190 Ill. App. 191, supra, it was held that an infant or his next friend may hire attorneys' services, as these are necessaries, and the attorneys are entitled to a reasonable compensation.

In Searcy v. Hunter (1891) 81 Tex. 644, 26 Am. St. Rep. 837, 17 S. W. 372, the court said, referring to an action relating to land: "Looking to the condition of affairs in our own state, it seems to us that to refuse to allow an attorney who, at the instance of a next friend, has instituted a suit in behalf of a minor and recovered for him money or property, to claim from the infant a reasonable compensation for his services, would be to establish a rule which would operate to the prejudice of the class it is designed to protect. In such case, where the services have been beneficial to the infant, we are of opinion that reasonable compensation should be allowed."

In Sutton v. Heinzle (1911) 84 Kan. 756, 34 L.R.A. (N.S.) 238, 115 Pac. 560, where the appellant contended that the contract of an attorney with the minor, or with the next friend for the minor, was void, the court, while not discussing the amount of compensation, said: "Whether or not an express contract as to the attorney's compensation was enforceable according to its terms, the services having been rendered and having been beneficial to the minor, a liability exists to pay for them on the ground that they are classed as 'necessaries.'"

Where the father as next friend employed an attorney to prosecute a suit for his infant daughter for assault, and it did not appear that there was any agreement fixing the amount of compensation, the court considered the services as necessaries, and said: "The third request of the defendant, which the presiding justice denied, viz., 'If the defendant was an infant under the age of twenty-one years, the father could not bind her estate by any contract with the plaintiff for professional services,'-might be correct as an abstract proposition of law, disconnected from the circumstances of this case, but with its connections, we think it was properly denied. The father's employment of the plaintiff as

counsel in the action against Brown was simply for his infant daughter while he was acting as her prochein ami, and in connection with the conduct of his daughter was not the father's promise, but the implied promise of the infant daughter." Crafts v. Carr (1902) 24 R. I. 397, 60 L.R.A. 128, 96 Am. St. Rep. 721, 53 Atl. 275.

Some of the cases assert that the next friend or guardian ad litem may employ an attorney, the amount of compensation to be fixed by the court. Re Stone (1918) 176 N. C. 336, 97 S. E. 216; PLUMMER V. NORTHERN P. R. Co. (reported herewith) ante, 104.

While, as heretofore stated, this note does not take up the question as to what cases are proper for the hire of attorneys by next friends and guardians ad litem, it may be noted, for example, that in Grissom v. Beidelman (1912) 35 Okla. 343, 44 L.R.A. (N.S.) 411, 129 Pac. 853, Ann. Cas. 1914D, 599, it was held that where a next friend contracts for the services of an attorney to prosecute an action to recover the infant's interest in lands, the attorney cannot recover of the infant in an action at law for his services, as the same are not a necessary; and that in Re Johnston (1887) 6 Dem. (N. Y.) 355, the surrogate, while making an allowance to the special guardian of infants, refused an allowance to the special guardian for his counsel, as it had never been the practice of the court to make any such allowance. VI. Miscellaneous.'

In Blake v. Corcoran (1912) 211 Mass. 406, 97 N. E. 1002, where an infant brought an action by his father as next friend, and his attorneys collected a judgment in his favor, it was held that his father as next friend could not thereafter settle with them as to the amount they should retain for their services.

In Colgate v. Colgate (1873) 23 N. J. Eq. 372, when the guardian ad litem was the clerk of the court, appointed pro forma, only for the purpose of placing the infant within the jurisdiction of the court, the court directed that "the guardian ad litem must therefore be directed to employ proper counsel, approved by the court, to rep

resent the infant in this investigation, whose compensation, as well as the expenses necessarily incurred in the investigation, will be directed to be paid by the trustee out of the moneys of the infant in his hands."

In case of an infant defendant, the court observed: "The better practice would seem to be, where the guardian ad litem is appointed and he believes that his ward has rights, for him to apply to the court for leave to employ counsel, and the court should, in granting leave, fix the amount that might, if required, be expended for the purpose of the defense, which, if it, from protracted litigation or otherwise, should prove insufficient, the court, on being satisfied of the fact, might increase the sum." Smith v. Smith (1873) 69 Ill. 308. Quoted and approved in Richardson V. Tyson (1901) 110 Wis. 572, 84 Am. St. Rep. 937, 86 N. W. 250.

In the brief report of the case of Nagel v. Schilling (1884) 14 Mo. App.

576, it is stated to have been there held that the proper defense of a suit against an infant is a necessity, for the cost of which the estate may be liable, and that a request for the defense of such a suit may be presumed from the necessities of the case, taken in connection with the exercise of discretion by the guardian ad litem in engaging for such defense the services of the law firm of which he is a member.

In a case where, when the court spoke, the infant was of age, it was said: "Where, as in the present case, the plaintiff adopts and ratifies a settlement, he is liable for such costs, if any, as he would have been liable for had he been an adult when he began the action. It will, therefore, be open to him to prove, if he can, that the services of the solicitors were to be gratis or on any special terms." Vano v. Canadian Coloured Cotton Mills Co. (1910) 21 Ont. L. Rep. 144.

B. B. B.

Water

V.

general rule the right to have the waters of a stream or watercourse pass his land in its natural flow unobstructed and to render anyone violating or interfering with such right liable to him in damages sustained thereby. -right to confine flood to stream.

4. The only limitation on such right of a riparian owner is that any other riparian owner may erect barriers or dikes on his own land on the banks

bility to other riparian owners, protect themselves from the consequences of accidental and extraordinary floods by erecting defensive works along the front of their lands.

Cubbins v. Mississippi River Commission, 241 U. S. 351, 60 L. ed. 1041, 36 Sup. Ct. Rep. 671; Chesapeake & O. R. Co. v. Meriwether, 120 Va. 55, 91 S. E. 92; Mailhot v. Pugh, 30 La. Ann. 1359; Shelbyville & B. Turnp. Co. v. Green, 99 Ind. 205; 2 Farnham, Waters, 1839; Angell, Watercourses, §§ 347, 348.

A party cannot transfer to the land of another a danger or mischief already existing upon his own land.

Whalley v. Lancashire & Y. R. Co. 53 L. J. Q. B. N. S. 285, L. R. 13 Q. B. Div, 131, 50 L. T. N. S. 472, 32 Week. Rep. 711, 48 J. P. 500; Menzies v. Breadalbane, 3 Bligh, N. R. 414, 4 Eng. Reprint, 1387; Coulson & F. Waters, pp. 177-182.

If a riparian owner build a levee or embankment to protect his property, he is not liable for damages to another riparian owner caused by unusual or extraordinary floods unless he should have reasonably anticipated same, but he is liable when his acts co-operate with the act of God at the time, or when he should have anticipated the consequences of his acts.

Williams v. Columbus Producing Co. 80 W. Va. 683, L.R.A.1918B, 179, 93 S. E. 809; 40 Cyc. 573; Atkinson v. Chesapeake & O. R. Co. 74 W. Va. 633, 82 S. E. 502; Shelbyville & B. Turnp. Co. v. Green, 99 Ind. 205; Angell, Watercourses, $§§ 347, 348.

Messrs. Fitzpatrick, Campbell, Brown, & Davis and C. W. Strickling for defendant.

Miller, P., delivered the opinion of the court:

The sufficiency of plaintiff's declaration was challenged by defendant's demurrer. The court below The court below sustained the demurrer, and has certified the questions presented questions presented with its rulings thereon to us for review.

The substantial averments are that the plaintiff was owner of certain real estate and personal property in the town of Eskdale, situated upon and near the banks of Cabin creek, a non-navigable stream, and about 100 yards above the trestles or bridges of the de

fendant company crossing said creek; that on or about August 9, 1916, there was a cloud-burst on the head waters of said creek which caused a flood therein of unprecedented volume and violence to sweep down the valley and channel of said creek and through said town of Eskdale and Cane Fork and over and through said trestles or bridges of the defendant company, carrying large quantities of wreckage and débris before it; and that defendant, through its agents, servants, and employees acting within the scope of their employment, and with full knowledge that the said flood was sweeping down the channel of said creek toward its said railroad trestles or bridges, and in disregard of its duty not to divert, impede, or obstruct the natural flow of the waters in said creek so as to cause them to flow back, over and upon the plaintiff's property and damage it, and for the purpose and with the object of protecting its said trestles or bridges from being washed away and destroyed by said flood, wrongfully, negligently, knowingly, and unlawfully ran, or caused to be run and propelled, a large railroad engine, owned and controlled by it, out upon one of said trestles or bridges just below the said town of Eskdale and just below plaintiff's property, and in the course and pathway of the waters of said flood, and there to remain and to obstruct the natural flow of the waters in said creek, and causing the wreckage and débris then being conveyed down said stream, and thereby causing the water to be dammed and backed up stream and over and upon plaintiff's said property, whereby it was damaged and destroyed and whereby he sustained great damage and loss, amounting to $10,000.

It is conceded on both sides that the cloud-burst causing the flood and the waters of unprecedented volume and force to flow down the creek as alleged constituted an act of God for which the defendant without some initial act of negligence on its part could not be ren

Waterliability for act of God.

This is a well-settled proposition of law in this state

and elsewhere. Williams v. Columbus Producing Co. 80 W. Va. 683, L.R.A.1918B, 179, 93 S. E. 809; Atkinson v. Chesapeake & O. R. Co. 74 W. Va. 633, 82 S. E. 502.

But counsel for plaintiff contend that with knowledge on the part of defendant of the oncoming flood waters, the placing of its engine on the trestle or bridge in the middle of the creek and in the way of the stream so as to obstruct the natural flow of the water therein, which, together with the wreckage and debris caught thereby, caused the water to be dammed and backed up upon plaintiff's property as alleged, constituted an original act of negligence and invasion of his rights for which defendant is liable to account to him in damages.

The right of a riparian proprietor to have the waters of a stream or watercourse pass his land in its natural course unobstructed and to

-right_to

hold anyone violating this right liable natural flow. for damages sustained thereby is not controverted. This proposition is well settled and recognized not only by the decisions of this court but elsewhere. Roberts v. Martin, 72 W. Va. 92, 77 S. E. 535; Williams v. Columbus Producing Co. and Atkinson v. Chesapeake & O. R. Co. supra; Cline v. Norfolk & W. R. Co. 69 W. Va. 436, 71 S. E. 705; Cubbins v. Mississippi River Commission, 241 U. S. 351, 60 L. ed. 1041, 36 Sup. Ct. Rep. 671.

-right to confine flood to stream.

The only limitation upon this right is that each riparian owner for his own protection may erect barriers or dikes so as to confine the flood waters within the natural banks of the stream, a right pertaining to all such proprietors, and when exercised no one has the right to complain of another, although the effect of the thing done may have caused some injury to him or his property. Cubbins v. Mis

sissippi River Commission, 241 U. S. 364, 60 L. ed. 1047, 36 Sup. Ct. Rep. 671, supra, and cases cited.

The contention of counsel for demurrant is that because of the accidental and extraordinary conditions existing at the time of the alleged injury, the defendant had the right to run its engine upon the trestle or bridge, not for the purpose of restraining the flood waters to the natural banks of the creek and thereby protecting its property, but to hold in place works constructed by it across the stream, though the result of that act was to obstruct the free flow of the waters in the channel, catching the wreckage and débris therein, and to dam up the water and throw it back upon plaintiff. tiff. We find no warrant for this position in Chesapeake & O. R. Co. v. Meriwether, 120 Va, 55, 91 S. E. 92, nor in Cubbins v. Mississippi River Commission, supra, nor in Jackson v. United States, 230 U. S. 1, 57 L. ed. 1363, 33 Sup. Ct. Rep. 1011, cited and relied on by counsel. The only right recognized in these cases is the defensive one accorded owners to protect themselves against damages by defensive works constructed at or upon the borders of rivers or creeks or on the interior of their own lands against such extraordinary conditions. This is the limitation recognized by very ancient authority and in the Federal and other cases cited. But they furnish no precedent for the position of counsel that the defendant might lawfully, in the emergency existing, cast the burden of loss on plaintiff in order to protect its own property. Section 50, subd. 6, of chap- obstruction ter 54 (§ 2949) of the Code, gives railroad companies. the right to cross with their railroads along or upon any stream or watercourse, but specifically requires them to restore such stream or watercourse to its former state so as not to injure or impair its usefulness.

-right to place in channel.

The case presented by the declaration, in our opinion, comes clearly