McElroy v. Goble. question is not made in the record, and we prefer not to pass upon it until it shall be distinctly presented in an actual case. It is shown in the bill of exceptions taken in the probate court, and assigned for error, that the plaintiff in error was precluded by that court from giving testimony to the jury to show that the residue of the lands of the defendants in error, not covered by the right of way appropriated, "would be enhanced in value by the location and structure of the road." How enhanced in value? and by what means? By means of what we have designated as general benefits? or by means of what we have designated as special benefits? The bill of exceptions does not inform us. The presumption is quite as great that they were the former, as that they were the latter. If the former, then there was clearly no error. If the latter, then the action of the probate court was, perhaps, questionable; but the fact ought to be distinctly shown in the record. We can not presume that it was the latter class of benefits rather than the former, which were offered in evidence, for then we might presume the existence of error, and this a court of error will never do. Error *must appear affirmatively in the record [187 on which error is assigned, and will not be presumed. Judgment affirmed. BARTLEY, C. J., and SWAN, BOWEN, and SCOTT, JJ., concurred. DENNIS MCELROY AND JAMES MCELROY v. REUBEN GOBLE. The use of streams of water for domestic, agricultural, and manufacturing purposes, being, to some extent, publice juris, an action for a nuisance, caused by any obstruction or diversion of the water of a stream for any such purpose, will not lie, unless the damage occasioned thereby be real, material, and substantial. Cooper v. Hall, 5 Ohio, 321, followed and approved. MOTION for leave to file a petition in error to reverse the judgment of the district court of Perry county. The parties being adjacent proprietors on a stream of water in Perry county, the defendant constructed and kept up a mill-dam on his premises, which flowed back the water upon the land of the McElroy v. Goble. plaintiffs, for which they brought this suit. On the trial, the district court charged the jury, that if they should find that the defendant had raised his dam to an unjustifiable hight, and thereby backed up the water in the channel of the stream through the lands of the plaintiffs, and also overflowed their lands, yet, unless the proof showed that material and substantial damage had been thereby done to the plaintiffs, they would not be entitled to a verdict. The jury found for the defendant. Plaintiffs moved for a new trial for misdirection of the court to the jury. The court overruled the motion, and plaintiffs excepted; and now assign the above instruction of the court to the jury as ground of error. 188] *PER CURIAM. The charge of the district court to the jury was in strict accordance with the principle decided in the case of Cooper v. Hall, 5 Ohio, 321, which has been regarded as settled law in Ohio for more than twenty years. It has been said that this case was not strictly adhered to by the late Supreme Court on the circuit, in some parts of the state. We can not sanction this assertion. The case of Cooper v. Hall was decided on the authority of Palmer v. Mulligan, 3 Caine, 307, and the doctrine laid down by Chancellor Kent, in his Commentaries, 3d vol., sec. 440, page 546. And it is a doctrine which rests upon sound reason, and is well sustained by the analogy of numerous well-considered cases both in England and in this country. Weston v. Alden, 8 Mass. 136; Beissel v. Strall, 4 Dallas, 211; Wadsworth v. Tillotson, 15 Conn. 366; Johns v. Stephens, 3 Vt. 308; Williams v. Morland, 9 Eng. Com. L. 269; Embrey et al. v. Owen, 4 Eng. L. & Eq. 466. The right of the riparian proprietor to the natural flow of the stream through his premises is subject to qualification, from the circumstance that streams of water being intended, as is well said by Chancellor Kent in his Commentaries, "for the use and comfort of man, it would be unreasonable, and contrary to the universal consent of mankind, to debar riparian proprietors from the application of the water to domestic, agricultural, and manufacturing purposes," in a proper manner, even although it did, to some extent, interfere with the natural flow of the water. The principle, therefore, arises out of the nature of the subject-matter, and the necessity required in the practical application of the water of running streams to the useful purposes mentioned, that no action can be sustained for any such use of the water, whereby the quantity is diminished in the Barrington v. Alexander et al. stream, or the water caused to flow more irregularly, or to [189 flow back on the land of the proprietor on the stream above, unless the damage occasioned be real, material, and substantial, arising from an unreasonable or improper use, appropriation, obstruction, or diversion of the water from its natural course or flow. Motion overruled. JANE BARRINGTON, ADMINISTRATRIX DE BONIS NON OF R. R. BarRINGTON, AND OTHERS, v. ADAM C. ALEXANDER AND OTHERS. Where an administrator offers for sale at public auction the land of his intestate, for the purpose of raising money to pay the debts of the estate, and the same is struck off, at two-thirds of its appraisement, to G. and K., with the understanding on their parts that they are buying it for the benefit of the widow and children of the decedent, and on the day of such sale, and before confirmation thereof by the court, the administrator executes a deed to one of the buyers, who is pecuniarily irresponsible, without authority from the other, and without assigning any reason for such act, and neglects to complete the contract of sale, by requiring the payment of one-third of the purchase money, and the making and delivering to him of notes and security for the other two-thirds in nine and eighteen months, according to the conditions of the sale, but after retaining the deed for six months, finally makes an agreement with the grantee named in it, by which the latter transfers to him the land, on condition that he take the place of G. and K. in reference to the sale, and pay the price by them bid for the land: Held 1. That the acquisition of property by the administrator, under such circumstances, creates suspicions that unfairness may have been practiced by him in the accomplishment of that purpose, is contrary to the policy of the law, is a violation of the trust reposed in him as a fiduciary, and may, for that reason, on the application of the cestui que trusts, be set aside. 2. But whether the administrator made use of artifice, or employed collusion to secure the property to himself, does not necessarily affect the determination of the case. To guard against the uncertainty and hazard of attempting to prove unfairness in him, the rule in such cases will permit the cestui que trusts to come into court, at their option, and, without showing actual fraud or injury, insist, as of course, upon having the property resold. *3. The fiduciary relation of an administrator to the land of his intestate [190 is not terminated when it is struck off and declared sold at public auction, but continues until the title of the vendee becomes perfect, by the payment VOL. VI-10 145 Barrington v. Alexander et al. of the purchase money and the delivery of the proper deed of conveyance, whereby the title passes from the heirs of the estate, unincumbered by any charge in favor of the administrator or the estate arising out of the sale. 4. When an administrator has enjoyed the use and occupation of real estate under a title derived from a sale made by himself, and for that reason void as to the heirs of the estate he represents, an account of improvements made, and of rents received by or chargeable to such administrator, will be ordered to be taken, and out of the proceeds of the sale, any balance which may be found due to him will be first paid, and the residue retained by the administratrix for the use of the estate. IN chancery. Reserved in Miami county. Adam C. Alexander was appointed administrator of R. R. Barrington in 1844. In 1846 he obtained an order to sell the house and lot of his intestate to pay debts, representing in his petition that the personal property was insufficient for that purpose. The widow and heirs of Barrington were made defendants in the proceeding, but several of the latter were then, and still are, minors. An order was obtained to sell the premises for one-third of the purchase money in hand, one-third in nine, and one-third in eighteen months. On the 12th of October, 1846, the property was struck off, at public vendue, to R. B. Gordon and J. W. Kyte, two sons-inlaw of the deceased, for $967-that being two-thirds of its appraised value. On the same day, and before confirmation of sale, Alexander made a deed of the premises to J. W. Kyte without exacting the first payment or taking security for the deferred payments, although Kyte was irresponsible. On the 7th of April, 1847, no part of the purchase money having been paid, Kyte deeded the property back to the administrator. Alexander never delivered 191] to Kyte the deed made to him, but retained it in his possession until the above arrangement of the 7th of April. There are allegations in the bill that there was personal property enough to pay all debts, and that the object of the sale was to enable the administrator to get for himself the house and lot on speculation, and that he turned the widow and family out of possession as soon as he got the title. These and kindred allegations are denied by the answer. In December, 1851, Jane Barrington, one of the complainants, and the widow of R. R. Barrington, was appointed administratrix de bonis non of her deceased husband; Alexander having, before that time, resigned the trust. This bill is filed by the widow and heirs of Barrington to set Barrington v. Alexander et al. aside the sale of the premises made by Alexander, and to have the same re-sold. Gordon testifies that it was the understanding between him and Kyte that a claim against the estate in favor of Thomas Barrington, a son of the deceased, was to be received as payment on the house and lot, and the widow and minor children were to have the benefits of the property, and that they bid it in with the intention of having it for them; and afterward it was ascertained that the claim would not be received. He does not know why the deed was made by Alexander to Kyte alone. Neither of them ever paid anything toward the land. Kyte gave two depositions in the case. On the 14th of July, 1853, his first deposition was taken by defendants. In this he states that he and Gordon found that they could not pay for the lot and Gordon requested him to make a deed to Alexander, saying that he would assign his interest to Kyte, which has not been done. He also states that the understanding was that he and Gordon should bid off the lot, and if the heirs wanted it, and paid back their money, they were to have it, and that he and Gordon understood that the widow was to remain in the house. *On the 22d of December, 1855, his second deposition was [192 taken at the instance of the complainants. On his cross-examination he was asked by the defendants' counsel the following question: "Was not the sale by you to Alexander an after arrangement, made by the family of Mrs. Barrington, at her house in Piqua, yourself, Gordon, Mrs. Barrington, and other members of the family being present, and consenting and advising thereto?" To which he gave as answer that "the sale was made under these circumstances, precisely: It was a family arrangement, made for the benefit of the estate, and for the convenience of the widow and family. The family afterward, on full consultation, thought best, as the property was much out of repair, to sell to Alexander." George B. Holt and Hunter & McKinney, for complainants. George B. Holt, for complainants, cited Lew. on Tr. 295; Ib. 288; Campbell v. Walker, 5 Ves. 681; Ex parte Lacy, 6 Ves. 626; Mason v. Royal, 12 Ves. 354; Lessee of Lazarus v. Bryson, 3 Binn. 54; Lessee of Moody v. Vandyke, 4 Binn. 43; Green v. Winters, 1 Johns. A |