The contention of defendant's counsel that the use of this ditch is a right which cannot be interfered with, as it is a reasonable use merely for the discharge of surface water, avoids the issue. While the company has a common law, and doubtless statutory, right, freely to discharge surface water from its own premises without regard to the rights of adjacent landowners, that is not the case at bar. Surface water, in legal contemplation, is that which arises from the sources of nature, such as streams, springs, and the like, and which comes from the ordinary tillage or use of the soil. Impurities, which are naturally added to such water, in the processes of husbandry, or in its reasonable domestic use, while being discharged from the owner's premises, would. not operate to make a trespass or nuisance against an adjoining owner. But where it is alleged that this corporation persistently discharges the foul, polluted and poisonous water from its plant and outhouses through this ditch, there is no analogy to the doctrine of surface water, where in the excavation of his land, a farmer uncovers a spring, and is not required to recover it, lest the water reach his neighbor's land. The natural right of an owner of land, as held in Merrifield v. Worcester, 110 Mass. 216, 14 Am. Rep. 592, to have the water of a stream descend in its pure state, it is true must yield to the equal rights of owners above; but the law requires that each owner's use shall be reasonable, and not wanton, malicious, or destructive. Riparian rights often become gradually modified through industrial changes and the growth of communities. But the increasing necessities of manufacturing communities, located along the banks of a river, are essentially different from the use charged in the petition, where a small farm ditch, three feet wide and three feet deep, traversing private land, is utilized for purposes entirely foreign to its original construction, for the maintenance of a nuisance by discharging injurious and pestilential matter through its course to the injury of the health, comfort, and property of the plaintiff. Whether a use be reasonable or not is a conclusion of law, and the unreasonableness of such use need not be literally alleged, where all the facts in the petition, taken in connection with what may naturally and proximately be deduced therefrom, justify that conclusion. Assuming, as must be done, that the averments are true, it is obvious from a careful reading of the petition that the company made an unreasonable use of the plaintiff's ditch, and all questions of motive as to whether such use resulted from its negligence, unskillfulness, or wanton abuse, are immaterial, except to determine the question of punitive damages in a trial on the merits. The petition sets up a good cause of action, and the general demurrer is overruled.

The defendant's special demurrers attack the sufficiency in law of the several paragraphs of the petition; on the ground that these do not sufficiently itemize or state the special damages to the plaintiff's land, crops, bridges, stock, and cattle, the inconveniences suffered by reason of the alleged wrongful acts; and in addition attack the eighteenth paragraph, because it fails to inform the defendant of the time the alleged notice of the damages occasioned by the wrongful acts complained of was given, the name of the officer to whom given, and the manner of such giving.

The law on the subject of notice has been often announced in decisions by the Supreme Court of Georgia. In the early case of Bonner v. Welborn, 7 Ga. 312, it was held:

"There is no condition precedent to the recovery of the person injured in his property, or the use of it. The conclusion from these principles is irresistible, that he who does hurt or damage to another, in the use of his own property, is liable, without notice or request. There is but one exception to this rule, and that is, where the assignee of him who erected the nuisance is sued."

And, recently, in Southern Railway Co. v. Cook, 106 Ga. 453, 32 S. E. 586:

"One who erects a nuisance, and also maintains the same, is liable to any one who is injured thereby, and no notice of the harmful effects resulting from the nuisance, or request to abate the same, is necessary to maintain an action against said person."

The court then recognizes a single exception. This is where the nuisance is pre-existing on land, the ownership of which has been vested in another, in which event the law requires notice to the new owner before an action is maintainable. There is no allegation in this petition of any change of ownership, and therefore no notice was necessary to entitle the plaintiff to a recovery.

The defendant also insists that the special damages suffered must fully appear in the petition. The ancient remedies at common law for a nuisance were by the writs quod permittat prosternere and assize of nuisance. But these forms are now obsolete, and have been superseded by action on the case, and in early Georgia cases, perhaps improperly by, assumpsit. In action upon the case, "it is not necessary to prove any special damage, the plaintiff being entitled to a verdict for nominal damage at least, upon proving the nuisance." 21 Am. & Eng. Enc., Law, 712. This rule is recognized in Farley v. Gate City Gas Light, Co., 105 Ga. 323, 31 S. E. 193, as follows:

"Where in the trial of an action to recover damages for a continuing nuisance, the jury find that the plaintiff has suffered no special damage, and yet find that a nuisance exists, a verdict for nominal damages is proper."

The principle is varied only in the case of public nuisances, where special injury and damage to the particular individual must be alleged. Civ. Code Ga. 1895, § 3859. But the right of action in the case of a private nuisance exists without such averment. Id. §§ 3860, 3807, 3910. Now, the plaintiff has here alleged that the ingredients discharged through the ditch in question "eats up the soil of said ditch. and injures the land adjacent thereto, and kills all vegetation with which it comes in contact when the said ditch overflows, as it frequently does and covers the low lands" of petitioner. Without allegations of special damage other than this, were such facts sustained by proof, in connection with the allegations of nuisance, they would justify a verdict by a jury of at least nominal damages for the plaintiff. This is sufficient, for at least some recovery; but in addition, the plaintiff has in separate paragraphs itemized all the special damages alleged to have been suffered. "In an action for a private nuisance, a general allegation of damages is, as a rule, sufficient, and under it, the plaintiff may recover all damages that are the natural and necessary consequence

of the nuisance." 14 A. & E. Enc. Pl. & Pr. 1111. Under general allegations, all damages which are the ordinary and obvious consequence of the acts complained of are recoverable. 5 Enc. Pl. & Pr. 732. But, while in all the particular allegations of which the defendant claims he is entitled to notice, the detailed items declared upon are not essential to the existence of the plaintiff's cause of action, or his recovery thereon of general damages besides those special damages which naturally and directly flow from the alleged tortious acts-if those allegations are sustained by proof-yet in certain paragraphs, it would seem just to the defendant that he should be more exactly apprised of the items of special damage claimed.

The first paragraph of the special demurrer, to the effect that the allegations in the third and sixth paragraphs of the petition do not inform defendant with sufficient certainty of the area or location of the premises, is overruled. Minute detail of pleading in an action of this nature is not required, but may be proper matter for proof upon trial. This applies to the contentions also of the second paragraph of the demurrer, that the exact manner of the injury must be alleged, and of the third paragraph, that the number of bushels of beans, cabbages, and other vegetables destroyed should appear. This is alleged with ample fullness in the eighth paragraph; and, besides, the destruction of these growing crops is a direct and proximate damage from the alleged wrongful use of the ditch, and under the rule stated need not be more exactly described. The second and third paragraphs of the special 'demurrer are overruled.

The ninth paragraph of the petition alleges that in 1902 petitioner "lost and was deprived of the use for farming purposes of 11⁄2 acres. of his said low land, which he was unable to plant on account of the conditions aforesaid" to damage in the sum of $280, "and lost his hay crop of two acres of said lowland" to damage in the additional sum of $90. It is not clear from the language used whether the hay crop lost was actual and growing, or only prospective. But the item of $280 in its present form is too remote to make a legitimate charge against the defendant, and the whole paragraph should be amended to a form more capable of computation. The adaptability of the land for a certain crop or crops, and the estimated values of the same, should be set out more definitely.

The same objection applies to the claim of $280 in the tenth paragraph of the petition. The damages sought are not proximate to the alleged injury, and the defendant ought to be put more fully on notice. as to the character of the claims. It is alleged in the same paragraph that $700 were laid out and expended by petitioner "in planting and preparing crops upon the residue of six acres of said low land." As this is an actual direct loss, I deem it sufficiently alleged. But the item. following, that "petitioner was damaged in the said year 1903 in the sum of $990, the net profits your petitioner would have realized and was entitled to from said crop, which was totally destroyed by the said wrongful acts of the defendant corporation above complained of," is too indefinite in its present form, and the facts upon which the estimate is made should be stated. Nor is it clear from the language

whether the crops were actually growing, or would have grown, what they were, the quantity, and manner of destruction.

The eleventh paragraph makes a general claim of $990, in that petitioner in 1904 "was unable to use any of the aforesaid six acres of low land for any purpose whatsoever." This is entirely too vague and speculative, and states neither the adaptability of the land for certain crops, the estimated quantities or values, or why petitioner "was unable to use" the land in question. The reason may be discovered only by a remote connection with other paragraphs of the petition.

The twelfth paragraph, which alleges prospective spring crops for 1905, fails to indicate their nature or values, or how petitioner was damaged in the sum of $750.

The thirteenth paragraph, claiming $1,050 damages for injury to two acres of land, while the cause of the injury is stated, is otherwise open to the objections of previous paragraphs.

The fourteenth paragraph alleges actual damages in the sum of $100 for the destruction of two bridges. The averments show that these damages were proximate to the nuisance complained of, are sufficiently full, and the ninth paragraph of the special demurrer is overruled.

The fifteenth paragraph alleges $1,000 damages to the petitioner, by reason of "great annoyance and inconvenience" from the circuitous route of getting from one part of his farm to the other by reason of said intervening ditch, and for loss of time. This will be maintained as it stands, and the tenth paragraph of the demurrer overruled.

The sixteenth paragraph alleging $100 damages, for the necessary penning up of plaintiff's cattle to keep them from drinking the refuse matter, claims damages reasonably proximate, and the eleventh paragraph of the demurrer as to the sufficiency of the same is overruled. The seventeenth paragraph claims $20,000 damages for the impairment "of the productiveness and fertility of about eight acres of petitioner's land," alleging that "it will be about 20 years after said nuisance is abated * *before said land will be restored to the condition in which it was before said defendant corporation committed the acts complained of." This is too remote and uncertain as it stands, and the basis of so large an estimate from the present damage claimed ought to be more fully set forth. As it stands, it is open to the objection of being the mere expression of opinion and conclusion on the part of the pleader.

The eighteenth paragraph claims $5,000 damages, by reason of the willful, unlawful, and wrongful acts of the defendant, in spite of notice to desist therefrom. The foundation for vindictive or punitive damages is properly laid, the injury to health, the discomfort, and the consequences of the alleged nuisance are in detail set out, and the paragraph is not open to the objections raised by the thirteenth paragraph of the demurrer.

The general demurrer is overruled, and the special demurrer sustained, only in respect to the particular items indicated, which may be amended as suggested, in order that the defendant may be more fully apprised of the nature of those damages claimed.

In re JONES.

(District Court, W. D. Michigan, S. D. February 26, 1907.)

1. BANKRUPTCY-DEBTS ENTITLED TO PRIORITY-EVIDENCE.

While a verified petition for the allowance of a claim in bankruptcy is prima facie evidence of the validity of the claim itself, on which it may be allowed as a general claim, allegations therein of facts to establish the right of such claim to priority are not to be taken as prima facie true, but must be proved by evidence.

2. SAME STATE LAWS GIVING PRIORITY.

The principle controlling the construction and effect of Bankr. Act July 1, 1898, c. 541, § 64b (5), 30 Stat. 563 [U. S. Comp. St. 1901, p. 3448], which provides for giving priority to debts owing to any person who by the laws of the state is entitled to priority, is that the creditor shall be allowed the same priority under the bankruptcy act which he would have had if such act had not superseded the state laws governing the distribution of the estates of insolvent debtors.

3. DEBTS DUE AS GUARDIAN-MICHIGAN STATUTE.

Comp. Laws Mich. § 9675, which provides that the assignee of an insolvent debtor "under this title" shall pay in full all debts owing by the debtor as guardian, etc., is not a law of the state of such general character as gives priority to a debt due from a bankrupt as guardian, under, Bankr. Act July 1, 1898, c. 541, § 64b (5), 30 Stat. 563 [U. S. Comp. St. 1901, p. 3448], being applicable only in special proceedings under that title, which by reason of their requiring the joinder of the insolvent and twothirds of his creditors have seldom been resorted to for the distribution of estates of insolvents.

In Bankruptcy. On review of decision of referee.

C. W. Hendryx, for petitioners.

G. M. Valentine and Chas. E. Sweet, for trustee and creditors.

KNAPPEN, District Judge. The bankrupt at the time of his adjudication was guardian of 13 Pottawatomie Indian minors, under appointment of the respective probate courts of various counties of Michigan in 9 separate estates; the guardianship funds being moneys paid under congresssional appropriations on account of claims held by that tribe against the United States government. At the time of his adjudication the bankrupt, as such guardian, owed to these 9 respective guardianship estates sums ranging from $150 to $770, and aggregating $3,709.54. The bankrupt, neither personally nor otherwise, caused any claim to be presented against the bankrupt estate on account of the indebtedness referred to. The sureties upon the respective guardianship bonds given by the bankrupt accordingly filed before the referee proofs of the respective claims, and petitions for the allowance of the same as prior claims-the grounds of alleged priority being, first, that the debt in question, being one owed by a guardian, is entitled to priority under the laws of Michigan, and therefore so entitled under section 64, subd. b(5), of the bankrupt act (Act July 1, 1898, c. 541, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3448]); and, second, that the bankrupt estate has been increased by the receipt of the guardianship money by the bankrupt the allegation in the proof of claim being "that said sum so obtained of said minor Pottawatomie Indians aforesaid was used by the said guardian aforesaid and mingled with his own property, that