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A bequest of a sum of money to one in these words, "both principal and interest (if she needs it) during her lifetime, after which to be disposed of in like manner as the residue of my estate," (i. e., among nephews and nieces of testator), is not within the Act of 24th February 1834, § 49, prohibiting its payment to the primary legatee without security: Id.

Poor-House not Taxable for School Purposes.—A county poor-house is not taxable for school purposes by the school directors of the township wherein it is situated: Directors of the Poor of Schuylkill County vs. School Directors of North Manheim Township.

Validity of Promise to accept Bill.-A promise to accept a bill is equivalent to an acceptance, not only as to the drawer, but as to every party who takes the bill on the faith of the promise: Steman et al. vs Harrison et al.

NOTICES OF NEW BOOKS.

THE NATIONAL ALMANAC AND ANNUAL RECORD, for the year 1863. Philadelphia: George W. Childs. 1863.

Although it is not our habit to notice new books except those of a strictly legal character, yet we are departing very little from our rule in commending to our readers the new National Almanac.

As a compendium of useful information, moreover, it has received such universal commendation from the press, that we are not called upon to say more than a few words about those portions of immediate interest to the profession. Of these, the most important are the abstracts and titles of public laws passed by the Thirty-sixth and Thirty-seventh Congresses, a convenient alphabetical summary of the Excise Tax, and of the Tariff Act of 1862; but in addition to these the account under the name of each state of its judicial organization and division, and the officers at the present time, though concise, is full and accurate to a degree very rare in works of this kind. Of the lists of officers, including judges and clerks of court, reporters and others, with their residences, directions, &c., we have had occasion several times to avail ourselves, and have found them unusually ful and reliable. Altogether the book is one not only of great convenience and utility for present service, but is the beginning of a series which, if kept up to the same standard, will be very desirable upon our book-shelves as a permanent repository of useful information.

J. T. M.

THE

AMERICAN LAW REGISTER.

JUNE, 1863.

RECIPROCAL SERVITUDES OR EASEMENTS.

The question whether when a servitude is acquired by prescription in favor of land, as a charge upon other land, a reciprocal right is acquired in favor of the servient tenement to a continued exercise of the servitude, has been often discussed in courts of law, but seems never to have been finally decided.

That the dominant tenement may be charged by express grant with the reciprocal servitude as the consideration of the servitude imposed on the servient tenement-the land and not the person being subjected to the charge-seems to be very clear.

If a person covenants that in consideration that he is permitted to flow his neighbor's land with water, he will for ever maintain the dam on his own land by which the overflow is effected, so as to form an icefield; he not only charges himself personally with the obligation, but a reciprocal servitude is constituted which charges the dominant tenement and may pass as appurtenant to it. 1s such a reciprocal servitude implied from the exercise of the principal right during the time of limitation?

The foundation of a prescriptive servitude is adverse possession; but adverse possession does not always imply a wrongful com

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mencement. A possession which commences under a license if enjoyed as of right, is adverse.

When two proprietors build houses each on his own land, but under the same common roof, and with a common support, each has a servitude of support against the other. The reciprocal servitude in this case depends upon a mutual license; but the possession is of right and adverse. The mutual advantage is the consideration of the express and implied license. As soon as the license is executed, the right to the servitude of support exists; a fortiori is the right absolute after an enjoyment during the time of limitation. In the case supposed, the advantage is mutual and immediate, and the reciprocal servitudes are the consideration each of the other; but a case may be stated where there is no such immediate advantage to the servient tenement, and yet a reciprocal servitude clearly exists. If A. builds the wall of his house partly on his own land and partly on the land of B., the latter would, after twenty years, acquire a right to have the wall maintained as a support for a house to be subsequently erected.

The foundation of a reciprocal servitude is a presumed grant, and in general an adverse possession is the necessary basis of such a grant. If a proprietor erects a dam on a stream upon his own land, and thus sets the water back upon the land of a proprietor above, he furnishes him with a right of action, and by an adverse user for twenty years, acquires a right to maintain the dam; but what is the foundation on which the right of the upper proprietor to have the overflow which has existed by means of the dam continued for his benefit? His enjoyment of the water for twenty years has never given any cause of action to the proprietor of the dam. His user may have been as of right, but it has not been adverse in the sense that an action might have been sustained against him. Admitting that the advantages derived from the flow of water may have been the reason for the acquiescence of the owner of the servient land in the charge upon his land, it may be asked, what right has he acquired to have it continued? Although a wrongful adverse possession is generally the foundation of a presumed grant, it is not its only support.

A mutual advantage may be the consideration for an agreement to impose reciprocal charges. A man may be presumed to have granted the servitude imittendi tigni, in consideration of the sapport which the timber yields to the servient tenement. When a party-wall is erected so as to stand upon the land of two adjoining proprietors, there is a presumed agreement on the part of each proprietor to maintain that portion of the wall standing on his own land. The presumption results from the mutuality of the consideration. So if a man erects a dam and a tide mill, partly on his own land and partly on the land of his neighbor, who uses the water for propelling machinery, the acquiescence of the owner of the servient land in the use thus made of his premises, may be a consideration for a charge upon the owner of the dominant tenement, to submit to the maintenance of the dam in part upon his own land.

It would seem that the agreement in such a case is to be presumed as a fact, and is not a conclusion of law such as results from an adverse enjoyment which gives a cause of action. When an adjoining proprietor derives an advantage which corresponds with that of the encroaching party, from the acts which trench upon his property, a strong presumption exists that such advantage was the inducement for his acquiescence, and that there was an agreement for mutual servitudes; but the presumption in such cases is not absolute, like the presumption of law which exists where a cause of action exists on an adverse possession. The presumption is one of fact only within the discretion of the triers. If a man builds a house so that the water falls from the eaves upon his neighbor's land, he may acquire an absolute right to the overhanging eaves, after an enjoyment of twenty years; but his neighbor does not acquire an absolute right to have the house maintained for the purpose of supplying water from the roof. If the owner of the servient tenement derives some advantage from the flow of water from the eaves, it is so disproportioned to the burden which would be imposed by the constitution of reciprocal servi.. tudes, that as a presumption of fact it would be absurd to suppose their existence.

It appears, from the following passage in the Digest of Justinian, that when a work has existed on land of a proprietor, from which a neighbor's land derived advantage, a servitude resulted from long enjoyment, in favor of the land benefited by the work: D. 39, 3, 2, 5. Item Varus ait, Aggerem, qui in fundo vicini erat, vis aquæ dejecit: per quod effectum est, ut aqua pluvia mihi noceret. Varus ait, Si naturalis agger fuit non posse me vicinum cogere aquæ pluviæ arcendæ actione, ut eum reponat vel reponi sinat. Idemque putat, et si manufactus fuit, neque memoria ejus exstaret: quod si exstet, putat aquæ pluviæ arcendæ actione eum teneri. Labeo autem, si manufactus sit agger, etiamsi memoria ejus non exstat, agi posse, ut reponatur: nam hac actione neminem cogi posse, ut vicino prosit, sed ne noceat aut interpellet facientem quod jure facere possit. Quamquam tamen deficiat aquæ pluviæ arcendæ actio: attamen opinor utilem actionem vel interdictum mihi competere adversus vicinum, si velim aggerem restituere in agro ejus, qui factus mihi quidem prodesse potest, ipsi vero nihil nociturus est; hæc æquitas suggerit, etsi jure deficiamur." (Varus supposes that an embankment on the land of a neighbor has been carried away by a flood, in consequence of which I sustain damage from the discharge of rain water. Varus says that if the embank. ment was a natural one, I cannot, by the action aquæ pluvia arcendæ, compel my neighbor to restore it, or suffer it to be restored, and he thinks that the same is true if the embankment is artificial, if the fact that it is so cannot be shown: but if it can be shown to be artificial, the action aquæ pluvia arcendæ may be sustained against him. But Labeo is of opinion that if the embankment is artificial, though (having existed immemorially) no evidence of the fact exists, the action for its restoration may be sustained. For by this action one cannot be constrained to do something for the profit of his neighbor, but to avoid doing him an injury, or preventing what he may lawfully perform. But, even if he is not entitled to the action, still I am of opinion, says Paul, that the actio utilis is competent against a neighbor, or an interdict, if I desire to restore the embankment on his land, which, when restored, will benefit me, and not be injurious to him. This equity suggests,

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