Page:Harvard Law Review Volume 8.djvu/196

180 I So HARVARD LAW REVIEW, occupation. Held, he can recover (Carpenter and Smith, J J. dissenting). Gage v. Gage, 29 Atl. Rep. 543 (N. H.) ; s. c. 66 N. H. 282. This decision is contrary to several dida in New Hampshire, — Berry v. Whidden, 62 N. H. 473, and at least one decision, — Webster v. Calef, 47 N. H. 2^9 ; but brings New Hampshire in line with the general rule, usually laid down by statute, how- ever, — Stimson's American Statute Law, § 1378. The courts, as a rule, have refused to decide this question as the majority of this court has ad the courage to do, but have adhered to the old common-law doctrine that one tenant in common could not sue another for a division of the profits if the latter has had more than his share. By various American and English statutes, this old view has been done away with, so that this case was about the only one unprovided for, — i.e., the case where one tenant allows the other to occupy all. There seems to be no reason, apart from the historical one, why such an action should not be allowed. But whatever view may be taken of the result reached in this case, there can be no doubt as to the ability and vigor of the dissenting opinion, in which Carpenter, J. con- tends that judges have no right to "make law." However jurists may differ as to this last proposition, one thing is clear, that if judges are to legislate, they should do so openly, and not " under cover of vague and indeterminate phrases." TuRTS — Malicious Diversion of Water. — The defendant intentionally so drained a marsh on his land as to divert the water from the plaintiff's land, where it was used for irrigation. Held, that since the action was intentionally injurious to the plaintiff, it is immaterial whether a stream or only percolating waters were diverted, the defendant being liable in either case. Bartlett v. O'' Connor, 36 Pac. Rep. 513 (Cal.). This decision is a too hasty disposal of a troublesome question, since it is apparently the first case in California on the point at issue. The court dub the defendant's act " malicious injury," and give the case no further consideration, not citing a single case in support of the conclusion reached. Yet the weight of authority is against the propo- sition laid down — that a lawful act upon one's own land may become unlawful by reason of an improper motive. It is, perhaps, fair to say, however, that the tendency of the courts is to extend liability for purely malicious acts which would not be unlawful if done without the sole intent to injure. Torts — Trespass — Injury to Cattle by Eating of Poisonous Tree wholly wii HiN Neighbok's Boundary. — Plaintiff and defendant were adjoining proprietors, their estates being separated by a ditch and a fence. Both the ditch and the fence were on the defendant's land. The plaintiff's property abutted on the ditch, on the other side of which, and some feet within the defendant's boundary, ran the fence. Inside the fence, on the defendant's land, grew a yew tree, the branches of which overhung the ditch, but no part of which extended to the plaintiff's boundary. There was no obliga- tion on either side to fence. The plaintiff's horse ate of the branches of the tree and died therefrom. In an action to recover the value of the horse, held, that the defend- ants are not liable, as there is no duty on them to prevent their neighbors' animals from having access to the tree. Panting y. Noakes et al., L. R. [1894], 2 Q. B. 281. No other decision was possible on the facts. If the defendant had been under obli- gation to fence, and from neglect of this the injury had happened, the plaintiff could have recovered. Lawrence v. Jenkins, L. R. 8 Q. B. 274. But the horse in this case is a trespasser, and the defendant is under no b ability to keep his premises in safe condi- tion for trespassing animals, provided he does not wilfully entice them to their destruc- tion. Jorditi V. Crump, 8 M. & W. 782. The plaintiff endeavors to bring his case within the authority of Fletcher v. Rylands, but the court disposes of the point by observing that the authority of that case is applicable only when some dangerous substance escapes from the defendant's land, while in the main case it is admitted that the poisonous branches were wholly within the defendant's boundaries. Trover — Passing Title by Judgment. — Plaintiff recovered judgment in trover in Connecticut. Failing of satisfaction, she bought replevin in Massachusetts. Held, by a divided court, four judges against three, that the action could be maintained. Title does not pass to defendant in trover until satisfaction of judgment. Miller v. Hyde, 37 N. E. Rep. 760 (Mass.). See Notes. Trusts — Can a Murderer acquire Title by his Crime.' — A. murdered bis daughter, obtained her property by descent, and sold to the defendants, who had notice of his crime when they bought. Held, that they acquired a good title. Shellenberger v. Ransom, 59 N. W. R. 935 (Nebraska), reversing s. c. 47 N. W. R. 700. See Notes. Trusts — Deposit of Check for Collection. — The plaintiff deposited in bank A. a check payable to his order indorsed " for deposit to the credit " of the