within the principles of 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, and Neal v. Ohio River R. Co. 47 W. Va. 316, 34 S. E. 914. The first of these cases cited originated or grew out of the same flood conditions on Cabin creek involved in the case at bar. The only material difference in the facts is that in the Williams Case the injury resulted from the building of an oil well derrick and oil tanks within the banks of the creek, while in this case the alleged negligence consisted in placing a railroad engine across the stream in view of the approaching

waters to avoid damages to the trestles or bridges of the railroad company. The latter was as much an initial act of negligence as the other.

Counsel for defendant also rely on cases involving the blowing up of buildings to prevent the spread of fire such as Keller v. Corpus Christi, 50 Tex. 614, 32 Am. Rep. 613, and Surocco v. Geary, 3 Cal. 69, 58 Am. Dec. 385, all involving the exercise of the police power of the state. We think these cases have no application to the case at bar.

Our conclusion is to reverse the judgment below, to overrule the demurrer to the declaration, and to remand the case to the Circuit Court.

An interesting question is presented in the reported case (TAYLOR V. CHESAPEAKE & O. R. Co. ante, 112) as to the liability for damages to riparian property by means adopted to protect a bridge or other structure in or across a stream during a flood. The court admits the defensive right accorded riparian owners to protect themselves against damages by defensive works constructed at or on the borders of a stream, but holds that a riparian owner has no aggressive right to cast the burden of loss on another riparian owner in order to protect his own property. This question was also presented for adjudication in the case of Higgins v. New York, L. E. & W. R. Co. (1894) 78 Hun, 567, 29 N. Y. Supp. 563, wherein it appeared that during a flood the defendant's servants placed railroad planks and pieces of logs at the ends of an immense piece of timber chained across the stream so as to throw the water off. This turned the water across the premises of the plaintiff. In an action to recover for the damage done to the premises, the court said: "If this evidence is true, it tends to show that much of the damage suffered by the plaintiff on this occasion occurred through the means

adopted by the defendant's servants in protecting the bridge, and, if so, there can be no doubt as to the right of the plaintiff to recover."

In Noyes v. Shepherd (1849) 30 Me. 173, 50 Am. Dec. 625, the court said by way of dictum: "Imminent danger expected from fire or flood cannot excuse or exempt one from the use of ordinary care to prevent unnecessary injury to the property of others. What would under such circumstances be ordinary care must be determined by a jury; and it might not be the same care, or an equal degree of caution, which would reasonably be expected when there was little or no cause to apprehend immediate danger. However imminent the danger may be, a person must be held responsible for an injury to the property of another, occasioned by negligence of a less culpable character than such gross carelessness as would reasonably authorize an inference that it was done with an evil intent."

A person causing damage by precautions taken to protect his property from flood is liable if his act is found to be negligent. Hunter v. Pelham Mills (1898) 52 S. C. 279, 68 Am. St. Rep. 904, 29 S. E. 727. In that case the de

fendant offered testimony which tended to show that an unusually heavy rainy season had obtained in the section where his property was located, and that, on the day of the injury to the plaintiff's property, there was a heavy rainstorm, which caused the water to rise to a considerable height in an hour. It appeared that the defendant had five floodgates in his dam across the stream, and when the water overflowed his dam, he opened two of the floodgates to preserve his own property from injury. The water thus released caused the already swollen stream to overflow the lands and destroy the crops of the plaintiff. The defendant further alleged that to have allowed the water to run as it was doing when the two floodgates were raised would not only have flooded the defendant's mills, but would have caused greater danger to the plaintiff's property than could possibly have happened after the raising of the floodgates. The lower court instructed the jury that "negligence is the gist of this action. To find for the plaintiff, the jury must be satisfied from the evidence that the defendant negligently opened the floodgates of its dam, and that the raising of said floodgates caused the damage complained of." The jury found the defendant negligent, and on appeal the instruction was sustained.

The case of Ross v. Horsey (1840) 3 Harr. (Del.) 60, arose under the Statute of 1819 "for the preservation of mill property" (Dig. 405), providing that when a riparian owner discharged any unusual amount of water through his dam, notice must be given to the owner nearest the dam. It appeared that during a violent storm, the defendant cut his own dam when it was on the point of being broken, and that he gave no notice to the plaintiff residing next below.the dam. The court said: "The duty of providing for the safety of his neighbor's mill cannot be paramount to the right of taking care of his own. This would be unreasonable. If the force of tempest and flood was so great on this occasion as to require the presence of Mr. Horsey and all under his command, to preserve his own mill and dam, he could not reasonably be required to detach a part of that force as a messenger to the lower mill, in this state of peril to all mill property, arising from this unusual storm, all persons were bound to be

vigilant to provide for its effects; and though the duty of transmitting actual notice of breaches from those above to those below attached the moment it could be done without abandoning their own property, and in fact increasing the danger to all, it is not reasonable, and the law does not require, that it should be given sooner." A. S. M.

Search

V.

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validity.

Messrs. Froe & Capehart for plaintiff in error.

Messrs. Sale & Tucker, for defendant in error:

The verdict of the jury was not supported by the evidence.

White v. L. Hoster Brewing Co. 51 W. Va. 259, 41 S. E. 180; Lovett v. West Virginia Central Gas Co. 73 W. Va. 40, 79 S. E. 1007.

The action of the officers in removing Clark from the train was legal, and the court should have directed a verdict for the defendant, because there was no duty upon the employees of the railway company to interfere.

Claiborne v. Chesapeake & O. R. Co. 46 W. Va. 363, 33 S. E. 262; Tryon v. Pingree, 112 Mich. 338, 37 L.R.A. 222, 67 Am. St. Rep. 398, 70 N. W. 905; Hofschulte v. Doe, 78 Fed. 436; Page v. Citizens' Bkg. Co. 111 Ga. 73, 51 L.R.A. 463, 78 Am. St. Rep. 144, 36 S. E. 418; Anania v. Norfolk & W. R. Co. 77 W. Va. 105, L.R.A.1916C, 439, 87 S. E. 167, 11 N. C. C. A. 1025.

The railway company could not be held liable for the failure of its employees to interfere with the action of known officers of the law in the apparent exercise of their official authority, and the court should have directed a verdict for the defendant.

Nashville, C. & St. L. R. Co. v. Crosby, 183 Ala. 237, 62 So. 889; Louisville & N. R. Co. v. Byrley, 152 Ky. 35, 153 S. W. 36, Ann. Cas. 1915B, 240; Anania v. Norfolk & W. R. Co. 77 W. Va. 105, L.R.A.1916C, 439, 87 S. E. 167, 11 N. C. C. A. 1025; Bowden v. Atlantic Coast Line R. Co. 144 N. C. 28, 56 S. E. 558, 12 Ann. Cas. 783; 10 C. J. 908; May

field v. St. Louis, I. M. & S. R. Co. 97 Ark. 24, 32 L.R.A. (N.S.) 525, 133 S. W. 168; Thompkins v. Missouri, K. & T. R. Co. 52 L.R.A. (N.S.) 791, 128 C. C. A. 1, 211 Fed. 391; Brunswick & W. R. Co. v. Ponder, 117 Ga. 63, 60 L.R.A. 713, 97 Am. St. Rep. 152, 43 S. E. 430, 13 Am. Neg. Rep. 254; Owens v. Wilmington & W. R. Co. 126 N. C. 139, 78 Am. St. Rep. 642, 35 S. E. 259.

The instruction given by the court after the jury had failed to agree was error, in that it took from their consideration every question except that of the presence of the officers.

Stuck v. Kanawha & M. R. Co. 78 W. Va. 490, 89 S. E. 280; Petry v. Cabin Creek Consol. Coal Co. 77 W. Va. 654, 88 S. E. 105; Sun Life Assur. Co. v. Bailey, 101 Va. 443, 44 S. E. 692; Ferries Co. v. Brown, 121 Va. 13, 92 S. E. 813.

Williams, J., delivered the opinion of the court:

In an action of trespass on the case plaintiff recovered a verdict against defendant for $500, which, on motion of defendant, the court set aside, and plaintiff brings error, asking that the judgment be reversed, and judgment entered here on the verdict.

Plaintiff purchased a ticket from Ironton, Ohio, to Iaeger, West Virginia, and boarded one of defendant's trains as a passenger on December 16, 1916. He and a number of others had gone to Ironton on the day previous to purchase liquor. It was not then unlawful for a person

to carry more than 2 quarts of liquor into the state for personal use, provided the container thereof was properly labeled, showing the kind and quantity thereof. A coach was attached to the rear of the train just behind a Pullman car at Ironton for the accommodation of those passengers who were carrying liquor, and plaintiff was told to get in that coach and did so. In fact, that coach seems to have been filled with such passengers. Plaintiff admits he had 16 quarts of whisky and 1 quart of alcohol in a suit case, but swears it was properly labeled, and the jury evidently believed him, which they had a right to do, although his testimony on this point is contradicted by other witnesses for defendant. When the train arrived and stopped at Williamson, West Virginia, which is the end of one of defendant's divisions, where a change of crews is made, and which is a long distance west of Iaeger, the prohibition officer and his deputies, four or five in number, armed with pistols, entered the coach and forced a number of the passengers, including plaintiff, to alight. Three or four of them, but not the plaintiff, were arrested for not having labels on their packages of whisky. Plaintiff did not attempt to reboard the train, but spent the night at a hotel and took another train the next morning for Iaeger. Plaintiff swears the train stopped some distance before it reached the depot at Williamson, and, quoting his language, says: "Some men came in and told us to get off that train, and drawed their guns, and some of them unloaded, and I didn't have time to get off until after the train had done started out. I went on into Williamson, and they made us get off."

He was asked:

Who made you get off?

A. Well, there was the brakeman and these here officers.

And, being asked if he was frightened, he replied: "Yes, sir; I was scared not to get off the train, after

I didn't know what they were going to do to me."

He was further asked what the brakeman did to him, and replied: "The brakeman didn't do anything; just asked me to go ahead off."

And, the question being repeated, he added, "To further any more trouble," meaning, of course, to avoid any further trouble.' Some of plaintiff's answers are hardly intelligible; but it fairly appears from his testimony that, when the officers entered the car, it caused a great deal of commotion among the passengers, some of whom got off immediately, and others a little later, after the train had pulled up to the depot, and that none of the train crew protested, or did anything to protect plaintiff from being ejected. Plaintiff's counsel rely on the cases of Gillingham v. Ohio River R. Co. 35 W. Va. 588, 14 L.R.A. 798, 29 Am. St. Rep. 827, 14 S. E. 243, and Anania v. Norfolk & W. R. Co. 77 W. Va. 105, L.R.A.1916C, 439, 87 S. E. 167, 11 N. C. C. A. 1025, in support of their contention that, under the state of facts established by plaintiff's evidence, the defendant is liable; that a carrier is under obligation to protect its passengers from unlawful arrest or ejection from its train.

In the Gillingham Case, the conductor of the train actually caused plaintiff's arrest for an offense committed in his presence, and which, by the exercise of proper diligence, he was bound to know plaintiff was innocent of. After sending for the officer to make the arrest, the conductor pointed out Gillingham to him as the guilty person; whereas the guilty party was shown to be another passenger occupying a seat behind him. The assault for which the arrest was made was committed on the conductor, and he pointed out to the officer the wrong man as the one who had committed it.

In the Anania Case, the officer, who happened to be on the train at the time, arrested Anania and some other passengers for disorderly conduct, which occurred in the presence

of the conductor and the officer. Anania had been guilty of no misconduct. The opinion in that case states that the conductor knew, or if reasonably diligent ought to have known, that fact. It was clearly the duty of the conductor in that instance to have protested, at least, against Anania's arrest.

But here the facts are quite different. It is a fact, proven and not disputed, that the conductor and brakemen in charge of the train all knew that the men who forced plaintiff to alight were officers, and in such case the law imposes no

Carrier-duty to protect passenger from arrest.

duty upon the carrier or its servants or agents to inquire into the officer's authority, or substitute their opinions for his, or to protest against his arresting a passenger. A passenger train is not intended as a place of refuge for criminals, and unless a passenger is arrested for an offense of which the carrier's agent knew, or by proper diligence ought to have known, he is not guilty, he is not obliged to interfere or protest against the arrest. The rule, however, is different where the carrier's servants know, or by the exercise of proper diligence ought to know, that the arrest of the passenger is unlawful, as was the case in Anania v. Norfolk & W. R. Co. supra.

In Bowden v. Atlantic Coast Line R. Co. 144 N. C. 28, 56 S. E. 558, 12 Ann. Cas. 783, it appears that plaintiff ran away with a sixteenyear-old girl for the purpose of marrying her. They were passengers on defendant's train. In response to a telegram from a brother of the girl to the chief of police of Jacksonville, North Carolina, notifying him that the parties had eloped, the moment the train arrived at Jacksonville he boarded the train to make the arrest. Apprehending his arrest, plaintiff, without the knowledge of the conductor, took refuge in the water-closet and bolted the door on the inside. officer demanded the key of the conductor, and he instructed the porter

Appre

The

to deliver it to the officer. Finding he could not open the door with the key, the officer presented his pistol through the window of the closet, and compelled plaintiff to unbolt the door and surrender. He then took the couple from the train. The court held the carrier not liable and in its opinion says that plaintiff having concealed himself in the closet without the knowledge of the conductor, the fact that the conductor surrendered the key is no evidence of a purpose to aid and abet the officer, nor is the fact that the train remained at the station a few minutes longer than usual any evidence of the conductor's intent to aid the officer in making the arrest. Says the court: "The most that can be said is that the conductor did not resist the officers in executing their purpose to arrest plaintiff. It is not the duty of a conductor to resist a known officer of the law in making an arrest."

In this case the brakeman's advice to plaintiff to "go ahead off," if he said it, which the brakemen all deny, and plaintiff was not able to identify the person who, he says, told him, is not evidence of any intent to aid the officers. According to plaintiff's testimony, the request was made simply to avoid further trouble. There is no evidence whether or not defendant's servants knew that plaintiff's suit case was properly labeled as containing whisky, or that they knew why the officers ejected him from the car. Knowing that they were officers, the defendant's agents were under no duty to inquire into the legality of their acts. The following authorities are in point, and support the principles announced in this opinion: 4 R. C. L. 1194; 10 C. J. 908; Nashville, C. & St. L. R. Co. v. Crosby, 183 Ala. 237, 62 So. 889; Louisville & N. R. Co. v. Byrley, 152 Ky. 35, 153 S. W. 36, Ann. Cas. 1915B, 240; Brunswick & W. R. Co. v. Ponder, 117 Ga. 63, 60 L.R.A. 713, 97 Am. St. Rep. 152, 43 S. E. 430, 13 Am. Neg. Rep. 254, and Thompkins v. Missouri, K. & T. R. Co. 52 L.R.A.