easement of drain, and that while the abandonment of the natural channel and the adoption of another for the prescriptive period would create an easement of drain over the new route, such easement is not an exact trade for the old right (it is narrower in its scope as appears from above) and cannot therefore figure in an extinguishment as by non-user acted upon (Auburn v. Goodman 128 Ill. 57; I. C. R. Co. v. Moore 160 Ill. 9; Swedish v. Lutheran Church v. Jackson 229 Ill. 506), or a non-user with intention to abandon (Dorman v. Droll 215 Ill. 262).

If, however, as must be conceded, an artificial right of drain may be acquired by prescription, it must follow that such right is adverse to the servient estate and cannot be extended beyond the use by virtue of which it exists. And that brings us to this point: Were it a case of natural right of drainage, the servient estate could be required to take any additional water the flow of which is accounted for in having been facilitated in its natural course by artificial means (ILL. L. REV. IX 564, 566; People v. Peller 290 III. 454). A railroad in the line of the natural drainage can be compelled at its own expense to enlarge a bridge inadequate for that purpose (ILL. L. REV. XII 649; XV 463). So that if the dominant owners, by building levees, were able thereby to cause more surface water to flow upon the servient estate in the line of drainage, the servient estate must accommodate it, even to the extent of building a new bridge, or raising its embankment.

But, does that apply to an artificial right-an easement? It would seem that the nature of the easement itself would belie any such theory. The easement by prescription is founded on an adverse claim, and it must be strictly confined to the nature of the prescriptive use. Had it been an easement by grant, the terms of the grant must have been referred to for its extent. Being an easement by prescription, the use that created it is the only criterion, and if that use found a condition of levee of a certain height only, requiring only a certain size of bridge, is it not an excess user of the easement now to saddle on the servient owner (servient as to this easement) a larger burden?

One who owns the land on both sides of a stream, it is true, may alter the course of that stream within the confines of his land so long as he does not change the identity of the stream from the point where it leaves his land (ILL. L. REV. XV 464). It would follow that a number of owners, acting in concert, could change the course of a stream within the confines of their common property, provided they return it to its natural channel at the point where it leaves their lands; and, apparently, that is the extent to which the principal case goes, for it recognizes that the additional flow caused by the proposed work must be in the line of natural drainage. But in sustaining the objections to an instruction in that case (299 11. 319) the court shows an intention, apparently, to adhere to the rule of extinguishment of an easement as applied to the natural right.

Any comment on the case, however, would be incomplete without particular reference to that portion of the opinion (299 Ill. 308) to the effect that the term "water-course," in Illinois, has no differ

ent significance as between the dominant and servient owners, whether applied to streams or surface water. In this the court is sustained by the earlier cases, but must not be understood as holding that a watercourse is always a stream (ILL. L. Rev. XV 462).

E. M. L.

PROPERTY-ESTATES-RULE AGAINST PERPETUITIES.-In the case of Beal v. Higgins 299 Ill. 229, 132 N. E. 542, the limitation was X to A for life; then to B, C, and the children of D for and during their lives; upon death of all or either of B, C, or children of D, to "the heirs of the one so dying"; "the same benefits" as were devised to said B, C, and the children of D, for life; after the death of the persons named in the last limitation above, then to their heirs for life; and after death of all those named in preceding limitations, then over. The parties conceded the invalidity of all the limitations after the one to B, C, or the children of D, and the only question for the court to decide was whether, within the rule of cases like Barrett v. Barrett 255 Ill. 338, the whole was so a part of one scheme that the invalidity of the succeeding limitations thus conceded would cause the preceding one to fall as well. The court held not, pointing out that the scheme involved four separate, successive, independent life estates, and one could fall without drawing with it a preceding one.

But, aside from stating the general definition of the rule against perpetuities (citing the cases of Madison v. Larmon 170 Ill. 65 and Drury v. Drury 271 Ill. 339, the court does not indicate whether it would have held that the rule applied as counsel agreed it did, in the absence of such agreement. Upon that it is submitted that if the limitation over after the one to B, C, and the children of D, be construed as being of the share of any that might die. "to the heirs of the one so dying," in the event that B or C died, would not violate the rule (see Drury v. Drury 271 Ill. 339, where the limitation was X to A for life, then to A's heirs of body, but if A die without child or children, then to the great grandchildren of X, and the rule was held not to apply); but if a child of D died who was not in existence at the death of the testator, the rule would undoubtedly apply. (In Dime Savings Bank v. Watson 254 Ill. 422, the limitation was "to the living nephews and nieces and twenty-one years after death of last surviving nephews and nieces [not confined to those living] to my grand-nephews and grand-nieces.") And, as the rule is held to apply, if the particular limitation can possibly be deferred in vesting, beyond the limit in time (Drury v. Drury 271 Ill. 339), it must follow that in the problem presented by the limitation in question in the principal case, the limitation is invalid.

E. M. L.

JOINT-TORTFEAsors and Severance of Damages; Making the INNOCENT PARTY SUFFER WITHOUT REDRESS.-Ignorance of history sometimes builds up a rule of thumb, which when applied by mere logic, does cruel wrong.

For many years past one such simple rule has done its bad work, and of late the courts are callously letting the harm run up into the thousands. It is time to speak out and lodge a protest.

The case may be illustrated thus: Suppose three rascals, A, B, C, assault and knock down M; A kicks and breaks a rib, B crushes a hand, C gouges an eye. When M recovers consciousness and sues them, he can prove the initial assault by A, B, and C, but he cannot prove which harm was done by which assailant. Does he lose his case? By no means. The law sensibly relieves him from any loss through mere inability to prove the specific shares of harm done by each. It makes each assailant liable for all the harm; leaving them to settle their shares between them. (Sir John Heydon's Case (1613) 11 Coke Rep. 5.)

This, of course, is only common decency on the part of the law. But note just what it is that the law does: It relieves M from the burden of proving what is practically impossible for him to prove. In short, the rule has its true place and application wherever the injured person has been injured by two or more persons and cannot prove the specific share of each.

But now note the ill consequence of ignoring historically this reason for the rule. It was naturally applied in a suit against the wrongdoers jointly, and came to be spoken of as a rule of liability for joint tort-feasors. Hence, it came to be thought of as limited by the idea of "joint"; and logically the idea of "joint" is narrow, and implies conscious concert of action. If there was no conscious concert of action the rule was not applied.

And yet its reason applies just the same when there is no concert of action. Suppose M had been knocked down negligently by A's car; while lying unconscious he is run over negligently by B's car, and later is again run over negligently by C's car. After his rescue, he sues all three. By hypothesis each was culpable. But M cannot prove which of his broken bones was due to which of the cars. He will therefore recover nothing. Yet the reason of the rule is the same, viz., the unfairness of putting on the injured party the impossible burden of proving the specific shares of harm done by each, and the ingenuity of letting all three go scot free because the respective shares cannot be ascertained.

Now this is what our law is doing today. It is a piece of callous cruelty to innocent parties. A plaintiff put out of court by that rule may well rail against the hypocrisy of naming justice and law together.

Let us look at some recent typical examples. Six different coal mining companies located at various points on the Bluestone River above the plaintiff's riparian property, send down refuse, etc., which by silting and pollution, ruins the plaintiff's farm. He cannot possibly prove what fraction of silting and pollution came from each defendant. Yet, because each acted independently, the beneficent rule for joint tort-feasors does not apply. Hence, he is totally without redress. This is a ruling of 1920: Farley v. Crystal Coal & Coke Co. 85 W. Va. 595, 102 S. E. 265. And, most astonishing, the court here repudiates its own former sound ruling in Day v. Louisville Coal & Coke Co. 60 W. Va. 27, 53 S. E. 776.

Again: Several parties obstruct a water-course, by independent action, the result of which is to flood the plaintiff's premises. Because he cannot prove the share of each he has no redress at all— not against them jointly, because they did not act in concert; nor against any one of them, because that one's share in causing the result cannot be proved: Tackaberry Co. v. Sioux City Service Co. 154 Ia. 358, 132 N. W. 945 (Weaver, J., diss.).

The same law is laid down for several phosphate plants by independent businesses along a river spoiling an oyster bed (Symmes v. Prairie P. P. Co. (1913) 66 Fla. 27. 63 So. 1; Standard Phosphate Co. v. Lunn (1913) 66 Fla. 220, 63 So. 429); and for damage to property by flooding and seepage from two separate operations of an irrigation system (Verheyen v. Dewey (1915) 27 Ida. 1, 146 Pac. 1116).

Such results are simply the law's callous dullness to innocent sufferers. One would think that the obvious meanness of letting wrongdoers go scot free in such cases would cause the courts to think twice and to suspect some fallacy in their rule of law. It does not take much reflection to see the reason of the original rule, i. e., making each joint tort-feasor liable for the whole of the harm done, and to perceive that the reason of that rule carries beyond the narrow limits of its orthodox application. The rule should be: Wherever two or more persons by culpable acts, whether concerted or not, cause a single general harm, not obviously assignable in parts to the respective wrongdoers, the injured party may recover from each for the whole. In short, wherever there is any doubt at all as to how much each caused, take the burden of proof off the innocent sufferer; make any one of them pay him for the whole, and then let them do their own figuring among themselves as to what is the share of blame for each.

It is shocking to contemplate the amount of injustice that is being perpetrated by the current rule in our courts. The only gleam of enlightenment on the horizon is seen in Washington, where the doctrine here contended for was fully accepted and promulgated a few years ago (Johnson v. Irvine Lumber Co. (1913) 75 Wash. 539, 135 Pac. 217; log-jam, caused by different loggers, resulting in damage by flooding).1

1. For useful case-notes, see the following references: Col. L. Rev. XIV 178, XVI 69; Harv. L. Rev. XXIX 793; Va. L. Rev. I 310, 334.

This all goes to show that a rule of law applied without regard to its reason may become a rule of injustice.

J. H. W.

ONE OLD-TIME ATTORNEY GENERAL IN UPPER CANADA.—It always amuses and sometimes exasperates a Canadian to hear of England ruling Canada-that has long been a thing of the past. But once the rule of the old land had a living reality, and it was not till 1812 that Upper Canada had a native attorney general. His predecessor was appointed from England-William Firth by name-and no Canadian raised any objection, for did not England pay him? He was a sample of the kind of Englishman who made it impossible that English rule could continue-I tell but one story of him.

When, in 1794, the Court of King's Bench was erected for the young Province of Upper Canada-just two years old-a modest tariff of fees to be taken by lawyers was fixed by the legislature. The lawyers were dissatisfied, and in 1804 they procured an act authorizing the judges to fix the tariff. The judges fixed the fees at the same amount as in England, and now the suitors-or at least some suitors-complained, and in 1810 the legislature reintroduced the original fees.

One would have thought the act innocent enough, but the law officers of the Crown at York (now Toronto) took alarm.

Firth, the attorney general, and D'Arcy Boulton, the solicitor general, another Englishman, joined in a solemn protest to the Privy Council in England (as the king still had the power to cancel a colonial act and sometimes did so) against the statute as "by totally extinguishing the jurisdiction of the Court as to the regulation of professional fees of its own Court it thereby materially lowers its dignity and lessens the respectability of the Bar by making it completely subject to the casual and disorderly mandates of a popular Assembly." Complaining of the reduction of the costs, "it is our clear and candid opinion that the regulation . . . owes its rise to an insidious spirit of republicanism which seeks to reduce all orders of men to a level and to put the man of science on a footing with the labourer-a spirit which the inhabitants of the colony from their perpetual intercourse and connection with a neighbouring country are but too apt to imbibe .. the Bill in question is one materially encroaching on the just prerogatives of the King by lessening and restricting the power and authority of the Judges of His Court . . . many minor objections exist which might be urged to demonstrate the inexpediency, crudeness, injustice and total inefficiency of the Act

.

but

a paramount and decisive objection to the Act is that it appears to us to be a species of innovation (borrowed from the popular institutions of a neighbouring state) directly levelling the King's Prerogative, curtailing the power, authority and rightful jurisdiction of the Supreme Court by vesting a capricious control over the King's Supreme Court in a fluctuating body to marshal out according to the capricious whim of the moment the precise compensation of professional fees for services of which they must.