As the twenty-six Harvard seniors in the first year class have in each instance completed the work required for the Harvard A. B. degree, all members of the class are virtually college graduates. The same is true of practically the entire School. Of the sixty-two special students, thirty-five have entered this year, and of these twenty-six are graduates of a college or university, six having received a degree in law.

One hundred and twenty-two colleges and universities have representatives now in the School, as compared with one hundred and eighteen last year and one hundred and fourteen the previous year. In the first year class sixty-six colleges and universities, as compared with sixty-four last year, are represented, as follows: Harvard, 65; Yale, 16; Princeton, 15; Brown, 13; Dartmouth, 9; Amherst, 8; Bowdoin, 7; Tufts, Williams, 4 Alabama, Notre Dame, Ohio State, 3; Bucknell, California, Central, De Pauw, Hamilton, Hiram, Holy Cross, Illinois College, University of Illinois, Indiana, Kentucky State College, Stanford, Mt. Allison, Nebraska, Vermont, 2; Acadia, Baker, Bates, Beloit, Brooklyn Polytechnic, Chicago, Colgate, Denison, Dickinson, Fordham, Furman, Georgetown, Gustavus Adolphus, Iowa State College, Kansas, Kentucky, Marietta, Massachusetts Institute of Technology, Middlebury, Minnesota, Missouri, Mt. Union, North Carolina, Oberlin, Pomona, Rochester, Rutgers, South Carolina, Swarthmore, Syracuse, Trinity (Ct.), Wabash, Wake Forest, Washington, Wesleyan (Ct.), Western Maryland, Western Reserve, William Jewell, Wisconsin, I. There are at present in the School eleven law school graduates, four of whom hold academic degrees also, representing the law schools of the following universities: Alabama, George Washington, Illinois, Iowa, Maryland, Michigan, Missouri, Texas, Tulane, West Virginia.

LEGAL EFFECT OF ATTEMPTS TO SEVER EASEMENTS FROM THE DOMINANT TENEMENTS. That an easement cannot exist severed from its dominant tenement, is now well settled.1 Consequently, when the owner attempts to grant the easement to a stranger, or to reserve it in a grant of the dominant tenement, the easement must either be extinguished or else remain still attached to the land. But as to which of these results legally follows the attempted severance, there is curiously little authority. Some language in the old books, together with a modern dictum,* points toward the extinguishment of the easement; while the alternative conclusion is supported by scattering dicta," and a strong line of recent decisions in New York. The latest of these has just been handed down. Freund v. Biel, 35 N. Y. L. J. 1567 (App. Div., July, 1906). The latter view seems preferable. Whether the attempt to sever the easement be by grant or reservation, there is lacking the intention requisite for an abandonment of it;" for the parties to the conveyance intend as indeed in this latest New York case was expressly stated in the instrument—not to abandon the easement, but to keep it in existence though severed from the land. Furthermore, in spite of the common law hostility toward easements, there seems to be little justification for introducing a doctrine according to which the easement is extinguished by a transaction solely between the owner of the dominant tenement and a stranger, his grantee, to the certain detriment of one, and to the benefit of neither, but only of the servient tenement.

Admitted that the attempted severance leaves the easement unextinguished and still appurtenant, the further question arises, what rights, if any, accrue therefrom to the person in whose favor the attempt was made? The only answer of authority seems to lie in some of the New York decisions previously mentioned. In these cases the owners of land with easements appurtenant, which were infringed by elevated railroad structures, granted the dominant tenements, "reserving the easements" or "reserving all claim or rights of action" for future damages thereto. The grantees were held liable as trustees for the grantors of all moneys received for the invasion of the easements, although it was admitted that neither the easements nor the rights of action for the infringement of them could be held in trust. The foundation for the trust was obtained by torturing the words of reservation into a contract to pay these sums as part of the purchase price of the land." But this reasoning is wholly fictitious: the grantor's words of reservation do not and cannot impose upon the grantee the active duties of the contractual obligation. In reality, if any equity does flow to the grantor because of the words of reservation, it seems that its source must lie in a mutual mistake of law made in supposing that the easement itself could be reserved. If the

1 Hall v. Lawrence, 2 R. I. 218, 243.

2 See Phillips v. Rhodes, 7 Met. (Mass.) 322, 324.

3 See 4 Vin. Abr. 594 (O).

4 See Cadwalader v. Bailey, 17 R. I. 495, 503.

5 See Moore v. Crose, 43 Ind. 30, 34.

6 Pappenheim v. Metropolitan, etc., Ry. Co., 128 N. Y. 436, 446; Kernochan v. N. Y., etc., R. R. Co., 128 ibid. 559, 568; Pegram v. N. Y., etc., R. R. Co., 147 ibid. 135; Foote v. Metropolitan, etc., Ry. Co., 147 ibid. 367; Shepard v. Manhattan Ry. Co., 169 ibid. 160; Western, etc., Co. v. Shepard, 169 ibid. 170; McKenna v. Brooklyn, etc., R. R. Co., 184 ibid. 391.

7 See Foote v. Metropolitan, etc., Ry. Co., supra.

8 Western, etc., Co. v. Shepard, supra; Freund v. Biel, supra. See also Pegram v. N. Y., etc., R. R. Co., supra; McKenna v. Brooklyn, etc., R. R. Co., supra.

9 See Western, etc., Co. v. Shepard, supra, 180.

parties had understood the legal effect of the words of the instrument in question, would any court have labored to raise the equity? If rescission for mutual mistake of law be allowable, the court of equity might well allow the grantee the option of indemnifying the grantor for the loss resulting from the mistake, by handing over the sums recovered for the infringement of the easement, substantially the result attained by the New York courts. Although any suggestion of rescission for mutual mistake as to the legal effects of an instrument has been consistently repudiated in New York,' yet the recent decisions may indicate a tendency to apply the doctrine, at least in certain cases. With the application of this principle the results reached in these easement cases seem correct; without it there appears to be difficulty in discovering any basis for legal or equitable rights in these attempts to sever easements.

EJECTION OF A PASSENGER WHO PRESENTS A Wrong Transfer Check.— There is apparently a growing tendency on the part of the courts to hold that, where a passenger has been furnished with a wrong ticket, a conductor after hearing an explanation of the circumstances evicts the passenger at his peril on the latter's refusal to pay another fare. A late case so decides. Georgia Ry. & Electric Co. v. Baker, 54 S. E. Rep. 639 (Ga.). Not only are the authorities upon this point in serious conflict,' but often the reasoning of the same court in different cases is inconsistent. It is of course well settled that if a passenger who is rightfully on a car with a proper ticket is evicted through the conductor's mistake as to the sufficiency of the ticket, such ejection is a tort, and the company is liable. Even when a wrong transfer is given, some courts seem to proceed upon the theory that the passenger is rightfully on the second car, since the journey is considered continuous, irrespective of the necessity for a change of cars. Such a view is, however, inconsistent with the facts of the case. A railroad is not under obligation in return for the payment of a fare to carry a passenger to his ultimate destination, but to carry him to the transfer point, and to furnish him with a ticket which shall entitle him to take another car at that point. In issuing a transfer, therefore, the first conductor is in no different situation from the agent who sells a ticket in the station.

2

When a station agent makes a mistake in issuing a ticket, some courts, though holding that ordinarily the railroad is not liable in tort for a subsequent eviction, make a distinction if the invalidity of the ticket would not be apparent to the holder upon a reasonable examination, and under such circumstances permit a recovery for the eviction. The basis for this distinction is apparently founded on some idea of contributory negligence on the part of the passenger. Other courts adopt reasoning which leads to exactly the opposite result, and hold that the eviction is lawful, except where

10 See Arthur 7. Arthur, 10 Barb. (N. Y.) 1; Curtis v. Albee, 167 N. Y. 360, 364; also Western, etc., Co. v. Shepard, supra, 180.

1 Indianapolis St. Ry. Co. v. Wilson, 161 Ind. 153; Cleveland City Ry. Co. v. Conner, 78 N. E. Rep. 376 (Oh.). Contra, Norton v. Consolidated Ry. Co., 63 Atl. Rep. 1087 (Conn.); Little Rock Ry. & Electric Co. v. Goerner, 95 S. W. Rep. 1007 (Ark.). See HARV. L. REV. 221.

Norton z. Consolidated Ry. Co., supra.

Murdock v. Boston & Albany R. R. Co., 137 Mass. 293. Cf. Bradshaw v. South Boston R. R. Co., 135 Mass. 407.

from the face of the ticket the conductor should see that a mistake had been made, as where a mileage book was marked to expire on the day that it was issued. Now, when the passenger pays his money to the ticket agent, no contract is formed by which the railroad agrees to carry the passenger to his destination. It is not the business of the ticket agent to make contracts for the railroad, but to sell tickets. Therefore the courts which hold to the above view, and yet say that it is a contract and not the ticket that gives the right to transportation, misinterpret completely the nature of the ticket. The true view is that the ticket is the sole valid evidence of the passenger's right to be upon the car. To conduct railroads on any other principle would be impossible. A person who is not supplied with the proper ticket is not rightfully upon the car, and his eviction upon failure to pay another fare is lawful, except that courts might draw the line in the rare case where the conductor actually knows the true facts. The railroad is of course liable; not, however, for a wrongful eviction, but in an action of contract for breach of implied warranty in failing to supply the ticket asked for, or possibly in an action on the case founded on the negligence of the ticket agent. In either case, however, the passenger should suffer the inconvenience of paying another fare, and should not be allowed to increase the damages by requiring the conductor to eject him.10

It is elementary

THE TAXABLE SITUS OF TANGIBLE PERSONAL PROPERTY. that a state cannot tax tangible property which has neither a legal nor a physical situs therein.1 A tax on tangible property is in theory a price exacted for protection given; and if the property is neither actually nor constructively situated where it can enjoy such protection, the tax is constitutionally invalid, as a taking of property without due process of law. How far a state may constitutionally tax its citizens according to their ability to pay, tax on incomes, or exact a price for a privilege conferred, franchise, presents different questions, which will not be discussed. The question here is simply how and when tangible personalty acquires a situs in one or more states, so that a tax thereon is constitutionally valid.

as by a

such as a

In ancient times the maxim mobilia sequuntur personam applied alike to tangible and intangible personalty. To-day, if tangible personalty remains in a state a sufficient time, it may acquire a taxable situs therein, though the owner is domiciled in another state. If, however, the use to which the property is put prevents it from acquiring a physical situs, the maxim may be applied to determine the legal situs for taxation. Thus a vessel engaged in interstate commerce is taxable at the owner's domicile,* although

Krueger v. Chicago, etc., Ry. Co., 68 Minn. 445.

6 See 1 HARV. L. REV. 30.

7 N. Y., etc., Ry. Co. v. Bennett, 50 Fed. Rep. 496. See also 10 HARV. L. REV. 186 12 ibid. 61; 14 ibid. 70.

353

8 See Pouilin v. Canadian Pac. Ry. Co., 52 Fed. Rep. 197, 199.

9 Western Maryland R. R. Co. v. Schaun, 97 Md. 563. See also 9 HARV. L. Rev.

10 Hall v. Memphis & Charleston R. R. Co., 15 Fed. Rep. 57.

1 Ayer & Lord Tie Co. v. Kentucky, 202 U. S. 409.

2 Union, etc., Transit Co. v. Kentucky, 199 U. S. 194.

8 Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18.

* See St. Louis 7. The Ferry Co., 11 Wall. (U. S.) 423. See Ayer & Lord Tie Co. v. Kentucky, supra.

if it ply wholly within one the owner is domiciled. artificial situs of domicile elsewhere.

state its taxable situs is there, no matter where Consequently in regard to a single unit, the controls only in the absence of an actual situs

6

The taxable situs of a mass of property, such as the rolling stock of a railroad, the specific units of which are constantly moving from state to state, is a question of greater difficulty, which as yet is but partly settled. Property in through transit manifestly cannot acquire a taxable situs, at least so far as the units are concerned. But where a constant average of such units is maintained within the state and enjoys the protection of its laws, it is manifestly unfair that this average should contribute no taxes, even though each particular unit is continually in transit through the state. It was therefore held in Pullman's Co. v. Pennsylvania that a foreign corporation might be taxed upon the average number of cars annually within the state, though no particular car obtained a taxable situs therein. This decision was supplemented by Union Transit Co. v. Kentucky,2 which held that a domestic corporation cannot be taxed upon those of its cars permanently beyond the state. And a recent case has decided that a domestic railroad corporation may be taxed upon all its rolling stock, even though specific cars go from time to time beyond the state, on the ground that the state of origin remains the permanent situs, notwithstanding occasional excursions. New York ex rel. Ñ. Y. C., etc., R. R. Co. v. Miller, 202 U. S. 584. The net result of these decisions is that a railroad cannot be taxed as much as twice upon the whole of its rolling stock, although the question is still undecided whether it may not be taxed twice upon a portion. In other words, although it is clear that the whole rolling stock cannot have a taxable situs in two states at once, it is not settled whether, if a portion obtain a taxable situs in another state, though none of the specific cars do so, such portion ceases to be taxable at the domicile of the corporation. When considered in connection with the Pullman case, the reasoning, though not the decision, in the Union Transit case indicates that this portion would cease to be taxable at the domicile of the corporation, whereas the reasoning in the Miller case indicates that it would not. Certainly the more desirable result is reached by following the former case. It is just that property should be taxed on its full value; it is equally just that no part be taxed twice."

RESPONSIBILITY OF THE DRAWER OF A NEGLIGENTLY DRAWN CHECK. There is apparently no American case directly deciding where liability shall be placed, when a depositor draws a check in such form as to enable a third person by an insertion to raise the amount successfully, so that a bank using reasonable care honors the check for the altered amount. In similar situations involving other negotiable instruments, there are a number of American decisions, the majority of which hold the careless maker or drawer liable for the altered sum. The ground taken is that, where one of two innocent

1

Old Dominion S. S. Co. v. Virginia, 198 U. S. 299.

6 Kelley v. Rhoads, 188 U. S. 1.

7 See also 19 HARV. L. REV. 206.

1 Exch. Bk. of Spokane v. Bk. of Little Rock, 58 Fed. Rep. 140, must be distinguished. The draft there was in the hands of a discounter, and the doctrine of caveat emptor applied.

2 Merritt v. Boyden, 119 Ill. 136. Contra, Knoxville Nat'l Bk. v. Clark, 51 Ia. 264.