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the horse driven by plaintiff's wife, causing Central Law Journal.

the animal to run away and throw ber out. Defendant's testimony was that the horse

was frightened and turned when two hundred ST. LOUIS, MO., NOVEMBER 16, 1900. and seventy-five feet away from the auto

mobile, which he stopped upon seeing that

the animal was afraid. He said that he had The increasing use of the automobile will the machine under perfect control and gave, undoubtedly give rise to cases involving the an exhibition in front of the court house to rights and liabilities of their owners and opera- show the court and jury his ability to handle tives, but as yet precedents on the subject it. Justice Dixon said to the jury: "The are rare. A decision by Judge Sunderland, first question to which you come for the purof Rochester, New York, has recently been pose of deciding the defendant's responsibilrendered in which the sensible conclusion is ity is whether this machine was a nuisance. reached that all such methods of conveyance You have seen how it was operated. You must stand upon the same footing as car have heard the witness describe the mode of riages of the older fashioned type, and that it operation, and the question rests with your is not to be expected that damages may be sound judgment as to wbether the machine, obtained every time that horses may take driving along country roads without a horse fright. If one should find it desirable, as the in front and discharging steam behind, is court very properly remarks, to go back to likely to frighten a horse on the bighway and primitive methods, and tread along a city thus endanger the road so as to constitute the street with a four ox team and wagon of the machine a nuisance. It is agreed that it is prairie schooner variety, it would possibly an improved method of locomotion, but it cause some uneasiness in horses unused to does not follow from that that it is to be tolsuch sights. Yet it could not be actionable erated. The right to drive horses along the it a runaway should resul: provided due care highway is an established right, a common were shown not unnecessarily to interfere right, and if a modern method of locomotion with the use of the highway. Horses may is used of such a nature that it commonly take fright at conveyances that have become brings discomfort and danger to those exerobsolete as well as at those which are novel, cising the common right, the established right but this is one of the dangers incidental to of travel on the highway, then it is a nuisance the driving of horses, and the fact cannot be and cannot be tolerated. If it occasionally interposed as a barrier to retrogression or or exceptionally frightens horses that would progress in the method of locomotion. Bi not make it a nuisance. In order to make it a cycles used to frighten horses, but no right nuisance its common effect must substanof action accrued. Electric street cars have tially interfere with the people who drive caused many runaways. Automobiles oper- horses along the highway.” After being out ated without steam by storage batteries or a few minutes the jury returned for further by gasoline explosion engines, running at a instructions on one point, at the same time moderate speed, may cause fright to horses informing the court that it had agreed that unused to them, yet the horse must get used the automobile was not a nuisance. The jury to them or the driver takes his chances. It were out all night, disagreed and were disthe horse is to keep up with the procession, charged. he must get accustomed to the automobile, and not shy" when it appears on the public In a recent criminal case before the Su. highway.

preme Court of Obio-Davis v. State-it ap

peared that the trial court was requested to A somewhat contrary view was taken by charge the jury that each juror must be conMr. Justice Dixon of New Jersey, in the case vinced beyond a reasonable doubt of the of Guyre v. Vroom. There the plaintiff sued guilt of the defendants before uniting in a for damages for the loss of his wife. Wit verdict of guilty. This the court refused, nesses testified that defendant's automobile but did charge that the jury must be conbeing beyond his control, backed nearly into | viņced beyond a reasonable doubt before

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finding the defendants guilty. The supreme tbis language is quoted approvingly by the Sucourt held that this request was properly re

preme Court of Pennsylvania. Nester V. Brewing fused and indorsed the instruction as given.

Co., 161 Pa. St. 473, 481, 29 Atl. Rep. 104, 24 L.

R. A. 250. The Supreme Court of Iowa adopts The request, as asked, says the court would

the same view. Chapin v. Brown (Iowa), 48 N. seem to invite an acquittal, or at least a dis W. Rep. 1074, 12 L. R. A. 428, and so have other agreement, and was therefore misleading. It' courts, where this phase of the general question is true that each juror must be convinced of

has been discussed. Oliver v. Gilmore, C. C., 52 the guilt of the defendant before uniting in a

Fed. Rep. 562.

The Supreme Court of Alabama in the recent verdict against him, and this is generally un

case of Tuscaloosa Ice Mfg. Co. v. Williams, 28 derstood; but it is equally true that each

South. Rep. 669, applies the same doctrine boldshould confer with bis fellows and listen to ing that'where plaintiff and defendant, each of what they have to urge in weighing the evi whom owned an ice plant in a city of 7,000 in. dence, whether it be for or against an ac

habitants, in wbich there were no other ice facquittal, and not obstinately stand upon his

tories, entered into a contract whereby plaintiff,

in consideration that defendant should pay him a own opinion in the matter.

The request certain sum annually, agreed not to run bis ice asked and refused by the court would tend plant nor suffer it to be run for five years, unless to such a result, and was therefore properly he should sell it, in which event be released the refused. State v. Hamilton, 57 Iowa, 596,

defendant from all subsequent payments, the con11 N. W. Rep. 5; State v. Robinson, 12

tract was void as contrary to public policy, since

it stifled competition and promoted a monopoly. Wash. 491, 41 Par. Rep. 884; State v. Young, 105 Mo. 634, 640, 16 S. W. Rep. 408. The

RIGHT OF PRIVACY ADVERTISING PHOTO. verdict should be the intelligent concensus of

GRAPH.-The Supreme Court of New York has the whole jury, arrived at upon the evidence recently held in the case of Roberson v. Rochester beyond reasonable doubt. It should be ad. Folding Box Co., 65 N. Y. Supp. 1109, that a pridressed as an entity, and not as separate in

vate person is entitled to have the likeness of her dividuals. If the accused is in doubt as to

face concealed from the observation of the public, whether the verdict is that of each juror, his

and that the display of the same by means of

lithograpbs for advertising purposes and without remedy is to have it polled before it sepa her consent, is an invasion of her right of prirates, which is an adequate protection against vacy, and also her right of property in the same. the probability that some one of them or more It was held that an injunction would lie to rehas not united in the rendition of the verdict.

strain the defendants from making use in any manner of the likeness of the plaintiff, and further, that damages could be recovered for in

jury to her reputation, and for mental and physNOTES OF IMPORTANT DECISIONS. ical suffering caused thereby.

The right of property by a private person in his

portraiture has been recognized for some time by CONTRACT — RESTRAINT OF TRADE.-While the courts, which hold that the right is exclusive the law, to a certain extent, tolerates contracts so long as the individual does not become a pubin restraint of trade or business when made be lic character. Mayall v. Higbey, 1 Hurl. & C. tween vendor and purchaser, and will uphold 148; Corliss v. Walker Co., 57 Fed. Rep. 434. In them, it does not treat them with any special in the latter case Holt, J., says: "Independently dulgence. They are intended to secure the pur of the question of contract, I believe the law to chaser of the good will of a trade or business a be that a private individual has a right to be proguaranty against the competition of the former tected in the representation of bis portrait in any proprietor. When this object is accomplished, form; that this is a property as well as a personal it will not be presumed that more was intended.” right; that it belongs to the same class of rigbts, 2 Beach, Cont. sec. 1575. Aud to the same effect which forbids the reproduction of a private manis the declaration of the Supreme Court of Illi uscript or painting, or the publication of private nois in More v. Bennett, 140 III. 69, 80, 29 N. E. letters, or of oral lectures delivered by a teacher Rep. 891, 15 L. R. A. 364: “Contracts in partial to his class.” Every one has a natural right to, restraint of trade which the law sustains are those and dominion over, his own ideas and the product which are entered into by a vendor of a business of his intellectual labor for the reason that they and its good will with his vendee, by which the emanated from him, so it would not be illogical vendor agrees not to engage in the same business to hold that a private individual should bave the

within a limited territory, and the restraint to be right to say whether a thing so peculiarly his ; valid, must be no more extensive than is reason. own as bis face, sbould be publicly exploited or ably necessary for the protection of the vendee in not. Although it would seem that an individual the enjoyment of the business purchased;" and bad a right not to be dragged before the public

and that the right of privacy ought to be recog. SOME ERRORS IN THE LAW OF FIXT. nized as a legal right, yet the stronger position

URES. is also stated by the court, that "if her lithographic likeness, owing to its beauty, is of great The object of this article is to point out a value as an advertising medium, it is a property few, of what seems to the writer, to be right which belongs to her and cannot be taken

erroneous principles in the law of fixtures, if from her without her consent."

that may be said to be "in the law” which is FEDERAL COURTS-JURISDICTION—MUNICIPAL

found in the writings of standard text-writers, CORPORATIONS—CONTRACT WITH WATER COM

and in the dictum of many judicial decisions. PANY.-In Los Angeles City Water Co. v. City

We will first notice an erroneous definition of of Los Angeles, decided by the United States the term "fixture,” which is liable to lead Circuit Court, S. D. California, 103 Fed. Rep. 711, to misapprehension and confusion. I do not it was held that a federal court had jurisdiction of

mean that the words I use in the following a suit by a water company to enjoin the enforcement of a municipal ordinance fixing rates of

definition are the exact words used by any charge for water, on the ground that it impairs text.writer, but an accurate expression of the obligation of a contract between the city and their idea of the term, as the pages of their the company, although the contract, as set out works disclose, and should be as follows: in the bill, expired by its terms prior to the

A fixture is an article of personal property passage of the ordinance, where it is alleged to be still in force.

which has been annexed to land, and thereIt appeared that under a contract with a city by became part and parcel thereof, but reto reconstruct its waterworks and operate the movable against the will of the owner of the same for a term of thirty years, a water com freehold. It seems that the idea intended pany during the term practically constructed an

to be conveyed by these writers is, that entirely new and greatly enlarged plant, increas

the article, in order to be a fixture, must ing the distributing system from one having six miles of wooden pipes to one with 320 miles

be so annexed to the realty as to become a of iron pipes. The contract required the com- | part and parcel thereof, i. e., must bepany to furnish water free for all municipal, come real estate after annexation." The fire and school purposes, and to supply the in- right of removal of articles annexed to habitants of the city with water for domestic

the realty, is, by the writers who entertain purposes at rates not exceeding those therein

this idea of the nature of fixtures, grounded fixed, and for that purpose to make all reasonable extensions of its system. It further pro not on the right of property, as it seems it vided that at the end of the term the plant should be, but on a mere “privilege conferred should be returned to the city, which should by the law of fixtures.”2 Mr. Ferard (who pay the value of all improvements made therein;

is one of the oldest, as well as the most clasthe amount to be agreed upon or fixed by arbi

sical writer on the law of fixtures, and to . trators. At the expiration of the term the city did not pay or tender the value of such im

whom several other writers on this branch of provements, which had not been agreed upon the law are greatly indebted, but unhappily or satisfactorily determined; but it continued have incorporated in their own works some of to require the company to make extensions, and

his errors)reviews a number of cases supposed, to furnish water free for public uses, the same

by him, to support the doctrine that fixtures, as before. It was held that so long as the company complied with such requirements, and un

i. e., articles removable against the will of til the city terminated the contract by making

the owner of the freehold, are part and paror tendering the required payment, its provis- cel of the realty until actually severed and ions for the benefit of the company remained in removed, but it is submitted that these cases force, and the city could not, without unconsti

do not sustain the doctrine that fixtures are tutionally impairing its obligation, reduce the rates which the company was thereby author

a part and parcel of the realty removable ized to charge for water supplied to private against the will of the owner of the freehold. consumers.

We will now notice these cases with a view of It was further held that a water company is showing that they do not sustain this doctrine, entitled to an injunction to restrain a city from although in some of them, there will be found enforcing an ordinance reducing its rates of charge in impairment of a contract, and subjecting the company and its officers and em

1 An examination of Ferard on Fix. 6, 9, and Ewell

on Fix, 5, 6, 77, will, I think, show that I have not ployees to penal actions for its violation, and

placed a wrong construction on what these authors also to restrain private persons from instituting have written upon this subject. threatening prosecutions under such ordinance. 2 Ferard on Fix. 7; Ewell on Fix. 77.


dicta to the effect that articles annexed by a freebold was not a fixture according to the tenant become part of the realty, though re idea which requires fixtures to be part of the movable by the tenant, during his term, as realty and removable. It bas often been in. against the will of the owner of the freehold. ferred from a remark made by Park, B., in Lee v. Risdonis often cited as an important this case that fixtures are a part of the realty case on this subject. It was an action of until severed and removed. It was said that assumpsit for goods sold and delivered, "the right of a tenant is only to remove durwherein the plaintiff sought to recover the ing his term, the fixtures he may have put up, price of certain "fixtures,” which the defend and to make them cease to be any longer fixtant, becoming tenant of his house, agreed to ures, and this right of the tenant enables purchase of him at a valuation. It was held the sheriff to take them under a writ, for the that the price of the "fixtures” could not be benefit of the tenant's credi rs." It canrecovered under the declaration for goods not be inferred from the above expression, sold and delivered. In this case the articles that so long as the things were affixed to the were annexed to the realty, as it seems, by realty, and while the right of removal rethe owner thereof, and were held to be part mained in the tenant, that the articles were of the realty, and, of course, could not be considered as being real property, and not sold and transferred as personalty. The arti- personal property. It is thought that the recles were not fixtures at all according to the mark has reference merely to the time in idea that fixtures are part of the realty, but which the right of removal must be exerremovable against the will of the owner cised. And that it does not mean that the thereof. And Hallen v. Runder,4 is often only right of the tenant to the things themreferred to in support of the same proposi- selves is a right of removal during the term. tion; the facts of the case are as follows: A Another case which has been supposed to short time before the expiration of the lease support this doctrine is Raddin v. Arnold. of a house, the landlord agreed with the ten The facts of the case are as follows: An enant to purchase bis "fixtures" at a valuation. gine placed by a tenant on solid masonry, to The lease expired and the tenant having quit which it was affixed by iron bolts, and conpossession of the premises without severing nected with a mill by pipes, belts, shafting the "fixtures,” it was held that the plaint- and geering, as well as a boiler, connected iff baving at the defendant's request waived with the engine, and set upon solid masonry, his right to remove the articles, the mat but not affixed thereto except by its weight, ter bargained for was not an interest in and which could not be removed without land. So in this case the articles are ex tearing down brick work surrounding it, and pressly declared not to be an interest in also part of the building, were held not to be the land, and therefore not fixtures at all, mere chattels for which trover would lie by according to the idea which requires them one deriving his title, after condition broken to be a part of the realty. In Minshall v. from the person who sold them to the tenant Loyd the question was as to the right to an by a conditional sale in the absence of eviengine, which right was founded on the sup. dence that the tenant placed them upon the posed right of a tenant to remove it; but it premises without the consent of the vendor. was held that the tenant had no right to re In this case Grey, C. J., said: "Whatever move it, because he had relinquished or might have been the right of removal, the enabandoned it, or because the engine was so gine and boiler, so long as they were affixed annexed as to become a part of the realty. to the realty in the manner stated in the bill There was no doubt that the engine was left of exceptions, were not mere chattels, and affixed to the freehold after the expiration of therefore this action in the nature of trover the tenant's term, and the court held trover will not lie for them.” It is evident that could not be maintained for it. The engine these articles were not fixtures at all, in the was a part of the realty, but not being re sense of the definition which requires fixtures movable against the will of the owner of the to be removable against the will of the owner

of the land. The remark of the chief justice, 37 Taunt. 190. 41 C. M. & R. 276. 52 M. & W. 459.

6 116 Mass. 270.

"Whatever might have been the right of re It is said that by the mere act of anmoval,” etc., doubtless bas reference to the nexation, e personal chattel immediately forfeited right of the tenant.

becomes part

and parcel of the freeThere are a few other cases which have hold. It bas been said: "No doubt the been often cited as supporting the proposi- maxim quicquid platur solo solo cedit is tion that fixtures are a part of the realty, well establisbed; the only question is, what though removable against the will of the is meant by it.” The error caused by the owners of the freehold; among these are a misapprehension of this maxim consists number cited by Mr. Ewell. But it is chiefly, in the attempt to establish nearly the thought that all of these cases may whole law of fixtures upon exceptions to it. consistently be construed as not

sup Whereas, the maxim is merely a simple stateporting this most absurd doctrine, as ment of the change that has taken place in it seems to the writer to be. On the the nature of the property which has been other hand it has been expressly stated in affixed to the realty-that it has become a many recent cases that things annexed to the part of the realty and partakes of all its infreehold, and which are removable against cidents and properties; but if it has not bethe will of the owner of the realty are, to come a part of the realty, although it may all intents and purposes, mere personal chat be affixed to the realty, the maxim has no tels.8 The writers who consider fixtures as application. "To apply the maxim, there being part of the realty, though removable must be such a fixing to the soil as reasonagainst the will of the owner of the freehold, ably to lead to the inference that it-('the attempt to establish a distinction between chattel')—was intended to be incorporated property which they term "fixtures" on the with the soil.”:12 The misapprehension of one hand and “mere movable chattels” on this rule has been caused by the ambiguity the other. There are but two kinds of things of the term “affixed” or the term “anor property which are “things real" and nexed” which is often used in the ex"things personal” (I am not now speaking pression of this rule or maxim, inof the estates in things); the one in its na. stead of the term "affixed” and with the same ture, or contemplation of law, is immovable ; meaning. The terms do not mean that whatthe other movable. Therefore a thing ever is placed into mere contact with the is either a “mere personal chattel” or realty is "affixed” or "apnexed” to it; nor it is "a thing real,” and it is removable on the other hand, will the strongest and or not according as it is found upon judicial most substantial fastening or fixing neces. inquiry to be the one or the other. So it is sarilly

sarilly render the article so fastened, believed that any attempt to draw a dis- affixed” or “annexed” to the freehold tinction between "mere personal chattels" within the meaning of these terms, as used and an imaginary species of property which in the maxim. But if a chattel which is is not wholly "a thing real," nor wholly "a placed in contact with the realty, becomes a thing personal,” can lead but to confusion. part of the freehold, it is then, and not until

We will now proceed to another error or then, in the sense of the term as used in the misapprehension. It is an ancient maxim maxim of the common law, "affixed” to the of the common law that whatever is af realty. This view of the meaning of these fixed to the realty is thereby made a part terms may be somewhat supported by the of the realty to which it adheres, and par- language used in Hill v. Sewald, 13 which is as takes of all its incidents and properties.' follows: "It is not the character of the

physical connection with the realty, which 7 Ewell on Fix. 77, and cases cited.

constitutes the criterion of annexation, as 8 Handy v. Dinkerhoof, 57 Cal. 3; Tools v. Winton,

the authorities hereinafter cited abundantly 63 Conn. 440; Wattertown S. E. Co. v. Davis, 5 Houst. (Del.) 192; Walker v. Sherman, 20 Wend. 636; show ;' and further on in the same opinion McKim v. Mason, 3 Md. Ch. 186; Wade v. Johnson, 25 G&. 331 ; Hill v. Wentworth, 28 Vt. 428; Fullam v. Max. 401. Stearns, 30 Vt. 443; Swift v. Thompson, 9 Cunn. 63; 10 Teaff v. Hewitt, 1 Ohio St. 511. Scudder v. Anderson, 54 Mich. 122; Adams v. Lee, 31 11 Lancaster v. Eve, 5 J. Scott, C. B. R. 726. Mich. 440; Robertson v. Corsett, 39 Mich. 777; Nigro 12 The quotation is from the opinion of Williams, v. Hatch, 11 Pac. Rep. 177.

J., in Lancaster v. Eve, 6 J. Scott, C. B. R. 726. Ferard on Fix. 8; Ewell on Fix, 51; Broom's Leg. 18 53 Pa. St. 271.

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