Erro o circuit court, Wayne county. Okey Johnson and Z. T. Vinson, for plaintiff in error. Simms & Enslow, for defendant in error. guides to direct their disbursements. In Dyer v. Covington, 19 Pa. St. 200, it was said an action does not lie on such paper. It is neither a bill, note, check, nor contract. See 1 Daniel, Neg. Inst. §§ 427, 428, BRANNON, J. C. H. Burgess instituted an 434, and note 5. Our statute has given no action of assumpsit in the circuit court of action on them, only the mandamus. In Wayne county, which, on his death, was the school law under which Canby v. Board revived in the name of G. F. Ratliff, his ad- was decided there was no express prohibiministrator, against the county court of tion of a suit against a board of education; Wayne county, in which the defendant but by section 59, c. 39, Code 1868, as found pleaded non-assumpsit, and the parties in chapter 114, Acts 1872-73, (the law in waived a jury, agreed to the facts, and sub-force when these drafts issued,) and by secmitted the case to the decision of the court, which, on the 14th day of September, 1887, rendered judgment for the defendant, and to that judgment the paintiff has taken this writ of error. The action is based solely on two orders of $1,250 each, drawn by said county court on the sheriff in favor of James Morris,-one payable out of the levy of 1875; one out of that of 1877,-with interest from 1st December, 1875. There is but one count in the declaration, based only on said orders. tion 41, c. 39, Code 1887, (the law in force when this suit was brought,) it is provided that no suit shall be brought against a county for any demand based on contracts, except an order on the county treasury, until it has been presented to the county court and disallowed. Here a county order is excepted from the total prohibition of suit. But a provision in both those statutes provides the special remedy of mandamus for such order to compel a special levy for it; and, taking this in connecThe question arises whether an action of tion with the provision that a copy of a assumpsit lies upon said orders. We hold judgment shall have the force only of an that the action of assumpsit cannot be order, and exempting all county property maintained. This court, in Canby v. Board, from execution, the manifest intent is to 19 W. Va. 93, held that upon an order on save the county from suits on such claims the sheriff for payment of money issued except by mandamus. If the school law by a board of education, which he had not justified the court in Canby v. Board in holdcollected from the sheriff, no action of as- ing that assumpsit would not lie on a sumpsit could be maintained; but the sole school order, for a stronger reason, in view remedy was to present the order to the of the express prohibition of a suit against board, and, if it refused to provide for its the county, can it be held that it will not payment, to compel it by mandamus. The lie on a county order? If said orders are features of the statute on which that decis- evidence of a still subsisting liability against ion rested are, so far as it respects the mat- the county court, and it refuses to provide ters involved in the decision of this case, funds for their payment, then the remedy similar to the features of chapter 114, Acts is by mandamus and the statute to compel 1872-73, pertinent to this. In all these re- said court to levy a fund for their payspects that case is analogous to this. ment; but if the county court has provided There there was a count on the order, and funds, and the sheriff fails to pay said oralso common counts. The court held that ders, the remedy is by notice against the the special count on the order could not be sheriff, under the statute to compel such maintained. There an order had been giv-payment. If, however, said orders are not en, and the opinion of the court by HAY- a still subsisting liability, then the plaintiff MOND, J., says that, as soon as the order | may, by any proper action, sue the county was given in evidence, it defeated recovery on the original cause of action, if any exists. on the common counts. Therefore, under that case, when an order is given, there cannot be a suit on the original debt; but the creditor must obtain payment of the sheriff if he can; and, if he cannot, he must ask the county court to provide for the order, and on its failure proceed by mandamus. Section 43, c. 39, Code 1887, exempts the land, buildings, furniture, and books of a county from execution or other process, but provides that when any demand against the county has been disallowed, or any order on the county treasury, or judgment, or decree has been presented to the sheriff without obtaining payment, the creditor of the county may obtain a mandamus compelling the county court to provide for its payment. Why allow a suit on it? The judgment could not be enforced. A copy of it would only have the force of an order on the treasury, and that the plaintiff already had. Such orders as these have, except in a few cases, been held by courts not as notes or evidences of debt importing promises to pay, on which actions could be maintained, but only as vouchers for disbursing officers, and as As assumpsit does not lie upon said orders, the judgment aforesaid must be affirmed, without prejudice to the plaintiff in error to proceed by any proper proceeding against the county court or sheriff. As we hold that assumpsit does not lie, we express no opinion upon the law arising on other facts agreed in the case. SNYDER, P., and GREEN, J., concurred. ENGLISH, J., absent. TAYLOR V. BALTIMORE & O. R. Co. (Supreme Court of Appeals of West Virginia. Sept. 13, 1889.) RAILROAD COMPANIES-BRIDGES-EVIdence. 1. Though a railroad company has under its charter the right to bridge a stream, it must do so in a proper, skillful manner, leaving ample way for the passage of the water, so as to save riparian owners from overflow; and if it fail so to construct its bridge, and by reason of its bridge structure narrowing the natural channel, backwater is caused, overflowing the premises of a riparian owner and causing him damage, the company is liable. 2. Where a person or corporation is vested with authority by the legislature to do an act, it will be protected from all responsibility, and liable to no suit at law or equity, provided what it is authorized to do is done carefully and skillfully, though without such authority it would have been a nuisance, but, if done carelessly and unskillfully, and damages result from such carelessness and want of skill, it will be responsible. 3. Where illegal evidence is admitted, against objection of a party, it will be presumed that it prejudiced such party, and if it may have prejudiced him, though it be doubtful whether it did or not, it will be cause for reversal of the judgment; but if it clearly appear that it could not have changed the result,-that, if it had been excluded, the same result would have followed,-it will not be cause for reversing the judgment. 4. If in such case there is a demurrer to evidence, and an alternative verdict, and, after disregarding upon such demurrer such illegal evidence, and treating the balance of the evidence as is proper under the rules applicable to demurrers to evidence, there is plainly enough evidence to sustain a judgment for the demurree, the admission of such illegal evidence will not reverse; otherwise it will. 5. Opinions merely of a witness are not generally admissible evidence. Point 2 of syllabus in Hall v. Lyons, 29 W. Va. 410, 1 S. E. Rep. 582, approved. (Syllabus by the Court.) Error to circuit court, Ritchie county. J. A. Hutchinson, for plaintiff in error Okey Johnson, for defendant in error. BRANNON, J. In August, 1886, James Taylor brought an action of trespass on the case in the circuit court of Ritchie county against the Baltimore & Ohio Railroad Company, to recover damages caused by the overflow of his premises during a freshet in Hughes river, which overflow was caused by a bridge over said river on the Parkers burg branch of the Baltimore & Ohio Railroad, as he alleged. The defendant demurred to the declaration, and its demurrer was overruled. It demurred to plaintiff's evidence, and the demurrer was overruled. It moved the court to exclude the plaintiff's evidence, and its motion was overruled. A verdict was rendered by a jury in favor of plaintiff for $400 damages, subject to the opinion of the court on the demurrer to the evidence. The court overruled a motion for a new trial, and rendered judgment for plaintiff for said damages and the costs. The company obtained a writ of error and supersedeas. Counsel for appellant raises a preliminary question by his contention that, as no demurrer to the evidence is found in the record, this court must at once reverse the judgment, set aside the verdict, and remand for a new trial, and go no further. The record states that, "the plaintiff and defendant having closed their evidence, the defendant tendered its demurrer to the evidence of the plaintiff, and the plaintiff joined in said demurrer, which is signed and made part of the record, and thereupon the jury was directed to find their verdict in the alternative, subject to said demurrer." A verdict subject to such demurrer was returned. On another day the record states that, "the court, having considered the demurrer to the evidence, taken by the defendant and joined in by the plaintiff, and having, maturely considered the matters of law arising on the said demurrer to the evidence, is of opinion that the said evidence is sufficient in law for the plaintiff to have and maintain his action," and proceeded to render judgment. shows that the defendant excepted to cerThis same order tain opinions of the court, and tendered two bills of exceptions, Nos. 1 and 2, which were made part of the record. No. 1 is for admission of evidence, to which defendant objected; No. 2 sets out in full the evidence of the plaintiff's witnesses as given, and shows that the defendant moved the court to exclude it from the jury, that the court refused to exclude it, and that to such ruling the defendant excepted. This exception certifies that the evidence in it contained was all the evidence given by the plaintiff in chief. It gives the evidence on direct and cross-examination. No formal demurrer to the evidence appears in the record, and the clerk certifies that the demurrer to the evidence "is not now on file in the papers of this cause." It is not necessary in this case to say where a case is decided only upon a dewhat should be the action of this court murrer to the evidence, and that demurrer is lost, and not produced in the appellate court, as it may be decided on other grounds. The record distinctly states that dence, and that it was passed on by the there was a demurrer to plaintiff's evicourt. If it were before us, what more would it show? It would recite the plaintiff's evidence. That evidence is found in full in bill of exceptions No. 2, and this want is supplied; so that all the purposes which such formal demurrer could answer are answered by the said orders and that bill of exceptions. We are authorized to look into that bill of exceptions for this purpose, as it states that it contains all the evidence given by the plaintiff. Though one bill of exceptions cannot be inspected to aid another, unless that other refers to it, yet, where a bill sets out all the evidence, it may be looked to in considering a question raised in another exception. Hall v. Hall, 12 W. Va. 2. The record pointedly says that the defendant demurred to plaintiff's evidence; and that evidence is here in the record, and the court certifies it to be all the plaintiff's evidence. In Lee v. Bridge Co., 18 W. Va. 299, the demurrer had only the plaintiff's evidence, and the court held that "upon a demurrer to evidence, where the evidence is wholly that introduced by the plaintiff, the demurrant admits not only the truth of the facts proved, but also all that may be fairly inferred from those facts." Under these circumstances, there can be no good and solid reason for overturning the judgment on this ground. The demurrant can have the benefit of his demurrer in the mode he took. And if no error affirmatively appear there can be no reversal, even if the demurrer, if here, should present a different appearance, and show error; for error must affirmatively appear. 4 Minor, Inst. 870, 871; Richardson v. Donehoo, 16 W. Va. 685. No defect in the declaration is pointed out, and I discover none, and therefore there is no error in overruling the demurrer to the declaration. Did the court err in overruling the demurrer to evidence and the motion to exclude the evidence? Upon such motion to exclude and demurrer certain well-settled principles apply. In the language of the opinion of this court prepared by Judge GREEN in Franklin v. Geho, 30 W. Va. 34, 3 S. E. Rep. 168: "As a demurrer to evidence, or a motion to exclude from the jury the plaintiff's evidence, withdraws from the jury-the proper triers of facts-the consideration of the evidence by which they are to be ascertained, the party whose evidence is thus withdrawn from its proper forum is entitled to have it most benignly interpreted by the substituted court. See Schwarzbach v. Union, 25 W. Va. 642; Miller v. Insurance Co., 8 W. Va. 515. In such cases the law is, as stated by Judge STANARD, in Ware v. Stephenson, 10 Leigh,164: In determining the facts inferable from the evidence, inferences most favorable to the demurree will me made in cases in which there is grave doubt which of two or more inferences shall be deduced.' And, again, he says: When the question is whether or not a fact ought to be taken as established by the evidence either directly or inferentially in favor of the demurree, I do not know a juster test than would be furnished by the inquiry: Would the court set aside the verdict had the jury on the evidence found the fact? If the verdict so finding the fact would not be set aside, it ought to be considered as established by the evidence demurred to."" This doctrine is laid down also in Fowler v. Railroad Co., 18 W. Va. 579, and Heard v. Railroad Co., 26 W. Va. 455. And in the latter case it is held that the rule for determining what facts shall be considered as established in cases of demurrer to evidence, when all of it is adduced by the demurree, is, the court shall regard the demurrant as necessarily admitting by his demurrer not only the credit and truth of all the evidence, but all inferences of fact that may be fairly deduced from it, and that most favorably to demurree; and, unless there is a decided preponderance of probability or reason against the inference that might be made in favor of the demurree, such inference ought to be made in his favor. 2 Tuck. Bl. Comm. 297. The evidence of the plaintiff is voluminous. It tends to show that on 13th May, 1886, the plaintiff owned a tract of land on North fork of Hughes river, on which were a water grist and saw mill and dwelling house, and that a freshet overflowed his land, inundated his mills and dwellinghouse and well of water, sanded his meadow, and destroyed his garden, and inflicted severe injury upon him; that about a mile below his dwelling and mills, near his lower line, was a railroad bridge over said river, called the "Lavelle Bridge" on the NorthWestern Virginia Railroad,commonly called the "Parkersburg Branch of the Baltimore & Ohio Railroad," then in the possession and under the control of the defendant company. This bridge was built in 1858. In September, 1885, this company built additions to the abutments, to make a change in the line of the bridge, which additions narrowed the water-way or opening six feet from what it had been up to that date, from top of the abutments to the surface of the water, in ordinary stage, 26 feet 4 inches. Prior to these additions, there had been deposited in the stream at the base of each abutment broken rock and clay, taken out of a tunnel near by, which sloped off from the abutment towards the center of the channel. Part of this was removed, to make way for the additions to the abutments; but part remained, and occupied a considerable space in the channel, at the bases of the abutments, according to several witnesses. One witness measured perpendicularly from the tops of the abutments down to this rubbish, and made it at one corner of one abutment 18 feet, at the other 23% feet; and at one corner of the other abutment 20 1-6 feet; at the other, 17 1-6 feet, whereas he made the distance from the bridge, even with the top of the abutments, to the water in the center of the channel, between the abutments, 27 feet. The distance between the abutments is 92% feet. Embankments, constituting the track approach to the bridge, extend clear up to the abutments, so that the only passage for the water is between the abutments. One witness (McCullom) measured the river's natural channel from the top of the banks just above and just at the bridge at 137% feet, and states that the difference in the width of the channel between the abutments and the natural channel above would be the difference between 92% and 137% feet. (Likely, in view of other evidence of measurement, and as he gives it as 157% in another part of his evidence, this is a clerical or typographical error in the 137%, and it should be 157% feet.) This witness also says this rubbish, considerable in amount, narrows the channel, and that at low water it is only 25 feet, but much wider above the bridge. Another witness, E. J. Taylor, made measurement of the natural channel from top of bank to top of bank, making it 163 feet, square across at the bridge; and following the line of the bridge, which is oblique, 186 feet; and square across, at a point 75 yards above the bridge, 160 feet. The river is of about uniform width in the vicinity. A bridge over the same river on the same railroad, called the "Straight-Line Bridge," a quarter of a mile below the Lavelle bridge, which is the bridge in question, has a span between the abutments of 110 feet, is 26 feet 9 inches high. The rise of water in this freshet at Taylor's mill was 24% feet; half-way between it and the Lavelle bridge, 25% feet; between its abutments 25 feet, or within 18 inches of the bridge cord; whereas it wanted 7 feet of reaching the bridge cord of the bridge a quarter of a mile below, showing a rise there of about 19 feet; and the rise at Cairo, 11⁄2 miles below, was 19 feet. For 2 miles below plaintiff's mills, and a distance not given above, the water in this freshet was not out of the banks except at one or two very low places, and disturbed nothing except on plaintiff's farm. All the witnesses who are acquainted with the stream and the bridge declare that the rock and clay piled around the bases of the abutments impede the channel, and that the additions to the abutments also obstruct the water, and both make the reflow much greater than before the additions; and the plaintiff says the additions cause an increased height of water at his mill-dam of 5 feet. He attributes his damage to this addition and rubbish. He states that before the addition it took a pretty large rise to stop grinding at his mill,-a rise of 2 or 3 feet; afterwards 1-foot rise would stop it. There # # was a freshet in 1875, higher than this | Vt. 102. In March v. Railroad Co., 19 N. freshet; rising in plaintiff's house 7 inches. H. 372, it was held that "a railroad corpoThe timber lodged against this bridge, and ration has no right to interrupt or divert there was a drift a quarter of a mile above the natural flow and course of the water of it, choking the entire river, and carrying a stream, to cut it off from those below, or to away the bridge. There was another in flow it back upon those above their road. 1876, higher. There was one between 1876 They must provide by culverts, bridges, and 1886, which was 11⁄2 inches high in plain- and other means that the water may flow tiff's house. Plaintiff, in his evidence, says uninterruptedly in its accustomed chanthat but for the bridge he would receive no nels; and if they neglect so to do they are damages from freshets, and that the addi- liable to the party injured in an action for tions to the abutments greatly increase the damages. *If, however, it should reflow on his premises. Under the evidence, be found impracticable in any particular especially when weighed by the principles case to construct a railroad without obby which evidence is to be weighed under structing the natural course of a stream of a demurrer to evidence, it must be held that water, private interest must then yield to this bridge, if it did not wholly cause, ma- public necessity, but compensation must terially increased, the reflow upon the plain- be made to the sufferer. A railroad corpotiff's property. The bridge, as it was be- ration have no more right to cover one's fore the additions to the abutments, was land with water without compensation probably inadequate for the stream, being than they have to cover it with the earth 12 feet narrower than the one just below. and rocks and rails of their track." A railAfter continuing it of that width for 27 road corporation in New York, though auyears, the company, by such additions, ma-thorized by the legislature to cross a stream, terially narrowed it to the extent of 6 feet if done in such manner as not to impair its in width by 261⁄2 in height, and, in addition, usefulness, is liable for damage to land not left rubbish of rock and clay around the on the stream by an overflow of its waters base of each abutment considerable in caused by the construction over the stream amount, thus further materially and unnec- and through its banks, whether the stream essarily narrowing the water-way, and be a public highway or a private water thus either wholly caused or aggravated course. The corporation, not being ownthe plaintiff's damage. A railroad com- ers, required legislative authority to cross. pany, though it has a charter to build its They were bound, in crossing the stream, road, and the incidental right to bridge by the same obligation which would have streams, must so use its powers as not to bound a private owner of the land and injure others. It falls under the legal max- stream had he bridged it. Brown v. Railim, sic utere tuo ut non alienum lædas. It road Co., 12 N. Y. 486. It appeared in that is engaged in a lawful and beneficial work, case that the damage was done to the plainit is true, but if in that work it hurt an- tiff by flooding his land in a freshet, caused other by unskillful, improper construction, by defendant's bridge, against which floodthat other has, without fault on his part, wood stopped, and the waters of the stream sustained damage for which he must be were thereby set back on plaintiff's land. compensated by the party from whose act The bridge had been built by another corthat damage comes, though that act be poration, whose road had afterwards bedone under lawful authority. The com- come the property of defendant. In Lawpany must construct bridges adequate to rence v. Railroad Co, 16 Q. B. 643, damage allow the passage of water of streams in was caused by constructing the road withstages which may reasonably be expected out leaving sufficient openings for passage in the section where the bridges are situ- of flood-waters, whereby the water was ated. The grant of the franchise by the forced on plaintiff's land. It was held that, state is not to be construed to allow it to though the road was built where the act be so used as to inflict damage to the citi-pointed out it should be, and the act did zen which by any reasonable precaution can be avoided. Why should a corporation, though armed with a charter, any more than an individual, engaged in a work for its gain, be allowed to inflict damage without compensation? The question is, did the damage arise by reason of the bridge? Does the bridge narrow the passage by an invasion of the natural channel, thus lessening its capacity to pass the water below what would be its capacity in its natural channel? Would the damage have occurred had not the bridge been present? If these questions are answered in the affirmative, the company is liable, unless it be a pure actus Dei. A railroad company building and maintaining as part of their road a bridge across a river in such manner as to obstruct the passage of the water are liable to an action of tort by the owner of the land thereby overflowed, unless they show they have taken reasonable precautions to prevent unnecessary damage to the land. Per BENNETT, J., Norris v. Railroad Co., 28 not require the defendant to make the openings, yet, as by proper caution they might have avoided the injury, they were liable. See Ang. Water-Courses, §§ 465c, 465d, and 465e. A town, in building a highway across a natural stream, should provide for and maintain a free passage of the water, so that it may not be obstructed and pent up in such a manner as to flow back on land belonging to the riparian proprietor. Haynes v. Burlington, 38 Vt. 350. In this case, POLAND, C. J., said: "In the case of an individual owner of a strip of land of suitable width for a highway, who should build a road upon it, he would by ordinary legal principles be bound to do it in a prudent and reasonable manner, and so as to avoid doing any unnecessary damage to persons owning lands adjoining. And so, if such person had occasion to build his road over a natural stream or water-course, the law would require him to provide some suitable and sufficient means for the passage of the water, so that the adjoining proprietors should not suffer damage by its being obstructed. Substan-it. But I do not deem it necessary to so tially the same obligations to the owners of decide, for the company is guilty of neglilands adjacent to the highway, we consider, gence in invading materially the natural are devolved upon towns in the building channel of the stream, and maintaining a and maintaining their roads." In Massa-bridge of inadequate water-way, when it chusetts it is well settled that in all cases was within its power to provide one amply where a highway, turnpike, bridge, or other adequate to allow a safe passage of the way is laid across a natural stream, it is water. In Spencer v. Railroad Co., 23 W. the duty of those who use the franchise or Va. 427, in the opinion, the law is stated privilege to open bridges or other means with enough liberality towards those exfor free passage of water, so that it shall ercising an authority conferred by law, not flow back on lands, and to keep it so as and inflicting hurt upon others, as follows: not to obstruct the stream. Rowe v. Bridge "Now, it is well settled, and universally Corp., 21 Pick. 344; Ang. Water-Courses, admitted, that where a person or corpora§331b; 2 Hil. Torts, c. 36, § 18. The owner tion is vested with authority by the legisof a dam, though erected on his own land, is lature to do an act in regard to which they answerable to a neighbor for injury to his will be perfectly protected from all responland in times of ordinary freshet, occa-sibility, and will be liable to no suit, either sioned or enhanced by the dam. In erect- at law or in equity, provided that what they ing his dam he is bound to regard his neigh- are authorized to do is done carefully and bor's rights and security; not only in or- skillfully, though without such authority dinary stages of water, but in those stages it would have been a nuisance, but, if done occasioned by ordinarily recurring freshets. carelessly and unskillfully, and damages reIf by his dam he aggravates the injury of sult from such carelessness and want of an ordinary freshet, he will be responsible. skill, they will be responsible." This rule He ought to provide against this in erect- holds them responsible for want of skill, ing his dam. If he cannot, then it is a case carelessness, negligence. When the legislain which he must prove a license from his ture grants a charter or privilege to perneighbor to suit the exigency, or not erect form a work, it is always with the underit at all. Casebeer v. Mowry, 55 Pa. St. standing that it is to be exercised in such 419, 423. In the case in hand the abut- manner, where possible, as not to injure ments and fills approaching them invaded others. An action will not lie for injury the natural channel, and contracted it, at "from the execution of powers given by least 65% feet, as it left a passage of only 92 act of parliament; those powers being exfeet, whereas the natural channel was 157%. ercised with judgment and caution. But The water was much higher above than if the statutory powers are exceeded, or just at the lower side of the bridge, and are not strictly pursued, or are carelessly the pitch or descent of the water between and negligently done, an action is mainthe abutments was very observable, and tainable. 2 Add. Torts, § 1, c. 16. the current great. The height of the water at this bridge was 25 feet, while a quarter of a mile below at the other bridge, and at Cairo, 11⁄2 miles below, it was 19 feet, though several considerable streams came in below this bridge, and the natural features of the channel and banks in the intervening section were about uniform. No harm was done by the stream, except for a mile or so above the bridge. The conclusion is strong and decided that the plaintiff's damage sprung from the bridge; in fact, we may say, from the additions to its abutments, and the deposit of broken rock and clay at their bases. It is argued that the damage came from an extraordinary freshet, and defendant is not liable, because that was the act of God. In McGraw v. Railroad Co., 18 W. Va. 364, will be found this definition of the act of God: "Such an accident as could not happen by the intervention of man,―as, storms, lightning, and tempest; those losses that are occasioned by the violence of nature, by that kind of force of the elements which human ability could not have foreseen or prevented,-such as lightning, tornadoes, sudden squalls of wind, an extraordinary convulsion of nature; a direct visitation of the elements, against which the aids of science It is argued that, as the company was and skill are of no avail; physical causes authorized by the legislature to build its which are irresistible, which human foreroad, it is not liable. In England, parlia- sight and prudence cannot anticipate, nor ment is omnipotent, and may give the right human skill and diligence prevent,-such as to take private property for public use loss by lightning, storms, inundations, and without compensation, but our constitu- earthquakes, and the unknown dangers to tions prohibit the taking it, for even public navigation which are suddenly produced by use, without compensation. Varner v. their violence,-are the acts of God, or inMartin, 21 W. Va. 534; Cooley, Const. Lim. evitable accidents." But this case does not 530. Under the constitution of 1872 private come up to the standard of that definition. property can neither be taken nor damaged Such freshets as this had often occurred, and for public use without compensation. were necessarily to be anticipated, and came Though the charter under which this rail-in the usual order and course of nature in road was built was enacted long before that section; and engineering and mechanithis constitution, when the constitution cal skill were at hand and adequate to meet prohibited only the taking, not the dam- such a freshet, and that, too, with a reaaging, of property without compensation, sonable expenditure. It was simply a high yet it was in force when these additions rise, not an extraordinary one. In Wood, were made to the bridge abutments, which Nuis. § 347, treating of dams, it is said: additions damaged the plaintiff's property; "The water may be raised by a dam, so as and therefore it may be said the company to keep it up to his neighbor's line, but he would be liable under the constitution of is bound at his peril not to raise it above 1872, even if it would not have been before the line, so as to flow his land; and he will v.10s.E.no.2-3 |