Page:Harvard Law Review Volume 10.djvu/217

191 RECENT CASES. IQI roughs V. Satterlee, 67 la. 396 ; Strait v. Brown, i6Nev. 317 ; Hale v. McLea, 53 Cal. 578. It seems much more satisfactory to distinguish, as here done, between waters in well defined courses and waters percolating or draining, than to apply different rules to waters on the surface and those underground, as indicated in Acton v. Blundell, supra. Property — Right of Lessee to Insurance — Lease with Option to Pur- chase. — A lease of a portion of a business block required the lessee to pay taxes and insurance on, and keep in repair, the entire premises, and gave him the option of purchas- ing the premises during or at the expiration of the lease, for a certain price, on which rent paid prior to the exercise of the option was to be credited. No provision was made in the lease for the application of proceeds of insurance in case of loss. The lessee insured in the lessor's name to an amount agreed upon by them, and, a loss occurring, the lessor received the insurance money, and expended part of it in restoring the premises. On subsequently exercising his option of purchase, held that the lessee was entitled to have the balance of the insurance money in the lessors hands credited as a payment on the price. Williams v. Cilley, 34 Atl. Rep. 765 (Conn.). There appears to be a singular absence of authority in point. The court ex- pressly states that the decision is largely based on the peculiar facts of the case, and should be confined to them rather than laying down a broad rule applicable in general to contracts of option. Much importance is attached to the fact that the plaintiff's relation to the premises in question, as lessee of a portion thereof, was designed, intended, and understood by the parties to be "subordinate and inci- dental to the broader connection with the entire property as an inchoate or initiate purchaser"; and that the insurance on all the property was paid by the lessee to protect both parties. If this construction can be put upon the facts, the decision seems eminently sound, since the insurance money, though paid to the defendants as owners of the legal title to the property, would then become what the property itself was, a thing to which an equity attached. Property — Right to Support of Land. — Held (Holmes, Knowlton, and Lathrop, JJ., dissenting), that a city digging a ditch in the highway is liable for dam- ages to abutting land, resulting from the withdrawal of quicksand from under its surface, which is taken out with the percolating water by pumps. Cabot v. Kingman, 44 N. E. Rep. (Mass.) 344. See Notes. Property — Rights of Tomb Owner. — Surviving relatives placed the remains of their dead in a certain tomb, relying on the assurance of the tomb owner that the remains should rest there undisturbed forever. Held, that such tomb owner could be enjoined from removing the remains to another place of burial. Choppin v. Labranche, 20 So. Rep. 681 (La.). The court admit that no easement or right of property in the tomb was acquired by the gratuitous promise of the tomb owner, but they enforce his promise on the ground that the sanctity of the grave must be maintained. Notwithstanding this principle of public policy, it is hard to understand how a court of equity can enforce a mere revo- cable license. Partridge v. First Independent Church, 39 Md. 631, and Craig v. First Presbyterian Church, 88 Pa. St. 42, are opposed to the doctrine of the principal case. Sales — Warranty. — Where an inferior article was shipped on an order, and was accepted, but breach of warranty set up in defence to an action, held, that there is an implied warranty that the goods are what were ordered and that the retention of them is not incompatible with a reliance upon the warranty, but is merely evidence of waiver of the right to sue. Northwestern Cordage Co. v. Rice, 67 N. W. Rep. 298 (N. Dak.). There was probably an implied warranty {^Randall v. Newsom, 2 Q. B. D, 102) ; and it is believed that the case is right in holding waiver of the right to sue merely a matter of intention based on the evidence. But the law is unsettled. If the warranty is express, the goods may be retained without prejudice to a right of action on the war- ranty {Studer v. Bleistein, 115 N. Y. 316, 325) ; and while it is sometimes held that there is no difference between an express and an implied warranty {Bryantv. Isburgh, 13 Gray, 607), the weight of decisions seems to be that where the goods are retained a breach of an implied warranty is waived. Fairbank Canning Co. v. Metzger, 118 N. Y. 260. Torts — Libel Invited by the Plaintiff, — The plaintiff, learning that the de fendant had in his possession a letter containing a libel on him, sent to him agents who by means of false representations, induced the defendant to read the letter to them. Held, that unless there had been a previous unprivileged publication the plaintiff could not recover. Miller v. Donovan^ 39 N. Y. Supp. 820. See Notes. Torts — Negligence — Liability of Maker. —Defendant, a contractor, re- modelled a building so negligently that two years after it had been turned over to the