ral importance to the common law." Mr. Justice Nelson served on the Alabama Claims Commission; Mr. Justice Harlan was arbitrator in the Behring Sea Dispute; and Mr. Justice Brewer was a member of the Venezuelan Boundary Commission; and it certainly is not too much to hope that some day we shall see justices of the United States Supreme Court, individually if not collectively, exchanging opinions on litigated cases with the highest courts in England, and thus bringing nearer the day of an international judicial tribunal of real dignity and power.

George P. Costigan, Jr..
Lincoln, Nebraska.

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INSURANCE POLICIES-IMPLIED WAIVER OF CONDITIONS.

Vance in his work on Insurance, p. 346, says that, "probably no branch of the law presents more hopeless conflict and confusion among the cases that is to be found among those involving questions of waiver and estoppel in insurance law. The objection to allowing the insured to prove by parol that the insurer has waived by a prior oral agreement some material provision of the subsequently issued policy arises, of course out of the fact that it apparently violates the familiar rule that parol contemporaneous evidence is inadmissible to vary or contradict the terms of a written instrument. I Greenl. Ev. (16th Ed.) Sec. 275. That all prior parol agreements are merged in a subsequent written contract embodying the same subject matter is a rule that is probably universally accepted. Therefore as, a consequence of this rule it follows necessarily that any agreement which may have been made between the insured and the insurer prior to the issue of the policy can have no effect upon the rights of the parties unless evidenced by a written instrument. Wells v. Ins. Co., 28 Ind. App. 620. It is equally impossible where this rule is in force to show by parol any facts which would, if they could be shown, estop the insurer from taking advantage of some particular clause in his policy.

In England the cases are clearly opposed to a parol waiver of any of the terms of an insurance policy. Beggar v. Assurance Co., (1902) 71 K. B. 79. In this country there is a conflict of authority although the majority of the State courts undoubtedly favor the

doctrine allowing parol proof of facts contemporaneous with the delivery of the policy constituting an estoppel, whereby the insurer is prevented from obtaining the benefit from a term of his written contract provided that term invalidates the policy in its inception. Born v. Ins. Co., 120 Iowa 299; Home Ins. Co. v. Mendenhall, 164 Ill. 458; Menk v. Ins. Co., 76 Cal. 51. Prior to the Northern Assurance Co. Case decided in January, 1902, the United States Supreme Court was also regarded as irrevocably committed to the doctrine enunciated in the case of the Union Mut. Life Ins. Co. v. Wilkinson, 13 Wall. 222. In that case the court had held that to permit parol testimony to show that the agent of the company of his own initiative had inserted a false representation in an insurance policy even though the insured had afterward signed the policy, did not contradict the written contract but simply estopped the insurance company from asserting that it was the misrepresentation of the insured. Great was the surprise therefore, when in a decision characterized by obscure reasoning and supported by unsatisfactory authorities the Supreme Court, by a bare majority, completely reversed itself and held that the knowledge of the agent at the time he insured the property that it was also covered by insurance in a second company did not operate as a waiver of a condition in the policy stipulating that the existence of concurrent insurance should avoid the policy unless such waiver should be indorsed on the policy. 183 U. S. 308. Apparently the decision was based on the theory that since the policy provided for a means whereby the terms of the policy could be waived, therefore the agent could not estop the company from setting up the provisions by any parol agreement which he might make. To state that the decision did not meet with approval is almost superfluous. The New York Law Journal characterized it as narrow in spirit and unjust in result. Likewise in the case of Virginia Fire Ins. Co. v. Mica Co., (Va.) 46 S. E. 463, the court said that "while the pronouncements of this great court must always command the highest respect, its judgment in this particular case is deprived of such of its value as a precedent by the circumstances that it is not in harmony with many of its former decisions and that three judges dissented."

Viewing the situation in this light, it should be a source of considerable satisfaction, therefore, that in a recent controversy over the same policy and between the same parties the Supreme Court has in a unanimous opinion clearly obviated the effect of the former ruling and by a more circuitous route practically effectuated the doctrine laid down in the Wilkinson Case. Northern Assurance Co. v. Grand View Bldg. Ass'n., 27 Sup. Ct. 27, Nov. 1906. In this case the court held, affirming a decision of the Supreme Court of Nebraska, that a suit in equity to reform a policy of fire insurance so that it will express consent to concurrent insurance to recover on the instrument as so reformed, may be maintained after the termination of an unsuccessful action at law to recover on the unreformed contract. Thus although the

court does not admit the doctrine of parol waiver it nevertheless does oviate the harshness of its former ruling by making it possible to the desired end by a suit in equity to reform the policy in accordance with the parol agreement.

In an article in the Harvard Law Review for March, 1902, criticising the doctrine laid down in the first decision of the Supreme Court in this case, an attempt was made to justify the doctrine of a parol waiver and to show that it did not violate the parol evidence rule so flagrantly as was supposed. The author argued that a binding contract of insurance is commonly made before the policy is issued; that the policy is merely the reduction of such contract to writing; and that as the limitations upon the agents powers contained in the policy could not affect the contract as previously made it was strained and inequitable to apply the parol evidence rule. The writer seems to have forgotten, however, that the policy must be taken as expressing the final understanding of the parties. Union Mut. Life Ins. Co. v. Mowry, 96 U. S. 544. It seems to us to be more logical to follow the tendency of the courts and to frankly admit that in recognizing the parol waiver theory the parol evidence rule is clearly violated and to establish an exception in the case of insurance policies. Welch v. Association, (Wis.) 98 N. W. 227; Spalding v. Ins. Co., 71 N. H. 441.

Such an exception seems to be founded on reason and justice and should meet with our approval. It is hard to find any substantial reason why the knowledge by an authorized agent of the company of facts affecting the validity of a policy at its inception should not be considered as the knowledge of the company and the company be estopped to set up such facts to defeat a recovery on the policy. Robbins v. Springfield Fire Ins. Co., 149 N. Y. 484; Forward v. Continental Fire Ins. Co., 142 N. Y. 382. A rule of evidence adopted by the courts as a protection against fraud and false swearing would, as was said in regard to the analogous rule known as the "Statute of Frauds," become the instrument of the very fraud it was intended to prevent, if there did not exist some authority to correct the universality of its application. Vance on Insurance, P. 358.

EJECTMENT-REMOVAL OF TELEPHONE WIRES.

Ejectment is a form of action by which possessory titles to corporeal hereditaments may be tried and possession obtained. The action lies for the recovery of corporeal hereditaments only and cannot be maintained where the subject matter of the action is incorporeal or intangible; for the latter cannot be delivered in execution by a sheriff and are not subject to entry. These propositions are fundamental. Sedgwick & Wait, Titles to Land, Chap. IV. It is also elementry, that in its legal signification land has an indefinite extent upwards as well as downwards, the term including not only the face of the earth, but everything under it or over it as expressed by the maxim cujus est solum, ejus est usque ad caelum, 2 Blackstone's Com., 18.

In Butler v. Frontier Telephone Co., 36 N. Y. Law Jour. 1139, the defendant had wrongfully stretched telephone wires across the land of the plaintiff without in any way physically touching the soil. The question presented was whether an action of ejectment would lie. The statutary action of that name in New York where the question arose being practically the same as ejectment at common law. The practical importance of the question being in the fact that there are certain advantages to the plaintiff peculiar to ejectment not to be had in other actions. By the application of the principle cujus est solum it was held that ejectment would lie on the ground that there had been an ouster from part of the land. "According to fundamental principles and within the limitation mentioned, space above land is real estate the same as the land itself. The law regards the empty space as if it were a solid, inseparable from the soil, and protects it from hostile occupation accordingly."

The precise question here presented does not seem to have been before decided except as this case was presented to the lower courts. 109 App. Div. 217, Yale Law Journal, Vol. XV, p. 246. A similar question involving the same principle however has frequently arisen where ejectment has been brought because of overhanging eaves or cornices. Under such circumstances it has been held that the action might be maintained. Murphy v. Bolger, 60 Vt. 723; McCourt v Eckstein, 22 Wis. 153. This was denied however in Aiken v. Benedict, 39 Barb. 400, upon the ground that the defendant had taken possession of nothing of which the sheriff could put the plaintiff in possession. The question was not discussed at length in any of these cases.

The doctrine upon which the decision in the present case is based namely, that land embraces the space above and the soil beneath the surface of the ground, is undisputable. But has not the court in the present instance unwarrantably extended this doctrine when it says that the law regards the empty space as a solid inseparable from the soil ? Is it not more in accord with reason and common sense that the principle usque ad caelum means that the owner of land has a right in the nature of an incorporeal hereditament? Corporeal property signifies property in possession. By possession is meant physical dealing; consequently there can be no actual possession of anything which is intangible. An owner of land cannot physically possess the space above it any more than he can physically possess an easement or a servitude. If then, as clearly seems to be the case, the incidental right to the space above one's lands is an incorporeal hereditament, it is difficult to see how an action of ejectment may be maintained when another appropriates this space to his own use. The proper redress could be had by an action on the case or by a proceeding to abate a nuisance.

It has been repeatedly laid down that ejectment will not lie for anything of which a sheriff cannot deliver possession, the subject matter must be something tangible, something which can be delivered. Child v. Chappell, 9 N. Y. 246. In Jackson v. May, 16