done with a view to the furtherance of the master's unless the brakeman used his authority as a mere business, whether the same be done negligently, wan- cover for accomplishing an independent and wrongtonly or even wilfully, but within the scope of his ful purpose of his own." In Adams v. Railroad employment (14 Am. & Eng. Enc. Law, 1st ed. 817, Co. (74 Mo. 553, 41 Am. Rep. 333) the question was note 3); but we need not examine those cases, be- whether the statements of the fireman and engineer cause the controlling question before us is that of of a railway train were admissible in evidence in an the agent's authority. In Staples v. Schmid (18 action against a railroad company for negligence, R. I. 224; 26 Atl. 193; 19 L. R. A. 824), this subject and the court held that they were not. Hynes v. was carefully considered, and one of the principles Jungren (8 Kan. 391) was a suit for false imprisonrecognized in determining liability was that it can- ment, in which the plaintiff in the original case, not be inferred as matter of law that a master has together with the constable serving the writ, carried authorized his servant to do an act which he could the defendant in the original writ to the county jail, not lawfully do himself in the circumstances sup- and kept him there for a part of a day, before taking posed by the servant to exist. In that case the pro- him before the justice as required by the precept. prietor of a store was held to be liable to a customer In that case the principal was an active participant whose arrest the defendant's salesman and custodian in the wrong. In Cantrell v. Colwell (40 Tenn. 471) had caused on a wrongful suspicion of stealing Mrs. Cantrell requested a relative to turn Colwell's goods from the store. The court said that the master mare out of her inclosure. In doing so he threw would have no right to arrest and search an inno- a rock at the mare, and broke its leg. The court cent person, but that he had the right to detain a held that a request to turn out the mare could not thief and to recapture his property from him. Hence be tortured to imply a request to injure or destroy the act of the servant might be lawful or unlawful, it. In the case at bar, there being no inference of according to the facts. As the master's substitute authority as a matter of law from the defendant to he had to make a decision of his duty, which, as to his servant to do the act here complained of, and third persons, was the master's act, for which he no evidence of express authority, the statements was answerable either for excess of force or mistake of the servant were inadmissible, and, there being no in regard to the occasion for it. In the present case other evidence of authority, the direction of a verdict it could not be lawful for the defendant to obstruct for the defendant was right. an officer in the discharge of his duty, in any event, if the refusal of admission amounted to obstruction; and so it could not be lawful for his servant to do so. The cases relied on by plaintiffs, so far as they support them, are based upon lawful authority to a servant to do the act from which the injury arose, and upon an excess of force or bad judgment in doing it. This is clearly right. If one employs another to do a certain thing as his servant, retaining the right of control, oversight and discretion in the performance of the act the servant acting in place of the master and not independently, the master is responsible for the way in which the thing is done. But it is a very different thing to hold a master responsible for an act which he has never authorized a servant to do, simply because the latter is his servant, and on the strength of it to allow the statements of the servant to be put in to bind the principal. The plaintiffs' claim goes to this extent, but the cases cited do not. In Rounds v. Railroad Co. (64 N. Y. 129, 21 Am. Rep. 597), the action was for kicking a boy off a baggage car by a brakeman. It was conceded that the removal of the plaintiff, who was a trespasser, was within the scope of the brakeman's authority, and hence the company was held to be liable for the injury caused by exercising that authority improperly by kicking the boy off against a wood pile, from which he fell back under the cars. Hoffman v. Railroad Co. (87 N. Y. 25, 41 Am. Rep. 337) was to the same effect, the court saying: "The authority to remove the plaintiff from the car was vested in the defendant's servants. The wrong consisted in the time and mode of exercising it. For this the defendant is responsible,

"The verdict was also rightly directed upon another ground. The building in which the affair took place was not a dwelling house, and the officer had entered the outer door. If he had a valid precept, he had the right to break doors, and command sufficient force to enter, having requested admittance, which had been refused (Clark v. Wilson, 14 R. I. 11). The cause of the plaintiff's injury, if any, was not the refusal of the defendant's servant to allow the officer to enter, but the failure of the officer to serve his process as he might and should have done. To this may be added the fact that the plaintiff offered no proof of the judgment set out in their declaration, nor any evidence to show that they had suffered any pecuniary loss in the case. On the contrary, the defendant put in a discharge in bankruptcy of Seabrooke, the defendant in the original writ, subsequent to the plaintiffs' judgment, to show that the plaintiffs had no right of action against him, and consequently had suffered no damage."

Water Courses-Obstruction-Prescriptive Rights. - In Kray v. Muggli decided by the Supreme Court of Minnesota in June, 1901 (86 N. W. 882), it was held that where the flow of a stream of water has been diverted from its natural channel or obstructed by a permanent dam, and such diversion or obstruction has continued for the time necessary to establish a prescriptive right to perpetually maintain the same, the riparian owners along such stream of water, who have improved their property with reference to the change and in reliance on the continuance thereof, acquire a reciprocal right to have the artifi

cial conditions remain undisturbed; and the person in the street adjacent thereto, which is distinct from who placed the obstruction in the stream or caused the public right, nor can the legislature grant power the diversion of the waters, and all those claiming to take it from them. The abutting owners in such under or through him, are estopped upon principles cases have the right to insist that the street remain. of equity from restoring the waters to their natural The case of Le Clercq v. Trustees (7 Ohio, 218, channel or state to the injury of such riparian pt. 1, 28 Am. Dec. 641) was an action by owners owners. The court said, in part: of lots adjoining a public park which had been dedicated to the public use by the owner of the land to enjoin the public authorities from vacating the park. It was there held that the plaintiffs, though individual owners of lots abutting the public square, could maintain their action to preserve the park for public use. It appeared that they improved their property with reference to the park, and the decision was placed distinctly on the ground that the act of dedication conferred upon them a separate and independent right to have a park maintained. In the case of Town of Rensselaer v. Leopold (106 Ind. 29; 5 N. E. 761), it was held that the owners of lots abutting the public street have a peculiar and distinct interest in the easement, and that such interest is distinguished from the rights of the general public, in that it becomes an interest legally adhering to the contiguous grounds and buildings thereon, by affording more convenient facilities for their use; and, as the owner of the abutting property may have erected his buildings and made his improvements with reference to the street as existing, it is a valuable property right, which is recognized by the law, and cannot be appropriated or taken from him without his consent (Elliott, Roads & S., secs. 150, 877). The act which gives rise to the public right, the act of dedication, vests a distinct and independent right in abutting property owners, which they may protect by application to a court of equity. The doctrine of these cases is applicable to the case at bar. The mill company acquired its right to maintain the dam by prescription, and during the time such right was maturing a reciprocal right in the riparian owners to insist that it be maintained, at least that no overt act be taken for its removal, was also maturing, which ripened and became equal to the right of the mill company upon the completion of the prescriptive period. The reciprocal right thus created was not merely a personal one, but a right appurtenant and incident to the lands.

The dam in question, having been erected for the purpose of developing power to operate mill machinery, must be taken to be a permanent obstruction; and. it having existed and been maintained as such for so great a length of time, the artificial conditions created thereby must be deemed to have become the natural conditions. There is no suggestion in the evidence that the dam was placed in the river for temporary purposes, and, even though it may at one time have been out of repair, it was, nevertheless, originally intended as a permanent structure. The authorities all hold, as far as our examination has extended, that in such cases the conditions arising from the permanent obstruction, though artificial to begin with, become by long lapse of time the natural conditions, and interested parties are bound by the rules of law applicable to such conditions (Magor v. Chadwick, II Adol. & E. 571; Beeston v. Weate, 5 El. & Bl. 986; Roberts v. Richards, supra; Mathewson v. Hoffman, supra; Finley v. Hershey, 41 Iowa, 389: Murchie v. Gates, 78 Me. 300; 4 Atl. 698). In the case at bar even nature herself became adapted to the new surroundings. A native growth of hardwood timber sprang up along the shores of the lakes formed by the rise of the river, thus giving a natural effect and appearance to the conditions created by the dam. The government, in the survey of the lands in that vicinity, recognized the artificial as the natural state, and surveyed the public lands with reference to the lakes, meandering them precisely as other natural bodies of water are surveyed and meandered. There can be no difference on principle between cases where the natural channel of a stream is changed and diverted, and those where a permanent obstruction is placed therein. In either case the rights of the parties are essentially the same.

NEW BOOKS AND NEW EDITIONS.

ris. Boston: Small, Maynard & Co., 1901.

An examination of the books discloses that this same doctrine is applied to public highhways and public parks. Where a highway or public park has been laid out by lawful authority or acquired by dedication or prescription, the owners of property abutting thereon acquire a special right in the con- | tinuance of the park, street or highway, as the case may be, of which they cannot be deprived, except by | due process of law. The right accrues to them in The Road to Ridgeby's. By Frank Burlingame Harcases where the highway or park is acquired by dedication, by the same proceedings and acts that vest the right in the public. Where land is expressly dedicated for a public park, and is improved as such by the public authorities, special rights result and accrue to abutting owners, which vest and are created by the act of dedication (Adams v. Railroad Co., 39 Minn. 286-292; 39 N. W. 629; 1 L. R. A. 493). In the case of Moose v. Carson (104 N. C. 431; 10 S. E. 689), it was held that the owners of lots cannot be deprived of the easement appurtenant

Mr. Harris, like the lamented author of "David Harum," never lived to see his book in print. It was his first and only novel. He knew while writing it that his health was hopelessly shattered, and every chapter bears the impress of the hours of careful revision he expended upon it in the pathetic desire to make this one legacy to literature the best within his power. Entirely apart from this sentimental interest in the work he has left us, Mr. Harris's book is emphatically worth the reading. In

spite of technical defects and of certain limitations due to inexperience, it gives us graphic pictures of farm life out on the Iowa prairies that will live long in the reader's memory. Boiled down, the story is that of a stranger who comes in the guise of a tramp, works for his board upon Ridgeby's farm, and woos and wins the farmer's daughter, amid the mowing of hay and the milking of cows. But there is very much more than this in the story which Mr. Harris has told. There is a very good plot, and he has given us a number of quaint, unusual types of rustic humanity over whom it is pleasant to linger. The reader will also find throughout its pages a kindly philosophy and a cheerful optimism which make one regret that the talented author will never more put pen to paper. Young as he was-25, we believe Mr. Harris had found the secret of holding the reader's interest, for, when once the book is taken up, it is difficult to lay it down until the last page is finished.

Literary Notes.

English Botes.

The Vienna correspondent of the Morning Post states that the Neues Wiener Journal has published a leading article advocating the division of Austrian lawyers into barristers and solicitors after the model of the English legal profession. At present no such distinction exists in Austria. The proposal has not been favorably received by the members of the legal profession in Vienna.

An interesting question was raised, says the Westminster Gazette, in the Jedburgh Sheriff Court the other day, when some young men were charged with stealing mushrooms from a field. For the accused it was urged that the complaint was irrelevant, on the ground that taking mushrooms was not a crime known to the law of Scotland, and mushrooms were not an industrial crop. Sheriff Campbell overruled this objection. He said that when things like mushrooms were private property and possessed a market value they were under the protection of the law — criminal and civil. On the lines of existing authorities he could not doubt that mushrooms were private property, whether of the landlord or tenant who paid the rent. The reason why no precedent for the charge had been quoted might be that owners and occupiers had not thought it worth while hitherto to put the criminal law in motion. No penalty was imposed, the procurator-fiscal stating that he wanted

People who would like to read the entire text of Professor Robert Koch's paper on the suppression of tuberculosis, which occasioned such a stir at the British congress, will find it in "The Living Age" for August 31. The paper has been so much dis-only a judgment on the point. cussed, and the positions taken in it are the subject of so much controversy, that the intelligent reader will be glad of the opportunity to learn for himselt precisely what Professor Koch's claims are.

There is a certain novelty about the following incident which should not be lost sight of, says the Westminster Gazette. The deputy coroner at Bournemouth, having to hold inquests on two bodies "A Most Lamentable Comedy is the title of a lying at the cemetery, where the indoor accommodapowerful novelette by Mr. William Allen White, tion is exceedingly limited, assembled the jury in which began in the September 21 issue of "The an unused portion of the cemetery, under the shade Saturday Evening Post," of Philadelphia. This of overhanging trees. The idea was an excellent absorbing serial is a study of political hysterics-one, and it might well be followed, not only by corothe story of a State gone mad. The scene of the ners elsewhere, who often have to hold their innovelette is a Western State laboring under the bur- quiries in ill-smelling taprooms, but by others. Why, dens of a panic year. The central figure is a grocery for instance, should not judges, who never cease store demagogue, whose harebrained oratory cap- to complain of stuffy courts, occasionally try to adtures the State convention. The story rises to a minister justice under the greenwood tree? height of dramatic power and intensity rarely equalled in the fiction of the day.

Although Blennerhassett," the Aaron Burr romance by Charles Felton Pidgin, was not published until September 7, the C. M. Clark Publishing Company announce that they had printed and sold 60,000 copies of this much discussed book. These have been in editions of 20,000 each, and two more editions of 20,000 each are expected from the press next week, making the total number of copies printed before the book is presented to the public, 100,000. The first edition of 20,000 was consumed by advance orders that have been coming in unsolicited during last spring; three large jobbers took the entire second edition; and the third edition has proven insufficient to supply the general trade with all the copies that have been ordered in advance.

The twelfth anniversary last week of the commutation of the death sentence passed on Mrs. Maybrick for the murder of her husband in 1889, says the Law Times, has reminded writers in the lay press of the great number of leading figures in that memorable trial who have passed away, including the judge, Sir Fitzjames Stephen; the leading counsel for the prisoner, Lord Russell, and no fewer than three of the jurors. In 1881 the late Mr. Francis Macdonagh, Q. C., in opening the case for the traversers in the State trial of Reg v. Parnell in Dublin, mentioned the circumstance that he had been counsel for the defense in the last great Irish State trial of Reg v. O'Connell in 1844, and that the three judges who presided at the trial, all the jurors, all the traversers and all the counsel, both for the crown and for the traversers, had, with the sole exception of himself, passed away.

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ment from the active duties of the bench by the sincere well wishes of an unusually large circle of friends. Still in the possession of all his faculties, unimpaired by use and time, we bespeak for him all the joys of a green

solicited from members of the bar and those interested in legal old age, chief among which, we doubt not,

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Current Topics.

courage over the result of the late election. In making this statement we do not deem that we are violating the time-honored rule of keeping professional journalism out of politics, for, in the highest sense, there was no politics in the recent contest in New York. It was a combination of all good men of all have flaunted themselves in the public gaze parties against the shameless iniquities that

Having reached the constitutional age limit, Justice Judson S. Landon, of the New York Court of Appeals, will, on the first of January next, retire from that tribunal, to which he was designated in January, two for years; against the unholy alliance of paid years ago, by Governor Roosevelt. Justice Landon is a resident of Schenectady. He was a circuit justice for many years, and when the Appellate Divisions were created, was designated to sit on the bench of that court in the third judicial district. He is one of the three extra judges designated from the two years, under the administration of Supreme Court for service on the Court of Mayor-elect Seth Low, promise to be fruitful Appeals bench under the amendment of the of much-needed reforms, radical and farState constitution which authorized the gov-reaching.

public officials with crime and vice; against blackmail and all the other detestable practices that have fastened themselves upon the administration in the city of New York. The people have at last aroused from their lethargy and shaken off the incubus. The next

ernor to appoint Supreme Court justices to As to the bearing of the election results aid in the disposition of the great mass of litigation before the Court of Appeals. It is upon the fortunes or the future of any politigation before the Court of Appeals. It is litical party, the people seem to be supremely understood that such satisfactory progress indifferent. Whether the Hon. Richard has been made by the court in clearing the Croker, or the Hon. David B. Hill shall overburdened calendar that the judges will dominate the forces of the opposition is of not request Governor Odell to appoint little public concern to good citizens, who another justice to take the place left vacant are likely to exclaim: "A plague on both by Judge Landon when he shall have retired; your houses!" What they want, and aphence, the court will hereafter perform its parently are determined to have, is good, work with two instead of three extra judges. clean, honest administration. Judge Landon's work on the bench of the highest courts of the State, extending over an exceptionally long period, has always been of the highest order, and he has ever retained the respect and esteem of bench and bar alike. In industry, ability and integrity, he stands in the front rank of that splendid judiciary that has long made New York famous. VOL. 63.- No. 12.

A notable contribution to the discussion concerning the control of trusts has recently been made by Prof. John Bates Clark, of Columbia University, in the form of a little work just from the press of the Macmillans. It is composed mainly of articles which have

* * *

done in order to save from annihilation the man or concern that can make goods even more cheaply than the trust, is to secure for him fair treatment by the railroads, for, if the

has him at its mercy. Prof. Clark believes in State regulation rather than State ownership of railroads, and in this respect we believe his views coincide with those of the

Prof. Clark's little

work is altogether the best statement, in a small compass, of the trust problem, that we have seen.

appeared in the Political Science Quarterly, differ. Prof. Clark fairly argues it. ObviThe Atlantic Monthly and the Independent. ously, he says, one of the first things to be The author seeks to show that the proper policy with respect to the regulation and control of trusts is that which relies wholly upon competition as the regulator of prices and wages. According to this policy, centraliza- trust gets a rebate which he cannot get, it tion is welcomed, but the aim is to destroy monopolies by keeping the field open to all independent producers who may choose to enter it. "By this policy," says the author, a man who builds a mill and puts on the great majority of the thinking, discriminatmarket goods such as the trust is making, ing American people. must take all the chances that fair competition entails, but he will be shielded from certain predatory and unfair attacks in which size gives to the consolidation a decisive advantage. If prices are raised be- Joel Prentiss Bishop, long justly regarded yond a certain level, new mills are built; and one of the greatest American legal authors, a wholesome respect for the influence of these died at his home in Cambridge, Mass., on mills acts in advance of their existence to November fourth last, at the age of eightyhold prices in check." Competition and pri- seven years. His legal works are: "Marriage vate initiative, the author believes, are certain and Divorce," 1853; "Criminal Law," 1856; to act as efficient regulators of prices, if only "Criminal Procedure," 1866; "First Book of they have a fair chance. This laissez faire the Law," 1868; "Statutory Crimes," 1873; policy does not necessarily mean a dull letting "Contracts," 1878; "Direction and Forms," alone of an evil tendency, but it does involve 1885; "Non-Contract Law," 1889; “Comallowing a natural development to go on mentaries of Law and Statutory Crimes," unhindered. His argument against State 1901. These notable works constitute a socialism seems to us strong, and to many monument to his character and ability more students of political economy we believe it enduring than marble or bronze. Mr. Bishop will prove convincing. The author thinks a was born March 10, 1814, in Volney, Oswego nearly ideal condition would be that in which, county, N. Y., as he himself said, “in a small in every department of industry, there should log-house in the woods, remote from all other be one great corporation, working without habitations but one." While yet a baby, his friction and with enormous economy, and mother being sick and soon to die, he was compelled to give to the public the full benefit taken to his father's former place of residence, of that economy. Aye, there's the rub. How are they to be compelled? Prof. Clark does not leave us entirely without hope on this point. He thinks it possible by means of full publicity and the keeping of competition alive through the prevention of local discrimina- academy. Hampered by poverty and ill tion in prices, the discrimination between dif- health, he finally gave up his one great hope ferent grades of goods on the general price of obtaining a college education, and, having scale, and the refusal of trusts to sell goods drifted to Boston, entered a law office in the at all under certain conditions. These three fall of 1842, "hoping to obtain a little useful kinds of unfair dealing, Prof. Clark thinks, information, but with no idea of having give the trusts power to crush competitors; health to practice law." At the end of a year, whether they can be prevented by law, is a he had been able to fully support himself by very serious question upon which students means of literary work, outside the law,

Paris, Oneida county. His father was a farmer of small means and with him the youth grew up and labored, attending a remote district school during three or four months in the year, and finally graduating into the