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argue, as the court does in the case under consideration, that there was no technical trespass.” The railroad company shook the walls of the plaintiff's house asunder; and how they could do that without a technical trespass does not readily appear. A trespass committed by explosions, caused by powder and dynamite making such atmospheric and terrestrial vibrations as will shake a dwelling-house to pieces, cannot be distinguished from a bombardment by pieces of stone which pounds it to pieces, except by the most refined judicial casuistry.
The court concludes its most unjust opinion in the following language: "Public policy is promoted by the building up of towns and cities and the improvement of property. Any unnecessary restraint of freedom of action of a property owner hinders this. The latter is interested also in the preservation of property and property rights from injury. Will it, in this case, protect the plaintiff's house by depriving the defendant of his right to adapt his property to a lawful use, through means necessary, usual, and generally harmless? We think not.” We think exactly the reverse. Public policy is indeed favorable to the building of railroads. They are a public necessity, notwithstanding the fact that their owners frequently oppress and defraud the people and corrupt their official agents. The building of a railroad is a public enterprise. It is a matter of public benefit. It is in the interests of commerce. The public and commerce are entitled to have it built; but neither the public nor commerce is entitled to destroy the rights of private owners in building it without indemnifying them. Commerce ought to have the amplest facilities; but commerce ought to pay for them. Commerce can easily pay for them and recoup itself in increasing tolls upon the public, who are ultimately benefited by the improvement. Whatever the rule might be in regard to the right of a private coterminuous land-owner to shake his neighbor's house to pieces by blasting rocks upon his own premises, no such privilege ought to be accorded to a railroad company, for the very reason that it represents the public, and the public, through it, are able to pay damages for the property thus injured or destroyed.
TRANSFERABILITY OF A POLLMAN SLEEPING-CAR TICKET. -- We find in the Daily Record (Baltimore) for October 15, an interesting opinion by Ritchie, J., of the Superior Court of Baltimore, Maryland, holding that
1 140 N. Y. 280. We regret to find that the Supreme Court of West Virginia have lately fallen into the same miserable doctrine. Watts v. Norfolk
&c. R. Co., 39 W. Va. 196; 8. c. 19 S. E. Rep. 521; 23 L. R. A. 674; 57 Am. & Eng. R. Cas. 694.
the purchaser of a section in a Pullman sleeping-car for a given trip has the right, on leaving the train, before he reaches his destination, to transfer the use of his section to another first-class passenger for the rest of the trip for which it was sold,- there being no restrictions on the ticket against such transfer. In the course of his opinion, Judge Ritchie says:
There is nothing in the fact of a reduced rate which implies non-transferability. It may well be that the company prefers by one transaction to sell a section for a long trip at a reduced rate, rather than chance its sale at higher local rates to several successive purchasers between intermediate stations. It is settled that the usual return coupons of round-trip excursion tickets, which are always sold at reduced rates, are transferable. And where a through straight ticket over several roads is sold at a reduced rate, the passenger at the end of any one road, may transfer any remaining coupons. The condition on a railroad ticket that in consideration of a reduced rate it is not transferable is good, but non-transferability will not be implied from the mere fact of a reduced rate. If the reduced rate does not affect the right to transfer the railroad ticket, there is no reason why it should prevent the transfer of the Pullman ticket.
It follows from what I have said that, in my judgment, the transfer of the section in question to Mr. Curlander was valid and the ejection of his wife therefrom was wrongful. There being no restriction upon its transfer in the terms of the contract, except as against such as are not first-class passengers, uor in the nature of the contract, or to be implied from any of its conditions, there certainly are no considerations of public policy or convenience which call on the court to so construe the voluntary contracts of this defendant as to enable it, contrary to the wishes of the first purchaser, to sell the same thing twice.
LIFE INSURANCE: IMPLIED CONDITION THAT THE INSURED WILL NOT COMMIT SUICIDE. - In the case of Ritter v. Mutual Life Insurance Co., lately tried before Mr. United States District Judge Butler and a jury in the Eastern Federal District of Pennsylvania. The action was by the executor of a deceased person to recover the aggregate sum of $75,000 upon policies of insurance issued upon the life of the deceased. The defense was that the assured, while sane, committed suicide. We gather from a pamphlet report of the case that there was no stipulation in the policy making it void in case the assured should take his own life. It was conceded after an examination of authorities, that there was nothing to be found on the subject but judicial dicta and that conflicting; and there was no evidence of any custom in the business of
2 Nichols' case, 23 Oregon, 123.
i Carsten's case, 44 Minn. 454; Hoffman's case, 45 Minn. 53; Sleeper's case, 100 Pa. 257.
1 trip ition,
insurance bearing on the subject, -- if indeed such a custom would have been binding upon the beneficiary in the policy. Judge Butler charged the jury that there is in every policy of life insurance, an implied warranty on the part of the person taking out the policy, that the assured will not terminate his own life. The language of this portion of his charge was as follows:
I regret that I must pass on the question without opportunity for examination or reflection. It seems to me, however, that, every contract of life insurance contains an implied condition that the insured will not intentionally terminate his life but that the insurer shall have the benefit of the chances of its continuance until terminated in the natural, ordinary course of events. It is upon these chances that the premium is calculated and based, and the contract is founded. It cannot be doubted that if any one having a policy on his buildings, insuring against fire, should intentionally burn them, his act would be a defense to the policy; nor that one taking a policy on the life of his debtor, whom he subsequently murders, cannot recover the insurance. In principle I am unable to distinguish these cases from that where the insured commits suicide. The fraud upon the insurer seems to me to be as clear in the latter case as in either of the others. A different construction of the policy would seem to make it a contract to pay the insurance immediately if the insured commits suicide; thus offering an inducement to commit this act. If the insured lives out the ordinary term of life, the time of payment may be very remote, and therefore the inducement to commit suicide is very great, if payment follows this event. Of course no insurer would intentionally enter into such a contract; it would be destruction of its interests. His premiums are calculated, and his prospects of gain based on the insured's chances of life under ordinary circumstances; and if the latter may render the insurance payable immediately by committing suicide, the former is completely at his mercy. If, however, an insurer should enter into such a contract, the law would declare it void, because of its violation of public policy. It would seem, in effect, to be a contract to pay money for the commission of suicide.
We assume that the question will be carried to the Federal Court of Appeals, and we could hope that it could be carried to the Supreme Court of the United States. In view of the numerous frauds which are being perpetrated upon insurance companies through suicides deliberately planned, the question has became one of extreme importance. At first blush it would seem that Judge Butler is right in the view which he takes of the question. Clearly, if a policy of life insurance is procured with the design, entertained before hand, of committing suicide, so that the sum assured can pass to the family or the creditors of the person assured, then the policy would be void for fraud. But this would not be so where the policy was honestly taken out, but where the design of committing suicide, for the purpose of procuring for some one the insurance money, was subsequently conceived ; and such appears to have been the case upon which we are commenting.
A BENCH COMPOSED OF ONE THOUSAND JUDGES.
To the Editors of the American Law Review:
The anecdote of U. F. Christy in the September-October number of the REVIEW, in relation to the lay judges of Pennsylvania, reminds the writer of a like story told of the lay judges of Ohio. Under the former constitution of this State the Court of Common Pleas consisted of a president judge who was a lawyer and three associates who were laymen. A wag in attendance on a court thus composed remarked that the Bench was occupied by one thousand judges. Asked to explain, he said that it was composed of one lawyer and three ciphers, making a thousand.
WM, CHAMBERS. CAMBRIDGE, Ohio.
INTERNATIONAL RIGHTS IN THE WATERS OF THE RIO GRANDE FOR
PURPOSES OF IRRIGATION.
To the Editors American Law Revievo:
In regard to "an international question relating to the drawing off of the water of the Rio Grande” mentioned in your September-October, 1895, REVIEW, I mailed on September 12, 1895, an additional report to the State Department as follows:
“I have reliable intelligence, that a petition has been sent to the President of the Mexican Republic, signed by one hundred and seventy farmers of this district, complaining again to their government, and urging the same to claim damages from the United States for the abnormal use of the water of the Rio Grande by American citizens in the State of Colorado and the Territory of New Mexico to the detriment of the farmers of Brazos District, State of Chihuahua, Mexico.
" While there has been no great scarcity of water during the summer, on account of the unusual and exceptionally large amount of rain, still the rainfall did not prove sufficient for agricultural purposes, as this district is located in the center of the arid region, and the husbandman here cannot do any successful farming, unless he has an abundance of water for irrigation. The river is at the present time so low again that the water is hardly enough for three out of the nine irrigation canals, of which four are on the Mexican side, and live on the Texas side.
“ The water for irrigation here being insufficient now, in a year considered exceptionally favorable, there is no doubt, that the water supply is altogether inadequate.
“The Mexican citizens of this district have sustained heavy losses on account of the scarcity of water for the past ten years, and they have expected the United States to interfere with the canal companies in New Mexico and Colorado, and letting the Mexicans have a part of the water of the Rio Grande, to which they claim to be entitled according to the treaty of Guadalupe Hidalgo.
“The inhabitants of this district and especially the farmers, who examined this water question closely, have come to the conclusion, that the great reservoir and dam proposed by Colonel Anson Mills in former years, will do away with all difficulties, and fully answer the purpose; and if the United States could at once proceed to construct the reservoir as proposed by Colonel Mills, the people of this section would, I believe, desist from all claims for damages sustained the past ten years, and in my opinion, would accept the dam, by which they would get half of the water, as an indemnity for their losses.
"I consider it my duty to call the attention of the department to this continuous irritation on account of the scarcity of water here, caused by our people in Colorado and New Mexico.
“ There are no laws as yet in existence about the control of interstate or international streams like the Rio Grande, and the inauguration of laws and regulations to fill this want might greatly advance the friendly relations on this frontier between the United States and Mexico."
You may make use of the foregoing in your REVIEW, if you deem it of interest.
CHARLES E. WESCHE,
[U. S. Consul]. Paso DEL NORTE, MEXICO.