Gambar halaman

basin, is not in the position of a riparian owner on the shore of a large lake. He has no usufructuary rights, being, as above stated, unable to prevent a neighbor from abstracting or divertivg the common supply, and he therefore cannot prevent his neighbors from doing that which will cause the water, when drawn by him to the surface, to be polluted. Two such wells as above described were so situated, ninety-nine yards apart, as to be practically in conuection, the water standing at the same level in each when pumps were not being used, and the use of the pump in one tending to lower the water level in the other. The defendant, owning one well, began to use it as a cesspit. The plaintiff, a brewer, owning the other, complained that as the fact was, the water in his well, which had formerly been pure, now proved to be polluted when drawn to the surface. There was no subterranean flow or current from one well to the other except such flow as resulted from the natural tendency of the water to replace that which was drawn up from either well. It thus appeared that if the plaintiff did not pump there would be no flow and no pollution. Held, in an action by the plaintiff for an injunction and damages, that he must fail, both on the principle above stated and also (which was in itself sufficient) because the pollution of the water in his well was owing to his owu act. To hold the contrary would be to encourage actions for pollution from any distanee within the “cone of exhaustion” of a plaintiff's well, or even further, on the ground that the polluting matter might be passed on from well to well. It would also render it impossible to limit the depth at which the court might be asked to interfere. Acton v. Blundell, 1 L. T. Rep. 207 ; 12 M. & W. 3:24, and Chasemore v. Richards, 7 H. L. C'as. 349, applied. High Ct. of Justice, Chy. Div. Feb. 13, 1884. Ballard v. Tomlinson. Opinion by Pearson, J. (50 L. T. Rep. (N. S.) 230.]


person wbo did the work. Ct. of Ap. Nov. 21, 1883. Matter of Rotherham Alum and Chemical Co. Opinions by Cotton, Lindley, and Fry, L. JJ. [50 L. T. Rep. (N. S.) 219.)

WILL-LEGACY, WHEN RESIDUARY AND NOT SPECIFIC.-A testator by his will directed his debts and funeral and testamentary expenses to be paid, and bequeathed a large number of pecuniary legacies. He then gave all the personal estate of which he should die possessed and which should not consist of money or securities for money, to R. absolutely, and gave all the residue of his estate, both real and personal, to his executors upon certain trusts. The personal estate, consisting of money and securities for money, was not sufficient to pay the pecuniary legacies. Held (affirming the judgment of the court below), that the gift to R. was residuary, and not specifio, and must be resorted to in order to satisfy the pecuniary legacies. House of Lords. July 23, 1883. Robertson v. Broad: bent. Opinions by Selborne, L. C., and Fitzgerald, L. [50 L. T. Rep. (N. S.) 243.)


LIABILITY OF ESTATE-APPROPRIATION MENT.-S. gave to the L. and C. bank a continuing guaranty for moneys from time to time due to the bank from T. on the general balance of his account, in consideration of the bank allowing T. to overdraw his acoount. S. died, and at that time T.'s account was overdrawn to the extent of 677). 178. 20. His account was then balanced and closed, and a fresh account opened, in which he was debited with interest on the overdraft. No notice of this was given by the bank to S.'s executors. T. continued to keep his account with the bank, and various sums were from time to time paid into it, and more than sufficient to discharge the 6771 178. 2d. He subsequently went into liquidation, at which time his account was overdrawu to the extent of 1381. 128. 10d. in addition to the amount of the former overdraft. The bank contended that there were two distinct accounts, and that the sums paid in subsequently to S.'s death were credited to the new account, and that the amount owing on the guaranteed account at S.'s death, when the guarantee ceased, still remained undischarged, and they brought this action to administer S.'s estate for the purpose of recovering that sum. It was assumed on both sides that the guarantee terminated on the death of the surety. Held (reversing the decision of Bacon, V. C., 49 L. T. Rep. (N. S.] 556), that the bank had a right to open the fresh account, and to appropriate any money received to it, and that their contention was therefore correct. Clayton's Case, 1 Mer. 605, distinguished; Kirby v. Duke of Marlborough, 2 Maule & Sel. 18; Williamson v. Richardsou, 3 Bing. 71; Holland v. Teed, 7 Hare, 50. Ct. of App. Jan. 24, 1884. London, etc., v. Terry. Opinions by Selborne, L. C, Coleridge, C. J., and Cotton, L. J. (50 L. T. R. (N. S.) 227.]

WATER AND WATER-COURSE-SUBTERRANEAN POLLUTION-RIGHTS OF PARTIES.-It being settled that the owner of a well has no right of action against the owner of an adjoining well, both wells being fed from below from a common supply of unappropriated water in deep water-bearing strata, for abstracting or diverting the whole of snch water, it follows that he has also no right of action if such neighbor, instead of thus affecting the quantity of the common supply, affects its quality by allowing or causing sewage or other noxious matter to be poured down his own well. The principle is that whoever gets the water first can do what he likes with it, and therefore the pollution hav. ing taken place before the water is drawn up by the party complaining, he must take it as he finds it or not at all. The owner of a well sunk into a deep waterbearing area, e. g., the chalk strata below the London


COOLEY'S BLACKSTONE. The third edition of this work is published by Callaghan & Co., of Chicago. Of a former edition we spoke in 2 Alb. Law Jour. 483. In the present edition the English notes have been discarded, and others have been substituted, aud still others have been enlarged. The notes by Judge Cooley are excellent, and valuable to the practitioner as well as the student. The prefatory "Suggestions concerning the study of the Law,"and the closing “ Review,'' by the editor, are full of wisdom. As for Blackstone's work, it will never be superseded, and it is one of the few law treatises which it is a pleasure to read.


The American Law Register for June contains a continuation of the paper on Telegraph Companies, by Benjamin F. Rex, and an article on relief of the Supreme Court of the United States, by William M. Meigs, and the following cases: Stott v. Fairlamb (Eng. Ct. App.), on note for antecedent debt not due, with note by Edmond H. Bennett; Texas, etc., R. Co. v. Capps (Tex.), on baggage containing merchandise, with note by Adelbert Hamilton; Whiting v. Ohlert (Mich.) and White v. Holland (Oreg.), on statute of frauds, lease for a year to commence in future, with note by Marshall D. Ewell; Com. v. Phænix Iron Co. (Penn.) on inspection of books of corporation by shareholder, with note by Charles L. Billings.-In State v. Kirkpatrick, 19 N. W. Rep. 662, the Iowa Supreme Court observes, that “Men do kiss their wives, but ordinarily do not kiss their servant girls." Read, “do not kiss their 'ordinary 'servant girls," and we are with the court.

The Albany Law




"Beware the policeman's locust club,
And take this present from the Hub.”

This was Charles Sumner's last good night,
ALBAY, JULY 19, 1884.

A voice still hiccupped, up the height,

“An ninerview."

Next morn, as homeward to their houses,
Our rulers reeled from their carouses,

Stubbing their toes on frosty ground,
E have only been waiting for the Democratic

They started at the accustomed sound. nomination for the presidency – we mean,

"An dinerview.” to learn who was nominated to offer all the

A loafer did policeman Y candidates a bit of legal advice - gratuitous

Upon the White House steps espy, the subject of interviewing. Messrs. Blaine, Logan,

And as he gave him a lively kick, Cleveland and Hendricks will now for several

That voice responded, faint and thick, months be the prey of interviewers, if they will once

"An ninerview." abandon themselves to their cruel mercies. The

There in the twilight cold and gray, ad rice we are about to offer is in the form of a

Senseless and whisky-full he lay, poem addressed to General Grant, who was always

While from an upper window far,

A voice came from behind a cigar, a model on this subject, not only as an interviewee,

“No interview.” but as an interviewer. He asked but one “inter

Washington, 1870. view" that we have ever heard of, and that was with General Lee, and he only obtained it after

Judge Drummond, of the United States Circuit long and persistent seeking. We never heard of Court, has resigned. He is nearly seventy-five years anybody's obtaining an interview from him. We

old, and has been a judge for more than thirty-four sent a copy of this poem to General Grant, but he

years. The amount of public service that he has did not have politeness enough to acknowledge it. performed in this period is not easily calculable. We sent another to the poet Longfellow, and he not

The amount of compensation that he has received only acknowledged it, but said he thought it“ bet- for it is very easily ascertainable, and it is pitifully ter than the original." We suppose he intended small.

We know nothing of Judge Drummond's this as a compliment, but we have always had an financial circumstances, but it is safe to say that he uneasy suspicion that he regarded our poem as in cannot have saved any thing from his salary. It is some sort an imitation or parody or travesty of

an unjust thing for a great republic to allow a pubsome poem of his. Nothing could have been fur

lic servant to wear out his best years in its service ther from our thoughts. But we will let the poem for a meagre compensation, and to compel him to speak for itself, and we venture to commend it es

starve in his old age. This country is rich enough pecially to Governor Cleveland, not only as a can

to pay its judges a decent salary — say half as didate, but as a member of our profession and a much as they could earn at the bar. Congress resident of our own city. Now here is the poem,

wastes enough money every year on a horde of unwhich we believe we have never divulged before :

necessary hangers-on and positive loafers to pay the THE INTERVIEWER.

judges what they ought to have.
The shades of night were falling fast,
As close by Willard's inn there passed,

Mr. Taine says, in his History of English Litera-
A youth, who bore, pinned on his breast,

ture, that the English are a gloomy and morose A placard, with this strange request : “ An interview."

people, with no sense of humor. Reading the

average “Punch” would go far to confirm this His hat was bad, his hair was long,

opinion. But the English lawsuits of late seem His breath of rye smelled very strong,

funnier tha n ours. While from his pocket uppermost

We get quite a batch from Appeared the last Chicago Post –

Gibson's Law Notes. Southend, in its efforts to sup"An interview !"

press Sunday trading, has prosecuted an old In Willard's window he saw the light

widow, who sold sweatmeats, eight times; a toOf snug bar-room gleam clear and bright;

bacconist, seven times; a fruiterer, seven. This is Above, the Treasury pillars shone,

like the police arresting the small boys in a riot. And still he answered with a groan

A howling dog has been pronounced a public nui"An ninerview."

Mr. Spratt, manufacturer of dog biscuits, "You got your pass ?” Ben Butler said; has enjoined a colorable imitation of his manufact“Dark scowls the usher overhead;

(Perhaps the offending dog had got hold of Grant's careful of his spoons beside;

one of the counterfeit articles.) An execution And thick that inebriate voice replied: "An ninerview!”

creditor sued a sheriff for not having seized a circus

horse named “Lightning.” The horse was usually "O stay,” cried Vinnie Ream, " and rest

ridden by Miss Maud Forrester as Mazeppa and Thy classic head upon this breast, And I will make thy bust, sweet youth.”

Lady Godiva. The modest sheriff was probably "That's what I'm 'fraid of,' tell the truth

afraid of meeting the lady in her go-diving costume, An ninerview.”

and of losing an eye. The clubs are in grief be. VOL. 30-No. 3.




cause baccarat has been pronounced an illegal game. because hackneyed. It is undoubtedly the case that A county judge refused to hear a case about a lamb, San Francisco is effectively as near us to-day as and was mandamused and made to pay costs, and Boston was to Richmond a hundred years ago. then called the plaintiff an infamous liar," But The New Yorker is vastly better acquainted to-day the best joke of all is that the Court of Appeals with the Chicagoan than he then was with the man consider that telephone wires are not a nuisance or from New Haven. We are all closer together in dangerous. Probably the judges regard the net- point of mere time, and in other matters our closework of wires that adorns our cities as an Eolian ness to each other is even greater. And this conharp on a large scale. But these wires have proved stant intercourse and knitting of interests has had very much in the way in the case of great fires. that effect which was to be expected. We have be

come better friends, more similar in manners and

customs, more willing to trust each other, and we Mr. William M. Meigs has an important article in do not now look with staring eyes at the citizen of the American Law Register for July, on the relief another State as he passes us in the street or we deal of the Supreme Court of the United States. He with him.

On the contrary, we daily see and deal proposes to relieve it by bleeding, as some reform with many of them, without even knowing it, or ers once proposed to relieve our Court of Appeals. caring, if we do. It may fairly be said that that Mr. Meigs proposes to abolish the right of appeal prejudice, which was the cause of the constitutional on the ground of citizenship. After showing that provision, is a thing of the past. If it was then, it this class of cases constitutes more than one-third of is no longer, the case that a citizen of any State the entire number, and give special and peculiar need fear that he will fail of receiving a fair trial, trouble to the Court, and after answering the con

let his suit be in what State you please. We must stitutional objection, he observes: “We think these not forget, that in the Federal as well as the State facts show that the jurisdiction depending exclu- court, he will meet with a jury of citizens of ansively on citizenship involves great and peculiar other State than his; and, if the change proposed trouble, and it would scem, therefore, that the de- is made, the only difference will be that he will cision of a hundred such cases must demand not a

have his trial presided over by a judge, who is also little more time and labor than do an average a citizen of another State than he, which may, poshundred cases of strictly Federal law. Therefore, sibly, not be the case, when he has the right to sue as the citizenship cases constitute slightly more than in the Federal courts. We should be loath to bea third of all their cases, we should, by abolishing lieve that this would put the party from a distance root and branch this source of jurisdiction, reduce in any peril of not getting an impartial trial, nor do their labor considerably more than a third. This is we think there is any evidence whatsoever that such a vast reduction, and the only question that remains would be the case. If we are right as to the quesis the advisability of the step. Is there any reason tion of prejudice, there is certainly no valid reason to-day for the court's being troubled with this mass why the jurisdiction should not be abolished. If of cases which do not belong to the system of juris- it is said that their jurisdiction is necessary in such prudence which it is their function to erect? We cases on account of questions of commercial law, cannot see that there is. The reason for the consti- the answer is plain that by far the greater number tutional grant of jurisdiction in such cases is well of such cases — and often growing out of a transknown and was doubtless a hundred years ago a action identically the same as that which it is arvery valid one, but it would seem to have no vital gued the Federal courts should decide — must inforce any longer. At the time the provision was evitably be subject exclusively to the courts of the adopted, we were emerging from a condition in State; and that system sadly lacks uniformity, which each State had been actively engaged in which holds a defendant not liable on one contract erecting its own walls of restrictions, with the view and yet liable on another, when the sole difference of helping itself and injuring its neighbors, and between the first and the second is that the parties there is no doubt that there were strong feelings of to the second are entitled to sue in the Federal jealousy and distrust among the different States of courts. And in the vast majority of such cases, the the confederation. This condition of affairs was Federal courts are, by universal admission, called the very reason for the making and adoption of the upon, merely owing to adventitious circumstances, Constitution, and it is highly natural, therefore, to administer the law of another forum. It is certhat it contained the provision. There would likely, tain that they cannot exercise this function any betotherwise, have been frequent bickerings and dis- ter than the courts of the State, whose very breath contents about verdicts and decisions going against of life is the law in question. As to the comparacitizens suing in States where they did not live, tively few cases of this nature, in which they deand one of the very purposes of the Constitution cline to follow the law of the State as expounded by would have been frustrated for a time. But the her tribunals, it is submitted that their soundness, course of nearly one hundred years has changed all as also their expediency, are matters of grave doubt. this. It is hackneyed now to speak of the nearness This line of decision has given rise to another great of all parts of the country to each other and of the element of uncertainty as to party's rights closeness with which we are bound together in all citizens as non-citizens of the State - and has unthe affairs of daily life, but it is only the more true, questionably not attained any such degree of def

as well



initeness as enables counsel to advise on the subject. ages. The court said: “The rule is well settled that The decisions are undoubtedly very conflicting, the no action can be maintained for the diversion of question is one of the greatest difficulty and ob- percolating water, where the act of diversion is done scurity in itself, and the court has not succeeded by the owner of the premises where done, and is in elaborating any system out of it, which offers a done in good faith. But the injury complained of reasonable prospect of a scientific basis. We think in this case did not arise from the diversion of pertherefore that even those who support this class of colating water from where it was wanted, as from decisions, must feel that their importance is not a well or spring, but from so collecting water that it sufficiently great to render it worth while to yield reached, by percolation, to where it was not wanted, up the great prospect offered of relieving the court to-wit, to a cellar and to the foundation walls of a without the creation of new courts and complicated house. Our attention has been called to no case machinery.” Mr. Meigs would also cut off appeals where the precise question presented has been defrom the District of Columbia, constituting five per

cided. On principle it would seem that the plaintiff cent, and Territorial cases involving more than $1,000, ought not to recover for such damage if it resulted constituting four per cent of the entire number. from the lawful and reasonable use by the defendant

of its own lot. How far the plaintiff's house was

from the line between her lot and the defendant's NOTES OF CASES.

does not appear; but the evidence shows that it was

It shows that it was only four feet between IN the note of case on People v. Mann, 29 Alb. Law the house and the excavation. If the distance be

Journ. 503, the sentence, “It has been decided, tween the house and the line was not such as to however, that the prohibition as to age did not apply afford immunity against water percolating from the to county judges,” should read: “It has been decided, defendant's lot, it was the fault of the person who however, that the prohibition as to age does apply to built the house, unless the water was collected and county judges."

suffered to stand on the defendant's lot through

some unlawful or unreasonable use or sufferance. It was long since decided that a “running switch" Such use or sufferance the owner of the injured in a thickly settled locality is negligent. The other premises was not, we think, bound to anticipate, and end of this question is now decided in Howard v. St. consequently was not bound to provide against. It Paul, etc., Ry. Co., Minnesota Supreme Court, June is true that there was no necessary connection be12, 1884, 20 N. W. Rep. 93, where it is held that tween the condition of the water which made it a whether “kicking” is negligent is a question for the nuisance, if it was such, and the injury sustained jury. The court said: “When the manner of run- from the undermining of the house; yet it cannot ning the cars across the street by 'kicking,' and the be denied that the length of time during which the situation of the tracks, had been explained to the jury, water was allowed to stand was, among other things, and the rate of speed at which they were run across, the cause of both. It is to be observed also that shown, together with the character of the night as to during the continuance of the nuisance the defenddarkness, and of the street as to the extent to which it ant was without excuse in suffering the water to was traveled, it was peculiarly the province of the remain. The defendant was under constant oblijury to determine whether the rate of speed was rea- gation to remove it, and the plaintiff had reason to sonable, and whether ‘kicking' the cars — – that is, suppose that it would remove it. During that time giving them an impetus sufficient to carry them to it was not for the defendant to say that the injury the desired point — is a more dangerous mode of being sustained by the plaintiff was not actionable, running them across a street than running them because merely incidental to the exercise by the deacross with the engine, and whether it is any more fendant of its own rights. While we think that the convenient. No one can be so ignorant of the oper- instruction asked went too far, and was properly reating of railroads as not to know that the engine fused, the court should, we think, have submitted can run across at a snail's pace, while ‘kicking' must the question as to whether the defendant became require considerable speed to be given at the start guilty of a nuisance, as alleged in the petition, and to carry the cars to the point of destination. It was should have instructed the injury that in case they proper to submit the questions to the jury, though so found they might allow the plaintiff for such inthere was no expert testimony, for the matters came jury as her premises sustained from the percolation of within the common sense and common observation water from the excavation after the same became of the jury.”

We suppose that whether" kicking " and while it remained a nuisance.” is justifiable in a political party sense is also a question for the jury.

In Ballard v. Tomlinson, Ch. Div., Feb., 1884, 50

L. T. R. 230, the plaintiff, a brewer, drew his waterIn Quinn v. Chicago, B. and Q. R. R. Co., Supreme supply from a well on the premises. On the adjoinCourt of Iowa, April

, 1884, 18 Rep. 47, it is held that ing premises there was a well. By drawing water where an owner, by his act or permission allows from one well the level of the other was lowered, water to collect on his land and it percolates so as to but the connection between the wells was entirely injure the cellar and foundation walls of his neigh- natural. The defendant used his well as a cesspit bor's house, he is liable for such injury in dam- whereby the water in the plaintiff's well became pol

[ocr errors]

luted. He sued for an injunction and damages. that the water is dirty when you yourself have come Held, no cause of action. The court, Pearson J., to seek it, and have taken it away. I did not send said: “I do not hesitate to say that the case is an it to you. I left it where it was; you have ex mero important one. Mr. Cookson has quoted to me the motu, chosen yourself to come and draw off that case of Womersley v. hurch, which was a case be- water.' Now is not that true? Must it not be the fore Lord Romilly, and is reported only in the Law case, all this water lying in the chalk stratum, that Times. Mr. Cookson says that that case is an author- any person who draws it must draw it from his ity to show that no man is allowed on his own land neighbors? Of course it is not water confined in an to create a nuisance of such a nature as to foul his inexhaustible reservoir immediately at the bottom of neighbor's water, or to allow sewage water to per- the plaintiff's premises; but it is water lying in a colate from his land into his neighbor's well. That very large stratum underneath, and if you take away case is very shortly reported in the Law Times. The from it, the place from which you take it away must conclusion at which I arrive upon reading that case be immediately supplied by water coming more or is this, that what the defendant in that case did was less from a distance, and the longer you pump the so to deal with his own land that the foul water greater the distance from which it will come. Is it percolated through his land, and through the sides not, therefore, one of the incidents of the use of this of his neighbor's well, injuring the water in his water, that if you choose to use it, you take it at neighbor's well. I agree that he cannot be allowed once subject to every single thing that has occurred to do that. Where however you are dealing with to it by the use of it by other proprietors at a greater water which is invisible, and of which for all pur- distance before it can reach your premises. I must poses in this court I must assume that nobody knows say that I think that argument is sound. If that is what the course has been or will be, what to my mind so, then there is also a good defense on that ground the plaintiff has to show is that any injury is done to the plaintiff's action." to any right of his. Now if I am correct in coming to this conclusion that the person who gets first con- In Proctor v. Putnam Machine Co., Supreme Juditrol of that water is at liberty to use it for any pur

cial Court of Massachusetts, May 8, 1884, 18 Rep. poses that he pleases, then I say, to begin with, no 51, plaintiff, acting under an honest mistake of injury is done to the plaintiff. He takes his chance, fact as to the true boundary line between his estate when the water comes to him, of what the water and that of defendant, gave defendant oral permismay be. He is entitled to that subterranean water sion to build a wall on such supposed true line, and as it reaches him, but he cannot complain that his the wall was so built. Held, that plaintiff was not neighbors have (if they have done so) exercised their estopped for maintaining a writ of entry for the rerights before it reaches him, and have done so in covery of his land on which the wall was built. such a manner as either to deprive him of the water The court said: “A mistake of fact honestly made altogether or to alter its quality. I come, therefore, by the plaintiff as to the location of the boundary to this conclusion, that so far as that point of view line of his lot by which he was induced to assent is concerned the plaintiff has no right of action to the placing of a wall thereon by the defendagainst the defendant. As to the other part of the ant could not operate either to convey the land case the solicitor-general put it exceedingly clearly or estop the plaintiff from asserting his title thereto. this morning. He said this: It is in evidence that The instruction that if the plaintiff acted with any at this particular part of Brentford you are very fraudulent intent to deceive or mislead, he would be nearly at the bottom level of the chalk stratum, and estopped from maintaining the action sufficiently that there is nothing whatever to show, that if the guarded the rights of the defendant. While it has two wells were left in perfect quiet, any thing com- been held that in a matter of boundary, which is a ing from the defendant's well would get into the question of the true line of division between adjoinplaintiff's well. The solicitor-general argues that | ing estates, uncertainty may be removed by an arbi both wells being in a state of equilibrium, what- tration and an award, which not directly operating ever the defendant poured down his well would to convey the land, will conclude the parties from remain there, and whatever water there was un- disputing the boundary as thus determined, no such der the plaintiff's property would remain pure, case is here presented. Goodridge v. Dustin, 5 Met. and that nothing would escape from the defend- 363. Where a boundary line has been erroneously ant's well to the plaintifi's well. But,' says the run between adjoining estates without fraud and solicitor-general, 'if you choose to alter that state under a mutual mistake, one party is not estopped of things; if you choose for your own purposes, from claiming his own land up to the true line beand for the use of the water, to pump your well, and cause the other has with his knowledge erected buildto create a vacuum, the result is this, that as the ings or incurred expense by reason of he mistake. cone of exhaustion extends you arrive at last at the Tolman v. Sparhawk, 5 Met. 469; Liverpool Wharf defendant's well, and you naturally draw away from v. Prescott, 7 Allen, 494. An occupation according him that which is lying under his well. The defend- to such erroneously drawn line, if adverse and under ant does not complain of that, but he says, if you a claim of right, would without doubt effect a change choose to come upon my premises and draw water of title if sufficiently long continued, but within the which is there from me, you must be content to take period of limitation the party who has thus permitted the water as you find it, and you cannot complain another to occupy beyond the true boundary may


[ocr errors]
[ocr errors]
« SebelumnyaLanjutkan »