private nuisance described in the complaint, | lease or grant the water to a lower riparian namely, offensive stenches unhealthy to the proprietor, and may use the water for any plaintiff and other inmates of her house, purpose, provided he does not thereby interand injuriously affecting the value of her fere with the rights of other proprietors, land. This uncovered condition of the pond either above or below him. Such a dam is caused by the defendant's act in drawing and water privilege, with its incidental off the water stored by his dam, and the de- rights, constitutes property favored by the fendant is therefore liable, whether owner of law since earliest times. Holyoke Waterthe dam or not, to the plaintiff, for the in- Power Co. v. Lyman, 15 Wall. 500, 21 L. jury caused by this nuisance. The ultimate ed. 133; Smith v. Agawam Canal Co. 2 Alconclusion of the court is this: The defend- len, 356; Whittier v. Cocheco Mfg. Co. 9 ant drew off the water of Long pond, as N. H. 454, 458, 32 Am. Dec. 382; Nuttall v. alleged, and such acts constituted and cre- Bracewell, L. R. 2 Exch. 1; Miner v. Gilated a nuisance, and entitled the plaintiff mour, 33 L. T. 98. Not only has such propto damages on account of the appreciable erty been always favored by the public polinjury thereby caused her property. Upon icy of this state, but in later years the powthe trial the defendant claimed and asked er of eminent domain has been pushed to its the court to rule that the law is so that limits in authorizing the acquirement of where, in the natural and necessary use of a such property through proceedings for conmill pond, it is necessary in the summer demnation. Assuming, for the moment. months so to draw down the water as to that such property may become, by the mere expose some portions of the bottom of the fact of its existence, the occasion of a pripond, persons who purchase property and vate nuisance injurious to the property of live near the pond after it has been estab- neighboring landowners, so as to make its lished and used cannot object to such use owner liable in damages to such landowners, on the ground that bad odors arise from especially when he is chargeable with malisuch use. The court unqualifiedly overruled cious or wanton disregard of their interests, this claim, and in doing so plainly erred. it is evident that in determining the quesBierce v. Sharon Electric Light Co. 73 tion of such liability all the facts and cirConn. 300, 47 Atl. 324; State v. Sunapee cumstances must be weighed in their relaDam Co. 70 N. H. 458, 59 L. R. A. 55, 50 tion to the law which establishes a dam and Atl. 108. We think this error was mate- water privilege as property, and defines its rial, and seriously injured the defendant. incidents. In the present case it is apparent from the action of the court in overruling the defendant's claim of law, as well as from the whole finding, that the law relative to this peculiar property in a dam and water privilege was not duly regarded in drawing the inferences from evidence and from the facts found as well as in reaching the ultimate conclusion. The error complained of indicates that the material conclusions of the court may have been, and probably were, influenced to the detriment of the defendant by an erroneous view of the law, and must therefore be treated vitiating the whole judgment.

The conclusion of the court subjects the defendant's property to diminution or destruction, because its continued existence is inconsistent with the full enjoyment by the plaintiff of her property, and because, when such inconsistency exists between property such as the defendant's (i. e., a dam and water privilege) and property such as the plaintiff's (that is, land in the neighborhood of a mill and water privilege), the former property must be held and enjoyed in subordination to the latter. It is evident that in reaching such a conclusion the law determining the character and incidents of the defendant's property should be accurately understood and correctly applied. The owner of land on both sides and bed of a natural stream of water not navigable may erect a dam to create power to operate mills and machinery. He cannot do this so as to interfere with the right of proprietors of lands below to the natural flow of the water, nor so as to throw back the water upon the lands of those above without their consent; but, subject to these limitations, he may detain the water by a dam so as to create an artificial pond or enlarge a natural one, and use the water thus stored for his own purposes. He may open his gates and use the water a few miles below as well as at the outlet of the dam. He may

as

It was suggested in argument that the paragraph in the finding which states that in the year 1900, with his own hands, the defendant opened the gate of the dam, and permitted the water stored to flow out to the same extent and with similar effect upon the plaintiff's property, as in the former years mentioned, for no apparent purpose unless to assert his legal right to draw off the water as against any legal right in the plaintiff to have the water stored to the height of the dam, is sufficient to support at least that part of the judgment which gives the plaintiff damages. It may be doubtful whether, upon the pleadings, the defendant having established his ownership of the dam and water privilege, and that

during the years 1897, 1898, and 1899 he had, in pursuance of his legal right, used the water drawn from the dam for operating mills located at a point 2 miles below its outlet and owned by the Sharon Electric Light Company, which paid him for the power, the court could properly render judg ment only for the damage that might have been caused by this single act; but, if it had the power, it has not rendered such a judgment. The judgment for damages covers the injury to the plaintiff's property caused by the defendant's drawing off the water from his dam from 1897 to 1900, and it is evident that the erroneous view of the law which influenced the court in drawing inferences from testimony and in reaching the conclusion that the property of the plaintiff was injured and the defendant was liable for this injury affected its conclusion in respect to damage, including any that may have been suffered in the year 1900. There is error. The judgment of the Superior Court is reversed, and the cause remanded for further proceedings according to law.

All concur.

Bianca RINCICOTTI, Admrx., etc.,

v.

JOHN J. O'BRIEN CONTRACTING
COMPANY, Appt.

(77 Conn. 617.)

1. There is no distinction between the

Statement by Prentice, J.:

mason SO

The defendant was engaged in building a stone retaining wall along the Naugatuck river, in Ansonia. One Toole was the superintendent of the work, and had charge thereof and of the men employed upon it. The plaintiff's intestate was a employed, and foreman of the masons. For the prosecution of the work the defendant used a heavy steam-hoisting derrick, having a mast 50 feet in height and a boom 58 feet long, operated by what is known as a "bull wheel." By its use the defendant was enabled to lift the heavy blocks of stone, of which the wall was constructed. from the cars, and swing them into position upon the wall. The derrick rested upon a foundation prepared for it, and was sup

construction of the appliances fur- ported in its upright position by twisted

nished for the use of a servant and their maintenance, so far as the right of the master is concerned to absolve him.

self from liability for injuries by furnishing suitable materials to a competent person, to be used for that purpose.

2. The proximate cause of the injury of a servant by the fall of a derrick because of the breaking of a spliced rope is not the failure to insert thimbles into the loops of the splice, but the failure to inspect the rope for the purpose of determining its condition. and to repair it after it has become chafed and worn by use, where there is nothing to show that the splice is not sufficiently strong, without the timbles, to do the work required of it, but fails because of

the wear due to continued use.

NOTE.--As to master's duty to inspect appliances and places of work, including right to delegate such duty, see also note to Walkowski v. Penokee & G. Consol. Mines. 41 L. R. A. 74. 109, and the later cases, in this series, of McGuire v. Bell Teleph. Co. 52 L. R. A. 437: Smith v. Erie R. Co. 59 L. R. A. 302; and Twombly v. Consolidated Electric Light Co. 64 L. R. A. 551.

As to duty to inspect material to be used in bridge, see Lafayette Bridge Co. v. Olsen, 54 L. R. A. 33.

wire cables which radiated in various directions from the top of the mast to secure points, where they were fastened. As the construction of the wall progressed so far that the boom would no longer serve at the point where stones were desired to be placed, the derrick was moved and relocated. Work upon the wall had been in process for some time when the intestate received his injuries, and two such relocations had been made. Toole was an expert derrick rigger, and it was a part of his duty, and his duty alone, to take care and charge of the derrick, including its locations, removals, and preparation for use. The masons had no duty in that regard. At the time of the last location of the derrick. which, like the others, was made under Toole's direction, and about one month prior to the accident, it was supported in position by six cables, varying from 186 to 413 feet in length. One of them was 360 feet in length, and extended from the masthead across the river, where it was made fast to a tree. Owing to the distance which this cable had in the former locations of the

Hough v. Texas & P. R. Co. 100 U. S. 218, 25 L. ed. 615; Davis v. Central Vermont R. Co. 55 Vt. 84, 45 Am. Rep. 590; Ford v. Fitchburg R. Co. 110 Mass. 260, 14 Am. Rep. 598; Brodeur v. Valley Falls Co. 16 R. I. 450, 17 Atl. 54; Wood, Mast. & S. p. 871. The servant is not bound to inspect appliances before using them, but assumes the risk only of such defects as are in fact known to him, or are patent and obvious.

Darrigan v. New York & N. E. R. Co. 52 Conn. 299, 52 Am. Rep. 590; Gerrish v. New Haven Ice Co. 63 Conn. 16, 27 Atl. 235; Kelly v. New Haven S. B. Co. 74 Conn. 347, 57 L. R. A. 494, 92 Am. St. Rep. 220, 50 Atl. 871.

derrick been required to span, Toole had | C. R. Co. 49 N. Y. 521, 10 Am. Rep. 417; spliced it. The new conditions necessitated the same extension, and the spliced cable was used, the point of splicing being about 15 or 20 feet from the tree and across the river. The splice was made by doubling back the end of each piece of the cable, inserting one of the loops thus formed into the other, and fastening each, and thus doubled back to the cable by iron clamps of approved design. Interlocked loops were thus made. As the result of the use of the derrick after the splicing, and the constant strain and friction at the points of contact within the loops, these parts of the cable had, before the accident, become chafed and worn, and some of the strands had parted. At the time of the accident the derrick was being used to carry a stone into position. When the stone was in mid air, said cable parted at the worn and weakened part within one of the loops. As the result, the derrick fell, striking the intestate. Toole never at any time inspected the cable to ascertain its condition. In making cable splicings such as have been described, it is customary and prudent to place a device called a "thimble" in each of the loops in such manner as to furnish the bearing in both directions. By the use of the thimbles the cables are prevented from bending as sharply as they otherwise would, the tension is distributed, and the friction and chafing obviated. Added strength and dur ability are thus obtained. There were suitable thimbles furnished by the defendant in a chest upon or near the premises, which fact was known to Toole.

The duty of maintaining sound instrumentalities while in use by the servant, which involves the duty of reasonable inspection, is obligatory on the part of the master.

Moore v. Wabash, St. L. & P. R. Co. 85 Mo. 588; Bailey v. Rome, W. & O. R. Co. 139 N. Y. 302, 34 N. E. 918.

The duty of inspection is affirmative, and must be continuously fulfilled and positively performed.

Brann v. Chicago, R. I. & P. R. Co. 53 Iowa, 595, 36 Am. Rep. 243, 6 N. W. 5; Chesson v. John L. Roper Lumber Co. 118 N. C. 59, 23 S. E. 925; Ocean S. S. Co v. Matthews, 86 Ga. 418, 12 S. E. 632; Armour v. Brazeau, 191 Ill. 117, 60 N. E. 904; Comben v. Belleville Stone Co. 59 N. J. L. 226, 36 Atl. 473.

This is a nonassignable duty, and cannot be delegated so as to release the master from responsibility.

Louisville, E. & St. L. Consol. R. Co. v.

Messrs. Seymour C. Loomis and Earn- Utz, 133 Ind. 265, 32 N. E. 881; Babcock v. est C. Simpson for appellant.

Old Colony R. Co. 150 Mass. 467, 23 N. E.

Messrs. John J. Cullinan and Stiles 325; 1 Labatt, Mast. & S. p. 241; Jackson Judson, Jr., for appellee:

The test as to whether one acts as a vice principal or as a fellow servant is the nature of the duties to be performed, and not the grade of employment.

Sullivan v. New York, N. H. & H. R. Co. 62 Conn. 216, 25 Atl. 711; McElligott v Randolph, 61 Conn. 157, 29 Am. St. Rep. 181, 22 Atl. 1094; Jackson v. Norfolk & WV. R. Co. 43 W. Va. 380, 46 L. R. A. 337, 27 S. E. 278, 31 S. E. 258; Baltimore & O. R. Co. v. Baugh, 149 U. S. 387, 37 L. ed. 781, 13 Sup. Ct. Rep. 914.

v. Norfolk & W. R. Co. 43 W. Va. 380, 46 L. R. A. 337, 27 S. E. 278, 31 S. E. 258.

Where the master assumes to furnish his servant a complete instrument or apparatus for the performance of his work, the servant has nothing to do with the question of the original sufficiency of its parts, or of their subsequent preservation, unless a defect is obvious.

Shanny v. Androscoggin Mills, 66 Me. 420; Hough v. Texas & P. R. Co. 100 U. S. 213, 25 L. ed. 612; Lehigh Valley R. Co. v. Kiszel, 25 C. C. A. 566, 51 U. S. App. 265, 80 Fed. 470; Eureka Co. v. Bass, 81 Ala. 200, 60 Am. Rep. 152, 8 So. 216; Jager v. Cali29|fornia Bridge Co. 104 Cal. 542. 38 Pac. 413;

The duty of the master is not discharged by anything short of actual performance. McElligott v. Randolph, 61 Conn. 157, Am. St. Rep. 181, 22 Atl. 1094.

Until the agent in fact acts up to the limit of the duty of his master to act, the master's duty is not done.

Wells v. Coe, 9 Colo. 159, 11 Pac. 50; Snyder v. Cleveland, C. C. & St. L. R. Co. 60 Ohio St. 487, 54 N. E. 475; 1 Labatt, Mast. & S. p. 228; 1 Shearm. & Redf. Neg. § 194; McNeil v. The Para, 56 Fed. 241: Dyer v.

Wilson v. Willimantic Linen Co. 50 Conn. 433, 47 Am. Rep. 653; Laning v. New York | Pittsburg Bridge Co. 198 Pa. 183, 47 Atl.

979; Donnelly v. Booth Bros. & H. I. Gran- Co. 45 Minn. 235, 47 N. W. 785; Burns v. ite Co. 90 Me. 111, 37 Atl. 874; McGuigan Sennett, 99 Cal. 363, 33 Pac. 916; Robinv. Beatty, 186 Pa. 329, 40 Atl. 490; Bier v. son v. George F. Blake Mfg. Co. 143 Mass. Standard Mfg. Co. 130 Pa. 447, 18 Atl. 637; 528, 10 N. E. 314; Richards v. Hayes, 17 Baker v. Allegheny Valley R. Co. 95 Pa. App. Div. 422, 45 N. Y. Supp. 234; Labatt, 211, 40 Am. Rep. 634; Yaw v. Whitmore, 46 Mast. & S. § 589. It was a mechanical apApp. Div. 422, 61 N. Y. Supp. 733, Af- | paratus furnished by the master to co-operfirmed in 167 N. Y. 605, 60 N. E. 1123; ate with and facilitate the intestate and his Briody v. The Persian Monarch, 49 Fed. fellow masons in the work upon which they 669; Ashley Wire Co. v. Mercier, 61 Ill. were engaged. The duty of the defendant App. 487; Tangney v. J. B. Wilson & Co. 87 as master, under such circumstances and in Mich. 455, 49 N. W. 666; Honifus v. Cham respect to such an instrumentality, was to bersburg Engineering Co. 196 Pa. 47, 46 use reasonable care to provide one which Atl. 259; Woods v. Chicago & G. T. R. Co. should be reasonably safe for the work to 108 Mich. 397, 66 N. W. 328; Houston v. which it was to be put. McElligott v. Brush, 66 Vt. 332, 29 Atl. 380; Fuller v. Randolph, 61 Conn. 157, 29 Am. St. Rep. Jewett, 80 N. Y. 46, 36 Am. Rep. 575; 181, 22 Atl. 1094; Gerrish v. New Haven Brennan v. Berlin Iron Bridge Co. 74 Conn. Ice Co. 63 Conn. 16, 27 Atl. 235. This 389, 50 Atl. 1030. duty was a continuing one, and included that of maintenance. Hough v. Texas & P. R. Co. 100 U. S. 213, 25 L. ed. 612; Shanny v. Androscoggin Mills, 66 Me. 420: Ford v. Fitchburg R. Co. 110 Mass. 240, 14 Am. Rep. 598; Tierney v. Minneapolis & St. L. R. Co. 33 Minn. 311, 53 Am. Rep. 35, 23 N. W. 229; Indiana Car Co. v. Parker, 100 Ind. 181; Moore v. Wabash, St. L. & P. R. Co. 85 Mo. 588; Bailey v. Rome, W. & O. R. Co. 139 N. Y. 302, 34 N. E. 918. The duty of maintenance necessarily involved that of reasonable inspection and repair. Union P. R. Co. v. Daniels, 152 U. S. 684, 38 L. ed. 597, 14 Sup. Ct. Rep. 756; Tierney v. Minneapolis & St. L. R. Co. 33 Minn. 311, 53 Am. Rep. 35, 23 N. W. 229; Armour v. Brazeau, 191 Ill. 117, 60 N. E. 904; Comben v. Belleville Stone Co. 59 N. J. L. 226, 36 Atl. 473; Munch v. Great Northern R. Co. 75 Minn. 61, 77 N. W. 541; Louisville, E. & St. L. Consol. R. Co. v. Utz, 133 Ind. 265, 32 N. E. 881; Richmond & D. R. Co. v. Burnett, 88 Va. 538, 14 S. E. 372.

The intestate, as a stone mason, intent only upon transferring the stones from the car to the wall and there laying them, had nothing to do with the construction, inspection, and repair of the appliances that were being operated.

1 Labatt, Mast. & S. p. 595; Benzing v. Steinway & Sons, 101 N. Y. 547, 5 N. E. 449; 1 Shearm. & Redf. Neg. § 185b; Crowley v. Cutting, 165 Mass. 436, 43 N. E. 197.

The intestate had a right to assume that Toole, as a competent and skilled derrick rigger, had properly secured the derrick, and that it was safe to engage in the work of operating the same.

Buzzell v. Laconia Mfg. Co. 48 Me. 113, 77 Am. Dec. 212; Texas & P. R. Co. v. Archibald, 170 U. S. 665, 42 L. ed. 1188, 18 Sup. Ct. Rep. 777; Delude v. St. Paul City R. Co. 55 Minn. 63, 56 N. W. 461; Bergin v. Southern New England Teleph. Co. 70 Conn. 65, 39 L. R. A. 192, 38 Atl. 888.

The Massachusetts rule that supplying loose appliances and proper supervision by a competent representative will exempt the master from liability stands alone.

1 Labatt, Mast. & S. 1639; 1 Shearm. & Redf. Neg. § 177; Darrigan v. New York & N. E. R. Co. 52 Conn. 305. 52 Am. Rep. 590.

The defendant says that the cause of the accident was the failure to insert thimbles in the loops made in splicing the cable, and argues therefrom that, as their absence was due to the failure of Toole, the superintendent, to insert them, and as the defendant had provided sufficient thimbles to be used when needed, it had not failed in its

Prentice, J., delivered the opinion of the duty as master, and the intestate's injuries

court:

were the consequence of the negligence of Toole in respect to his service as the intestate's fellow servant. This contention is unsound in both its premise and the conclusions drawn therefrom. It is enough for our present purpose to pursue at length the first of these dual propositions. In thus

The plaintiff's intestate, while acting as the defendant's servant, received injuries, from which he died, by reason of the fall of an instrumentality used in the work upon which he was employed. The injuries were not occasioned by any negligence in the use of the instrumentality. The instrumental-limiting our discussion, however, we do not ity was not one whose construction, preparation, adaptation for use, care, or inspection entered into the performance of the intestate's work or duty, or was it an incident of it. Fraser v. Red River Lumber |

wish our silence to imply our assent to the legal principle which, in so far at least as maintenance and repair are concerned, is vigorously urged upon us, to wit, that a master upon whom rests the duty of using

reasonable care to provide and maintain for the use of his servants in their work reasonably safe mechanical instrumentalities may perform that duty by furnishing to a fit and competent agent the materials or parts out of or by means of which the instrumentality as a working entity can be either created or maintained, and that for the shortcomings of the agent in his utilization or failure to utilize this material or these parts the master assumes no responsibility. In so far as the defendant's contention assumes that there is a difference, as respects the master's duty, between construction and maintenance, it is without foundation. To whatever extent the contention is carried, it also involves principles which have had the repeated disapproval of this court. The master's duty requires performance. It may be performed in person, or by one delegated to that end. In either event, the thing required must be done. Delegation to a fit and competent agent is not sufficient. Wilson v. Willimantic Linen Co. 50 Conn. 433, 47 Am. Rep. 653; McElligott v. Randolph, 61 Conn. 157, 29 Am. St. Rep. 181, 22 Atl. 1094; Gerrish v. New Haven Ice Co. 63 Conn. 16, 27 Atl. 235.

its superintendent, and apparently was not, as it is found that no inspection was made. But that is of no legal consequence, since it is found that it was so apparent that an inspection would have revealed it. In other words, the failure which was the true proximate cause of the parting of the cable, and thus of the intestate's injuries, was one in the master's duty of reasonable inspection. The manner of the splice was known, for Toole made it; the consequences thereon of wear were palpable, and therefore such as the defendant and Toole were bound to anticipate. The duty of inspection was one to be exercised in the light of these conditions. The facts, therefore, disclose a clear failure on the part of the defendant, as master, in the performance of its duty towards the intestate.

If it be suggested that the cable was, by the manner of the splice, inherently weak and thus defective, the master is not thereby exonerated. In that event, his failure in the duty of using reasonable care to provide reasonably safe instrumentalities only assumes a slightly different aspect; but it is the same duty. The duty of the master is the same in its essence whether it, in a given case, assumes the immediate form of original provision, maintenance, or inspection as an incident of maintenance. All are involved in the general duty of provision, which, as we have seen is a continuing one and an unchanging one.

Three rulings upon the admission of evidence are assigned as erroneous. Only one is pursued in the brief. The intestate's widow being upon the stand, the court per

Let us return now to the defendant's premise that the proximate cause of the injury complained of was the superintendent's failure to place thimbles in the loops of the splice. It is doubtless true that, had thimbles been inserted in making the splice, the cables would not by use have become so worn and defective at the points of tension that they would have parted when they did. To this extent the failure to insert the thim-mitted the plaintiff to ask her the age of his bles was without doubt the cause-but the remote one of the accident. The proximate cause, however, was the worn and defective condition into which the cables had been suffered to lapse by being used for a considerable period of time without such repair or replacement as was necessary, in view of the way in which the splice was made, to maintain the requisite condition of strength. The cable as spliced was not able to stand as great a strain as one spliced with thimbles, but it does not appear that without them it was not originally sufficiently strong to do the work required of it. Its original strength became dissipated as the consequence of wear and tear and a failure in the duty of maintenance. The worn and weakened condition wich resulted may not have been known to the defendant or 69 L. R. A.

parents at their death, as bearing upon his health and constitution. Her reply was seventy-eight and seventy years, respectively. Rulings of this character, where the vice, if any, in the evidence offered, is remoteness, can seldom be of sufficient consequence to warrant the granting of a new trial. Much must be left to the discretion of the court. State v. Kelly, 77 Conn. 266, 58 Atl. 705. This ruling furnishes no exception to the general rule.

None of the corrections which the defendant claims should be made in the finding assumes any importance, in view of our conclusions.

There is no error.

All concur.