Page:Harvard Law Review Volume 10.djvu/215

RECENT CASES. 1 89 and consequently the right of action is lost unless the marriage is subsequently declared void ab initio. Property — Churches. — Held, that the majority of a church cannot change its doctrines, and still retain the property given to it, against the minority adhering to the faith in which the church was founded. Smith v. Pedigo, 44 N. E. Rep. 363 (Ind.). See Notes. Property — Condition Subsequent — Sub-Lease of Entire Term — Assign- ABILITY OF Right of Re-Entry. — A., owner in fee, makes a lease to B., with con- ditions and a right of re-entry. IJ., makes a sub-lease to C. for the entire term, with the same conditions, and subsequently B. conveys to D. all his right and title in the prem- ises. D. claims a right to enter on C. for breach of conditions. Held, B. having conveyed his entire estate, his right of entry is destroyed, and even if it existed he could not grant it to D., as it is not assignable. Ohio Iron Co. v. Auburn Iron Co , 67 N. W. Rep. 221 (Minn.). The court argue, from the fact that the sub-lease of a lessee's entire interest effects an assignment, that the sub-lessor can retain no right of entry. Such a view is reason- able, and accords with the tendency of the courts to alleviate the harsh results of the enforcement of conditions, but the point is held otherwise in England. Doe v. Baieman, 2 B. & Aid. 168. The question, however, is not necessary to the decision of the case, and the other point as to the assignability of such right of entry, assuming it to exist, is decided in accordance with the weight of authority. Underhill v. Rail- road, 20 Barb. 455; Rice v. Railroad, 12 Allen, 141. Property — Dedication of Park — Acceptance. — Held, that recording a plat of an addition to a city, on which a part of the land is designated as a "park," and the sale of lots with reference thereto, constitute an irrevocable dedication of the land so marked as a park, without the necessity of an acceptance by the public. Rhodes v. Town of Brii^htwood, 43 N. E. Rep. 942 (Ind.). ' Aside from the fact that the land in question was not taxed for several years after the recording of the plat, there is no evidence in the case of an acceptance by the pu!)- lic prior to the time when the donor endeavored to revoke the dedication. It may well be questioned whether the fact that the park was not placed upon the tax list did not amount to an acceptance. As the court itself says : " This is rather an indication that all parties concerned understood that the land was dedicated to the public for a park, as shown on the plat." However that may be, it would seem that the position taken by the court in this case is not warranted by the weight of authority. That position appears to be that acceptance by the public, either through formal action by the proper authorities or by common user, is unnecessary to the completion of the dedication of the land, where the rights of private individuals, such as purchasers of lots abutting on the supposed park, intervene. In conformity with this view, it has been held in New Jersey that no acceptance is necessary to vest the right in the public at once. Methodist Church v. Hoboken, 33 N. J. L. 13. But it is believed that, according to most authorities, there must be some act on the part of the public to indicate its willingness to accept the offered gift. See Abbott v. Cottage City, 10 East, Rep. 61 ; see also 5 Am. and Eng. Ency. of Law, p. 413, n. i, and p. 415, n. 2, for further authorities. Although the ques- tion as to whether the public had a right to refuse to take the park was not discussed by the court in the principal case, yet this is certainly an important consideration. Surely, on principle the public should not be compelled to accept the legal responsi- bilities incident to the ownership of a park against its will. Whether the purchaser of lots abutting on a piece of land alleged by the vendor to be a public park has not a right of action against such vendor in case the said land has not Jseen accepted as a park by the public, is, of course, a secondary question, not raised by the decision in Rhodes v. Town of Brightwood. Property — Finding Chattels on Private Property. — The defendant, while cleaning out, under the plaintiffs' orders, a pool of water on their land, found two rings. The real owner was not discovered. In an action of detinue, held, that the plaintiff was entitled to the rings. South Staffordshire Water Co. v. Sharman, [1896] 2 Q. B.44. There is very little authority on the point decided in this case. The case most in point, Hamaher v. Blanchard, 90 Pa. 377, is directly contra. The question is one of a conflict of rights. Ordinarily a finder has the right of possession subject only to the claim of the true owner. But, on the other hand, the landowner has primarily the right to the chattel on his land by virtue of his general power to exclude others. Where, then, the finder is a trespasser or servant of the landowner, he has the position of finder in the one case through a violation of the law, and in the other case through the disregard of the right of his employer. The right of the landowner therefore sur-