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is a matter not of law but of natural history. No scientific evidence was called to show what inference might be drawn from the presence of the six intruders; and an appeal to 'common knowledge on this unsavory subject had perhaps less weight with a judge than it would have had with a jury. It is not true therefore, as has been supposed, that his lordship intimated it to be the duty of the tenant to obtain practical evidence of the nuisance by essaying to sleep on the premises a ruling which might involve a most inequitable application of the maxim, vigilantibus non dormientibus.' The Law Journal says: "The case turned on the question whether or not the house was rendered unfit for habitation by the presence of the bugs. It was stated that when the defendant's daughter went into the house a bug dropped from the windowblind and bit her arm, whereupon she fled. The plaintiff asserted that he never saw more than one bug in the house. That one he found in a tube of the bell-pull. He picked it out with a pin, and stopped up the tube with sealing-wax. Afterward, it was alleged, the upholsterer found half a dozen bugs in the same tube, and the defendant's servants declared they drowned as many more in a basin, although it was noted, on the other hand, as a significant fact that only one specimen was preserved for the plaintiff's inspection. The bugs appeared to have been confined chiefly to the upper regions of the dwelling. The learned judge, who heard the case without a jury, held that the bugs had not taken possession of the house so completely as to oust the tenant. The defendant however had no doubt incurred expense and inconvenience, and he thought the justice of the case would be met by giving the plaintiff 1407. The learned judge gave judgment for the plaintiff for that amount." The abatement was 177, 108. -- somewhere from 17. 108. to 3l. per bug.

A still more interesting case, and in fact the most interesting question of property we have ever seen, aerolite and the statue cases, is that of

a

On

except ership of a pre-historic fossilized boat, dug up by a tenant on the leased premises. Mr. Justice Chitty holds that it belongs to the landlord. this the Law Journal remarks: "In the case of The Brigg Boat Mr. Justice Chitty missed what appears the essential point of the case. The boat, although fossilized is, it is admitted on all hands, a chattel. If not, the wigs and pairs of spectacles in the well at Buxton are realty. If it is a chattel, how does the owner of the land obtain the property in it? The learned judge lays down, on the authority of a criminal case, that the owner of the land had such possession of the boat as gave him a qualified property sufficient to support an indictment in his name. That may be so, but a qualified property good against a wrong-doer is not the same thing as the absolute property which the plaintiff claimed. So far as we know, the only process by which the property in a chattel vests in the owner of land on which it lies is in virtue of an intention on the part

of the owner of the chattel to affix it to the soil. There was not only no evidence of any such intention, but there was clear evidence of an intention on the part of the owner of the boat to abandon his property in it. There was no evidence of an intention on his part to abandon it to the owner of the soil. There was a general abandonment of it which inures to the benefit of the first finder, who were the defendants, the lessees. No doubt, if the plaintiff had not demised this land, no one but he could dig out the boat without committing a trespass, but in digging it out the defendants were within their right, and were as much entitled to the boat as the street boy to the end of a cigar thrown away in the street. The boat was not in the nature of treasure trove, because the depositor of treasure, so far from abandoning it, hides it away in order to find it again. Treasure trove belongs to the crown, because not being abandoned it does not vest in the finder. If the decision be right, and the possession of the plaintiff gives him the property as against the lessee, the possession of the plaintiff's vendor would give him the property as against the plaintiff, the possession of his vendor's similarly, and so on so far as the title can be traced. This endless prospect of litigation need not however be faced, nor need we look for the personal representative of the primeval Briton who left the boat where it is. This interesting savage evidently abandoned his property, to be found at last by a nineteenth-century gas company, who are entitled to rely on the principle of law in force through the ages that 'findings are keepings.'

The State Library will be closed to the public from the 5th to the 20th of August, inclusive, for the purpose of cleaning.

NOTES OF CASES.

N Baltimore & O. R. Co. Rose, Md. Ct. App., June 23, 1896, it was held that a railway com pany which permits passenger steamers to lie at its pier, and persons going to and from such steamer to pass across its pier and adjacent grounds, thereby becomes bound to keep and maintain such pier and grounds in passable and safe condition, and the public may use any available route of access to and from said pier not expressly prohibited. The court said: "Undoubtedly, under the arrangement existing between the two companies, persons employed on board the steamer had a right of transit over the property of the defendant. If there was no particular road or pathway designated and set apart for their use they were constrained to seek such route as they found open and convenient, and the only obligation resting on them was the observance of due care and caution in the avoidance of danger. The defendant however had a right, if it saw fit, to inhibit the use of the trestle, and restrict the passengers to the use of the ground below.

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* * * The obligation of the defendant to keep any property over which other persons have a right to pass in a safe condition cannot be questioned. As was said by the Supreme Court of Massachusetts, in Sweeny v. Old Colony & N. R. Co., 92 Mass. 373: The general rule or principle applicable to this class of cases is that an owner or occupant is bound to keep his premises in a safe and suitable condition for those who come upon and pass over them, using due care, if he has held out any invitation, allurement or inducement, either express or implied, by which they have been led to enter thereon.' If the owner, either 'directly or by implication, induces persons to enter upon and pass over his premises, he thereby assumes an obligation that they are in a safe condition, suitable for such use, and for a breach of this obligation he is liable in damages.' This is the recognized principle in this country and in England. In Corby v. Hill, 4 C. B. 556 (N. S.), Cockburn, C. J., said: The proprietors of the soil held out allurements whereby the plaintiff was induced to come upon the place in question. They held out this road to all persons having occasion to proceed to the asylum as a means of access thereto. Could they have justified the placing an obstruction across the way whereby an injury was occasioned to one using the way by 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 general public as might have occasion to use it as a safe and convenient mode of access to the establishment, without any reservation, it was not competent to them to place thereon any obstruction calculated to render the road unsafe, and likely to cause injury to those persons to whom they had held it out as a way along which they might safely go.' There is a similar adjudication in Chapman v. Rothwell, El., Bl. & El. 168, where the same question was presented. If therefore any one is injured in consequence of the negligence of the proprietor in this respect an action for damages can be maintained, even if the unsafe condition of the premises was caused by the act of other parties, and the owner allows them to remain in that condition. As was said by Lord Ellenborough in Coupland v. Hardingham, 3 Camp. 398: The defendant is liable for the consequences ' in the same manner as if he himself had originated the nuisance.'

for sale in an unidentified condition, but the mere possession of it, and placing it in a store with other articles held for sale, is sufficient to warrant a jury in finding that the same was offered for sale. The court said: "The defense is that to constitute the offense charged under the statute there must be some overt act of offering for sale; that the intent may exist in the mind without any act done in pursuance of such intent; and that therefore the fact of having the oleomargarine marked and exposed with other goods or merchandise in the salesroom, unaccompanied by any overt act, or individual offer to sell it, is not an offense within the meaning of the statute. But is not the exposing of such substance unmarked, with other pure butter or groceries, upon the shelves or counter of a salesroom, an act of circumstance from which an intent to offer it for sale may be inferred by the jury, in the absence of any rebutting evidence? This is all the instruction imports. It simply says, in effect, that it should be presumed that when a groceryman places the prohibited article upon his shelves, and displays the same with other goods in unmarked packages, intending to sell them in that condition, he is offering them for sale; but that such presumption is only prima facie, leaving the defendant free, as a matter of fact, to prove that they were not offered

The holding in Pearce v. Foster (33 ALB. LAW JOUR. 208) that a servant may be discharged for speculating in stocks has been affirmed by the Court of Appeal. 54 L. T. Rep. (N. S.) 664.

In State v. Dunbar, Oregon Supreme Court, June 24, 1886, it was held that in order to convict a person of the offense of the selling or offering for sale of oleomargarine, unless the same shall be plainly marked so as to establish its true characteristic, it is not necessary to prove any overt act of offering it

condition. Now we all know that when a man engages in the business of merchandising, places his goods upon shelves and counters, and in show windows, and throws open the door of his store to the public, it is ordinarily and usually understood that the goods thus exposed are offered for sale, and considered an invitation by the merchant, to all who are willing to enter, to purchase. Indeed, it may be said to be a matter of common knowledge that it is the general practice of merchants to thus expose or offer their goods for sale, often displaying them quite attractively to more certainly catch the eye of the passer-by, and induce him to enter and purchase them. And when goods are thus exposed it would hardly occur to any one to inquire of the merchant whether he was offering such goods for sale. On the contrary, he would act on the assumption, justified by common experience, that they were offered for sale, and inquire the price. Laws are usually enacted with some reference to the common understanding and customs of men in respect to subject-matters which concern their business transactions; so that when goods or merchandize are exhibited from the show windows or shelves of a store, we have a right to presume, sanctioned 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 therefore may be offered for sale without auy overt act of solicitation. * * * It is true that a merchant might expose with other goods for sale some article that he did not intend to sell, but the instruction does not preclude him from showing the fact." Thayer, J., dissenting.

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T is a matter of just pride to Americans that in

There are now in the United States forty-eight law schools, situated in twenty-six different States. From 1850 to 1881 there were thirty-one

I the establishment of a law school in England institutions established, an average one of thew

the method of teaching in one of the foremost of the law schools in the United States has been bodily taken as the model. It was to be expected that our English cousins would seek for an example in the ancient schools of law of continental Europe.

During a very long period England has been without law schools. As early as the twelfth century, Vacarius, an Italian professor, gave instruction in the civil law at Oxford. To cope with this teaching the Inns of Court in London began courses of lectures on the common law, and in the fifteenth century attained to their most flourishing period. Shortly afterward they fell into places of mere gaiety, and the instruction imparted became only nominal. In quite recent years a marked revival of interest has appeared, and systematic courses of legal study have been established. This has been done by the barristers at the Inns of Court, and by the solicitors through the agency of the Incorporated Law Society. But from the fifteenth century to the present generation a legal education was ob- | tainable only in the law offices.

school a year for thirty-one years.

In his scholarly discussion of legal education Professor Finch has fallen, not strangely however, into an error. At page ten of the publication, whose title is hereinbefore given, he states: "It may thus be seen that the methed of legal teaching as it becomes practical, does in fact become more educational. How practical the system pursued in the American universities is may be gathered from the fact that. in many of the American States the student who has obtained a degree in law at a university is admitted to the profession as of course." This is justly true of the Harvard Law School, which Professor Finch lately visited, and visiting there as he did, one would naturally receive the impression here expressed. But the fact is that the admission of graduate as of course is not an evidence of the superior legal education possessed, but rather, alas! an illustration of the reckless laxity of the statutes of "many of the States" respecting qualifications for admission to the bar. In too many of these schools a course of lectures for about eight months- called a year is followed by a diploma, which admits its holder, upon motion merely, to

and carried on mainly to gain tuition fees for their "professors," and their whole character is such as to warrant their designation as shyster factories.

On the continent, however, a totally different state of affairs existed. There admission to the 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 the lawyers' guilds; and a systematic course of study of not less than three years in the law department of a university, besides other limitations, have been required by the State as a condition precedent to the privilege of practicing law. The famous law school of Bologna survived through the middle ages, having previous to the eleventh century been successively at Rome and Ravenna. It was substantially upon the plan of this school at Bologna that the law schools, revived throughout Europe in the fourteenth century, were established.

In the United States, naturally following English precedent, nearly all our lawyers have been trained in law offices. Law schools however were established here at a comparatively early period. At Philadelphia, in 1790, the first course of law lectures in the United States was delivered by James Wilson, a signer of the Declaration of Independence, a conspicuous member of the Constitutional Convention, and a justice of the Supreme Court. In 1798 Timothy Reeves and Judge Gould established a law school at Litchfield, which was justly famous in its time. It was thence removed to Cambridge, and became the law school of Harvard University, where, in the past year, it has achieved the distinguished honor of furnishing to the law school now opening at Queen's College, Cambridge, England, the model for legal education there.

"Legal Education, its Aim and Method. An inaugural lecture delivered at Queen's College, Cambridge, by Gerard B. Finch, M. A., of Lincoln's Inn, Esq., barrister at law, law lecturer, and late Fellow of Queen's College. October, 1885. Cambridge: Macmillan & Co."

Professor Finch's discussion shows high appreciation of the question considered. It declares the towering importance of the law and its ministers in their relations to the State and the individual, and asserts the power for good of an enlightened school of law. There is also given a clear delineation of the educational advantages of the study of the law, in disciplining and informing the mind, and mention is made of the importance of ethics, history and political science as supplemental studies. The profoundest arguments in favor of the teaching of law as a science at a university, as compared with any method or facilities to be found elsewhere, are such as can be made in behalf of those whose talents or aspirations lead them in the direction of politics, to the sphere of the diplomat, the legislator, or the jurist. This is a branch of the subject covered by the title of Professor Finch's lecture, though he does not discuss it. He probably preferred to restrict his observations to such considerations as were more pertinent to the occasion, his lecture being the first, the inaugural one, of a course of instruction upon the law of contract, to a class at Queen's College. The lecture is also made to serve, very fittingly, as the introduction of the text-book of which Professor Finch has become the author- a work on the plan of Langdell's Cases, and that of the other text-books used in the Harvard Law School - entitled "A Selection of Cases on the English Law of Contract," and bear

ing the imprint of C. J. Clay & Son, Cambridge University Press Warehouse, London, 1886.

With the facts demonstrated by the Harvard system, he presents a convincing argument in favor of the practical as well as the scientific method of teaching law in a university, and in fitting students while there for their entry upon its practice. In controverting the view of Mr. Austen, that London had superior advantages for a law faculty, Professor Finch well says * * * "that the forum is as little necessary for the study of the law as is a workshop for the study of natural philosophy. * * * An ancient seat of learning with its many sided influences and its high standard of excellence would seem to be the fittest place for the advancement of any science, and for its teaching with the greatest attendant advantages." In this he is undoubtedly

in accord with the best authorities. In New York, as a matter of fact, the law students of Columbia College do not avail themselves of the presence of courts as places for the study of the law or its practice. They are kept busy with the tasks in the law school, and know, or soon learn, that the time has not yet come for them to attend courts as spectators with advantage to their legal education.

The Harvard method, adopted at Queen's College, is that of teaching law by the study of cases. Professor Finch stated: "The practice which I am bringing before you is not new, it has prevailed at Harvard University for fourteen years, having been introduced by Mr. Langdell on his appointment to the chief professorship of law in that university." At Harvard the method was not at first received with great favor, but its merits as an efficient educational system were soon recognized, and were adopted by other professors, so that at the present time selections of cases on nine branches of the law are used as text-books at this law school. Professor Langdell's method can hardly find a more interesting exposition than in the following words from himself in 1871: "I entered upon the duties of my present position, a year and a half ago, with a settled conviction that law could only be taught or learned effectively by means of cases in some form. I had entertained such an opinion ever since I knew any thing of the nature of law or legal study. I am called upon to consider directly the subject of teaching, not theoretically, but practically, in connection with a large school, with its more or less complicated organization, its daily routine, and daily duties. To accomplish this successfully it was necessary, first, that the efforts of the pupils should go hand in hand with mine, that is, that they should study with direct reference to my struction; secondly, that the study required of them should be of the kind from which they might reap the greatest and most lasting benefits; thirdly, the instruction should be of such a character that the pupils might at least derive a greater advantage from attending it than from devoting the same to private study. How could this threefold object be accomplished? Only one mode occurred to me

in

which seemed to hold out any promise of success; and that was to make a series of cases, carefully selected from the books of reports, the subject alike of study and instruction. But here I was met by what seemed at first to be an insuperable, practical difficulty, namely, the want of books; for though it might be practicable, in cases of private pupils having access to a complete library, to refer them directly to the books of reports, such a course was quite out of the question with a large class, all of whom would want the same books at the same time. It was with a view to removing these obstacles that I was first led to inquire into the feasibility of preparing and publishing such a selection of cases as would be adapted to my purposes as a teacher." "Law considered as a science consists of certain principles or doctrines. To have such a mastery of these as to be able to apply them with constant facility and certainty to the ever-tangled skein of human affairs, is what constitutes a true lawyer; and hence to acquire that mastery should be the business of every earnest student of law. Each of these doctrines has arrived at its present state by slow degrees; in other words, it is a growth, extending in many cases through centuries. This growth is to be traced through a series of cases; and much the shortest and best, if not the only way of mastering the doctrine effectually, is by studying the cases in which it is embodied."

In his lecture Professor Finch states: "During my stay in Boston last spring men engaged in legal practice spoke to me of the great value of the law teaching at Harvard University. Mr. Sidney Bartlett, the father of the Massachusetts bar, told me that three years' work at Harvard was equal to seven years in an office. Mr. Justice Oliver Wendell Holmes, and Doctor Eliot, president of the university, spoke to the same effect. Doctor Eliot related with pardonable pride that at a recent din ner of old Harvard men a prominent young advocate declared that when he was a student he had often heard it said that the course at Harvard was equal to ten years' actual work; that he was then incredulous, but after being in practice for ten years he came to know it as a fact."

All who take an interest in the subject must find in these evidences of the merits of the system of teaching at Harvard an important subject for inves tigation. If the system is known to the faculties of the law schools of the country it has not been

adopted by them, as it appears from their catalogues that Blackstone, Kent, Parsons, etc., are still the text-books used. A system productive of such superior results is one that calls for the most serious consideration of those engaged in the teaching and the learning of the law.

ITHACA, July 21, 1886.

JOHN TYLER,

WATERS AND WATER-COURSES-EMBANKMENT
OF STREAM-LIMITATION OF RIGHT
TO ERECT.

SUPREME COURT OF OHIO, JUNE 1, 1886.

CRAWFORD v. RAMBO.*

'Where a riparian owner constructs an embankment for the protection of his lands, and occasions substantial injury to the lands of his neighbor, which might have been reasonably anticipated by a man of ordinary prudence and intelligence as the probable result of its action upon the currents of the stream at the time it was constructed, he is liable in damages for the injury so occasioned; and so where it appears from its subsequent action upon the current of a flood that might be reasonably expected to re-occur in the course of the seasons, that it does and will continue, at the time of such floods, to occasion substantial injury to his neighbor.

RROR to District Court, Muskingum county.

ERROR

R. M. Voorhees and E. W. James, for plaintiff in

error.

A. W. Train and F. H. Southard, for defendants in

error.

46

The original action was brought by the plaintiff to recover of the defendants damages to his lands, caused by the construction of an embankment by them on their own lands to prevent the same from being overflowed and injured by the water of the Muskingum river, on which the lands of the parties are situated. The Common Pleas sustained a demurrer to the petition on the ground that it did not state sufficient facts; the judgment was, on error, affirmed by the District Court; and this proceeding is prosecuted here to obtain a reversal of both judgments. The petition sets forth, at great length, the relative situation of the lands of the parties on the river; the mode and manner in which the embankment has been constructed; that the effect of it, since its construction, has been, and is, to divert the flow of the water from the lands of the defendants, over which it has always heretofore flowed in times of floods, to and upon the lands of the plaintiff. The effect of the overflow upon the lands of the plaintiff, he avers, was to, and the same did, increase the volume of water on plaintiff's said lauds, and inundated and overflowed a large portion of said plaintiff's lands; and drowned and injured crops and grass thereon, and created rapid and whirling currents thereon, none of which would have happened but for the erection of said embankment by the defendants as aforesaid; and said last-mentioned water did wash a considerable portion of the soil off plaintiff's said lands, thereby rendering them less valuable for cultivation, and washed gullies and holes in said lands, and floated, lodged and deposited trees, logs, stumps, brush, trash and gravel thereon, and prevented a considerable portion of the silt or sediment which would otherwise have been deposited on said lands as aforesaid, and the formation and accumulation of accretions along the bank of said river on the south side of plaintiff's said land, as aforesaid, from being so deposited, formed or accumulated, and undermined and washed away a considerable portion of the banks of said river on the south side of said plaintiff's lands, as aforesaid, and washed out trees that were growing on the bank of said river on the plaintiff's said lands, which said bank and growing trees formed a natural protection to the bank of said river on said plaintiff's lands against the wash of the water of said river in its natural course and flow." For which he

7 N. E. Rep'r, 429.

claims damages in the sum of $5,000. As a second cause of action he makes, in substance, the same averments, and asks for au abatement of the nuisance to his lands.

MINSHALL, J. The question in this case is whether the owner of land upon a natural stream of water, so situate that in times of floods it is overflowed by the superabundant water, may, to benefit his own lands, construct an embankment thereon, the natural and probable consequences of which must be, and is, at times of ordinary floods, to cause the swollen current to overflow, erode, and destroy the lands of another proprietor thereon. We have so stated the question in this case because, as we think, the question as to surface water is not involved in it.

The premises of the parties are situate upon a bend of the Muskingum river-those of the plaintiff being upon the exterior, and those of the defendants upon the interior, of the bend; the included lands being divided between Rambo, on the one side, and the Littles, on the other, by a line running a little east of south. It is upon this line, beginning at a point about 180 feet south of low-water mark on the interior bend of the river, and extending some 2,900 feet thereon, that the embankment has been constructed by the defendants. It serves to protect the lands included by the bend from the violence of the current that flows across the same when the river is swollen by a flood, and was constructed by the united labor and expense of the defendants for their mutual benefit. It necessarily acts as a partial dam to the current when the river is swollen by floods, and as averred, causes the flood water to flow over and upon the lands of the plaintiff with destructive violence, doing him great damage at such times.

It is difficult to see upon what principle the flood waters of a river can be likened to surface water. When it is said that a river is out of its banks, no more is implied than that its volume then exceeds what it ordinarily is. Whether high or low, the entire volume at any one time constitutes the water of the river at such time, and the land over which its current flows must be regarded as its channel; so that when swollen by rains and melting snows, it extends and flows over the bottoms along its course, that is its flood channel, and when by droughts it is reduced to its minimum, that is its low-water channel. Surface water is that which is diffused over the surface of the ground, derived from falling rains and melting snows, and continues to be such until it reaches some welldefined channel in which it is accustomed to and does flow with other waters, whether derived from the surface or springs, and it then becomes the running water of a stream, and ceases to be surface water. So that as we think it is not material to inquire in this case what the law is as to surface water, for the facts stated in the petition do not present such a case, and the question is as already stated.

The maxim, sic utere tuo ut alienum non lædas, would seem to apply with peculiar propriety to a case like this. Each proprietor on a river has a right to the enjoyment of its water as it flows by his premises, and the right also to modify and limit its current upon his own property as will best subserve his own convenience and notions of propriety, and he may therefore construct and maintain embankments thereon for the purpose of protecting any part of his lands from being injured by the overflow of the river in times of high water; but it is equally clear that this right to deal with the river, and to control its currents, must be exercised with a just regard to the rights of others. He cannot, by the construction of embankments or otherwise, divert the waters of the river from his own lands and cause them to flow over and upon those of his

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