commercial life for maximum shipping facilities coupled with the animate, mobile character of a ship, which makes a right in rem against a vessel comparable to a right in personam against an individual.

No right to remuneration for salvage exists unless certain requisites have been fulfilled. The early cases required that there be an actual and immediate peril as a condition precedent to a right of recovery.14 But to-day, by going more fully into the circumstances surrounding the alleged salvage, the requirement has been relaxed to a reasonable apprehension of impending danger. Likewise, the growth of the policy in our law to preserve property irrespective of the individual interests involved has combined to make a reasonable risk of danger sufficient.15 The Andrew Kelly v. The Commodore 16 shows that the serious crippling of a vessel's navigational powers may satisfy the requirement of peril though the disability was not sufficiently great as to have prevented her from making port. It is the danger of the salved property and not that of the salvors which is material in determining whether a salvage service has been performed. Further, it is necessary that the act be voluntary. This excludes services which are performed where the legal duty to supply aid already exists, as in the case of seamen aboard the salved vessel," or persons employed for the express purpose of rescue.18 Thirdly, to constitute a salvage service property must actually have been saved through the efforts of the party claiming reward.19 However, if such efforts proved unsuccessful in the preservation of property, nevertheless, if they were requested, recovery on the common count may be had in a common-law court or in admiralty as compensation in the nature of salvage.

Once a court has determined that a salvage service has been performed, many considerations pertaining to the work arise in the estimation of damages. The degree of danger of the salved property, the risk incurred by the salvors, their labor and skill, the time occupied in performing the service, the value of the property saved and its proportion to the value of the property in danger, all combine to determine the extent of the salvor's right.20 But it is fundamental to note that these are incidents and not requisites of salvage service.

14 The Henrietta, 3 Hagg. Adm. 345, notes (1837); The Giacomo, 3 Hagg. Adm. 344 (1836).

15 The Urko Mendi, 216 Fed. 427 (1914); The Evolution, 199 Fed. 514 (1912). “It is not necessary, I conceive, that the distress should be actual or immediate, or that the danger should be imminent and absolute; it will be sufficient if, at the time the assistance is rendered, the ship has encountered any damage or misfortune which might possibly expose her to destruction if services were not rendered." Per Dr. Lushington in The Charlotte, 3 W. Rob. 68, 71 (1848).

16 48 Dom. L. R. 213 (1919). See RECENT CASES, infra, p. 453.

17 The C. P. Minch, 73 Fed. 859 (1896); The Nebraska, 75 Fed. 598 (1895). But seamen are entitled to salvage for services rendered after a final abandonment of the ship. The Aguan, 48 Fed. 320 (1891); The Umattila, 29 Fed. 252 (1886). See 32 HARV. L. REV. 835 as to what constitutes abandonment.

18 See The Resolute, 168 U. S. 437, 441 (1897).

19 The Henry Steers, Jr., 110 Fed. 578 (1901); The Tolomeo, 7 Fed. 497 (1881); The Huntsville, Fed. Cas. No. 6, 916 (1860).

20 See The Blackwall, 10 Wall. (U. S.) 1, 14 (1869). "Where all the elements are found to exist in a high degree, a large reward is given; where few of them are found, or they are present only in a low degree, the salvage remuneration awarded is comparatively small." KENNEDY, CIVIL SALVAGE, 2 ed., 133.

EFFECT IN EQUITY OF A CONDITIONAL CONTRACT TO MORTGAGE.— In Connecticut Co. v. New York, N. H. & H. R. R. Co.,1 a case recently before the Connecticut Court of Errors, corporation bonds contained a promise that in the event the corporation should thereafter mortgage any property owned by it at the date of the issue of the bonds, the bondholders should share equally in the security with the future mortgagees. The principal questions sent up by the lower court were: (1) whether the corporation could effect a valid mortgage in terms which would prevent the bondholders from sharing in the security; (2) whether the bonds created an equitable lien forthwith on the property owned by the corporation at the date of issue. The first question was answered unani, mously in the negative; the second, two of the five judges dissenting, in the affirmative.

It is a well-established doctrine that a contract to mortgage property creates an equitable lien upon the property, provided the money has already been advanced.2 Prior to the maturity of the loan damages are so conjectural that the lender would obviously be entitled to only a nominal recovery at law. The cause of action which arises if the debt is not paid at maturity is clearly an inadequate substitute for the security contracted for. Consequently such a promise will be specifically enforced. Such an equitable lien like the equitable ownership of land in land contracts is considered a consequence of the right to specific performance.

If the contract be to mortgage property to be acquired in the future, the lien attaches upon the acquisition of the property. In the principal case, however, the property is already acquired, but the promise to give security is conditional. Hence the inquiry becomes whether there is a lien before the condition is performed. The case of an option to purchase land provides an analogy. In such a case the promise of the landowner is, in substance, to convey the land if the option holder elects to exercise his option. No equitable estate in the land is created forthwith by the option contract, because until the option is exercised there is no vendor-purchaser relation. Hence there is no right to specific performance, and consequently no equitable interest in the property is trans

1 107 Atl. 646: See RECENT CAses, p. 476, infra.

2 Holroyd v. Marshall, 10 H. L. C. 191 (1862); Wickes v. Hynson, 95 Md. 511, 52 Atl. 747 (1902): Atlantic Trust Co. v. Holdsworth, 50 App. Div. (N. Y.) 623, 63 N. Y. Supp. 756 (1900); Carter v. Sapulpa & Interurban Ry., 49 Okla. 471, 153 Pac. 853 (1915); Fitzgerald v. Fitzgerald, 97 Kan. 408, 155 Pac. 791 (1916); accord. Chase v. Denny, 130 Mass. 566 (1880), contra. See Samuel Williston, "Transfers of Personal Property," 19 HARV. L. REV. 560, note 4. Also for definition of equitable lien, see 3 POMEROY, EQ. JUR., 4 ed., § 1235, cited with approval in Walker v. Brown, 165 Ú. S. 654, 664 (1897), and Knott v. Mfg. Co., 30 W. Va. 790, 795, 5 S. E. 266, 268 (1888). 3 For collection of cases, see Ames, Cas. Eq. Jur. p. 61, note 3. And following more recent cases. King v. Williams, 66 Ark. 333, 50 S. W. 695 (1899); Hamilton v. Hamilton, 162 Ind. 430, 70 N. E. 535 (1904). See also FRY, SPECIFIC PERFORMANCE, 3d ed.,

p. 23.

4 Holroyd v. Marshall, supra.

Stembridge v. Stembridge,' 87 Ky. 91, 7 S. W. 611 (1888); Sweezy v. Jones, 65 Iowa, 272, 21 N. W. 603 (1884). Nor is there an equitable conversion until the option is exercised. Smith v. Loewenstein, 50 Ohio St. 346, 34 N. E. 159 (1893); Rockland Co. v. Leary, 203 N. Y. 469, 97 N. E. 43 (1911); accord. Lawes v. Bennet, 1 Cox Ch. 167 (1805), contra.

ferred. Again, certain illustrations of the doctrine of equitable conversion are helpful in this connection. If, in the case of a contract to convey land the vendor is unable to furnish good title, unless the contrary has been expressed there has been a breach of an implied condition precedent and the purchaser has an election whether he will compel a conveyance. It has been held under such circumstances, as where tested by the death of the vendor before the election, that there is no equitable conversion." Furthermore the risk of loss, a natural concomitant of ownership, is, prior to the purchaser's election, to go after the property on the vendor." Similarly it would seem in the Connecticut case that no property right was created by mere contract, and that none could arise until the corporation made a mortgage of some of its property. Until there were such a mortgage it would be impossible to say what property was subject to the lien. Just what or how much could not be determined until the future mortgage was made. Until the performance of this condition precedent, the specification by mortgage of the property, the bondholder is not entitled to specific performance. If the hypothesis that the creation of equitable property rights by contract is to be tested by the right to specific performance be correct, then it is immaterial whether the condition precedent is to be performed by the party claiming the equitable interest in the res, as in the option and defective title cases, or by the promisor, as in the principal case.

The judges who dissented on the second question seem to have reached the sounder view. The majority apparently gave the bonds a more sweeping effect than that of English debentures, which are in the nature of floating mortgages not attaching to specific property until the happening of the event agreed on, e. g., insolvency. To impose a cloud on the title of the corporation ab initio is a more serious matter and could hardly have been within the intent of the parties. As to the first question there can be little doubt that when the mortgage is made, the condition is fulfilled, the property is ascertained, and the contract made specifically enforceable, so that from that instant the bondholders should share

• Thomas v. Howell, L. R. 34 Ch. D. 166 (1886); Lunsford v. Jarrett, 11 Lea (Tenn.), 192 (1883). See Cooper v. Jarman, 3 Eq. 98, 101 (1866).

7 Mackey v. Bowles, 98 Ga. 730, 25 S. E. 834 (1896).

For a good description of an English debenture see Government Stock Co. v. Manila Ry. Co., [1897] A. C. 81, 86 (1896); see also SIMONSON, Debentures aND DEBENTURE STOCK, 15-26.

9 If A contracts to mortgage his horse to B if it rains next Thursday, and B advance the money, before Thursday B will have no property right. But if A before Thursday gives his horse to C, or C purchases it with notice of the agreement, and Thursday is rainy, B should be able to compel a mortgage of the horse from C. Such is the result in the case of an option to buy land. A donee or purchaser with notice from the vendor must convey to the option holder if the latter exercises his option. Ross v. Parks, 93 Ala. 153, 8 So. 368 (1890); Calanchini v. Branstetter, 84 Cal. 249, 24 Pac. 149 (1890); Horgan v. Russell, 24 N. D. 490, 140 N. W. 99 (1913); Faraday Coal & Coke Co. v. Owens, 26 Ky. L. Rep. 243, 80 S. W. 1171 (1904); Sizer v. Clark, 116 Wis. 534, 93 N. W. 539 (1903); City of Birmingham v. Forney, 173 Ala. 1, 55 So. 618 (1911). No better reason can be assigned for this rule than that it is unconscionable for C thus to prevent performance of a bargain of which he has knowledge. Dean Ames suggested unjust enrichment. See "Specific Performance for and against Strangers to the Contract," 17 HARV. L. REV. 174. In the principal case, however, this situation can not arise, because, if the corporation sells any of its property, they cannot later mortgage it, and as to that property the contingency can never happen.

equally in the security.10 Only where the mortgagees were purchasers for value of a legal interest without notice of the provision in the bonds should they come ahead of the bondholders.

TITLE TO SEASHORE AND SOIL UNDER NAVIGABLE RIVERS AND STREAMS. By a rule of international law every independent nation is considered to have territorial property in and jurisdiction over the seas which wash its shores within a limit of three miles from low-water mark on the shore. Moreover, title to the soil of all navigable tidal rivers as far inland as the tide ebbs and flows, and of all estuaries and arms of the sea, vests in the sovereign,2 on the ground that such streams partake of the nature of the sea and are branches of it as far as it flows.3 But inlets of the sea and small tidal creeks which are not susceptible of navigation belong to the owners of the lands along their banks. In England, whatever may be the King's right to-day, it was early recognized that he had the right to make a grant of the soil under tidewaters. The States are the successors to the rights of the English King in this country, and in the absence of any constitutional inhibition there is no reason why they cannot through their legislatures make similar. grants. In order to pass the soil under such waters, however, express words must be used."

5

6

8

At common law, title to the seashore on tidewaters was prima facie in the King. This was the opinion of Lord Hale 9 and the modern English cases have accepted his view.10 The majority of American juris

10 The right that the bondholders acquire when the contingency happens would seem to be the equitable ownership of the security title.

1 Gann v. The Free Fishers of Whitstable, 11 H. L. Cas. 192 (1865); Manchester v. Mass., 139 U. S. 240 (1891).

2 Gann v. The Free Fishers of Whitstable, supra; Townsend v. Brown, 24 N. J. L. 80 (1853); Hoboken v. Penn. R. R. Co., 124 U. S. 656 (1888).

Royal Fishery of the Banne, Davies Rep. 149 (1610).

See Commonwealth v. Charlestown, 1 Pick. (Mass.) 180 (1822); Rowe et al. v. Granite Bridge Corp., 21 Idem. 344 (1838).

The Free Fishers of Whitstable v. Gann, 11 C. B. (N. s.) 387 (1861). The corporation of New York City received under royal charters title to lands under water along the East and North Rivers to the extent of four hundred feet from the line of low-water mark. Furman v. New York, 10 N. Y. 567 (1853).

Gould v. The Hudson River R. Co., 6 N. Y. 522 (1852); Langdon v. New York, 93 N. Y. 129 (1883).

7 Middletown v. Sage, 8 Conn. 221 (1830); Wright v. Seymour, 69 Cal. 122, 10 Pac. 323 (1886).

The seashore is "that space of land on the border of the sea which is alternately covered and left dry by the rising and falling of the tide; or, in other words, that space of land between high and low water mark." 2 BOUVIER'S LAW DICT. 963. High and low water marks are the limits within which the tide ordinarily ebbs and flows. Atty.-Genl. v. Chambers, 4 De G., M. & G. 206 (1854); Church v. Meeker, 34 Conn. 421 (1867).

"The shore... doth prima facie and of common right belong to the king." HALE, DE JURE MARIS, C. 4.

10 Scratton v. Brown, 4 B. & C. 485 (1825); Le Strange v. Rowe, 4 Fost. & Fin. 1048 (1866); Pearce v. Bunting, L. R. 2 Q. B. D. 360 (1896). The King has the right to transfer title to the seashore by grant, subject to the public easements of navigation and fishing. Atty.-Genl. v. Parmeter, 10 Price, 378 (1822); Parker v. Elliott, 1 U. C. C. P. 470 (1851).

dictions have adopted the English rule, and consequently title to the shore is prima facie in the state, and the riparian owners hold only to high-water mark." A minority of jurisdictions, however, give the riparian proprietor title as far as the low-water mark.12 It is submitted that the latter rule is the more desirable. The shore is of little practical value to the sovereign.13 The owners of lands along the shore alone are ordinarily in a position to make a valuable use of the shore and to construct improvements on it.14 Their access to the sea should not be jeopardized by the possible presence in a grant of words open to a construction which would convey the shore to a third party. Lord Hale himself 15 and the English courts since his time have been compelled to acknowledge the weight of these considerations. The result has been that rather

"Long Beach Land & Water Co. v. Richardson, 70 Cal. 206, 11 Pac. 695 (1886); Hess v. Muir, 65 Md. 586, 6 Atl. 673 (1886); Parker v. The West Coast Packing Co., 17 Ore. 510, 21 Pac. 822 (1889); Boulo v. New Orleans, Mobile & Tex. R. Co., 55 Ala. 480 (1876); Bailey v. Burges et al., 11 R. I. 330 (1876); Simons v. French, 25 Conn. 346 (1856); The N. J. Zinc & Iron Co. v. The Morris Canal & Banking Co., 44 N. J. Eq. 398, 15 Atl. 227 (1888); Roberts v. Baumgarten, 110 N. Y. 380, 18 N. E. 96 (1888); Eisenbach v. Hatfield, 2 Wash. St. 236, 26 Pac. 539 (1891); Galveston City Surf Bathing Co. v. Heidenheimer, 63 Tex. 559 (1885).

Grants made by the United States from public lands on tidewaters in the Territories carry only to high-water mark. The disposition of the soil below that point is left to the states when they are organized and admitted into the Union. Shively v. Bowlby, 152 U. S. 1 (1893). See Hardin v. Jordan, 140 U. S. 371, 381 (1891).

The state, like the King, may grant away its title to the shore. Ward v. Mulford, 32 Cal. 365 (1867); Galveston v. Menard, 23 Tex. 349 (1859). In New Jersey the riparian owners may reclaim the shore by filling it up, and if the state fails to intervene, they thereby acquire title to the land reclaimed. By the acquiescence of the legislature the state is divested of its title and may not thereafter grant the shore to a third party. Gough v. Bell, 22 N. J. L. 441 (1850). By a statute in 1856 the State of Florida divested itself of all title and interest in lands covered by water upon navigable streams, bays, and harbors, as far as the edge of the channel, and vested the same in the riparian proprietors. Geiger et al. v. Filor, 8 Fla. 325 (1859). A similar statute in Virginia extended the title of the riparian owners on bays, rivers, creeks, and shores of the sea to the line of low-water mark. McDonald v. Whitehurst, 47 Fed. 757 (1891).

12 Palmer v. Farrell, 129 Pa. 162, 18 Atl. 761 (1889); The Harlan & Hollingsworth Co. v. Paschall, 5 Del. Ch. 435 (1882). In the Colony of Massachusetts an ordinance of 1641 extended the title of the adjoining landowners to low-water mark, where the ebb and flow of the tide did not exceed a hundred rods; otherwise title was given to the flats to the extent of a hundred rods from high-water mark. Though the ordinance was annulled by the vacating of the charter under the authority of which it was made, the usage continued and acquired the force of common law. Storer v. Freeman, 6 Mass. 435 (1810); Tappan v. Boston Water-Power Co., 157 Mass. 24, 31 N. E. 703 (1892). The rule of the Colonial ordinance of 1641, though never extended to Plymouth Colony as a positive law, is nevertheless a settled rule of property in every part of the State of Massachusetts. Barker v. Bates, 13 Pick. (Mass.) 255 (1832); Sale v. Pratt, 19 Pick. (Mass.) 191 (1837). The Colonial ordinance of 1641 is a part of the common law of Maine. Abbott v. Treat, 78 Me. 121, 3 Atl. 44 (1886). In Clement v. Burns, 43 N. H. 609 (1862), it was held that the Massachusetts usage extended to New Hampshire.

13 Cf. the doctrine of accretion, and the reasons given for the same in Gifford v. Yarborough, 5 Bing. 163 (1828).

14 In whomsoever the title to the shore may be, there is no doubt that it is held subject to the public easements of navigation and fishery.

15 The subject may gain title to the shore by prescription and usage. Taking seaweed from the shore, enclosing it from the sea, and the punishment in the manorial court of purprestures committed on the shore, are all evidence, according to Lord Hale, that the shore belongs to the lord of the manor. DE JURE MARIS, c. 6.