The North American Life and Accident Insurance Co. v. Burroughs. accordance with the rules and must be disregarded; but if properly made there is nothing in them which would avail the plaintiff in error. The sixth and seventh assignments are not sustained, and there is nothing in them that calls for special notice. The questions presented by the remaining assignments, the ninth, tenth, eleventh, twelfth, thirteenth and fourteenth, have been already considered, and as we discover no material error in the record, the judgment is affirmed. Judgment affirmed.

NOTE. See note to Mallory v. The Traveler's Insurance Co., 7 Am. R. 414. In Southard v. Railway Passengers' Assurance Co., 34 Conn. 574, a rupture caused by jumping from a car, running, done voluntarily and unattended by any falling or stumbling, was held not to constitute an injury caused by accident. In Fitton v. Accidental Death Ins. Co., 17 C. B. (N. S.) 122, by one of the conditions of the policy against accidental death or injury, it was provided that the policy insured against cuts, stabs, concussions, etc., "when accidentally occurring from material and external causes where such accidental injury is the sole and direct cause of death to the insured, or disability to follow his avocation;" and then followed this exception: "But it does not insure against death or disability arising from rheumatism, gout, hernia, erysipelas, or any other disease or cause arising within the system of the insured before or at the time, or following such accidental injury whether causing death or disability directly or jointly with such accidental injury." It was held, that death from hernia, caused solely and directly by external violence, followed by a surgical operation performed for the purpose of relieving the patient, was not within the above exception.

In Smith v. Accidental Insurance Co., L. R. 5, Ex. 302, the policy was identical with that in the above case of Fitton v. The Accidental Ins. Co., except that in the excep tion "secondary cause' was inserted after the words "erysipelas or any other disease." The assured, on Saturday, the 24th of April, accidentally cut his foot against the broken side of an earthenware pan. On the Thursday following erysipelas supervened, and of that disease he died on the next Saturday. The erysipelas was caused by the wound, and but for the wound he would not have suffered from it. Held, that the insurers were protected by the conditions in the policy and were not liable. The case was distinguished from the Fitton case on the ground that the condition in the policy in that case did not contain any reference to "secondary" causes, and the hernia was instantaneously caused by the accident.

Where a policy provides that it shall be void if the assured change his occupation without notice, to a more hazardous one, held, that the term "changing his occupation" meant engaging in another employment as a usual business. Administrators v. The United States Casualty Co., 5 Vroom. (34 N. J.) 371. In an action upon a policy which insured against accidents generally, and provided expressly in what particular case the company were not to be liable, but did not provide that they would not be liable for a death occurring from a cause not connected with the occupation of the assured, or that he should not change his occupation, held, that the application of the assured was inadmisible to show his occupation at the time of effecting the insurance, so as to prove that he was otherwise employed when he met his death, such evidence being immaterial. Provident Life Ins. Co. v. Fennell, 49 Ill. 180.

The words "totally disabled from the prosecution of his usual employment" means inability to do substantially all kinds of his accustomed labor to some extent. To recover in such case, the assured must be deprived of the power to do to any extent substantially all the kinds of labor which constitute his usual employment. For such time he can recover and for no longer. Sawyer v. United States Casualty Co., 8 Am. Law Reg. N. S. 233. In Hooper v. Accidental Death Ins. Co., 5 H. & N. 545, the policy con tained a proviso that, in case the accident "shall cause any bodily injury of so serious a nature as wholly to disable him from following his usual business, occupation or pur

Lindeman v. Lindsey.

sults," the company would pay a certain sum during the continuance of the disability. The insured, who was solicitor and registrar of a county court, sprained his ankle severely, and was confined to his bed-room several weeks. Held, that inasmuch as the insured was so disabled as to be incapable of following his usual occupation, business or pursuits, he was "wholly disabled" within the meaning of the policy.

Fc: a full discussion of the subject of Accident Insurance, see Bliss on Life Ins 683.- REP.

LINDEMAN, plaintiffs in error, v. LINDSEY.

(69 Penn. St. 93.)

Riparian owners — - water privilege.

The owners of land, on opposite sides of a stream, agreed by covenant, running with the land, jointly to erect a dam, each to have the use of half of the water. The title to the land passed by various intermediate conveyances to plaintiff on one side of the stream, and defendant on the other. Held, that an action on the case would lie by plaintiff against defendant for using more than half of the water. In such a case, nothing less than an absolute denial of the right to one-half the water, followed by an enjoyment inconsistent with its existence for a period of twenty-one years or more, can amount to an extinguishment of it.

ACTION on the case by plaintiff against defendant, for using more than his half of the water of a stream.

The plaintiff owned a fulling-mill on one side of the Conodoguinet, and Lindeman, the defendant, a grist-mill on the other side.

The fulling property was owned on the 17th of April, 1820, by John Whisler, and the grist-mill, at the same time, by Jonas Rupp. On that day Rupp and Whisler entered into this agreement:

***"Whereas the said parties contemplate erecting a dam upov the said creek, for the purpose of using the water of the same creek, for mill-works, to be erected on the lands lying contiguous to said creek, on which they now respectively reside. Now, therefore, etc., the said Jonas Rupp covenants and engages for himself, his heirs, executors, administrators and assigns, that he, or they, or some of them, shall and will, during the ensuing summer, at his or their proper costs, etc., sufficiently build, etc., a dam upon and over the Conodoguinet creek aforesaid, from shore to shore, at such place, and of such dimensions as may be agreed on between the said par

Lindeman v. Lindsey.

ties, the said dam to be built at right angles with the stream of the creek, and to be so constructed as to raise the water in the dam three feet six inches, etc. * And in case that the said dam should be injured or destroyed by high water or otherwise, then the said Jonas Rupp, or his heirs, is to repair or rebuild the same again, at his own or their proper expense or charges, as first aforesaid, and in case the said John Whisler, his heirs or assigns, should erect a mill, they shall be at liberty to use one-half of the water in the said dam.

"And the said John Whisler, for himself, his heirs, executors and administrators, covenants and engages, that as soon as he or they shall erect any mill at or near the said dam, and draw any water out of the said dam for said mill, that he or they shall and will forthwith pay to the said Jonas Rupp, his heirs or assigns, one-half of the expense of the millwright costs paid in building and constructing the dam aforesaid by the said Jonas Rupp, his heirs or assigns. And in case the said dam should be injured or carried off or destroyed, it shall again be repaired or rebuilt by and between the said parties, at their joint and equal expense, if such injury happened after the mills shall have been erected on both sides of the dam aforesaid. *** "It is further agreed, that the said Jonas Rupp may apply for the view of a road, from the fording, etc. And for the true and faithful performance of the articles and covenants within mentioned, each of the parties bindeth himself, his heirs, executors and administrators, unto the other, his heirs and assigns, in the sum of one thousand dollars."

* * *

This agreement was recorded April 25, 1820.

Through various intermediate conveyances, Whisler's title became vested in the plaintiff and Rupp's in the defendants, and Fishel was his tenant at the mill.

The plaintiff testified that the defendants, in September, 1869, ran their mill day and night, and, when he did so, the water was low; he started on Sabbath evening, and on Monday morning there was no head for the fulling-mill; he remonstrated with both defendants, but it was not stopped; plaintiff told them that he would bring suit if they continued to run their mills so; they continued and he brought this suit; he had complained to former occupants, and hey would generally stop the mill.

The plaintiff offered to prove, by Jeremiah Bowers, "that he was a former owner of the property now held by Lindsey, and, while he

Lindeman v. Lindsey.

was occupying and carrying on the factory, Wilhelm was the occupier of the Lindeman property; they made the repairs to the dam, share and share alike, and, when the water was too low to enable the witness to do work at his factory, he went over to Wilhelm, and complained that he was using more water than belonged to him, and that witness would not stand it; that he, witness, was entitled to one-half the water; that then Wilhelm stopped one of his wheels until the head gathered."

The offer was objected to by the defendants, admitted, and a bill of exceptions sealed.

The witness testified in accordance with the offer.

There was other evidence for the plaintiff, corresponding with all that stated above; also, that when the water was flush, Lindeman, defendant and his predecessors used more than one-half without objection; that the plaintiff's mill did not require so much water as the defendants'; that the dam had been kept up by both parties. Defendants gave evidence that the dam leaked; that there was enough water in the creek to drive two mills, if the dam were tight; that there never had been any restriction to the use of the water by either owner; that, in 1865, the water being low, the plaintiff was told that the dam must be graveled; he promised to furnish some hands toward doing it, but did not.

The defendants proposed to ask a witness: "What is the capacity of the Conodoguinet creek at Bucher's mill, ten miles by the stream above Lideman's mill?" "How many pair of burrs are run?" To show that at Bucher's mill, constructed on the same principle as that of defendants, there is always sufficient water to drive two wheels, such as those of plaintiff and defendants, and to be followed by proof that large streams of water enter the creek below Bucher's mill, and above plaintiff's and defendants'.

The plaintiff objected; the evidence was rejected, and a bill of exception sealed.

The plaintiff's points, with the answers, were:

1. The agreement of the original owners, Whisler and Rupp, fol. lowed by repairing the dam at the mutual and equal expenses of the holders of the respective titles, still makes the basis of the rights of the parties, and Lindeman cannot use more than one-half of the water to the prejudice of the opposite owner.

Answer. "We answer this in the affirmative, unless you find that Lindsey, by his own conduct, deprived himself of the benefit of half

Lindeman v. Lindsey.

the water, by refusing to join Lindeman in repairing the dam, and thus, by his own neglect, permitted it to become leaky, or his forebay and gate to become in such bad repair as unnecessarily to waste the water, which he ought to have applied to propelling his wheels."

2. The condition of the dam is no excuse for Lindeman using more than his proportion of the water. The agreement and subsequent conduct of the holders of the respective titles, in paying for repairs, fix their respective rights, and are not meant for a good dam only, but for the water as found in that dam, and even if Lindsey refused to do his share of the repairs of the dam, yet Lindeman had no right to the whole, as he could have repaired and charged Lindsey with the one-half of the expenses.

Answer. "We cannot answer this point as requested. If Lindsey refused, after request, to join Lindeman in repairing the dam, and by such neglect and refusal the dam became leaky, and the water in the dam was insufficient to propel the mill, he cannot avail himself of his own wrong to recover for his own neglect, if the water permitted to escape would have given Lindsey his equal share if he had joined Lindeman in repairing the dam when requested. But if the leaky condition of the dam was owing to the mutual neglect of both parties, and Lindeman never requested Lindsey to join him in repairing the dam, then if Lindeman used more than half the water retained in the dam in its leaky condition, to the injury of Lindsey, Lindeman would be responsible for any damage sustained by Lindsey."

3. If the parties adhered to the agreement in paying for the repairs, and recognizing it in paying expenses, no statute of limitations will apply, nor a legal presumption arise, and the rights of the parties to the water continued the same.

Answer. "If the parties adhered to the agreement as stated in this point, the legal presumption, arising from lapse of time, would not arise.

The first three points of the defendants asserted that the form of action should have been covenant, and that the plaintiff could not recover in case. The court denied these points.

Their other points, with their answers, were:

4. If the jury believe that, for a period of twenty-one years prior to the bringing of the present suit, the owners of defendants' mill have been in the habit of using the water at their mill, without any