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language used in that case. The facts were permitted to spread out over the land of de. that the dominant owner had a depression in fendant in error. In 10 Am. & Eng. Enc. his land which filled with surface water, and Law, 2d ed. p. 236, the author says: “The in 1871, some 20 years before the case was upper proprietor cannot collect the waters tried, he dug a ditch 96 rods long upon his from his estate and discharge them by artiown land, to the head of a ravine, which con ficial channels in a new direction, or in inveyed the water across an adjoining 40-acre creased volume, upon the lands of the lower tract, and thence across the land of defend proprietor to his injury.” ant into a lake. This ditch was permitted In the case of Butler v. Peck, 16 Ohio St. to fill up in the course of four or five years. | 336, 88 Am. Dec. 452, we have a case closely The overseers of highways caused condemna- analogous to the one under consideration. tion proceedings to be instituted in 1893 for In that case the defendant, Peck, is shown the purpose of opening this ditch, which re to have been the owner of a tract of land sulted in an order directing the same to be having thereon a low, wet, and swampy opened, which act was enjoined. A trial fol. marsh or basin covering some five or six lcwed, in whicn the court found that the acres of land, upon which at certain seasons opening of the ditch would raise the waters water stood to a great depth, and at other of the lake in the spring of tne year higher times to a depth of from one to six inches, than it otherwise would be, to the extent of until it passed off through a natural outlet, submerging 11/2 or 2 acres of land, to his or by evaporation, or passed off by percoladamage in the sum of about $50. Judgment tion through the soil. The natural outlet was entered for this sum, which judgment would not take all the water off. From one was reversed upon appeal. The court in its to six inches would remain and pass off by opinion modified and criticised several prior evaporation and percolation. The defendant decisions of that court, and finally conclud. dug a ditch within 25 roas of defendants ed: “We hold that one has a right to drain north line, where it terminated, where the his land for any legitimate use, whether for water was discharged upon the surface of a railroad track, a wheat field, or a pasture, defendant's land, and from thence onto the and whether tne improvement is directly and land of an adjoining owner, and thence to wholly for the purpose of drainage, or wheth- the land of the plaintiff. In the trial of the er it is for some other purpose and such case the court instructed the jury as fol. drainage is a mere incidental result. But, lows: "If you find that, after natural outif he collect and convey the surface water off lets had ceased to carry off the water, there his own land, he shall do what is reasonable, still remained basin covering several under all the circumstances, to turn it into acres, on which water stood to the depth of some natural drain, or into some course in one, two, or three inches or more, which which it will do the least injury to his neigh. would not have passed upon the land of the bor; and, if he would prevent it from com- plaintiff but for this improved channel, the ing upon his land, he must not do so by ob- plaintiff is entitled to recover.” This charge structing some natural drain, and thereby of the trial court was excepted to, and the hold back the water and flood the land of question brought to the supreme court of his neighbor, at least if such natural drain that state, and, in passing upon the question is an important one. Applying these princi- thus presented, the court said: "The sole ples to the present case, we are of the opin- question made by that part of the charge to ion that these limitations on the common the jury which is complained of is this: law right of the owner to improve his land Whether an owner of land having upon it a so as to rid it of surface water do not pro marshy sink or basin of water, which basin, hibit this defendant from draining this de- as to a considerable portion of the water pression in the manner proposed. As before which collects within it, has no natural outstated, it fairly appears that this is the only let, may lawfully throw such water by arti

natural drain reasonably accessible, ficial drains upon the lands of an adjacent and the consequent injury to others is not so proprietor? We are clear that no such right great, as compared to the benefit to be de exists. It would sanction the creation by rived from the improvement as to make artificial means of a servitude which nature it unreasonable that account. The has denied. The natural ea sement arises judgment appealed from is reversed, and out of the relative altitudes of adjacent surjudgment ordered for defendant.” This faces as nature made them, and these altiis the strongest case presented by the tudes may not be artificially changed to the plaintiff in error in support of his con- damage of an adjacent proprietor. And it tention, and is distinguishable from the case makes no difference that, in the hypothetical under consideration in this: That there case on which the charge of the court below the water was discharged through a ravine complained of is based, in times of high into the lake below, while here the water by water a portion of the waters of the basin means of the ditch was discharged upon and I would overflow

along a natural





swale to and upon the lands of the plaintiff face water or slough water is a below; for as to those waters which natural. enemy which each landowner may reasonably ly could not surmount nor penetrate the rim get rid of in the best manner possible, but in of the basin, but were compelled to pass off relieving himself he must respect the rights by evaporation or remain where they were, of his neighbor, and cannot be justified by the case is the same as if the basin had no an act having the direct tendency and effect outlet."

to make that enemy less dangerous to himIn Liringston v. JcDonald, 21 Iowa, 160, self and more dangerous to his neighbor.” 89 Am. Dec. 564 (second syllabus), the court This language of the court in that case is says: “Where the owner of higher lands directly applicable to the case under conconstructed a ditch to drain the surface sideration, and would seem to lay down a water therefrom, which increased the flow of reasonable and correct ruie governing causes water upon a lower proprietor, or which arising under circumstances of like import. threw the water upon his land in a manner In this case it is shown that the surface different from that in which it would have water collecting in large quantities in the naturally flowed, to the latter's injury, the depression or basin upon plaintiff in erroris former is liable for the injury thus oc- land had no natural outlet, and seldom, if casioned, even though the ditch was con ever, overflowed the banks or rim of the destructed by him in the course of the ordi pression, and disappeared only by evaporanary use and improvement of his farm.” tion and percolation. If its presence there And again: “Injuries by flowing surface was a detriment to that tract of land, such water, done to a neighbor as the result of detriment could not, by the act of the plainordinary farming operations, such as plow tiff in error, be inflicted upon the servient furrows, are not actionable; but where tenement. Tne land of plaintiff in error ditches which caused an increased flow of might rightfully be cultivated to the very water on the lands of an adjoining owner brink of the depression, in fact to the water's were dug to reclaim or improve the land, the edge, and whatever of drainage was inci. higher owner is liable.” In the course of dent to a proper cultivation of the land, the the opinion in this case, the court cites ap- servient tenement was bound to receive; but provingly the language of Lewis, Ch. J., in a matter of drainage of the depression in Wheatley v. Baugh, 25 Pa. 528, 64 Am. Dec. question, constructed for the purpose of 721: “Accordingly, the law has never gone drainage and consequent increased valuation, so far as to recognize in one man a right to followed by a corresponding detriment to an convert another's farm to his own use for adjoining owner, is in violation of the genthe purposes of a filter.”

eral rule as now established by American auIn the course of his opinion in Livingston thorities, and we hold that where surface v. McDonald, Mr. Justice Dillon, in com- waters reach and become a settled body of menting upon the trial in the court below, water, retained in a natural body or said: “The court, in substance, laid down ceptacle, forming a lake or pond which is the law to the jury to be that, if the ditch in emptied only by evaporation or percolation, question increased the quantity of water they lose their character as surface waters, upon the plaintiff's land to his injury, or, and may not be drained by artificial means, without increasing the quantity, threw it to the damage of a lower or servient teneupon the plaintiff's lands in a different man- ment, without the person so artificially ner from what the same would naturally draining becoming liable for damages thus have flowed upon it, to his injury, the de- inflicted. fendant was liable for the damage thus oc- It follows that the judgment of the Discasioned, even though the ditch was con- trict Court must be affirmed, with costs. structed by the defendant in the course of the ordinary use and improvement of his All the Justices concur except Beaufarm. .. We recognize the fact (to champ, J., who presided in the court beuse Lord Tenterden's expression) that sur. I low, not sitting.


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Frank GUGLIELMO, Appt.

.... Or.. 1. Indictment by a grand jury is not

the constitution of grand jury, which empowers the legislature to modify

NOTE.--As to sufficiency of prosecution upon Information, instead of upon indictment of a grand jury, see aiso, in this series, Re Wright,

13 L. R. A. 748 ; State v. Tucker, 51 L. R. A. 246 ; and State v. Kyle, 56 L. R. A. 115.


or abolish it, provision may be made for the Y. R. Co. 18 N. J. Eq. 178, 90 Am. Dec. institution of criminal proceedings by in- 617; Lustig v. People, 18 Colo. 217, 32 Pac. formation without the entire abolition of the 275; United States v. Tureaud, 20 Fed.

grand jury. 3. The official oath of the officer filing 021; United States v. Maxwell, 3 Dill. 275,

information charging one with l'ed. Cas. No. 15,750; United States v. crime is sufficient to comply with a con-Smith, 40 Fed. 755; Myers v. People, 67 stitutional provision that no warrant shall ni. 503; State v. Montgomery, 8 Kan. 351; issue but upon probable cause supported by State v. Nulf, 15 Kan. 404; State v. Gleaoath, without the necessity of verifying each

son, 32 Kan. 245, 4 Pac. 363; State v. J. H., particular information filed.

1 Tyler (Vt.) 448; Walker v. Cruikshank, 4. The regularity of the appointment

of the deputy district attorney who 2 Hill, 296; Conner v. Com. 3 Binn. 42. signed an information cannot be challenged One cannot be prosecuted for a crime unby inerely alleging that the information was til he has been subjected to a preliminary not found, indorsed, or presented as required examination by a justice or other lawful by law.

officer, or has had an opportunity to be so 5. Proof of the appointment of a dep- examined.

aty district attorney who signed an information is not necessary to render it valid,

O'Hara v. People, 41 Mich. 623, 3 N. W. since the court is presumed to be cognizant 161;Hurtado v. California, 110 V. S. 516, of such appointment and of the powers of 28 L. ed. 232, 4 Sup. Ct. Rep. 111, 292; the appointee.

State v. Cain, 8 N. C. (1 Hawks) 352; 6. In the absence of evidence to the Stewart v. State, 24 Ind. 142; State v.

contrary, a deputy district attorney Leicham, 41 Wis. 565.
who signs the name of the district
attorney to the information will be

The district attorney is the officer to presumed to have possessed plenary prosecute, and, so far as official acts in power in the premises, and to have been prosecutions are required by law to be done authorized to examine witnesses to enable in a particular way, he is the only one auhim intelligently to charge persons with the thorized to discharge such duty. commission of crimes, to prepare informa

Byrd v. State, 1 How. (Miss.) 247; Durr tions, sign the name of the district attorney thereto, and file them in court.

v. State, 53 Miss. 425; Welch v. State, 68 7. A district attorney who insists that Miss. 341, 8 So. 673; Wilson v. State, 70

one accused of crime shall plead to Miss. 595, 35 Am. St. Rep. 664, 13 So. 225; the information thereby ratifies the subscrip- Carlisle v. State, 73 Miss. 387, 19 So. 207. tion of his name to the information by his The indictment (information) must be deputy.

signed by the district attorney. On Rehearing.

Bellinger & C. Codes & Statutes, & 1304. 8. Leave of court is not necessary to the

The duties of the district attorney are filing of an information by the district attorney charging the commission of crime.

quasi judicial, and cannot be delegated. 9. The fact that the record shows that

State ex rel. Blanchard v. Smith, 1 Or. a warrant was ordered to be issued | 250. upon an information filed by the dep

On petition for rehearing. aty district attorney in the absence of his chief does not show that it was in fact law, did not possess the power or authority

The attorney general, under the common issued without the support of the oath required by the Constitution, where it further to file a criminal information ex officio, or appears that the district attorney was pres- otherwise, in a case of felony. His right ent in court when accused first appeared, and was confined to mere misdemeanors only. ratified the information, so that his oath of

Chase's Bl. Com. p. 1010; 4 Comyns's office supported the warrant if it was not actually issued until after he had appeared Dig. 409; King v. Berchet, 1 Shower, 107; and assumed control of the proceedings. King v. Melling, 5 Mod. 549; 13 Encyclo

pædia Britannica, p. 73; 4 Inst. 172-174; (February 20, 1905.)

Rex v. Lewis, 1 Strange, 70; Rex v. SparlA a ; .

of the Circuit Court for Multnomah Sheffield Gas Consumers' Co. 3 De G. M. & County convicting him of murder. Affirmed. G. 304; Atty. Gen. v. Cambridge Consumers' The facts are stated in the opinion.

Gas Co. L. R. 4 Ch. 71. Messrs. Dan R. Murphy, John F. Lo

If the power of the district attorney to gan, and Ralph E. Moody, for appellant: file informations ex officio is based upon the

The motion to quash the information power of the attorney general to do so, should have been granted and sustained, and and it is ascertained that the attorney genthe court erred in overruling the same.

eral had no power to file such information Or. Const. art. 7, § 18, art. 1, § 9, Bill in the class of cases to which this informaof Rights; U. S. Const. 14th Amend. $ 1; tion belongs, then the district attorney does Re Lourie, 8 Colo. 508, 54 Am. St. Rep. 558, not possess the power. 9 Pac. 489; Zabriskie v. Hackensack & N. State v. Dover, 9 N. H. 468; Com. v. Wat.


erborough, 5 Mass. 259; State v. Kittery. | Hammond v. State, 3 Wash. 171, 28 Pac. 5 Me. 254; State ex rel. Giles v. Hardie, 23 334; Stout v. State, 93 Ind. 150; People v. N. C. (1 Ired. L.) 42; Com. v. Crotty, 10 Darr, 61 Cal. 554; United States v. Nagle, Allen, 403, 87 Am. Dec. 669; Opinion of 17 Blatchf. 258, Fed. Cas. No. 15,852; PeoJustices, 25 N. H. 541; State v. Ransberger, ple v. Etting, 99 Cal. 577, 34 Pac, 237; Peo106 Mo. 135, 17 S. W. 290; State v. Fletch ple v. Turner, 85 Cal. 432, 24 Pac 857 ; all, 31 Mo. App. 296; Territory v. Cutinola, State Faulkner, 32 La. Ann. 725; 4 N. M. 305, 14 Pac. 809.

State v. Higgins, 16 Mo. App. 559; State v. Comparison between the attorney general Hayes, 16 Mo. App. 560; Rasberry v. State, of England and the district or prosecuting 1 Tex. App. 664; People v. Griner, 124 Cal. attorney is not proper. The only officer 19, 56 Pac. 625; Browne's Appeal, 69 Mo. that can be correctly compared with the App. 159; State v. Hynes, 39 Mo. App. 569; attorney general of England is the attorney Hamilton v. Slate, 103 Ind. 96, 53 Am. Rep. general of the state.

491, 2 N. E. 299; Taylor v. State, 113 Ind. The district or prosecuting attorney is 472, 16 N. E. 183; Benson v. State, 68 Ala. an officer authorized by law to appear for 545; Triplett v. Gill, 7 J. J. Marsh. 438; 3 and represent a circuit, district, county, or Kent, Com. 458; 22 Am. & Eng. Enc. Law, municipality, in actions and proceedings be- p. 782, note; Mechem, Pub. Off. § 570. fore courts and judicial officers.

The statute has authorized the district at23 Am. & Eng. Enc. Law, 2d ed. p. 271. torney to file an information charging the The powers and duties of the prosecuting commission of a crime, without the examiattorneys cannot be implied, or loosely in nation of the charge by a committing magisferred from general principles.

trate; and no such examination is neces23 Am. & Eng. Enc. Law, 2d ed. p. 275; sary. Atty. Gen. v. Devonshire, L. R. 14 Q. B. State v. Belding, 43 Or. 95, 71 Pac. 330; Div. 195.

State v. Tucker, 36 Or. 302, 51 L. R. A. Upon the adoption of a constitution no 246, 61 Pac. 894; State v. Krohne, 4 Wyo. official function can be exercised otherwise 347, 34 Pac. 3. than is provided by such constitution.

The act providing for the prosecution 8 Cyc. Law & Proc. p. 763; Boyd v. Unit of crimes on information, as concurrent with ed States, 116 U. S. 616, 29 L. ed. 746, 6 indictment by a grand jury, is not repug. Sup. Ct. Rep. 524.

nant to art. 7, § 18, of the state ConstituMessrs. John Manning and A. M. tion. It is a modification of grand juries Crawford, Attorney General, for respond within the meaning of the Constitution. ent:

State v. Tucker, 36 Or. 291, 51 L. R. A. It is not essential to the validity of a 246, 61 Pac. 894; State v. Lawrence, 12 Or. criminal information that it should be ver- 297, 7 Pac. 116; Re Dolph, 17 Colo. 35, 28 ified by affidavit.

Pac. 470. State v. Pohl, 170 Mo. 422, 70 S. W. 695; State v. Kyle, 166 Mo. 287, 56 L. R. A. 115, Moore, J., delivered the opinion of the 65 S. W. 763; State v. Wilkson, 36 Mo. App. court: 373; State v. Buck, 43 Mo. App. 443; State The defendant, Frank Guglielmo, was inv. Parker, 39 Mo. App. 116; State v. Rans- formed against, tried, and convicted of the berger, 106 Mo. 136, 17 S. W. 290; Long v. crime of murder in the first degree, alleged People, 135 Ill. 435, 10 L. R. A. 48, 25 N. E. to have been committed in Multnomah coun851; Obermark v. People, 24 Ill. App. 259; ty June 14, 1904, by killing one Freda GuaGallagher v. People, 120 Ill. 179, 11 rascia, and from the judgment which folN. E. 335; Ratcliff v. People, 22 Colo. lowed he appeals. 75, 43 Pac. 553; State v. Fletchall, 31 Mo. It is insisted by his counsel that the App. 296; Re Boulter, 5 Wyo. 329, 40 Pac. court erred in denying their motion to set 520; State v. McCarver, 47 Mo. App. 650 ; aside the information on the ground that State v. Nulf, 15 Kan. 404; State v. White, it violated the 14th Amendment of the Con55 Mo. App. 356; Washburn v. People, 10 stitution of the United States, and was also Mich. 372; Noble v. People, 23 Colo. 9, 45 repugnant to g 18 of article 7 of that of Pac. 376; 12 Cyc. Law & Proc. p. 326; this state. It is argued that these sections 4 Bl. Com. 308 et seq.; 1 Bishop, Crim. Proc. of organic law guarantee to every suspected 4th ed. 8 144; Chitty, Crim. Law, 845. person the right to be charged by indictment

The name of the district attorney was found and returned by a grand jury, besigned to the information by H. B. Adams, fore he can be required to plead; that, the chief deputy of the district attoney. though our state Constitution authorizes This is sufficient.

the legislature to “modify or abolish” grand Sess. Laws 1903, p. 32, special session; , juries, it must do so either by increasing or State v. Belding, 43 Or. 101, 71 Pac. 330 ; / diminishing the number of “the most competent of the prominent citizens of the coun


“The jurors for our lady the Queen ty” of which that body is composed (State upon their oath present,” etc. 1 Archbold, v. Lawrence, 12 Or. 297, 7 Pac. 116; Zabris. Crim. Pr. & Pl. *76. Sir Matthew Hale, in kie v. Hackensack & N. Y. R. Co. 18 N. J. speaking of the caption of a written accuEq. 178, 90 Am. Dec. 617), or by totally sation, and of the necessity of stating thereabrogating the system; that the act of Feb. in the oath of the jurors, says: “It must ruary 17, 1899 (Bellinger & C. Codes & Stat- return tha the indictment was made per utes, 88 1258-1261), empowering the trial sacramentum.” 2 Hale, P. C. 167. The form court to convene a grand jury, demonstrates of indictment prescribed by the legislative that such inquisitorial body has not been assembly of this state omits a recital of the abolished, nor has it been modified, for the oath of the grand jurors. Bellinger & C. authority attempted to be conferred by that Codes & Statutes, $ 1304. Before the grand act upon the district attorney to charge jury can enter upon the discharge of their the commission of crimes by information duties, however, an oath is required to be only is the substitution of a single person, administered to them, the form of which is not chosen in the manner prescribed by the also ordained. Id. $ 1271. It has been refundamental law of this state for the selec- peatedly held in this state that the form tion of grand jurors. This question was of indictment given in the statute was suffiduly considered in the case of State v. cient. State v. Dodson, 4 Or. 64; State v. Tucker, 36 Or. 291, 51 L. R. A. 246, 61 Pac. Spencer, 6 Or. 152; State v. Brown, 7 Or. 894, and decided adversely to the defendant's | 186; State v. Lee Yan Yan, 10 Or. 365; contention; and, believing that the conclu- State v. Ah Lee, 18 Or. 540, 23 Pac. 424. sion there reached is supported by reason In civil actions it is unnecessary to allege a and authority, we adhere to and reaffirm fact which the law will presume. Bliss, the legal principles thus announced. Hur- Code Pl. 3d ed. § 175. It will be presumed tado v. California, 110 U. S. 516, 28 L. ed. that official duty has been regularly per232, 4 Sup. Ct. Rep. 111, 292; Bolln v. Ne formed (Bellinger & C. Codes & Statutes, & braska, 176 U. S. 83, 44 L. ed. 392, 20 Sup. 788, subd. 15); and hence, arguendo, it Ct. Rep. 287. In Re Boulter, 5 Wyo. 329, would seem that an indictment complying 40 Pac. 520, Mr. Chief Justice Groesbeck, with the form recommended by the legislain a very able opinion, answers the questions tive assembly, though omitting a recital presented by defendant's counsel on this therein of the oath of the grand jurors, was branch of the case, and shows that the doc- sufficient. trine contended for herein is without merit. At common law an information was a sur

The defendant, never having had or waived mise or suggestion upon record, made on a preliminary examination, was charged behalf of the sovereign to a court of crimiwith the commission of the alleged crime by nal jurisdiction, charging a person with an information not sworn to by any person, the commission of a misdemeanor. Wilkes upon filing which the court ordered a bench v. King, 4 Bro. P. C. 360; United States warrant to be issued for his arrest, though v. Tureaud, 20 Fed. 621. "Informahe was then in custody; having been ap- tions,” says a text writer, referring to prehended for the crime with the commis- such accusations made under the ancient sion of which he was charged. It is main- rule, “are of two kinds: First, such as are tained by his counsel that this warrant was merely at the suit of the King; secondly, issued without probable cause, because it such as are partly at the suit of the King, was not supported by oath or affirmation, and and partly at the suit of the party.' 2 that an error was committed in overruling Hawk. P. C. 356. Blackstone, speaking of the motion to set aside the information, based criminal informations, in distinguishing the on the ground that it violated § 9 of article two kinds, exhibited in the name of the 1 of the Constitution of this state, prohibit- King, says: "First, those which are truly ing the issuing of warrants for the arrest and properly his own suits, and filed cu of any person, except upon probable cause, officio by his own immediate officer, the atsupported by oath or affirmation. At con- torney general; secondly, those in which, mon law the commission of crimes was though the King is the nominal prosecutor, charged either by indictment or information, yet it is at the relation of some private depending in most instances upon the grade person or common informer; and they are of the offense. An indictment was an ac- filed by the King's coroner and attorney in cusation at the suit of the sovereign based the court of King's bench, usually called on the oath of twelve men of the county the master of the Crown office, who is for wherein the offense was committed.

2 this purpose the standing officer of the pubHawk. P. C. 287. The form usually pre- ic. he objects of the King's own pros. scribed for the commencement of an indict- ecutions, filed ex officio by his own attorment was, after stating the venue, as fol- | ney general, are properly such enormous

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