To the same effect, see Byrne v. Railway Co., 38 Minn. 214 (36 N. W. Rep. 339; 8 Am. St. Rep. 668); O'Connell v. Railroad Co., 87 Ga. 246 (13 S. E. Rep. 489; 27 Am. St. Rep. 246; 13 L. R. A. 394); Sullens v. Railway Co., 74 Ia. 659 (38 N. W. Rep. 545; 7 Am. St. Rep. 501); Moore v. Railway Co., 75 Ia. 263 (39 N. W. Rep. 390).

The

Sec. 887. Common law rule-Exceptions. common law rule as to surface water prevails in West Virginia. Jordan v. City of Benwood, 42 W. Va. 312 (26 S. E. Rep. 266; 57 Am. St. Rep. 859; 36 L. R. A. 519). Although the common law rule as to surface waters prevails in Nebraska, under which rule such water may be controlled by the owner of the land on which it falls or over which it flows, it is held that surface waters may have such an accustomed flow as to have formed at a certain place a channel or course cut in the soil by the action of the water, with well-defined banks, and having many of the distinctive attributes of a water course; and though there are no exceptions to the general rule, except from necessity, this may constitute an exception, and, if the flow is stopped by the erection of an embankment across and in the channel, some provision may be necessary for the allowance of the regular flow of the surface waters. Whether such embankment has been negligently constructed with reference to the obstruction of the flow of surface waters, and whether such negligence, if any, is the proximate cause for an alleged injury, are generally questions to be submitted to the jury. Town v. Missouri Pac. Ry. Co., 50 Neb. 768 (70 N. W. Rep. 402).

Sec. 888. Rights of upper and lower owners. The owner of a city lot may bring his lot to grade and thus cast back surface water which has been turned upon it by the city improving its streets. City of Cedar Falls v. Hansen, 104 Ia. 189 (73 N. W. Rep. 585; 65 Am. St. Rep. 439). An upper owner does not acquire the right to collect surface water into channels and discharge it into a stream to the injury of the lower owner, simply because a portion of such water sometimes reaches the stream in the time of flood. Rudel v. Los Angeles Co., 118 Cal. 281 (50 Pac. Rep. 400). The

same into his

Schuster v. The right of a

owner of land on which there is a pond or reservoir of surface water, cannot lawfully conduct it by an artificial channel to a point on his own land where it would inevitably permeate the surrounding soil and percolate through the neighbor's land and permanently injure it. Albrecht, 98 Wis. 241 (73 N. W. Rep. 990). landowner to repel surface water from coming from his neighbor's land, does not give him the right, such water being upon his land, to divert it or cause it to flow upon the land of another in an unaccustomed volume, to his injury. Borchsenius v. Chicago, St. P., M. & O. Ry. Co., 96 Wis. 448 (71 N. W. Rep. 884). Owners of swamp lands, the waters of which naturally flow into natural water courses, may collect and discharge the water on such lands into such water courses by ditches and canals, although the flow of the water course is thereby increased so as to occasion an overflow upon the lower owner. Mizell v. McGowan, 120 N. C. 134 (26 S. E.. Rep. 783). Where a channel constructed by a landowner to conduct surface water is enlarged by natural.causes so that it encroaches upon a public street to the injury of an abutting owner, the latter may maintain an action for the abatement of the ditch as a private nuisance and for damages caused by it. Reinhart v. Sutton, 58 Kan. 726 (51 Pac. Rep. 221). Citing, Livingston v. McDonald, 21 Ia. 160 (89 Am. Dec. 563); Pettigrew v. Evansville, 25 Wis. 223 (3 Am. Rep. 50).

Sec. 889. Diversion of surface water by a railroad. A railroad company, which by the negligent construction of its roadbed, either increases or obstructs the natural flow of surface water, is liable for the damages resulting to an adjoining owner. The measure of damages is the diminution in the rental value of the land by reason of the injury, computed to the commencement of the action. Jungblum v. Minneapolis, N., U. & S. W. R. Co., 70 Minn. 153 (72 N. W. Rep. 971); Freemont, E. & M. V. R. Co. v. Harlin, 50 Neb. 698 (70 N. W. Rep. 263; 61 Am. St. Rep. 578; 36 L. R. A. 417). The first proposition cited above is supported by Illinois Cent. R. Co. v. Wilbourn, 74 Miss. 284 (21 So. Rep. 1); Shahan v. Alabama Great Southern R. Co., 115 Ala. 181 (22 So. Rep. 449). A railroad company cannot defend against its liability

for injury resulting from its interfering with the flow of surface water, by showing that the injury has been aggravated by the negligence of another railroad company in the construction of its drains, where the former company could have prevented the injury by the proper construction of drains on its own right of way. Shahan v. Alabama Great Southern R. Co., 115 Ala. 181 (22 So. Rep. 449). It is the duty of a railroad company when constructing its roadbed, where it forms a dam to obstruct the passage of surface water, to do so in such a firm and perfect manner, as to withstand the water which would accumulate against it in all ordinary storms, so as to guard against all damages to lower proprietors, which could be reasonably foreseen. Borchsenius v. Chicago, St. P., M. & O. Ry. Co., 96 Wis. 448 (71 N. W. Rep. 884). Particular evidence held to show that a railroad company was not negligent in the construction of an embankment to restrain surface water. Town v. Missouri Pac. Ry. Co., 50 Neb. 768 (70 N. W. Rep. 402). A railroad company which carelessly and negligently constructs its ditches along its track so as to cause the surface waters to collect and be precipitated upon the lands of another so as to destroy his crops and growing trees, is liable for damages resulting therefrom; and the measure of damages is the value of the crops and trees destroyed and the difference in the value of the land immediately before and after the making of injurious deposits thereon. Fremont, E. & M. V. R. Co. v. Harlin, 50 Neb. 698 (70 N. W. Rep. 263; 61 Am. St. Rep. 578; 36 L. R. A. 417). A railroad company constructing a spur track, at the request and for the convenience of an adjoining owner, will not be held liable to him for injuries resulting from such track interfering with the flow of surface water. Shahan v. Alabama Great Southern R. Co. 115 Ala. 181 (22 So. Rep. 449).

Sec. 890. Liability of municipalities. A city ordering the grading of a street up to the "official grade," is not liable for injuries resulting from the damming of surface water, which was caused by the errors of the city engineer, negli gently made, in the performance of a duty imposed upon him by statute. Sievers v. City and Co. of San Francisco, 115 Cal. 648 (47 Pac. Rep. 687; 56 Am. St. Rep. 153). But a

municipal corporation is liable if it collects and gathers up surface water by artificial means, such as sewers and drains, and casts it upon the premises of another in increased and injurious quantities, Robbins v. Village of Willmar, 71 Minn. 403 (73 N. W. Rep 1097); Clay v. City of St. Albans, 43 W. Va. 539 (27 S. E. Rep. 3€8; 64 Am. St. Rep. 883); and it is liable for injuries by surface waters resulting from its improper construction of a municipal improvement. McArthur v. City of Dayton, Ky. (42 S. W. Rep. 343). In a recent case in which the authorities on the different phases of the subject are exhaustively collated, it is held that a city is not bound to furnish drains or sewers to relieve a lot of its surface water whether its own or that flowing from other premises; nor is it liable for mere surface water flowing from the street upon an adjoining lot, or for damages to a lot owner because a street improvement prevents surface water on the lot from flowing off of it, or increases the flow of surface water onto it, provided such increased quantity is not collected by artificial channels and cast in a mass or body upon the lot; and it is also held that W. Va. Const., art. 3, § 9, providing that private property shall not be taken or damaged for public use without just compensation, does not render a city liable for damages to property from surface water where a private individual would not be liable. Jordan v. City of Benwood, 42 W. Va. 312 (26 S. E. Rep. 266; 57 Am. St. Rep. 859; 36 L. R. A. 519). Substantially the same is held in Yeager v. Town of Fairmont, 43 W. Va. 259 (27 S. E. Rep. 234).

If a city or town negligently fails to keep its existing drains and gutters open and clear of obstructions, and in condition to carry off the water in them, and by reason thereof land is injured by their overflow, the city or town is liable in damages, provided the overflow is not due to an unusual or extraordinary storm or rainfall. Clay v. City of St. Albans, 43 W. Va. 539 (27 S. E. Rep. 368; 64 Am. St. Rep. 883). Citing, Elliott, Roads & S. 363; Jones, Neg. Mun. Corp. § 144; 1 Beach, Pub. Corp., §§ 764, 767; Hitchins v. Mayor, etc., 68 Md. 100; Gilluly v. City of Madison, 63 Wis. 518 (24 N. W. Rep. 137; 52 Am. Rep. 299); Weis v. City of Madison, 75 Ind. 241 (39 Am. Rep. 135); 2 Dill. Mun. Corp., § 1051, cl. 4; Nims v. Mayor, etc., 59 N. Y. 500; Richmond

v. Long, 17 Grat. 375, point 3. In Rhode Island it is held that a town is not liable for damages to abutting property, occasioned by surface water being turned thereon on account of a highway and its drainage being out of repair. Murray v. Allen, 20 R. I. 263 (38 Atl. Rep. 497). A complaint against a city for failure to erect an embankment to confine waters within a ditch or to dig it deeper, should allege not only the city's duty to take care of the ditch but also its duty to deepen it or make the embankments as well as its failure to do so. City of Huntsville v. Ewing, 116 Ala. 576 (22 So. Rep. 984).

TAXES AND TAX TITLES.

EPITOME OF CASES.

Sec. 891. Collateral inheritance tax. A collateral inheritance tax cannot be imposed on real estate situated in another state, although the decedent's will directs his executors to sell it at a specified future time. In re Hadley's Estate, 181 Pa. St. 339 (37 Atl. Rep. 587). The court say: "It is universally conceded that the tax cannot be laid directly, and nowhere is this rule laid down more positively than in our own cases. See Bittinger's Estate, 129 Pa. St. 338 (18 Atl. Rep. 132); Com. v. Coleman's Adm'r, 52 Pa. St. 468; Drayton's Appeal, 61 Pa. St. 172. And the collateral inheritance tax being a tax on the property passing from the decedent, and not a mere succession duty imposed on the recipient, Bittinger's Estate 129 Pa. St. 338 (18 Atl. Rep. 132), is within the defect of power to impose it on land outside of the state. The border line, however, is reached when property which is in fact real estate is to be treated as personalty, under the doctrine of equitable conversion. On this subject two conflicting views have been entertained by different courts. In Custance v. Bradshaw, 4 Hare 315, land was held by a partnership, and the interest of one partner who had died was sold to another partner. It was claimed that this interest was personalty, and liable to probate duty. But