The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1903-09-13

on, the large size VIII DO sent on re-
tiff. subject to the opinion OF the court
on the demurrer to the evidence and ass
Sc ssed her damages at 5000. Tho court
sustained the demurrer and rendered judg-
ment for'the defendant, and this judgment
the Appellate Court Is asked to review
and reverse. g
street wa., killed by the shifting OF cars
while engaged In unloading cars at Lam
bert's Point. The testimony is conclu-
slve as to his negligence In contributing
to his own death. The court holds that
tbs contributory negligence being the
proxlmate cause Of his injury, there can
be no recovery. Many decisions are
quoted to sustain this dlctum. The court
further holds that where an employe Is
confronted with two methods performing
work, the one safe and the other danger
GUS, he owes positive duty to his em-i
ployer to pursue the safe method ire
tspective OF the degree OF danger which
may be involved In the unsafe method,
and any departure from the path Of
safety will prevent his recovery In tho
event he ia injured. The Judgment Of
the trial court in sustaining the demurrer
right and must be affirmed.
Leonard VS.. ST. John.
In the case Of Leonard ct ais, VS.. "A. r..
ST. John, from the Circuit Court OF smyth
county. Judge Cardwell delivers the opin-
ion Of the court. which amends the de-
cree and affirms It as amended
This is case In which the appellees IN
this case asked and were granted an In
junction, which was perpetuated by de-
decree Of the Circuit Court. restraining
the appellants from dlverting from the
lands OF the st, Johns certain small
stream which flowed In zig-zag direc.
ton upon first one farm and then the
other, twice entering the st. John tract.
The appella nts contended that the stream
did not originally enter the lands OF ST.
John. hut was diverted thereon many
years ago by means OF a ditch. with the
permission OF the elder Leonards Recent,
~ the Ieonerds dug ditch which would
have diverted the water from the St. John
land but the erection OF a dam The da n
was built and served the purpose for
long time, but was subsequently removed.
The question OF fact involved is as to
whether the stream originally and natu-
rally flowed upon the st. John land or
was diverted thereupon by the consent
of the predecessors Of the eLonards on
EtiC uC IIcpOIlucEduCE& OL testimony
sustains the claim Of tho Leonards that
the water Of the stream naturally ran
upon their land and was not diverted
thereupon by consent OF Leonard, which
consent might be revoked at any time.
The court sustains the decree perpetu-5
atng the Injunction but holds that the
same should not have gone so far as 10
require the appellants to restore the flow
of the stream on to appellee tland at the
point where 1t formerly entered, for the,
reason that the withdrawn from thu
land at that point with the consent and
acqulescence of ST. John, and SO continued
up to the institution Of this suit. The de-
cree In this respect will be amended and
as SO amended affirmed.
Virginia Coal and Iron Company vs..
Keystone Company.
In the cause Of tho Virginia Coal and
Iron Company ct ais. vs.. The Keystone
Coal and Iron Company, ct ais, from
the Circuit Court Of Wise county, the
opinion Of the court written by Judge
iWhittle, reverses the Judgment Of the
trial court and remands the case for q
new trial to be had therein not in con-
hict with this opinion
The opinion of the court Is an exhaus.
tive review of the case covering twelve
typewriter pages. The case grows out
Court OF Wise by the defendants in err
ror against the plaintiffs In error. and the
judgment is before the appellate court on
O writ Of error for review. The plains
lifts claim title under a grant from the
Commonwealth to Harvey N. Horton,
dated October l. 1885,. and connect Them
selves Herewith. The defendants derive
title under a grant dated January 80, 1895,
| from the Commonwealth to Nathan
Fields, Nathanitl Taylor and John John.
| ston for $4,000, the outside bounda-
rles Of which embraces thp land In
controversy. But the survey upon which
| that grant Is founded includes 2,223 acres
] of prior claims, which are expressly re-
served and excepted from the grant. There
are two controlling questions presented
for decision, viz:
~ AS to the admissIblity as evidence
! of a land office copy Of the patent under
which the PLAINTIFF claim. the objection
to its admissiblity being that 1t does not
show that the lesser seal OF the Com-
monwealth had ever been attached to the
| orlginal patent.
I (s) JJpon whom the burden of proof
rested to locate the excepted land in the
The Circuit Court decided both questions
fayorably to plaintiffs. The appellate
! court as reviewing the practice Of the
courts and land office for. many years
holds that there was no error IN the rul-
! ing OF the trial court In admitting tile
! office copy Of the patent In question as
| evidence. 81. .8s
The court decides the second question
as to tho burden of proof in the case in
%point In favor OF the defendant, requiring
| the plaintiff TO establish, title to the
land, In taking this position, which re-
/, verses the trial court, the higher court
| holds; ''The action of ejectment does not
| involve a comparison of title but the
law, in Its wisdom, has seen M TO impose
| possession of land from another the bur-
/ den OF recovering upon the strength OF
| his own title and not upon the weakness
OF the title of his adversary and to prove
the title which he asserts,
THE CASE STATED.