the serious injury and grievance from which the appellant is manifestly so great a sufferer.

So that the question to be decided is, can a court of equity intervene to stop the appellee from committing the acts which constitute such an inconsiderable part of the wrong complained of, and which if stopped would leave the appellant still suffering from almost as great a grievance as he is now subject to?

As to the right of the appellant to the free use of the water of the stream for the purposes of his mill there can be no doubt. The site has been used for the present mill and one which succeeded uninterruptedly for fifty years or more. The appellant has carried it on since 1849 and has owned it since 1853, and the right to the free and unobstructed use of the water for the purposes of operating the mill has been maintained without pretense of objection or interference for all this long period, and has thus become a prescriptive right which no prescriptive right to use the stream for a sewer-way, if such exists, could countervail, for the one must be so used as not to impair or destroy the other. But the wrong complained of and disclosed by the evidence amounts to a public nuisance, for which their can be no prescription. Wood on Nuisances, § 724; Commonwealth v. Upton, 6 Gray, 473; Mills v. Hall, 8 Wend. 315.

But the appellee's slaughter-house was not erected until about 1874, and the pollution of the stream did not give any trouble of material importance until about eight years ago, since which time it has been gradually growing worse. was natural for the complainant to bear evil as long as it was slight rather than engage in a tedious and expensive litigation.

It

He could not be expected to sue until his right was materially interfered with. Crosby". Bessey, 49 Me. 539.

If he had complained sooner he might have been unable to make out a case of such interference with the reasonable enjoyment of his property as would have entitled him to the aid of a court of equity. Until he received some substantial injury he could not be expected to sue, and so there could be no prescription as against his right to the free use of the water until that right was interfered with for the purpose for which he used it, and then only to the extent of that interference.

The right of a riparian owner to have the water of a stream come to him in its natural purity, or in the condition in which he has been in the habit of using it, for the purposes of his domestic use or of his business, is as well recognized as the right to have it flow to his land in its usual quantity. See Wood on Nuisance, § 677; Gladfelter v. Walker, 40 Md. 1, 13; Wood Sutcliffe, 2 Sim. (N. S.) 163; 8 Eng. L. & Eq. 217; Stockfort Water Works Co. v. Potter, 7 H. & 'N. 159.

And where any prescriptive right to pollute a stream has been gained it can only be maintained to the extent that it is shown to have injuriously affected the interest complaining.

In the case of Goldsmid v. Tumbridge Wells Imp. Comm'rs, L. R., 1 Ch. App. 349, where the pollution of a stream which had been going on for over twenty years was complained of, and the continuance of the pollution was sought to be maintained on the ground of a prescriptive right, an injunction was maintained on the ground that the right to pollute the stream could only be acquired by the continuance of the discharge of the sewer, prejudicially affecting the estate, at least to some extent, for the period of twenty years, and that the discharge had not prejudicially affected the estate for so long a period. See Moore v. Webb, 1 C. B. R. (N. S.) 673.

In the case before us the appellant suffered no injury at all eight years ago, and could hardly be expected to go a mile away to look after the mode in, which the appellee was conducting his business upon his premises, when he himself was subjected to no inconvenience, and could not look to the acts of the appellee as likely to subject him to loss.

It is no answer to a complaint of nuisance that a great many others are committing similar acts of nuisance upon the stream. Each and every one is liable to a separate action and to be restrained. Wood on Nuisance, § 689; Crossley v. Lightowler, L. R. 3 Eq. Cas. 279; Chipman v. Palmer, 16 N. Y. Sup. 517.

The extent to which the appellee has contributed to the nuisance may be slight and scarcely appreciable. Standing alone it might well be that it would only very slightly, if at all, prove a source of annoyance. And so it might be as to each of the other numerous persons contributing to the nuisance. Each standing alone might amount to little or nothing. But it is when all are united together and contribute to a common result that they become important as factors in producing the mischief complained of. And it may only be after from year to year the number of contributors to the injury has greatly increased, that sufficient disturbance of the appellant's rights has been caused to justify a complaint.

One drop of poison in a person's cup may have no injurious effect. But when a dozen, or twenty, or fifty, each put in a drop, fatal results may follow. It would not do to say that neither was to be held responsible.

In that state of facts, as in one presented by this case, each element of contributive injury is a part of one common whole, and to stop the mischief of the whole, each part in detail must be arrested and removed.

The right to pure air is held to be a natural right and as incident to the enjoyment of land. Its sensible pollution by the exercise of a noxious trade, whereby the comfortable enjoyment of property is diminished, is a nuisance against which courts of equity will always, when the state of the facts applies, give relief, and such injury as is not fairly and reasonably incident to the ordinary use of property and renders surrounding property physically uncomfortable will

be restrained. Wood on Nuisance § 791; St. Helen's Sm. Co. v. Tipping, 11 H. of L. Cas. 649; Walter v. Selfe, 4 Eng. L. & Eq. 20.

And the remedy in equity to prevent a nuisance is generally said to exist whenever that nature of the injury is such that it cannot be adequately compensated by damages or will occasion a constantly recurring grievance. An injunction is the only effectual remedy to stop the injury. Adams' Eq. 211.

Especially is this the case when the injury is caused by so many that it would be difficult to apportion the damage or say how far any one may have contributed to the result, and so damages would likely be but nominal, and repeated actions without any substantial benefit might be the result.

This very difficulty in obtaining substantial damages was stated in Cloves v. Staffordshire, etc. Co. L. R., 1 Ch. Ap. 142, to be a ground for relief by injunction. See Lingwood v. Stowmarket Co., L. R., S. 1 Eq. Ca. 77.

Slaughter-houses are held to be prima facie nuisances, Wood on Nuisance, § 504; and that where originally in a remote place, but the building of houses near by renders them noxious. Rex v. Cross, 2 C. & P. 483; Catlin v. Valentine, 9 Paige, 575; Peck v. Elder, 3 Sandf. 126; Brady v. Weeks, 3 Barb. Sup. C. R. 157.

It is held that blood running into a stream constitutes a nuisance that will be restrained. In Att'y Gen'l v. Stewart, 5 C. E. Green, 419, the defendants were enjoined from allowing blood from slaughtered animals to run into a stream, on the ground that it was per se a pollution and would render the stream offensive. In Rex v. Neil, 2 C. & P. 185, the right to stop nuisances in cases where many contribute is thus stated:

"It is not necessary that a public nuisance should be injurious to health; if there be smells offensive to the senses, that is enough, as the neighborhood has a right to fresh and pure air. It has been proved that a number of other offensive trades are carried on near this place, etc., but the presence of other nuisances will not justify any one of them; for the more nuisances there were the more fixed they would be; however one is not to be less subject to prosecution because others are culpable."

The law governing the right to an injunction to restrain a nuisance is well settled in Holsman v. Boiling Sp. Bl. Co., 1 McCarter (N. J. Ch.) 335, where a great many leading authorities are collected.

And the law is fully laid down by this court in Hamilton v. Whitridge, 11 Md. 128; Adams v. Michael, 38 id. 123; Dittman v. Repp, 50 id.

516.

And the doctrine is well settled that where the nuisance operates to destroy health or impair the comfortable enjoyment of property, an action at law furnishes no adequate remedy, and 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

self to have suffered greatly and likely to suffer more in the future from the nuisance to his property, whereby it is likely to become practically valueless unless the injury is restrained. He will be entitled to the same relief against all the parties contributing to the injury, and as all are together contributing to the same result, if the injury does not cease upon the granting of the injunction in this case, he may be entitled to join in one case all who still continue the injury, upon the principle of the case of Thorpe v. Brumfitt, L. R. 8 Ch. 656, where it is held that the acts of several persons acting separately and without concert and entirely independent of each other may together constitute a nuisance when the acts of either one alone would not create it, and such persons may be joined as defendants in a bill for an injunction. And this illustration is given: "Suppose one person leaves a wheelbarrow standing on a way that may cause no appreciable inconvenience, but if a hundred do so that may cause serious inconvenience which a person entitled to the use of the way has a right to prevent; and it is no defense to any person among the hundred to say that what he does causes of itself no damage to the defendant." See Wood on Nuisance § 800.

It has been urged in argument that to restrain the appellee and others engaged in the same occupation from doing the acts complained of will prove ruinous to their business and destructive to a vast amount of capital invested in the business. But we do not think the apprehension is well founded. Experience and the necessity of the case have elsewhere applied the remedy in a manner entirely satisfactory to those engaged in the business, and to the great relief of the public; besides converting into a matter of revenue the refuse and offal, before constituting an intolerable nuisance. The business of the appellant and those situated like him will certainly be destroyed if the condition of things shown in this case is allowed to go on and increase, to say nothing of the interference with the comfort, health and development of the whole neighborhood affected by the pollution of the stream. Certainly there must be a remedy and a prompt and thorough one for such an evil in and adjacent to a large and rapidly growing city; and we know of no remedy equal to the emergency but that of the protective and preventive interference by injunction.

The appellee and those situated like him must learn to act upon the maxim sic utere tuo ut alienum non laedas.

The pro forma decree below will therefore be reversed and the cause remanded in order that an injunction may be issued as prayed in the bill. Under the circumstances of the case we think the costs should be equally divided between the parties.

Decree reversed and cause remanded.

STARE DECISIS COMMISSIONERS OF APPEALS-RIGHTS OF PURCHASER

AT VOID SALE-INTEREST.

SUPREME COURT OF TEXAS.

J. R. & ADELIA BURNS

v.

W. H. LEDBETTER.

February 14, 1882.

The questions decided by the Commissioners of Appeals in arriving at their award, are as conclusively settled as the law of the case as they would have been had the case been decided in the usual course of procedure by the supreme court.

Appeal from Fayette county.
GOULD, C. J.

With a single exception the questions now sought to be presented were settled on a former appeal. 54 Tex. 374. By agreement of parties the cause was, whilst pending in this court on that appeal, referred to the Commissioners of appeals, and they having reported their award and opinion, said award was regularly made the judgment of this court. That award and judgment settled the questions of law decided therein for the purposes of any further proceedings in the case as conclusively as if the appeal had been disposed of by this court, without reference to the Commissioners of Appeals. It has even been suggested that by reason of the. consent of parties to the reference, the award may be more conclusive on them than would be the adjudication of the case by this court. However this may be, we are satisfied that the questions decided by the Commissioners of Appeals in arriving at their award, are as conclusively settled as the law of the case, as they would have been had the case been decided in the usual course of procedure by this court. How conclusive such an adjudication by this court would be is a point on which the court expresses no opinion. Cases have occurred in which this court has deemed itself justified in departing from the law as decided on the former appeal. See Layton v. Hall, 25 Tex. 212; Reeves v. Petty, 44 Tex. 149; Ragland v. Rogers, 42 Tex. 422; White, Smith & Baldwin v. Downs, 40 Tex. 207.

Speaking only for myself, I desire to say that whilst on the authority of these cases it must be conceded that, in this State, the rule making the former decision the law of the case, is not inflexible, but has its exceptions, that the rule itself is well established, is founded on the policy of preventing endless litigation, and that it should not be departed from, even for the purpose of re-investigating the correctness of the former decision, save for urgent reasons.

Reference is made to some authorities supporting the rule. Wells on Res Adjudicata, Chap. 44; Burke v. Matthews, 37 Tex. 74; Corning v. Troy Nail Company, 15 How. 466; Ogden v. Larroke, 74 Ill 510; Donner v. Palmer, 51 Cal. 629; Dodge v. Gaylor, 53 Ind, 368, citing numerous authorities. For convenience of reference some of these authorities are given here. Roberts v.

Cooper, 20 How. 467; Cumberland Coal Co. v. Skerman, 20 Md. 117; Mitchell v. Davis, 23 Cal. 381; Parker v. Pomeroy, 2 Wis. 112; Booth v. Commonwealth, 7 Met. 285; Craig v. Bagby, 1 T. B. Monroe, 148; Groff v. Groff, 14 Serg. & R. 181; Wilcox v. Hawley, 31 N. Y. 648; Nichols v. Midgepast, 27 Conn. 459; Chambers v. Smith, 30 Mo. 156; Jesso v. Carter, 28 Ala. 475. See, also, Rom on Legal Judgments, ch. 14 p. 197, where it is said: "If the rule of stare decisis is of any value it should be adhered to, where the precise question is again presented in the same court between the same parties, and on the same state of facts," citing New Haven R. R. v. Ketcheson, 34 How. 304.

In view of this rule I would myself have thought it proper to dispose of all the questions passed on in the opinion of the Commissioners of Appeals by a simple reference to that opinion as having conclusively settled them for the purposes of this appeal. The other members of the court, however, entertain views which lead them more readily to re-examine such questions, and the authorities have been looked into sufficiently to satisfy us that the rules of law laid down by the Commissioners of Appeals are supported by the previous decisions of this court, and should be adhered to.

The principal question was as to Ledbetter's right to recover back the purchase-money bid and paid by him at an execution sale, void because the execution conferred no authority to sell any property of the defendants in the execution, the amount so bid having been applied to the payment of the judgment.

Ledbetter was the attorney of the judgment creditor, and sued out the execution, notwithstanding the judgment had been so far superceded that there could be no sale, though execution might still issue, under which property might be levied and held subject to the result of the appeal. After buying in the land at the sale he sued Burns and wife for its recovery, sequestered it and obtained possession by himself replevying. When that suit was decided against him he brought this his second action of trespass to try title, seeking, however, as alternative relief, the recovery back of the purchase-money with interest, and asking for other relief.

By the award of the commissioners he was allowed the recovery sought, and to secure him therein, was subrogated to the lien of the original judgment which had been in part paid by his purchase. His right to recover back the purchase-money is, we think, complete both on principle and authority. If the judgment creditor had been himself the purchaser at a sale, void because of the character of the process, and had thereby apparently satisfied his judgment "without any gain to himself or loss to the defendant," he could, on motion, have had the satisfaction set aside, or in this State, have maintained an action on the judgment as unsatisfied. Townsend v. Smith, 20 Tex. 465; Freeman on

In such a case if a third person become the purchaser he may recover back the "purchasemoney paid to the use of defendant and interest." Stone v. Darnell, 25 Tex. Sup. 435; Freeman on Judgments, Sec. 478; Freeman on Executions, Sec. 352.

Brown v. Lane, 19 Tex. 203, was not a case where the execution conferred no power to sell, but where the sale was void for other reasons. It is not in conflict with Stone v. Darnell.

Where the process confers no authority to sell, and for that reason there is no valid sale, it seems that the maxim of caveat emptor does not apply. Freeman on Executions, Sec. 301, and note 7 and note 2.

Ledbetter was the attorney of the judgment plaintiff, but was not, for that reason, precluded from recovering back money paid without consideration. His position can scarcely be such as to give him less rights than the plaintiff.

The cases are numerous in this State in which equitable relief, predicated on these rights of the judgment plaintiff or the purchaser, has been liberally extended. Harrison v. Oberthin, 40 Tex. ; Peters v. Clemens, 52 Tex. 140; French v. Grenet, 4 Tex. Law Jour. 675; Martin v. Wellborn, 21 Tex. 773; Andrews v. Richardson, 21 Tex. 296; Howard v. North, 5 Tex. 315, 317. But we do not find it necessary to enquire whether Ledbetter should have been granted the equitable relief of subrogation or not, for it now appears that he has been reimbursed and does not need subrogation. Burns and wife were entitled to recover of him rent during the time that he held possession after replevying, and that claim was before the court on the last trial. The court set off the rents due Burns and wife against Ledbetter's moneyed demand and found a balance of $123 in favor of Ledbetter.

In stating this account Ledbetter was held to be subrogated to the judgment lien, and as that judgment bore 10 per cent. interest, he was allowed interest at that rate. We think that he was only entitled to legal interest. Stone v. Darnell, 25 Tex. Sup. supra. Even had the case been one for partial subrogation, Ledbetter, in equity, could claim nothing more than his money and 8 per cent. interest. Stating the account anew with interest at 8 per cent., it is found that there is a balance of $39.76 due Burns and wife, with interest from April 1,

1881.

The judgment will be reversed and rendered in their favor for that sum with interest, but will, in all other respects, be affirmed.

An Irishman was accused of some crime, and his wife tried to encourage him by reminding him. that he was certain of having an upright judge to try him. But he replied promptly, "Indade, thin, it is not an upright jedge at all I want; it's a jedge that'll lane a little. " Not a bad type of some people's theology.

CONTRACT.

HOLMES COUNTY COMMON PLEAS.

JOHN E. R. EWING ET AL.

V.

MARY J. RICHARDS ET AL.

A contract made between the father and mother of a child born out of wedlock, that the mother would surrender to the father all her claim to the custody and control of the child, in consideration that he would take the child into his family, raise him, and give him a share of his property equal with the rest of his children, when clearly and satisfactorily made out by proof, will sustain the claim of the child for an heir's portion of the father's estate. The right of action to the child to recover such share, accrues upon the death of the father. C. F. VOORHES, J.

John E. R. Ewing, Sarah M. Mitten and Innis M. Ewing, and Samuel Swartz, as administrator of the estate of John Ewing Jr., deceased, file their petition, in which they alleged that on the 18th day of October, 1831, John Ewing Jr. was born, being the illegitimate son of John Ewing, Sr. and Margaret Gushwa. That Ewing, Sr., and Gushwa never intermarried but were both afterwards married to other parties. The plaintiffs are the surviving heirs and legal representatives of John Ewing, Jr., deceased, and the defendants, Mary J. Richards and Edith Ewing are the only heirs and legal representa- · tives of John Ewing, Sr., who died on the 24th of July, 1880.

It is averred in the petition that in the month of April, 1839, John Ewing, Sr., and Margaret Gushwa entered into a verbal agreement whereby John, Sr., promis,ed and agreed in consideration that Margaret Gushwa would then deliver and surrender to John, Sr., their illegitimate son, John Jr., he would take him into his family; that he would raise him and give him a share of his property, the same as the rest of his children. That in pursuance to the agreement, John, Jr., was received into the family of John, Sr.; that he was ever after called by the name of John Ewing, Jr.; that he was regarded and treated by John, Sr., as his son; that he remained with, and obediently served his father until he arrived at the age of twenty-one years, when he was married, and he was then provided with a home upon his father's premises, and the plaintiffs were born to him as the issue of his marriage, all of whom were treated and regarded by John, Sr., as his grandchildren.

In 1861, John, Jr., volunteered as a soldier in the service of the United States, with the knowledge and approval of his father, and died on the 3d of April, 1863.

John, Sr., at his death, was possessed of personal property amounting to the sum of $11,225, and owned in real estate some seven tracts of land in Holmes county, which are described in the petition and are regarded of large value. He made a will in which he gave to Mary J. Richards, his daughter, three of the tracts of land, and to his granddaughter, Edith Ewing, he gave one

tract, having died intestate as to the last three tracts of land described in the petition.

The plaintiffs ask the decree of a specific performance of the contract made between John Ewing, Sr., and Margaret Gushwa, and that they may have decreed to them an equal onethird interest of the estate after the payment of debts.

To the petition, the defendants interpose a demurrer, stating as the reason therefor: 1st. That the petition does not state facts sufficient to constitute a cause of action. 2d. That there is a misjoinder of parties plaintiff. 3d. That several causes of action are improperly joined. 4th. That the cause of action did not accrue in six years. 5th. That the cause of action did not accrue in four years. 6th. That the cause of action did not accrue in twenty-one years.

The plaintiffs ask for the specfic performance of the contract made in April, 1839, between John Ewing, Sr., and Margaret Gushwa, which was to be performed by Ewing when he made a disposition of his estate. This he was not bound to do by the contract until he made a disposition to his other children, when John, Jr., was to have a like share with the other children.

John, Sr., made his will disposing of a part of his estate to his legitimate children, leaving a portion undisposed of. The will took effect at his death, which occurred on the 24th day of July, 1880. As to the portion of his estate that was not disposed of by his will, it remained for a disposition after his decease, so looking at the terms of the agreement and the disposition made of the estate by John, Sr., we think the right of action accrued to the plaintiffs at the death of John, Sr., and it does not occur to the court how the statutes of limitation, raised by the demurrer, can furnish a defence against the actionand this disposes of the 4th, 5th, and 6th causes assigned in the demurrer.

The second cause for demurrer is, that there is a misjoinder of parties plaintiff. If John, Jr., had survived his father, he would have been the proper party plaintiff. When he is dead we are not able to see a necessity for any person to stand in his place and demand his rights besides his children and his administrator. These are now the plaintiffs, and we think necessarily and properly and this supposed defect does not exist in the case.

The third ground for the demurrer is, that several causes of action are improperly joined in the petition. This objection is not apparent from reading the petition. In it there appears to be a brief single statement of a contract claimed to have been made between the testator and Gushwa, which was not performed by Ewing, Sr., and which is here sought to be enforced.

The first cause for the demurrer is, that it does not state facts sufficient to constitute a cause of action. This I regard as the most importantand the prime cause presented for the consideration of the court. If the plaintiffs have set forth

the contract claimed to have been made between Ewing and Gushwa, and if it, when proved as

alleged, would not secure to them the relief prayed for, then the demurrer should be sustained and the petition be dismissed.

The plaintiffs ask nothing by reason of the Ewing blood that may run in their veins. Although John Ewing, Sr., may have been as truly the father of John Ewing, Jr., as he was the father of Mary J. Richards, yet John, Jr., having been born out of wedlock and no intermarriage of his parents, he is interdicted by law from making any claim to the estate under the laws of descent. But the claim of the plaintiffs is, that their ancestor, John, Jr., was the illegitimate son of John Ewing, Sr.; that their relation was mutually recognized; that when John, Jr., was seven and one half years of age, an agreement was made between his father and mother whereby he was taken into his father's family, and there remained under his control and parental direction, rendering obedient service until he arrived at the age of twenty-one years. In consideration for said services and obedience, etc., the father agreed that he would give him an equal share in his property with his other children. It is averred that this contract was strictly kept and fully performed on the part of John, Jr., until he arrived at the age of majority, being as long as the parties had power to contract for his society or labor.

Such were the terms of the contract as admitted by the demurrer, and if the contract is such a one as a court of equity has power to enforce, then the demurrer should be overruled.

It is conceded that the contract was verbal and that it was entered into in 1839. But it is averred that by its terms, John, Jr., was to live in the family as a son and be in parental subjection to John, Sr., from that date until the time when he would be released from the obligation of further servitude by operation of law, which happened when he attained the age of majority, for which services John, Sr., obligated himself that he should have with his other children an equal division of his estate. John Jr., went into the family and service of his father and there remained for a period of some thirteen and one half years, rendering to his father obedience and service that in law belonged to his mother only, but by the contract was rendered to his father. So if it is conceded that the averments of the petition are true, there was on the part of the ancestor of the plaintiffs an exact and full performance of the terms of the contract, which he had a right to expect would bring to him an equal share with the other children of John Ewing, Sr., of his estate.

But we are reminded by the demurrer that` under the statute of frauds, contracts in relation to real estate, or any interest therein, and contracts that are not to be performed within one year from the making, must be in writing or some memorandum thereof, and signed by the party seught to be charged. If this cause must fail because it is not in writing, we presume that the one or the other of these provisions must furnish authority for its defeat.