Page:Harvard Law Review Volume 12.djvu/443

NOTES. 423 original grant. The fact that the need of a way may suffice to show this intention is no ground for saying it will justify the appropriation of .a stranger's land. Again the reasons of policy set forth by DtUton v. Taylor are not so urgent practically as theoretically; as a matter of fact land will rarely remain tied up any length of time for want of a way. There are several remedies. The owner may sometimes, as he would have been allowed to do in this case, enter by license of the other landowner. He may often purchase a right of way. He may petition to have a highway laid out. He may finally be rid of the whole matter by selling out to the adjoining owners. To grant such ways would radically disturb private property rights, and the hardships and injustice incident to this disturbance would seem to outweigh the benefits. It may then be said both on principle and authority that what is generally termed a way of necessity is merely a necessary incident to a grant, that pure necessity in itself cannot authorize the appropriation of another's land, that the right to a way of necessity properly so called does not exist. Damages for Mistakes in Telegrams. — The accepted rule as to the damages recoverable for the breach of a contract to transmit a telegram is boldly ignored in a late case. The plaintiff gave to the defendant, a telegraph company, for transmission to his attorneys, a message which read: "Attach property for seven hundred ninety dollars ; " as delivered it read: "Even hundred ninety dollars." The attorneys attached for the latter amount, and thereby the remainder of the plaintiff's claim was lost. The court assumed in their decision that the defendants are liable for the full amount of this loss. Western U. T. Co. y. Beds, 76 N. W. Rep. 903 (Neb.). In the case of a negligent transmission of a telegram the courts have almost universally applied the general rule of Hadley v. Baxendale, g Exch. 341, which limits the consequential damages for a breach of con- tract to those within the contemplation of the parties at the time of entering into the agreement. So in every case the struggle at the trial is to show one of two things: either an actual notice, given by the sender to the operator, of the possibility of special damage, or a constructive notice given to him by the very words of the message. Western U. T. Co. V. Landis, 18 111. App. 57; Squire v. Western U. T. Co., 98 Mass. 232. Upon the latter point there seem to be two lines of decisions, the first logically adhering to the rule and requiring the message to give the operator specific notice of the possibility of loss, the second holding it sufficient if the business importance of the message appears clearly. Prim- rose V. Western U. T. Co., 154 U. S. i; Postal T. Co. v. Lathrop, 131 111. 575. In either case the remedy is notoriously inadequate. Accordingly, some few courts, not relying upon any principle but frankly recognizing the anomaly, have refused to apply the rule of Hadley v. Baxendale, supra; Western U. T. Co. v. Way, 83 Ala. 542; Western U. T. Co. v. Reynolds, n Va. 173. This judicial legislation, and the numerous modern remedial statutes, lead one to question whether the law of damages has been properly ap- plied to the case of the telegram. Damages flowing from a breach of contract are of two kinds, direct and consequential. It is only in the case