« AnteriorContinuar »
is a matter not of law but of natural history. No of the owner of the chattel to affix it to the soil. scientific evidence was called to show what infer- There was not only no evidence of any such intenence might be drawn from the presence of the sixtion, but there was clear evidence of an intention intruders; and an appeal to common knowledge on the part of the owner of the boat to abandon his on this unsavory subject had perhaps less weight property in it. There was no evidence of an inwith a judge than it would have had with a jury. tention on his part to abandon it to the owner of It is not true therefore, as has been supposed, that the soil. There was a general abandonment of it his lordship intimated it to be the duty of the ten- which inures to the benefit of the first finder, who ant to obtain practical evidence of the nuisance by were the defendants, the lessees. No doubt, if the essaying to sleep on the premises a ruling which plaintiff had not demised this land, no one but he might involve a most inequitable application of the could dig out the boat without committing a tresmaxim, 'vigilantibus non dormientibus.? " The Laro pass, but in digging it out the defendants were Journal says:
“The case turned on the question within their right, and were as much entitled to the whether or not the house was rendered unfit for boat as the street boy to the end of a cigar thrown habitation by the presence of the bugs. It was
away in the street. The boat was not in the nature stated that when the defendant's daughter went of treasure trove, because the depositor of treasure, into the house a bug dropped from the window- so far from abandoning it, hides it away in order to blind and bit her arm, whereupon she fled. The find it again. Treasure trove belongs to the crown, plaintiff asserted that he never saw more than one because not being abandoned it does not vest in the bug in the house. That one he found in a tube of finder. If the decision be right, and the possession the bell-pull. He picked it out with a pin, and of the plaintiff gives him the property as against stopped up the tube with sealing-wax. Afterward, the lessee, the possession of the plaintiff's vendor it was alleged, the upholsterer found half a dozen would give him the property as against the plaintbugs in the same tube, and the defendant's servants iff, the possession of his vendor's similarly, and so declared they drowned as many more in a basin, al- on so far as the title can be traced. This endless though it was noted, on the other hand, as a signifi- prospect of litigation need not however be faced, cant fact that only one specimen was preserved for nor need we look for the personal representative of the plaintiff's inspection. The bugs appeared to have the primæval Briton who left the boat where it is. been confined chiefly to the upper regions of the This interesting savage evidently abandoned his dwelling. The learned judge, who heard the case property, to be found at last by a nineteenth-cenwithout a jury, held that the bugs had not takentury gas company, who are entitled to rely on the possession of the house so completely as to oust the principle of law in force through the ages that tenant. The defendant however had no doubt in- findings are keepings.'" curred
expense and inconvenience, and he thought the justice of the case would be met by giving the plaintiff 1401. The learned judge gave judgment
The State Library will be closed to the public for the plaintiff for that amount." The abatement from the 5th to the 20th of August, inclusive, for was 171. 10s. -- somewhere from 11. 108. to 3l. per
the purpose of cleaning, bug.
A still more interesting case, and in fact the most
NOTES OF CASES. interesting question of property we have ever seen, except the aërolite and the statue cases, is that of N Baltimore & 0. R. Co. v. Rose, Md. Ct. App., the ownership of a pre-historic fossilized boat, dug up by a tenant on the leased premises. Mr. Justice pany which permits passenger steamers to lie at its Chitty holds that it belongs to the landlord. On pier, and persons going to and from such steamer this the Laro Journal remarks: “In the case of The to pass across its pier and adjacent grounds, thereby Brigg Boat Mr. Justice Chitty missed what appears becomes bound to keep and maintain such pier and the essential point of the case. The boat, although grounds in passable and safe condition, and the fossilized is, it is admitted on all hands, a chattel. public may use any available route of access to and If not, the wigs and pairs of spectacles in the well from said pier not expressly prohibited. The at Buxton are realty. If it is a chattel, how does court said: “ Undoubtedly, under the arrangement the owner of the land obtain the property in it? existing between the two companies, persons emThe learned judge lays down, on the authority of a ployed on board the steamer had a right of transit criminal case, that the owner of the land had such
over the property of the defendant. If there was possession of the boat as gave him a qualified prop- no particular road or pathway designated and set erty sufficient to support an indictment in his name. apart for their use they were constrained to seek That may be so, but a qualified property good such route as they found open and convenient, and against a wrong-doer is not the same thing as the the only obligation resting on them was the observabsolute property which the plaintiff claimed. So ance of due care and caution in the avoidance of far as we know, the only process by which the danger. The defendant however had a right, if it property in a chattel vests in the owner of land on saw fit, to inhibit the use of the trestle, and restrict which it lies is in virtue of an intention on the part | the passengers to the use of the ground below.
* The obligation of the defendant to keep for sale in an unidentified condition, but the mere any property over which other persons have a right possession of it, and placing it in a store with other to pass in a safe condition cannot be questioned. articles held for sale, is sufficient to warrant a jury As was said by the Supreme Court of Massachu- in finding that the same was offered for sale. The setts, in Sueeny v. Old Colony & N. R. Co., 92 Mass. court said: “The defense is that to constitute the 373: “The general rule or principle applicable to offense charged under the statute there must be this class of cases is that an owner or occupant is some overt act of offering for sale; that the intent bound to keep his premises in a safe and suitable may exist in the mind without any act done in purcondition for those who come upon and pass over suance of such intent; and that therefore the fact them, using due care, if he has held out any invi- of having the oleomargarine marked and exposed tation, allurement or inducement, either express or with other goods or merchandise in the salesroom, implied, by which they have been led to enter unaccompanied by any overt act, or individual offer thereon.' If the owner, either directly or by im- to sell it, is not an offense within the meaning of plication, induces persons to enter upon and pass the statute. But is not the exposing of such subover his premises, he thereby assumes an obligation stance unmarked, with other pure butter or grocerthat they are in a safe condition, suitable for such ies, upon the shelves or counter of a salesroom, an use, and for a breach of this obligation he is liable act of circumstance from which an intent to offer it in damages.' This is the recognized principle in for sale may be inferred by the jury, in the absence this country and in England. In Corby v. Hill, 4 of any rebutting evidence? This is all the instrucC. B. 556 (N. S.), Cockburn, C. J., said: "The tion imports. It simply says, in effect, that it proprietors of the soil held out allurements whereby should be presumed that when a groceryman places the plaintiff was induced to come upon the place in the prohibited article upon his shelves, and disquestion. They held out this road to all persons plays the same with other goods in unmarked packhaving occasion to proceed to the asylum as a ages, intending to sell them in that condition, he is means of access thereto. Could they have justified offering them for sale; but that such presumption the placing an obstruction across the way whereby is only prima facie, leaving the defendant free, as an injury was occasioned to one using the way by a matter of fact, to prove that they were not offered their invitation? Clearly they could not. Having, for sale; that is, that they were not for sale in that so to speak, dedicated the way to such of the gen-condition. Now we all know that when a man eneral public as might have occasion to use it as a gages in the business of merchandising, places his safe and convenient mode of access to the establish- goods upon shelves and counters, and in show winment, without any reservation, it was not compe-dows, and throws open the door of his store to the tent to them to place thereon any obstruction calcu- public, it is ordinarily and usually understood lated to render the road unsafe, and likely to cause that the goods thus exposed are offered for sale, injury to those persons to whom they had held it and considered an invitation by the merchant, to out as a way along which they might safely go.' all who are willing to enter, to purchasc. Indeed, There is a similar adjudication in Chapman v. Roth- it may be said to be a matter of common knowledge well, El., Bl. & El. 168, where the same question that it is the general practice of merchants to thus was presented. If therefore any one is injured in expose or offer their goods for sale, often displayconsequence of the negligence of the proprietor in ing them quite attractively to more certainly catch this respect an action for damages can be main the eye of the passer-by, and induce him to enter tained, even if the unsafe condition of the premises and purchase them. And when goods are thus exwas caused by the act of other parties, and the posed it would hardly occur to any one to inquire owner allows them to remain in that condition. As of the merchant whether he was offering such goods was said by Lord Ellenborough in Coupland v. Hard- for sale. On the contrary, he would act on the asingham, 3 Camp. 398: The defendant is liable for sumption, justified by common experience, that the consequences ' in the same manner as if he him- they were offered for sale, and inquire the price. self had originated the nuisance.'
Laws are usually enacted with some reference to the common understanding and customs of men in re
spect to subject-matters which concern their busiThe holding in Pearce v. Foster (33 ALB. LAW ness transactions; so that when goods or merchanJour. 208) that a servant may be discharged for dize are exhibited from the show windows or speculating in stocks has been affirmed by the shelves of a store, we have a right to presume, sancCourt of Appeal. 54 L. T. Rep. (N. S.) 664.
tioned by common usage and understanding, that he who puts them there offers them for sale, and if
the fact is otherwise, let him show it. Goods In State v. Dunbar, Oregon Supreme Court, June therefore may be offered for sale without auy overt 24, 1886, it was beld that in order to convict a per- act of solicitation.
It is true that a merson of the offense of the selling or offering for sale chant might expose with other goods for sale some of oleomargarine, unless the same shall be plainly article that he did not intend to sell, but the inmarked so as to establish its true characteristic, it struction does not preclude him from showing the is not necessary to prove any overt act of offering it | fact.” Thayer, J., dissenting.
There are now in the Urited States forty-eight law schools, situated in twenty-six different States. From 1850 to 1881 there were thirty-one of these
Ithe establishment operila to school in Englana institutions to established, meraverage more ofte haw
the method of teaching in one of the foremost of school a year for thirty-one years. the law schools in the United States has been bod- In his scholarly discussion of legal education ily taken as the model. It was to be expected that Professor Finch has fallen, not strangely however, our English cousins would seek for an example in into an error. At page ten of the publication, the ancient schools of law of continental Europe. whose title is hereinbefore given, he states: “It
During a very long period England has been may thus be seen that the methed of legal teaching without law schools. As early as the twelfth cen- as it becomes practical, does in fact become more tury, Vacarius, an Italian professor, gave instruc-educational. How practical the system pursued in tion in the civil law at Oxford. To cope with this the American universities is may be gathered from teaching the Inns of Court in London began courses the fact that in many of the American States the of lectures on the common law, and in the fifteenth student who has obtained a degree in law at a unicentury attained to their most flourishing period.versity is admitted to the profession as of course." Shortly afterward they fell into places of mere This is justly true of the Harvard Law School, gaiety, and the instruction imparted became only which Professor Finch lately visited, and visiting nominal. In quite recent years a marked revival of there as he did, one would naturally receive the interest has appeared, and systematic courses of le impression here expressed. But the fact is that the gal study have been established. This has been admission of graduate as of course is not an evidone by the barristers at the Inns of Court, and by dence of the superior legal education possessed, but the solicitors through the agency of the Incorpo- rather, alas! an illustration of the reckless laxity of rated Law Society. But from the fifteenth century the statutes of “many of the States"
respecting to the present generation a legal education was ob- qualifications for admission to the bar. In too many tainable only in the law offices.
of these schools a course of lectures for about eight On the continent, however, a totally different months — called a year is followed by a diploma, state of affairs existed. There admission to the which admits its holder, upon motion merely, to station of a lawyer has been always under govern-practice in the highest courts. They are designed mental regulation, not controlled, as in England, by and carried on mainly to gain tuition fees for their the lawyers' guilds; and a systematic course of “professors," and their whole character is such as study of not less than three years in the law depart- to warrant their designation as shyster factories. ment of a university, besides other limitations, Professor Finch's discussion shows high appreciahave been required by the State as a condition pre- tion of the question considered. It declares the cedent to the privilege of practicing law. The towering importance of the law and its ministers famous law school of Bologna survived through in their relations to the State and the individual, the middle ages, having previous to the eleventh and asserts the power for good of an enlightened century been successively at Rome and Ravenna. school of law. There is also given a clear delineaIt was substantially upon the plan of this school at tion of the educational advantages of the study of Bologna that the law schools, revived throughout the law, in disciplining and informing the mind, Europe in the fourteenth century, were established. and mention is made of the importance of ethics,
In the United States, naturally following English history and political science as supplemental studprecedent, nearly all our lawyers have been trained ies. The profoundest arguments in favor of the in law offices.
Law schools however were estab-teaching of law as a science at a university, as lished here at a comparatively early period. At compared with any method or facilities to be found Philadelphia, in 1790, the first course of law lec- elsewhere, are such as can be made in behalf of tures in the United States was delivered by James those whose talents or aspirations lead them in the Wilson, a signer of the Declaration of Independ- direction of politics, to the sphere of the diplomat, ence, a conspicuous member of the Constitutional the legislator, or the jurist. This is a branch of Convention, and a justice of the Supreme Court. the subject covered by the title of Professor Finch's In 1798 Timothy Reeves and Judge Gould estab- lecture, though he does not discuss it. He probalished a law school at Litchfield, which was justly bly preferred to restrict his observations to such famous in its time. It was thence removed to considerations as were more pertinent to the occaCambridge, and became the law school of Harvard sion, his lecture being the first, the inaugural one, University, where, in the past year, it has achieved of a course of instruction upon the law of contract, the distinguished honor of furnishing to the law to a class at Queen's College. The lecture is also school now opening at Queen's College, Cambridge, made to serve, very fittingly, as the introduction of England, the model for legal education there. the text-book of which Professor · Finch has be*"Legal Education, its Aim and Method. An inaugural
come the author — a work on the plan of Langdell's lecture delivered at Queen's College, Cambridge, by Gerard Cases, and that of the other text-books used in the B. Finch, M. A., of Lincoln's Inn, Esq., barrister at law, law
Harvard Law School - entitled “A Selection of lecturer, and late Fellow of Queen's College. October, 1885. Cambridge: Macmillan & Co."
Cases on the English Law of Contract," and bear
ing the imprint of C. J. Clay & Son, Cambridge which seemed to hold out any promise of success; University Press Warehouse, London, 1886.
and that was to make a series of cases, carefully seWith the facts demonstrated by the Harvard lected from the books of reports, the subject alike system, he presents a convincing argument in favor of study and instruction. But here I was met by of the practical as well as the scientific method of what seemed at first to be an insuperable, practical teaching law in a university, and in fitting students difficulty, namely, the want of books; for though it while there for their entry upon its practice. In might be practicable, in cases of private pupils havcontroverting the view of Mr. Austen, that London ing access to a complete library, to refer them dihad superior advantages for a law faculty, Professor rectly to the books of reports, such a course was Finch well says
" that the forum is as quite out of the question with a large class, all of little necessary for the study of the law as is a whom would want the same books at the same workshop for the study of natural philosophy. * * * time. It was with a view to removing these obstaAn ancient seat of learning with its many sided in- cles that I was first led to inquire into the feasibilfluences and its high standard of excellence would
ity of preparing and publishing such a selection of seem to be the fittest place for the advancement of
cases as would be adapted to my purposes as a any science, and for its teaching with the greatest
teacher." Law considered as a science consists attendant advantages.” In this he is undoubtedly
of certain principles or doctrines. To have such a in accord with the best authorities. In New York, as a matter of fact, the law students of Columbia
mastery of these as to be able to apply them with College do not avail themselves of the presence of
constant facility and certainty to the ever-tangled courts as places for the study of the law or its prac
skein of human affairs, is what constitutes a true tice. They are kept busy with the tasks in the lawyer; and hence to acquire that mastery should law school, and know, or soon learn, that the time be the business of every earnest student of law. has not yet come for them to attend courts as spec- Each of these doctrines has arrived at its present tators with advantage to their legal education. state by slow degrees; in other words, it is a
The Harvard method, adopted at Queen's Col- growth, extending in many cases through centuries. lege, is that of teaching law by the study of cases.
This growth is to be traced through a series of Professor Finch stated: “The practice which I am
cases; and much the shortest and best, if not the bringing before you is not new, it has prevailed at
only way of mastering the doctrine effectually, is Harvard University for fourteen years, having been
by studying the cases in which it is embodied.” introduced by Mr. Langdell on his appointment to
In his lecture Professor Finch states: “During the chief professorship of law in that university." At Harvard the method was not at first received
my stay in Boston last spring men engaged in legal with great favor, but its merits as an efficient edu- practice spoke to me of the great value of the law cational system were soon recognized, and were teaching at Harvard University. Mr. Sidney Bartadopted by other professors, so that at the present lett, the father of the Massachusetts bar, told me time selections of cases on nine branches of the law that three years' work at Harvard was equal to are used as text-books at this law school. Professor seven years in an office. Mr. Justice Oliver WenLangdell's method can hardly find a more interest
dell Holmes, and Doctor Eliot, president of the ing exposition than in the following words from
university, spoke to the same effect. Doctor Eliot himself in 1871: “I entered upon the duties of my
related with pardonable pride that at a recent din. present position, a year and a half ago, with a settled conviction that law could only be taught or
ner of old Harvard men a prominent young advo
cate declared that when he was a student he had learned effectively by means of cases in some form.
often heard it said that the course at Harvard was I had entertained such an opinion ever since I knew any thing of the nature of law or legal study. I equal to ten years' actual work; that he was then am called upon to consider directly the subject of
incredulous, but after being in practice for ten years teaching, not theoretically, but practically, in con- he came to know it as a fact." nection with a large school, with its more or less All who take an interest in the subject must find complicated organization, its daily routine, and in these evidences of the merits of the system of daily duties. To accomplish this successfully it teaching at Harvard an important subject for inveswas necessary, first, that the efforts of the pupils
tigation. If the system is known to the faculties should hand in hand with mine, that is, that
of the law schools of the country it has not been they should study with direct reference to my instruction; secondly, that the study required of
adopted by them, as it appears from their catathem should be of the kind from which they might
logues that Blackstone, Kent, Parsons, etc., are reap the greatest and most lasting benefits; thirdly,
still the text-books used. A system productive of the instruction should be of such a character that such superior results is one that calls for the most the pupils might at least derive a greater advant
serious consideration of those engaged in the teachage from attending it than from devoting the same ing and the learning of the law. to private study. How could this threefold object
JOHN TYLER. be accomplished? Only one mode occurred to me ITHACA, July 21, 1886.
WATERS AND WATER-COURSES-EMBANKMENT claims damages in the sum of $5,000. As a second
cause of action he makes, in substance, the same aver-
ments, and asks for an abatement of the nuisance to
his lands. SUPREME COURT OF OHIO, JUNE 1, 1886.
MINSHALL, J. The question in this case is whether
the owner of land upon a natural stream of water, so CRAWFORD V. RAMBO.*
situate that in times of floods it is overflowed by the 'Where a riparian owner constructs an embankment for the superabundant water, may, to benefit his own lands, protection of his lands, and occasions substantial injury
construct an embankment thereon, the natural and to the lands of his neighbor, which might have been rea
probable consequences of which must be, and is, at sonably anticipated by a man of ordinary prudence and
times of ordinary floods, to cause the swollen current intelligence as the probable result of its action upon the to overflow, erode, and destroy the lands of another currents of the stream at the time it was constructed, he
proprietor thereon. We have so stated the question is liable in damages for the injury so occasioned ; and so
in this case because, as we think, the question as to where it appears from its subsequent action upon the
surface water is not involved in it. current of a flood that might be reasonably expected to re
The premises of the parties are situate upon a bend occur in the course of the seasons, that it does and will of the Muskingum river-those of the plaintiff being continue, at the time of such floods, to occasion substan- upon the exterior, and those of the defendants upon tial injury to his neighbor.
the interior, of the bend; the included lands being diRROR to District Court, Muskingum county.
vided between Rambo, on the one side, and the Lit-
south. It is upon this line, beginning at a point about R. M. Voorhees and E. W. James, for plaintiff in
180 feet south of low-water mark on the interior bend
of the river, and extending some 2,900 feet thereon, A. W. Train and F. H. Southard, for defendants in that the embankment has been constructed by the de
fendants. It serves to protect the lands included by The original action was brought by the plaintiff to
the bend from the violence of the current that flows recover of the defendants damages to his lands,
across the same when the river is swollen by a flood, caused by the construction of an embankment by
and was constructed by the united labor and expense them on their own lands to prevent the same from be
of the defendants for their mutual benefit. It necesing overflowed and injured by the water of the Mus
sarily acts as a partial dam to the current when the kingum river, on which the lands of the parties are
river is swollen by floods, and as averred, causes the situated. The Common Pleas sustained a demurrer to
flood water to flow over and upon the lands of the the petition on the ground that it did not state suffi
plaintiff with destructive violence, doing him great cient facts; the judgment was, on error, affirmed by
damage at such times. the District Court; and this proceeding is prosecuted
It is difficult to see upon what principle the flood
waters of a river can be likened to surface water. here to obtain a reversal of both judgments. The petition sets forth, at great length, the relative situation
When it is said that a river is out of its banks, no of the lands of the parties on the river; the mode and
more is implied than that its volume then exceeds manner in which the embankment has been con
what it ordinarily is. Whether high or low, the entire structed; that the effect of it, since its construction,
volume at any one time constitutes the water of the has been, and is, to divert the flow of the water from
river at such time, and the land over which its current the lands of the defendants, over which it has always
flows must be regarded as its channel; so that when heretofore flowed in times of floods, to and upon the
swollen by rains and melting snows, it extends and lands of the plaintiff. The effect of the overflow upon
flows over the bottoms along its course, that is its flood the lands of the plaintiff, he avers, “was to, and the
channel, and when by droughts it is reduced to its same did, increase the volume of water on plaintiff's minimum, that is its low-water channel. Surface said lands, and inundated and overflowed a large por
water is that which is diffused over the surface of the tion of said plaintiff's lands; and drowned and injured ground, derived from falling rains and melting snows, crops and grass thereon, and created rapid and whirl
and continues to be such until it reaches some welling currents thereon, none of which would have hap
defined channel in which it is accustomed to and does pened but for the erection of said embankment by the
flow with other waters, whether derived from the surdefendants as aforesaid; and said last-mentioned water
face or springs, and it then becomes the running water did wash a considerable portion of the soil off plain
of a stream, and ceases to be surface water. So that tiff's said lands, thereby rendering them less valuable
as we think it is not material to inquire in this case for cultivation, and washed gullies and holes in said
what the law is as to surface water, for the facts stated lands, and floated, lodged and deposited trees, logs, question is as already stated.
in the petition do not present such a case, and the stumps, brush, trash and gravel thereon, and prevented a considerable portion of the silt or sediment
The maxim, sic utere tuo ut alienum non lædas, would which would otherwise have been deposited on said
seem to apply with peculiar propriety to a case like lands as aforesaid, and the formation and accumula
this. Each proprietor on a river has a right to the ention of accretions along the bank of said river on the
joyment of its water as it flows by his premises, and south side of plaintiff's said land, as aforesaid, from
the right also to modify and limit its current upon being so deposited, formed or accumulated, and under
his own property as will best subserve his own convemined and washed away a considerable portion of the
nience and notions of propriety, and he may therefore banks of said river on the south side of said plaintiff's
construct and maintain embankments thereon for the lands, as aforesaid, and washed out trees that were
purpose of protecting any part of his lands from being growing on the bank of said river on the plaintiff's
injured by the overflow of the river in times of high said lands, which said bank and growing trees formed
water; but it is equally clear that this right to deal a natural protection to the bank of said river on said
with the river, and to control its currents, must be explaintiff's lands against the wash of the water of said
ercised with a just regard to the rights of others. He river in its natural course and flow." For which he
cannot, by the construction of embankments or other
wise, divert the waters of the river from his own lands 7 N. E. Rep'r, 429.
and cause them to flow over and upon those of his