tion that the wornout legal ethics must be supplanted by the system that best expresses the moral genius of our civilization. How far, then, does the statute go in prescribing a duty to destroy noxious weeds and permitting recovery of damages for failure so to do? The appellant concedes that no such liability was incurred at common law, and relies, as he says, "upon the plain letter of the statute," which must be construed, of course, in the light of the maxim hereinbefore quoted. It is not claimed that the action of the defendant in permitting noxious weeds to grow amounts to a public nuisance, as defined in §§ 9027 and 9029 of the Revised Codes of 1905. In Fisher v. Clark, 41 Barb. (N. Y.) 329, the court says: "The right of every one to use his own property as he pleases for all the purposes to which such property is usually applied is unlimited and unqualified up to the point where the use becomes a nuisance." In this case cited the court states the facts as follows: "The parties were farmers, occupying adjoining farms. Each had a flock of sheep. Those of the defendant had a contagious disease known as the scab, and the fact of the disease and the character were well known to the defendant. The defendant sent word to the plaintiff that he intended to turn this flock of diseased sheep in his own field next to that of the plaintiff, where the sheep of the plaintiff were pasturing. The plaintiff thereupon called on him and told him he must not do it, insisting that he had no right so to do, and the result of the inter Stokes, (Tex. Civ. App.), 91 S. W. 328 (1905). B. Violation by Party Damaged. An owner of land located contiguous to the right of way to a railroad company, who allows Johnson grass to go to seed upon his own land will not be permitted to recover the penalty prescribed by the Johnson Grass Act, which forbids a railroad company from allowing Johnson grass to go to seed upon its right of way. But such owner is not precluded from recovering the statutory penalty in those years in which the company does, and he does not, permit such grass to go to seed. International & G. N. R. Co. v. Voss, 49 Tex. Civ. App. 566 (1908). See, also, San Antonio & A. P. R. Co. v. Burns, 99 Tex. 154 (1905); Missouri, K. & T. R. Co. v. Tolbert, (Tex. Civ. An owner of land used for the growing of crops cannot be said to be guilty of negligence contributing to the injury to his land which a railroad company caused by permitting Johnson grass to spread from its right of way to the land of such owner, in violation of statute, merely because he continued in a proper manner to cultivate the land after it had become infested with such grass. International & G. N. R. Co. v Doeppenschmidt, (Tex. Civ. App.), 120 S. W. 928 (1909). III. Criminal Liability. An affidavit which charges that defendant did "knowingly and unlawfully allow Canada thistles to grow and to mature, and to become of length view was that the defendant promised the plaintiff that he would not turn the said deceased sheep into the lot next to the plaintiff's. Disregarding this agreement, and without notice or the knowledge of the plaintiff, the defendant did turn his sheep into a lot adjoining where the plaintiff's sheep were, and only separated by a rail fence. The division fence belonged to the plaintiff to repair, and was a good fence. The sheep of the defendant got in plaintiff's field and mingled with his sheep, no evidence to show how or by whose fault. They were in several times. Once the plaintiff found a rail shoved aside where they might have passed, but he had no knowledge that they did. The other times it does not appear that there was any defect in the fence, or how they got in. The defendant had also had, with his flock of diseased sheep, some lambs so small that an ordinary or common rail fence would not stop, and they were frequently in the plaintiff's field with his sheep. That the disease was a contagious one which would be communicated either by the mingling of the sheep or by running side by side separated only by a common rail fence appeared fully by the evidence. The plaintiff's sheep became diseased and largely damaged." The defendant set up in his answer that the plaintiff was guilty of contributory negligence in not keeping his fence in repair. The court, however, determined the case entirely upon the broad principle "that every man has absolute right to use his own property as he pleases, for all of more than 6 inches upon his land," states a criminal offense under Acts (Ind.) 1905 pp. 584, 738, sec. 627, sec. 2308 Burns 1905, regardless of the giving of notice as prescribed in section 627a, of such Act. State v. Dawson, 38 Ind. App. 483 (1906). On the prosecution of a railroad company for its negligent failure to dig up and destroy Canada thistles growing upon its right of way and other lands, it is proper to instruct the jury as follows: "The jury is instructed as a matter of law, that the fact that a stray Canada thistle, growing here and there upon the right of way or other lands of a railroad company, owning, controlling or operating a railroad in the State of Illinois, has been overlooked and permitted to mature its seed, is not itself a violation of the provisions," of sec. 41 of the Criminal Code, which provides, in substance, that a railroad company shall be subject to a fine if it shall refuse or neglect to dig up and destroy, or take other means of exterminating Canada thistles and other noxious weeds that may at any time be grow ing upon its right of way or other lands. The court said that if "the defendant in good faith made an honest attempt to fully comply with the requirement of the statute, and was not guilty of negligence in performing the required statutory duty, then he should not be subjected to a penalty. The gist of this action was criminal negligence in not digging up and destroying or taking other means of exterminating Canada thistles." Chicago, M. & St. P. R. Co. v. People, purposes to which such property is usually applied," and disregarded entirely the question of contributory negligence of the plaintiff, and also the promise of the defendant not to put the sheep in the lot. At the present day it may well be doubted whether a court would disregard the promise which the defendant made the plaintiff in this case, independent of the fact that we have our statutes with reference to contagious diseases in animals. But in the case cited there was no claim that the plaintiff was entitled to recover under the provisions of any statute. He was trying to recover under the general doctrine of the duty which one man owed to another. In Giles v. Walker, 24 Q. B. Div. 656: "The defendant, a farmer occupied land which had originally been forest land, but which had some time prior to 1883, when the defendant's occupation of it commenced, been brought into cultivation by the then occupant. The forest land prior to cultivation did not bear thistles; but immediately upon it being cultivated thistles sprang up all over it. The defendant neglected to mow the thistles periodically so as to prevent them from seeding, and in the years 1887 and 1888 there were thousands of thistles on his land in full seed. The consequence was that the thistle seeds were blown by the wind in large quantities onto the adjoining farm of the plaintiff, where they took root and did damage." The plaintiff claimed that the defendant was negligent in his duty toward him, and sought to recover damages for failure to pre 132 Ill. App. 531 (1907). A nonresident landowner cannot be held criminally liable because a stray thistle here and there growing upon his land was overlooked when he cut the crop and was thereby permitted to go to seed, when he had, in good faith, done all that could be reasonably expected of him to prevent maturity. Story v. People, 79 Ill. App. 562 (1898). IV. Injunction. In an action in which the evidence was conflicting as to the character and effect of Johnson grass and left uncertain the result of its introduction into agriculture, an injunction was held to have been properly denied, upon the application of an adjoining landowner, who claimed that it was a most pernicious seed and would overrun his lands, thereby rendering them unfit and unsuitable for the production of crops, and that it was a nuisance. McCutchen v. Blanton, 59 Miss. 116 (1881). The court said: "If future developments shall place it beyond doubt that the grass is an evil to be prevented and extirpated, a remedy may perhaps be found. As at present advised, we regard the result of sowing the grass seed too doubtful, uncertain, and contingent to justify the continuance of the injunction. The history and habits of the grass are too little known and established to authorize its condemnation as a nuisance, which is necessary to sustain this bill. The grass may be neither an unmixed evil nor good. Time and trial will disclose its true character. vent these thistles from going to seed. Lord Chief Justice Coleridge says: "I never heard of such an action as this. There can be no duty as between adjoining occupiers to cut the thistles which are the natural growth of the soil. The defendant's appeal from the judgment rendered against him is allowed." Appellant cites State v. Dawson, 38 Ind. App. 483, 78 N. E. 352. Here the defendant was prosecuted for violating the following statute: "Any person who shall knowingly allow Canada thistle or thistles to grow and mature or shall allow Canada thistle or thistles to grow until they or any of them become of the length of six inches, measured from the surface of the soil to the end of the top of the stem above the surface of the ground, upon his, her or their land, or upon any land that they may occupy or have under their charge and control shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined." It will be noticed that there is a vast difference between this statute of Indiana and the statute upon which the appellant relies. The Indiana statute makes it a criminal offense to permit the growth of the Canada thistle in violation of the provision of the statute, and prescribes penalty therefor, but the duty claimed by the appellant under our statute is not such for the violation of which any penalty has been attached, nor does the statute in any way make it a misdemeanor. It is true that section 5366 of our Code says: "That is not lawful which is, first, contrary to the express provi If it be said that it will be too late, after its introduction into the country, to stay the evil, if it shall prove to be such, the reply is that it is already in many places in Mississippi and Arkansas, and is in Washington county, and, if its character is correctly portrayed by some of the witnesses, it must soon have the exclusive occupancy of the whole land, and the dissolution of this injunction will exert little influence on this inevitable result." In absence of proof that the growing of noxious weeds upon a neighboring farm was without lawful right or that a nuisance was created thereby, an injunction will not be granted at the request of an adjoining landowner, "restraining the continuance of the cockleburr seed and weeds blown and drifted upon his land." Harndon v. Stultz, 124 Iowa, 734 (1904). But the right to an injunction was sustained in Brock v. Connecticut & P. R. R. Co., 35 Vt. 373 (1862), restraining a railroad company from planting willow trees for use as a fence along its track which extended through plaintiff's meadow land, on the ground that such trees by growing and spreading their roots into, and their branches over the meadow land, it would cause serious injury thereto, and because no necessity for the construction of a fence of this character was shown. It was the expectation of the company that the trees in question would grow and at some future time would be used as posts for fence boards, which, in the judgment of the officers of the company would be more sion of law," etc. Is the failure of the defendant to destroy the wild mustard as charged in the complaint an unlawful act? Section 2086 says: "Each person shall destroy upon all lands which he shall own or occupy all weeds of the kind known as mustard * at such time and in such manner as shall effectually prevent their bearing seed." Upon whom rests the responsibility of prescribing the time and manner of such destruction? Subsequently, in the same section, the statute says: "The time and manner of destroying such weeds shall be prescribed by the board of county commissioners," etc. Is this duty placed upon the county commissioners the foundation for the action of the road supervisor only, as prescribed in § 2088, or is it the general provision which must be complied with before liability attaches to any one in any way affected by the requirements of this statute? It would appear from a correct reading of § 2088 this section contemplates that the board of county commissioners shall fix the time and the manner of destruction for every one who has the duty of destroying weeds, and, where the owner or occupier of the land fails to destroy within the time and according to the manner prescribed, then the duty of the road supervisor begins. In other words, while the law requires each person to destroy upon all lands which he shall own or occupy all wild mustard at such time and in such manner as shall effectually prevent the bearing of seed, it does not contemplate that the man shall be a law unto himself, but serviceable and economical than a fence constructed in any other manner, and would prevent washouts by heavy rains. The court said: "The defendant's surveyed their road across the orator's land, under and by virtue of their charter. Whether they obtained it of him by proceeding in invitum, whether a part was transferred by them by deed, seemed to be immaterial so far as this question is concerned. They obtained it for the purpose of constructing and operating a railroad. By their charter the company were bound to fence their road, and it was in view of this obligation that the price to be paid was fixed upon by the commissioners or the parties, but evidently neither party contemplated that the road was to be fenced in this unusual and extraordiVol. I. Negl.-50 nary manner, in a way that should virtually destroy or render nearly worthless an amount of land along the sides of the road nearly, if not quite, equal to the amount taken, and that, too, by the introduction into the farm of the willow trees, which some of the witnesses represent as the common enemy of the farmer in that vicinity, and one with which they have been contending half their lives, and a tree that most of the witnesses seem to consider as injurious to the surrounding land, to an extent beyond that of most other trees." V. Measure of Damages. The measure of damages caused by a railroad company permitting Johnson grass to go to seed upon its right of way, which was then washed onto |