Page:Harvard Law Review Volume 9.djvu/577

RECENT CASES. 549 Pledge — Pledgee Converts by Replkdgtng. — Hel(i,h^t a pledgee, who re- pledges for an amount greater than the pledgor's debt the goods intrusted to him on the contract of pledge, is guilty of conversion. The pledgor has an immediate right of action in trover without tendering payment of the debt. Richardson v. Ashby. ZZ S. W. Rep. 806 (Mo). See Notes. Property — Building High Fence — Malice. A. and B. owned adjoining lots. A.'s house was built on the boundary line. B. on his own land erected a high fence so as to completely shut off the light and air from the windows of A.'s house. B. acted purely from malicious motives. Held^ A. had no lemedy at law or in equity. Letts v. Kessler, 42 N. E. Rep. 765 (Ohio). The case is interesting as an extreme application of the rule that an act legal in itself does not become illegal because actuated by a malicious motive. This rule is sustained by the great weight of authority, especially in cases where the act is a malicious use of a property or contract right. Stevenson v. A'ewnhum, 13 C. B. 285 (Eng.) ; Chatjield v. Wilson, 28 Vt. 49. Chesley v. King, 74 Me. 164, fs contra, but its authority is greatly diminished by the decision in Heywood v. 7'illson, 75 Me. 225. Bartlett v. O'Connor, 36 Pac. Rep. 513 (Cal.), contra, is ill considered and entitled to little weight. The civil law, in cases of adjoining owners, allowed an action for the malicious use of property rights. D, 39, 3, i, 12 (Ulpian). The Scotch and German courts have fol- lowed the civil law, and are therefore opposed to the common law rule. In Massachu- setts there is a statute giving a remedy in case of malicious erection of fences. St. 1887, c. 348. Property — Dedication of Street. — The plaintiff sued for a trespass by de- fendant company in laying gas pipes on certain land of his. The defendant claimed that the land had been dedicated as a public street, and offered in evidence a deed by plaintiff conveying adjoining land and reserving the land in question as that piece "lying within the lines of Bates Street as laid out upon the city plan." Held, that such a plotting did not amount to an actual dedication, nor was the plaintiff estopped to deny any public right of way over the land. Patterson v. People's Natural Gas Co., 33 All. Kep. 575 (Pa.). This decision seems undoubtedly correct. A parol dedication to the public must be more than prospective to have any effect. Cincinnati v. White, 6 I'eters, 431. The reference to this land as a street in the deed did not give rise to any public right of way. Leigh V.Jack, 5 Ex. Div. 264. Property — Riparian Rights — Accretion. — Plaintiff owned a farm on the east bank of the Missouri River. An island formed in the east half of the river and opposite plaintiff's farm. By accretion to the island the river channel between the island and plaintiff's farm was gradually choked up, and finally the entire body of the Llissouri flowed through what had formerly been the western channel. Held, that a riparian owner on the Missouri owns the soil to the river's edge only, and not to the thread of the stream ; that consequently plaintiff's western boundary was not affected by the closing up of the eastern channel. Perkins v. Adams, 33 S. W. Rep. 778 (Mo.). There is a conflict of authority as to whether a riparian owner on the great inland rivers owns to the thread of the stream or only to the water's edge. Kent's Comm., 12th ed., Vol. Ill, pp. *428-*43i. A long line of decisions has firmly established the latter doctrine in Missouri. It follows as a consequence of this doctrine that an island which forms in such a river does not become the property of the riparian owners. In the principal case as long as any part of the Missouri could be said to flow to the east of the island, plaintiffs claim was limited to the eastern edge of the eastern chan- nel. At some particular moment the entire body of the Missouri began to flow through what had been the western channel. Plaintiff" could not claim that he, by this sudden change in location of the eastern bank of the Missouri, became entitled to the very appreciable body of land lying between the new location of the eastern bank and its location immediately before the change occurred. Property — Rule against Perpetuities — Restraint on Alienation. — The testator, being in partnership with his son and another, directed that said partner- ship should continue so long as his son or any of his son's children should desire, the firm to have the use of real estate now occu])ied, paying rent therefor, and of the tools and other assets comprising testator's share of the capital. Subject to these provisions, he gives all his property, including his share of the partnership income, to a charity; if the partnership ceases for any cause, he gives one fourth of his share of the firm property to his son or his heirs, and three fourths to the charity. Held, that these provisions would make the executor a trustee of that portion of the estate which was part of the firm's capital, so long as testator's son or any of his children should desire, and that this is obnoxious to the rule against perpstuiiies; that consequently one fourth 72