Page:Harvard Law Review Volume 10.djvu/402

376 376 HARVARD LAW REVIEW. now worthless, and they are bound to pay full rent for them. The court hold, however, that the subject matter of the lease was in reality only a " landing," and now that no landing can fairly be said to exist, this sub- ject matter is wholly gone. This view will probably commend itself to all as highly sensible, though a point is left open to speculation as to the right the lessees would have had to use a practicable landing at a new place, supposing the course of the flood had left such a landing. Even if a landing could still be considered as existing after the catastrophe, the court further hold that the acts done by the lessor, or by her authority, give the lessees good cause to consider themselves evicted from the property leased, and therefore released from the liability for rent. This is an ex- tension of the application of the term " eviction " to a case where the lessee is deprived of the enjoyment, not of land leased, but of an incor- poreal right leased. Just such a case has perhaps never before arisen, on account of the rarity of leases of incorporeal rights; but there seems to be no reason why the lessor's conduct here should not be described and treated as an eviction. Adverse Possession by a Relative. — As a practical matter, more is required to warrant finding possession adverse when the possessor and owner are relatives than when they are mere strangers. But the state- ment of the Supreme Court of Minnesota in C Boyle v. AIcHugh^ 69 N. W. Rep. 37, 38, that the relation of parent and child "radically modifies the general rules of law as to what constitutes adverse possession between strangers," is unfounded in reason, and is not supported by the authorities. The only legitimate effect of the relationship is to give rise to an inference that the possession was permissive. To say that there is a presumption of this is not so objectionable, though it adds little, since the particular facts of the actual relationship must determine the force of the inference in each case. Frequently, the mere fact of family connection must be entirely disregarded because of the actual relations between the parties. There is the further difficulty that no indication is given as to the degree of relationship necessary to bring the case within the rule laid down. It seems as though the court considers that there is an analogy to adverse possession by a tenant in common, or by a person lawfully in possession who secretly determines to hold as owner. This question is well dealt with in Allen v. Allen^ 58 Wis. 202, 210, where it is said that the relationship is " another fact in the case which makes strongly against the claim " of an adverse and hostile possession. " In such case mere possession . . . would not have the same force in proving an adverse entry and holding as it would in the case of mere strangers." And so in Silva v. Wimpenney^ 136 Mass. 253, a case where the trial court ruled that title by adverse possession had not been gained, on appeal Mr. Justice Holmes took up the facts of the case and weighed them in the light of the relationship. May a Surgeon Disregard the Instructions of his Patient? — Interesting questions as to the extent of a surgeon's authority to follow his best judgment in the course of an operation are suggested by the re- cent English case of Beatty v. Cullingworth. (Queen's Bench Division,