The Montgomery advertiser., 1906-11-30

UEC8uEG irrevalent or Illegal evidence being admitted. where he asserts no claim Of want of sufficient legal evidence be- fore 1t on which to find the indict- ment
 12. Jury; excusing for cause: power. --The court has power to excuse ju- TOT for good and sufficient cause. Where juror has been excused in murder ease the court cannot substi-
 tute another in his place.
 14. Same; drawing Jury. numbering slips--Section 500s. Code 1896, does not require the numbering of the slips upon
 which are written the names Of the special jurors and regular jurors In
 jury for triai of a capital case Is. Same; challenge.--lt Is not grounds for challenge under Acts l 1900-nl, p. 2003. in Montgomery coun- ] ty. that juror Is not resident house.
 holder of free holder of the county. sRehearing denied June 30. 1906, Appeal from Montgomery City Court Heard before Hon. ". H. Thomas. Affirmed. Opininn by Dowdell. I. WeakIey. c. j., Haralson and Denson.
 JJ, concur.
 CENTRAL CT GEo4.aIA RAILWAY 1 COMPANY vs, KEYTON
 Damages for Backing N ater on Prop erty. (Decided June 30, 1906 4i So. Rep 91S1
 1 Waters and water courses: sur
 face water; rights of adjoining pro- l plietors. --An owner of higher land is
 entitled to the uninterrupted flowage of
 water caused by rainfall, so that the proprietor of the lower land has no right to make embankments whereby f the fiowage may be averted and accu- ! mn t1at teaa fh 1anN h at- rak l 2. Same; railroads; emb 4nkments; | culverts - Where. for the puIpose of I constructing a railroad It becomes ne- i cessary to erect an embankment, 8 proper culvert must be provided, with l ample capacity to carry of the flow
 of water and of such capacity as to | protect the upper land aga nst at
 wter likely to be thereon, except flow
 age caused by an extraordinary and
 excessive rainfall
 l 8 Same; construction by railroad l com mpany.-- Where a sewer, under a
 railroad conpany's embark nent, was
 insufficient to carry off the water like
 ly to be in it. so that the water on l account of such insuhiciency would
 dam up and spread dangerously from | it's natural course, and the railroad company with knowledge of such con
 dition maintained 1t, 1t was inmate
 rial to the railroads liability that 1t dId | not construct the sewer
 4 Same: pleading: diver sion.- 1 Where. in an action against a railroad company by an adjoining landowner 1 for damages caused by the alleged in- l sufficiency Of a sewer under it's em-
 bankments, the complaint alleged that
 by reason Of the insutficiency of the
 sewer to receive and carry 1t away the
 water arose in the open ditch and over l flowed plaintiffs lot the complaint | eYi Hrfn nhn S q ha
 diverted from it's natural course.
 5. Pleading; damages; demurrer.--
 An improper claim of damages in a
 complaint cannot be reached by de-
 murrer.
 S. Railroads: defective culverts: in- juries to property: action; pleas In an ! action against railroad for damages
 caused by the overflow of land result
 ing from a defective culvert. defendant i pleaded that there was a ditch along | the railroad, and between it and plain
 tiff's property. which carried off the water which accumulated during rain- falls, and that where such ditch crossed
 a certain street defendant put in a sys- tenn of sewage to receive and carry
 off the water which accumulated in and
 came down the ditch; that the sewer
 was amply sufficient to carry of such
 water on the day of the alleged injury,
 but the water which accumulated in
 the ditch and of which plaintiff conn
 plained accumulated from the streets
 of the town. etc. and debris placed
 in the streets by other persons than
 defendant, which filled up the ditch
 and caused the water to back up over plaintiffs property. Held. that such plea was objectionable for failure to
 show that the ditch was not the usual
 outlet for water which accumulated on
 the streets of the town, and in failing 2 kr vk NI.Nk eG cient capacity to carry off the water
 naturally flowing in the ditch from
 such streets.
 T. Same --In an action for damages
 from water flowing over plaintiffs
 land, through the alleged insufhciency
 of defendants culverts, defendant pleaded that there was a ditch between its railroad and plaintiffs property
 which carried off the water that, &C.,
 cumulated in that vicinity, that de- fendant had put in a system of sew age to carry off all the water whicn by natural flow would accumulate and 80 into the ditch. but that before the date of the injury the town diverted a large quantity of water from its nat z ural flow into the ditch, and by req son of such diversion more water ac- ] cumulated in the ditch than the sewer was capable of receiving and carrying
 away, which was alone the cause oi the injury complained of. Held. thai . such plea was demurrable for failure to show that defendant, acting with reasonable diligence. had not a suffi- ! cient opportunity to enlarge the sewer to receive the additional water SC
 turned into it.
 8. Same; damages; evideuce-In an action against a railroad company for injuries to plaintiffs property by the overflow of defendants dram, caused } by the alleged insuflciency of It's cuI-
 vert. evidence that after the water sub sided a steach was left in plaintiff houses, which were inundated, was ad- rnissible as showing a diminution of the
 rental value of the property. g.. Evidence; opinion of witness conclusi ion.-In an action for dama ges to plaintiffs property by the overflow of a drain, a question asked plaintiff
 as a witness to state the effect of the overflow on plaintiffs houses and lots ! was not objectionable as calling for . the opinion or conclusion of the wit . ness.
 10. same.--In an action for injuries . to plaintiffs property by the overflow ] of a drain evidence that the effect of the overflow was to damage plaintiff ? property a very great deal was objec-
 tionable as an opinion of the witness and as invading the province of the l jury.
 i Ii. same--A question asked plain tin, State If your property was dam w~ ~D No Vvoman's happi-