cent case that the owner is not liable except for negligence in handling the water, and held that an unprecedented flood which washed away the dam did not make the owner of the reservoir liable in damages. Sutleff v. Sweetwater Water Co., 186 Pac. 766.

In the Sutleff case defendant had erected a dam across the Sweetwater River impounding the waters of the stream. To one side of the stream was a depression a little lower than the dam. Here an earth dike had been thrown up to prevent any possible out-flow of the water at this point. An unprecedented flood in January, 1916, washed away this earth work and precipitated a large volume of water on to plaintiff's land to his serious injury. A judg ment for defendant was sustained by the Supreme Court on the theory that one who impounds water in a reservoir is not liable, as an insurer, for the escape of the water. On this point the Court said:

"The defendant's reservoir was a wholly proper and lawful thing, and its existence, maintenance, and use worked no injury to the plaintiff's land, invaded no right of his, and could not for a moment be said to be a nuisance. The proximate and immediate cause of the flooding of the plaintiff's land and its conse quent injury was not the existence of the defendant's reservoir or the manner of its maintenance or use, which were wholly lawful and innocuous, but the overwhelming of the reservoir by an agency beyond the defendant's control-in fact in this case beyond human control."

Lawyers are familiar with the old English case of Fletcher v. Rylands, L. R. 1 Exch. 265, cited as a leading case in all the text-books to the broad proposition, found in the opinion of Lord Blackburn, that the person, who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape."

In the Fletcher case defendant had constructed a reservoir, the waters of which broke through the bottom into some ancient underground workings whose existence was unknown, and thence escaped into and flooded the plaintiff's colliery. For this the defendant was held liable regardless of any negligence upon its part.

In the later English case of Nichols V. Marsland, L. R. 2 Ex. Div. 1, the broad proposition of Lord Blackburn was restricted to the facts of that case and held not to make the impounder of waters an insurer against all damages caused by the unforseen release of the

waters. In the Nichols case the facts were that a series of dams constructed by the defendant were washed out by an unprecedented flood, and the volume of water so released damaged the plaintiff's property.

The Court distinguished the case of Fletcher v. Rylands by showing that the damage was the direct result of the bringing together of the water while in the Nichols case the proximate cause was not the impounding of the waters (a perfectly lawful act), but the unpre cedented flood. This distinction is sound and clearly sustained by the weight of authority.

ELEMENT OF FRAUD IN PROSECUTIONS FOR SENDING FALSE REPRESENTATIONS THROUGH THE MAILS.-Fraud as a basis for a prosecution for using the mails to obtain property by means of false representations is different in one respect from that which constitutes fraud in a civil suit. Under the federal act it is not an essential element of the offense that the victim of the fraudulent scheme should suffer pecuniary loss. Wine v. United States,

260 Fed. 911.

In this case the defendant secured an option on 3,320 acres of land in Texas at $9.22 per acre or $3,000. He wrote two of his friends in Oklahoma that he had secured an option on the land for $58,000 or $17.47 per acre and saying that he could not handle the whole deal but would be glad to join with them in purchasing the property and would pay for half of the land at $17.47 per acre if they would take the other half at the same price. The deal was put through on that basis, after which defendant's false representations were discovered and he was indicted under the provisions of Sec. 215 of the Penal Code (Act of Congress, March 4, 1909, C. 321, 35 Stat. 1130). There was no allegation that the victims of defendant had suffered any pecuniary loss and defendant was not permitted to show that the land was worth the price of $17.47 per acre at which it was sold. In holding that in this respect no error had been committed, the Court of Appeals (8th Cir.) said:

"This statute declares that anyone who devises a scheme 'to defraud,' or 'for obtaining money or property by means of false or fraudulent pretenses, representations or promises,' and uses the mails to execute it, shall be fined or imprisoned. The indictment and the evidence are alike replete with charge and the latter with proof that this defendant devised a scheme to obtain for himself the east ranch free of all cost to himself by means of false and fraudulent pretenses, representations and promises, and that he used the mails to execute that

scheme. This was a plain violation of the literal terms of the statute, and even if this violation had caused no pecuniary loss or damage to Van Dyke or Slifer, the defendant could not escape punishment for so glaring a deceit without a repeal or disregard of this law; and it is the duty of the Court not to repeal or disregard this statute, but to enforce it. This section of the statute does not make damage or loss to the victims of a scheme to defraud, or to obtain money or property by false pretenses, representations or promises, a sine qua non of its violation, and such damage or loss is not indispensable to the commission of an offense under it.

Harris v. Rosenberger, 145 Fed. 449, 76 C. C. A. 225, 13 L. R. A. (N. S.) 762; Durland v. United States, 161 U. S. 306, 315, 16 Sup. Ct. 508, 40 L. Ed. 709; United States v. New South Farm Co., 241 U. S. 645, 36 Sup. Ct. 505, 60 L. Ed. 890, Ann. Cas. 1917C, 455; Chambers v. United States, 237 Fed. 521, 150, C. C. A. 395.”

INJUNCTIONS AGAINST ILLEGAL ACTS OF STRIKING UNION MEN.-There is a noticeable stiffening on the part of the Courts of their orders restraining acts of striking union men. The boycott, the right to picket, while still admitted as abstract rights, are SO restricted that practically they no longer exist. This tendency is apparent in the recent case of Thomson Machine Co. v. Brown, 108 Atl. Rep. 116, where the New Jersey Court of Chancery held that even where a strike by plaintiff's employes was unaccompanied by violence, the strikers could be prevented from annoying plaintiff by parading before his place of business with placards asking plaintiff's employes not "to scab," etc. Such acts were in themselves declared to be illegal. On this point the Court said:

"I am still of the opinion that the act of the respondents, maintaining in close proximity to the plant of the complainant a building upon which they maintained placards, upon which were printed statements of the following nature: 'Don't scab. Honest jobs are plenty. Strike at Thomson Mch. Co.,' etc.-distributing generally and handing employes and prospective employes of complainant cards, drawing attention to the fact that there was a strike on, and that those who labored for complainant were scabs, and that complainant was unfair, communicating with users of machinery manufactured by complainant and with labor employed on such machines in the use or repair thereof with the purpose of establishing a boycott, were illegal and should be enjoined. Jonas Glass Co. v. Glass Bottle Blowers' Asso7ciation, 77 N. J. Eq. 219, 79 Atl. 262, 41 L. R. A. (N. S.) 445; Gompers v. Buck Stove & R. Co., 221 U. S. 418, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874; Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 38 Sup. Ct. 65, 62 L. Ed. 260, L. R. A. 1918C, 497, Ann. Cas. 1918B, 461."

The order was served on the Grand Lodge of Machinists whose headquarters are in Wash

ington. They sought to escape from the order under the rule announced in the case of Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 38 Sup. Ct. 65, L. R. A. 1918C 497. But the Chancellor calls attention to the mistake of defendant's attorney in appearing and defending generally to the merits and not objecting to the jurisdiction until after final argument on the application for preliminary injunction. In the Hitchman case the nonresident defendants appeared specially to object to the jurisdiction.

The order of the Court in the present case affords some valuable suggestions as to what may properly be included in a decree in a case of this kind. The injunction restrained the defendants as follows:

"First. From knowingly and intentionally causing or attempting to cause, by threats, offers, of money, payments of money, offering to pay expenses, or by inducement or persuasion any employe of the complainant under contract to render service to it to break such contract by quitting such service.

"Second. From attempting to cause any person employed by complainant to leave such employment by intimidating or annoying such employes by annoying language, acts or conduct.

"Third. From causing persons willing to be employed by complainant to refrain from so doing by annoying language, acts or conduct.

"Fourth. From inducing, persuading or causing to attempt to induce, persuade or cause the employes of complainant to break their contracts of service with complainant or quit their employment.

"Fifth. From threatening to injure the business of complainant or of any corporation, customer, or person dealing or transacting business or willing to deal and transact business with complainant, by making threats in writing or by words for the purpose of coercing such corporation, customer or person, against his or its will so as not to deal with or transact business with the complainant.

"Sixth. From displaying or circulating cards, placards, pictures or other devices, either printed, painted or written, in any place, reflecting upon the ability of the Thomson Machine Company to make and fulfill contracts, or in any way casting reflection upon the reputation. ability or conduct of the present employes of the Thomson Machine Company, or any of them. or any persons willing to become such employes. "Seventh. From communicating with the users of the machinery manufactured by complainant or with labor unions whose members work with said machines or on the repair thereof in such manner as to induce or persuade such users to discontinue the use of such machinery and prospective customers to refrain from purchasing such machinery and labor to refuse to work with such machines or on the repair thereof."

SUITS AGAINST RAILROADS UNDER FEDERAL CONTROL.*

It is difficult to understand why an administrative agency of any government should permit uncertainty in the method by which citizens may obtain redress for violations of their rights. A citizen who has by a railroad been injured, or whose property has been taken, either before or since the Federal government assumed the operation of the railroads cannot know with certainty whom to sue. This condition has been produced by orders of the Director General of Railroads.

About a year ago the Central Law Journal published opposing views of the validity

and effect of orders of the Director General. In those publications, it was shown that the courts likewise had disagreed: a disagreement still existing in a large number of judicial opinions since rendered.

It is not the purpose of this discussion either to go over ground covered in a for

mer article or to refer to all the decisions that have been made. Suffice it to recall the basic statute and orders and to cite all published Federal and some state court decisions.

The President took control of the railroads by proclamation, in which he said :2

"Suits may be brought by and against said carriers and judgments rendered as hitherto until and except so far as said Director may, by general or special orders, otherwise determine."

Later Congress enacted a statute in which it was recited, "That the President, having in time of war taken over the possession, use, control, and operation (called herein

*Mr. Watkins, the writer of this article, contributed an article on this same subject which was published in this Journal about a year ago. (88 Cent. L. J., 157.) This article was highly commended by our readers. Mr. Watkins is the author of Watkins on Shippers and Carriers, a leading text-book and authority on the subject of which it treats.-Editor.

(1) Henry C. Clark, Vol. 88, p. 100, Feb. 7, 1919; Edgar Watkins, id., 157, Feb. 28, 1919.

Federal control) of certain railroads and systems of transportation (called herein. carriers)." and in which there was contained authority for an agreement with the carriers for "just compensation" for use of the roads.

This statute required the making of contracts between each road and the government and provided the conditions of the use. It may be admitted, for the purpose here, that Congress might have taken and operated the railroads, making just compensation, and excluded their owners from all control, or obligations and at the same time declined to permit the citizens to sue the governmental agency so created. Congress did not see fit to deprive the public of rights growing out of this national operation of the railroads, but enacted: "Actions at law, or suits in equity, may be brought by and against such carriers and judgments rendered as provided by law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality, or agency, of the Federal Government. Nor shall any such carrier be entitled to have transferred to a Federal Court any action heretofore or hereafter instituted by or against it, which action was not so transferable prior to the Federal control of such carrier."

In the contracts authorized by the statute it is provided:*

"The Director General shall pay, or save the company harmless from, all expenses incident to, or growing out of the possession, operation, and use of the property taken over during Federal control. * * * He shall also pay, or save the company harmless from *** all judgments, or decrees that may be recovered or issued against, and all fines and penalties that may be imposed upon the company by reason of any cause of action arising out of Federal control, or anything done or omitted in the

possession, operation, use or control of the company's property during Federal control."

Congress expressly gave the right to sue as thereto "provided by law" and the government and the carriers by contract recognized the right and the government agreed to "save harmless" the carriers from "judgments and decrees" which might result from the exercise of that right. The statute and the contracts expressly annulled any right to limit the bringing of suits otherwise than as theretofore provided by law, if there was such right, contained in the President's proclamation quoted above.

Notwithstanding the statute and the contracts, the Director General ordered that suits should be brought against the Director General of Railroads and not otherwise."

The statutory provision is so clear as to leave no room for construction. Some of the opinions holding valid the orders of the Director General have relied on the decisions of the Supreme Court holding the rate making power of the Director General exclusive over state power to prescribe intrastate rates."

Such decisions have no support from the Supreme Court. The power to sue is expressly reserved "as now provided by law.” In the same section the power to fix rates is expressly granted to the President in language as follows:

"That during the period of Federal control, whenever in his opinion the public interest requires, the President may initiate rates, fares, charges, classifications, regulations, and practices."

Other courts have said that the employes now operating the railroads are the agents of the Director General and not of the particular carrier owning the road and equipment. This reasoning disregards the statute and the purpose of Federal control. The purpose of taking over the railroads

was to meet war needs by unification of operation, common use of terminals, elimination of unnecessary trains, and related methods having as their object to lessen the waste of energy and increase the effectiveness of the service. The statute did not make the government either owner or lessee, the government is merely an operator. The law, in effect, said to the railroads, "Unity of operation is a war necessity and therefore there shall be one head of the Board of Directors of all railroads." The corporate life was not affected, compensation was provided for, the continued right to file suits was stated and indemnity guaranteed for judgments that might be rendered against carriers. That execution cannot be issued to collect the judgments was a necessary protection, the power to sue existing. The provision for indemnity against judgments has no place in the statute, if there is no right to sue. Suits must precede judgments. Further, if no suit lies, it was unnecessary for Congress to say:

"But no process, mesne or final shall be levied against any property under such Federal control."

The two reasons answered above comprise the chief arguments holding valid the orders of the Director General. The decisions to the contrary are firmly grounded on the letter of the statute."

(7) District Judge Walter Evans, March 2. 1918. Muir v. L. & N. R. Co., 247 Fed. 888: The Director General is "but the head of the Board of Directors of the railroad company, the property of which was taken into possession."

District Judge Trieber, October 22, 1918, Wainwright v. Penn. R. Co, 253 Fed. 459, holding valid the order of the Director General fixing a

venue.

District Judge Mayer, June 15, 1918, Cocker v. New York, O. & W. Ry. Co., 253 Fed. 676, holding venue and stay orders (18, 18A. and 26) valid.

District Judge Haight, November 30, 1918. United States v. Metropolitan Lumber Co., 254 Fed. 335, holding that federal control does not suspend Elkins Act or Act to Regulate Com

merce.

Judge Manton, June 12, 1918, Harwick v. Penn. R. Co., 254 Fed. 748, Order 26 authorizing stay of proceedings valid.

District Judge Munger, December 27. 1918. Friesen v. Chicago, R. I. & P. Ry. Co., 251 Fed. 875, order fixing venue invalid.

District Judge Munger, January 11, 1919, Rutherford v. Union Pac. R. Co., 254 Fed. 880. holding Director General may be substituted as a defendant in lieu of the carrier.

nated by the President, in that court in which the action might have been brought against such Carrier, had there been no Federal control. This is definite and reference need only be had to state and Fed

District Judge Hand, Feb. 1, 1919, Jensen v. Lehigh Valley R. Co., 255 Fed. 795, denying a motion to substitute the Director General as a defendant and saying: "It is, of course, true that normally we should expect the liabilities to be those of the Director General, who is in control, but Congress has prescribed otherwise."

Circuit Judges Walker and Batts and District Judge Grubb, Feb. 13, 1919, Postal TelegraphCable Co. v. Call, 255 Fed. 850, C. C. A., *** right to condemn land of railroad for use of telegraph company not suspended by federal control. In discussing the controlling statute, that of March 21, 1918, the Court said: "It permits actions at law or in equity to be brought against the carriers, and judgments to be rendered as now provided by law and prohibits the carrier from defending upon the ground that it is an instrumentality or agency of the federal government."

District Judge Reed, April 16, 1919, Dahn v. McAdoo, 256 Fed. 549, holding that the Director General may be sued and that Order No. 50 is valid.

District Judge Beverley D. Evans, May 2, 1919, Southern Cotton Oil Co. v. Atlantic Coast Line R. Co., 257 Fed. 138, holding that service on an employe during federal control was no service on the railroad. See, also, District Judge Call, Wood v. Clyde S. S. Co., 257 Fed. 879.

District Judge West, April 15, 1919, Nueces Valley Townsite v. McAdoo, 257 Fed. 143, injunction improper under Act, March 21, 1918.

District Judge Foster, May 8, 1919, Johnson v. McAdoo, 257 Fed. 757, holding: "It was competent for the federal Director General of Railroads to stipulate in what jurisdiction he might be sued, but his authority to make rules and regulations did not authorize the setting aside of the plain provisions of Act, March 21, 1918 (Comp. St. 1918, § 3115 % a 3115 % p, as to the railroad companies)."

District Judge Foster, May 8, 1919, Witherspoon & Sons v. Postal Tele. & Cable Co., 257 Fed. 758. Suits can be brought against the company, not withstanding federal control.

District Judge Youmans, July 17, 1919, Mardis v. Hines, 258 Fed. 945. No suit can be brought other than against the Director General.

District Judge Lewis, June 25, 1919, Hatcher & Snyder v. Atchison, T. & S. F. Ry. Co., 258 Fed. 952, company not liable for negligence of employe during federal control.

District Judge Westenhaver, October 3. 1919, Haubert v. Baltimore & O. R. Co., 259 Fed. 361, railroads not subject to liability for acts of agents operating them during federal control.

District Judge Westenhaver, October 3, 1919. Smith v. Babcock & Wilcox. Actions to enforce liabilities incurred during Federal Control may be maintained in such courts and only such courts as had jurisdiction in the absence of the Federal Control Act.

Suits against carriers may properly be served on an employe of the railroad, although the railroad is under Federal control. Circuit Court of Appeals, 5th Circuit, January 19, 1920, Vicksburg S. & P. Ry. Co. v. Anderson-Tully Co., 361 Fed. 741-744.

District Judge Van Fleet, August 13, 1919, Nash v. Southern Pac. Co., 260 Fed. 280, Order No. 50 valid and not inconsistent with § 10 of Act, March 21, 1919.

The Supreme Court has held that intrastate rates during federal control cannot be regulated by the states. Northern Pacific v. North Dakota, 250 U. S. 135, 63 L. ed., 39 Sup. Ct. 502.

be filed in the future.

Paragraph b of the same section provides a method for service in suits to be filed. Paragraph c provides how complaints for reparation shall be filed and prosecuted.

In paragraph d, of Section 206, it is provided,

"Actions, suits, proceedings and reparation claims, of the character above described pending at the termination of Federal control shall not abate by reason of such termination, but may be prosecuted to final judgment, substituting the agent designated by the President under subdivision (a)."

Pending actions, suits and proceedings connote the legality thereof. If such actions, suits, or proceedings have not been filed in the proper court and venue, they are not legally "pending."

The question, therefore, of the proper construction of Section 10 of the Federal Control Act is still open.

Congress, in Paragraph g of Section 206 of the Transportation Act, 1920, has furnished further corroboration of the position. taken above in this article. By Paragraph g Congress prohibits execution, or process on

Lands not used in federal control may be reached by execution. U. S. R. R. Administration v. Burch, 254 Fed. 140.

Suits may continue to be prosecuted against the railroads notwithstanding Order No. 50. Louisville & Nashville R. Co. v. Steel, 202 S. W. 878.

Lavalle v. Northern Pac. Ry. Co., 172 N. W.

918.

McGregor v. Great N. R. Co., 172 N. W. 841. Gowan v. McAdoo, 173 N. W. 440.

Vaugh v. State, 81 So. Rep. 417.

West v. New York, N. H. & R. Co., 123 N. E. 621.

Orders of Director General do not apply to suits antedating the orders.

Scarborough v. Louisiana Ry. Nav. Co., 82 So. Rep. 286.

Orders not applicable to mandamus proceedings.

Re Morris Avenue Bridge, 174 N. Y. Supp. 682. Statute, § 10, Act March 21, 1918, authorizing suits against railroads invalid. Shumacher v. Penn. R. Co., 175 N. Y. Supp. 84.