contemplated from the operation of the act. According to settled rules of construction, a proviso which would operate to limit the application of an enacting clause, general in its terms, will be strictly construed, and includes no case not within the letter of the exception: Endlich on Interpretation of Statutes, sec. 186; United States v. Dickson, 15 Pet. 141; Roberts v. Yarboro, 41 Tex. 449; Epps v. Epps, 17 Ill. App. 196. Referring again to the proviso involved, we are first impressed with the fact that the primary object thereof is the protection of landowners, rather than the proprietors of irrigating ditches. True, both characters may, as in this instance, be united in one person or corporation, but such cases are exceptions, and apparently not within the contemplation of the legislature. It is, in the second place, noticeable that the act is silent respecting the terms and conditions upon which one irrigating company may make use of the canal or ditch of another. Nor is the proprietor of such a ditch in terms required to supply water upon any terms to a rival corporation. It was at the consultation suggested that it is within the power of a court of equity to prescribe the conditions upon which one irrigating company may connect with the ditch of another; but that assertion rests, to say the least, upon doubtful grounds. Conceding irrigating companies, as quasi public corporations, to be subject to the strict obligations of common carriers, it does not follow that they may, by the courts, be compelled to enter into particular agreements, or assume particular relations, however just and equitable, toward each other. That subject has recently engaged the attention of the supreme court of the United States, by which the power to prescribe terms for the interchange of business by connecting carriers is declared to be legislative, rather than judicial, in character, notwithstanding the provisions of the interstate commerce act: Atchison etc. Ry. Co. v. 901 Denver etc. Ry. Co., 110 U. S. 667; Pullman Palace Car Co. v. Missouri Pac. Ry. Co., 115 U. S. 587; Express Cases, 117 U. S. 1; Little Rock etc. R. R. Co. v. St. Louis etc. R. R. Co., 41 Fed. Rep. 559. See, also, Beach on Private Corporations, 839; Kentucky etc. Bridge Co. v. Louisville etc. Ry. Co., 37 Fed. Rep. 567; Shelbyville R. R. Co. v. Louisville etc. R. R. Co., 82 Ky. 541. The precise limits within which courts of equity will interfere in such cases, in order to regulate or enforce the reciprocal obligations of corporations, is a question foreign to the present controversy, although the authorities cited serve to illustrate the difficulties attending the interpretation placed upon the statute by counsel for plaintiff. We are, after a careful analysis

of the language of the exception, unable to say that it contemplates the connecting of different canals, or that it imposes upon one irrigating company any duty to supply water for use by the patrons of another. What the statute implies is, that no tract of land shall, without the consent of the owner, be burdened with two or more ditches for the watering of the same territory. The question is not, whether the first ditch may be so enlarged or extended as to answer the purpose for which the second is designed, but whether it may, as constructed, be made to supply the lands within reach of both. That the purpose of the defendant is to water lands which cannot be accommodated by the plaintiff, but which, in the language of the district court, "lie below and beyond its ditch," as now constructed, is clearly established by the proofs and apparent from an inspection of the foregoing map. Nor can the fact that the plaintiff concedes the defendant's right to connect with its ditch, and offers to supply the latter with water on terms confessedly reasonable, be regarded as material, since, as we have seen, the law imposes upon the plaintiff no such duty.

It follows, without further elaboration, that the decree of the district court is right and must be affirmed.

EMINENT DOMAIN.-THE QUESTION WHETHER A NECESSITY EXISTS FOR THE TAKING of private property for the public use is a legislative, and not a judicial, one: Lynch v. Forbes, 161 Mass. 302; 42 Am. St. Rep. 402, and extended note thoroughly discussing the subject.

EMINENT DOMAIN-PUBLIC USE-HOW DETERMINED.— What is a public use is an unsettled question. Such use is not limited to actual use and occupation by the state, or by a public political corporation, or by a private corporation whose sole, or even primary, object is the public good: Scudder v. Trenton etc. Falls Co., 1 N. J. Eq. 694; 23 Am. Dec. 756. A use may be public though it benefit but a limited portion of the community: Aldrige v. Tuscumbia etc. R. R. Co., 2 Stew. & P.199; 23 Am. Dec. 307, and note. A work may be of public use though owned and conducted by a private corporation: Willyard v. Hamilton, 7 Ohio, pt. 2, 111; 30 Am. Dec. 195, and note. See, especially, on this subject, the extended note to Beekman v. Saratoga etc. R. R. Co., 22 Am. Dec. 686.

EMINENT DOMAIN.-THE PROPERTY OF A CORPORATION is subject to the right of eminent domain, as well as the property of private individuals: Tuckahoe Canal Co. v. Tuckahoe R. R. Co., 11 Leigh, 42; 36 Am. Dec. 375.

EMINENT DOMAIN-IRRIGATION.-The interests of riparian proprietors in a stream of water may be appropriated to a public use by a state in the exercise of the right of eminent domain: Cooper v. Williams, 4 Ohio, 253; 22 Am. Dec. 744. See, on this subject, the case of In re Madera Irr. Dist., 92 Cal. 296, 27 Am. St. Rep. 106, and note, and the extended note to Vanderlip v. Grand Rapids, 16 Am. St. Rep. 611.

STATUTES-CONSTRUCTION.-A proviso in a statute is not to enlarge the operation of the enacting clause: Salling v. McKinney, 1 Leigh, 42; 19 Am. Dec. 722.

STATUTES.-The object of the constitutional provision that a statute shall contain but one subject, and that that subject must be expressed in the title, is treated in the extended_note to Davis v. State, 61 Am. Dec. 338. And see, also, the note to Tuttle v. Strout, 82 Am. Dec. 110.

DIERS V. MAllon.

[46 NEBRASKA, 121.]

ARREST WITHOUT WARRANT.-THE AUTHORITY OF A CONSTABLE, SHERIFF, OR OTHER PEACE OFFICER to arrest without process, upon reasonable suspicion, one who is charged with the commission of a felony, and to retain him for a reasonable time, until a warrant can be procured, is well established.

ARREST WITHOUT WARRANT.-A PEACE OFFICER IS NOT LIABLE for making an arrest, though the person arrested is innocent of the crime for which he is arrested, if such arrest is made upon reasonable ground of belief that the person arrested is guilty.

REASONABLE GROUND FOR ARREST, WHEN A QUESTION OF LAW.-If there is no conflict in the evidence, the court may, as a matter of law, instruct the jury that there was reasonable ground for the belief, on the part of an officer making an arrest, that the party arrested was guilty of the crime for which he was apprehended.

PROBABLE CAUSE FOR AN ARREST is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.

PROBABLE CAUSE FOR AN ARREST IS ESTABLISHED, as a matter of law, by evidence showing that a person then in custody, charged with the commission of a murder, asserted that he was procured to commit it by the person arrested; that the decedent in his lifetime had expressed fears of being murdered by that person, who was also represented to be of a bad and dangerous character.

JURY TRIAL-QUESTION OF LAW. If the question is, whether a person, arrested by a peace officer without a warrant, was detained an unreasonable length of time, it may be determined by the court, as a mattter of law, if there is no conflict in the evidence upon the subject.

THE DETENTION OF A PRISONER, ARRESTED WITHOUT WARRANT on a charge of murder, is not unreasonable, though he is not taken before the magistrate until the third day after his arrest, if the first day was Sunday, and the arresting officer at once called the attention of the prosecuting attorney to the matter, detailing the facts and requesting that a complaint be prepared and a warrant issued, and such attorney promised to at once comply with the request.

THERE IS NO ERROR IN REFUSING INSTRUCTIONS upon matters which it is the duty of the court to determine for itself as matters of law, and which it does so determine.

FALSE

IMPRISONMENT-CHARACTER

AND REPUTATION OF PLAINTIFF.-In an action for false imprisonment, evidence of the good reputation of the plaintiff prior to his arrest without warrant is not admissible, where no attempt has been made to show that such reputation was bad.

DUTY OF OFFICER TO INQUIRE RESPECTING REPU. TATION OF PERSON ARRESTED.-An officer knowing that a mur der has been committed, and receiving information sufficient to raise an honest belief on his part, as a prudent man, that a particular person is guilty thereof, cannot be adjudged negligent, because he did not make

injuiries among the neighbors of the accused as to his habits, standing, and character before arresting him, without first having a warrant commanding such arrest.

TREATMENT OF PRISONER.-IN AN ACTION FOR FALSE IMPRISONMENT in making an arrest and detaining the plaintiff without warrant, and placing him in irons, the question to be submitted to the jury is, whether the defendant used force and violence upon the person of the plaintiff in excess of what was reasonably necessary, under the circumstances, to safely detain and keep him; and, if there was no such excess, there can be no recovery, provided the circumstances were such as to justify the arrest, though it was subsequently ascertained that the plaintiff was not guilty of the crime of which he was accused.

A SHERIFF OR OTHER PEACE OFFICER HAS A DISCRETION RESPECTING THE MEANS to be adopted to safely keep a person arrested by him without warrant, but with reasonable ground to believe him to be guilty of committing a felony, and though he was put in irons, and is afterward shown to have been innocent, the officer is not liable in damages, if the precautions adopted were, at the time, honestly believed by him to be necessary and reasonable.

C. Hollenbeck and N. H. Bell, for the plaintiff in error.

W. H. Munger and Frick & Dolezal, contra.

123 NORVAL, C. J. This was an action for false arrest and imprisonment by Herman Diers against James P. Mallon, as principal, E. William and others, as sureties on the official bond of said Mallon, as sheriff of the county of Dodge. There was a verdict for the defendants, a new trial was denied, and judg ment was entered upon the verdict. Plaintiff prosecutes error.

The facts in the case, as disclosed by the record before us, are, in substance, as follows: On the tenth day of December, 1889, one Carlos F. Pulsifer was murdered near the village of Crowell, in Dodge county. A day or two later, the defendant sheriff arrested and held in his custody, in the jail of said county, Charles Shepherd and Christian Furst upon the charge of having committed said murder. During said imprisonment, and on the thirteenth day of said month of December, the sheriff was present at a conversation had between said Shepherd and the attorney of the latter, T. M. Franse, Esq., in which the former stated to the latter, in substance and effect, that the plaintiff Diers 124 had hired him, Shepherd, to kill and murder said Pulsifer, which statement said Shepherd reiterated in the presence and hearing of the officer; that at the same time Mr. Franse said he was not surprised, or words to that effect; that he knew that someone was behind it, and, further, Pulsifer had stated, during his lifetime, that if he was ever murdered, it would be by Diers; that Mr. Franse also stated that Diers, the plaintiff, was a bad man, by which the sheriff understood that plaintiff was a vicious man, and one difficult to handle. On the fourteenth day of December, Mr. Mallon took the train for Norfolk, and while going he

had a conversation with Judge Crawford, of West Point, with whom he was acquainted, regarding the murder, and of whom he made inquiry in regard to the reported statement, above referred to, claimed to have been made by Pulsifer in his lifetime, and Judge Crawford informed the sheriff that Mr. Romberg had stated in West Point that Pulsifer had made the statement, "if he was killed, that Diers would be the one that would murder him"; that the judge also informed him that, years before, there were a number of incendiary fires at West Point, and that Diers was strongly suspicioned as being the perpetrator of the crimes; that it was getting pretty hot for Diers, and an attorney was consulted, who advised Diers to enlist in the army to prevent his being prosecuted, and he thereupon did so. On the information thus received from Shepherd, Franse, and Crawford, the defendant Mallon, on returning home from Norfolk, on Sunday, December 15th, without any warrant, arrested Diers on the train for being implicated in the murder of Pulsifer; that plaintiff, upon being told that he was charged with murder, inquired of the sheriff, "Is it murder, or knowing of murder?" After the arrest of Diers, he was handcuffed, and in that condition brought to Fremont on the cars, and from the depot he was taken in a carriage to the jail, where he was placed and confined in one of the bedrooms in the living apartment of the jail 125 until December 19th. Within an hour after reaching Fremont, which was on Sunday, the sheriff went to Mr. Loomis, the county attorney, told him of the arrest, detailed the circumstances to him, and asked that a complaint at once be filed. Mr. Loomis agreed to do so. The next morning, and several times during Monday, the sheriff saw the county attorney about it, and on Tuesday, December 17th, a complaint was duly filed with the county judge charging the plaintiff with murder, upon which a warrant was issued, and, by agreement of the parties, the hearing was postponed until the nineteenth day of December, on which day an examination was had upon the complaint, which resulted in Diers being discharged by the county judge. It is further disclosed by the testimony adduced on the trial of this cause that the examination before the county judge was not had at an earlier date, owing to the fact that the witnesses lived at so great a distance from Fremont that their attendance could not sooner be obtained; that the sheriff, at the time of the making of the arrest, believed to be true the information received from the different sources relating to Diers being implicated in the murder, and that Mr. Mallon, in arresting and detaining Diers, acted in the utmost good faith.