THE REVIVAL OF NATURAL LAW.

Now and then we are told that a revival of the Law of Nature is in process or impending. No doubt these assertions would not be so readily advanced, by intelligent observers, if they were not warranted, in part at least, by the facts.

A new movement of this character, of any considerable dimensions, can scarcely be said to be yet in sight in the United States. We inherit much of the traditional attitude of English-speaking peoples towards metaphysical speculation; we are by temperament a strongly realistic people.

We read in Holdsworth:

"In the same years as that in which the Statute of Uses was passed all the judges agreed that 'the common law is but common reason, and common reason bids one trust another, and a Use is a trust between feoffor and feofee; which trust is by common reason, and common reason is common law; and therefore it follows that the Use is at common law. But this was hardly the view of the lawyers of Edward IV's reign."

Nor has it, in general, been the view of English lawyers since that time.

Another quaint statement that we find in Holdsworth might apply nearly as well to England in the twentieth century as to England in the thirteenth: "In Anglia minus curatur de jure naturali quam in aliqua regione de mundo." (History of English Law, ii, 512.)

Nevertheless, in a notice of Professor Vinogradoff's "Common Sense in Law," published a few months ago in the Juridical Review, one comes upon this statement regarding the author of that highly instructive book: "He reflects the present rehabilitation of the Law of Nature, not indeed as code directly bearing on the practice of courts, but as a conception wielding indirectly a powerful and persistent înfluence on the opinions of judges and legislators." Coming from a Scottish source, and possibly a little colored by the inherited tendency of the Scottish intellect, such a state

ment may need to be discounted as applicable to English conditions, though it may well describe a movement on the Continent.

In Vinogradoff's book we find no specific recognition of a revival of natural law in England, though there are vague references to "the spread of doctrine claiming to pronounce judgment on positive law for the sake of justice." This writer appears to have a general tendency in mind rather than one which can be assigned to a particular locality.

He says this revival of appeals to the Law of Nature comes from two sides. One of these attitudes is that of those people who aim at a transformation of existing systems of law to bring them more directly into touch with the fundamental requirements of modern society; in this case the Law of Nature is intimately connected with a program of social reform, though not necessarily with a socialistic program. The other attitude, more modest, is that of those theorists who, headed by Stammler, contend that every age must have its own Law of Nature deducible by philosophical doctrine. In the latter case the Law of Nature is not so much a means of vindicating social reform, though it may incidentally serve that purpose, as it is a moral standard by which to test the adequacy of positive law.

In spite of these interesting observations, it is manifestly difficult to point to any conspicuous modern representatives of a clearly defined doctrine of natural law. The Law of Nature which Stammler is himself supposed to advocate is a highly intangible and uncertain entity, a method of criticism rather than a system of distinct rules; indeed he seems to believe that the formulation of a definite system of natural law would be a vain undertaking. And when we look elsewhere on the Continent for a typical doctrine of natural law, while it is true that we may find, here or there, some approach in such a direction, we are more impressed by the indications of a vague tendency than by any pure examples of the theory we are looking for.

For

In this country, in a land of so many diverse intellectual tendencies, we are likely to witness isolated attempts to formulate a doctrine of rational law, and European speculation cannot fail to have a degree of influence on this side of the Atlantic. the most part, however—and this statement is particularly applicable to those who make and administer our law-we are unlikely to recognize any Law of Nature except so far as it may be synonymous with ordinary social justice and expediency, and except so far as it may be implied in any utilitarian or Pragmatistic social philosophy that aims to bring positive law into closer harmony with the needs of society. When the attempt is made to correct fundamental defects of positive law and to overthrow established dogmas underlying our legal system, appeal is likely to be made not to a metaphysical doctrine, but to concrete facts of social life. Thus the term "natural law" seems far less likely to mark a specific theory than a general tendency in American jurisprudence. A. W. SPENCER. Brookline, Mass.

EXPLOSIONS-BLASTING AS NUISANCE.

ALLEGHENY COKE CO. v. MASSEY.

Court of Appeals of Kentucky. March 26, 1915.

174 S. W. 499.

Though a person injured by a blast while not on his own property must show either that the blasting was negligent or was carried on in a thickly populated community, one doing blasting is liable for injuries received by plaintiff who was in his own dwelling house, the casting of stones in such case upon the dwelling house of plaintiff being a trespass and a nuisance, notwithstanding care was used to prevent injury.

CLAY, C. Carl Massey, an infant, suing by his father and next friend, George Massey, brought this action against the Allegheny Coke Company and its foreman, John Fuller, to recover damages for personal injuries. From a verdict and judgment in plaintiff's favor against the coke company in the sum of $6,000, the latter appeals.

Facts are these: Defendant was preparing to erect a coal tipple at its plant in the town of Hellier in Pike county. It became necessary to break some stone by means of blasting. About 100 yards from where the blasting was being carried on were three houses. These houses belonged to the company. One of them was occupied by George Massey and his family. At the time of the injury some five or six shots were fired altogether. All of them were "doby" shots with the exception of one, which was a seam shot. Just prior to the firing of these shots the usual warning of "fire" was given. When this warning was given Mrs. Massey and her son Carl Massey, a boy four years of age, were in the yard. They immediately ran into the house. Mrs. Massey remained in the kitchen. Carl went into the front room and stood by the window looking at the blast. A small rock was thrown by one of the blasts through the window where the child was standing, a distance of 109 yards. The rock struck the child on the head, knocking out one of his eyes and disfiguring his face.

In his original petition, plaintiff charged that the blasting was negligently done. In his amended petition, he alleged that the blasting was being done within the corporate limits of the town of Hellier and within a very short distance of a large number of dwelling houses which were occupied by men, women and children, and that the blasting in such close proximity to the dwelling houses, and the throwing of the stone into the dwelling house occupied by the plaintiff constituted a nuisance.

The court told the jury, in substance, to find for the plaintiff if it believed that the defendants, while engaged in blasting for a tipple foundation, threw a rock into the dwelling house of George Massey and injured plaintiff.

(1-3) It is a rule in this state that where the blasting operations result in a direct trespass upon the premises injured by casting soil or rocks thereon, the liability of the person causing the injury is absolute, and it must respond in damages irrespective of the question of negligence or want of skill. The reason for the rule is, that unless a party can show a right, either in the nature of a presumed grant or easement, or in some other mode, to use his property in a particular way, he cannot use it in that particular way if it occasions injury to his neighbors, in the quiet enjoyment of their legal rights and privileges, and it makes no difference whether precautions are used or not to prevent the injury complained of. The act itself is a nuisance. Langhorne v. Truman, 141 Ky. 809, 133 S. W. 1008, 34 L. R. A. (N. S.) 211; Scott

v. Bay, 3 Md. 431. Indeed the ancient rule of the common law, that he who throws substances on the land of another is liable in damages, is generally sustained in cases where by blasting, rocks, earth, or other substances are cast upon the land or buildings of another. Bessemer Coal, Iron & Land Co. v. Doak, 152 Ala. 166, 44 So. 627, 12 L. R. A. (N. S.) 389; Georgetown, B. & L. R. Co. v. Eagles, 9 Colo. 544, 13 Pac. 696; Langshorne v. Wilson, 91 S. W. 254, 28 Ky. Law Rep. 1181; Tremain v. Cohoes Co., 2 N. Y. 163, 51 Am. Dec. 284; Hay v. Cohoes Co., 2 N. Y. 159, 51 Am. Dec. 279; Page v. Dempsey, 184 N. Y. 245, 77 N. E. 9; Kratzer v. Saratoga Springs, 40 N. Y. Supp. 474, affirmed in 158 N. Y. 736, 53 N. E. 1127; Henry Hall Sons' Co. v. Sundstrom & S. Co., 138 App. Div. 548, 123 N. Y. Supp. 390; Carman v. Steubenville & I. R. Co., 4 Ohio St. 399; Tiffin v. McCormack, 34 Ohio St. 638, 32 Am. Rep. 408; 2 Mor. Min. Rep. 194.

Defendant insists that the above rule is based upon the sanctity which the ancient common law attached to the ownership and occupancy of real property, and especially to the sanctity which that law attached to one's dwelling house, which was deemed to be his castle, and does not apply to personal injuries unless the blasting is done in a situation where it is necessarily dangerous to the public, as in a thickly settled portion of a city. Thompson on Negligence, § 764. In other words, defendant's position is that unless the blasting be done in a thickly populated city, no liability for personal injuries arise unless there is negligence, as, for example, where care has not been taken to warn persons in the vicinity that the blast is about to be fired, in order that they might seek places of safety. As the accident did not happen in a thickly populated portion of the city and as ample warning of the blast was given, it is argued that the court not only erred in authorizing a recovery in the absence of negligence, but also erred in refusing a peremptory instruction in favor of defendant.

It is doubtless true that where a person is not injured in his own home, to which he has the right to go for protection, but is injured outside of his home he must show either one of two things: That the blasting was being carried on in a thickly populated portion of the city (Munro v. Pacific Coast, etc., Co., 84 Cal. 515, 24 Pac. 303, 18 Am. St. Rep. 248), or, if elsewhere, that there was a failure to give reasonable warning of the blast (Lexington & Eastern Ry. Co., et al. v. Fields, 152 Ky. 19, 153 S. W. 43). But these principles have no application to the facts in this case. Here the blasting

was done in such close proximity to plaintiff's residence and other adjoining residences with knowledge of the fact that these residences were occupied, that a rock from one of the blasts was thrown into plaintiff's residence and caused the injury. The fact that plaintiff's father was an employe of the coke company and rented the premises in question in no way affects the case. It was plaintiff's home, and his rights are the same as if the property had been owned by his father. As we view it, the sanctity with which the common law invests one's home is not confined merely to the property itself. We are not, therefore, disposed to take the narrow view that for trespass resulting in injuries to one's property a recovery can be had, but no liability attaches where the trespass results in injury to one's person.

In the case of Louisville Railway Co. V. Sweeney, 157 Ky. 620, 163 S. W. 739, a street car operated by the defendant left the track near plaintiff's house. The car struck a telephone pole, which fell and struck a gate. The gate was thrown against plaintiff and injured her. Though the case was one involving injury to the person, the court applied the rule applicable to trespasses on property. In discussing the question the court said:

"The plaintiff as the owner of her property was entitled to the undisputed possession of it. The entry of the defendant upon it either by its street car or by the pole which it set in motion was a trespass. One who trespasses upon another and inflicts an injury is liable for the injury, unless caused by the act of God or produced by causes beyond his control. We have held that one who in blasting throws rock or other debris upon the land of another is liable for injury done, irrespective of whether the blasting was negligently done or not, as there is in such a case an actual invasion of another's premises and the act itself is a nuisance. The same principle has been applied to the polution of air or the abstraction of any portion of the soil, or the casting of anything upon the land in other ways. Langhorne v. Turman, 141 Ky. 809 (133 S. W. 1008, 34 L. R. A: [N. S.] 211) Langhorne v. Wilson, 91 S. W. 254. The same principle must apply here."

The question of contributory negligence is eliminated from the case by the fact that plaintiff was an infant only four years of age and could not, therefore, be guilty of contributory negligence, and by the further fact that even if the child's mother was guilty of contributory negligence such negligence, under the facts of this case, could not be attributed to

plaintiff. Louisville & Nashville R. R. Co. v. Wilkins, Guardian, 143 Ky. 572, 136 S. W. 1023, Ann. Cas. 1912D, 518; South Covington & Cincinnati St. Ry. Co. v. Herrklotz, Ry., etc., 104 Ky. 400, 47 S. W. 265, 20 Ky. Law Rep. 750.

When the warning of the blast was given the mother and child had the right to seek the protection of their own home. While there they had the right to be secure not only in their property but in their person. Defendant's act in causing the rock to be thrown into plaintiff's home and causing the injury was a direct trespass and therefore a nuisance. It follows that it was not necessary to show negligence in order to render defendant liable. The trial court therefore did not err in so instructing the jury, or in refusing the peremptory instruction asked by the defendant.

Judgment affirmed.

NOTE-Distinction as to Blasting Causing Concussion and Blasting Causing Trespass.-We think that the rule announced by the instant case, viz. that blasting causing rocks to fall on another's premises constitutes a nuisance for which damages are recoverable without respect to the prosecution of work being carefully or negligently performed is supported by practically universal authority. But where damages are caused by concussion or shaking there appear to be two lines of cases.

An excellent case taking the view that concussion and injury from vibration to buildings stands the same as blasting causing rocks to fall thereon is that of Hickey v. McCabe, R. I., 75 Atl. 404, 27 L. R. A. (N. S.) 425. This case points to what it calls the "sharp and irreconcilable conflict of authority" on this question. After tracing the doctrine declared by New York Court of Appeals requiring proof of negligence in a concussion case, the Hickey case declares that: "The point has apparently seldom come before the courts; but in a number of well-considered cases in different states, a rule contrary to that adopted by the New York court has been laid down." Then are cited Colton v. Onderdonk, 69 Cal. 155, 10 Pac. 395, 58 Am. Rep. 556; Fitz Simons, etc., Co. v. Braun, 94 Ill. App. 533, affirmed in 199 Ill. 390, 59 L. R. A. 421, 65 N. E. 249; Chicago v. Murdock, 212 Ill. 9, 72 N. E. 46, 103 Am. St. Rep. 221; Gossett v. Southern R. Co., 115 Tenn. 376, 1 L. R. A. (N. S.) 97, 89 S. W. 737, 112 Am. St. Rep. 846.

The Hickey case then says: "We see no valid reason why recovery should be permitted for damage done by stones or dirt thrown upon one's premises by the force of an explosion upon adjoining premises and not be permitted for damages resulting to the same property from a concussion or vibration sent through the earth or the air by the same explosion. There is really as much of physical invasion of the property in one case as there is in the other. The force does the injury in both cases and the fact that

it causes stones or other debris to be thrown upon the land in one case, and in the other only operates by vibrations or concussions through the earth or air, seems to us to be immaterial."

The court thought that the fact that "trespass" might not lie in the latter case was immaterial.

The Colton case, supra, spoke of the destruction or injury being "the natural and proximate result of the blasting. The defendant seems, by his contention, to claim that he has the right to blast rocks with gunpowder on his own lot. . . even if he had shaken Mrs. Colton's house to ruins, providing he used care and skill in so doing, and although he ought to have known that by such act, which was intrinsically dangerous, the damage would be necessary, probable or natural consequence. But in this he is mistaken."

In the Braun case it was said: "It would seem absurd that any refinement of reasoning as to nuisance per se or as to injury consequential or by physical invasion, should be permitted to obstruct the natural justice of a rule which would make one who chooses, for his own convenience or profit, to use agencies, which, in their probable or natural results, will injure the property of others answerable for the loss occasioned by such injuries."

There also may be cited on this side of the question a per curiam opinion in Hess v. Am. Pipe Mfg. Co., 221 Pa. 67, 70 Atl. 249, where plaintiff was thrown from a chair by concussion from a heavy blast.

As stated above, the opposite doctrine has been declared by New York court, and in Bessemer C. I. & L. Co. v. Doak, 152 Ala. 166, 44 So. 627, 12 L. R. A. (N. S.) 389, it is said that: "The rule deducible from the decisions seems to be that, where a person lawfully engaged in blasting upon his own land so conducts the work as to cause damage to adjoining property, in a way in itself unlawful, as where there has been a direct trespass upon the premises injured, by casting soil or rocks thereon, the liability of the person causing the injury is absolute. *** But for any other injury, such as may result from the mere concussion of the atmosphere, sound, or otherwise, there is no liability, unless it is shown that the work was done negligently and that the injury was the result of blasting according to the usual methods and with reasonable care." For this is cited Booth v. Rome, etc., R. Co., 140 N. Y. 267, 35 N. E. 492, 24 L. R. A. 105, 37 Am. St. Rep. 552 and other N. Y. cases.

In Thurmond v. White Lime Asso., 125 Mo. App. 73. 1C2 S. W. 617, the rule in the Booth case was followed, but doubt was expressed of its being made of general application. The case was decided against plaintiff upon the ground that he had assented to the work properly conducted, by leasing and selling land to defendant for quarry purposes.

We think the great majority of the cases are opposed to the New York rule and the cases which follow it. It seems to us that New York has declared for a technical rule and other courts have blindly followed it. It is not necessary to justice that the rule invoked should be observed. It concerns a substantial right that could as well as not exist without its aid.

C.

REVIEW OF CURRENT PERIODICAL LITERATURE OF INTEREST TO LAWYERS.

(Edited by A. H. R.)

Biography. Life of John Chipman Gray. By Ezra Ripley Thayer, et al. 28 Harvard Law Review, p. 539 (April).

This article is an appreciation of the life of John Chipman Gray, Royal Professor Emeritus of the Harvard Law School, by Ezra Ripley Thayer, Samuel Williston and Joseph H. Beale, three of his colleagues in the Law School. The writers call attention to the fact that no author of the present generation stands higher in the estimation of law students than did Mr. Gray, whose work on the "Rule Against Perpetuities" reached three editions, and is considered the highest authority on that subject. His "Cases on Property," in six volumes, is also used as the basis of instructions on the subject of real and personal property in the leading law schools of the country. He was a scholar of very high attainments and, as Mr. Thayer says, "the classic training that enabled him to handle his Greek so lightly, no doubt had much to do with the terse elegance of his diction." On the other hand, he was a man who despised sham or pretense in any form, was very democratic in his ways and, "his intellectual honesty matched the soundness of his moral fiber." His wonderful success as a teacher is properly attributed to the fact that he never tried to show off before his students, or to let them know how smart he was, but he regarded his students as fellow searchers after the truth, "trying to get to the bottom of every difficult subject."

Comity.. "Comity in the Federal Courts." By Arthur March Brown. 28 Harvard Law Review, p. 589 (April).

The author cites and discusses a large number of federal decisions showing the extent to which the federal courts recognize the decisions of each other and of the separate states. He shows that there has been a distinct effort on the part of the federal courts to reach a uniformity of decisions, especially in patent cases, although the result has not always been uniform. He shows that in quite a number of recent cases there has been a tendency to assert an independence which has not failed to create confusion. The author calls attention especially to the cases under the Tariff Act, where, as the author says, "the confusion which would be produced in the collection of customs duties rules in certain parts of the country is so obvious," but he believes that since judges have shown a desire to make the decisions of the federal courts uniform, that there is much to be hoped for. The author says that it may be trusted, as time goes on, that the Courts of Appeals will work out a policy of harmonious action among the co-ordinate jurisdictions. The judges of a system of national courts must increasingly feel the constraint, not of an international comity of caprice, which is no con

straint at all, but of a national comity of order and consistency, dictated by sound principles of public policy.

Constitutional Law. "The Constitutional Right to Keep and Bear Arms." By Lucilius A. Emery. 28 Harvard Law Review, p. 473 (March).

This is a short article investigating historically the origin of the right of citizens to keep and bear arms. The author shows that as early as the second year of the reign of Edward III this right was limited by the Statute of Northampton which prohibited any man from riding armed "by night or by day in fairs, markets, nor in the presence of the justices." Historically, the author shows that the right to keep and bear arms was not regarded as a fundamental right of every Englishman. The origin of constitutional provision in this country making inviolable the right to bear arms arose, according to the author, in the custom of the early citizens to provide arms for the common defense against the savages, and in reliance on citizen soldiery or militia as against a standing army. The author quotes the language of the federal Bill of Rights to the effect that, "A well regulated militia being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed," and concludes that this preamble in the federal provision indicates the extent of the right as well as its origin. From these premises the author argues that constitutionally the right of the individual to bear arms may be severely restricted or even prohibited absolutely except when carried for the common defense of society, or of their homes. On this point the author says, "I submit that the right guaranteed is not so much to the individual for his private quarrels or feuds as to the people collectively for the common defense against the common enemy, foreign or domestic. The guaranty is to insure the safety of the people, their laws and liberties,' against assaults from any source or quarter, but not to give individuals singly or in groups uncontrollable means of aggression upon the rights of others," and even the right to carry weapons for personal defense may be prohibited to the extent of requiring that the person so carrying such weapons shall first show that he believes and has reason to believe that it is necessary for his defense under any particular circumstance.

Corporations.

"Shareholder's Liability to Trustee in Bankruptcy." By A. D. Lipscomb, Beaumont, Texas. 49 American Law Review, p. 171 (March-April).

The author in this article discusses the question of whether the legal obligation of shareholders to pay for their shares in a corporation may be enforced by proper representatives of the corporation to the extent necessary to provide a trust fund for creditors. The author comes to the conclusion that this right may be exercised by a trustee in bankruptcy, irrespective of statutory remedies given directly to