Page:Harvard Law Review Volume 12.djvu/376

356 HARVARD LAW REVIEW, Property — Boundaries — Estoppel. — A boundary line was run between the adjoining lands of plaintiff and defendant under a common misapprehension as to their legal rights, and was acquiesced in for five years. Held, that plaintiff is now estopped to assert his rights at law. Pittsburg Iron Co. v. Lake Superior Iron Co., 76 N. W. Rep. 395 (iVlich.). It is undoubtedly true that a bond fide compromise of doubtful claims to land is binding on the parties, i Jones, Real Property in Conveyancing, § 354. But where no actual agreement has been made to accept a boundary line as final, it seems that an estoppel would not be raised against a party, who has acquiesced therein for less than the statutory period, unless he had been guilty of a false representation whereby the other party was misled, i Story, Equity Jurisprudence, 13th ed., §§ 385, 386; Junction Ry. Co. V. Harpold, 19 Ind. 347, 350; Haso v. Plautz, 56 Wis. 105. In the principal case the parties erroneously supposed the boundary to be the true one and the plaintiff does not appear by his words or actions to have influenced the defendant's conduct. On these facts it is hard to see how the doctrine of estoppel can correctly apply. Hill v. Epley, 31 Pa. St. 331, 334; Sandford v. Mclionald, 53 Hun, 263; Proprietors of Liverpool Wharf -w. Prescott, 7 Allen, 494. Property — Covenants — Equitable Easements. — A grantor, in conveying land, reserved to himself and his heirs the minerals beneath its surface with the right to remove the same by any subterranean process ; it was also provided that no mine or air shaft should be intentionally opened or any mining fixtures established on the sur- face of said land. The grantee divided the land into lots, some of which he conveyed to defendants, who, having also acquired title through the grantor to the reserved mining privileges, proceeded to sink a shaft and erect mining fixtures. In a suit by the original grantee for an injunction to prevent this, held, that the injunction should be granted. Electric City Land and Improvement Co. v. West Ridge Coal Co., 41 Atl. Rep. 458 (Pa.). Three Judges dissenting. The court went on the ground that the provision that no shaft should be opened or fixtures established was a covenant running with the land. It is difficult to support the case on this ground, because it is well settled that the burden in such a case does not run. Cooh v. Arundel, i Abr. Eq. 26. The provision seems to be an equitable ease- ment. As such it would bind all parties who took with notice of it. Fielden v. Slater, L. R. 7 Eq. 523. The original deed was registered and therefore the defendants had notice. However there was no covenant as to how the surface of the land was to be used. The provision as to the use of the mines was for the protection of the surface owner as against the owner of the coal beneath. It was not intended to restrict the owner of the surface in the use of his land and it did not contemplate the ownership of the mines and of a portion of the surface being united in one person. When the proprietor of the coal became also a surface owner the effect of the proviso was de- stroyed. The view of the minority seems the sounder one. Property — Donatio Mortis Causa. — One about to commit suicide indorsed a promissory note to the defendant, sealed it in an envelope addressed to the defendant, and placed it on a table beside his own bed. Then he shot himself. The defendant discovered and picked up the note while the donor was alive but unconscious. Held, that there was no delivery to defendant. Liebe v. Battmann, 54 Pac. Rep. 179 (Oreg.). See Notes. Property — Easements — Revival. — Plaintiff and defendant were owners of adjoining buildings with a party wall between. Plaintiff had an easement in a stairway upon the defendant's premises, next to the party wall. The buildings were totally destroyed by fire. Upon a reconstruction of the buildings, with the stairway in the same location, held, that the easement revived. Douglas v. Coonley, 51 N. E. Rep. 283 (N. Y.). A similar question appears never to have arisen in England or America. The analogies of the law of easements do not support the decision. The easement was not merely suspended, but wholly extinguished. Shirley v. Crabb, 138 Ind. 200. And it is the general rule that easements once extinguished can be created anew only by grant or prescription. Barlow v. Rhodes, i C. & M. 439. The defendant was under no obligation to join with the plaintiff in rebuilding the party wall, nor was he under any duty to reconstruct the stairway. Sherred v. Cisco, 4 Sandf. 480. The mere fact that the new building and the stairway were constructed in the same location as the old does not seem to be a satisfactory reason for reimposing upon the servient owner a burden of which he had been relieved by the accident. The Court proceeds upon the ground of hardship to the plaintiff if the easement were lost but it is equally as hard upon the defendant to compel him to again submit to the burden, although he could not have complained so long as the original right existed.