Page:The Green Bag (1889–1914), Volume 06.pdf/277

 250

and though the law licenses the saloon, it does not excavated from the garden a space of about forty-six thereby confer the right to injure adjacent property. square yards for the construction of an underground The law cannot authorize the creation or maintenance urinal, with ., roof of brick, cement, and glass, and of what is confessedly injurious to any man's property having its entrance through the retaining wall. The unless a public benefit transcending the particular corporation contended that this structure was no injury is thereby received. A saloon is a nuisance breach of the covenant, as the garden or open space at law, and the person whose property is injured, would still remain " open and unbuilt upon " so as to thereby is entitled to recover from the keeper dam allow of the free access of light and air, which was ages equal to the injury sustained." This seems to all that the covenant meant or implied, and this was us sound, except the assertion that "a saloon is a the view which the Court of Appeal, affirming Mr. nuisance at law.'' This is certainly incorrect. The Justice Kekewich, adopted. " There is no cove law cannot deem any business a nuisance absolutely nant," said the Court, " that there shall be no build when it is licensed by the Legislature, and the gov ing underneath the surface. We cannot read this ernment derives a profit from it. It may be a covenant as restricting building below the surface. nuisance in spite of all that, but it may not be, and Why might not the defendants have built vaults be prima facie it is not. Everything depends on the neath the surface if they only dealt with the surface circumstances of its situation and the manner of con as they were empowered to do?" The case would ducting it. But radically the decision is right, be obviously be met by the addition of two words to the cause such a business is certainly not entitled to any common form, making it run " open and unbuilt more favor than a perfectly lawful business, like a upon or under." A little more prepositional foresight livery stable, a slaughter-house or a brick-kiln, and if was needed. these injured adjacent property their proprietors would be answerable in damages. A Novel Copyright Claim. — Decidedly the most singular copyright claim ever urged was that described in the following, from the " London LawWager Insurance. — Another very novel case is Journal " : — Trinity College v. Traders' Ins. Co., North Carolina "In the case of Hanfstanegl v. Empire Theatre Company Supreme Court, 18 S.E. Rep. 176, in which it is (Lim.) Mr. Justice Stirling last week decider), upon an held, very properly, that a church has no insurable interlocutory application, an interesting point under the interest in the life of an attendant upon its services Copyright Act, 1862. The plaintiff moved for an interim such as will sustain an insurance upon his life pro injunction to restrain the defendants from infringing his cured and paid for by the church. If the insured copyright in five pictures painted by foreign artists. What himself took out the policy and paid the premiums, the defendants, according to the plaintiffs case, had done and assigned it to the church, it would be valid un was to represent the principal figures in the pictures in der the decisions of New York, Massachusetts, Wis question by living persons, with backgrounds painted in consin and Pennsylvania, but invalid under those of imitation of those in the originals. Was there an infringe ment on the plaintiffs copyright? Mr. Justice Stirling held the United States Supreme Court, Indiana, Kansas that, in so far as the live figures were concerned, it was and Michigan. The principal case presented a very not; and we agree with him. The backgrounds, of course, dangerous industry — it afforded an irresistible temp may be an infringement if they are colorable imitations of tation to the clergymen to scare the insured to death the originals. We need not linger over that point. But by preaching of "judgment to come." for the suggestion that the representation of the figures in the originals by living persons was, or could be, an in fringement of the copyright no authority was given; and there is, if we mistake not, tolerably strong authority on "Open and Unbuilt upon." — The dangers of the other side, apart from the question whether, under the definition are strikingly illustrated in Graham v. Cor Copyright Act of 1862, reproduction in a form of sufficient poration of Newcastle-upon-Tyne, 67 L. T. (N.S.) permanence to permit of ' multiplication ' is not a sine </u:i 790 where a conveyance was made to the purchaser nan to infringement. Dicks v. Brooks, 49 Law J. Rep. of a house situated on one side of a square, the centre Chanc. 812; L. R. 15 Chanc. 22, in which a Berlin-wool pattern of an engraving of Millais' ' Huguenots 'was held of which was much higher than the street, and was not to be an infringement, as it did not imitate anything supported by a retaining wall. The conveyance con that constituted the work of the engraver, is practically on tained an agreement by the Corporation of New all-fours with the present case." castle, the vendors, that the garden or open space in question was for ever thereafter to be kept " open and unbuilt upon." The corporation afterwards cut a hole in the wall opposite the plaintiffs house, and

In our judgment the plaintiff ought to have en couraged the show : it was an excellent advertise ment of his paintings.