aided by competent personal instruction are to-day among the first to raise their voices in favor of a more thorough preparation of those who shall hereafter not only administer the law but, sitting on the bench, shall be clothed with authority to establish precedents for determining the multitude of new justiciable questions likely to arise out of our increasingly complicated social order.

The present favorable attitude of the bar toward raising the standards of instruction. is reflected in Elihu Root's masterful address at the opening of the last meeting of the American Bar Association, from which we make the following quotation:

"The old customs under which the young law student was really guided and instructed in the law office of the established practitioner, under which the youth was impressed by the example and spirit and learning of his senior, are rapidly passing away. In the greater part of the country these customs no longer continue. The law school has taken the place of the law office except for acquiring the mere technique of practice, and the rights of the people of the United States to have an effective administration of the law require that the standards of the best law schools shall be applied to determine the right to membership in the bar. When we compare our own method with the test of the three years' probation of the French Licentiate and the arduous four years' training of the German Referendar, we may realize how little the American people have had in mind the protection and promotion of the public interest in requiring competency at the bar.

"No one can help sympathizing with the idea that every ambitious young American should have an opportunity to win fame and fortune. But that should not be the controlling consideration here. The controlling consideration should be the public service, and the right to win the rewards of the profession should be conditioned upon fitness to render the public service. No incompetent sailor is entitled to command a public ship; no incompetent engineer is entitled to construct a public work; no untrained lawyer is entitled to impair the efficiency of the great and costly machinery which the people of the country provide, not for the benefit of lawyers but for the administration of the law."

FOR COLONIES SAME AS FOR STATES.-It has been generally recognized that the common law as to navigable rivers is not the same in this country as in England; in the former, the test having no particular reference to tidal waters, while in the latter, water being tidal was the test. But it lately has been urged in a case decided in New York Court of Appeals that a grant bounding on a river made in colonial times was governed by the tidal rule; that is to say, a grant on a fresh water stream went to the middle of the river at all events. Danes v. State, 113 N. E. 786.

The court said: "The fact that the grant was made by the British crown and before the people of the state became its successor in the title is not of any weight. The colony as well as the state had legislative bodies and courts. The common law of England has, from the founding of the colony, been applied only so far as deemed applicable to the condition of the territory and the situation and circumstances of the colony. The royal grants, whether made by the crown itself or its representatives, were made with reference to and to be regulated by the common law as adopted and administered in the colony. The exceptional conditions causing the common law of the colony and state to include the rule that the beds of the Mohawk and of the Hudson Rivers were public domain, the title to which is in the state, existed and were recognized from the birth of the colony."

We believe it would be quite difficult to evolve from colonial decision the rule thus announced, or to maintain that, if the king intended when he made a grant with a fresh water boundary, that the grantee should hold to the middle thereof, the rule declared by the states would relate back and effect a divestiture.

NEGLIGENCE-WILLFUL AND WANTON INJURY TO LAWBREAKER.-In Illinois Cent. R. Co. v. Messina, 72 So. 779, decided by Supreme Court of Mississippi, there is a discussion in dissenting opinion of what is meant by willful and wanton injury to a trespasser.

The case shows that a recovery was had by plaintiff, who was injured by a railroad engineer recklessly running his engine into high water on a railroad track and causing it to overturn. The plaintiff was riding on the engine by permission of the engineer and judgment of the State Supreme Court in plaintiff's favor was reversed upon the ground of its wrong construction of Act of Congress in re

spect of the attitude assumed by plaintiff in riding on the engine by permission of the engineer, it being held that thereby he in effect became guilty of an unlawful act. This left the question to be decided by the state court whether as thus violating law he ought to have been allowed to recover.

The majority held that though plaintiff was violating law, yet this violation did not contribute to his injury, it being merely a condition and not a contributing cause.

The dissent spoken of above says: "The Supreme Court of the United States places the plaintiff in the attitude of a lawbreaker. If he had been riding in the coaches provided for passengers he would not have been injured. By an unlawful understanding with the engineer, he places himself in a perilous position and as a result of his perilous position he is injured. * * *When injured, therefore, he at best was a willful trespasser, and as such the railroad company owed him no duty except not to willfully or wantonly injure him. On the facts of this record I concede the negligence of the engineer in running his train into the washout and causing the wreck. But this negligence is not of the character to impute to the engineer or the railway company, any desire willfully to injure plaintiff and the facts are not sufficient to show a wanton disregard of his life."

It seems to us that this dissent takes "willful" in a narrow sense. It is more like reckless or wanton and these words impute results to actors the same as if they were consciously intended. It does, however, seem hard to hold a railroad liable for recklessness as towards one who is more than a mere trespasser, under such circumstances as here appear. The engineer was not authorized to give the permission he did and presumptively the plaintiff knew he was a lawbreaker in acting on the permission. He accepted by every implication the consequences of riding on the engine the same as had permission been given by a vice principal upon express understanding to this effect.

JUDGMENT-ANNULMENT IN SUIT BY PLAINTIFF OF JUDGMENT ANNULLING A MARRIAGE.-Davidson v. Ream, 161 N. Y. Supp. 73, presents what would appear to be a case somewhat unprecedented. It shows that plaintiff brought a suit to set aside decree obtained by herself obtained in a proceeding to annul a pretended marriage with defendant. In the second suit, she declares that what she sought and obtained in her former suit, should be vacated, because it was fraudulently obtained by advice of defendant's attorneys confirmed by

her own attorneys, she after rendition of the decree accepting a large sum of money in settlement of all her rights against defendant. The second suit was held maintainable and relief prayed for was granted by New York Supreme Court.

The court considers all of the testimony and holds that the former decree should not have been rendered and both "the plaintiff and the court had been misled."

But it was urged that "Plaintiff being the party plaintiff and having received large monetary consideration in settlement of her rights against defendant, she is now estopped to deny the validity of the judgment. If this is so, then parties may themselves dissolve the marriage contract; for in cases where a judgment as here has been obtained against good conscience and without right, the court would not be at liberty to correct it. A party obtaining an invalid decree of divorce, or an invalid judgment annulling the marriage, is not estopped from calling it in question."

The suggestion here opens a very wide door. Thus, it was said: "The record points conclusively to the fact that plaintiff was not only wrongly advised, but overreached." If, how ever, a judgment of this kind is merely wrong the court declares it must be corrected by appeal. This is very wide in its reach of judg ments obtained by collusion between parties or by one overreaching the other, and one, it would seem, could not estop himself or herself, by being a willing or unwilling instrument in imposing upon a court.

Further observation by the court was that "any other result than that indicated would leave the court in a false position and a grave wrong would stand uncorrected. The position in which defendant will be placed if the judgment is vacated is entirely of his own making." But let it be remembered that the former decree stood for, 4 years before the proceeding to annul was brought. It happened that he had not married another. Suppose he had, would the court then allow the former decree to be annulled? A rule of equity or law ought not to depend upon facts not in existence at the time of a transaction that is in question. It would, however, be a grave injustice to declare the wife and children of a later marriage entered into in the face of a record justifying it, to be occupying an illegal status.

There seemed to be in this judgment more a condemnation of the defendant than a consideration of legal principle, for which course there seemed great temptation for the court to follow.

INDEPENDENT WRONGDOERS CAUSING OR CONTRIBUTING TO A NUISANCE.

In 83 Cent. L. J. 261, there appears a case holding that where two distinct through corporations, their separate manufacturing plants, discharge noxious and poisonous gases and thus cause a nuisance, they may not be sued jointly or one of them for the entire damage, but each is liable only for his proportion of the damage caused.1 There was some annotation to this case in which decision squarely opposed to this ruling was cited, and, where it was claimed that whatever may be the rule generally, as to independent tortfeasors acting wholly without concert, yet if their acts together create a public nuisance they are to be deemed joint wrongdoers. It is desired here to ascertain in a fuller investigation than was entered into in the above annotation, the rule upon the above subject, and whether, if contrary to the Georgia holding, there are any exceptions thereto.

Injunction Against Independent Tortfeasors. It would seem to be manifest, that precisely the question proposed to be considered might not arise in a proceeding by injunction to restrain tortfeasors who, acting separately and independently one from the other together produce a harmful result. This is illustrated in a Maine case,2 where the bill was to enjoin a nuisance from the deposit in a river of refuse from separate sawmills in great quantities. It was said: "The acts of the respondents may be independent and several, but the result of these several acts combine to produce whatever damage or injury these complainants suffer and in equity constitutes but one cause of action."

So also was the conclusion of a Wisconsin case, where the waters of a lake were low

3

(1) Key v. Armour Fertilizer Works, et al., Ga. Ct. of Ap., 89 S. E. 593.

(2) Lockwood v. Lawrence, 77 Me. 297.

(3) Draper v. Brown, 115 Wis. 361, 91 N. W. 1001.

ered below their accustomed level by the several acts of respondents done in different ways. It was said that the fact that the defendants were not acting in concert was no defense against injunctive relief, the question as to each defendant being whether he contributed to produce the result complained of. It may be more apparent that equity should grant relief, if the independent wrongdoers could not be jointly sued for the entire damage, than if they could not be. But it has been held that even if they could be joined in a single suit, they also might be enjoined. Equity in a proceeding to enjoin would not seem to be interested at all in the question, whether the independent acts combining to produce a wrongful result, are torts or violations of contract. Thus where the property rights of plaintiff in a stream for irrigation claimed diversion by others impairing his contract rights, he could enjoin diverters, though he asked for no damages whatever." A New York case" held that it was unnecessary to decide as a condition precedent to granting injunction to restrain a nuisance from pollution caused by independent participants in its creation, whether any damages could be recovered at law.

Acts of Independent Wrongdoers not Concurrent. If a stream polluted by the acts of an upper riparian owner is further polluted by a lower owner it would seem. very clear, that, if the lower owner was ignorant of the pollution, what he does is to be looked at as if he was discharging into an unpolluted stream. And why should the upper owner become liable, if the pollution he causes would not be hurtful unless increased? May he be held to anticipate that the lower proprietor will perfect or complete his inchoate tort? A Connecticut case seems interesting on both of these queries. This case was a suit against an in

dividual for an insufficiently covered channel to carry off the flow of water therein, thereby causing plaintiff's premises to be overflowed with sewage from a city emptying therein. The court said: "Even supposing the defendant to be liable for so much damage was caused by the (alleged) inadequacy of his channel for the accommodation. of the natural flow of the brook, and the city to be liable for that part of the damage caused by the artificial increase in the flow, yet they cannot upon any principle be regarded as jointly liable. *** To the city the defendant's covered channel was precisely what a narrow gorge in the rocks would have been-ample for the natural flow, wholly insufficient for the artificially increased flow. The torts of the defendant and the city have in law nothing in common. It is not enough to make torts joint that the acts constituting them stand even in immediate juxtaposition both in time and place. There must be a oneness of act. * ** Here there is not even a juxtaposition of the wrongful acts The fact that the effects of their several wrongful acts are produced at the same time and place cannot affect the question."

In a New York case one of several parties was sued for the entire damage in the pollution of a natural stream. It was said: "The right of action arises from the discharge into the stream, and the nuisance is only a consequence of the act. The liability commences with the act of the defendant on his own premises, and this act was separate and independent of and without any regard to the act of others. The defendant's act being several when committed, cannot be made joint because of the consequences which followed in connection with others who had done the same or a similar act." Several cases were cited as opposed to this principle, but the court said: "They merely hold that where a direct personal injury is occasioned by the separate

(8) Chipman v. Palmer, 77 N. Y. 51, 33 Am. Rep. 566.

and concurring negligence of two parties at one and the same time, an action against one or all will lie. The distinction is plain between these cases and one where the injury is remote from the act and consequential and the result of separate acts of different parties at different times, without any association and independent of each other. *** While, as we have seen, an equitable action will lie to restrain parties who severally contribute to a nuisance, the general rule is well settled that where different parties are engaged in polluting or obstructing a stream, at different times and places, the whole damages occasioned by such wrongful acts cannot be collected of one of the parties."

In an English case" the Lord Chancellor said: "It is only where you can have placed face to face before you the various persons who are said to be polluting the same stream by the same process and by similar acts that you can decide whether they are all culpable or not." This does not say "at the same time," but it seems to mean that.

In an Ohio case10 there was suit against a city for pollution of a stream with sewage, and the city claimed that if there were pollution to the extent that a nuisance was created this was by other riparian proprietors. The necessity of concurrent negligence is indicated by asking: "If I give you a beating to-day, or rather, if you to-day beat me, and to-morrow another does likewise, and in consequence I take to my bed, are you liable to me in damages for all of my injuries, because your act was unlawful?" And as showing that the tort was a criminal and also a civil tort not affecting the question of joint and several liability, it was said: "That an act was a delict, as distinguished from a quasi-delict, may be a reason for denying contribution among

those answerable for it, but it is not a ground for making one wrongdoer answer for the wrongs of another merely because they result in injury to the same person."

Rules Where Acts are Concurrent or Deemed So. Many cases, as for example, City of Mansfield v. Bristow, supra, do not much discuss or particularly regard the fact of concurrence in point of time of the commision of the acts of each wrongdoer. One of the early cases11 on this subject concerned the filling up of a dam by deposits of coal dirt from different mines on the stream above, this going on for years. Defendant owners of collieries throwing the coal dirt into the stream were joined in one action by the owner of the dam. The trial court charged the jury, in effect, that, if at the time the defendants were engaged in throwing the coal dirt into the river about ten miles above the dam, the same thing was being done at the other collieries and the defendants knew of this they were liable for the combined result of all the series of deposits of dirt from the mine above from 1851 till 1858. This proposition, it is perceived, fills the requirement of concurrence, knowledge thereof to supply the condition. of concert. The Supreme Court speaks of this doctrine as "novel, though the case itself is not new." If it is correct it "is well calculated to alarm all riparian owners, who may find themselves by a slight negligence overwhelmed by others in gigantic ruin." The opinion goes on to say: "If instead of coal dirt, others were felling trees and suffering their branches to float down the stream, finally finding a lodgment in the dam with the coal dirt, he who threw in the coal dirt and he who felled the trees would each be responsible for the acts of the other."

Then the case says: "But the fallacy lies in the assumption that the deposit of the dirt by the stream in the basin is the

(11) Little Schuylkill Nav. R. & C. Co. v. Richards, 57 Pa. St. 142, 98 Am. Dec. 209.

foundation of the liability. It is the immediate cause of the injury, but the ground of action is the negligent act above. The right of action arises upon the act of throwing the dirt into the stream—this is the tort, while the deposit below is only a consequence. The liability, therefore, began above with the defendant's act upon his own land, and this act was wholly separate and independent of all concert with others. His tort was several when it was committed, and it is difficult to see how it afterwards became joint, because its consequences united with other consequences."

This reasoning appears to us very unsatisfactory, when the charge by the court below predicated joint and several liability on the fact, that defendants above knew of the desposits being made below. If defendants deposited dirt for a number of successive days it would scarcely be held that each day's deposit could be deemed a separate act. And so if instead of others they also made deposits below. It seems idle to talk about the tort being confined in such a case to "the act of throwing the dirt into the stream," and the deposit below being a mere consequence. One is liable for the consequences to be anticipated from at wrongful act. If two separate acts by the same person may be joined as one act, just as two blows of a fist in a fight may be joined, why should not an act by a person known to be added to by the act of another, make both actors responsible? It is conceivable, that, if the upper riparian owners knew that lower owners were depositing dirt, but only some of the lower owners knew the upper were so doing, only those with knowledge could be joined in one suit. It would seem that knowledge would be a sufficient predicate for the conclusion of

concert.

The court further says: "Without concert of action no joint suit could be brought against the owners of all of the collieries." Granted; but suppose each had knowledge of all that the others were doing?