any doubtful cases, for which equity affords a more appropriate remedy. That jurisdiction allows so much greater latitude in adapting its processes and decrees to the particular circumstances of each case, that with its power of embracing and adjusting in one suit the rights and claims of all parties in interest, it seems to furnish the proper tribunal for the prosecution of a claim like that which we are now considering. A simple bond of indemnity would not be an adequate protection to the defendant; and it would be a novel, and as it seems to us an impracticable, course to attempt to devise and impose an obligation on the plaintiff to do all the affirmative and positive acts which the assertion of the defendant's rights against the maker of the note might hereafter require.

Whether even a court of equity could give relief, might depend upon circumstances not fully developed.

The objection to the plaintiff's recovery not being the want of an original cause of action, nor that the cause of action has been extinguished, but that he is unable, perhaps by a misfortune only temporary, to produce the paper necessary as the foundation of a judgment, it seems to us that he should have the election to become nonsuit, if he shall be so advised; otherwise, the verdict to be set aside, and judgment entered upon the report for the defendant.

ACTION ON LOST NOTE: See Moore v. Fall, 66 Am. Dec. 297, note 298, where other cases are collected.

OWNER OF LOST NOTE CANNOT MAINTAIN ACTION AT LAW AGAINST IN. DORSER, where a bond of indemnity would not fully protect the defendant: Savannah National Bank v. Haskins, 101 Mass. 376, citing the principal case. The indorser of a promissory note is entitled, upon taking it up, to the possession thereof, in order that he may have his recourse against the maker, or negotiate it again: McGregory v. McGregory, 107 Id. 547, also citing the principal case. See also Tower v. Appleton Bank, ante, p. 665, and note.

CITY OF SPRINGFIELD V. HARRIS.

[4 ALLEN, 494.]

OWNER OF LAND OVER WHICH NATURAL STREAM FLOWS HAS RIGHT TO REASONABLE USE OF WATER for mills or other purposes, and is not liable for obstructing or using the water for his mill, if his dam is only of such magnitude as is adapted to the size and capacity of the stream and to the quantity of water usually flowing therein, and his manner of asing the water is not unusual or unreasonable, according to the general custom of the country in cases of dams upon similar streams.

TORT for the obstruction of a natural stream of water by means of a dam. The facts are stated in the opinion.

N. A. Leonard, for the plaintiffs.

J. Wells, for the defendant.

By Court, MERRICK, J. It appears from the pleadings and from the facts stated in the bill of exceptions that Garden Brook is a natural stream running by and over the land of the defendant, and thence through Main Street in the city of Springfield. The plaintiffs claim to be owners in fee of all the land included within the limits of said street, and that they are entitled to have the water flow in said stream at all times without obstruction, in order that they may use it, as they have a right to do, for sewerage, for extinguishing fires, and for all other purposes essential to the health and safety of the city. The defendant is the owner and occupant of a mill standing upon his said land; and he admits that during the whole period in which the obstruction complained of is alleged to have occurred, he has, in operating his mill and the works contained in it, used the water of said stream by means of a dam, which, for that purpose, he has erected and maintained across it. The plaintiffs in their declaration allege that this dam was and is "of a larger magnitude than is adapted to the size and capacity of the stream, and to the quantity of water usually flowing therein." And this is the particular grievance of which they complain, and which they set forth as their cause of action against the defendant.

The action can be maintained only by the proof of this material allegation; for the defendant had a right to use the water in a reasonable and lawful manner to work and operate his mill, whatever might be the effect of such use in reference to any easement to which proprietors of land situate at any point below it might otherwise be entitled. Each proprietor of land through which a natural watercourse flows has a right as owner of such land, and as inseparably connected with and incident to it, to the natural flow of the stream for any hy draulic purpose to which he may think fit to apply it; and it is a necessary consequence from this principle that such proprietor cannot be held responsible for any injurious conse. quences which result to others, if the water is used in a reasonable manner, and the quantity used is limited by and does not exceed what is reasonably and necessarily required

for the operation and propulsion of works of such character and magnitude as are adapted and appropriate to the size and capacity of the stream and the quantity of water usually flowing therein: Thurber v. Martin, 2 Gray, 394 [61 Am. Dec. 468]; Gould v. Boston Duck Co., 13 Gray, 442; Tourtellot v. Phelps, 4 Id. 376.

The jury having found, under instructions in matter of law which are admitted to have been correct and unobjectionable, that the plaintiffs have failed to establish the material allegations in their declaration relative to the dam erected and maintained by the defendant across the stream, and having also found that the said dam is only of such magnitude as is adapted to the size and capacity of the stream and to the quantity of water usually flowing therein, and that the manner in which he used the water was not an unusual or unreasonable use of it, according to the general custom of the country in cases of dams upon similar streams, it is obvious that the plaintiffs were not entitled to recover any damages, and therefore that the verdict was properly rendered for the defendant.

It is objected that the court erred in ruling that the plaintiffs had not upon the evidence shown that they had acquired any prescriptive right to the water in the brook, and in directing the jury for that reason to return a verdict for the defendant. It would have been more regular to reserve these directions, which were predicated wholly upon questions of law, and to submit to the jury the questions of fact in issue, which were specially submitted to them with instructions that if they found the first in the affirmative and the second in the negative, they should, in that case, render a verdict for the defendant. But as we do not perceive that the plaintiffs were at all prejudiced or subjected to any disadvantage by the course pursued, such irregularity affords no sufficient cause for disturbing the verdict, which was rendered exclusively upon particular questions of fact which were wholly independent of and distinct from the questions of law. And as the finding of the jury upon those particular questions makes it certain that the plaintiffs could in no event maintain their action, it be comes unnecessary to consider whether the ruling of the court in relation to the plaintiffs' alleged title was correct; for whether they owned the soil, or had acquired any prescriptive right to the use of the water, or were mere riparian proprietors, it is obvious that judgment must necessarily, upon the

finding of the jury upon those questions of fact, be rendered for the defendant.

Exceptions overruled.

CHAPMAN, J., did not sit in this case.

LIABILITIES OF OWNERS OF DAMS FOR INJURIES: See Fraler v. Sears Union Water Co., 73 Am. Dec. 562, note 564, where other cases are collected. REASONABLENESS OF USE OF STREAM BY RIPARIAN PROPRIETOR: See Snow v. Parsons, 67 Am. Dec. 723, note 727, where other cases are collected.

JUDSON V. WESTERN RAILROAD CORPORATION.

[4 ALLEN, 520.]

RAILROAD COMPANY IS RESPONSIBLE AS WAREHOUSEMAN ONLY, AND NOT AS COMMON CARRIER, for goods to which something remains to be done by the consignor or his agents, after their delivery to the company, before they are in a condition for transportation. Where, therefore, an arrangement exists between two railroad companies by which goods which have been carried to the end of one road, and are destined to some point upon or beyond the line of the other, are delivered to the second company with expense bills, upon receipt of which, if correct, way-bills are made out, such second company is, until the delivery of the expense bills, responsible only as warehousemen, and not as common carriers, for goods se received and stored by it.

CONTRACT to charge the defendants as common carriers for the loss of goods destroyed by an accidental fire in the defendants' freight depot. The opinion states the facts.

J. D. Colt, for the defendants.

H. Morris, for the plaintiff.

By Court, MERRICK, J. It is, undoubtedly, a general rule that the liability of a common carrier for goods received by him begins as soon as they are delivered to him, his agents or servants, at the place appointed or provided for their reception, when they are in a fit and proper condition and ready for immediate transportation: Red field on Railways, 246. But, like all other general rules, it is subject to modifications resulting from the express stipulations of the parties, or from the course and usages of trade and business. And as it sometimes happens that a party is at once a warehouseman and a carrier, and that goods received by him are lost and destroyed before they are put in itinere, a very important question may in such case arise, whether the receiver is liable in the one or the other

capacity; for his responsibility is not co-extensive in each of those relations: Story on Bailments, sec. 535. This must always be a question of fact to be determined upon proof of the actual and surrounding circumstances, the material point of inquiry being whether the one or the other character predominated in the particular stage of the transaction when the disaster occurred: Id., sec. 536. There are well-settled rules which will afford some aid in the solution of such a question. If a common carrier receives goods into his own warehouse for the accommodation of himself and his customers, so that the deposit there is a mere accessory to the carriage, and for the purpose of facilitating it, his liability as a carrier will commence with the receipt of the goods: Id., sec. 536; Fitchburg and Worcester R. R. v. Hanna, 6 Gray, 539 [66 Am. Dec. 427]. But on the contrary, if the goods, when so deposited, are not ready for immediate transportation, and the carrier cannot make arrangements for their carriage to the place of destination until something further is done, or some further direction is given or communication made concerning them, by the owner or consignor, the deposit must be considered to be in the mean time for his convenience and accommodation, and the receiver, until some change takes place, will be responsible only as a warehouseman.

These being the rules by which the rights of the parties are to be determined, it can of course make no difference by whom the property is delivered, whether it be by the owner himself, or by his agent or servant, nor whether that agent be himself a carrier or acts in any other capacity. It is the paramount duty of a common carrier to receive and carry all goods offered him for transportion, upon the payment or tender of a suitable fare or compensation; and he must so receive them, by whomsoever they are brought to the place where he makes arrangements to receive them for transportation: Story on Bailments, sec. 508. It is upon this principle, where no special obligation is imposed by acts of legislation, that one corporation whose railroad connects with or is near to the termination of the railroad of another corporation is obliged to accept and receive for transportation any goods which may be brought and tendered to it by the servants of the latter. But in this as in all other cases the party bringing the goods must first do whatever is essential to enable the carrier to commence or to make needful preparations for commencing the service required of him, before he can be made