Page:Harvard Law Review Volume 10.djvu/386

360 360 HARVARD LAW REVIEW, indeed, of all industry, a great change has taken place in England. Rail- ways and steamships, postal communication, telegraphs, and advertise- ments have centralized business and altered the entire aspect of local restraints on trade. The rules, however, still exist, and it is desirable that they should be understood to remain in force. A great care is evi- dently necessary not to force them upon transactions which, if the mean- ing of the rule is to be observed, ought really to be exceptions." ^ The boldness with which he appHed established principles to a new subject matter may be shown by the case of Dashwood v, Magniac,^ where the law applicable to grants of minerals, accord- ing to which, under certain circumstances, the consumption of part of the inheritance is held not to be waste, was applied to the periodical cutting of timber by a tenant for life of a freehold estate.^ It must not be supposed, however, that Lord Bowen failed in respect to general rules which have been found of value in the administration of the law. As he said in Quartz Hill Gold Mining Co. v. Eyre: * — 1 See also Jacobs v. Credit Lyonnaise, I2 Q. B. D. 589, and RatclifEe v. Evans, [1892] 2 Q. B. 529. 2 [1891] 3 Ch. 306. ^ He supports his conclusion in this case with great force : — "The absence of authority in the early English law for the extension to timber plantations of the principle in question is, however, a matter on which the appellants are entitled to lay stress. But the Year Books and the older Abridgments are not likely to furnish illustrations in which legal piinciples are applied to a comparatively modern system of arboriculture. Mining and quarrying have come down to us from the remotest ages ; but the culture and periodical cropping of trees such as that proved in the case before us, are the growth of a later period altogether. Occasion to invoke the principle for the benefit of grantees of ' timber estates * arises only in a time when woods are cultivated on the plan of annual croppings, and when to treat them other- wise would be to destroy the revenue of a property and to paralyze its management. . . . We have been told that to apply to timber the doctrine which has been adopted in the case of minerals will be to transfer it to a subject matter where no line can be drawn as marked and unmistakable as the line presented always by the open mine. But it is not a valid objection to a legal doctrine that it will not be always easy to know whether the doctrine is to be applied in a particular case. The law has to face such embarrassments. . . . The instance to which the legal principle is now for the first time adopted by this court may be new, but the principle is old and sound ; and the English law is expansive, and will apply old principles, if need requires it, to new contingencies. Just as, in America, the law of watercourses and of waste has modified itself to suit the circumstances of enormous rivers and wide tracts of uncultivated forest, so the English law accommodates itself to new forms of labor and new necessities of culture ; it favors the profitable holding of land. In a case like the present, good sense borrows accordingly, as it seems to me, the doctrine which has hitherto found its most remark- able illustration in the instance of the open mine, and applies it to the more novel case of a timber plantation which is cultivated for periodical croppings, and which forms a substantial item of yearly revenue to the owner of the property." 4 II Q. B. D. 688.