insists on inflicting human beings with should not be tolerated. For instance, an uncontrollable and unreasonable fear of personal violence, and an imaginary belief of having some disease, do not constitute such an insane delusion as will affect the marriage contract:1 while a morbid propensity to steal, whether a form of mental weakness or disease or uncontrollable impulse, is not regarded as such mental incapacity as to annul the marriage.2

The State of Delaware is the limit, for it has gone so far as to hold that a person of weak intellect is competent to marry although he did not fully understand the marriage ceremony, and was unable to read, write, count money or transact business.

3

As to drunkenness, that, like insanity, depends on its existence at the time of marriage; and although a man. may become a miserable drunken sot, spending his time and money in a public-house, and continuing in a morbid state of imbecility after marriage, yet the tired, heartbroken wife has no relief: public policy raises its sign of warning and continues to curse the woman's mortal life with a living death. Should a man be subject to delirium tremens and yet have a lucid interval, and during it marry, the contract in the eyes of the law is regarded as valid, and the wife must support the horrors of a liquor-mad lunatic as the price which the rigours of our social system place on the woman who has obtained a man in wedlock. Some of the methods and subtleties of our civilisation are indeed beyond belief.1

The law relating to the marriage contract is unsatisfactory and in many instances illogical and absurd; it is not based on any firm or consistent principle of justice, but is left 1 Kern v. Kern, 51 N. J., Eq. 574. 2 Lewis v. Lewis, 44 Minn. 124.

8 Elzey v. Elzey, 1 Haust (Del.), 308.

4 Scott v. Paguet, 17 L. C. Ref. 283; Jaques v. Public Admin., I Brad. (N. Y.) 499; Prine v. Prine, 36 Fla. 676; Roblin v. Roblin, 28 Grant Ch. (N. C.) 439.

largely to the discretion of judges. This would appear to be a fundamental error. The law extends its beneficent protection over the blind, the widow, the orphan, the minor, and the weak-minded, and as to them will not tolerate any undue influence, trick, deception, artifice, overreaching fraud, or false representation. How much more are to be pitied those blinded and rendered temporarily mad by the ungovernable passion of love? They are helpless and so far beyond self-control as to be entitled to the same protection the law affords those labouring under some other incapacity.

If by legislation the contract of marriage was brought on a level with other contracts, and the same rules of interpretation and proof applied, Courts would be bound to follow some consistent theory that would put an end to the anomalous condition in which the marriage contract stands to-day and this might be found to a large extent to solve the problem of divorce.

C. A. HERESHOFF BARTLETT.

THE

II. TRESPASS BY AEROPLANE.

HE art of flight has progressed so rapidly, and crosscountry flights are of such frequent occurrence, that the question of trespass by flying over a person's land merges from an abstract subject for discussion into a matter of the greatest practical importance. The following observations discuss (1) the proposition that it is an act of trespass merely to fly over a person's land, and (2) the right of a landowner forcibly to eject a trespassing aviator.

(1) To constitute trespass, which may be defined as the wrongful entry upon or the interference with the possession' of the land of another person, proof of entry either actual

or constructive is necessary. Constructive entry includes every interference or entry other than actual or physical entry, and it is submitted that, on the existing authorities, the flight by an aviator over the land of another without alighting is a constructive entry, and constitutes an act of trespass.

Cujus est solum ejus est usque at Cælum. He who possesses land possesses also that which is above it, but whether the owner of land can maintain an action for trespass against a man who uses the air above his land by flying in an air-machine has been doubted by Lord Ellenborough, but affirmed by Lord Blackburn. In Pickering v. Rudd,1 where the defendant nailed to his own wall a board so as to overhang the plaintiff's close, it was held by Lord Ellenborough that an action for trespass would not lie against a man for interfering with the column of air superincumbent on a close, but that the proper remedy for any damage arising from the board overhanging the close would be by an action on the case; otherwise it would follow that an aeronaut would be liable to an action of trespass quare clausum fregit at the suit of the occupier of every field over which his balloon passed in the course of his voyage. Lord Ellenborough's dictum was questioned fifty years later in Kenyon v. Hart, wherein Blackburn, J. (as he then was), said, "I understand the good sense of that doubt, though "not the legal reason of it"; and it is difficult to see how Pickering v. Rudd is an authority of assistance to the argument that flight over a person's land is not an act of trespass. From the judgment of Lord Ellenborough it is clear that he was of opinion that, although no action of trespass would lie, the proper remedy would have been by an action on the case. It must not be forgotten that this case was decided in the year 1815, when, as was recently observed in the Court of Appeal, the form of an action was 1 [1815], 4 Camp. 219. 2 [1865], 6 B. & S. 249, 252.

of the utmost importance in the eyes of the Court, and when there was no machinery by which an action of trespass could be turned into an action on the case. The old distinction between an act which itself occasioned a prejudice and an act a consequence from which was prejudicial, was abolished by the rules of the Supreme Court under the Judicature Acts, and the one action of trespass now covers both an action of trespass and an action on the

case.

It is submitted that the occupier of land is entitled to the free user of the air above his land. Although there is no right to air under the Prescription Act, or as an easement by prescription from the time of legal memory, it has been held that a vestry or a board of works in whom is vested the management and control of the streets situate within their district are entitled to so much of the air above the streets as is compatible with the ordinary user thereof. In Wandsworth Board of Works v. United Telephone Co.1 the defendants suspended from chimneys telephone wires across a street. An injunction restraining the defendants was granted by Stephen, J., which was dissolved by the Court of Appeal, the ratio decidendi being, not that the air above the surface of the street was not vested in the plaintiffs, but that although the plaintiffs were entitled to so much of the area which was above the surface as was the area of the ordinary user of the street as a street, the suspension of wires from chimneys did not interfere with the ordinary user of the street in question. It is clear from the judgment of Brett, M.R., that he did not question the law as stated by Lord Coke, and that not only the owner of land under a grant is entitled to the free user of the air above the land, but that the word "street" in an Act of Parliament includes the air necessary for the ordinary user of the street.

1 [1884], 13 Q. B. D. 904.

Moreover, it is common enough to commit trespass by wrongful entry below the ground as by mining, and there seems no reason why wrongful entry above the surface should not similarly constitute an act of trespass. The improbability of actual damage is irrelevant to the pure legal theory, neither is it necessary that there should be force nor unlawful intention; there seems every reason to support the proposition that the mere flight over a person's land is an act of trespass, and that an action would lie against the offending aviator.

(2) The owner of land upon which a trespass is committed is entitled to remove the trespasser, and may use in so doing that degree of force which is necessary to eject the wrongdoer. The right to eject being a remedy whereby the owner of property may assert his rights, the following question may shortly come before the Courts to be decided.

Acts of trespass to land have been committed by A flying repeatedly at a level within the height of ordinary buildings over B's land. B, instead of bringing an action for damages, or for a declaration that A is a trespasser, or to restrain him from further acts of trespass, determines to terminate at once the annoyance by exercising his right of ejectment.

It is not easy to see how the owner could enforce his right, except by shooting at the aeroplane with the object either of frightening the aviator away, or of "winging" his machine and compelling the aviator to descend; and the question at once arises, would the owner be committing an illegal act, and what would be his liability if the aviator were (a), injured; (b), killed.

(a) It is clear that if B shot at A's aeroplane without warning and without taking any precautions he would be committing a criminal offence. It may, however, be argued that a prudent course would absolve the owner from any criminal liability arising from the consequences of his act. It may be said that the owner should, in the first place,