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WASTE. What constitutes.—Although the common-law doctrine of waste is not, in its strictness, applicable to the condition of things in this country, get such a cutting of trees or timber, by a tenant, as will work a permanent injury to the freehold or inheritance, in the absence of any specific leave or license to cut such trees or timber, is waste, for which an action will lie, in equity, for the prevention of such injury, by injunction, before it is committed, or at law, for the recovery of damages, by the remainder-man, after the injury is done : McCay et al. v. Wait, 51 Barb.
Whether the cutting of trees and timber, in any case, is such an injury to the inheritance, or not, is necessarily a question of fact for the jury, or the court, when the action is tried by the court without a jury: Id.
WATER RIGHT. Can only pass by Deed— License.—A right to divert the water of a river (owned on either side and to the middle, and subject to no public right), is an incorporeal hereditament, and can pass only by instrument under seal: Veghte v. The Raritan Water-Power Co., 4 C. E. Green.
The charter of a water-power company authorizing the company to divert the water of a river, upon the written consent of the landowners, does not dispense with the necessity of a deed or conveyance of the right in the form, required by law. It confers the power, but not the title. Such consent is only a license: Id.
In general, a license at law will create no estate in the lands of the licensor, but will justify or excuse any act done under it. It is revocable even when given for a consideration, and after it has been executed. But, in such cases, where the revocation would be a fraud, courts of equity give a remedy either by restraining the revocation, or by construing the license as an agreement to give the right, and compelling specific performance by deed, as of a contract in part esecuted: Id.
But a license to a person to do or erect something on his own land by which a right or easement of the licensor may be affected, if once executed, cannot be revoked : Id.
The effect of a license to do an act on the land of the licensee can only extinguish such easement as may be abandoned, that is, easements or rights acquired by grant or prescription, and in no case affects easements or incorporeal hereditaments which are by law annexed to the land of the licensor, such as the right to running water passing over his land in a natural stream or watercourse: Id.
An easement will not be extinguished by mere non-user for twenty years, unaccompanied by acts showing an intention of abandonment. In such cases, adverse possession, as well as non-user, is
necessary to effect the extinguishment: Id.
Damage from Ditches.- Where K. owned a ditch which passed over the land of R., he was bound to so use it as not to injure R.'s land, and this irrespective of the question as to which had the older right or title ; and if, through any fault or neglect of K., in not properly managing and keeping his ditch in repair, the water overflowed or broke through the banks, and destroyed or damaged the land of R., by
either washing away the soil or covering it with sand, K. was liable for such injury: Richardson v. Kier, 34 Cal.
Ravine adopted as part of Ditch.--A ditch-owner may only adopt a ravine, which is also a natural watercourse, as part of his line of ditch to the extent of the capacity of his ditch to convey water. If an injury result from an overflow of the water of such ravine, not occasioned by its use as part of such ditch, the ditch-owner will not be responsible therefor: Id.
Where K. discharged water from his ditch above R.'s land in such place that it naturally would, and did, flow over and upon and injure R.'s land, K. is responsible for such injury; nor can K. shield himself from this responsibility because he may have sold this water at such place to miners, by whom it was used for mining purposes before, in the course of its flow, it reached R.'s land and occasioned such injury: Id.
In such case, the fact that the miners so using the water contributed to and enhanced the injury sustained, and are joint tortfeasors with K., will not relieve K. from his liability or affect its measure: In.
LIST OF NEW LAW BOOKS.
BREWSTER. A Digest of Cases decided by the Supreme Court of Pennsylvania, as reported from 3 Wright to 5 P. F. Smith, inclusive; with Table of Titles and Table of Cases. By F. CARROLL BREWSTER. 8vo. pp. xli., 354. Philadelphia : John Campbell. 1869. Shp. $4.50.
MARYLAND. Supplement to the Maryland Code, containing the Acts passed in 1868, arranged in Sections to correspond with the Code. By LEWIS MAYER. 8vo. pp. 426. Baltimore: J. Murphy & Co. 1868.
MARYLAND. Reports of Cases in the Court of Appeals of Maryland. By J. S. STOCKETT. Vol. 27. 8vo. pp. 784. Baltimore: J. Murphy & Co. 1869. Shp. $5.
THE NATION. A Journal of Politics and Literature. Published weekly, at $5 per annum. Box 6732, New York.
New York. Reports of Practice Cases in the Courts of New York. By B. V. Abbott and A. ABBOTT. New Series, Vol. 4. New York: Diossy & Co. 1869.
Nixon. A Digest of the Laws of New Jersey. By L. Q. C. ELMER. Fourth Edition, with all the Laws of General Application now in force from 1709 to 1868. By J. T. Nixon. 8vo. pp. xxxii., 1152. Newark: M. R. Dennis & Co. Shp. $7.50.
PARKER. Reports of Criminal Cases in the Courts of New York. J. Parker, LL.D. Vol. 6. 8vo. pp. 727. Albany: W. Gould. $7.50.
The Round Table. A Journal of Home and Foreign Affairs, Society, Amusements, and Art. Weekly, $5 per annum. No. 132 Nassau Street, New York.
AMERICAN LAW REGISTER.
LEGAL TENDER NOTES BEFORE THE SUPREME COURT.
The recent discussion of the question of the validity of the Act of Congress creating the legal tender notes, before the Supreme Court of the United States, and the manner in which the question is viewed by the public in general, are certainly calculated to create, or perhaps we might more properly say to confirm, distrust in general public opinion, as an index or guide to truth. When the law was first passed it was regarded as evidence of disloyalty for any one to impugn the validity of that act. The class of men, considerably numerous, indeed, and highly respectable in point of character, learning, and ability, who did openly denounce the act as an unworthy debasement, or attempted debasement of the public money of the nation, was encountered and assailed from every portion of the country as disloyal and unpatriotic ; and certain epithets which were regarded as derogatory, and specially efficient in producing opprobrium and discredit, were freely heaped upon them, without measure or stint. At the present time, however, all this seems to be changed. Every one seems to feel at liberty to discuss the question of the validity of the law with the utmost freedom. But what is most remarkable in this discussion is, that while the best lawyers and the most cautious and conservative men in the country now approach the question with obvious diffidence and distrust in their own power to comprehend all its bearings, or to give it a satisfactory determination, the poliVOL. XVII.-13
ticians, and letter writers, and others of the class who spend much of their time, as the Athenians did in the days of St. Paul, in hearing or telling some new thing, and who are supposed to reflect pretty accurately the general, superficial political public sentiment of the country, for the day, or the hour, exhibit a most amazing amount of flippancy and readiness to relieve all the doubts and difficulties of their hearers and readers by their own single and simple ipse dixit. And so common is it, in and about the Capitol, and in the leading city journals, at the great commercial centres of the nation, to hear and read the unqualified opinion and declaration, that the court will declare the law invalid with all but unanimity, that one is led to seek the explanation of this surprising garrulity against the law in the very quarters where but lately was found such inquisitorial intolerance of all such opinion, in some source of light and intelligence quite beyond any developments disclosed in the argument. It almost seems as if the authors of the act would now be glad to escape responsibility by invoking the aid of the court in declaring it void. But the court will do no such thing, for any
such We had the agreeable opportunity of listening to the arguments before the court through most of the sessions for three successive days, and it was certainly such an intellectual banquet as is very rarely exhibited in any forensic encounter. We do not care to venture upon any specific estimate of the particular excellencies of the successive advocates, where all were confessedly so able and so eloquent. We had listened to all the advocates, on other occasions, with the exception of Mr. Potter, of New York. The
opening argument in favour of the validity of the law was made by Judge Curtis, in his clearest, purest, happiest vein, as nearly perfect, both in matter and manner, as it is possible for us to conceive a law argument to be. Mr. Townsend, of New York, and Mr. Potter occupied parts of two days in reply, placing the main force of the argument on the ground of the impolicy and injustice of the law, and upon the early history of the Government and the Constitution, as showing both the improbability that the Constitution was intended to receive any such construction, and, as far as practicable, the fact that such was not the purpose of its framers, or of those who adopted it. These gentlemen commanded a good degree of attention, and made themselves, on the whole, very interesting
The Attorney-General, Mr. Evarts, closed the argument with his usual copiousness of learning and fulness of illustration.
The only possible exception one can make to his manner of arguing causes in banc is, that he is, if possible, too deliberate, causing the attention of the court, after listening a considerable time, to rather flag, and lose something of that keen edge which it is always desirable to maintain throughout, if possible. A certain degree of deliberation and quiet self-possession adds very greatly to the force of a mere dry legal argument before a bench of judges, especially where, as in the present case, they are considerably numerous. And we know that Daniel Webster sometimes adopted this peculiar mode of argument with great effect in addressing courts; and juries possibly sometimes, but not by any means as a general rule. And he could do some things, sometimes, which it would be scarcely safe for any other man to attempt. As his favorite brother, Ezekiel, once said of him, “ Brother Daniel could puzzle” (or even overwhelm] “ a great many men that knew more than he did.” No American, probably, and no Englishman, perhaps, ever possessed the power of manner which Daniel Webster seemed unconsciously to fall, or be driven, into. What seemed in him the inspiration of the moment, or the result of the secret and hidden springs of the cause, might not always appear so in others, at least on occasions of no special interest.
But bating this single and unimportant drawback in the Attorney-General's mode of speaking (which we are specially desirous of seeing improved to the extent of the Latin maxim, festina lente, on account of our great admiration of the man), it must be admitted that he presents one of the best models of forensic eloquence at present to be found in this or perhaps any other country. Mr. Evarts' dry law arguments, while abounding in all the learning and logic which it is desirable to find there, abound also with the richest and choicest illustrations which it is possible to conceive, or which the purest and most chastened rhetorician could desire. And this alone makes it necessary to occupy more time than would otherwise be required, and thus imposes a somewhat greater strain upon the powers of the orator. The argument of Judge Curtis fell far within the limits of one hour, and it commanded the most undivided and unflagging attention to the last moment; and as a presentation of the legal argument, and