jection to the improvement of his own property by the removal of the soil in the depression between the rocks, over the stream, and beautifying the place by opening an accessible way to the water. The mere opening of a space so that the rays of the sun can reach the water below will not of itself be a contamination or an unreasonable use of it. It is true that impurities from surface drainage might get into the stream if unprotected, and thereby pollute it, but this can be guarded against; and it is the duty of appellee to prevent the surface water from overflowing into the opening made by him. There is no sufficient showing that any serious injury has been done, or will be done with proper precaution, to the stream by reason of the opening. The maxim, Sic utere tuo ut non alienum laedas, will apply.

We do not see that we can hold, on the showing made, that appellee has diverted the water in the 606 stream. According to the testimony of the witness Campbell, superintendent of the company, there was a diversion, but Wynn and Boardman, also connected with the company, testify that if the excavation of appellee, and described in the bill of complaint, is left open and untouched it would not affect the quantity of water in the stream. Appellee denies positively that there has been any substantial diversion of the water, and as the burden of proof rests upon appellant, we cannot reverse the finding of the chancellor as to a diversion of the stream.

We do not think the testimony shows that appellee acted wantonly and maliciously in making the excavation complained of; at least, we are not authorized to reverse a decision on the proofs adverse to appellant on this point. Whether the motive with which the excavation was made, provided it was in the exercise of a legal right, would be a cause for an injunction, we need not consider. We are further satisfied that it is not sufficiently shown that appellee intended to devote his excavation to bathing purposes. There is some testimony that his son stated a bathing pool would be put in the stream in the excavation, and that appellee asserted a right to devote the stream to such uses, but the son is not a party to the present suit, and it does not sufficiently appear that he had any authority to speak for the father. It further appears from the testimony of appellee, not contradicted, that he informed the agents of appellant before the bill was filed that the stream would not be used for bathing purposes under any circumstances. Relief must always be confined to the allegations of the bill, and an examination will show the allegations of wrongdoing against 607 appellee are, in substance, that he,

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 so 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 cos it is not 608 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. Hemingway, 63 Conn. 1; 38 Am. St. Rep. 330, and note.

WATERS-RIPARIAN RIGHTS.-Each riparian proprietor is entitled 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 his 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 negligently lujure his neighbor, while in Kansas City etc. R. R. Co. v. Lackey, 72 Miss. 881; 48 Am. St. Kep. 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 neighboring 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 his 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, and 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.

AM. ST. BEP., VOL. LIIL-18

CASES

IN THE

SUPREME COURT

OF

ILLINOIS.

BOYNTON V. SPAFFORD.

LIMITATIONS OF

[162 ILLINOIS, 113.]

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-APPLICATION 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 Dett

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 appel late court, which affirmed the judgment.

Frost & McEvoy, for the appellant.

A. D. Early, for the appellee.

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, so 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 think it is well sustained by authority. nounced in the case cited, the court did not err in the proposition complained of.

Am. Rep. 47, and we
Under the rule an-

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 a portion himself. In March, 1890, certain judgments were ob