the danger of exhaustion of a local supply had an important bearing. It was clearly to the interest of the local public that such a deposit should not be extravagantly used and prematurely exhausted; and exhaustion of it, owing to the lack of transportation facilities, might then mean local ruin. To allow the entire public of a community to take valuble deposits from private land without payment might, in a given instance, risk complete exhaustion in a comparatively short time; and in many cases, such indiscriminate right, if recognized, could not readily be restricted within reasonable limits. This is, in fact, the reason assigned by the authorities for the refusal to extend to profits the doctrine of informal acquirements by the public or by a community generally.1

In view of these considerations, the line between easements proper and profits in respect of informal acquisition by the general public, merely illustrates the general rule that the law responds accurately to the public needs as they exist at a given time, and invades private rights only so far as the public needs at that time require.

That the law has never seen anything erratic in the existence of rights of profits in a mere local public, is shown by the fact that such rights, under grant, have always existed, and still exist in England, and in this country also.2

It may be objected that in all the decided cases where dedication has been implied from user and acquiescence, the members of the public have themselves gone upon the land to enjoy the easement. This results almost inevitably from the nature of easements, which cannot in most instances be enjoyed by the public entirely through the agency of the owner of the fee. But if it be once admitted that the public could under proper circumstances acquire a profit by dedication, as for example a right to go upon coal lands and dig coal, upon payment of a fair price, it is difficult to see any fundamental reason why the public right to the coal might not be conditioned on leaving the owner of the fee in possession and management, and allowing his agents and servants to mine the coal for the public, so long as he should conform his management to the public rights. Such a condition would change, not the essential nature of the right, but only the manner of its enjoyment. An analogy would be found in the case of a public easement acquired by

1 2 Washburn, Real Property, 5th ed., p. 313 and n. 2.

2 Willingale v. Maitland, L. R. 3 Eq. 103; Goodman v. Saltash, L. R. 7 App. Cas. 633; Green v. Putnam, 8 Cush. (Mass.) 21.

dedication over a public wharf, the owner of the wharf retaining the active management through his stevedores. And finally, if the public might possess by express dedication a right to have coal mined and sold to them at fair prices, why might not the dedication of such a right be implied from a course of dealing between owner and public exactly along those lines?

Again, if it be asked how widely this doctrine would apply, and whether it would extend to every case where mineral deposits are habitually mined or quarried and sold to the public, the answer is that, as shown above, necessity is the basis of the doctrine, and that dedication would be found to have taken place whenever the public had become practically dependent upon particular deposits. If it be asked also how large a public should be held to have acquired rights by dedication, that question may be similarly answered.

It has already been expressly admitted that the application of the doctrine of dedication now under discussion, would involve crossing some technical lines, which have in the past been regarded as circumscribing the doctrine. But the question is whether, now that the necessity has arisen, the courts would continue to respect these artificial boundary lines.

The doctrine of dedication, so far from being hampered in its application by mere technical distinctions, was called into existence for the very purpose of escaping from the technical rules and limitations. Its very vital breath, and its justification for existence, lie in disregard of existing technical limitations, and in recognition of the necessity for a resort to broad views. Consequently, as fast as any new subject or phase of public rights has been presented to the courts, they have never hesitated to apply the doctrine of dedication to the new situation. When a given proposition rests upon principle, the question of its applicability in a given instance, or of the extension of it to a new situation, is to be determined, very largely, by the principle upon which it rests; and if public necessity has now come to require, in respect of coal and oil lands, for example, the application of the doctrine of dedication, the authorities justify the belief that the application will be made.

It is hardly necessary to say that the law of dedication will not be applied where it cannot be applied with practical results; and this must be borne in mind with reference to the question of the applicability of the doctrine of dedication to coal and oil lands.

But in the case of coal or oil lands the two conditions, (a) of paying for the coal or oil, as taken, and (b) of leaving the private owners in possession and management (precisely as in the case of a public easement, acquired by dedication, over a private wharf), would meet all practical requirements.

It may therefore be said that the origin and the rapid and free growth, during the last century, of the doctrine of dedication indicates that, if there has now arisen a necessity for the application of it to rights in coal and oil lands, for example, the courts would so apply it as liberally and freely as they have applied it in favor of informal acquirement of easements, in the strict sense; and it may be well that at the present time coal lands and oil lands have on a great scale already become irrevocably dedicated to the public, to the extent of an absolute right in the public to have coal from them upon payment of a reasonable price, subject to the right of the private owners to manage them, if and so long as they will do so properly, as the owner of the public wharf may manage it through his stevedore.

If dedication may thus have taken effect upon certain coal lands, oil lands, and the like, it may be in process and may now be taking effect, and may hereafter take effect, upon properties of this character which have been but lately opened, or may hereafter be opened.

What has thus far been urged in favor of an existing dedication of coal and oil lands to the public, has been based entirely on the common law. But it is important to observe that the ultimate establishment of such public rights is by no means dependent upon the acceptance of the writer's argument to its full extent. Even granting that the doctrine of dedication should be held by the courts to have, in its present state, limitations which prevent it from having such an operation without legislation, nevertheless the existence of that doctrine, with the scope which it admittedly has, seems unquestionably to support legislation by a legislative body of proper jurisdiction, the question whether Congress is such a legislative body is not now being considered, — (a) to make the necessary extensions of the doctrine, and (b) to provide that the production and public marketing of coal, mineral oil, and the like, for a certain length of time, shall ipso facto amount to a dedication such as is immediately above suggested.

But it is not only along the line of dedication that legislation might deal effectively with property such as that under discussion without departing materially from established principles. Recent discussions as to the exercise of the right of eminent domain over coal lands have seemed to assume that there must be an outright taking, or none. On the contrary, if and in so far as a state or Congress has the power to take, the taking might be, not of the fee, or of an exclusive right to coal or oil in the soil, to be paid for all at once, - but of an easement (in Blackstone's broad sense of the word), or a profit in favor of the public to have coal or oil produced for them, by the general owner of the land in question, and sold to them, or to those who will supply them, at a fair price. A taking in this form would vest in the public precisely the right which the law of dedication perhaps has, in the case of certain coal and oil lands, already vested in them, or would vest in them, if applicable. It would vest in the public precisely the sort of right and interest which Munn v. Illinois declared to have become vested in the public through the voluntary action of the owners of the grain elevator there in question; with the added element, however, of irrevocability and permanency of the public right. Eminent domain legislation of this character would be simply and absolutely in harmony with the unbroken course of growth of our institutions for hundreds of years past. It would be legislative action precisely on the principles, and along the lines, of the action of the courts in creating and developing the existing doctrine of dedication, and in harmony with the legislative action of the state of Illinois, which was declared by the Supreme Court of the United States, in Munn v. Illinois, to be not only valid, but in conformity with the traditions of our legal system. Such legislation would entail no pecuniary burden; for all that would be taken from a coal-mine or oil-land owner would be the power (admitting that in a given case he had it) to keep his coal or oil-worthless except for marketing out of the market, and to refuse to produce and sell at a fair price; and for this no jury would give him, or would be warranted in giving him, much more than nominal damages. His compensation would come from a fair price for his coal or oil.

Such exercise of eminent domain would create in the public a right of a familiar class, and capable of being defined and enforced by statute or by the general law, upon perfectly well defined lines.

It would be free from the objections to public governmental ownership and control.

It may be said that if the general owner of the coal or oil lands should refuse or fail to operate his property fairly and efficiently, and in harmony with the public right, it would be necessary to take possession from him. That proposition is sound; but it applies also to all the existing steam and street railroads of the country; the telegraph and telephone lines; the gas companies, the water companies, and all the vast public service corporations; the great life insurance companies; and the national banks. Any of these are liable to receivership; and this procedure is constantly being employed. At one time, within a few years past, one fourth in value and in mileage of all the railroads of the country were being run by the courts. In fine, it is no objection to the creation or clear recognition of a public right, that that right may have to be enforced, and can be enforced. It is no answer to the imposition of a trust, where such course is necessary, that the trustee may have to be temporarily or permanently removed. Receivership, and judicial management in exceptional cases of breach of duty, are remote from governmental ownership and control in the ordinary sense of the phrase.

In closing, it may be added that Munn v. Illinois, and the numerous similar decisions, unquestionably disclose a mode of relief from controversies in the case of such a taking over the prices to be charged to consumers, and other details, by showing that all matters of detail, including price, may be fixed by statute, and that the general owner of the land may be subjected to the requirement of license and bond.

It is proposed, in a subsequent article, to present some considerations in support of the present competency of Congress to enact such legislation as is above suggested, and to indicate the form which such legislation should take.

BOSTON.

H. W. Chaplin.