Page images

of Lord Wensleydale in Chasemore v. Richards, 7 H. L. Cas. 349, that in that case, in 1859, for the first time the House of Lords decided upon rights in underground water.

This was the celebrated case of the draining of the percolating water constituting the sources of the river Wandle, by digging a well to supply the poor of a town. It seems rather ludicrous to an American reader to think of a river being tapped in that way; but the matter has given rise to an interesting discussion, in which several ex-chancellors and many judges have taken part, and of which Dr. Smee has written a lively account in his book called My Garden. But when this is stated, that a man may cut off percolating water; and so leave dry his neighbor's well, this is nearly all that is yet reached by the courts on this head, and most courts timidly add, “provided it be not done maliciously," which sounds very like Mr. Justice Shallow. Indeed, the cases in 1836 and 1845 quoted above state this proviso; but it is hoped that the bolder doctrines of Chatfield v. Wilson, 28 Vt. 49, 8. c. 31 Vt. 358, will prevail henceforth.

In that case the defendant, an amiable citizen, who found his neighbor had sunk a barrel in his own land, but near a swamp of the defendant, and from which he imagined the supply of water percolated to the plaintiff's barrel, dug a trench in his land, which he filled with clay, effectually cutting off the supply. It was held he had a right so to do if he pleased, and no inquiry into his motives was allowed. The Supreme Court of Massachusetts has said in one case, qui utitur jure suo neminem lædat;” and we hope the practice of trying immaterial issues by inquiring into the motives of persons exercising confessedly legal rights will be exploded.

Upon reading this very interesting chapter, which is in a measure new, we have been struck with some surprise that no case has arisen with regard to rights in subterraneous deposits of petroleum, and upon this subject the author says nothing. We should have supposed the courts of the great State of Pennsylvania would have had occasion to investigate and decide questions of this character. It is obvious that the analogies governing rights in underground waters will be resorted to to settle conflicting claims in petroleum wells; and it is obvious that if the flowing of the fifty-barrel petroleum well may be cut off by an ingenious geologist, who knows how the land lies, the most important rights are to be acquired or lost. This, of course, upon the theory that petroleum percolates. If, however, it flows in streams under the earth, which are well defined, then analogies drawn from rights in natural surface watercourses may govern. If it exists in underground ponds or reservoirs, who can say what are the rights of adjoining proprietors, or whether he shall win the prize in the race of diligence who has the longer pump and the more powerful steam-engine? The right of draining and turning surface water from land is also a matter of very interesting discussion in a chapter of this book; and although the authorities are in great confusion as to whether the owner of the lower tenement may arrest the natural flow of the water on to his land by erecting barriers, the one class of cases holding that nature must be undisturbed, as in the case of surface watercourses with well-defined banks and beds, the other, that men must be allowed to build houses and improve their fields, and the injuries incident to such uses are as to neighbors damna absque injuria, we think the necessities of the community will finally tell in favor of the latter doctrine.

Discussions of the doctrines of easements by implications, of rights of support and rebuilding or repairing, of water-drip, of the rights which several have to mutual easements in the enjoyments of lands laid out on one and the saine plan contemplating the common enjoyment of certain privileges, give great additional interest and value to this work; and, as a matter of interest, we have felt, in reading Professor Washburn's book, the sort of excitement one feels in reading a succession of curious anecdotes, such as is developed sometimes by the perusal of a column of the law reports in the London Times. Indeed, easements are the theme of the novelist. The cases develop personal relations, personal difficulties and quarrels and lawsuits, for the fun of the thing, - begun frequently in temper, and continued, without regard to the expense, from obstinacy, - like Sir Leicester Dedlock's claim of a right to walk through Mr. Boythorn's garden, the exercise whereof was always resisted by the use of the garden-engine. The profession should buy this book. There is no department of litigation upon which men spend so much money, in proportion to the value at stake, as in the vindication and resistance of claims of easements and servitudes. We remember when Mr. Pickwick was introduced to Sergeant Snubbin, that gentleman was found "deeply engaged in the investigation of a lawsuit arising from the act of an individual who lived a couple of centuries ago in stopping up a way which led from a place no one ever came from, to a place which no one ever wished to go to."

And with the laity, gossips sitting by the fire get talking of their rights and the encroachments of their neighbors, and egg each other on to bring their cases before the fifteen, like the barratrous Bartoline Saddletree in the Heart of Midlothian, who mentioned a case then pending in Edinburgh of tillicidian (supposed to be the stillicidium or water-drip of the civil law), arising from the act of a Highland lass, employed by the owner of the dominant tenement, "who flashed something, the deil kens what, out of the window on to Luckie McPhails,” and, said Bartoline,“ Luckie McPhails would have settled it, upon the lass apologizing and saying she did it out of respect of two Highlandmen, who were talking Gaelic in the street below; but I came just in time, and said, • Haud ye there, it's a pity it should not go before the fifteen.'In this we see the town of Edinburgh in the rosy light of antiquity, when all the drainage was surface drainage, and the cry of gardeloo (gardez l'eau) warned the belated passer of the easement every abuttor had in the highways and wynds of Auld Reekie. It may not be improper to conclude this notice by quoting Mr. Evarts’s witty remark: “When one sees these laughing brooks he would scarcely think it was actionable to divert a watercourse."

The Law of Insurance, as applied to Fire, Life, Accident, Guarantee, and other

Non-maritime Risks. By John WILDER MAY. Little, Brown, & Co., Bogton. 1873.

It has long been known to the bar of which Mr. May is a member that he has been engaged in the preparation of a work upon the subject of insurance.

The time which has been spent by him in this labor, exceeding twice the number of years which Horace recommends the author to keep his work in hand, has led his professional brethren to expect results of no little value from the diligent use of such leisure as he has enjoyed from the employments of a busy life spent in active practice at the bar, and in the engagements of his office of prosecuting officer of the county of Suffolk.

A work of nearly eight hundred pages, the product of this his avocation, followed apparently with loving care and patient research, has now paid the debt which every lawyer is said to owe to his profession. The subject of insurance is no new one ; indeed, it is one of the oldest branches of the law of contracts. But while the author has been placing the extremam manum to his work, the law of some kinds of insurances has been finally settled, and new kinds of insurance have sprung into existence. Our writer proposes to himself the task of “ treating (so far as it may be done within an ordinary volume) the law of insurance, as applicable to non-maritime subject-matters, to meet the requirements of those engaged in the various branches of the business, the student, and the practising lawyer," and arranging the same with method and completeness. He has attempted, as he tells us, a studious brevity in the statement of the earlier questions which may be deemed settled, and greater fulness in treating those which are regarded as new, or as undergoing the processes of elaboration, such, for example, as liability for loss by explosions, how far suicide is a defence in an action upon a life policy, and the law of accident insurance.

The work is divided into twenty-six chapters, and these divisions adapted with such regard to legal perspective as to display the scope and theory of the whole book. The nature, form, consideration, and subject-matter of the contract occupy each one of the first four chapters. The next five treat of agents, • warranties, representations, and concealment. Seven chapters are given to special provisions of the contract. Then follow chapters on assignment, the risk, adjustment, notice and proof of loss, limitation of suits, waiver. Chapters 23 to 25 are given to accident insurance, guarantee and kindred insurances, and mutual insurance; and the last chapter treats of remedies, evidence, pleading, and bankruptcy..

Insurance is defined by Mr. May as "a contract whereby one, for a consideration, undertakes to compensate another if he shall suffer loss." This is said to be the substance of the definition of Roccus, but for compactness and simplicity the English much excels the Latin definition given by that author. The contract is called aleatory, personal, and conditional. We may say that this definition does not seem to us to cover what is usually called life insurance. Life insurance is not a personal contract, in the sense of being an agreement to pay the person whose life is insured ; the stipulated sum is paid to representatives, or to a person designated, other than the “ assured.” It is not aleatory in the sense of being a wager, because the stipulated sum must certainly be paid, provided the consideration, to wit, the premiums, are paid. It is not a contract of indemnity, for no one can be indemnified for the loss of his own life; and the early French authors, in giving a reason why such a contract is against public policy, say the life of a freeman is above all price. “ All a man hath will he give for his life.” It is well enough understood what we mean by life insurance; but this contract differs from all other aleatory contracts of indemnity for loss usually called assurances. The usual contract in a life policy is that the assured shall pay a certain sum per annum, called a premium, during life. These sums, put at interest, will amount, reckoned by life tables, at the time of the death of the assured, to a certain amount, which the insurance company agrees to pay to the representatives of the assured (or to the assured himself, upon the so-called endowment policy). Now this is merely an inversion of a common annuity. When one purchases an annuity, he pays a round sum, for which the recipient, or annuity office, agrees to pay him a certain sum per annum. This sum is also determined by the same life tables. It would be just as logically accurate to call an annuity contract a life insurance policy, or to call it, as it is, the converse of the former, – a death insurance policy.

An accident policy may well be classed with those contracts included in the definition, but we do not think it covers the life insurance policy, so called.

However, it is now too late to dispute about terms, and, instead of being treated with annuities, contracts of this kind will continue to be considered as governed by the rules of insurance on shops and houses.

One test of the value of a law-book is by reference to it for information upon the subjects which have lately been called to the attention of a lawyer in his practice. Applying this rule to this book upon the following subjects, we find, on pages 491, 492, a full statement of the law governing the removal of goods to preserve them from burning, including losses by theft and injuries; and in the note are collected, we believe, all the late authorities. We think the law laid down in the text has governed the settlement of losses occurring in Boston and Chicago at the time of the great fires in those cities, and that it is one which will commend itself to the sense of underwriters as well as the insured.

The subject of suicide, or death by one's own hand, we find treated in a most elaborate and satisfactory manner in Chapter XIII., from page 342 to 385. This is a subject of interest to almost every practitioner, and one in which the authorities have been conflicting. The last and most important case of Terry v. The Insurance Company, now reported 15 Wallace, but referred to by Mr. May as contained in the 1st Dillon, and in the Albany Law Journal, May 17, 1873, is very fully discussed, the opinion of Mr. Justice Hunt being largely quoted. We notice, however, that no mention is made in this chapter of the fact that Mr. Justice Hunt overrules in a dictum a decision of the Supreme Court of Pennsylvania, — Hartman v. Keystone Ins. Co., 21 Pa. 466, – in which it was said that if the policy contained no suicide clause, so called, yet voluntary suicide would prevent a recovery upon the policy. We had supposed there was an implied covenant that the insured should not bring to pass the event which entitles him to recover. This has been the understanding of the English judges; and although there is no covenant in a marine policy that the ship-owner shall not cast away his ship, yet he cannot recover for its loss if he do so.

The Supreme Court of the United States is made to assert that a man may bargain with an insurance company to pay him any amount if he will take his own life.

We have found the chapter on the powers and duties of agents to contain a full collection of the cases upon the subjects of which it treats, which we had before made a subject of investigation, and the tendency of the law to treat agents of foreign companies as possessing general authority to bind their principals, as indicated by the case of the Insurance Co. y. Wilkinson, 13 Wall., pointed out. The conflicting authorities upon the right of an agent, by accepting payment of premiums, or agreeing to pay the same himself, to bind his company, are exhibited in an exhaustive note, page 136.

Upon page 536 we find a statement of the doctrine of contribution in cases of double insurances and identity of risk stated; and we find, what we had not learnt in a somewhat careful investigation heretofore, that the case of Howard Ins. Co. v. Scribner, 5 Hill (N. Y.), 298, had been repudiated in New York by a decision in December, 1872.

The rule of the earlier case was this, that if there were insurance of $1000 on fixtures, of $3000 on stock, and $5000 on both stock and fixtures, that here is no double insurance, and recovery might be had on the first to its full amount without reference to the other insurance.

Within a year, in spite of Blake v. The Exchange Mutual Ins. Co., 12 Gray, 265, a rule called, we believe, “ the Albany rule” has prevailed on State Street. It was this, that if A. had a policy on stock for $1000, on stock and fixtures for $1000, and the stock alone was destroyed by fire, each policy must contribute equally. If the Albany rule rested upon the case of Howard Ins. Co. v. Scribner, it must now be abandoned, even in New York. The correct rule is, that so much of the latter policy must be regarded as on stock as the value of stock bears to the value of stock and fixtures ; suppose stock and fixtures to be equal, then the $1000 policy is on stock destroyed, and onehalf the second policy say $500, being applicable to stock, in these proportions, must the policies contribute to the loss. We do not find the case of Herckenrat V. Am. Mut. Ins. Co., 2 Barb. Ch. 63, under the law of subrogation or reinsurance. In this case it was decided that the insured could not receive, in equity, the benefit of reinsurance in a solvent company.

The chapter upon limitations of actions upon policies as to time, place, and provisions for settlement by arbitration is very full. The difference of opinion which prevailed in earlier times upon the question as to liiniting the time of bringing suit by a provision in the policy has been settled now in favor of allowing such provisions full effect, whereas provisions as to bringing actions in the state in which the company is situated, and settling them only by arbitration, have been disregarded. We think the former question might well have been decided otherwise, as a matter of policy, and many persons would have been saved from loss, from mere inadvertence or mistake in not commencing suit, and many companies have escaped the costs of litigation, which had to be begun before the proper inquiry was made. We have taken these subjects at random; we find the treatment of all, except one above referred to, full, clear, and exhaustive. The author's style is lucid and vigorous, and the addition made to the store of American text-books is a valuable one. The

[blocks in formation]
« PreviousContinue »