is the easement "created"? Is it when the graut is made or when the estate vests in the grantor? Or is the grant void? The section is so specific and prohibitory that the rules of the former law could not probably be resorted to and the grant would accordingly be void. In any event extensive litigation would be necessary to settle the question anew. The effect of a covenant of warranty in working a change of title does not appear to be provided for in the Code.

§ 249. A servitude thereon cannot be held by the owner of the servient tenement.

COMMENT.

This section is highly misleading. There is no color for it in the existing law in its breadth of statement. It is true that in general where the two interests are both held in fee by the same person, the easement will be at an end, owing to the technical doctrine of merger or" extinguishment," to the effect that inconsistent interests of the same quantity are not to be held by the same person. It is absolutely essential to the operation of the principle that the owner of the two interests should have an estate in fee simple in both of them of an "equally perdurable nature." This is a settled doctrine as old as Coke upon Littleton, (Co. Lit. 313, a and b.; Gale & Whately on Easements, 349.) The section in the "Civil Code" excludes this limitation. The section without any qualification says that the easement cannot be held under the terms therein specified. The most that could properly be said is that there might be a suspension. Even if the two interests be held in fee, there will be no merger if one is held in fee simple absolute and the other as a fee qualified (Carthew R. 241). But even if the two interests are held in fee, the rule of the section is not universally applicable. In order that there may be a merger or extinguishment the two interests must be held in the same right. If the easement were held by one person in the right of another, as e. g. as a trustee, and the servient estate in his own right, there would be no merger at least in the view of equity, particularly where the union of the estates takes place by the act of the law. (4 Kent Comm. 102; 3 Cruise's Digest, [Greenleaf's ed.] 572, §§ 63, 64, also page 586, § 118.)

$ 250. The extent of a servitude is determined by the terms of the grant or the nature of the enjoyment by which it was acquired.)

COMMENT.

The first half of this section is a mere truism. It is equivalent to the statement that when a servitude is acquired by grant its extent is determined by the terms of the grant. It needs no ghost from heaven or elsewhere to tell us that.

"The extent of a servitude * * is determined by the nature of the enjoyment by which it was acquired." But there is not in the whole Code a section which shows how a servitude can be acquired by enjoyment. The existing law is very full on this subject and gives many rules in detail as to the mode of acquiring a right by prescription. The Code has a couple of sections, SS 440, 441 on prescription, but these only refer to occupancy as applied in the Code of Civil Procedure, or, in other words, to the statute of limitations which has no relation to the acquisition of easements held by one person in the land of another through the medium of the common-law doctrine of prescription. Here is a true feast of the Barmecides. We are invited to a magnificent banquet where every thing is provided except the viands.

§ 251. In case of the partition of the dominant tenement, the burden must be apportioned according to the division of the dominant tenement, but not in such a way as to increase the burden upon the servient tenement.

COMMENT.

Here is found the new doctrine of compulsory apportionment. This will, for the most part, be found to be impracticable. Suppose that a railroad company, in accordance with subdivision 15 of section 245, has made an arrangement with a proprietor of land to stop its trains for ten minutes to give passengers an opportunity to eat at such proprietor's eating-house. This proprietor divides his "ten acre lot" into one acre lots and sells them to respective purchasers. Can each one put up an eating-house and claim his portion of the easement? If one should secure more guests than his share, could he be made to account in a court of equity for the profits? Again, A. has a mansion house and back land. From his mansion he has prospect over the land of B. Assume, for the moment, that this kind of easement still exists, notwithstanding section 245. A. sells his back lot which has no "coign of vantage," no mount of vision. How can the right be apportioned? And yet it must be. Let men of a mathematical turn of mind think out other instances which would readily suggest themselves and solve the puzzle.

The true solution of the question is, that the right of apportionment must be flexible and not compulsory, depending on the circumstances of the case. The rule is stated correctly in Hills v. Miller, 3 Paige, 254. Apportionment is to be made as far as that is ap

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plicable."

§ 252. The owner of a future estate in a dominant tenement may use easements, attached thereto for the purpose of viewing waste, demanding rent or removing an obstruction to the enjoyment of such easements, although such tenement is occupied by a tenant.

COMMENT.

This section is a striking instance of a practice very common in this Code. The author of it seizes upon an exception and at once exalts it into a general rule. The case of Proud v. Hollis, 1 B. & C. 8, established the proposition that a landlord might use a right of way for the purposes named. This rule cannot reasonably be extended to all easements. Shall a landlord come to the "seat in church" of his tenant to demand rent? May he go to the burial vault of the tenant's family for that purpose? Nor can it properly be extended to all owners of future estates, such as executory devisees, etc. The whole rule is a special doctrine in the law of landlord and tenant and is to be confined to the precise case made in Proud v. Hollis, supra.

§ 253. The owner of any estate in a dominant tenement or the occupant of such tenement may maintain an action for the euforcement of an easement attached thereto.

COMMENT.

In this section there is the same error in generalization as in Section 252. This rule cannot possibly be extended to all easements, not even to all named in Section 245. Suppose an occupant or tenant, for a few weeks, dies, is there a right of burial in his behalf, or if there be an "easement " for a seat in a church, are all the occupants of the dominant tenement entitled to the seat? The case of Brouwer v. Jones, 23 Barb. 153, only decided this point in respect to a covenant against nuisances, an offensive trade being carried on by which a life tenant (p. 163) suffered; all that was said about an occupant was a dictum. The principle of this case can only be extended to other cases where the benefit of the easement is applicable to a life tenant, etc., and he must prove affirmatively that the benefit of the covenant was intended for him. (Trustees of Watertown v. Cowen, 4 Paige, 410, 514; Barrow v. Richard, 8 id. 351.) § 254. The owner in fee of a servient tenement may maintain an action for the possession of the land against any one unlawfully possessed thereof though a servitude exists thereon in favor of the public.

COMMENT.

The meaning of this section apparently is that the owner in fee of land, over which a highway extends, may bring an action "for the possession of land” (viz., an action of ejectment) against one "unlawfully possessed thereof." The phrase "unlawfully possessed thereof," as here used, is extremely indefinite. When is one "unlawfully possessed" of ground on which a highway runs? He may have a pile of lumber there. He may be a traveller and instead of "moving on" be sleeping at noonday.

The general action in cases of unlawful possession is trespass for damages. In special cases where acts of ownership are performed, as where a railroad company unlawfully lays down tracks, ejectment will lie. Such was the case in Wager v. Troy Union R. R. Co., 25 N. Y. 526. Under this section it would appear that an action of ejectment might be brought against a player of a hand organ who continued his occupation in the street against the adjacent owner's will. The correct distinction is stated in the case last cited on page 534. The rule is still more distinctly shown in Strong v. The City of Brookyn, 68 N. Y. 11. There the language is where there is a right of way in the public, the owner of the fee may maintain ejectment against one who takes possession and claims to hold it, excluding the owner, citing Goodtitle v. Alker, 1 Burr. 133; Jackson v. Hathaway, 15 J. R. 447, or who is occupying the entire possession and denying the demandant's seizin, citing Morgan v. Moore, 3 Gray, 319. There is still, one may hope, notwithstanding all our revolutions in procedure, a difference in substance between an action of trespass and of ejectment.

But still further when an action of ejectment is proper, why confine it to the owner of the fee? The cases of Carpenter v. Oswego, etc., R. R., 24 N. Y. 655, and Wager v. Troy Union R. R. Co., supra, only decide that an owner in fee of the highway can bring his ejectment. They do not decide that a life tenant cannot. What reason can be given why such a tenant should not be allowed to eject a railroad company which was unlawfully incumbering the highway in front of his mansion house with tracks, turn-tables, etc? § 255. A servitude is extinguished:

1. By the vesting of the right to the servitude and the right to the servient tenement in the same person. 2. By the destruction of the servient tenement.

3. By the performance of any act upon either tenement by the owner of the servitude or with his assent, which is incompatible with its nature or exercise.

4. When the servitude was acquired by enjoyment. by disuse thereof by the owner of the servitude for the period prescribed for acquiring title by enjoyment.

COMMENT.

(1) The first mode of extinguishment, as has been shown in commenting upon Section 249, is by no means of universal application. The two interests must be held in the same right, and the quantity of interest must be the same. If there be a fee in the land the same person must have a fee in the easement. The two estates must be equal in quantity and in quality, and all other circumstances of right. Additional cases are Thomas v. Thomas, 2 C. M. & R. 34, and note; Tyler v Hummond, 11 Pick. 193-220; 2 Washburn on Real Property (4th ed.) 373.

(2) What does the "destruction" of the "servient tenement" mean? These "land burdens" are only attached to land, Section 245. By Code, section 164, "Land is the solid material of the earth whatever may be the ingredients of which it is composed, whether soil, rock or other substance." Then that can be destroyed. What becomes of the doctrine of the indestructibility of matter? The author of the Code is not content with destroying rules of law; he

desires also to subvert principles of natural philosophy. If the destruction of the "servient tenement" is to be spoken of, the definition of that phrase should be made more comprehensive and not confined strictly to land as defined by the Code. The taking down of a pew in a church might be subversive of the easement of a seat there, but it would not come within the codifier's definition of "land."

(3) This provision is unsound and dangerous.

It would be alarming, indeed, if any act incompatible with the nature or exercise of the easement should, as a matter of law, extinguish it, as it will if this section is adopted by the Legislature. Under the existing law such acts are to be resorted to as evidence of an intent to abandon the easement. That is not matter of law but a question of fact for the court or jury, as the case may be. (Crossley v. Lightowler, L. R., 3 Eq. 279. See Stokoe v. Hewsingers, 8 E. & B. 31.) In

this case the owner of a warehouse with windows stopped some of them on the inside and they remained so for nineteen years. This was certainly an act incompatible with the exercise of the easement, which would be the admission of light, and yet the easement as between the parties was not lost. The whole subject was extensively considered in White's Bank of B. v. Nichols, 64 N. Y. 65. It is there said that a claim by the owner of the easement, inconsistent with it, does not have the effect to extinguish it." (Same case, p. 74, citing Smyles v. Hastings, 22 N. Y. 217, and other cases.) It might be different in the existing law as to third parties who had acted on the faith of an abandonment as the doctrine of estoppel might be invoked in their favor. Same case, p. 74, and cases cited. (It is uncertain under this Code whether the doctrine of estoppel could be applied.) In White's Bank case, supra, the owner of the easement laid claim to the fee and acted on the claim, and yet he did not lose the easement. Gale on Easements, 527.

(4) The fourth Code method of extinguishment labors under the difficulty that there is no period provided in it for acquiring title to an easement by enjoy. ment. The Statute of Limitations in the Code of Procedure cannot be regarded as such a mode. There can, accordingly, be no disuse for the "period prescribed for acquiring title by enjoyment," unless that be sought outside the Code. Is there any right to seek it elsewhere? If all these matters are to be sought outside the Code, why have such a delusive scheme as a Code containing nothing of practical importance?

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Several highly important modes of extinguishing an easement or servitude" are omitted from this section. (1) Release. This is the only direct method. It is made by the owner of the easement to the owner of the servient estate.

(2) Adverse possession. This becomes important where an easement is acquired by grant. This is not lost at present by non-user. The owner of the servient estate must, during the time prescribed by the Statute of Limitations, perform acts on the land asserting an exclusive possession inconsistent with the exercise of the easement. Smyles v. Hastings. 22 N. Y. 217; Jewett v. Jewett, 16 Barb. 150.

(3) Where the owner of the dominant estate materially increases the burden of the servitude, if the easement is of an indivisible nature and the increase cannot be separated from tho true right, as for example, if a window be enlarged and the servient owner have no practicable method of reducing it to its proper size. (Renshaw v. Bean, 18 Ad. & El. (N. S.) 111; Hutchinson v. Copestake, 3 C. B. N. S. 102.) Still if the excessive claim can be separated from the lawful claim, it will be and the easement thus upheld (Gale, 534, citing Luttrell's case, 4 Coke's Rep. 86a)

All that is contained in the chapter on Easements,

with the exception of one or two truisms in Section 247, has now been considered.

It still remains to notice the general imperfection and weakness of the treatment of the subject in the way of omission, etc.

omitted.

(1) The whole subject of implied easements is This has assumed great proportions since the celebrated case of Pyer v. Carter, 1 H. & N. 916 (A. D. 1857) where an easement of drainage was judicially established by implication, on the severance by sale of an entire property into two parts with distinct ownerships. The principle with some qualifications has since been repeatedly recognized in England (Chadwick v. Marsden, L. R., 2 Ex. 289; Davies v. Sear, L. R., 7 Eq. 427; Evart v. Cochrane, 5 L. T. N. S. 1) and in this country where the drain or other easement is apparent. (See also Lampman v. Milks, 21 N. Y. 505; Simmons v. Cloonan, 47 id. 3; Butterworth v. Crawford, 46 id. 349; Curtiss v. Ayrault, 47 id. 73.)

(2) The entire subject of gaining title to an easement by prescription with its requisites and limitations is omitted. This has been noticed in another connection. The topic is one of the greatest importance and extensively treated by writers on this branch of the law.

(3) No rules are given for regulating the rights of the respective owners of the dominant and servient estates. There is not a word about the right to repair and on whom the duty fails; nothing about "ancient lights;" no explanation of a party wall, nor any statement of the rules that govern it and distinguish it from a common wall; nor is there any thing about artificial watercourses and the principles distinguishing them from natural water-courses as considered in the leading case of Arkright v. Gell, 5 M. & W. 203; nothing of the effect of negligence by either party as bearing on the rights of the other, nor of the disturbance of the easement and the remedies by way of prevention or damages according to the circumstances, whether committed by the servient owner or some stranger. Other cases of omissiou might be stated if it were not desirable to keep this article within prescribed limits.

(4) There is no notice of the distinction laid down by all text writers and many decisions between continuous and discontinuous easements, and no notice taken of the special rules which govern them respectively. Gale on Easements (ed. 1868), pp. 22, 560.

(5) The highly important distinction between an easeinent and a license is not noted, and when the latter may be executed and the effect of the execution in special cases in the view of a court of equity.

Now I ask and press the question in all candor and good faith, of what practical service are such sections as these, if enacted into statute law? If every word in them was sound their enactment would be of no substantial service. It is not on points like these that legal controversies are now apt to turn. When erroneously stated however as they are here, the error is of far reaching consequences. They contain elementary and basal propositions. Like unsound postulates in mathematics they imperil the whole structure erected upon them. A lawyer having a specific case in easements could go to them for no scientific information but only to be misled.

I now insist that the eleven sections taken at random are to be regarded as indicating substantially the character of the whole Code. This is presumed to be the work of one mind, or if of more than one, of minds having the same general plan and purpose. I have read it sufficiently to be sure that the same class of errors and defects exists throughout its entire frame work and structure. It is crowded with generalities and enunciations of general principles without committing itself to details. These principles are stated imperfectly and for the most part erroneously. That this is true in other branches of the law than easements is not without distinct and satisfactory evidence. Mr. James

C. Carter, of New York, a master of the law of shipping and marine insurance, has conclusively shown, in a printed pamphlet recently issued, that the same characteristics appear in the treatment of " general average." This view is accompanied by the emphatic indorsement of A. Foster Higgins, Esq., one of the most competent adjusters of marine averages in the city of New York, who says that he finds in the eight section on that subject obscurities, novelties and positive and gross errors sufficient to throw the whole administration of this highly important branch of the law into confusion, and that it would be alarming to the maritime interests of the city of New York, were it probable that these sections should be declared to be the law of the State.

This so-called "Civil Code" needs only to be studied to be condemued by all reasonable men who desire the welfare of the State, the advancement of jurisprudence, and increased skill and attainment in the practice of our profession. THEODORE W. DWIGHT.

NEW YORK, April 26, 1882.

STATE STATUTES IMPAIRING CONTRACT." SUPREME COURT OF THE UNITED STATES, MARCH 6, 1882.

TOWN OF KOSHKONONG V. BURTON.

1. Limitation under the statutes of Wisconsin to actions upon coupons of municipal bonds issued in 1857, payable twenty years after date. The cause of action upon a coupon, whether detached from the bond or not, held to accrue, and limitation to commence, from its maturity, reaffirming Amy v. Dubuque, 98 U. S. 471.

2. It is within the constitutional power of the Legislature to require, as to existing causes of action, that suits for their enforcement shall be barred, unless brought within a less period than that prescribed when the contract was made, or the liability incurred, from which the cause of action arose. The exertion of this power is therefore subject to the fundamental condition that a reasonable time, taking all the circumstances into consideration, be given by the new law before the bar takes effect.

3. If interest upon interest, whether arising upon express or implied agreement, is allowed by the local law at the time of the contract, that right cannot be impaired by a subsequent legislative declaration as to what was, in the judgment of that department, the true intent and meaning of the statutes, prescribing and limiting the rate of interest in force when the contract was made. The utmost effect to be given to such legislative declaration is to regard it as an alteration of the existing law in its application to future transactions.

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N error to the Circuit Court of the United States for the Western District of Wisconsin. The opinion states the case.

HARLAN, J. The object of this action which was commenced on the 12th day of May, 1880, is to recover the amount due on bonds with interest-coupons attached, issued on the first day of January, 1857, by the town of Koshkonong-a municipal corporation of Wisconsin pursuant to authority conferred by an act of the Legislature of that State. They were made payable to the Chicago, St. Paul and Fond du Lac Railroad Company, or its assigns, on the first day of January, 1877, at the American Exchange Bank in the city of New York, with interest at the rate of eight per cent per annum, payable semi-annually on the presentation of the interest-warrants at that bank on the first day of each July and January, until the principal sum should be paid. Of the bonds in suit, with their respective coupons, Burton became the owner by written assignment from the railroad company indorsed upon the bonds under date of November 16, 1857. None of the coupons have ever been detached

from the bonds nor paid, except those maturing July 1, 1857, and January 1, 1858.

The coupons are all alike except as to dates of maturity. They are complete instruments capable of sustaining separate actions without reference to the maturity or ownership of the bonds. 21 How. 545-6; 20 Wall. 583; 98 U. S. 473. The following is a copy of the one last due: "The town of Koshkonong will pay to the holder hereof on the first day of January, 1877, at the American Exchange Bank in the city of New York forty dollars, being for half-yearly interset on the bond of said town No. 22 due on that day. S. R. Crosby, clerk."

The main question is whether the action, as to coupons maturing more than six years prior to its commencement, is not barred by the statutes of limitation of Wisconsin. The court below being of opinion that no part of plaintiff's demands was barred, gave judgment for the principal of the bonds with interest from the first day of January, 1877, at the stipulated rate of eight per cent per annum until paid, and also for the amount of each coupon in suit with interest from its maturity at the rate of seven per cent per annum— the latter being the rate established by the local law in the absence of a special agreement by the parties.

The present writ of error questions the correctness of that judgment as well because it overrules the defense of limitation to coupons maturing more than six years before the commencement of this action, as because it allows interest upon the amount of each coupon from its maturity.

The statutes of Wisconsin in force when the bonds and coupons were issued provided that "all actions of debt founded upon any contract or liability not under seal" (except such as are brought upon the judgment or decree of some court of record of the United States or of a State or Territory of the United States), shall be commenced within six years after the cause of action accrued and not afterward; and that all personal actions on any contract not otherwise limited by the laws of the State, shall be brought within twenty years after the accruing of the cause of action. R. S. Wis., 1849, §§ 14 to 22, pp. 644-5.

We remark that the foregoing provisions, without substantial change of language, were taken from the statutes of the Territory of Wisconsin adopted in 1839. Further that the revision of 1849 did not, in terms, prescribe any limitation to actions upon sealed instruments. They were therefore embraced by the limitation of twenty years as to personal actions on contracts not covered by other provisions.

The revision of 1849 was superseded by one made in 1858, which went into operation on the 1st day of January, 1859. By the latter, as modified by an act passed in 1861, civil actions other than for the recovery of real property, were required to be commenced within the following periods: Actions upon judgments or decrees of courts of record of the State, and actions upou sealed instruments when the cause of action accrued in the State, within twenty years, R. S. Wis., 1858, chap. 138, § 15; actions upon the judgments or decrees of courts of record of any State or Territory of the United States or of courts of the United States, and actions upon sealed instruments when the cause of action accrued out of the State, within ten years, id., § 16; and actions upon contracts, obligations or liabilities, express or implied, excepting those mentioned in sections fifteen and sixteen, within six years the time to be computed in each case from the date where the cause of action accrued. Gen. Laws Wis., 1861, p. 302. The revision of 1858 also contained the general clause that "in any case where a limitation or period of law prescribed in any of the acts hereby repealed (which included the revision of 1849) for the acquiring of any right or barring of any remedy, or for any other purpose, shall have begun to run and the

same or any similar limitation is prescribed in the Revised Statutes, the time of limitation shall continue to run and shall have the like effect as if the whole period had begun and ended under the operation of the Revised Statutes." Id., ch. 191, § 13, p. 1038.

Thus stood the law of the State until the 9th day of March, 1872,-a little over fifteen years after these bonds and coupons were issued when an act was passed entitled "An act to limit the time for the commencement of action against towns, counties, cities, and villages on demands payable to bearer." It provided that " no action brought to recover any sum of money on any bond, coupon, interest-warrant, agreement, or promise in writing, made or issued by any town, county, city or village, or upon any installment of the principal or interest thereof, shall be maintained in any court unless such action shall be commenced within six years from the time when such sum of money has or shall become due, when the same has been or shall be made payable to bearer, or to some person or bearer, or to the order of some person or to some person or his order; provided, that any such action may be brought within one year after this act shall take effect; provided, further, that this act shall in no case be construed to extend the time within which an action may be brought under the laws heretofore existing." Gen. Laws Wis., 1872, p. 56.

Our attention has also been called to certain sections in the revision of the statutes of Wisconsin of 1878. which went into operation on the first day of November of that year, superseding that of 1858 as well as the act of 1872. Those sections contain in substance the clauses first quoted from the revision of 1858, with the modifications made by the act of 1872. R. S. Wis., 1878, p. 1,015-16. It is to be observed in this connection for it has some bearing upon what we shall presently say - that section 4,220 of the revision of 1878 in terms prescribed twenty years as the limitation for "an action upon a sealed instrument when the cause of action accrues within this State, except those mentioned in section 4,222," while the latter section embraces among others "an action upon any bond, coupon, interest-warrant, or other contract for the payment of money, whether sealed or otherwise made or issued by any town, county, city, village or school district in this State," - thus indicating that the framers of the revision of 1878 regarded municipal securities for the payment of money as belonging to the class of sealed instruments. We observe also that the revision of 1878 contains a provision in reference to those cases in which limitation had commenced to run similar to that already quoted from the revision of 1858. R. S., 1878, § 4,984; R. S., 1858, p. 1,038.

From the foregoing summary it will be seen that by the local law, when the bonds in suit were issued, all civil actions for debt, founded on contract or liability, not under seal (except actions upon judgments or decrees of some court of record of the United States, or of a State or Territory), could be brought within six years after the cause of action accrued, and not afterward; while such actions, if founded on contract or liability, under seal, would not be barred until twenty years after the cause of action accrued. If, as contended by plaintiff, the question of limitation is to be determined exclusively by the revision of 1849, in force when the bonds were issued; and if, as is further insisted, an action on municipal bonds and coupons, such as are here in suit, is, within the meaning of that revision, founded on contract or liability not under seal,' it is clear that without reference to the statute of 1872, this action is barred as to all coupons maturing more than six years before its commencement, whether such coupons were separated or not from the bonds to which they were originally attached. This upon the authority of Amy v. Dubuque, 98 U. S. 478, with the doctrines of which we are entirely satisfied. We there said, con