Page:Harvard Law Review Volume 10.djvu/210

l84 HARVARD LAW REVIEW. England that he cannot complain of the loss of support of underground water, whether collected in a body {N'ortkeasfe7'n Ry. Co. v. Elliot, i J. & H. 145), or dispersed through the soil {Popplewell v. Hodkinsoii, 4 Exch. 248), though the dainage be directly caused by the acts of his neighbor. On the other hand, it is estabhshed that he is entitled absolutely to the support of the soil under him, even though it be so soft that a neighbor digging on the adjoining land is obliged to take extra- ordinary precautions to keep it from falling away. Gilmore v. Driscoll, 122 Mass. 119. The question then is whether the courts are to liken this sort of quicksand to soil or to water. It seems at first to be rather soil than water ; but when it is considered that the essential distinction between earth and water for the purpose of such a case lies rather in the liquidity of the latter than in its chemical composition, it may be doubted whether the minority of the court was not right in treating everything that could be taken up by pumps as water. A Church Divided against Itself. — In the case of Smith v. Pedigo, 44 N. E. Rep. 363, and 33 id. 777, we have the practically unanimous opinion of the Supreme Court of Indiana on the interesting question as to whether a church may change its doctrine and yet keep the property that has been given it. An unincorporated religious society was known as the ^' Mt. Tabor Regular Baptist Church," and held property given to it by that name, the title being vested in trustees elected by the society. The members were originally all ** Regular Baptists," holding the strict Calvinistic, or ** anti-means," doctrine of salvation. Rehgious con- troversies arising, a majority of the members turned to the opposite or " means " doctrine, and changed the name of the church to the " Mt. Tabor Means Baptist Association.'* The society was then divided into two factions, each of which declared itself the true Mt. Tabor Baptist Church, expelled the other faction, elected trustees, and claimed the church property. One faction had the majority of the old society, but new doctrines and a new name. The court held that the minority who adhered to the old doctrines and name were entitled to the church property. The cases cited by the court, though not perfectly clear, appear to support this view ; and probably the weight of authority is in its favor. Yet the question may well be considered doubtful. In Massachusetts during the early part of the century a great number of churches turned from Trinitarian to Unitarian, and kept ' the church property, against the vigorous protests of faithful minorities. The Indiana court seems to have misapprehended two of the cases arising out of this religious revolution, Baker v. Pales, 16 Mass. 488, and Stebbins v. J^enni?igs, 10 Pick. 172, which they cite in support of their opinion. These cases really decide only that a minority of the "church," i. e. a smaller body of communicants contained within the whole body of pew-holders constituting the religious society or congre- gation," might appoint the trustees to hold the property for the benefit of the majority of the congregation, disregarding a majority of the " church- members," who had withdrawn from the congregation. In both cases, however, the people who kept the property were the Unitarians, and the protesting "church-members" were the Orthodox Trinitarians. If any doubt had been entertained as to the right of the majority of the congre- gation to alter its doctrine or its name, the possession of the property