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BIRNEY & BIRNEY for plaintiff:

1. The defendant is liable, as having stopped a natural watercourse. After the building of the sewer and the raising of North Capitol street, the springs and the falling rain water continued to flow into the channel as before. This was a watercourse, according to all the authorities. Washb., Eas. & Serv. (2d ed.), 268, 272; 6 Wait's Ac. & Def.. 258, and cases; Angell on Watercourses, 126-141, and

cases.

2. The result of the defendant's action in the premises was a direct invasion of the plaintiff's property. This is a taking within the meaning of the Constitution for which the plaintiff is entitled to compensation. St. Peter vs. Denison, 58 N. Y., 423; Pumpelly 8. Green Bay Co., 13 Wall., 181.

FRANCIS MILLER and HENRY E. DAVIS for defendant:

The defendant is not liable, as the damage was caused in the prosecution of a public improvement, involving change of grade of public streets. There is nothing in the case to take it out of the well-known general rule. The defendant rightly assumed that the plaintiff, and all other lot owners in the square concerned, would conform their premises to the new grade. If this had been done, the channel of the former stream at that point would have disappeared, and the damage occasioned the plaintiff would have been impossible. A public improvement which involves the utter annihilation of a stream, does not stop the stream in the sense in which a city is liable for damming a watercourse so as to flood the land of the citizen.

Mr. Justice JAMES delivered the opinion of the court.

In this case the plaintiff claims that the District of Columbia, in constructing a street which crossed a ravine, blocked up and stopped a waterway, thereby causing the formation of an extensive pond, which overflowed his premises. In his declaration he states two causes: first, that

there was a natural stream fed by springs; and, secondly, that the same conduit at the bottom of the ravine was the waterway for the surface drainage. But he, finally, stood upon the latter ground, for the testimony showed that the spring stream had been diverted far above that by a sewer, and that, substantially, the water-course spoken of consisted of the intermittent flowing of the surface water after it had drained down off the surface of the adjoining land into this stream bed.

He cited cases to show that the arresting of the flow of the natural stream, in cases of that kind, made the municipality responsible. Then he proceeded to argue that if there was a stream, formed, it is true, by surface water, there was no distinction between the two; that it was the arresting not of surface water, but of a stream. And he cited a case (Rose vs. St. Charles, 49 Mo., 509) where the court had held a municipality responsible for arresting a stream which during part of the year did not flow. He also adduced a passage from Judge Dillon's work on Municipal Corporations, in which a doubt is expressed of the propriety of the ordinary rule when it was applied to the formation of a pond under these circumstances. But the author gives the cases in a foot note, remarking that the authorities thus far were rather the other way.

For the time that it flows this is a stream of water, but the whole circumstances are the result of the formation of a piece of land below grade, and although the flowage does thus accumulate at the bottom of a ravine, and does temporarily constitute a stream, we feel obliged to regard it as the method of action of surface water produced by the surface form of the land.

We do not, therefore, perceive any reason for holding the municipality for results which were caused primarily by the situation of the land below grade. 1t can hardly be said that the municipality has produced this injury, when an intervening fact occurs, namely, the situation of the land below the grade. If the owner of the land chooses to remain in that condition, he may lawfully do so, but he takes the

consequences of his situation. We think, therefore, that these circumstances would not impose any liability on the part of the city when it comes to exercise its lawful power of making streets on a certain grade.

For these reasons we affirm the judgment.

INDEX.

ACTIONS, LIMITATION OF. See Limitation of Actions.

ACTION, RIGHT OF.

Where a public sewer is built, without right, upon land, the right of
a subsequent purchaser to recover damages in respect to the exist-
ence of the sewer upon the land, is limited to such injuries as may
have resulted there from since the date of the purchase. Alexan-
der v. The District, 192.

ADMINISTRATORS.

See Executors and Administrators.

ADVERSE POSSESSION. See Color of Title.

AGENCY. See Principal and Agent.

ALIMONY. See Equity, 3.

AMENDMENT. See Appeal, 2; Decree, 1; Pleading and Practice.

1. A decree may be amended so as to allow costs to the party enti-
tled. Walter v. Ward, 65.

2. A decree may be amended or corrected on motion where the
amendment or correction desired is merely to conform the decree
to the decision of the court, as where there has been a mistake in
computation, or a mistake of the clerk in entering the decree or
the like; but where the decree is attacked in its terms and sub-
stance or where any of its material provisions are sought to be
varied, a rehearing of the case is the proper practice, and though
this court has countenanced the practice of altering a decree even
in its material provisions, upon motion, it is in substance really a
motion for a rehearing. Vincent v. Vincent, 320.

APPEAL. See Pleading and Practice, 13.

1. In an ordinary case of a decree against two joint defendants, one
of them cannot separately appeal; but where the real contesting
parties are the plaintiff and one of the defendants only, the other
having no interest in the suit, a decree in favor of the plaintiff is
virtually a decree against such defendant only, and he may appeal
therefrom notwithstanding no appeal is taken by the other de-
fendant. Raub v. Relief Association, 68.

2. A party who moves the court by petition to alter one of the pro-
visions of the decree cannot appeal from the decree until his mo-
tion is disposed of; such an appeal will be dismissed on motion.

Vincent v. Vincent, 320.

ARREST OF JUDGMENT. See Pleading and Practice, 13.

ASSESSMENT, SPECIAL TAX, See Special Assessment Tax.

ASSETS, MARSHALLING OF.

The rule in regard to marshalling of assets does not apply to a case
where a creditor, having originally, equally with all the other
creditors, the right to proceed against the real as well as the per-
sonal estate of the debtor, loses by laches the right of recourse
against the realty. Groot v. Hitz, 247.

ASSIGNMENT.

1. Where an assignment is made by a debtor to a third person as
trustee for the benefit of the assignor's creditors, the assent of
the creditors provided for to the assignment will be presumed.
Webster v. Harkness, 220.

2. In such case the money is no longer under the control of the debtor,
and consequently is not liable to attachment. Id.

ATTACHMENT. See Assignment.

AUDITOR.

Where the auditor files with his report alternative statements of an
account, he should state which of them he considers the correct
one and adopting that leave the parties to file their exceptions.
Groot v. Hitz, 247.

AUTREFOIS ACQUIT.

1. The courts of the United States are invested with power to deter-
mine conclusively in the trial of a criminal cause when the inter-
ests of public justice require that the jury shall be discharged, and
such a discharge is not in any sense equivalent to a verdict of
acquittal, or a defence against a further trial upon the same or
a new indictment. The United States v. Bigelow, 393.

2. But this discretionary power to discharge the jury during the
course of a criminal trial is not to be understood as containing
the slightest element of arbitrary choice. The discretion is one
which the trial justice must use under a solemn obligation to sat-
isfy his judgment that such a course is required by the interests
of justice. Id.

3. Fourteen indictments were found against the defendant for em-
bezzlement, to each of which he pleaded not guilty. Afterwards,
at his instance, they were all consolidated and directed to be
tried as one case. A jury was then empanelled and sworn, and
the district attorney opened the case to the jury, stating what he
expected to prove in relation to each and all of the indictments.
After he had closed, and before any evidence was taken, the pre-
siding justice, on his own motion and against the protest of the
defendant, rescinded the order consolidating the indictments,
discharged the jury and directed the district attorney to select
one of the indictments for trial, which was done, and the same

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