Measure of. The amount of damages to be recovered by a party injured by a dam is commensurate with the injury done, having regard to all the circumstances of each particular case.1 But this rule may be altered by statute, and in several states the provisions of the milldam acts relating to the amount of damages to be allowed the injured party have received the interpretation of the courts.2 - Permanent Injury. In Missouri, etc., R. Co. v. Graham, 12 Tex. Civ. App. 54, it was held that when a dam causes permanent injury to land, the damages must be computed on the value of the land when the dam was built. In Illinois and Iowa it has been held that whether recovery for injury to land, caused by a dam, is confined to such damages as had arisen before bringing suit, or may extend to all damages, past, present, and future, depends upon whether the injury is temporary or permanent. Centralia v. Wright, 156 Ill. 561; Bizer v. Ottumwa Hydraulic Power Co., 70 lowa 145. Compare Williams v. Camden, etc., Water Co., 79 Me. 543. Diminished Rental Value. It has been held in New York that the proper measure of damages is the diminished rental value of the premises injured. Van Buren v. Fishkill, etc., Water-Works Co., 50 Hun (N. Y.) 448; Dean z. Benn, 69 Hun (N. Y.) 519. Speculative Profits Are Not Recoverable. - Pollitt v. Long, 58 Barb. (N. Y.) 20 Clark v. Pennsylvania R. Co., 145 Pa. St. 438, 27 Am. St. Rep. 710. Where a Dam Obstructs a Public River, and is in consequence a public nuisance, a person whose rafts are injured and delayed by it can recover only for such damage as is peculiar to him, and is the natural and proximate consequence of the nuisance. Powers v. Irish, 23 Mich. 429. Injury to an Easement. Where a mill owner has a right to the use of a reservoir and dam, the fee belonging to a third person, and is charged with the duty of maintaining the dam, and a riparian proprietor below erects a dam which sets the water back upon the reservoir dam, he can recover only for the injury to his easement. A diminished benefit from 'the use of the reservoir, or an increase of the cost and trouble of keeping the dam in repair, or an obstruction of the plaintiff in his right of repairing, would constitute such an injury. Robertson v. Woodworth, 42 Conn. 163. Where Injured Party Makes No Effort to Limit Effects of Injury. — Where injury is caused by a dam it is the duty of the person injured to make a reasonable effort to limit the effects of the injury. So where the operation of a mill is impaired by the construction of a dam on the stream below, the measure of damages is not the loss caused by the entire stoppage of the mill, but only such loss as cannot be prevented by the use of other appliances. Decorah Woolen Mill Co. v. Greer, 49 Iowa 490. The Amount of Damage Is a Question for the Jury. Farmer v. McDonald, 59 Ga. 509. - General Benefits Cannot Be Set Off Against Damages. In an action to recover damages for an injury to land, caused by a milldam, the defendant cannot offset or reduce those damages by the general benefits resulting to the plaintiff from the building and proximity of the mill. Marcy v. Fries, 18 Kan. 353. 2. Under the Delaware Act, if the owner of an upper mill wilfully discharges an unusual quantity of water from his pond, or if such discharge is caused by the accidental breaking or overflowing of his milldam, he is bound to give notice to the owner or keeper of the mill next below, and for neglecting this duty is liable to double damages. Laws of Delaware (1893), c. 61, § 3; McIlvaine v. Marshall, 3 Harr. (Del.) 1; Ross v. Horsey, 3 Harr. (Del.) 60. It is no defense that such notice would not have been of any use to the lower mill. Ross v. Horsey, 3 Harr. (Del.) 60. In an assessment of damages under the Iowa statute, the overflow of agricultural land and the consequent damage are not the only matters to be looked at. The flooding of a coal bed or stone quarry, the loss of a spring, or the destruction of a ford should be considered. Walters v. Houck, 7 Iowa 72. Where land is overflowed by a milldam erected under the Kansas milldam act, the measure of damages is the difference in value of the land without the milldam and the value of the land with the milldam. Harding v. Funk, 8 Kan. 315. Exemplary Damages. Where a dam is a nuisance, if a person continues to maintain it after its wrongful character has been judicially determined and damages have been recovered against him, the case becomes one for exemplary damages, and in a second action the plaintiff should be awarded damages sufficient to compel the defendant to abate the nuisance. 1 c. INDICTMENT. — A dam which obstructs navigation, or causes water to overflow a public highway, or creates a stagnant pool injurious to the health or comfort of the neighborhood, is a public nuisance and may be indicted as such.3 2. Of Dam Owner-a. INJUNCTION. - Where interference with or the destruction of a dam would cause an injury for which an action at law would Under the Maine act it is competent for the jury in their verdict to include compensation for injury done to fences, and for the annual expense of maintaining fences for the future. Jones v. Phillips, 30 Me. 455. The general rule for estimating damages under the Massachusetts mill acts is, that comparison is to be made between the present productive value of the land flowed and what its productive value would have been had it not been injured by the dam. Palmer Co. v. Ferrill, 17 Pick. (Mass.) 58; Bates v. Ray, 102 Mass. 458; Howe v. Ray, 113 Mass. 88. Under these acts damages may be recovered for flooding a well and the cellar of a house, but damages cannot be recovered for injuries to land which is not itself overflowed, but is rendered less valuable for building purposes by noxious and offensive smells proceeding from the adjacent lands when the water caused by the dam to overflow them is occasionally drawn off. Eames v. New England Worsted Co., II Met. (Mass.) 570; Fuller v. Chicopee Mfg. Co., 16 Gray (Mass.) 46. In assessing damages under the Massachusetts mill acts, the jury may take into view any benefit derived from the overflowing. Avery v. Van Deusen, 5 Pick. (Mass.) 182; Paine v. Woods, 108 Mass. 160. Under the Nebraska act one whose land is flowed by a milldam is entitled to compensation for the land overflowed and rendered useless by reason of the erection of the dam, and for the diminution in value of the residue of the tract by reason of the increased depth of the stream. Sutliff v. Johnson, 17 Neb. 575. This is also the measure of damages under the Wisconsin act. Rooker v. Perkins, 14 Wis. 79: Pick v. Rubicon Hydraulic Co., 27 Wis. 433. But damages resulting from noxious and offensive vapors which affect the health of the plaintiff or of his family, but do not affect the land itself, cannot be recovered under the Wisconsin act. Rooker v. Perkins, 14 Wis. 79. Under the New Hampshire milldam act (N. H. Pub. Stat. 1891, p. 396) fifty per cent is added to the amount of damages assessed by the jury. Dow v. Electric Co., (N. H. 1894) 31 Atl. Rep. 22. On a petition under the Virginia mill act for leave to add to the height of a millḍam, the only proper subject of inquiry is what damages will be occasioned by the proposed addition. It is error, therefore, to direct the jury to assess such other damages accruing from the dam already erected as were not contem 2. Effect of Dam on Health a Question for Jury. Whether or not a dam renders the neighborhood unhealthy is a question of fact for the jury. Douglass v. State, 4 Wis. 387. 3. Dam Which Creates a Public Nuisance May Be Indicted. Yolo County v. Sacramento, 36 Cal. 193: Cox v. State, 3 Blackf. (Ind.) 193: State v. Godfrey, 12 Me. 361; Com. v. Fisher, 6 Met. (Mass.) 433: Eames 7. New England Worsted Co., 11 Met. (Mass.) 570; Com. . Stevens, 10 Pick. (Mass.) 247; Board of Health v. Copcutt, 140 N. Y. 12; State v. Thompson, 2 Strobh. L. (S. Car.) 12, 47 Am. Dec. 588; State v. Rankin, 3 S. Car. 438, 16 Am. Rep. 737; State v. Gainer, 3 Humph. (Tenn.) 39; Gaston v. Mace, 33 W. Va. 14, 25 Am. St. Rep. 848; Douglass v. State, 4 Wis. 387: In re Eldred, 46 Wis. 530. See also the title Nu SANCES. In West Virginia a dam erected in a floatable stream, to furnish power to operate a mill useful to the public, under authority duly had from a county court, is not a public nuisance, though without a sluice, and though it obstructs navigation. Watts v. Norfolk, etc., R. Co., 39 W. Va. 196, 45 Am. St. Rep. 894, 57 Am. & Eng. R. Cas. 694. A Dam Erected by Legislative Authority, although it obstructs navigation, cannot be indicted as a public nuisance. Ensworth v. Com., 52 Pa. St. 320. Under the Milldam Acts of Several States, a person who has complied with the provisions of the acts will not be held responsible for overflowing a highway. See, for example, Connecticut Gen. Stat. (1888), § 2687; Massachusetts Pub. Stat. (1882), pp. 1091, 1092; Minnesota Gen. Stat. (1894), SS 2375-2382. Lun In Wisconsin it has been held that a dam which creates a public nuisance may be indicted even though it be erected in conformity to the provisions of the milldam acts. ing v. State, 1 Chand. (Wis.) 178. Compare Stoughton v. State, 5 Wis. 291. See also Neaderhouser z. State, 28 Ind. 257. When an Indictment Will Not Lie. A person cannot be indicted for maintaining a dam whereby no greater nuisance is created, and of no different character, than would have ex afford no adequate remedy, an injunction will be granted to restrain such interference or destruction. 1 b. DAMAGES. — The owner of a dam who suffers damage by reason of the destruction of his dam, or of an injury to it or to any of his rights as a dam owner, may bring an action against the party doing the injury for the damages sustained. 2 DANCING. DANGER See note 3. DANGEROUS.-"Danger" means peril; risk; hazard; expos ure to injury, loss, pain, or other evil. Homicide. As to the danger which will justify the killing of another in self-defense, see the title SELF-DEFENSE.5 isted without it. Beach v. People, 11 Mich. 106. 1. When Dam Owner Entitled to Injunction. Romer, J., in Brymbo Water Co. v. Lesters Lime Co., 8 Reports 329; Tatnall v. Shallcross, 4 Del. Ch. 634; Sword v. Allen, 25 Kan. 67; Riverdale Park Co. v. Westcott, 74 Md. 311, 28 Am. St. Rep. 249; Kay v. Kirk, 76 Md. 41, 35 Am. St. Rep. 408; Belknap v. Trimble, 3 Paige (N. Y.) 577; Pioneer Wood-Pulp Co. v. Bensley, 70 Wis. 476. See also Fremont v. June, 8 Ohio Cir. Ct. Rep. 124; Egan v. Russ, 39 La. Ann. 967. New Hampshire. - Runnels v. Bullen, 2 N. H. 532. New York. - Van Rensselaer v. Van Rensselaer, 9 Johns. (N. Y.) 377; Munson v. Hungerford, 6 Barb. (N. Y.) 265: Prentice v. Geiger, 9 Hun (N. Y.) 350; Trevett v. Barnes, 36 Hun (N. Y.) 646, 21 N. Y. W'kly Dig. 560. North Carolina. - Gwaltney V. Scottish Carolina Timber Co., 115 N. Car. 579. South Carolina. — Leggett v. Kerton, 2 Rich. L. (S. Car.) 156. Vermont. Coe v. Hall, 41 Vt. 325; Canfield v. Andrew, 54 Vt. 1, 41 Am. Rep. 828. See also Toothaker v. Winslow, 61 Me. 123. See generally the title DAMAGES, ante, p. 537. Measure of Damages. In an action by the owner of a cranberry meadow for the removal of his dam, it was held that the true measure of damages was the diminution in value of the land for cranberry culture caused by the removal of the dam. Howes v. Grush, 131 Mass. 207. 3. License Tax. (See generally the title OCCUPATION, BUSINESS, AND PRIVILEGE TAXES.) - Dancing upon the tight-rope, and keeping time to music with the feet on the back of a horse going around a circus ring, do not amount to dancing within an act which provides that "no house, room, or other place * shall be kept or used for public danc * * ing, music, or other public entertainment of the like kind, without a license." If the dancing and music were essential parts of the entertainment, and not merely subsidiary to the general performance, the above acts would be included in the meaning of the term dancing. The defendant having been convicted in the court below, the case was remitted, as it could not be seen from the case stated whether the justices before whom the case was tried thought that music and dancing were an essential part of the circus performance, or convicted the defendant on the ground that any music or dancing brought the case within the statute. Quaglieni v. Matthews, 6 B. & S. 482, 118 E. C. L. 482. 4. Webster's Dict. Concealed Weapons. See the title CARRYING WEAPONS, Vol. 5, p. 732. 5. Exposure to Unnecessary Danger. - See the title ACCIDENT INSURANCE, vol. 1, p. 306. 4 Toler. Tolerably Safe, Contrasted with Actually Dangerous. In an action against a railroad company for injuries to an employee, a track repairer testified that he thought that he had made the track tolerably safe for use while the ground remained frozen. This was held not to exempt the company from liability. The court said: "Perhaps he did. After he repaired it, many trains ran over it safely before one was wrecked. A large percentage of the chances was therefore in favor of safety, and that is probably what Mr. Folsom means by the term tolerably safe.' But that is not the reasonably safe condition required by law. ably safe and actually dangerous' are not necessarily conflicting terms; indeed, the former frequently, perhaps usually, implies the latter. To illustrate: it is a dangerous act to stand on the brink of Table Rock and gaze into the turbulent waters of the Niagara; yet, because hundreds of thousands of people have done so safely and only a few have been precipitated into the abyss beneath, the act is tolerably safe." Stetler v. Chicago, etc., R. Co., 49 Wis. 619. See generally the title MASTER AND SERVANT. Dangerous Condition - City Streets. (See also the title STREETS AND SIDEWALKS.)- A witness testified that a street had been in a dangerous condition at the time of the accident. The court said: "By dangerous, condition is meant, we think, something more than the accumulation of materials on the neighbor. hood of a building undergoing erection or repair, or that excavation, more or less deep, -- DANGEROUS CROSSINGS. See the title CROSSINGS, ante. See the titles ASSAULT AND BATTERY, vol. 2, P. 970; CARRYING WEAPONS, vol. 5, p. 736; and see generally the titles HOMICIDE; SELF-DEFENSE. DANGERS AND ACCIDENTS OF THE SEAS, RIVERS, AND NAVIGATION. — See the titles ACT OF GOD, vol. 1, p. 587; BAILMENTS, vol. 3, p. 748; ConTRACTS OF AFFREIGHTMENT AND CHARTER PARTIES, vol. 7, p. 221; MARINE INSURANCE. DANSEUSE. A leading dancer in a ballet.1 DARREIN CONTINUANCE. See ENCYC. OF PLEADING AND PRACTICE, PUIS DARREIN CONTINUANCE. DARTMOUTH COLLEGE CASE. See the title IMPAIRMENT OF OBLIGATION OF CONTRACTS. DASH. To throw mortar on the joints of a wall, and with the flat surface of the trowel smooth it even with the surface.2 which is needed in order to put down a sidewalk of stone slabs. A temporary state of disorder is absolutely inseparable from improvement of certain kinds; a street or sidewalk is rendered impassable, or partially impassable, during the progress of the work; it is matter of familiar experience that a part of it is for the time withdrawn from public use, in order to allow the doing of the work needed for the embellishment or convenience of the city; and all that can reasonably be demanded of the city, under such circumstances, is the taking of due care, or the enforcement of the regulations made (if there be such competent regulations), for securing passengers of ordinary prudence from danger.' Schweickhardt v. St. Louis, 2 Mo. App. 580. In Coates v. Canaan, 51 Vt. 137, it is said: 'The word dangerous is the opposite of the word 'safe.' When a given place in a highway ceases to be safe it becomes dangerous. While it is reasonably safe the town is not liable though the traveler receives injury thereon.' Navigation - Dangerous Exposure. (See also the title NAVIGATION.) — In The Mary Powell, 31 Fed. Rep. 624, Judge Brown says: "By dangerous exposure, I understand not the mere possibility of injury through some mischance not reasonably likely to occur, but an exposure that is clearly liable to receive or to inflict injury, in the ordinary chances, mistakes, and hazards of navigation, such as are to be reasonably apprehended as liable to arise." See also The Michigan, 52 Fed. Rep. 504. Covenant. (See also the titles BUILDING RESTRICTIONS AND RESTRICTIVE AGREEMENTS, vol. 5, p. 2; COVENANTS, ante; LEASES.) A lessee's covenant, in a lease of a public house, that he will not do or suffer anything whereby the license" may be in any danger of being suspended, discontinued, or forfeited," is not broken by his being convicted of selling drink after hours, if the conviction is not indorsed on the license. Fleetwood v. Hull, 58 L. J. Q. B. 341. The learned judge said: If the conviction had been indorsed on the license, a question might have arisen whether the license 726 was or was not endangered. If two convictions had been indorsed, then the license would no doubt have been in danger, because a third conviction would, by section 30 Licensing Act 1872, forfeit the license." Same-Dangerous Business. The manufacture of paraffine or lubricating oil, which is obtained from the residuum of petroleum by distillation, is a breach of a covenant in a deed not to erect on the lots conveyed "any manufactory of gunpowder, glue, varnish, vitriol, turpentine, or any brewery, distillery, slaughter-house, or other noxious or dangerous trade or business." It is a dangerous and noxious business. Atlantic Dock Co. v. Libby, 45 N. Y. 499. So of resin oil. Atlantic Dock Co. v. Leavitt, 50 Barb. (N. Y.) 135. 54 N. Y. 35. See the titles COVENANTS, ante; LEASES; BUILDING RESTRICTIONS AND RESTRICTIVE AGREEMENTS, vol. 5, p. 2. 1. Danseuse. Under an employment as seconde première danseuse, one can only be required to appear in the dances which, according to the usages of the theatre, enter into that employment; and a refusal by one so employed to dance a parlor dance, the polka, in parlor dress, with the figurantes of the theatre, in a play, is not ground for dismissal. Baron v. Placide, 7 La. Ann. 229. See generally the title THEATRES. Where theatrical managers engage a woman as première danseuse, and then assign her a place in the ballet which by the usages of the stage is filled by those of inferior rank, she cannot be compelled to fill the lower position, and may consider the contract broken and recover damages. Roserie v. Kiralfy, 12 Phila. (Pa.) 209. 2. Distinguished from Pointing. This is distinguished from "pointing," which is " to fill the joints of the wall with mortar and then smooth them with the point of the trowel." The words have not the same meaning, and an engagement to point mason-work is not satisfied by dashing. Gulf Creek Bridge, 3 Del. Co. Rep. (Pa.) 172. See generally the title WORKING CONTRACTS. Volume VIII. II. NOT NECESSARY TO VALIDITY OF INSTRUMENTS, 728. 2. Deeds, 728. 3. Bills, Notes, and Checks, 728. III. ALTERATION OF DATE, 728. IV. EVIDENCE, 729. 1. Presumptions as to Date, 729. a. In General, 729. b. Deeds, 730. c. Bills, Notes, and Checks, 731. d. Power of Attorney, 731. e. Date of Writ, 731. 2. Exceptions to Rule as to Presumptions, 731. 3. Presumptions Not Conclusive -Parol Evidence, 732. a. In General, 732. b. Deeds, 733. c. Bills and Notes, 734. 4. Fudicial Notice of Certain Dates, 734. 5. Opinions of Experts, 735. 6. Proof of Date of Fudgment by Record, 735. V. INCONSISTENT, IMPOSSIBLE, AND ILLEGIBLE DATES, 735. CROSS-REFERENCES. For other matters of SUBSTANTIVE LAW and EVIDENCE related to this subject, see the following titles: ACKNOWLEDGMENTS, vol. 1, p. 483; ALTERATION OF INSTRUMENTS, vol. 2, p. 181; BILLS OF EXCHANGE AND PROMISSORY NOTES, vol. 4, p. 65; DEEDS; JUDICIAL NOTICE; LIMITATION OF ACTIONS; PRESUMPTIONS; RECORDING ACTS. I. DEFINITION. The date of a writing is that part which purports to specify the time when it was executed.1 lien may be taken, in the absence of anything in the act indicating a different intention, to mean the time when such work was done or materials furnished, as specified in the plaintiff's written claim. Bement v. Trenton Locomotive, etc., Mfg. Co., 32 N. J. L. 515. "After Date of Appointment"-"From Such Date." In 1556 of the United States Rev. Stat., the phrases" after date of appointment' and from such date," touching a passed assistant surgeon, do not refer to the date of his original appointment, when he entered the service as assistant surgeon, but to the time of the notification by the secretary of the navy, that he would thereafter be regarded as a passed assistant surgeon. U. S. v. Moore, 95 U. S. 760. |