Page:Harvard Law Review Volume 10.djvu/209

NOTES. 183 the vessel any further care, it might be claimed that his want of care ought not to be attributed to him as a fault. In reference to such a case, we do not now express any opinion." Williams v. Hays^ 143 N. Y. 442. After a new trial, this reserved question came before the Supreme Court, which held that, applying the principle stated by the Court of Appeals, it could mal^e no possible difference how the defendant became insane, or *' what caused the disease or mental condition that prevented him from exercising the care or skill that he was bound to exercise.'* Williams v. Hays, 37 N. Y. Supp. 708. The position of the Supreme Court is undoubtedly logical and neces- sary. If the general rule holds liable one rendered insane by act of God, it would require an unwholesome exercise of ingenuity to make an exception in favor of one rendered insane by extra and commendable effort. The proposition laid down by the Court of Appeals, on the other hand, seems hardly defensible. It is a subject on which there is a wide disagreement of the authorities (see 10 Harvard Law Review, 65), and which therefore may well be settled in the pure light of reason. The Court of Appeals rested its decision on two grounds. First, that public policy required that a lunatic should be liable, which view appears to be largely fanciful ; and second and chiefly, that " where one of two innocent persons must bear a loss, he must bear it whose act caused it." This last proposition clearly belongs to the doctrine of absolute liability, which was never to be defended with adequate reason, and which is now generally discredited. Even the Court of Appeals, in the principal case, while laying down a rule of absolute liability showed an unwillingness to stand squarely on such a doctrine by reserving opin- ion on a possible phase of the case before them. A theory, the advo- cates of which are forced to striking inconsistencies, does not commend itself to reason. The modern and enlightened view is thus stated by Beven, Vol. I. p. 52, 2d ed. ; "Liability for trespass is not absolute and in any event, but dependent on the existence of fault." (Also Brown v. Kendall, 6 Cush. 292. Holmes on the Common Law, 77, et seq.) If blame or fault 'is indeed the basis of liability in tort, how can one blame- lessly and totally insane be liable for the consequence of his negligence? To hold that he is, certainly is a step in the wrong direction. Right to Support of Land. — A distinction of some delicacy, that might occasionally prove important to land-owners, is discussed in the case of Cabot v. Kingman, 44 N. E. Rep. 344 (Mass.). A city dug a ditch in a street to lay a sewer. Lying a little below the surface and extending under the abutting land were beds of fine sand, which were so full of water that as the latter flov/ed into the ditch it carried quantities of sand with it ; and this sand was taken out by the pumps along with the water. The withdrawal of the sand caused the abutting land to subside ; and the owners brought an action for the damage. The court allowed the plaintiff to recover, holding that he had a right to the support of the particles of soil which the defendant had removed, no matter how the latter had done so. A strong minority, however, held that the plaintiff could not complain of the withdrawal of the flowing quicksand. Now, not only is it settled that a man cannot complain of his neighbor for with- drawing percolating water from under his land {Chasemore v. Richards, 7 H. L. Cas. 349), but, what -is more to the point, it has been held in