Notes of Recent Cases. warranty of the soundness of a cow in that she was affected with tuberculosis. In charg ing the jury the court said that if the cow was warranted to be sound, and at the time of the exchange was unsound, the defendant would be bound by the warranty whether he knew of the cow's condition or not. STREETS, (list BY SALVAGE CORPS—INJURY то POLICEMAN— PERFORMANCE OF OFFICIAL DUTY.) NEW YORK SUPREME COURT. In Muhs i'. Fire Insurance Salvage Corps. 85 New York Supplement 911, plaintiff, a police officer, sued for personal injuries from being run over by defendant's fire patrol' wagon, while he was endeavoring to prevent a similar accident to a woman and child. The court first holds that the defendant is not absolved from liability for negligence merely because by the terms of the act in corporating it it was given "the right of way in the streets of Brooklyn." Such right, the court says, is necessarily subject to the pre-. servation of the safety of those who may be lawfully on the streets, and, while the de fendant is justified in having its wagons driv en with speed at the time of a fire, such speed must be exerted with reasonable care and due regard for the safety of those who may be met. It was also held that it was plaintiff's duty to endeavor to save the woman and child, and the consequent ex posure of himself to danger was not con tributory negligence as a matter of law. The following authorities are cited: Eckert v. The Long Island Railroad Co., 43 N. Y. 502, 3 Am. Rep. 721; Spooner v. D. L. & W. R. R. Co., 115 N. Y. 22, 2i N. E. 696; Williams v. U. S. Mut. Accident Assn., 82 Hun. 268, 31 New York Supplement 343: Hirschman v. Dry Dock, East Broadway & Battery Railroad Co., 46 App. Div. 621, 61 New . York Supplement 304; Manthey v. Rauenbuchler, 71 App. Div. 173, 75 New York Supplement 714. SUBTERRANEAN WATERS. (RIGHT OF LAND OWNERS—ADOPTION OF COMMON LAW RULE.) CALIFORNIA SUPREME COURT_
In Katz v. Walkinshaw, 74 Pacific Re porter 766, the common law rule that each
2 19
land-owner owns absolutely the percolating waters in his land and has the right to ex tract, sell and dispose of them as he chooses regardless of the results to his neighbor, is held not to apply to the State of California on account of the peculiar physical condi tions there obtaining, notwithstanding the California statutes adopt the common law. A large number of authorities are cited on the holding that the common law is adopted only in so far as it is adapted to the needs of the local situation in America. This is said to be a principle of the common 'law itself, which adapts itself to varying conditions and modifies its own rules so as to serve the ends of justice under different circumstances. The court quotes from Starr г: Child, 20 Wend. 159, in support of the rule, and cites among other cases Collins v. Chartiers V. G. Co., 18 Atlantic Reporter 1012, 6 L. R. A. 280. 17 Am. St. Rep. 791, in which the same doc trine as to the absolute ownership in perco lating waters was modified. Then follows a long discussion of the physical conditions in California, as to scarcity of water, its use for irrigating purposes, and a suggestion that the appropriation of subterranean waters may result in an exhaustion of the under ground sources from which surface streams are fed. A number of California cases are distinguished. SUNDAY CONTRACT. (AUTHORITY OF AGENT— —RIGHT OF PRINCIPAL то AVOID.) MARYLAND COURT OF APPEALS.
In Rickards r. Rickards, 56 Atlantic Re porter 397, the court says that the controll ing question passed on below and brought up by the appeal is whether the barter or trade of a horse as made by an agent, con fessedly consummated and fully executed on Sunday, does not bind the principal because made on that day. The point is, that as the agent's act was illegal, the principal could not be bound by it. Collins v. Blantern. 2 Wilson 341 is quoted from at length on the point that an executed contract cannot be avoided merely because made on Sunday. The court then says: "It is obvious then that the executed contract ... is binding
