S. W. Rep. 25). A court of equity has jurisdiction to grant relief against the obstruction of a water course, by a dam built by a nonresident so as to work an injury to a resident owner of adjoining land. Gordon v. Warfield, 74 Miss. 553 (21 So. Rep. 151). Where injuries resulting from one's obstruction of a water course are such as might be reasonably expected to result, he cannot escape liability by showing that they have been augmented by the negligence of third persons. Babbitt v. Safety Fund Nat. Bank, 169 Mass. 861 (47 N. E. Rep. 1018). In constructing its right of way across a stream, a railroad does not discharge its duty under Ind. Rev. Stat. 1894, § 5153, subd. 5, by constructing it in a sufficient manner to protect its own interests, but it is bound to take into consideration the nature of the stream and leave sufficient openings under its bridges to permit the free passage of water which would naturally accumulate within ordinary high water mark. New York, C. & St. L. R. Co. v. Hamlet Hay Co., 149 Ind. 344 (47 N. E. Rep. 1060). A railroad company is liable for obstructing a water course by the negligent construction of its road bed. Chicago B. & 2. R. Co. v. Emmert, 53 Neb. 237 (73 N. W. Rep. 540); Brown v. Pine Creek Ry. Co., 183 Pa. St. 38 (38 Atl. Rep. 401); Illinois Cent. R. Co. v. Wilbourn, 74 Miss. 284 (21 So. Rep. 1). Where, in such a case, the injury is to crops and lands, the measure of damages is the fair value of the crops at the time of their destruction, and the difference in the fair value of the real estate immediately before and immediately after the injury. Chicago, B. & Q. R. Co. v. Emmert, 53 Neb. 237 (73 N. W. Rep. 540). For particular fact case illustrating the liability of a municipal corporation for the obstruction of a water course, see Taubert v. City of St. Paul, 68 Minn. 519 (71 N. W. Rep. 664). A statute (Pa. Pub. Laws 1891, p. 210) which gives a borough power to widen and deepen within its limits the channel of a stream, gives it the right to prevent by proper legal proceedings acts of others which will interfere with the exercise of this power. Borough of Tyrone v. Stevens, 178 Pa. St. 543 (36 Atl. Rep. 166).

The right of a riparian owner to divert water for his own use is confined to his riparian lands and he cannot confer upon another person the right to divert water from a stream to use on

nonriparian lands to the injury of a lower proprietor. Gould v. Eaton, 117 Cal. 539 (49 Pac. Rep. 577; 38 L. R. A. 181). In an action for the wrongful diversion of water which operated to interrupt the plaintiff's business, evidence of the nature and extent of his business and the general rate of profit he has realized therefrom may be considered by the jury in estimating the damages. East Jersey Water Co. v. Bigelow, 60 N. J. L. 201 (38 Atl. Rep. 631). The fact that headgates regulating the flow of water in which several riparian owners are interested have been controlled by an upper owner and his predecessors in title, does not give him a prescriptive right to make a diversion of water not necessary for his own use, which operates to deprive the lower owners of any use of it. Hughesville Water Co. v. Person, 182 Pa. St. 450 (38 Atl. Rep. 584). A waterworks company diverting water to the injury of a riparian owner may be held liable for damages; and where in such case the injury is not permanent, damages actually accrued before action brought can be recovered, and any further damages must be recovered in a separate action when they actually accrue, and the statute runs from the time the special damage complained of occurred. Valparaiso City Water Co. v. Dickover, 17 Ind. App. 233 (46 N. E. Rep. 591). It is an actionable nuisance for one, by means of a reservoir, to increase, divert, or diminish the volume of water naturally flowing in a stream, to the detriment of and damage to a mill owner thereon; and it is no defense to the action for such an injury that the person complaining is benefited by the increase in the volume of water, for he has the right to the enjoyment of the waters in their natural condition; or if the plaintiff be injured by the diversion or diminution of the usual flow at certain periods, this injury cannot be compensated, without the consent of the plaintiff, by an increased volume caused by the defendant, in excess of the natural flow, at another time, and no credit could be given, or diminution of actual damage made, because of the benefit received by the plaintiff by reason of such increased volume. East Jersey Water Co. v. Bigelow, 60 N. J. L. 201 (38 Atl. Rep. 631). Where the diversion of water interferes with a riparian owner's use of his land as a pleasure resort, the measure of damages is the difference in the rental value of the

property while the diversion continues. Valparaiso City Water Co. v. Dickover, 17 Ind. App. 233 (46 N. E. Rep. 591). A riparian owner has no right to have the sewage of a city turned into the stream above his mill instead of being diverted elsewhere, although from one-third to one-half of the stream has been taken by the city without right and has entered the sewerage system; but the disposal of the sewage is under the control of the city, and the remedy of the riparian owner for wrongfully taking the water is by action for damages or by injunction. Fisk v. City of Hartford, 69 Conn. 375 (37 Atl. Rep. 983; 38 L. R. A. 474).

Sec. 830. Pollution of waters-Discharge of city sewage. Where one operating a mine discharges tailings therefrom into a stream, he is liable for damages occasioned thereby to a lower owner. Threatt v. Brewer Min. Co., 49 S. C. 95 (26 S. E. Rep. 970). A nonriparian mine owner may not artificially cause the injurious discoloration of a natural water course by water from his mine, if, by the use of practicable means within his knowledge, he may carry on his mining operations without injury to the rights of others. Sterling Iron & Zinc Co. v. Sparks Mfg. Co., N. J. L. (38 Atl. Rep. 426). Permitting water supplied by an artisian well upon one's own premises after having been used for bathing diseased patients in a sanitarium located thereon, to flow into a stream forming a natural drain for such land, does not render the owner liable for damages to an adjoining owner, where there is no negligence or malice and all due care has been used to avoid injury. Barnard v. Shirley, 151 Ind. 160 (47 N. E. Rep. 671; 41 L. R. A. 737). If a municipal corporation, in the absence of a legal right so to do, causes sewage to pollute a water course, to the use of which a lower owner, through whose premises the water course flows, is entitled, it is guilty of a nuisance, for which damages may be recovered. Nolan v. City of New Britain, 69 Conn. 668 (38 Atl. Rep. 703). Citing, Inman v. Tripp, 11 R. I. 520 (23 Am. Rep. 520); New York Cent. & H. R. R. Co. v. City of Rochester, 127 N. Y. 591 (28 N. E. Rep. 416); Attorney General v. Leeds Corp., 5 Ch. App. 583; Gould, Waters, § 545; Dill. Mun. Corp. (4th Ed.) 1047;

Byrnes v. City of Cohoes, 67 N. Y. 204 Seifert v. City of Brooklyn, 101 N. Y. 136 (4 N. E. Rep. 321; 54 Am. Rep. 664); Franklin Wharf Co. v. City of Portland, 67 Me. 48 (24 Am. Rep. 1); Morse v. City of Worcester, 139 Mass. 389 (2 N. E. Rep.694). In Indiana it is held that a city, discharging its sewage through a system of sewers, properly constructed and used, into a water course forming a natural drainage for the land upon which it is situated, is not liable for injury to a riparian owner on account of the pollution of the water. City of Richmond v. Test, 18 Ind. App. 482 (48 N. E. Rep. 610). But in California and Pennsylvania it is held that if a city by its use of a stream for an outlet for its sewage so obstructs or pollutes it as to damage the property of a riparian owner he may have his remedy in an action for damages or an injunction against such use. Peterson v. City of Santa Rosa, 119 Cal. 387 (51 Pac. Rep. 557); Owens v. City of Lancaster, 182 Pa. St. 257 (37 Atl. Rep. 858).

SPECIFIC PERFORMANCE.

EPITOME OF CASES.

831. As to the right of specific performance. Specific performance is not a matter of strict right but rests in the sound discretion of the court. Dewey v. Spring Valley Land Co., 98 Wis. 83 (73 N. W. Rep. 565). While specific peformance is a matter of discretion, where the contract relating to land is not objectionable, legally it is as much a matter of course for a court of equity to decree specific performance as it is for a court of law to give damages for a breach thereof. Stamper v. Stamper, 121 N. C. 251 (28 S. E. Rep. 20). An obvious limitation on the power to compel specific performance arises when the act required to be performed is beyond the ability of the defendant. Caperton v. Forrey, 49 La. 872

(21 So. Rep. 600).

Sec. 832. As to what contracts may be specifically enforced-Particular cases. Contracts procured by fraud or misrepresentations cannot be specifically enforced. Crane

v. Judik, 86 Md. 63 (38 Atl. Rep. 129). Where an option to purchase real estate given without consideration, is withdrawn before acceptance, it cannot be specifically enforced either by the one to whom it was given or his assignee after its withdrawal. Crandall v. Willig, 166 Ill. 233 (46 N. E. Rep. 755). A contract between corporations will not be specifically enforced where the making of the alleged agreement is in doubt and it does not appear that the parties executing it were authorized to do so. Dewey v. Spring Valley Land Co., 98 Wis. 83 (73 N. W. Rep. 565). An agreement to pay a divorced wife a certain amount of alimony quarterly till she die or remarry, secured by a deed of trust, may be specifically enforced. Fleming v. Peterson, 167 Ill. 465 (47 N. E. Rep. 755). A contract in the nature of a family settlement, will be specifically enforced where it is based upon a sufficient consideration, has been accepted and acted upon by the parties, and its anullment would entail upon the parties seeking to hold it, an irreparable loss. Mooney v. Rowland, 64 Ark. 19 (40 S. W. Rep. 259). The failure of a party to perform a condition in a contract at the time specified therein, although time is made of the essence of the contract, will not necessarily defeat his right to specific performance if the condition be subsequently performed without unreasonable delay and no circumstances have intervened that would render it inequitable or unjust to give such relief. Shouse v. Doane, 39 Fla. 95 (21 So. Rep. 807). Where one agrees with a purchaser of land for speculative purposes to guarantee to him. the realization of a certain sum within a given time in consideration of a half interest in the additional profits, specific performance of such a contract will not be decreed where performance was not demanded at the expiration of such time and the parties, by mutual consent, waited for several years hoping to gain an advantage thereby, during which time the land greatly depreciated. Brown v. Massey, 138 Mo. 519 (38 S. W. Rep. 939). The provision in a lease, obligating the lessor to pay a fair price for a building to be erected by the tenant upon the termination of the lease, may be specifically enforced by the lessee. Duffy v. Kelly, 55 N. J. Eq. 627 (37 Atl. Rep. 597). A stipulation in a lease providing for the determination of the rent to be paid, at cer