(182 P.) thereto is useless for the reason that we find that the note in question is an independent obligation; that Burford is therefore a substitute debtor, and the original transaction between him and the oil company is of no concern in the claim of Mrs. Hughes upon the note. not the facts in the case at bar. In the above-cited case, the note was made to the bank for the accommodation of the one who was really the payee. In the instant case the rote was made payable to Mrs. Hughes, not for the benefit and at the request of the oil company, but for the benefit of Burford, and the note having been thus executed to Mrs. [3] Section 4759 of the Revised Laws of Hughes for the benefit of Burford without Oklahoma 1910 provides that all allegations any knowledge by Mrs. Hughes of any false of an appointment or authority shall be takrepresentations made to Burford, if they en as true unless denied under oath. The were made, relieved the Flora Dora Oil Com- reply of Mrs. Hughes, denying the allegation pany from the payment of $700, justly due of the answer of Burford alleging that Bucher and owing to her by it, and undoubtedly, un- was her agent, was not under oath. Evider the circumstances as they are in this dence was introduced first by Burford, he case, and as found by the jury, it cannot be himself testifying as to the facts of the agensaid that Mrs. Hughes should lose the entire | cy. Then Mrs. Hughes introduced evidence $700, because some one had made false repre- to disprove the agency. Burford was not sentations regarding the lease which were only the first to introduce evidence to prove unknown to her. agency, but made no objections to the eviThis finding necessitates the consideration dence of Mrs. Hughes to disprove agency. of the law of rovation. In 29 Cyc. 1130, "no-The issue was tried as though the reply was vation" is defined as follows: verified, and Burford in this court for the first time objects to the evidence to prove or disprove agency for the reason the reply filed by Mrs. Hughes was not verified. "Novation is the substitution by mutual agreement of one debtor or of one creditor for another whereby the old debt is extinguished, or the substitution of a new debt or obligation, for an existing one, which is thereby extinguished. It is a mode of extinguishing one obligation by another-the substitution, not of a new paper or note, but of a new obligation in lieu of an old one-the effect of which is to pay, dissolve or otherwise discharge it." Section 4759, supra, further provides that allegations of the existence of a partnership shall be taken as true unless denied under oath. In Johnson v. Douglass, 8 Okl. 594, 58 Pac. 743, the answer denying the partnership was not verified, and the parties thereto introduced evidence to prove and disprove the [2] And on the same page the requisite of partnership; no objections being made therenovation is stated as follows: "In every novation there are four essential requisites: (1) A previous valid obligation; (2) the agreement of all the parties to the new contract; (3) the extinguishment of the old contract; and (4) the validity of the new one. A novation is a new contractual relation." to as in the case at bar. The law laid down in that case is as follows: "An allegation of the existence of a partnership, made in the pleadings in the case, is admitted, unless the same is denied under oath by the opposite party, his agent or attorney. But if the parties go to trial in the justice's court without raising the point, and an appeal In Martin v. Leeper et al., 48 Okl. 219, 149 is taken to the district court, and they proceed Pac. 1140, it is held: [1] In the instant case, we find that the contract of Mrs. Hughes with the oil company for the lease on her lands for oil and gas purposes was a valid obligation and a just debt to her; that all the parties, together with Mrs. Hughes, the oil company, and Burford, entered into a new contract, that is, that in payment of so much cash, and the giving of a note by Burford to Mrs. Hughes, the old contract between the oil company and Mrs. Hughes became extinguished; and that the contract evidenced by the note of Burford to Mrs. Hughes is a valid one. The second and third propositions raised by plaintiff in error are that the note was not transferable, and that fraud, if any, on the part of the oil company, was a defense thereA discussion of the law in reference to. to trial, and without objection, evidence is introduced by the plaintiff tending to prove the partnership, and contrary evidence by the defendant, and the case is tried as though the partnership was in issue, the court will treat the point waived." Consequently, in keeping with the above authority, we find that the objection now comes too late. By not objecting to this evidence in the trial court, the plaintiff in error waived the statutory requirements that his allegations as to agency must be taken as true; the same not having been denied under oath. As heretofore stated, Burford made no claim of fraud when the land was being developed, but waited until developments proved the lease to be worthless. What would have been his attitude if oil had been discovered? Would he have yet claimed fraud in the procurement of his note and the issuing of stock to him? His answer to the following questions throws but little light upon what his attitude would have been: "By Mr. Crump: Q. When you got back, you (2. APPEAL AND ERROR 1068(4)—HARMLESS found two dry holes on the land, didn't you? ERROR-INSTRUCTIONS-DAMAGES. A. Yes, sir. "Q. When you got back, if you had found these two holes was a thousand-barrel producing oil well, you would not have said a word? "By Mr. Blakeney: We object. "By the Court: Overruled. "By Mr. Blakeney: Exceptions. "By Mr. Crump: Q. You would have not said a word about it, would you-you would have gone on and paid the note? A. (No answer.) "Q. And you would have paid the note? A. It would have depended "Q. If you had got a thousand-barrel well on each of them? In an action for damages to growing crops caused by the erection of a dam which caused the land to be flooded, and under the evidence the plaintiff was entitled to recover a sum equal to that awarded under any theory of the law, the judgment in his favor will not be reversed for an alleged error in defining the measure of damages. 3. MUNICIPAL CORPORATIONS 733(4)—OPERATION OF WATERWORKS-BUSINESS FUNCTIONS. A municipal corporation, in operating a waterworks plant, exercises business and admin "By Mr. Blakeney: We object as incompe- istrative functions, rather than those strictly tent, irrelevant, and immaterial. "By the Court: Overruled. "By Mr. Blakeney: We except. governmental in their nature, and in the exercise of said functions are governed largely by the same rule applicable to individuals or private corporations engaged in the same busi "By Mr. Crump: Q. What do you say about it, Mr. Burford? A. Well, if there-if it hadn'tness. have been for those dry holes in there- " 4. MUNICIPAL CORPORATIONS 743 - W▲- Burford testified that he was away on a visit when developments were being made. Good conscience and fair dealing would have Where a municipal corporation owns a murequired him to have investigated whether or nicipal water plant, situated in the bend of the not a fraud had been perpetrated upon him river outside of the city limits, and a drainage before development was had. He owed this district is established, and a ditch constructed to the others who were associated with him from one portion of the river to another, which in the development of this lease, and especial-nel of the river where the waterworks plant was would drain the water from the ordinary chanly so, when he testified that he was doubtful situated, and the drainage district built a weir whether or not the representations made to or dam to prevent the water from the main him as to developments to the south of the channel flowing down the drainage ditch, the lease were true. effect of the dam was to hold sufficient water The defendant in error admits that through back in the channel of the river so the same error the judgment of the lower court is ex- might be utilized by the waterworks plant, and cessive in the sum of $12.05. The judgment said dam or weir is washed away, and has the effect of destroying the water supply for the for $957.80 entered by the trial court is modi-municipal plant, the dam in its broken condi fied to this extent, leaving a balance due tion becomes a nuisance in so far as it pertains thereon in the sum of $945.75, as of the date to the municipal waterworks plant, and the October 27, 1916, the date of the rendition | of the judgment in the trial court. The judgment of the trial court as modified is hereby affirmed. city may abate the nuisance on its own motion, doing no more than is necessary to protect its rights by re-establishing the dam in accordance with the plans of the drainage district, and to prevent the reoccurrence of the damage from the nuisance abated, but in the abating the SHARP, RAINEY, PITCHFORD, and Mc- same or rebuilding the dam, if it damages or inNEILL, JJ., concur. OWEN, C. J., not participating. (75 Okl. 211) OKLAHOMA CITY v. HOKE. (No. 9184.) (Supreme Court of Oklahoma. July 29, 1919.) (Syllabus by the Court.) 1. WATERS AND WATER COURSES 179(4)— DESTRUCTION BY FLOOD-EVIDENCE-JOINT INTEREST. The evidence examined, and held insufficient to disclose that the witness Beeler had a joint interest in the crop destroyed or claimed a joint interest therein. jures property of third persons, its liability will be deter ined on the same theory as if it were a private corporation. 5. WATERS AND WATER COURSES 178(2)— FLOODING OF LANDS-DESTRUCTION OF CROP -DAMAGES. In an action for damages for the destruction of crops caused by the maintenance of a dam which caused the lands of another to be flooded, the jury in fixing the amount of damages fixed the value of the property at the time of the damages, and interest from said date. Held, not error. Appeal from District Court, Oklahoma County; John W. Hayson, Judge. Action by Charles E. Hoke against the city of Oklahoma City. Judgment for plaintiff. Defendant appeals. Affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (182 P.) B. D. Shear, A. T. Boys, and C. M. Thorp, all of Oklahoma City, for plaintiff in error. Ernest Chambers, of Oklahoma City, for defendant in error. MCNEILL, J. This action was instituted by the defendant in error in the district court of Oklahoma county to recover the sum of $600 as damages for the destruction of corn crop by an overflow of the North Canadian river, which was occasioned by the negligent and wrongful erection and maintainance by the plaintiff in error of a dam across a certain drainage ditch near the land. The facts are: That a drainage district was created southwest of Oklahoma City along the North Canadian river to straighten the river through several drainage ditches and to increase the flow through certain channels and thus prevent overflows during flood periods. One of these ditches was known as proposition No. 4, being built about one mile long across the neck in the bend of the river, which bend was about five or six miles long. That in the bend or loop of the river was situated the waterworks plant belonging to the city. This was used in connection with the sewer system, fire department, and for domestic and manufacturing purposes by the inhabitants of the city. That at the mouth of ditch No. 4, the plans of the drainage ditch called for a dam, which during ordinary times would force the flow of water in the stream down the old channel, thereby permitting it to be used by the city, and during the period of floods would permit the surplus water to flow over the dam and down the ditch. Soon after the dam was completed, it gave way, and practically all of the water of the river was drained from the ordinary channel down into this ditch and into the river below, leaving the city practically without any water. Some time after the dam was washed out, the city commissioners procured the right from the county commissioners to rebuild the dam and divert the water into the old channel for the purpose of protecting the water supply. This dam was built under the direction of the city officers having charge of the waterworks department, at the expense of the city, and it was the contention of the plaintiff that it was negligently and wrongfully erected, and, being erected in the manner it was, it caused the overflow of the river on the grounds of the plaintiff. Judgment was rendered for the plaintiff for the sum of $367.50 with six per cent. interest from May 12, 1914, from which Judgment the defendant brings this proceeding in error. The parties herein will be referred to as they appeared in the trial court. The defendant urges numerous assignments of error for the reversal of this cause, which are combined under several general propositions. [1] The first question presented by defendant in error in their brief is that the court erred in rendering judgment for plaintiff for the full amount of the crop. They allege the evidence disclosed that plaintiff was not the sole owner of the crop in question, but that one William T. Beeler had a joint interest in the crop destroyed. The defendant in error does not appear to have raised this question in the lower court, nor was it assigned as error in its motion for new trial, nor does the same appear to have been made an issue in the court below. The record disclosed that the plaintiff below produced William T. Beeler as a witness in the case, who testified as follows on direct examination: "Q. Now, did you cultivate that land that year for Mr. Hoke? A. Yes, sir. A. Yes, sir; Mr. Hoke helped me some.” "Q. You were the actual farmer in charge? And on cross-examination he testified as follows: "Q. What part of it was yours? A. Well, I got one-half, and Mr. Hoke was doing the renting and was paying cash rent, and then he provided me everything and he gave one-half. "Q. And you was to have one-half of the proceeds of the crop? A. Yes, sir." The defendant in error cites the case of No St. Louis & S. F. Co. v. Webb,. 36 Okl. 235, 128 Pac. 252; but in that case the question arose over damages to a certain horse, the the plaintiff alleged that he was the owner thereof, and the evidence disclosed one Merrill was a joint owner of the horse, and in that case defendant requested the court to instruct the jury that if Merrill was a joint owner of the horse the plaintiff could only recover for his interest in the horse. such an instruction was requested in the court below, nor was any such a question presented in the motion for new trial, nor did the defendant in error request such an instruction. The first time the question appears to be presented is in this court. Beeler did not claim to be the joint owner in the property, but was to receive only one-half of the proceeds. If Beeler's evidence is true, and he appeared and testified in the case at bar, he could not maintain a separate and distinct action for his portion of the crop; for he testified that he was not the joint owner of the property, but he was to receive one-half of the proceeds of the crop. While it may be true that he might maintain an action against the plaintiff for one-half of what the plaintiff recovers in this case, that question is not involved here. The court did not instruct the jury that the plaintiff was the owner of the crop, but instruction No. 20 is: "If you should find for the plaintiff, your verdict should be in such sum as you find from the evidence will reasonably compensate him and we cannot see that defendant has suf for the loss he has sustained." For the reasons stated, it was not error to render judgment for the full amount as found by the jury. The defendant next complains of the instruction of the court to the jury as to the amount of damages. On this question, the plaintiff introduced evidence as to the value of the crop in question, basing it upon the value of so much per acre. The plaintiff then introduced the following evidence: "Q. Referring now again to the corn crop, Mr. Hoke, do you know what would have been the expense incident to cultivating that crop out there to maturity and covering the marketing of it, beginning at the time it was destroyed; do you know? A. Yes, about $4 per acre." This appears to be the only evidence, or it is all that is called to the court's attention, that was introduced in the case upon this point. The evidence was broad enough to cover the proper measure of damages. The court instructed the jury, in substance, they might, in ascertaining the amount of damages, take into consideration the kind and character of the crops destroyed, the time of their destruction, the yield that was reasonably certain said crops would produce, taking into consideration and deducting there from the cost of producing said yield, then measuring the value of the yield by the market price, at the time of such crops maturing. This instruction perhaps is broad enough to include the cost of harvesting and cultivation, but would not include the cost of marketing. The evidence on this question was what was the cost of cultivating, harvesting, and marketing as one item; and, there being no conflict whatever in the evidence as to such cost, and the only evidence included all of the items that make up the proper items of deduction, we cannot see that the rights of the defendant have been invaded by this instruction, since the evidence goes to show that, if entitled to recover at all, plaintiff was under any theory of the law entitled to recover a sum equal to that which he was awarded by the jury in this case. In the case of Ft. Smith & Western R. R. Co. v. Harman, 161 Pac. 1079, it was said: "Where, in an action for damages for burning grass upon a hay meadow and for damage to grass roots, the plaintiff was entitled under the evidence to recover a sum equal to that awarded, under any theory of the law the judg fered prejudicial error by this instruction. Section 6005, R. L. 1910. The defendant presents as error, in his next specification of error, three propositions: First, did the situation surrounding proposition 4, after the diversion weir was destroyed in May, 1913, constitute a public nuisance? Third, in abating said nuisance, in what capacity did the officers act? Their counsel present these three questions together. [3] The first question to be determined is: In the operating of the waterworks, is the city exercising governmental functions, or are they exercising business and administra tive functions? This question has been set tled by this court in the case of City of Durant v. Allen, 168 Pac. 205, and Fretz v. Edmond, 168 Pac. 800, L. R. A. 1918C, 405, where the court stated as follows: "Municipal corporations in operating a water plant exercise business and administrative functions, rather than those strictly governmental in their nature, and in the exercise of said functions are governed largely by the same rule applicable to individuals or private corporations engaged in the same business." With this proposition of law settled by our court, then the operating of the waterworks plant would be governed by prac tically the same rules and regulations as if it were a private corporation. Now plaintiff in error claims that when the diversion weir or dam broke, and thereby permitted the water to flow down through the drainage district and change the course to such an extent that it prevented the water from being accessible for the water plant and left them without water, so if it was a nuisance, it was not a nuisance within itself but a nuisance in so far as the operating of the water plant was concerned. If the plaintiff desired to abate the nuisance and rebuild the dam, then it would be just in the same position and governed by the same rules and regulations as if it were a private corporation. We have been furnished with no authority holding that a municipal health officer, or other city officer acting as such, may act outside the bounds of the city within the scope of his governmental duty. It is true the statutes of Oklahoma give municipalities the right to acquire and hold property outside of their corporation limits for certain purposes, one of which is to procure a water supply, another for sewerage purposes, and such statute gives the city officers police power and [2] Under the evidence in this case, the general municipal control over such propplaintiff was entitled to recover a sum equal erty. However, these statutes do not confer to that awarded by the jury in its verdict, the powers contended for by defendant, ment in his favor will not be reversed for an alleged error in defining the measure of damages." (182 P.) which would authorize the officers of such While it is well recognized that a municimunicipality to exercise governmental func- pal corporation is not liable for negligence tions outside the corporate limits. in regard to governmental duties and is lia [4] There was a nuisance admittedly ex-ble for negligence and damages resulting isting, however, as to the city, in that the destruction of the original dam interfered with its right as a lower riparian owner along the North Canadian river to take of the waters of such stream. The right to abate such nuisance, either by action at law or summarily, grew strictly out of the injury to and the invasion of its rights to take of the water of such river such an amount as was granted to it by the proper authorities of the state of Oklahoma. Joyce on the Law of Nuisance, p. 532, par. 370, and cases there cited. In Woods on Nuisances (3d Ed.) vol. 2, p. 942, after stating the rule that a private person may not of his own motion abate a strictly public nuisance under any circumstance, it is stated: "Any person who sustains a special injury or damage from a public nuisance to an extent that will support an action at law may abate the same of his own motion, doing no more damage than is necessary to protect his rights and prevent a recurrence of it from the nuisance abated." A careful consideration of the evidence shows that the city in abating the nuisance was only exercising its legal rights and doing what it was authorized to do, both at common law and under the statutes of Oklahoma. Rev. L. 1910, § 4261. And that in so acting it was protecting its property, the municipal waterworks plant, the maintenance of which does not come within the class of duties known as governmental duties, but rather private corporate functions, for the negligent exercise of which it will be re sponsible in damages. McQuillin on Mun. Corp. §§ 1801, 2625; City of Durant v. Allen, 168 Pac. 205; Fretz v. City of Edmond, 168 Pac. 800, L. R. A. 1918C, 405; Fisher v. New Bern, 140 N. C. 506, 53 S. E. 342, 5 L. R. A. (N. S.) 542, 111 Am. St. Rep. 857; Bailey v. New York, 3 Hill (N. Y.) 531, 38 Am. Dec. 669. The record clearly showing the corporate officers were not exercising governmental functions when acting to abate the alleged nuisance, then the court correctly refused the requested instructions defining its rights under acts governmental in their nature. An examination of the instructions given show that the court instructed the jury, if they found there was a nuisance existing, the city would be liable only in the event that its officers failed to exercise ordinary and reasonable care in abating the same, or, in other words, in building the dam. This was the correct rule to guide the jury in this case, and the instructions of the court correctly submitted this rule, and it was not error to refuse the instruction offered by defendant. from the exercise of its private corporate powers, yet there is another well-settled rule that if a city, under its power to abate a nuisance, is proceeding against that which is in fact a nuisance, because of its situation, nature, or use, it is then under the obligation to exercise the power of abatement in a reasonable manner so as to do the least injury to private rights, and if, where the fact of the nuisance is clear, it exercises the power of abatement in an unreasonable, careless, and negligent manner so as to produce unnecessary damage to private rights, it will be liable for damages caused by such negligence. Orlando v. Pragg, 31 Fla. 111, 12 South. 368, 19 L. R. A. 196, 34 Am. St. Rep. 17. In the case of Babcock v. City of Buffalo, 56 N. Y. 268, the Court of Appeals of New York held: "A power given a municipal body to abate a nuisance in any manner it may deem expedient is not an unrestricted power; such means only are intended as are necessary for the public good. The abatement must be limited by its necessity, and no wanton or unnecessary injury to the property rights of individuals must be committed." The facts in this case disclosed that a canal or slip had become a nuisance and unwholesome in the city of Buffalo by reason of débris and other matter being thrown therein, the canal at times was a valuable waterway, and the city ordered it filled to abate the nuisance thereby created. The court in granting an injunction against the city held that the nuisance could be prevented by the city in the exercise of its power so as to preserve the canal and slip, and the obstructions and débris in the canal could be removed at a small expense; there being no necessity for filling up the canal. See Allison v. City of Richmond, 51 Mo. App. 133; Dooley v. City of Kansas, 82 Mo. 444, 52 Am. Rep. 380; Joyce on Law of Nuisances, p. 376, and cases cited; Calef v. Thomas, 81 Ill. 478; Indianapolis v. Miller, 27 Ind. 394; Gates v. Blincoe, 2 Dana (Ky.) 158, 26 Am. Dec. 440 and note. Woods on Nuisances (3d Ed.) vol. 2, § 741, says: "A person who takes the abatement of a nuisance in his own hands, whether the same is public or private, must do as little damage as possible, etc. And further at page 1282, same volume, it is said by the author: extent that he may maintain an action at law "Any person injured by a nuisance, to the therefor, may remove so much of the nuisance as is necessary to secure himself from damage therefrom, but he must not be guilty of any ex |