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person who did the work. Ct. of Ap. Nov. 21, 1883. Matter of Rotherham Alum and Chemical Co. Opinions by Cotton, Lindley, and Fry, L. JJ. [50 L. T. Rep. (N. S.) 219.]

WILL-LEGACY, WHEN RESIDUARY AND NOT SPECIFIC. A testator by his will directed his debts and funeral and testamentary expenses to be paid, and bequeathed a large number of pecuniary legacies. He then gave all the personal estate of which he should die possessed and which should not consist of money or securities for money, to R. absolutely, and gave all the residue of his estate, both real and personal, to his executors upon certain trusts. The personal estate, consisting of money and securities for money, was not sufficient to pay the pecuniary legacies. Held (affirming the judgment of the court below), that the gift to R. was residuary, and not specific, and must be resorted to in order to satisfy the pecuniary legacies. House of Lords. July 23, 1883. Robertson v. Broadbent. Opinions by Selborne, L. C., and Fitzgerald, L. [50 L. T. Rep. [N. S.] 243.]

-LIABILITY

GUARANTY-CONTINUING-TERMINATED BY DEATH OF ESTATE-APPROPRIATION OF PAYMENT.-S. gave to the L. and C. bank a continuing guaranty for moneys from time to time due to the bank from T. on the general balance of his account, in consideration of the bank allowing T. to overdraw his account. S. died, and at that time T.'s account was overdrawn to the extent of 6771. 17s. 2d. His account was then balanced and closed, and a fresh account opened, in which he was debited with interest on the overdraft. No notice of this was given by the bank to S.'s executors. T. continued to keep his account with the bank, and various sums were from time to time paid into it, and more than sufficient to discharge the 6771 178. 2d. He subsequently went into liquidation, at which time his account was overdrawn to the extent of 1381. 12s 10d. in addition to the amount of the former overdraft. The bank contended that there were two distinct accounts, and that the sums paid in subsequently to S.'s death were credited to the new account, and that the amount owing on the guaranteed account at S.'s death, when the guarantee ceased, still remained undischarged, and they brought this action to administer S.'s estate for the purpose of recovering that sum. It was assumed on both sides that the guarantee terminated on the death of the surety. Held (reversing the decision of Bacon, V. C., 49 L. T. Rep. [N. S.] 556), that the bank had a right to open the fresh account, and to appropriate any money received to it, and that their contention was therefore correct. Clayton's Case, 1 Mer. 605, distinguished; Kirby v. Duke of Marlborough, 2 Maule & Sel. 18; Williamson v. Richardson, 3 Bing. 71; Holland v. Teed, 7 Hare, 50. Ct. of App. Jan. 24, 1884. London, etc., v. Terry. Opinions by Selborne, L. C, Coleridge, C. J., and Cotton, L. J. [50 L. T. R. (N. S.) 227.]

WATER AND WATER-COURSE-SUBTERRANEAN POLLUTION-RIGHTS OF PARTIES.-It being settled that the owner of a well has no right of action against the owner of an adjoining well, both wells being fed from below from a common supply of unappropriated water in deep water-bearing strata, for abstracting or diverting the whole of such water, it follows that he has also no right of action if such neighbor, instead of thus affecting the quantity of the common supply, affects its quality by allowing or causing sewage or other noxious matter to be poured down his own well. The principle is that whoever gets the water first can do what he likes with it, and therefore the pollution having taken place before the water is drawn up by the party complaining, he must take it as he finds it or not at all. The owner of a well sunk into a deep waterbearing area, e. g., the chalk strata below the London

basin, is not in the position of a riparian owner on the shore of a large lake. He has no usufructuary rights, being, as above stated, unable to prevent a neighbor from abstracting or diverting the common supply, and he therefore cannot prevent his neighbors from doing that which will cause the water, when drawn by him to the surface, to be polluted. Two such wells as above described were so situated, ninety-nine yards apart, as to be practically in connection, the water standing at the same level in each when pumps were not being used, and the use of the pump in one tending to lower the water level in the other. The defendant, owning one well, began to use it as a cesspit. The plaintiff, a brewer, owning the other, complained that as the fact was, the water in his well, which had formerly been pure, now proved to be polluted when drawn to the surface. There was no subterranean flow or current from one well to the other except such flow as resulted from the natural tendency of the water to replace that which was drawn up from either well. It thus appeared that if the plaintiff did not pump there would be no flow and no pollution. Held, in an action by the plaintiff for an injunction and damages, that he must fail, both on the principle above stated and also (which was in itself sufficient) because the pollution of the water in his well was owing to his own act. To hold the contrary would be to encourage actions for pollution from any distanee within the "cone of exhaustion" of a plaintiff's well, or even further, on the ground that the polluting matter might be passed on from well to well. It would also render it impossible to limit the depth at which the court might be asked to interfere. Acton v. Blundell, 1 L. T. Rep. 207; 12 M. & W. 324, and Chasemore v. Richards, 7 H. L. Cas. 349, applied. High Ct. of Justice, Chy. Div. Feb. 13, 1884. Ballard v. Tomlinson. Opinion by Pearson, J. [50 L. T. Rep. (N. S.) 230.]

NEW BOOKS AND NEW EDITIONS.

COOLEY'S BLACKSTONE.

The third edition of this work is published by Callaghan & Co., of Chicago. Of a former edition we spoke in 2 Alb. Law Jour. 483. In the present edition the English notes have been discarded, and others have been substituted, and still others have been enlarged. The notes by Judge Cooley are excellent, and valuable to the practitioner as well as the student. The prefatory "Suggestions concerning the study of the Law," and the closing "Review," by the editor, are full of wisdom. As for Blackstone's work, it will never be superseded, and it is one of the few law treatises which it is a pleasure to read.

NOTES.

The American Law Register for June contains a continuation of the paper on Telegraph Companies, by Benjamin F. Rex, and an article on relief of the Supreme Court of the United States, by William M. Meigs, and the following cases: Stott v. Fairlamb (Eng. Ct. App.), on note for antecedent debt not due, with note by Edmond H. Bennett; Texas, etc., R. Co. v. Capps (Tex.), on baggage containing merchandise, with note by Adelbert Hamilton; Whiting v. Ohlert (Mich.) and White v. Holland (Oreg.), on statute of frauds, lease for a year to commence in future, with note by Marshall D. Ewell; Com. v. Phoenix Iron Co. (Penn.) on inspection of books of corporation by shareholder, with note by Charles L. Billings.-In State v. Kirkpatrick, 19 N. W. Rep. 662, the Iowa Supreme Court observes, that "Men do kiss their wives, but ordinarily do not kiss their servant girls." Read, "do not kiss their 'ordinary' servant girls," and we are with the court.

The Albany Law Journal.

W

ALBANY, JULY 19, 1884.

CURRENT TOPICS.

E have only been waiting for the Democratic nomination for the presidency

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we mean, to learn who was nominated to offer all the candidates a bit of legal advice — gratuitous — on the subject of interviewing. Messrs. Blaine, Logan, Cleveland and Hendricks will now for several months be the prey of interviewers, if they will once abandon themselves to their cruel mercies. advice we are about to offer is in the form of a poem addressed to General Grant, who was always a model on this subject, not only as an interviewee, but as an interviewer. He asked but one "interview" that we have ever heard of, and that was with General Lee, and he only obtained it after long and persistent seeking. We never heard of anybody's obtaining an interview from him. We sent a copy of this poem to General Grant, but he did not have politeness enough to acknowledge it. We sent another to the poet Longfellow, and he not only acknowledged it, but said he thought it "better than the original." We suppose he intended this as a compliment, but we have always had an uneasy suspicion that he regarded our poem as in some sort an imitation or parody or travesty of some poem of his. Nothing could have been further from our thoughts. But we will let the poem speak for itself, and we venture to commend it especially to Governor Cleveland, not only as a candidate, but as a member of our profession and a resident of our own city. Now here is the poem, which we believe we have never divulged before :

THE INTERVIEWER.

The shades of night were falling fast,
As close by Willard's inn there passed,
A youth, who bore, pinned on his breast,
A placard, with this strange request:
"An interview."

His hat was bad, his hair was long,
His breath of rye smelled very strong,
While from his pocket uppermost
Appeared the last Chicago Post-
"An interview!"

In Willard's window he saw the light
Of snug bar-room gleam clear and bright;
Above, the Treasury pillars shone,
And still he answered with a groan
"An ninerview."

"You got your pass?" Ben Butler said;
"Dark scowls the usher overhead;
Grant's careful of his spoons beside;"
And thick that inebriate voice replied:
"An ninerview!"

"O stay," cried Vinnie Ream, "and rest Thy classic head upon this breast,

"

And I will make thy bust, sweet youth." That's what I'm 'fraid of,' tell the truth An ninerview."

VOL. 30 No. 3.

"Beware the policeman's locust club,
And take this present from the Hub."
This was Charles Sumner's last good night,
A voice still hiccupped, up the height,
"An ninerview."

Next morn, as homeward to their houses,
Our rulers reeled from their carouses,
Stubbing their toes on frosty ground,
They started at the accustomed sound.
"An ninerview."

A loafer did policeman Y

Upon the White House steps espy,
And as he gave him a lively kick,
That voice responded, faint and thick,
"An ninerview."

There in the twilight cold and gray,
Senseless and whisky-full he lay,
While from an upper window far,
A voice came from behind a cigar,
"No interview."

WASHINGTON, 1870.

Judge Drummond, of the United States Circuit Court, has resigned. He is nearly seventy-five years old, and has been a judge for more than thirty-four years. The amount of public service that he has performed in this period is not easily calculable. The amount of compensation that he has received for it is very easily ascertainable, and it is pitifully small. We know nothing of Judge Drummond's financial circumstances, but it is safe to say that he cannot have saved any thing from his salary. It is an unjust thing for a great republic to allow a public servant to wear out his best years in its service for a meagre compensation, and to compel him to starve in his old age. This country is rich enough to pay its judges a decent salary say half as much as they could earn at the bar. Congress wastes enough money every year on a horde of unnecessary hangers-on and positive loafers to pay the judges what they ought to have.

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Mr. Taine says, in his History of English Literature, that the English are a gloomy and morose people, with no of humor. Reading the average "Punch" would go far to confirm this opinion. But the English lawsuits of late seem funnier than ours. We get quite a batch from Gibson's Law Notes. Southend, in its efforts to suppress Sunday trading, has prosecuted an old widow, who sold sweatmeats, eight times; a tobacconist, seven times; a fruiterer, seven. This is like the police arresting the small boys in a riot. A howling dog has been pronounced a public nuisance. Mr. Spratt, manufacturer of dog biscuits, has enjoined a colorable imitation of his manufactures. (Perhaps the offending dog had got hold of one of the counterfeit articles.) An execution creditor sued a sheriff for not having seized a circus horse named " Lightning.' The horse was usually ridden by Miss Maud Forrester as Mazeppa and Lady Godiva. The modest sheriff was probably afraid of meeting the lady in her go-diving costume, and of losing an eye. The clubs are in grief be.

cause baccarat has been pronounced an illegal game. A county judge refused to hear a case about a lamb, and was mandamused and made to pay costs, and then called the plaintiff "an infamous liar," But the best joke of all is that the Court of Appeals consider that telephone wires are not a nuisance or dangerous. Probably the judges regard the network of wires that adorns our cities as an Eolian harp on a large scale. But these wires have proved very much in the way in the case of great fires.

Mr. William M. Meigs has an important article in the American Law Register for July, on the relief of the Supreme Court of the United States. He proposes to relieve it by bleeding, as some reformers once proposed to relieve our Court of Appeals. Mr. Meigs proposes to abolish the right of appeal on the ground of citizenship. After showing that this class of cases constitutes more than one-third of the entire number, and give special and peculiar trouble to the Court, and after answering the constitutional objection, he observes: "We think these facts show that the jurisdiction depending exclusively on citizenship involves great and peculiar trouble, and it would seem, therefore, that the de

cision of a hundred such cases must demand not a little more time and labor than do an average hundred cases of strictly Federal law. Therefore, as the citizenship cases constitute slightly more than a third of all their cases, we should, by abolishing root and branch this source of jurisdiction, reduce their labor considerably more than a third. This is a vast reduction, and the only question that remains is the advisability of the step. Is there any reason to-day for the court's being troubled with this mass of cases which do not belong to the system of jurisprudence which it is their function to erect? We cannot see that there is. The reason for the constitutional grant of jurisdiction in such cases is well known and was doubtless a hundred years ago a very valid one, but it would seem to have no vital force any longer. At the time the provision was adopted, we were emerging from a condition in which each State had been actively engaged in erecting its own walls of restrictions, with the view of helping itself and injuring its neighbors, and there is no doubt that there were strong feelings of jealousy and distrust among the different States of the confederation. This condition of affairs was the very reason for the making and adoption of the Constitution, and it is highly natural, therefore, that it contained the provision. There would likely, otherwise, have been frequent bickerings and discontents about verdicts and decisions going against citizens suing in States where they did not live, and one of the very purposes of the Constitution would have been frustrated for a time. But the course of nearly one hundred years has changed all this. It is hackneyed now to speak of the nearness of all parts of the country to each other and of the closeness with which we are bound together in all the affairs of daily life, but it is only the more true,

because hackneyed. It is undoubtedly the case that
San Francisco is effectively as near us to-day as
Boston was to Richmond a hundred years ago.
The New Yorker is vastly better acquainted to-day
with the Chicagoan than he then was with the man
from New Haven. We are all closer together in
point of mere time, and in other matters our close-
ness to each other is even greater. And this con-
stant intercourse and knitting of interests has had
that effect which was to be expected. We have be-
come better friends, more similar in manners and
customs, more willing to trust each other, and we
do not now look with staring eyes at the citizen of
another State as he passes us in the street or we deal
with him. On the contrary, we daily see and deal
with many of them, without even knowing it, or
caring, if we do. It may fairly be said that that
prejudice, which was the cause of the constitutional
provision, is a thing of the past. If it was then, it
is no longer, the case that a citizen of any State
need fear that he will fail of receiving a fair trial,
let his suit be in what State you please. We must
not forget, that in the Federal as well as the State
court, he will meet with a jury of citizens of an-
other State than his; and, if the change proposed
is made, the only difference will be that he will
have his trial presided over by a judge, who is also
a citizen of another State than he, which may, pos-
sibly, not be the case, when he has the right to sue
in the Federal courts. We should be loath to be-
lieve that this would put the party from a distance
in any peril of not getting an impartial trial, nor do
we think there is any evidence whatsoever that such
would be the case. If we are right as to the ques-
tion of prejudice, there is certainly no valid reason
why the jurisdiction should not be abolished. If
it is said that their jurisdiction is necessary in such
cases on account of questions of commercial law,
the answer is plain that by far the greater number
of such cases and often growing out of a trans-
action identically the same as that which it is ar-
gued the Federal courts should decide must in-
evitably be subject exclusively to the courts of the
State; and that system sadly lacks uniformity,
which holds a defendant not liable on one contract
and yet liable on another, when the sole difference
between the first and the second is that the parties
to the second are entitled to sue in the Federal
courts. And in the vast majority of such cases, the
Federal courts are, by universal admission, called
upon, merely owing to adventitious circumstances,
to administer the law of another forum. It is cer-
tain that they cannot exercise this function any bet-
ter than the courts of the State, whose very breath
of life is the law in question.
As to the compara-
tively few cases of this nature, in which they de-
cline to follow the law of the State as expounded by
her tribunals, it is submitted that their soundness,
as also their expediency, are matters of grave doubt.
This line of decision has given rise to another great
element of uncertainty as to party's rights as well
citizens as non-citizens of the State and has un-
questionably not attained any such degree of def-

initeness as enables counsel to advise on the subject. The decisions are undoubtedly very conflicting, the question is one of the greatest difficulty and obscurity in itself, and the court has not succeeded in elaborating any system out of it, which offers a reasonable prospect of a scientific basis. We think therefore that even those who support this class of decisions, must feel that their importance is not sufficiently great to render it worth while to yield up the great prospect offered of relieving the court without the creation of new courts and complicated machinery." Mr. Meigs would also cut off appeals from the District of Columbia, constituting five per cent, and Territorial cases involving more than $1,000, constituting four per cent of the entire number.

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It was long since decided that a "running switch" in a thickly settled locality is negligent. The other end of this question is now decided in Howard v. St. Paul, etc., Ry. Co., Minnesota Supreme Court, June 12, 1884, 20 N. W. Rep. 93, where it is held that whether "kicking" is negligent is a question for the jury. The court said: "When the manner of running the cars across the street by 'kicking,' and the situation of the tracks, had been explained to the jury, and the rate of speed at which they were run across, shown, together with the character of the night as to darkness, and of the street as to the extent to which it was traveled, it was peculiarly the province of the jury to determine whether the rate of speed was reasonable, and whether 'kicking' the cars- that is, giving them an impetus sufficient to carry them to the desired point is a more dangerous mode of running them across a street than running them across with the engine, and whether it is any more convenient. No one can be so ignorant of the operating of railroads as not to know that the engine can run across at a snail's pace, while 'kicking' must require considerable speed to be given at the start to carry the cars to the point of destination. It was proper to submit the questions to the jury, though there was no expert testimony, for the matters came within the common sense and common observation

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of the jury." We suppose that whether "kicking is justifiable in a political party sense is also a question for the jury.

In Quinn v. Chicago, B. and Q. R. R. Co., Supreme Court of Iowa, April, 1884, 18 Rep. 47, it is held that where an owner, by his act or permission allows water to collect on his land and it percolates so as to injure the cellar and foundation walls of his neighbor's house, he is liable for such injury in dam

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ages. The court said: "The rule is well settled that no action can be maintained for the diversion of percolating water, where the act of diversion is done by the owner of the premises where done, and is done in good faith. But the injury complained of in this case did not arise from the diversion of percolating water from where it was wanted, as from a well or spring, but from so collecting water that it reached, by percolation, to where it was not wanted, to-wit, to a cellar and to the foundation walls of a house. Our attention has been called to no case where the precise question presented has been decided. On principle it would seem that the plaintiff ought not to recover for such damage if it resulted from the lawful and reasonable use by the defendant of its own lot. How far the plaintiff's house was from the line between her lot and the defendant's does not appear; but the evidence shows that it was near. It shows that it was only four feet between the house and the excavation. If the distance between the house and the line was not such as to afford immunity against water percolating from the defendant's lot, it was the fault of the person who built the house, unless the water was collected and suffered to stand on the defendant's lot through some unlawful or unreasonable use or sufferance. Such use or sufferance the owner of the injured premises was not, we think, bound to anticipate, and consequently was not bound to provide against. It is true that there was no necessary connection between the condition of the water which made it a nuisance, if it was such, and the injury sustained from the undermining of the house; yet it cannot be denied that the length of time during which the water was allowed to stand was, among other things, the cause of both. It is to be observed also that during the continuance of the nuisance the defendant was without excuse in suffering the water to remain. The defendant was under constant obligation to remove it, and the plaintiff had reason to suppose that it would remove it. During that time it was not for the defendant to say that the injury being sustained by the plaintiff was not actionable, because merely incidental to the exercise by the defendant of its own rights. While we think that the instruction asked went too far, and was properly refused, the court should, we think, have submitted the question as to whether the defendant became guilty of a nuisance, as alleged in the petition, and should have instructed the injury that in case they so found they might allow the plaintiff for such injury as her premises sustained from the percolation of water from the excavation after the same became and while it remained a nuisance."

In Ballard v. Tomlinson, Ch. Div., Feb., 1884, 50 L. T. R. 230, the plaintiff, a brewer, drew his watersupply from a well on the premises. On the adjoining premises there was a well. By drawing water from one well the level of the other was lowered, but the connection between the wells was entirely natural. The defendant used his well as a cesspit whereby the water in the plaintiff's well became pol

luted. He sued for an injunction and damages. Held, no cause of action. The court, Pearson J., said: "I do not hesitate to say that the case is an important one. Mr. Cookson has quoted to me the

case of Womersley v. Church, which was a case before Lord Romilly, and is reported only in the Law Times. Mr. Cookson says that that case is an authority to show that no man is allowed on his own land to create a nuisance of such a nature as to foul his neighbor's water, or to allow sewage water to percolate from his land into his neighbor's well. That case is very shortly reported in the Law Times. The conclusion at which I arrive upon reading that case is this, that what the defendant in that case did was so to deal with his own land that the foul water percolated through his land, and through the sides of his neighbor's well, injuring the water in his neighbor's well. I agree that he cannot be allowed to do that. Where however you are dealing with water which is invisible, and of which for all purposes in this court I must assume that nobody knows what the course has been or will be, what to my mind the plaintiff has to show is that any injury is done to any right of his. Now if I am correct in coming to this conclusion that the person who gets first control of that water is at liberty to use it for any purposes that he pleases, then I say, to begin with, no injury is done to the plaintiff. He takes his chance, when the water comes to him, of what the water may be. He is entitled to that subterranean water as it reaches him, but he cannot complain that his neighbors have (if they have done so) exercised their rights before it reaches him, and have done so in such a manner as either to deprive him of the water altogether or to alter its quality. I come, therefore, to this conclusion, that so far as that point of view is concerned the plaintiff has no right of action against the defendant. As to the other part of the case the solicitor-general put it exceedingly clearly this morning. He said this: It is in evidence that at this particular part of Brentford you are very nearly at the bottom level of the chalk stratum, and that there is nothing whatever to show, that if the two wells were left in perfect quiet, any thing coming from the defendant's well would get into the plaintiff's well. The solicitor-general argues that both wells being in a state of equilibrium, whatever the defendant poured down his well would remain there, and whatever water there was under the plaintiff's property would remain pure, and that nothing would escape from the defendant's well to the plaintiff's well. 'But,' says the solicitor-general, 'if you choose to alter that state of things; if you choose for your own purposes, and for the use of the water, to pump your well, and to create a vacuum, the result is this, that as the cone of exhaustion extends you arrive at last at the defendant's well, and you naturally draw away from him that which is lying under his well. The defendant does not complain of that, but he says, if you choose to come upon my premises and draw water which is there from me, you must be content to take the water as you find it, and you cannot complain

that the water is dirty when you yourself have come to seek it, and have taken it away. I did not send it to you. I left it where it was; you have ex mero motu, chosen yourself to come and draw off that water.' Now is not that true? Must it not be the case, all this water lying in the chalk stratum, that any person who draws it must draw it from his neighbors? Of course it is not water confined in an inexhaustible reservoir immediately at the bottom of the plaintiff's premises; but it is water lying in a very large stratum underneath, and if you take away from it, the place from which you take it away must be immediately supplied by water coming more or less from a distance, and the longer you pump the greater the distance from which it will come. Is it not, therefore, one of the incidents of the use of this water, that if you choose to use it, you take it at once subject to every single thing that has occurred to it by the use of it by other proprietors at a greater distance before it can reach your premises. I must say that I think that argument is sound. If that is so, then there is also a good defense on that ground to the plaintiff's action."

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In Proctor v. Putnam Machine Co., Supreme Judicial Court of Massachusetts, May 8, 1884, 18 Rep. 51, plaintiff, acting under an honest mistake of fact as to the true boundary line between his estate and that of defendant, gave defendant oral permission to build a wall on such supposed true line, and the wall was so built. Held, that plaintiff was not estopped for maintaining a writ of entry for the recovery of his land on which the wall was built. The court said: "A mistake of fact honestly made by the plaintiff as to the location of the boundary line of his lot by which he was induced to assent to the placing of a wall thereon by the defendant could not operate either to convey the land or estop the plaintiff from asserting his title thereto. The instruction that if the plaintiff acted with any fraudulent intent to deceive or mislead, he would be estopped from maintaining the action sufficiently guarded the rights of the defendant. While it has been held that in a matter of boundary, which is a question of the true line of division between adjoining estates, uncertainty may be removed by an arbi tration and an award, which not directly operating to convey the land, will conclude the parties from disputing the boundary as thus determined, no such case is here presented. Goodridge v. Dustin, 5 Met. 363. Where a boundary line has been erroneously run between adjoining estates without fraud and under a mutual mistake, one party is not estopped from claiming his own land up to the true line because the other has with his knowledge erected buildings or incurred expense by reason of the mistake. Tolman v. Sparhawk, 5 Met. 469; Liverpool Wharf v. Prescott, 7 Allen, 494. An occupation according to such erroneously drawn line, if adverse and under a claim of right, would without doubt effect a change of title if sufficiently long continued, but within the period of limitation the party who has thus permitted another to occupy beyond the true boundary may

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