It would seem to me that, thus read, no one could construe that by this section Congress intended to release any offenders against the former laws from prosecution. But, if these statutes are repugnant, as it seems to me, when so read together, they are not, it is a familiar rule that seemingly repugnant statutes must be so construed, if possible, as that both shall stand. "Repeals by implication are not favored, and will not be decreed, unless it is manifest that the Legislature so intended. As laws are presumed to be passed with deliberation and with full knowledge of all existing ones on the subject, it is but reasonable to conclude that in passing a statute it was not intended to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is not only irreconcilable, but also clear and convincing, and following necessarily from the language used, unless the later act fully embraces the subject-matter of the earlier, or unless the reason for the earlier act is beyond peradventure removed. Hence, every effort must be used to make all acts stand, and if, by any reasonable construction, they can be reconciled, the later act will not operate as a repeal of the earlier." Am. & Eng. Ency. of Law [Old Èd.] vol. 23, p. 489.

Bringing these two sections together, as I have done, and reading them together, in view of the foregoing rule, can they be reconciled and both be made to stand? Let us not forget or leave out the words, "but such causes shall be prosecuted to a conclusion in the manner heretofore provided by law." The words "in the manner" show to my mind conclusively that this last clause relates only to the mode or method of procedure. Let us read this clause in connection with the words, "the amendments herein provided for shall not affect causes now pending." Shall not affect them how? Certainly, in the face of section 13 and in connection with the words "in the manner," as to that only as to which they could affect them, namely, the procedure. And what amendments are referred to? Clearly none other than the amendments relating to the procedure. If we are to attribute to Congress the wisdom and learning attributed to them in the argument, they knew that where the procedure was changed all actions, civil or criminal, whether then pending or thereafter brought, would thereafter follow the new procedure. "Even where prosecutions and rights of action under a repealed enactment are preserved by a saving clause in the repealing act, yet, after the latter takes effect, they must be carried on and enforced in conformity with the provisions of the repealing statute, the one repealed being preserved only to the extent of furnishing the right of action or prosecution, not the practice or mode of procedure." Endlich on the Interpretation of Statutes, 487. And, if as to actions then pending, they wished that the former provisions as to the procedure should remain in force, as I have said above, it was necessary that they should insert these words in section 10 after the repealing words. And it seems to me that, using this language which points directly to the mode of procedure, they could have intended nothing else. It seems to me that, not only may the two sections be thus clearly harmonized and made to stand together, but that they must be thus harmonized, and that the intention of Congress is thus made clear. And I think the interpretation that Congress intended by these words to release any class

of offenders against the former laws from penalty, forfeiture, or liability is a forced and perverted one.

In the foregoing I have assumed that changes have been made by the Hepburn law in the mode of procedure, not only in civil causes, but also in criminal causes, as is contended by counsel for the defendants. I think, however, there is much force in the contention of counsel for the government that the words "causes now pending" were intended by Congress to refer only to civil causes. Counsel for the defendants have pointed out to me provisions in the Hepburn law making certain things criminal which had not theretofore been criminal and changing the penalties for crimes under the former laws; but these do not touch the procedure in the prosecution of such crimes, and, indeed, it is difficult to see, as counsel for the government contends, how such procedure could have been changed. Admitting, as I think we must admit, that the word "causes" is broad enough to include both civil and criminal causes, yet, under the rule above given in relation to reconciling seemingly repugnant statutes, if a word of broad meaning is used, but if by giving to it a narrower meaning we can reconcile the seemingly repugnant provisions, and especially if the context shows, by reasonable interpretation, that the narrower meaning was intended, it should be construed as having that narrower meaning. If we give to this word this narrower meaning, the foregoing observations apply with equal, or even greater, force.

I am, therefore, clearly of the opinion that the demurrers should be overruled.

Memorandum.

It is proper to state that my associate, Judge LOCHREN, who sat with me at the hearing of these demurrers, but who takes no part in this decision, does not concur in the views expressed in the opinion herewith filed. His view is as follows:

"That section 13 of the Revised Statutes gives a rule of construction only applicable to such repealing statutes as have no express saving clause, indicating that such matter was in the mind of Congress when it passed the repealing act, and therefore was not one of the matters then expressly acted upon. Section 10 of the Hepburn act expressly repeals the parts of the Elkins act on which these indictments rest, and also contains an express saving clause covering only pending cases. Thus Congress in the Hepburn act expressly provided just what penalties, forfeitures, and liabilities should not be extinguished by the repeal, and equally by the force of the express language used extinguished others. It does this by the express language of the repeal, without resorting to the maxim, 'Expressio unius est exclusio alterius;' and it therefore does expressly provide that the effect of the repeal shall be different from what it would have been, were there no express saving clause, and the matter left to the construction required by section 13. It therefore matters not whether the saving clause thus expressed covers only civil causes, or causes which are both criminal and civil."

EXLEY v. SOUTHERN COTTON OIL CO.

(Circuit Court, S. D. Georgia, E. D. February 14, 1907.)

1. WATERS And Water COURSES-SURFACE WATERS-DRAINS-POLLUTION-PRIVATE NUISANCE.

The discharge of acids and waste from an oil mill, and other offensive matter from outhouses used in connection therewith, into a ditch originally constructed for drainage of the land, and extending through the land of an adjoining owner, by which the latter suffers injury to his crops and from the offensive and unwholesome odors, constitutes a private nuisance, and gives the person injured a right of action for damages, under Ga. Civ. Code, 1895, § 3858.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, §§ 55-61, 135.]

2. NUISANCE-PRIVATE NUISANCE-GROUNDS OF ACTION-NEGLIGENCE.

The creation and maintenance of a private nuisance, by discharging waste or filthy matter upon another's lands to his injury, is actionable, without regard to the question of negligence.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Nuisance, §§ 5, 7.]

3. WATERS-SURFACE WATERS-RIPARIAN OWNERS.

The law of surface waters and rights of riparian proprietors discussed and distinguished.

4. SAME-PLEADING.

Whether or not the use made of a ditch by a landowner is reasonable is a conclusion of law, and the unreasonableness of such use need not be alleged in terms in an action for damages by an adjoining owner who is injured thereby, where the facts alleged taken in connection with what may naturally and proximately be deduced therefrom justify that conclusion.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Nuisance, § 113.] 5. SAME-NOTICE.

Under the law of Georgia, one who creates and maintains a nuisance 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 as a condition precedent to the maintenance of an action therefor. [Ed. Note. For cases in point, see Cent. Dig. vol. 37, Nuisance, §§ 102, 103.]

6. SAME-PLEADING-ALLEGATION OF DAMAGE.

In an action for a private nuisance, a general allegation of damage is sufficient to entitle plaintiff to recover all damages that are the natural and necessary consequence of the nuisance; but where special damages are alleged, the allegations should be sufficiently specific to apprise the defendant of the items thereof.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Nuisance, § 113.] Action at Law for Damages. On demurrer to petition.

R. R. Richards and Cann, Barrow & McIntire, for plaintiff.
Garrard & Meldrim, for defendant.

SPEER, District Judge. The plaintiff's intestate brought this action against the defendant in the superior court of Chatham county, claiming damages in the amount of $32,045. Subsequently the proceeding was removed to this court by the defendant, who is a nonresident. The plaintiff alleges that he is the owner of a tract of land, comprising 65 acres, in said county; which land has been continuously used by him for farming purposes. In the body of said land lies an

area of low land, comprising about six acres, through which there runs. a ditch for the purposes of drainage. This ditch connects with one running from the land of the defendant, and extends through the petitioner's land in a southeasterly direction to what is known as "Stiles Canal," which ultimately finds its outlet into the Savannah river. The plaintiff alleges that the six acres in question are the most fertile and valuable of his lands, that for over 20 years they have been cultivated in truck gardening, and that their productivity has now been destroyed, and the plaintiff greatly damaged, in manner alleged, by reason of the defendant running unclean water from its mill and plant into this ditch. A stream of polluted water is discharged through this medium upon plaintiff's land, and this water, it is alleged, is foul, hot, laden with chemicals, eats up the soil in the ditch, injures the adjacent land, and kills vegetation. The refuse thus discharged emits fumes and odors and unhealthy smells, making the atmosphere in the vicinity of said ditch and lowlands, for a considerable distance, corrupted, unwholesome, offensive, nauseating, and unhealthy, rendering the acts of the defendant a dangerous and continuing nuisance and a constantly recurring trespass on petitioner's land. It is also stated that the defendant company has connected privies with said ditch, through which fecal excrement from several hundred employés is discharged through and upon plaintiff's land. The plaintiff claims. particular damages to his crops and other property, and alleges that although the attention of the company has been called thereto, it has continued to disregard his rights.

To this petition, the defendant has demurred both generally and specially, on the ground that the plaintiff has not made such a case as entitles him to any action at law as to the matters alleged, and has demurred on divers special grounds. The form of the petition is. general and based upon the liberal system of pleading which obtains in this state. It is argued that, in order to avoid the effect of these demurrers, the form of action must be regarded as trespass quare clausum fregit; that such action lies only where the defendant "broke and entered the plaintiff's close," and as it contains no such allegation, the petition does not constitute such form. It is further insisted that there should be an averment that the acts complained of were committed with "force and arms," as essential to the gravamen of the action. The general demurrer also raises the question that the company has a right to the reasonable use and enjoyment of its property, and there is no averment that it has done more than exercise that right, and that, if its conduct causes damages to adjacent land, it is damnum absque injuria. It is contended that the right to discharge surface water cannot be interfered with; that the defendant has the right to increase its flow, and is not liable for resulting injuries unless caused by its negligence, unskillfulness, or wanton abuse; and that it is necessary for the plaintiff to show, not only that he has sustained damage, but that the defendant has caused the same by going beyond what is necessary to enable him to have the natural use of his own land. As this is not alleged in the petition, it is insisted that the general demurrer must be sustained.

The facts, as set forth, clearly allege the maintenance of a private nuisance. This under the Code of our state gives a right of action to the person injured. Civ. Code 1895, § 3858. "The right of enjoyment of private property being an absolute right of every citizen,' section 3874 provides: "Every act of another which unlawfully interferes with such enjoyment is a cause of action." A nuisance is defined by Blackstone as "anything that worketh hurt, inconvenience, or damage to another." This ancient definition has been approved by the most recent decisions, and has been embodied in the Code of Georgia. When a nuisance, either public or private, is proved, it is no defense to show that reasonable care was taken to prevent it, as that the business from which the nuisance arises is conducted according to the most approved methods; nor is it excused by the fact that it arises from a business or erection of itself lawful, or that it is necessary to the operation of a business. 21 Enc. Law, pp. 688, 689; Chicago, etc., R. R. Co. v. First M. E. Church, 102 Fed. 85, 42 C. C. A. 178, 50 L. R. A. 488. It is a primary rule that every person who constructs a drain or cesspool upon his own premises, and uses it for his own purposes, is bound to keep the filth collected there from becoming a nuisance to his neighbors. The maxim "sic utere tuo ut alienum non lædas" is generally applicable. If filth on a man's premises escapes, "either by percolating through the earth or otherwise, upon the premises of another, he is answerable for all the damages that ensue therefrom." Wood on Nuisances, §§ 118, 120. The draining of this ditch through the plaintiff's premises, although an easement, arising from its former use by plaintiff's brother-defendant's predecessor in title-solely for drainage purposes in agriculture in connection with one upon his own land, must be reasonably exercised for such purposes, so as not to produce unnecessary injury, annoyance, or nuisance to the servient tenement. A person exercising such right must not create a nuisance, and if his use be unreasonable, he is liable for any consequent damages.. Wood on Nuisances, § 118. "The pollution of water, or the maintenance of dams, drains, or ditches, in such a way as to emit disagreeable or unwholesome odors, is not only an actionable, but an indictable nuisance." Id. § 698. If waste or filthy matter be discharged on another's lands, the person causing the injury is chargeable with the maintenance of a nuisance, and the question of negligence is immaterial in determining whether the cause be actionable. Humphries v. Cousins, 2 C. P. D. 239; Snider Preserve Co. v. Beemon (Ky.) 60 S. W. 849. It is difficult to see how the existence of a nuisance could be more strongly alleged than it is in this petition. The defendant company, by the maintenance of its plant and outhouses on its premises, required a drain for the removal of polluted chemical and foul excretory waste matter. Having a ditch upon its premises, it has utilized the connecting ditch running through the plaintiff's premises, although, as stated, it might, without inconvenience discharge this water and excrement through its own premises into the Savannah river. Under the property rules of this state, embodied in the Civil Code, these allegations constitute a clearly actionable case; nor is it necessary to specifically allege a breaking and entering of the plaintiff's close by force of arms.