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the marriage of X. to A. was valid and was in full force at the date of her marriage ceremony with B. The doubt in the mind of the inquirer arises, we assume, from an apprehension that some suspicion of collusion might attach to the suit, as C. would be supposed to be acting in the interest of his wife, the defendant in the action. But such apprehension, we think, is_groundless. X. could, we think, maintain the action of annulment as well as B., and we do not see why the husband of X. might not with propriety bear a part or even the whole of the expense of a suit, no matter by whom instituted, which will serve to remove an apparent impediment to his own marriage.
Title To Ice On Mill Pond.—That the right of flowage belonging to the owner of a dam does not carry with it the right to take ice from the stream above the dam, although they have a right to an undiminished amount of water, is the conclusion of the Court of Appeals of New York in a recent decision.1 The Court say:
"The true rule is correctly stated by Mr. Farnham in his elaborate treatise on the Law of Waters and Water Rights (volume 2, p. 1603) where he says: 'As between the owner of the soil and one having a right to flow the land for creating a water power, the title to the ice is in the former.' As against the owner of the easement of flowage, the owner of the soil has the right to remove the ice which forms over his land, subject to the qualification that he must not thereby damago the mill privjlege. There was no question of damaging 'the mill privilege In the present case, as the owner of the mill privilege was the person endeavoring to remove the ice. A somewhat different view seems to have been entertained at one time by the courts of Connecticut. Thus in Mill River Woolen Mfg. Co. v. Smith, 34 Conn. 462, decided in 1867, it was held that the owners of the water of a mill pond owned the ice formed upon it, and that the riparian proprietors had no right, as owners of the soil, to remove it. The doctrine thus declared, however, must later have undergone considerable modification in that jurisdiction for in the case of Geer v. Rockwell, 65 Conn. 316, 32 Atl. 924, decided in 1895, we find Mr. Justice Baldwin, one of Connecticut's ablest judges, saying: 'Under an ordinary flowage petition the plaintiff acquires a perpetual right to build and maintain a dam, but this does not constitute him the proprietor of the ice which may be formed upon the pond. On the contrary, such ice belongs to the proprietor of the lands overflowed, subject only to the right of the mill owner to have it left to melt where it is, if this be necessary to maintain a proper supply of water for his mill.' But whatever may be the Connecticut doctrine, the rule generally recognized elsewhere is that the privilege of flowage or pondage does not carry with it the right to take ice formed over the land of an adjoining riparian owner; that right may be exercised by the latter, except so far as it may operate to the detriment of the mill privilege. Such is the law as established in Maine, Pennsylvania, Illinois, Indiana, Michigan, Wisconsin, and Nebraska. A riparian owner above a mill dam has the fixed and well-defined right to take ice from the stream where it flows over his land. The owners of the mill dam cannot avail themselves of such right, notwithstanding the fact that their action may be said to have rendered its exercise possible. 'It is not a purpose recognized by law for which a person's land can be appropriated by another, but it is a privilege attached to and becomes a part
i Valentine v. Schawtz, 109 N. E. 866. VOL. L. 19
of the property' of the upper riparian owner. Steens v. Kelley, 78 Me. 445, 450, 6 Atl. 868, 57 Am. Rep. 813. The rule laid down in this Maine case was expressly adopted by the Supreme Court of Pennsylvania in Searle v. Gardner, 13 Atl. 835. That ice forming upon water belongs to the owner of the soil beneath the water is declared to be the general rule by the Supreme Court of Illinois in Washington Ice Co. v. Shortall, 101 111. 46, 40 Am. Rep. 196. Where the dividing line between two adjacent land owners runs through an artificial pond raised by a dam across a natural stream, the Ice formed upon such stream belongs to the owners of the land forming its bed. State v. Pottmeyer, 33 Ind. 402, 5 Am. Rep. 224. 'The right to maintain a mill dam and exercise the privileges belonging thereto . . . does not confer the right to take ice formed thereon.' Julien v. Woodsmall, 82 Ind. 568. In Bigelow v. Shaw, 65 Mich. 341, 32 N. W. 800, 8 Am. St. Rep. 902, it is said: 'The owner of the soil under the water is ordinarily the sole and exclusive owner of the ice forming upon such water. . . . and in all the reported cases that I can find, except two, it is expressly held, in a case like the one at bar, that the land owner has the exclusive right to the ice, and to gather and sell It for his own benefit, provided he does not thereby impair, to a perceptible and substantial extent the flow of water for mill purposes, and that the mill owner has no right whatever to such ice. This right . . . grows out of the title to the bed of the stream, and such use of the water as results therefrom.' It is settled in Wisconsin that the title to the bed of a stream is in the riparian owners whether the stream be navigable pr not. 'Ice which forms on streams or ponds, the bed of which is subject to private ownership, belongs to the owner of such bed, and such owner may maintain trespass for its removal.' Reysen v. Roate, 92 Wis. 543, 66 N. W. 599. In Eidemiller Ice Co. v. Guthrie, 42 Neb. 238, 60 N. W. 717, 28 L. R. A. 581, the Supreme Court of Nebraska has said: 'Both reason and precedent support the doctrine that the riparian owner has the right to use all the water which it is necessary for him to employ for any purpose and to cut and remove the ice which may form upon the stream adjoining his lend, in any quantity or to any extent, for his own use, or to store for sale, provided he does not, by so doing, diminish or decrease the flow of water to the mill below what is required to successfully operate or run the mill.' There is a class of ice cases in which it is held that one who does not hold title to the bed of a pond may nevertheless acquire by prescription the right to take ice therefrom as a profit a prendre or easement appurtenant to the land. Such a case was Hinckel v. Stevens, 165 N. Y. 171, 58 N. E. 879. The existence of any such prescriptive right in favor of the owner of the mill dam in the present case is negatived by the findings of the trial court."
Prohiriting Dense Smoke In City.—The Supreme Court of Michigan declares to be void an ordinance of the City of Detroit prohibiting the emission of dense smoke from any smoke stack used in connection with any steam boiler in any building, boat or any other structure. The comj>lainants were the owners of steamboats on the Detroit River and a lower court had ruled that the smoke might be prevented by the use of appliances for smoke consumption and that the ordinance was enforceable. But the Supreme Court reverses this ruling on the ground that the evidence of expert marine engineers showed that there was no known appliance which could be used upon marine boilers to prevent the emission of smoke,
and the Court added that its invalidity was not a bar to a future prosecution if practical and efficient appliances were discovered, or to liability for a common-law nuisance. Steere, Judge, said:
"Recognizing the importance of this case not alone to the owners of vessels plying upon the Detroit river within the corporate limits of the city of Detroit, but to the city of Detroit itself, we have given careful attention to the testimony introduced relative to the practicability and efficiency of the appliances used for the prevention of smoke in marine equipment in the present state of the art. We think it fair to assume that the conclusion reached by the learned judge who tried the case below was based upon his belief that the Jones underfeed stoker had reached such a state of perfection as to make its installation in marine practice feasible and reasonable, and the results to be obtained therefrom satisfactory. That testimony related to five boats, only, where such installation had been made. It would be of no avail to set out the voluminous testimony upon this question. It is sufficient to say that to our minds it is far from convincing. In some instances it is clear that the appliance, after its installation, has been removed, and in all instances the results obtained are not left entirely free from doubt. The expert testimony introduced upon the question, while not conclusive, strongly persuades us to the view that up to the present time no device has been invented which within the confined space available for installation in marine practice is adequate for the elimination of smoke so long as the consumption of bituminous coal is permitted. Mr. Frank E. Kirby, whose opinion seemed to have controlled—or at least largely influenced—th'e judgment of the court below upon the former trial, testified in the case at bar as follows: 'There is no efficient device that is known to me for the prevention of smoke in marine practice.' Mr. Kirby is known as perhaps the most experienced designer of vessels for use on inland waters in the State of Michigan. Prof. Frederick C. Saddler of the University of Michigan, an expert of distinction, testified as follows: 'I do not know of any device with which a marine plant can be equipped at the present time that would operate successfully under marine conditions and eliminate the emission of smoke in the operation of the vessels on the Detroit river here and the ferry service. . . . Q. Will you state whether in your judgment, from the investigation and studies you have made, it is possible to construct a steamer for passenger service on the Detroit river and equip it with any device—the Jones underfeed or any other—that when so equipped will be efficient for operation and service and comply with all the government requirements for operation? A. I do not know of any such device.'
"Testimony to the same effect was given by the following persons: Peter McLaren, chief engineer for 20 years of the Walkerville ferry line; Frank W. Stogell, superintendent of Hiram Walker & Sons, Ltd., an engineer for 15 years; Edward A. Dustin, manager of the Ashley & Dustin Steamer Line; Arthur J. Fox, of the same line, a master and pilot since 1874; J. P. Wells, of the Detroit & Cleveland Navigation Company, a marine engineer for 25 years; Winfield Dubois, a marine engineer for 35 years, with the White Star Line; James D. Stewart, a marine engineer for 20 years and for 3 years operating a Jones underfeed stoker; Minton Sicklesteel, a marine engineer for 10 years with the Detroit and Cleveland Navigation Company; George F. Moore, an employe of the city of Detroit, and marine engineer for 15 years and engineer of the fire tug James F. Battle, and A. G. Matteson, chief engineer of the Grand Lakes Engineering Works. It is perhaps worthy of note that the fire tugs James F. Battle and James R. Elliott, belonging to the city of Detroit and operating upon the Detroit River, are not equipped with either the Jones underfeed or any other smoke-consuming device. Taken in its entirety, we are convinced that the testimony as to the Impracticability of the Jones underfeed in marine practice fairly sustained the position of defendant."2
Changing Penalty Prom Hanging To Electrocution.—A South Carolina murderer had been convicted and sentenced to death. When the crime was committed the punishment for one found guilty of murder without recommendation to mercy was death by hanging within the county jail, or its inclosure, in the presence of specified witnesses. A subsequent State Statute prescribed electrocution as the method of producing death, instead of hanging, fixed the place therefor within the penitentiary, and permitted the presence of more invited witnesses than had before been allowed. It was argued before the Supreme Court of the United States that a statute enacted subsequent to the commission of a crime which undertakes to change the punishment therefor is ex post facto and unconstitutional unless it distinctly modifies the severity of the former penalty. But the Court refused to hold that the statute was unconstitutional, Mr. Justice McReynolds saying:
"Impressed with the serious objection to executions by hanging and hopeful that means might be found for taking life 'in a less barbarous manner,' the governor of New York brought the subject to the attention of the Legislature in 1885. A commission thereafter appointed to ascertain the most humane and practical method of inflicting the death sentence reported in favor of electrocution. This was adopted by the statute of 1888, and, with the approval of the courts, has been in continuous use since that time. Re Kemmler, 136 U. S. 436, 34 L. ed. 519, 10 Sup. Ct. Rep. 930, 119 N. Y. 569, 7 L. R. A. 715, 16 Am. St. Rep. 859, 24 N. E. 6.
"Influenced by the results in New York, eleven other States? have adopted the same mode for inflicting death in capital cases; and, as is commonly known, this result is the consequent of a well-grounded belief that electrocution is less painful and more humane than hanging. The statute under consideration did not change the penalty—death—for murder, but only the mode of producing this, together with certain nonessential details in respect of surroundings. The punishment was not increased, and some of the odious features incident to the old method were abated."4
Master's Liarility For Furnishing Impure Water.—The Supreme Court of Wisconsin decides that under the Workman's Compensation Act of that State declaring that liability for the compensation provided for in lieu of other liablity shall exist against an employer for any personal injury accidentally suffered by an employe, where an employe is performing a service growing out of and incidental to his employment, the right to compensation for the
2 People v. Detroit Ferry Co., 153 1910; South Carolina, 1912; Arkan
N. W. 799. sas, Indiana, Pennsylvania and Ne
s Ohio, 1896; Massachusetts, 1898; braska, 1913.
New Jersey, 1907; Virginia, 1908; 4 Malloy v. State, 35 S. C. Rep.
North Carolina, 1909; Kentucky, 507.
death of an employe resulting from typhoid fever caused by the furnishing of polluted drinking water falls within the act; the disease being incurred as an incident to the employment and the death from the disease being an accident.5
Prohiriting Advertisements Of Treatment Op Certain DisEases.- A statute of Oregon prohibiting the advertising of the treatment or cure of venereal diseases is declared constitutional by the Supreme Court of that State.
"The next point presented is that the act is unconstitutional and void, in that it is class legislation, and is a violation of the constitutional guaranty of equal protection of the law. This may well be considered in connection with the final proposition that the act is void because it is not within the legitimate scope of the police power of the state and is a violation of the constitutional provision that no person shall be deprived of life, liberty, or property without due process of law. For many years it has been recognized by publicists and legislators .that some drastic action is necessary to check certain social evils and to protect youthful and inexperienced humanity, not only from easy access to vicious and immoral practices, but also from the schemes of designing men, who, for the sake of financial profit, would prey upon the calamities of the unfortunate who have sowed the wind and reaped the whirlwind. Further than this, it has been thought that the act of spreading broadcast, by means of advertisingj the idea that certain venereal diseases are easily and cheaply cured, is against public policy, in that it has a decided tendency to minimize unduly the disastrous consequences of indulging in dissolute action. These views were evidently the moving principle of our legislators in the passage of the act under discussion. The purpose of the act is clearly in the interest of the public morals. It is not class legislation, for it applies to all who may be engaged in a like business." 7
Presumption From Possession Of Barrel Of Whiskey.—The Court of Appeals of Georgia rules that in the absence of any circumstance indicating the purpose for which it was to be used, mere possession of a barrel of whiskey will not authorize a conviction of the violation of a municipal ordinance prohibiting the keeping of intoxicants for the purpose of illegal sale. That the quantity of intoxicants in one's possession is unusually large is a circumstance which may be considered, with other facts and circumstances in a case, in determining tie purpose for which the intoxicants are kept,
« Vennen v. New Dells Lumber "State v. Hollingshead, 151 P. Co., 154 N. W. 640. 710.