it does tructs that are not to be performed within one not state facts sufficient to constitute a cause of year from the making, must be in writing or action. This I regard as the most important- some memorandum thereof, and signed by the and the prime cause presented for the considera- party seught to be charged. If this cause must tion of the court. If the plaintiffs have set forth fail because it is not in writing, we presume that the contract claimed to have been made between the one or the other of these provisions must Ewing and Gushwa, and if it, when proved as furnish authority for its defeat.

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