*

*

court, and that it was purchased by Sam Davidson, and that said property brought more at said sale than it would have brought had the property described in said two notes for $1,500 each been sold separately, and had the property described in said two $750 notes been sold separately, and had the other property described in complainant's bills been sold separately, and that it was for the benefit of said defendant that the property described in complainant's complaint and mortgage and in said second amended plea of intervention of Continental Gin Company was sold together and as a whole. Fourteenth. It is agreed that in the sale to Sam Davidson above mentioned the property described in said two notes executed by defendant to the Continental Gin Company for principal sum of $1,500 each brought $3,500, and the property described in said two notes for principal sum of $750 each brought $2,000, and that in the event the Ardmore National Bank shall prevail in this suit said sums may be taken as a basis in determining the priority of the liens and rights thereto." Under the circumstances disclosed by the agreed statement of facts it was natural that all parties who hoped to establish liens against the property should insist on it all being sold together. It cannot be said that the Gin Company by agreeing to this arrangement, which would have the effect of being to the advantage of the other creditors, would work a forfeiture of its own rights. Where a vendor, after the appointment of a receiver to take charge of the property and affairs of an insolvent, nongoing corporation, files its pleas of intervention setting up all the facts in relation to certain reservation of title notes taken by the vendor for sales of machinery to the insolvent corporation, and further alleges that the reservation notes are liens on the property, and prays for their foreclosure, and also prays for general relief, this is not such an election as will preclude the intervenor from afterwards amending its plea of intervention, and asserting title and right to possession of the property described in the reservation notes as against one who claims to have a lien thereon subsequent in time to the reservation notes, where such lien, if it attached to the property at all, came into existence after the property fell into the hands of the receiver notwithstanding the reservation notes were not filed as chattel mortgages.

On the question of the illegality of the acknowledgment to the deed of trust we are of the opinion that the acknowledgment of a deed of trust executed by a corporation grantor to secure payment of certain promissory notes is a ministerial act. Where such an instrument is acknowledged before a notary public, who was at the time a director and treasurer of the grantor corporation and also indebted for unpaid subscriptions to its stock, which facts were known to the grantor, but there was nothing on the face of the instrument or acknowledgment indicating such re

lationship, the deed of trust was entitled to registration, and the registry thereof was notice to subsequent purchasers, incumbrancers, or lienors.

The correct rule is laid down in Bank v. Conway, 17 Fed. Cas. 1203, where it is held that, where the acknowledgment is regular and fair on its face, no hidden interest of the notary can be proved to impeach its validity. It is against the policy of recording acts to hold an acknowledgment void because of the secret interest of an officer taking and certifying it. The effect should be to prevent rather than allow hidden defects in the evidence of public records.

The same question was involved in Morrow v. Cole, 58 N. J. Eq. 203, 42 Atl. 673. In this case (Morrow v. Cole) the chancellor in his opinion says: "It is held in a number of cases that, if it appear on the face of the deed that the officer is either a party thereto, or a cestui que trust named therein, the acknowledgment is void and the record not notice. Wilson v. Traer & Co., 20 Iowa, 231; Bowden v. Parrish, 86 Va. 68, 9 S. E. 616, 19 Am. St. Rep. 873; Wasson v. Connor, 54 Miss. 351. Some dicta go further, and assert that the interest of the acknowledging officer, whether it appear upon the face of the deed or not, will render the acknowledgment a nullity. Groesbeck v. Seeley, 13 Mich. 345; Wills v. Woods, 28 Kan. 411. These dicta cannot be supported. Aside from the case of a married woman, as to which it is not necessary to express an opinion, it appears to me very plain that if the interest does not appear on the face of the deed the record is notice. The complainant's contention is that the officer who takes an acknowledgment performs a judicial act, and that as no man can be a judge in his own case, such act, if done by one interested, is void. This contention is unsound. The act is no more judicial than ministerial. A judicial act ordinarily has reference to some controversy. There is nothing suggestive of controversy in an acknowledgment. It is said that the officer must be satisfied that the person who appears before him is the grantor, and that his determination that he is is a judicial act. But the duty of identifying people, of being satisfied that they are what they claim to be, is discharged by all sorts of administrative officers-for example, by a treasurer who pays out money-and not only by officials, but at times by every member of the community. It may as well be predicated of the act, then, that it is ministerial as that it is judicial. Nothing else that the officer does has even the semblance of judicial action. He makes known the contents of the paper. He hears the grantor say that he signs it as his voluntary act and deed, and then he makes a written certificate of the facts. If the act of the officer is not judicial, the doing of it is not adjudging one's own case. If the grantor takes his own acknowledgment, it is of no effect, because it is obviously contrary to the

The The

provisions of our statute on the subject. If the grantee takes the grantor's acknowledgment, it cannot be said perhaps that any express provision of the statute is violated, but the act nevertheless is void, not because we have here an instance of a judge deciding his own case, but because the same public policy which prevents an interested judge from acting, will (with certain reservations) prevent an interested master or commissioner. distinction is important in this respect. decisions of judges should always be above suspicion. To insure this result the judges themselves should be absolutely free from the bias of self-interest, and the rule of public policy should be rigidly enforced. To apply it as rigidly to the case of commissioners, whose public functions are so different, would work little benefit, and would lead to results antagonistic to the policy of the registry laws. It may be safely asserted that it would be much more injurious to public interests to hold that extraneous proof of an undisclosed or secret interest (almost always slight) would avoid acknowledgments, and thus render the record of conveyances unreliable, than it would be to hold the contrary. Says Chief Justice Waite in National Bank of Fredericksburg v. Conway, 17 Fed. Cas. 1203: 'It is against the policy of the recording acts to hold an acknowledgment void be cause of the secret interest of an officer taking and certifying it. The effort should be to prevent rather than allow hidden defects in the evidence of public records.' Accordingly he held the acknowledgment under review in that case to be a ministerial act and the record notice. Such was also the decision in Lynch v. Livingston, 6 N. Y. 422, and Kimball v. Johnson, 14 Wis. 674. Both reason and authority concur in declaring where the interest of the acknowledging officer does not appear on the face of the deed that the acknowledgment is not void and that the registry of the deed is notice. In Wright v. Wells, 12 N. J. Law, 132, Marsh v. Mitchell, 26 N. J. 497, affirmed, 26 N. J. Eq. 631, and Homoeopathic Mutual Life Insurance Co. v. Marshall, 32 N. J. Eq. 110, the question related to the effect to be given to the declarations contained in the acknowledgment of a married woman-how far they were disputable. In the last of these cases Chancellor Runyon, dissenting in a measure from the view expressed in the previous cases, was of opinion that the act of the officer in ascertaining whether the married woman executed the conveyance of her own free will, without threats and coercion, was a judicial act. Perhaps with more accuracy it might be designated quasi judicial. Hitz v. Jenks, 123 U. S. 302, 8 Sup. Ct. 143, 31 L. Ed. 156. Whether judicial or not, it is manifest that these decisions do not touch the present case. They do not deal with the question of notice. I think the registry of the mortgage was notice, and that therefore it is a lien prior to the judgment."

Another case (Read v. Toledo Loan Company, 68 Ohio St. 280, 67 N. E. 729, 62 L. R. A. 790, 96 Am. St. Rep. 663) to the same effect is probably more in point. In the Ohio Case the mortgage was witnessed by two stockholders of the corporation grantee, and acknowledged before a notary public also a stockholder of the grantee corporation. The Supreme Court of Ohio says: "In the case at bar it is admitted that Cary D. Lindsay, the assignor, at the time he acknowledged this mortgage, knew of the relation the notary, Grant Williams, sustained to the Toledo Loan Company, and knew that he was then the holder of two shares of stock in said company; and there is in this case no imputation or charge of improper conduct or bad faith or undue advantage arising out of such interest or relationship, nor is there any claim but that the acknowledgment was freely and fairly made, in the honest belief that it was in all respects authorized and sufficient. To hold, then, under such circumstances, that the mortgage here in controversy was invalid, unless impelled thereto by statutory requirement 'or the plainest considerations of public policy, would, it seems to us, be a subversion of justice, and would be contrary to the plainest principles of equity and fair dealing."

In the case of Cooper v. Building and Loan Association, 97 Tenn. 285, 37 S. W. 12, 33 L. R. A. 338, 56 Am. St. Rep. 795, the court says: "There is quite a conflict of authority and diversity of holding in the different states upon the question of whether the act of taking an acknowledgment to a deed or other instrument is a ministerial or judicial act. It has been held to be a ministerial act in the United States courts, and in the courts of Arkansas, Georgia, Illinois, Kentucky, Maine, Massachusetts, Minnesota, New Hamshire, New York, Maryland, and Ohio. In these states it is held that an officer may take acknowledgment though related, or interested, or a party."

In Penn v. Garvin, 56 Ark. 513, 20 S. W. 410, the Supreme Court of Arkansas holds. that the formality of acknowledgments is designed for the protection of grantors, and that relationship to the grantor on the part of the officer taking the acknowledgment of the grantor does not invalidate the acknowledgment.

The case of Leonhard v. Flood, 68 Ark. 162, 56 S. W. 781, is quite distinguishable from the case at bar. In the Flood Case the notary taking the acknowledgment was a surety on the note secured by the mortgage he acknowledged. In such a case the interest of the notary is proximate and obvious, whereas in the case at bar the interest of the notary, if interest he had, was remote and speculative. Besides the Flood Case as authority on this point is considerably weakened by a strong dissenting opinion by Mr. Chief Justice Bunn, who after a review of the authorities, says: "The only case I have

'been able to find which definitely carries the rule beyond the parties to the instrument is Wilson v. Traer, 20 Iowa, 231, and that has little or no support, even from the authorities cited."

Finding no substantial error in the proceedings of the court below, its judgment is affirmed.

DUNN, HAYES, and TURNER, JJ., concurring. WILLIAMS, C. J., not sitting.

(20 Okl. 227)

COLE v. MISSOURI, K. & O. R. CO. (Supreme Court of Oklahoma. Feb. 18, 1908.) 1. WATERS AND WATER COURSES OBSTRUCTION-DAMAGES.

Where water flows from the lands drained by a water course into the water course, and the water course becomes obstructed by reason of a railway company constructing its roadbed and changing the channel of the water course in such a way that at times of ordinary freshets, the water thus obstructed accumulates until it exceeds the banks of the water course, and spreads out over the lowlands adjacent to the water course, the water thus accumulated is not surface water. If the water thus obstructed and accumulated breaks the bounds that confine it, and flows on or across the lands of a lower riparian owner in greater volume, with more violence or by different course or manner than it would if permitted to flow to him in its natural state, and he is thereby injured, the railway company is liable in damages for the detriment thus caused.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, § 218.] 2. TRIAL-DEMURRER TO EVIDENCE.

When there is any evidence introduced at the trial of a cause reasonably tending to establish the allegations of plaintiff's petition, it is error for the court to sustain a demurrer to such evidence and render judgment in favor of the defendant.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 46, Trial, §§ 338-340.]

(Syllabus by the Court.)

Error from District Court, Oklahoma County; B. F. Burwell, Judge.

Action by J. D. Cole against the Missouri, Kansas & Oklahoma Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

M. Fulton, for plaintiff in error. Clifford L. Jackson, John E. DuMars, Samuel A. Calhoun, and Horace Speed, for defendant in

error.

KANE, J. This is an action for damages brought by the plaintiff in error, J. D. Cole, against the defendant in error, the Missouri, Kansas & Oklahoma Railroad Company, for injury done to the growing wheat crop of plaintiff in error by the defendant in error construeting the roadbed of its railway near the town of Arcadia, in Oklahoma county, at the place where Coffee creek empties into Deep Fork creek, and changing the course of Coffee creek in such a way that the water thereof entered Deep Fork creek through an artificial channel constructed by the defend

ant in error, and by filling up the former bed of Coffee creek and the ground between Coffee creek and Deep Fork creek in such a way that all of the water of Coffee creek, instead of flowing in the course marked out by nature, as it had theretofore done, all of the water of said Coffee creek was turned into Deep Fork creek by way of this artificial channel, which was inadequate in times of ordinary freshets to carry off the water as it flowed into Coffee creek. The defendant in error also constructed its roadbed in the bottoms, close to the mouth of Coffee creek, and threw up a grade about four to six feet high, extending from Arcadia westward a distance of about half a mile, and this grade did not have culverts or openings sufficient to carry off the waters of Coffee creek in times of ordinary high waters. In May, 1903, heavy rains occurred in the valley of these creeks, and the waters of Coffee creek, being obstructed by the grade, became swollen beyond its banks, and continued to rise until it ran over the top of defendant in error's grade, and finally washed away the roadbed at the point where it formerly entered Deep Fork creek, and the waters thus freed, joining with the waters of Deep Fork creek, made a breach in the south bank of Deep Fork creek, and flowed on down the valley over and across the plaintiff in error's growing crop. The wheat crop of plaintiff in error which he alleges he lost was growing on his farm 11⁄2 miles in a northeasterly direction from Arcadia; Deep Fork creek flowing through the farm.

The contention of plaintiff in error is that defendant in error in constructing its roadbed, the artificial channel before mentioned, and filling up the former channel of Coffee creek failed to make adequate provisions for carrying off the water of Coffee creek in times of ordinary floods, and that by holding the entire volume of water back until the railway embankment gave way, suddenly precipitating the entire flood with great violence into and across Deep Fork creek, and out the south bank thereof, and the flood thus relieved, joining the waters of Deep Fork creek, rushed down the valley in greater volume and velocity, and in a different way and course than it would if not interfered with, and thus running over the land of plaintiff in error washed out his wheat. There is evidence in the record tending to support this contention. We believe it is substantially predicated upon the pleadings.

The only question, then, for this court to decide is: Does this evidence reasonably tend to prove a cause of action in favor of plaintiff in error? The court below held that it did not, and sustained a demurrer to the evidence, discharged the jury, and rendered judgment in favor of defendant in error. That Coffee creek is a water course is conceded by counsel for defendant in error in their brief. On page 7 thereof we find the following: "The natural outlet of Coffee creek is the channel of Deep Fork creek.

Coffee creek is a small water course extending from a point several miles northwest of Arcadia in a southeasterly direction to its union with Deep Fork creek." Deep Fork creek is also a water course. It is a more considerable stream than Coffee creek, as it carried off, not only the water flowing into Coffee creek, but also the water flowing from its other tributaries, and from the uplands drained by it. The legal status of these streams being established as water courses, it follows that the plaintiff in error was entitled to have the water flow to him in its natural state, not only in so far as it was a benefit to him, but he was also bound to submit to receive it so far as it was a nuisance by its tendency to flood his lands. Mason v. Shrewsbury Ry. Co., L. R. 6 Q. B. 578. The plaintiff in error and the railway company, being engaged in lawful enterprises, had equal rights in this valley; that is, they were entitled to the ordinary rights and liberties of riparian owners on the banks of natural streams, and as such each must use own right as not to infringe upon the rights of the other. "It has long been established that the ordinary course of water cannot lawfully be changed or obstructed for the benefit of one class of persons to the injury of another." Rex v. Trafford, 1 Barn. & Adol. 874.

Counsel for defendant in error argues that the new channel carries off as much water as the old channel of Coffee creek. This may be so; but it is settled law here as well as elsewhere settled beyond serious debate -that a railroad company in bridging its streams must provide a waterway for the passage of the water which flows into and down the stream in times of ordinary floods. C. V. & C. Ry. v. Brevoort (C. C.) 62 Fed. 129, 25 L. R. A. 527. "Every one is charged with notice of nature's operations, but who can tell when a man will build his bulwarks against the flood? There is no public policy to allow one landowner to improve his condition at the cost of his neighbor; but the improver must, at his peril, see to it that the benefit to himself is large enough to pay both him and his neighbor's damage, if any. The law does not look to the interest of one individual, but recognizes and enforces the duties implied in his relation to others." O'Connell v. East Tenn., Va. & Ga. Ry. Co., 87 Ga. 246, 13 S. E. 489, 13 L. R. A. 394, 27 Am. St. Rep. 246.

Counsel for the parties all contend for the application of the common-law rule to the facts in this case. As it is one arising under the laws of the territory of Oklahoma, where it is provided that "the common law, as modified by constitutional and statutory laws, judicial decisions and the conditions and wants of the people, shall remain in force in aid of the General Statutes of Oklahoma," we believe counsel are right in this contention. Both parties treat Coffee creek as a ratural water course. The only difference between them is their respective legal rights

under an undisputed state of facts. We find at page 11 of the brief of defendant in error the following: "Plaintiff, at page 9 of his brief, outlines the theory on which the demurrer was sustained in the following language: 'Overflow water from a natural water course, in times of high water, may be treated as surface water and as a common enemy.' This statement is approximately correct." Plaintiff in error at page 9 of his brief states his view of the case thus: "Overflow water from a natural water course in times of ordinary high water was not held to be nor treated as surface water under the common law of England." It will be seen by the above quotation from the brief of defendant in error that their theory is that the water that was held back by the inadequacy of the channel leading from Coffee creek to Deep Fork creek and the elevation of the railway grade must be treated as surface water, against which it may protect itself with impunity even to the damage of other riparian owners. This contention is not sustained by the authorities, nor do the authorities cited by the defendant in error Justify that conclusion. We believe the Supreme Court of Ohio in Crawford v. Rambo, 44 Ohio St. 279, 7 N. E. 429, states the rule correctly, as follows: "It is difficult to see upon what principle the flood waters of a river can be likened to surface water. When it is said that a river is out of its banks, no more is implied than that its volume then exceeds what it ordinarily is. Whether high or low the entire volume at any one time constitutes the water of the river at such time; and the land over which its current flows must be regarded as its channel, so that, when swollen by rains and melting snows, it extends and flows over the bottom along its course; that is, its flood channel-as when by drouth it is reduced to its minimum it is then in its low-water channel. Surface water is that which is diffused over the surface of the ground derived from falling rains and melting snows, and continues to be such until it reaches some welldefined channel in which it is accustomed to and does flow with other waters, whether derived from the surface or springs; and it then becomes the running water of a stream and ceases to be surface water." It may justly be said of the water of Coffee creek that it may at one time, as it fell upon lands drained by the stream, have all been surface water against which the defendant in error may have protected itself as a common enemy; but, when this water flowed naturally into Coffee creek and its natural outlet became obstructed by the grade of the railway in such a way that the volume of the stream became swollen beyond its limits and spread out over the adjacent bottoms, it can in no sense be termed surface water. "Whether water is or is not surface water within the meaning of that term must be determined from the peculiar facts in the case in which

the question is presented. But to say that the flood or overflow water of this Nemaha river, when out of its banks, and flowing from foothill to foothill, is not a part of the river itself, nor part of the natural water course, but mere surface water, is to contradict ordinary common sense. In one sense of the word all the water of this river was at one time, perhaps, surface water. When this water was falling upon the watershed of this stream, when it was millions of aqueous threads, flowing towards the stream covering the surface of the watershed, then it was surface water; but, when it reached the stream became a part thereof, whether the stream was then flowing between its ordinary banks and in its ordinary channel, or whether it had extended beyond its channel, and was flowing from one foothill to the other, then this water ceased to be surface water and became a constituent part of the natural stream." C., B. & Q. R. R. Co. v. Emmert, 53 Neb. 237, 73 N. W. 540, 68 Am. St. Rep. 602. The above case bears a close resemblance to the one at bar. The railroad company contended that its embankment was properly constructed, that the overflow of the flood water was surface water, and that the surface water was the cause of the damage, just as the railroad company contends here that the water held back by the insufficiency of the channel and the erection of its grade along the Coffee creek bottom was surface water.

The case of Walker v. N. Mex. & So. Pac. R. R. Co., 165 U. S. 593, 17 Sup. Ct. 421, 41 L. Ed. 837, the case the defendant in error relies on most to support its contention, does not seem to us to be in point in this case. In the Walker Case, supra, the water was not obstructed in a water course, but as is said in the opinion: "It was simply surface water. And the arroyos through which the water flowed after leaving the mountains were not running streams, natural water courses, but simply passage ways for the rain which fell." And further on in the same opinion the court said: "It is obvious, not only that it was mere surface water whose flow was obstructed, not only that no natural water courses were filled up, but also that the channels which were obstructed were not such ravines, gorges, and outlets as in a mountainous district must be open to prevent the forming of lakes and reservoirs therein, but simply the ordinary ditches and passageways which surface water will cut in a generally level district in its effort to reach some flowing stream." This opinion is not authority to support the theory of defendant in error that "Overflow water from a natural water course in times of high water may be treated as surface water and a common enemy." The Kansas case cited (Singleton v. A. T. & S. F. Ry. Co., 67 Kan. 284, 72 Pac. 786), and the Missouri case (Abbott v. Railroad Company, 83 Mo. 272, 53 Am. Rep. 581), merely hold that "a

channel or other depression in the ground forming the bank of a river through which water escapes and flows from the river only at times of high water does not constitute a natural water course, and obstructing the flow of water therein from the river, to the injury of another, is damnum absque injuria." Neither of these cases go so far as to hold that water accumulated by building embankments across a water course and by changing the natural channel thereof is surface water. We are of the opinion that where water flows from the lands drained by a water course into the water course, and the water course becomes obstructed by reason of a railway company constructing its roadbed and changing the channel of the watercourse in such a way at times of ordinary freshets, the water thus obstructed accumulates until it exceeds the banks of the water course, and spreads out over the lowlands adjacent to the water course, the water thus accumulated is not surface water. If this water thus obstructed and accumulated breaks the bounds that confine it, and flows on or across the lands of a lower riparian owner in greater volume, with more violence or by a different course or manner than it would if permitted to flow to him in its natural state, and he is thereby injured, the railway company is liable in damages for the detriment thus caused.

We do not agree with counsel for defendant in error "that the court cannot, under the issues, consider the question of damages as based upon the damming back of the overflow water by the railway embankment west of Arcadia." But, on the contrary, we hold that if there was evidence introduced at the trial reasonably tending to show that this water was diverted from its natural course and obstructed by the grade of the defendant in error in such a way that it flowed over and across the land of plaintiff in error in a greater volume, or in a different manner than it did before it was thus obstructed or diverted, and that it did by reason thereof wash out his wheat, to his injury, the case should have gone to the jury. The evidence introduced was to the effect that the plaintiff in error had been raising wheat on the same land ever since the opening of Oklahoma to settlement in 1889, and that, while the water flowing in its natural state did occasionally overflow the banks of Deep Fork creek and run over portions of the land of plaintiff in error, it never washed out to exceed four to five acres of wheat until the channel of Coffee creek was changed, and the waters thereof were obstructed. The testimony further tends to clearly show that never before did the water break over the bank of Deep Fork creek on the south side opposite to the place Coffee creek enters. The following question and answer are from the examination of plaintiff in error: "Q. I will ask if at any time since you have been living in that country water has broke over