the decisions adhere as closely to established principle, and to the latest precedents even, as those of any other state. We have had occasion before to express regret, and we cannot forbear to renew the expression of our regret, that so large a proportion of the more recent decisions in the most commercial of the American states, should be pronounced and reported with so little reference to the discussions and decisions upon the same or analogous questions in others of the American states and in England. The result must very soon be, that the jurisprudence of the several states will become so completely isolated, that there will cease to exist any common bond of union among them in that respect. And although this may seem of no great importance to the careless observer or the incurious student of social and civil progress, the philosophic expositor of history cannot fail in this symptom of isolation to foresee, or to forebode, the evil consequences of having one law at Rome and another at Athens, as being but the harbinger of greater and greater disintegration, in the very woof and web of social life among us.

This result has, naturally enough, thus far been attributed to want of access to books, want of leisure in the courts, and to other temporary or accidental causes. But we apprehend that more of this is fairly to be placed to the account of the fact that many of our new states are already becoming great empires in themselves, and that they can scarcely afford any longer to play the part of mere dependencies upon the older states whose whole material wealth and business is not one-tenth of their own.

Codification too has now been carried to such an extent, in most of the states, that each state has a distinct code of its own; and it is as much as the courts can attend to, so to frame their decisions as to secure symmetrical results with reference to their own local legislation.

This volume contains a large number, and in fact a large proportion, of cases involving important interests and important principles. Among these we may mention the subjects of Currency, Corporations, Internal Communication by Railways and Navigation, Negotiable Instruments, Partnership, Equity Jurisprudence, Real Estate, Taxes and Taxation, Wills, and the Settlement of Estates.

The Reporter, Mr. Peck, with his accustomed carefulness and good taste, has given us an accurate statement and analysis of the cases, and a very thorough and exhaustive index. We trust none of the public libraries in the law will fail to secure an early copy of these reports, and, for private libraries, few state reports will be found more valuable.

I. F. R.

TREATISE ON THE LAW OF PRIVATE CORPORATIONS AGGREGATE. By JOSEPH K. ANGELL and SAMUEL AMES. Seventh edition; revised, corrected and enlarged. By JOHN LATHROP, of the Boston Bar. Boston: Little, Brown & Co.

This edition of a standard work upon an important department in the law, by the careful revision of its present faithful and pains-taking editor, is rendered, perhaps, as nearly complete as we have any reason to expect. It contains careful references to all the recent cases upon the numerous topics discussed, and the substance of the points decided is given whenever it tends in any manner to extend or qualify the text. It is scarcely necessary for us to say more than that the work fully maintains its longestablished character for thoroughness and accuracy. And we cannot forbear to say, that it is refreshing, when we meet so many of a different character, to find a law book got up with such liberal pages, not of margin, but type, and of such fair paper, and so neatly and substantially bound.

I. F. R.

A TREATISE ON THE AMERICAN LAW OF EASEMENTS AND SERVITUDES. BY EMORY WASHBURN, LL.D., Bussey Professor of Law in Harvard University, Author of a Treatise on the American Law of Real Property. Philadelphia: George W. Childs. 1863.

This is a book much needed by the profession in this country, and all who have become familiar with Prof. Washburn's treatise upon the Law of Real Property, will be prepared to expect, that the work of preparation would be done faithfully and acceptably. In the present work we feel reasonably sure that most of the cases, both English and American, bearing upon the questions discussed, have been carefully examined by the author, and that the points determined are faithfully and fully presented. In regard to a book embracing so many topics, and of so great extent, it is scarcely possible in a brief notice to speak much in detail. But we have examined portions of the volume with considerable care, and so far as we have been able to determine, the subjects discussed are considered in all their bearings, and the cases fully presented, which latter circumstance we esteem a great merit in a recent law book. For while we do not desire to see a book encumbered by numerous citations of cases upon points in regard to which no conflict of decision has ever arisen, it is important that the author should be able to inform us accurately of all points in regard to which extensive discussions in the courts have arisen, and especially where any considerable conflict in the decisions exist. In such cases we desire to see all the cases carefully analyzed and perspicuously presented. We feel confident the profession will find this a valua ble aid and a reliable guide in the preparation of cases. I. F. R.

THE

AMERICAN LAW REGISTER.

JULY, 1863.

THE LOSS OF SERVITUDES BY ABANDONMENT.

It is undoubtedly true that as the right of property may be acquired in certain cases by occupation, so the right may in all cases be lost by abandonment. There are certain rights the existence and continuance of which depend upon occupation. Such is the right to the enjoyment of the elements of air and water, which are common to all. So far as the exclusive right to any portion of running waters, which are publici juris, depends upon occupation, that must be continued; and when the occupation ceases, it returns to its former state, and again becomes common to all. The right of the occupant is at an end, except so far as it is preserved upon a declared or a presumed intention by operation of law.

It was upon this principle that the decision was founded in a case decided by the Court of Common Pleas : Liggins vs. Inge, 7 Bingh. R. 682. Mr. Chief Justice TINDAL said, in that case, that there was nothing unreasonable in holding that a right which is gained by occupancy should be lost by abandonment. Suppose, he says, a person who formerly had a mill upon a stream should pull it down and remove the works, with the intention never to return; could it be held that the owner of other land adjoining the

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stream might not erect a mill and employ the water so relinquished, or that he could be compellable to pull down his mill, if the former millowner should afterwards change his determination and wish to rebuild his own? The learned Judge considered the question of abandonment as one of fact for the jury, and was of opinion that an open and express declaration of the intention of abandonment would be sufficient protection to a new occupant, who had erected a mill in reliance upon the extinction of the former right. The right supposed to be relinquished is not acquired by grant or prescription from the other proprietors of the stream, and when it is shown that it is absolutely abandoned in any mode, the occupation which is necessary to the maintenance of the right ceases; then, there is nothing to prevent a new and distinct right from being acquired by occupation.

In Lawrence vs. Obee, 3 Campb. 514, and in Thomas vs. Hill, 31 Maine 152, a prescriptive right was gained by an adverse party after the supposed abandonment. And when, as in Drewett vs. Sheard, 7 Car. & P. 465, a party had acquired a right to use a larger wheel and a greater flow of water, and afterwards discontinued the larger wheel, and resumed the smaller wheel to which he was before entitled, he was held to have abandoned the right to the use of the larger wheel. This case may perhaps be justified on the ground that an adverse right was acquired by occupancy.

And if, in a case where the abandonment may not be shown to have been made with the intention to relinquish the right, the former owner, after notice, permits a new occupant to proceed in expensive works, in reliance upon the fact of abandonment, certainly he would have no claim to favor, from a court either of law or equity.

In the case of Stokoe vs. Singers, 8 Ellis & Bl. 31, the doctrine was asserted that a party entitled to the easement of lights, who, after having disused his right for a length of time, has given occasion to a neighboring proprietor to make expensive improvements, with a view to such supposed abandonment, was precluded from resuming the exercise of his easement. Lord CAMPBELL said that the case of Regina vs. Chorley, 12 Q. B. 515 (post, p. 518),

was an authority that "an abandonment is effectual, if communieated and acted upon. It goes no further."

In Crum vs. Fox, 16 Barb. 184, where one had a right of way to a house across another's land, and after twelve years enclosed the way and cultivated it, the way was held to be abandoned; but as no equitable right had sprung up, and no adverse right exercised, there would seem to have been no abandonment.

The doctrine that a right which is acquired by occupation may be lost by abandonment, was applied, in another case, to the servitude of lights, upon a principle much less satisfactory. It was held in the King's Bench (Moore vs. Rawson, 3 B. & C. 332), that a right to lights might be lost by a disuser for a time less than twenty years, under circumstances which showed the intent of abandonment, as where a party had the enjoyment of light and air by means of certain windows in the wall of his house, and upon the site of the wall he built a blank wall without any windows. Things continued in this state for seventeen years. The defendant, in the mean time, erected a building opposite the plaintiff's blank wall, and then the plaintiff opened a window in that, which had continued for so long a period a blank wall without windows, and thereafter brought his action for the darkening of his windows by the buildings which the defendant had so erected. The Court were of opinion if a person entitled to ancient lights builds a blank wall in their place, and suffers it to remain for a considerable period of time, that an abandonment of the right is to be presumed, and that if a temporary disuse alone was intended, he was bound to show that the abandonment was not perpetual; and the Court relied much, as a reason for this rule, upon the consideration that the building of the blank wall might have induced another person to become the purchaser of the adjoining ground for building, and that it would be unjust to prevent him from carrying that purpose into effect. It must be confessed that this is a very unsatisfactory reason for the general doctrine, however proper it might be that it should influence the decision of a court of equity in the case of a purchase of land for the purpose of building, without notice of an existing servitude. One of the Judges, Mr. Jus