jurors set down sums as high as $3,000, which was manifestly unjust, excessive, and the result of passion. A verdict thus obtained and given is highly reprehensible, and the consequence of a decision by lot, which is forbidden by section 271, Criminal Code, that provides 'if the verdict has been decided by lot, or in any other manner than by a fair expression by the jurors,' it shall be a cause for a new trial. Verdicts found by lot are the issue of ignorance, passion, or indifference to the rights of life, liberty, and property, and shows an utter disregard for the rules of law and fair deductions that should be made from the evidence, and they should not be tolerated in cases of this character." See to the same effect, Goodman v. Cody, 1 Wash. 329; S. C., 34 Am. Rep. 808, and note,

815.

* * *

In McMillen's Appeal, Pennsylvania Supreme Court, a testator provided for the education of a nephew for the Christian ministry, the provision to go to Princeton College in case of his refusal to enter the ministry. Held, not a gift to a religious use, and consequently not void under the statute, although made within a month of the testator's death. The court said: "The main object of her bequest was the education of her young relative, and his settlement in life in an honorable profession. The mistake seems to have originated in the idea that because the prescribed education and profession were religious, therefore the trust was religious within the meaning of the act; but it was nothing of the kind. It is conceded that the bequest to Princeton College, though a secular institution, is void as a charitable use, yet I suppose no one would entertain the idea that if the trust were to educate John Edgar in that or any other college, the residue to be paid to him when he graduated, it would be void under the statute. So, carrying the example a step farther, if the donation were for his education, the remainder to be paid to him when he had received the degree of doctor of medicine from a medical college, no one, we think, would contend that this was a charitable use, and yet a devise to a medical college would be such a use. The object of the trust was neither charitable nor religious within the technical meaning of those terms, but the carrying out the intention of the testatrix in the education of her nephew, and in conferring upon him the means of future support. The church might or might not be benefited by having John Edgar for one of its ministers, for he was not required by the will to act in the ministerial office after ordination; but I cannot see that the case would have been altered had he been required to preach for fifty years after such ordination, any more than had the requisition been that he should learn the trade of a carpenter and follow it for a livelihood. The primary object of the donor was to benefit, not the church, or the world, but her nephew, and it certainly would be regarded as a strange thing to announce that the statute in any degree limited the power of the parent, uncle or aunt, to direct by will the edu

cation of a child or other relative. The case is not at all that of Rhymer's Appeal, 93 Penn. St. 142, for there the gift was directly to the church and for strictly religious purposes." Rhymer's Appeal was a case of a testamentary provision for masses for the testator's soul.

In Bodwell v. Crawford, 26 Kans. 292, it is held that the owner of real estate, of which another has taken unauthorized possession, caunot have him enjoined from making a legal use of the premises although it is one of which the landlord disapproves. This is an unprecedented case. The court said: "The plaintiff, as was well known to the defendant, is an eminent Congregational clergyman of pronounced opinions on all moral questions of the day. He was an early settler in Topeka, for some years pastor of the Congregational church in that place, and his reputation there was fixed as a man who believed in the pernicious effects of theaters. For some time past he has resided in the State of New York, but still owning real estate in Topeka, which from time to time he leased to various parties through special contracts executed by himself. In looking after his business and collecting rents, he employed as agents, Ross & Stillson, who had however no authority to lease or to bind the plaintiff by any new contracts. These agents attempted to lease lots of plaintiff's, on which was erected a building known as the 'Tabernacle,' to the defendant for the purpose of general amusements, including theatrical performances. Plaintiff's repugnance to such amusements was well known to his agents, and should have been known by defendant. As soon as plaintiff beard of this transaction, which he did in a very few days by seeing a notice of it in the paper, he repudiated the same by telegraph to the parties, demanding the abrogation of the pretended lease and the cessation of the use of his property for the purposes mentioned, but the defendant declined to abandon the property or discontinue the use. Hence, this action was brought. Do these facts show a case for the interference of a court of equity by the remedy of an injunction? It is clear that the plaintiff, having never leased the lot or author| ized its lease, is entitled to his legal action to recover possession. * Does the fact that the defendant, having an unlawful possession, is using the property for purposes abhorrent to the plaintiff's convictions, justify the interference of a court of equity? It must be borne in mind that the use to which this property was put by defendant, however obnoxious to the plaintiff, is not illegal. The defendant violates no law in running a theater, and whatever may be the opinions of the plaintiff or others as to the immoral tendencies of the theater, the law does not condemn its existence. Doubtless the plaintiff feels outraged by having his property used for such purposes, but can it be said that his legal rights are infringed by use for any purpose which the law does not condemn? Careful reflection convinces us that equity will be permitted to interfere to restrain a use, if at all, only when the

* *

use is illegal; for there are vast numbers of uses to which property may be put which are sanctioned by law, yet which are immoral in their tendencies in the judgment of many, and obnoxious to their convictions of what is right, as well as what is useful and best for society. One may disbelieve in theaters, another in public ball-rooms, and a third in rooms where brokers gamble in stocks, provisions, etc., while still another in lecture-rooms which are open to Spiritualists, Universalists, and infidels. Political convictions are intense in some, and the use of their property by the adherents of another political party, or for the dissemination of opposite political opinions, would be felt to be an outrage and trespass upon their convictions. Indeed, the diversity of belief is so great that a vast number of the uses to which property may legally be put would be found wrong in the judgment of some. In all such cases can equity be permitted to interfere and restrain the use because of the honest convictions of the owner of the impropriety or immorality of such use? The very great number of cases which in such event would be transferred from the domain of law to that of equity, and thus be relieved from the constitutional guaranty of a trial by jury, compels the conclusion that no precedent can be found, because none can constitutionally be made. * * * Here the unauthorized lease was for theatrical purposes; the plaintiff cannot affirm it in part and disavow it in part. He cannot compel the defendant to retain the property and pay rent, and at the same time discontinue the purpose for which he attempted to lease it. By his suit he disavows this act of his agents - this unauthorized lease and must therefore repudiate it in toto. It is simply the case of the defendant unlawfully taking possession of the plaintiff's property. The relation of landlord and tenant never existed. There is no contract relation between the parties. Defendant by his possession and use has violated no contract, and by his use violates no law. In such case the only remedy is the ordinary common-law action for the recovery of possession. So far as the reputation of the plaintiff is concerned in the community where he once lived, where he is now well known and honored, that reputation is sustained by his prompt disavowal of the unauthorized lease and an action at law for the recovery of possession, as fully as it would be by a suit in equity. He stands before the community proclaiming his continued adherence to his old-time convictions, and cannot for a moment be thought to have dallied with what he believes to be wrong." This case ought to go in our chapter on "Limitations of Privileges of the Clergy."

REMARKS ON PROFESSOR DWIGHT'S CRITICISMS OF THE CODE.

to show that the learned gentleman has not made out his case. Many of his criticisms indeed answer themselves, as a careful lawyer will readily perceive. We must say besides, that he has in one respect overstepped the limits he set for himself, when we accepted his proposition to publish the article. He was to "select a particular chapter, say of nine or ten sections, and comment upon them." Of course he had in his eye the chaper on servitudes. But he travels beyond it and brings in Mr. Carter and Mr. Higgins to assail other parts of the Code. Mr. Carter we have had experience of in previous discussions, and Mr. Higgins, we are informed, made himself busy in opposing before the New York Chamber of Commerce the adoption of the York and Antwerp rules of general average, which, after much discussion by persons from different parts of the world, were recommended by the Association for the Reform and Codification of the Law of Nations, and which according to the last report of the council "have become all but universally adopted."

Professor Dwight is not new in the field with an attack upon the chapter on servitudes. So long ago as 1868, the English Law Times had a criticism upon it, which was satisfactorily answered by Mr. Charles Francis Stone, in an article published by the English Law Magazine and Law Review, in February, 1869, entitled "The New York Civil Code on Servitudes."

The Professor says that he took the sections on servitudes "really at random," which taken in connection with other things must mean that he chose them as best for his purpose, because we know that he has argued before a legislative committee on different parts of the Code, has published an elaborate article upon it in the New York Evening Post, and he tells us in his present paper that the sections in question were by others, that is by the New York Bar Association, assigned. to him for study, and he took them up for consideration without any choice of his own. He appears thus to have had them before him for study and consideration six months

or so.

Let us then see the result of his study and consideration. But before doing so it is pertinent to observe that if all he says and all he infers were true, if all his criticisms were as tenable as we think them untenable, he should long ago. have made them known, and a very few words of amendment would have removed all his causes of complaint. This would be in itself a sufficient answer to his argument directed against the enactment of the Code, since it would be only an argument in favor of amending it in certain particulars.

In his first objection the learned gentleman says that "there are no such words in the existing law as land-burdens' or 'servitudes.' The latter word is borrowed from the Roman law, without any corresponding advantage." He is fond of showing specimens. Let us take this instance as a specimen Servitude is a better word than easement, and land-burden is better than either, because it conveys a true idea of the thing. To call one's right of crossing another's farm to reach a running

stream an easement is a perversion of terms. It is not an easement upon the farm, but a burden upon it. Here is a passage from Kent: "The civil law treated very extensively of these incorporeal rights attached to land, and what in the common law are termed easements, or a right which one man has to use land of another for a special purpose, went under the general denomination of servitudes because they were charges on an estate for the benefit of another. * * * The term is a metaphorical expression, borrowed from personal servitude, but the charge is entirely attached to real estate, and not to the person. * * The regulations in the civil law on the subject of urban and rural servitudes were just and equitable, and the provisions made to define and protect these rights were far more minute and precise than those which were to be found on the same subjects in the books of the common law." Since Kent's time the word servitude has become domesticated, and we read of urban and rural servitudes often in our reports.*

*

The Professor denounces the chapter of the Code on this subject for two things: first, that it purports to state the whole law of servitudes, which it does not state; and next, that what it does state is erroneously stated. The answer to each is easy. First. The chapter does not purport to state the whole law of servitudes. Its purpose appears to be to explain what servitudes are, and to adopt a more accurate classification. The two sections to which he refers -section 6 and section 2003-have not the meaning that he attributes to them. Section 6 declares that "in this State there is no common law in any

*An easement or servitude may or may not pass to the hei, according to the nature of the estate possessed by the ancestor. Thus he may have an estate in feesimple in an easement which will survive to his heirs, or he may have only a life estate or an estate for years. 2 Wash. Real Prop. 271, 4th ed. Both terms, 64 easements" " and "servitudes," are used by commonlaw writers, and often indiscriminately. The former however is more generally applied to the right enjoyed, the latter to the burden imposed. The right of way which one man has on the owner of an estate over the land of another is an easement in the one estate, and a servitude upon the other. Washburn's Easements and Servitudes, 5. Jacobs defines servitudes as "burdens affecting property and rights." Au easement is defined to be "a service or convenience which one neighbor hath of another by charter or prescription without profit -a way through his land, a sink or such like."

In Pearsall v. Post, 20 Wend. 120, decided July, 1838, Cowen, J., said: "They present us with another incorporeal hereditament, like a common, a servitude exercisable by one and his heirs within the soil of another and his heirs."

In Wolffe v. Frost, 4 Sandf. Ch. 89, decided September, 1846, the Vice-Chancellor said: "It is claimed on the part of the complainant that the urban servitude which he seeks to establish against the defendant's lot is not an estate or interest in land, nor a trust or power over or concerning land."

In Pitkin v. L. I. R. R. Co., 2 Barb. Ch. 231, decided April, 1847, Walworth, Ch., said: “It was in substance the grant of an easement or servitude which was to be binding on the property of the railroad company as the servient tenement for the benefit of the complain

case where the law is declared by this Code." This means simply that what is declared by this Code to be law must be deemed to be such though the common law may have been different. For example, where the Code declares that days of grace, on commercial paper, are abolished, a lawyer must not be permitted, by a process of discussion such as one often hears reasoning it cannot be called-to argue that after all the Code does not mean what it says, and a promissory note is not due on the day stated in the writing but three days afterward. If however there were any doubt about the meaning of section 6, section 2003 would make it certain: "All statutes, laws and rules heretofore in force in this State inconsistent with the provisions of this Code, or repealed or re-enacted herein, are hereby repealed or abrogated, but such repeal or abrogation does "not revive any former law heretofore re"pealed, nor does it affect any right already exist"ing or accrued, or any proceeding already taken, "except as in this Code provided. If there is an "existing rule of law omitted from this Code and not "inconsistent therewith, it continues to exist in the same "form in which it now exists."

The learned Professor takes up no small part of his paper in endeavoring to show that various easements are omitted from the enumeration of sections 245 and 246.† But they are not inconsistent with it, and are therefore continued. He construes those sections as if the words "and no others " were there, making section 245 read thus: "The following "land-burdens, or servitudes upon land, and no "others may be attached to other land as incidents ant, and those who should succeed him in his estate as the owner of the adjacent property."

In Curtis v. Keesler, 14 Barb. 517, decided May, 1852, Wright, J., said: "If the creek called and known as the Callikoon be merely a private stream and private property not subject to the servitude of the public interest by a passage upon it, and there has been no dedication by the owners to the public for the purpose of floating rafts or logs, the plaintiffs are entitled to the relief demanded."

In Lampman v. Milks, 21 N. Y. 507, decided June, 1860, Selden, J., said: "The rule of the common law is well settled. The principle is that where the owner of two tenements sells one of them, or the owner of an entire estate sells a portion, the purchaser takes the tenement or portion sold with all the benefits and burdens which appear at the time of the sale to belong to it as between it and the property which the vendor retains. This is one of the recognized modes by which an easement or servitude is created."

In Butterworth v. Crawford, 46 N. Y. 352, decided November, 1871, Rapallo, J., said: "Unless therefore the servitude be open and visible, or at least unless there be some apparent mark or sign which would indicate

+ It is amusing to note, that while the Professor argues that a right to take petroleum' is not embraced in a right to take "minerals and other things," because it is not an "other like thing" (which is a very unsound argument), the Supreme Court of Pennsylvania, in the recent case of Stoughton's Appeal, have held that it is the very thing—a mineral. If we should adopt the Professor's ex pede Herculem, or rather ex ab uno crimine mode of deduction, we could easily dispose of his entire argument by this single example.

66 or appurtenances and are then called easements." This is an interpolation he has no right to make.

A great fault of his article is that he so often mistakes licenses and other contracts for easements. When a target company gets the consent of a farmer to establish a rifle-range on his land for the summer, the company gets a license, not an easement. Kent gives the distinction: "The modern cases distinguish between an easement and a license. "An easement is a liberty, privilege or advantage "in land without profit, existing distinct from the ownership of the soil. A claim for an easement "must be founded upon a grant by deed or writing, or upon prescription, which supposes one, for it is "a permanent interest in another's land with a right "at all times to enter and enjoy it. But a license "is an authority to do an act or a series of acts "upon another's land without possessing any estate "therein."

The Professor's objections to sections 248, 249, 250, 251, 252, 253, 254 and 255 may be answered together. He says that they do not express the existing law. Now, every one of them is explained and fortified by cases cited in the notes to the Code commissioners' report of 1865. The Professor nowhere hints that the text is not justified by the notes.

The common law is "enshrined in cases," he has elsewhere observed. If, then, these cases do not give the true law, but the other cases mentioned by him do give it, we have the best of all arguments in favor of codification, whose office it is to fix the law between conflicting authorities. In short the citations which follow the text of the Code might not inaptly be termed the authorities on one side, those of the Professor's article the authorities on the other side, the text is the decision between them.

The Professor seems to forget that it was made the duty of the Code commissioners to specify such alterations and amendments as they deemed proper. He apparently would have had them specify none, not even in nomenclature. In the Code of Criminal Procedure, for instance, he would not have allowed the intelligible words "challenge for actual bias" and "implied bias" to be substituted for the unintelligible words "challenge to the favor" and “challenge for cause."

Professor Dwight speaks of dedication to the public as something different from dedication to the State. What public does he mean? In our view there is no other than the body politic. One may dedicate a farm to a village for a public park. This, if held by the village at all, is held as a part its existence to one reasonably familiar with the subject, in an inspection of the premises, the rule has no application."

In Roberts v. Roberts, 7 Lans. 55, decided May, 1872, Mullin, P. J., said: "When the owner of land has, by any artificial arrangement, effected an advantage for one portion to the burdening of the other, upon a severance of the ownership the holders of the two portions take them, respectively, charged with the servitude and entitled to the benefit openly and visibly attached at the time of the conveyance of the portion first granted."

of the public domain to be regulated by the State directly or through a municipal corporation. A dedication of land to public uses is simply a devotion of it to those uses manifested by some declaration of the fact made by the owners, and when so made is dedicated to the State. In Meriweather v. Garrett, 102 U. S. Rep. 501, Chief Justice Waite announced the following: "Property held for public uses, such as public buildings, streets, squares, parks, promenades, wharves, landing places, fire engines, hose and hose-carriages, engine-houses, engineering instruments, and generally every thing held for governmental purposes, cannot be subjected to the payment of the debts of the city. Its public character forbids such an appropriation. Upon the repeal of the charter of the city such property passed under the immediate control of the State, the power once delegated to the city in that behalf having been withdrawn." So those dire consequences which the Professor predicts will happen from the enactment of the Code will not happen so long as we have a State government, and we hope its destruction is not to come from the enactment of a Code of laws.

PROFESSOR DWIGHT ON THE CODE.

In compliance with my proposition made to you some days ago I send you the results of my examination of a short chapter in the proposed "Civil Code now before the Legislature (Assembly bill, No. 215, commonly called Mr. Field's Code).

The sections selected for examination are from 245 to 255, both inclusive, entitled a "chapter on servitudes." These are taken really at random, as I happened to be assigned by others to the study of them and took them up for consideration without any choice of my own.

According to my proposition to you I will first quote the particular section to be considered and then make such observations on it, as may occur to me, and close the paper with some final remarks upon the chapter as a whole. I first consider section two hundred and forty-five (§ 245). "The following land burdens, or servitudes upon land, may be attached to other land as incidents or appurtenances and are then called easements:

1. The right of pasture 2. The right of fishing.

3. The right of taking game. 4. The right of way.

5. The right of taking water, wood, minerals and other things.

6. The right of transacting business upon land. 7. The right of conducting lawful sports upon land. 8. The right of receiving air, light or heat, from or over, or discharging the same upon or over land.

9. The right of receiving water from or discharging the same upon land, or of conducting water across land. 10. The right of flooding land.

11. The right of having water flow without diminution or disturbance of any kind.

12. The right of using a wall as a party wall. 13. The right of receiving more than natural support from adjacent land or things affixed thereto.

14. The right of having the whole of a division fence maintained by a coterminous owner.

15. The right of having public conveyances stopped, or of stopping the same on land.

16. The right of a seat in church. 17. The right of burial."

COMMENT.

This and later sections are to be read in connection with the first clause of section six. "In this State there is no common law in any case, where the law is declared by this Code." Section 2003 provides (last sentence): "If there is an existing rule of law omitted from this Code and not inconsistent therewith, it continues to exist in the same form in which it now exists."

The fair construction of these two clauses and particularly of section six is, that wherever the Code assumes to treat of a subject, the common-law on that topic is abrogated, for then the law is declared by the Code. This is especially applicable to an enumeration of rights as found in this section. All omitted from the enumeration must be deemed to be abolished. For the sake of convenience of reference the objections to this section are numbered.

Objection I. This section is faulty by reason of a defect in classification.

There are no such words in the existing law as "land burdens" or "servitudes." The latter word is borrowed from the Roman law without any corresponding advantage.

The classification of the section confounds two entirely distinct rights of the present law - profits a prendre and easements. By the former is meant a right to take something from the land of another, such as ores, stone, gravel, sand, petroleum, salt, etc. They are for the most part mining rights. Easements, on the other hand, exclude all notion of taking any thing from the land (except water), and are substantially a right without profit. "Easements are specifically distinguished from other incorporeal hereditaments by the absence of all right to participate in the profits of the soil, charged with them." (Gale and Whately on Easements, 7.) Under the Code both these rights are termed easements. The law applicable to both is apparently henceforth to be identical. The rules, peculiar to mining, are to be extended to easements; or the rules, peculiar to easements, must be extended to mining rights. Numbers 1, 2, 3 and 5 of the section are profits a prendre; the others are easements.

Objection II. The enumeration of easements is very imperfect. The fact of enumeration is in itself dangerous, for it tends to prevent the augmentation of "land burdens," as necessity may require. But the leading criticism is, that the section omits a very considerable number of cases now recognized by the courts and these under section six must be deemed to be abrogated. Some of these will be stated.

(a) There is no mention of the right to a petroleum well, salt or other mineral well. This cannot be included under section five. It is not a case of "taking water" and cannot be fairly embraced under the words "other things," as that by the ordinary rule of construction would mean "other things" of the same class as those enumerated. This rule (noscitur a sociis) is regularly applied to the construction of statutes, and the meaning is to be ascertained, by considering, whether the word in question and the surrounding words are of the same kind and referable to the same subject-matter. (Broom's Legal Maxims, 528.) This rule is fully stated and strictly applied to statutory construction in the very recent case of People v. N. Y. and Manhattan Beach R'y Co., 84 N. Y. 565, 569. At all events a question would arise demanding adjudication.

(b) There is no mention of the right of one person to have a sewer over the land of another. This cannot properly be said to fall under the head of "discharging water," under the ninth subdivision. Sewerage is, in many instances, anything but water. Suppose that one man has a right to construct a cesspool on the land of another, under what head of section 245 will that be placed? Such a right may exist under the present law. (Wood v. Saunders, L. R., 10 Ch. 582.)

Suppose an

(c) Where is the right of prospect? owner of land chooses to buy from his neighbor the right to insist that the latter's land shall remain free from buildings, in order that the former may have an attractive view of some river or mountain. Such a grant may be made now. (Attorney-General v. Doughty, 2 Vesey Senior, 453, 454.) The Lord Chancellor said: "There may be such a right as this (the right of prospect from Gray's Inn gardens) as upon the act of Parliament touching Lincoln's Inn. That was upon agreement of the parties."

(d) A railroad company, having a dangerous embankment, might enter into a contract with in adjoining owner that he would not claim damages if the embankment should fall. This is an easement. (Van Rensselaer v. Albany, etc., R. R., 1 Hun, 507; S. C., 3 T. & C. 620, affirmed by Court of Appeals.) It cannot be brought under the terms of any of the enumerations in this section. It was admitted to be a case of easements in the opinion of Boardman, J.

(e) There is no subdivision to include the duty of proprietors, whether adjoining or not, to mutually abstain from building on their land for the purpose of a particular or common interest or advantage, e. g., to set back their respective buildings a specified distance from a street line or to refrain altogether from building as in Hill v. Miller, 3 Paige, 254; Barrow v. Richard, 8 id. 351, and Tallmadge v. East River Bank, 26 N. Y. 105. These are really easements. (See last case, p. 110.)

(f) There is a highly important class of cases which involve encroachment by one owner upon the land of another, as in the case of projecting eaves, swinging blinds and doors, or to have the bow of a ship project when lying at a wharf. All of these are valid easements. (Richardson v. Pond, 15 Gray, 387; Suffield v. Brown, 4 De Gex, Jones & Smith, 185; Smith v. Smith, 110 Mass. 304.) None of them are suggested by this section of the Code.

(g) The right to erect and maintain telegraph poles, or to lay telegraph wires under ground, is not to be brought within the fair terms of any of the specifications of the section. This is a clear case of an easement and may exist not only along highways, but over the land of any owner who may choose to make a grant of the same. One man may thus have a right to erect structures over the land of another, such as an elevated railroad or buildings of any sort, or may have a right to plant trees or to retain such as are planted. (h) The following among other easements have been upheld by the courts, but are not within the enumeration. The act of piling logs and lumber upon the land of another (Guernsey v. Ford, 2 Allen, 576); an agreement between farmers to turn teams on each other's land in ploughing (Per MORTON, J., in Jones v. Perceval, 5 Pick. 485;) a right to hang clothes to dry on another's land or on a wall (Drewell v. Fowler, 3 B. & Ad. 735); a right to take sea-weed from a particular beach (Phillips v. Rhodes, 7 Met. 322).

(i) There is no mention of an easement to prevent the erection or continuance of nuisances on adjoining land as in Brouwer v. Jones, 23 Barb. 153.

(j) There is no mention of an easement preventing an owner of a building from raising it higher than it was at the time the agreement for the easement was made with an adjoining proprietor. This is a well known easement in the Roman law. Digest 1., 8, 2. Van Leeuwen's Roman Dutch law, 197 (London, 1820); (Badger v. Boardman, 16 Gray, 559.)

Objection III. But this is not all the fault to be found with this section. The instances enumerated are inaccurately stated. No. 11 includes in the broadest terms the right of "having water flow without diminution or disturbance of any kind." This would in terms include the flow of a natural stream between adjoining proprietors, which is not properly an easement. Taken in connection with Section 256, concern