*

shall produce at the trial his account books," etc., makes it clear that it is not necessary to make the preliminary proof specified when the books offered are the books of the other party. It was therefore not necessary that plaintiffs prove that the entries were made at the time of the transactions, or that they were true and correct. The foundation was sufficient, and the books of account were properly received.

5. The next claim is that the payment by the trustee of dividends on certain claims was improper because the claims were illegal. Certain directors of the corporation filed with the trustee claims against. it aggregating $5,500, and a 35% dividend was paid on these claims. Conceding that if such claims were illegal it might have a material bearing on the solvency of defendant, or on the amount of its liabilities, we are of the opinion that the claims were legal outstanding obligations of the company. In 1909 the company owed large sums for merchandise purchased, and was anxious to discount the bills. The directors resolved to borrow $4,500 for this purpose, but the bank refused to take the note of the corporation. The directors executed their individual notes aggregating the sum desired, and the bank loaned them the money. They expended it in paying the bills for merchandise. The argument is that the claims of the directors for the moneys so advanced to the corporation are illegal and void because they borrowed in excess of 25% of the capital stock of the corporation. The same point is made as to an item of $1,000 similarly borrowed by four of the directors and furnished to the corporation in 1911. If these sums can be said to have been borrowed by the corporation acting through the board of directors, so as to make the transaction beyond the power of the directors, it is a sufficient answer to the contention that the claim of the directors is illegal to say that it appears that the stockholders afterwards assented to the transactions, and ratified the acts of the directors. We hold that the claims are valid, and that dividends were properly paid thereon.

5. Defendants contend that a claim of one Elizabeth Merget, against the corporation was void because she was the holder of excess shares of stock. When the company was formed it purchased a cer

tain store, in which Elizabeth Merget, then a minor, owned a fourtenths interest. Her mother, without being appointed guardian, sold this interest, taking excess shares of stock in payment. When the daughter became of age she repudiated the transaction and brought suit to recover the value of her four-tenths interest. The action was compromised for $1,360.94, and judgment against the corporation entered for that amount. It is this judgment that constitutes the claim on which dividends were paid. It is clear that the creditor was not the holder of excess shares of stock, as the action brought by her and the judgment entered therein, wiped out the original transaction, and made the claim a liability of the corporation that was not represented by excess shares.

This disposes of all the assignments of error that are urged in the brief or argument of defendants' counsel. We are satisfied that there was no prejudicial error, if error at all, in any of the court's rulings on the admission of evidence. The evidence is amply sufficient to sustain the findings on all material points, and it is impossible to see how the stockholders in this unfortunate concern can hope to escape the liability imposed by the Constitution. Order affirmed.

ALBERT C. HEATH v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY COMPANY and Another.1

1. The defendants so constructed and maintained an embankment on their right of way that at every heavy rainfall destructive quantities of

1 Reported in 148 N. W. 311.

Note. The question of injunction against continuing trespasses is discussed in notes in 13 L.R.A. (N.S.) 173 and 21 L.R.A. (N.S.) 417.

sand and material therefrom were cast upon the adjoining land of plaintiff. This constituted a continuing trespass and nuisance entitling plaintiff to an injunction and damages.

Measure of damages.

2. It clearly appeared from the evidence that the expense of removing the sand was much less than the diminution in the market value of the land, if the sand and existing conditions were allowed to remain. Such being

the case, the lesser amount was the proper sum to award as damages.

Findings sustained by evidence.

3. Certain findings, in so far as material, are sustained by the evidence except as to the extent of $200 included in the damages allowed.

Action in the district court for Washington county against two railway companies. The case was tried before Stolberg, J., who made findings, and a jury to which was submitted the question of. damages only, which returned a verdict for $3,500 in favor of plaintiff. From an order denying their motion for judgment notwithstanding the verdict or for a new trial and denying their motion to strike out the findings of fact, defendants appealed. Affirmed, on condition plaintiff consent to a reduction of the verdict to $3,300. A. H. Bright, Kenneth Taylor and Manwaring & Sullivan, for appellants.

Butler & Mitchell, for respondent.

HOLT, J.

This is an action to enjoin defendants from casting sand upon plaintiff's land, and for damages for the injury already inflicted because of a deposit of sand thereon. Plaintiff prevailed, and defendants appeal from the order denying their alternative motion for a judgment or a new trial.

The defendants' right of way, where it crosses St. Croix river, runs east and west and occupies a strip off of the northerly boundary of government lot 3 in section 1 of township 30, range 20 west. In the spring of 1911, after defendants had acquired the right of way and constructed a high embankment thereon for their road bed, plaintiff bought the remainder of the lot from the same person who had conveyed the right of way to defendants. Plaintiff's land is

bounded on the east by St. Croix river, towards which it slopes. A ravine or depression exists in the northwest corner, which runs northeasterly until it strikes the right of way, about where an abandoned right of way crosses the present, thence it turns southeasterly and spreads out into a valley. In this valley are two springfed rivulets which unite and, passing along, discharge into a bay of the river in the southeasterly part of the lot. The land is adapted for a summer residence because of its attractive location and also, on account of the springs, available for keeping and propagating brook trout. Plaintiff bought it for these purposes, erected a dwelling house, and built concrete dams in the rivulets and springs wherein to keep the trout. Because of the nature of the ground defendants were compelled to make a cut some 4,000 feet in length immediately west of plaintiff's land. This cut is, at places, over 150 feet in width and some 40 feet in depth, sloping east. Over lot 3 the defendants' track is, for the greater part, laid upon immense fills; and the balance is upon trestle. The result was that a large quantity of water from the drainage basin caused by the cut flowed down upon plaintiff's land and, in discharging through a culvert placed in the ravine where it crossed the abandoned right of way, it struck the toe of the large fill, carrying away great quantities of sand down into the springs and rivulets mentioned, almost entirely filling the trout dams and burying the trout. As the sand was thus torn loose from the fill, more was dumped in. Experts testified that from 2,000 to 2,200 cubic yards of sand were deposited upon plaintiff's premises, and that the value of removing the same was $1.50 per cubic yard. One question was submitted to a jury for determination, namely: "In what amount has the property of the plaintiff described in the complaint been damaged by the deposit and casting thereon of sand and loose material from the embankment of the defendants?" And the answer was: "In the sum of $3,500." The court embodied the verdict in the findings, granted the injunction asked and awarded damages in the sum named.

The first proposition, which naturally presents itself, is whether the plaintiff was entitled to an injunction. It is contended by appellants that its embankment and fill was constructed when plain

tiff bought; that the right of action because of faulty construction had accrued and vested in plaintiff's grantor and did not pass with the deed; that the embankment or fill was a permanent injury and the deposit of sand afterwards was a mere natural result of surface water washing against and flowing over the fill; and that this would take place was perfectly obvious when plaintiff bought, and naturally the purchase price was reduced accordingly. In short, it is claimed that the construction of the road bed was a permanent injury to this lot 3 for which damages accrued to the then owner, plaintiff's grantor. We are cited to cases like Karst v. St. Paul, Stillwater & Taylor's Falls R. Co. 22 Minn. 118; Ziebarth v. Nye, 42 Minn. 541, 44 N. W. 1027; Evans v. Northern Pac. Ry. Co. 117 Minn. 4, 134 N. W. 294; Milwaukee & N. Ry. Co. v. Strange, 63 Wis. 178, 23 N. W. 432; Toledo, W. & W. Ry. Co. v. Morgan, 72 Ill. 155; Arterburn v. Beard, 86 Neb. 733, 126 N. W. 379; Kindred v. Union Pac. R. Co. 225 U. S. 582, 32 Sup. Ct. 780, 56 L. ed. 1216; Louisville & N. Ry. Co. v. Lambert, 33 Ky. Law Rep. 199, and others. In some of these cases the injury grew out of the erection of a permanent structure upon land other than complainant's but which depreciated the value or use of his; and in others, improvements of a permanent character had been erected by the defendant on his own property which diverted surface waters, or a watercourse, before the complainant acquired the property claimed to be injuriously affected; and again in others, where land was conveyed with a railway upon it, so that it was held that the grantee took subject to an easement. Of course if damages have been recovered for present and prospective injuries to land, no injunction will issue to abate that which is included in the recovery, and it also follows that, if the construction of the railroad embankment was a permanent injury to lot 3 when owned by plaintiff's grantor, he is the one entitled to damages, and plaintiff can have neither injunction nor damages. But we think defendants' position is not sound. They owned the right of way and had a perfect right to make cuts and fills so long as these were confined to their own premises, and could heap up any quantities of sand or other material thereon, provided no part thereof was cast upon plaintiff's land. Gen