Page:Harvard Law Review Volume 2.djvu/64

 46 HARVARD LAW REVIEIV.

sufficient to indicate that desire (what such act shall be is often highly conventional) ; (3) there must be no act done by a third person which is inconsistent and intended to be inconsistent with the fulfilment of such desire.

Now, here the defendant's desire was that no one should do anything concerning a strip of land which was in any way inconsistent with his going how and when he pleased over it, and he had indicated this in the ordinary way by walking over the strip when and how he pleased.

Did the plaintiff do anything which was inconsistent with the de- fendant's going when and how he pleased over the strip ? If he had placed a physical obstruction there, he would have done something inconsistent with the defendant's using the way as he pleased ; so if he had frightened him off, for then his fears would not have allowed him to use it. But here that the threats were not inconsistent with his going how and when he pleased appears from the fact that he continued to go how and when he pleased.

I therefore think that there was no dispossession or interruption of the defendant's exercise of his easement. Another line of thought leads to the same conclusion. Nothing can be an interruption preventing the acquisition of a right of way unless it would be an actionable disturb- ance of a right of way already acquired. Suppose the defendant in this case had had a way by grant over the land of the plaintiff, and the plain- tiff had done as he has done now, his conduct would not have amounted to a disturbance of the way for which an action would have lain.

For these reasons I am of opinion that the easement has been acquired, and that the verdict for the defendant was correct. This is in accord with Lehigh Valley R.R, Co. v. McParlan^ 43 N.J. L. 605, the case in which the matter has been most fully discussed, and which has been lately followed by yordan v. Lang^ 22 S. C. 159.

Exceptions overruled.

��LECTURE NOTES.

��Larceny. — {Prom Prof. Thayer's Lectures.) — In Middleton's case ^ it was decided that one who receives money offered him by a mistake not caused by him, and knowing that the money is not his, is guilty of larceny. As to the reason for the decision, all that can be said is that, on one ground and another, the majority held this doctrine. Seven out of the fifteen judges before whom the case was argued, and of the eleven who composed the majority of the court, held that it was larceny because the title did not pass.

But this case does not support that doctrine. I have always been inclined to think the opinion of the minority the sound one, — that it was no crime.

In Ashwell's case* the verdict was directed by the court, that the case might be reserved, and was sustained simply because the court above were equally divided. There was no question of agency or of power to pass title. Though there was mistake, yet the owner in- tended to hand that coin to that particular person ; and it is a reason-

1 Queen r. MidMeton^ L. R. a C C. R. 38. * Queen v. AshweUy 16 Q. B. D. 190.