Central Law Journal.

ST. LOUIS, MO., JULY 8, 1910

AVIATION AND WIRELESS TELEGRAPHY AS RESPECTS THE MAXIMS AND PRINCIPLES OF THE COMMON LAW.

The maxim cujus est solum ejus et usque ad coelum-whose is the soil, his it is even to the sky-did not, when we took our common law from England, carry any thought of human occupation of the superincumbent air, unless by structures attached to the soil. It was intended, as we think the common law, viewed as a system, demonstrates, to indicate that the owner of the soil had the right to forbid the plane above him being used to his detriment.

But movement across this plane was not conceived to be injurious actually or technically to any right of the owner of the surface below. The word surface itself in distinguishing an upper from a nether estate in land implies a several sort of enjoyment.

The further maxim quicquid plantatur (fixatur) solo, solo cedit-whatsoever is affixed to the soil belongs to the soil-and its kinfellow, omne quod solo inaedificatur solo cedit-what is built on the soil pertains to the soil-enforce the fixtures theory as the strict limit in land ownership.

All of us are acquainted with the decoy case which assumed, that one had the right to establish a business in attracting ducks flying through the air, from all directions, and it could not be interfered with by another standing even on his own soil and maliciously discharging guns. Keeble v. Hickeringill, 11 Mod. 74, 131.

It is not an answer to distinguish this case by saying that the flying of birds is one of the things in nature with which no ownership of property was ever expected to interfere except by actual occupancy. The point is that the owner of the decoy was using for his private profit that part of the air which another could exclusively оссиру.

It would yet be considered something of a fantastic claim for one who held land on the four sides of another to assert, that the latter could not maintain feeding grounds to attract wild fowl, because he was inviting aerial trespass across the objector's soil. And yet the claim would be not without merit, if it could be established that birds came in such clouds as to damage him, by temporarily alighting on his soil, or crops or trees.

This would be as if the inner owner of the soil had set lures to attract herds of beasts so that they would trample up the surrounding soil.

In Broom's Legal Maxims, page 397, Lord Ellenborough is reported to have ruled, that an action of trespass was not maintainable for one nailing a board to his own wall so that it overhung plaintiff's close, but an action on the case. He reasoned that, if it were trespass to interfere with the column of air superincumbent on the close, then any aeronaut would be liable at the suit of every occupier of a field over which his balloon passed, as trespass would not regard the length of time the air would be invaded. This illustration was intended to demonstrate that to invade a close by an overhanging structure could not be trespass, because this led to an absurdity, to-wit, trespass in fugitive occupancy of the air. But invading a close for an instant by doing anything to the soil or to what is planted in, or built upon it, or grows out of it, is trespass. Running across or stopping within the soil surface of a close is not differentiated in any respect. Therefore, according to Lord Ellenborough, it is not the same thing to invade one's atmospheric plane as his soil possession.

Take the distinction of plucking fruit from a tree being trespass and taking and carrying it away after it has fallen being larceny. It has become in the latter case personal property because it is not attached to the freehold. But it is as much attached to the superincumbent air in the one situation as the other. It is impregnated, so to speak, with some freehold in every place it

is, if, literally, a freehold extends to the sky, and nothing could be severed therein. If one bottled up some of the superincumbent air of A's freehold it would be going to an extravagant length to say he was committing larceny, but it would seem no less ridiculous to assert he was trespassing. If he took away A's soil or cut down his trees or drained his pond or carried away his mineral water, his act would be trespass.

All of truth there seems to be in the maxim of ownership to the sky is, that within lines extended through all points of soil ownership to the sky is a space of preferential use to the owner of the soil and such

use is interfered with only when enjoyment of the soil is diminished.

On this theory a nuisance is abatable. when it fills that space with noxious odors, or with concussion that shakes to their damage structures affixed to the soil; but any mere stirring of air that works no harm to occupancy of the soil has, we venture to assert, never been made the basis of any claim in a court.

It has been held, that the common law rule of cattle pasturing upon land whether open or enclosed has not been regarded as applicable to the condition of things in this country, and therefore it is not trespass here for cattle running at large to go upon, and pasture in, open land. Buford v. Houtz, 133 U. S. 320; Davis v. Davis, 70 Tex. 123. It was argued in the Buford case that this right of general pasturage enured to the common benefit and was given and taken upon an implied understanding that inhered in our very titles.

One can hardly doubt, that, had aviation been known and utilized as rapid advancement promises it is on the way of being known and utilized, a similar understanding, based on the same character of common benefit, would have secured its right into all open spaces above the soil. It would be far within the principle, that one for his private gain may draw fowl ferae naturae across the air above another's soil, to hold that science discovering public highways through the same element is with

in its legal rights. This is a conquest that civilization has far more right to claim than superiority in land title over savage tribes. In Guille v. Swan, 19 Johns. 381, 2 Hughes' Gr. and R. 528, an aeronaut was held liable in trespass for the damage done by his being dragged by a balloon through plaintiff's field and also for that of the crowd breaking in to rescue him from his. peril. The judge said: "I will not say that ascending in a balloon is an unlawful act, for it is not so; but it is certain the aeronaut has no control over its motion hori

zontally; he is at the sport of the winds and is to descend when and how he can; his reaching the earth is a matter of hazard." Then it was concluded he was responsible, because the consequences that ensued should have been foreseen. But the suggestion that he had no right to invade the air of whomsoever's close is impliedly repudiated. It would seem, that aviation has already placed itself beyond the application of the language we quote.

Wireless telegraphy uses air columns above earth planes in essentially the same way as does aviation. The only difference is that in the latter case the substance carried is more corporeal, so to speak. But what is carried by each method is something tangible and capable of being weighed and measured. If science attains the goal of its desire neither will be a stray in its element, or, as we might say, ferae naturae. Either may be intercepted, as wires transporting other telegraphy may be tapped. Between them we perceive no difference in plucking a Marconigram from the air for appropriation and capturing an aeroplane and calling it your own.

If they were even trespassers to no one accrues the right of use or confiscation. If, as was held in Skinner v. Wilder, 38 Vt. 115, 88 Am. Dec. 645, fruit cannot be appropriated by the owner of the soil when taken from the overhanging bough of a tree belonging to the adjacent soil, a fortiori it seems to us, these coursers of the air do not lose their ownership.

NOTES OF IMPORTANT DECISIONS

CORPORATIONS BREWERY COMPANY GOING ON SALOON KEEPERS' BOND.-The disposition of courts to shut out all defense by a plea of ultra vires has perhaps never produced any stronger illustration than the holding of a brewery company as surety, in various ways, to enable a retailer of its product to carry on business. Several cases have thus been ruled and the latest in that line coming to our attention is by the Michigan Supreme Court. Timm v. Grand Rapids Brewing Co., 125 N. W. 357.

It is not to be disputed that the rule is that a corporation cannot be indorser or guarantor for another, and consequently that for it to be bound in either such capacity some principle of estoppel should apply. Estoppel where a corporation receives and uses or retains a benefit is quite familiar, but that benefit is a tangible something supposed to move from the other party to the transaction at the time. He parts with something to the corporation, either property or a binding promise.

Suppose a case which has been ruled adversely to a corporation such as a guaranty by a brewing company to pay rent of one of its customers. Winterfield v. Brewing Co., 96 Wis. 237, 71 N. W. 101.

From the face of such a contract lessor is bound to inquire what interest the guarantor has in the matter. He ascertains that its trade is advanced, or is supposed to be advanced. But that is a collateral matter to the default guaranteed against and the principle embraced would extend to a subscription to anything that would boom trade.

The same may be said as to a decision which held valid a guaranty to pay notes to enable a saloon keeper to commence business. Brewing Co. v. Frantz, 123 Ill. App. 26. And signing bond required by statute. Horst v. Lewis, 71 Neb. 365, 98 N. W. 1046; Kraft v. Brew. Co., 219 III. 205, 76 N. E. 372.

If these things can be done, where is the line to be drawn? Why may not a mercantile or other corporation obligate itself for a railroad's contracts, because its success brings prosperity to the obligor? Can it not even agree to pay a surveyor, because a projected railroad is going to purchase supplies from it? How can estoppel arise afterwards, if a benefit is extended to the principal debtor by the promisee and not to the guarantor? If all this can be done, limitation in charter powers is largely a delusion.

Since writing the above our attention has been called to the case In re Liquor Dealers'

Supply Co., 177 Fed. 197, decided by Seaman, C. J., and concurred in by Grosscup and Baker, C. JJ.

In this case there was a resolution by the board of directors of a corporation reciting that its guaranty was requested by a customer for a loan to increase his own business and that such increase of the customer's business "tends directly to increase the business of this corporation."

The guarantor corporation having been adjudicated a bankrupt, its liability as guarantor on a note of its customer was resisted, and the court ruled that: "The pretense of benefit through increase of the customer's business is indirect, not within any authority cited; and the utmost import of the resolution is to secure the good will of the customer, the usual inducement held out to guarantors, making it a case of 'naked guaranty' of the debt of another, not within the corporate powers." Many cases are cited and distinguished and the ruling arrived at was squarely against valiidty of the guaranty.

JURISDICTION-FALSE OATH IN NATURALIZATION PROCEEDINGS IN STATE COURT.-It sounds rather remarkable to say that false swearing or perjury committed in a proceeding in a state court may be indictable and punishable in a federal court. But so it is held when this occurs in a naturalization proceeding before the state court. Holmgren v. United States, 30 Sup. Ct. 588. And it seems clear too, that, if congress can vest jurisdiction in the state courts in naturalization cases, that one making a false oath therein violates the federal statute in this regard in the same way wherever the proceeding in naturalization takes place.

This jurisdiction of state courts seems more permissive than obligatory, making the state courts merely ancillary, or tribunals lending their aid to, and being pro hac vice federal courts.

Besides this kind of an oath is something more of obstruction to administrative, governmental routine, than as affecting a case in court. A bureau or department might have been authorized to do this work. The act is not precisely like a thing that is legally heinous as in a civil suit or a criminal prosecution, though morally it is just as bad. The federal aspect of the act, therefore, is that it is a mere "interference somewhat like a contempt of court." The federal government is essentially nothing more than an administrative agency for the states, and this character of ruling illustrates that idea. That too is the true reason of its paramountcy. It has

forty odd principals and one alone should not be allowed to hinder it in performing its duty, and still the power of attorney it holds does not specifically provide on its face for its revocation or recall. Webster said there was a union of indestructible states. He might have said an indestructible union of indestructible states with the stress on the former adjective.

WILLS-BEQUESTS FOR MASSES AND VALIDITY AS DEPENDING ON RIGHT OF STATE TO ENFORCE TRUST.-The majority with one dissenting member, of Wisconsin Supreme Court, rules that a devise of "all the rest of my property, both real estate and personal property, for masses for the repose of my father's and mother's and sister's and brother's and my own soul," with the masses to "be said according to the directions of Thomas J. Fenlon and James W. Watt, and I hereby appoint them to direct where and when to say said masses," is not a "private trust," but "a public charity," that the doctrine of superstitious uses is opposed to absolute religious equality, that there is an equitable conversion of the real estate into personal property and the court will, under the rule of not allowing a trust to fail for want of a trustee, see that such a trust is enforced. In re Kavanaugh's Estate, 126 N. W. 672.

The prevailing opinion is a very interesting discussion, especially that portion of it which is devoted to reasoning to the conclusion that there is not here "a private trust," but "a public charity" in statutory distinction between the two things. The mention of names as beneficiaries of the saying of masses is considered by the court as incidental more than essential, "as according to the doctrine of the Catholic church, as established by the proof in this case, the whole church profits by every mass" and "the masses are to propiti. ate Him (God) for the sins of all mankind."

Of course, every non-Catholic believes that the means, or masses, in no wise contribute to any such end, but if courts allow their belief to be a test of whether or not there was a charitable trust, then they could run counter to the principle of religious liberty and determine that a religious tenet was true because, perhaps, this was the view of a majority.

It is principally, however, on this that the dissent proceeds. The very premise that the majority rely upon is that which persuades the dissentient that the trust is unenforceable by the state, and therefore should fail. Stress is laid by the dissent upon the constitutional provision about freedom to worship God, but the genius of this country needs no such thing.

Such provisions are surely declarations of that which no American denies. It would be as reasonable to deny enforcement to a bequest for indigent young men studying for the ministy of a certain denomination for the same

reason.

COURTS JURISDICTION OF FEDERAL COURTS IN EQUITY EXTENDING TO APPOINTMENT OF RECEIVER FOR AN ESTATE PENDING PROBATE OF WILL.-The Second Circuit Court of Appeals, Cox, C. J., dissenting, has held that though a federal circuit court has no jurisdiction of a purely probate proceeding, nor any power to undertake the general administration of the estate of a deceased person, yet it may, as a court of equity, having the full jurisdiction of the English courts of chancery, as they existed when our constitution was adopted, in a suit where it has jurisdiction of the par ties, appoint a receiver of an estate pending the probate of a will, in the absence of the appointment of a custodian by the probate court and this, though proceedings for appointment of executor and such probate had been delayed by reason of litigation between parties in interest.

It would certainly seem that, if there is an estate whose assets need to be preserved for parties interested in pending litigation, that a court of equity could mould process to that end. If the testator still alive were wasting that estate, under the circumstances, the court should be able to impound its assets, and if he being dead, the state courts do not take charge of it, it would seem there was a case of abandonment, notice of which by the federal court involved no interference with ordinary state jurisdiction.

The federal courts lose in this particular their aspect as such, and are purely courts of equity. If being of federal creation puts no limitation on their general equity powers wherever there is jurisdiction, then their source is immaterial.

Judge Cox, however, seems not to object to this reasoning, but says the probate court of Illinois had already taken jurisdiction and appointed an executor, and it should be assumed the state courts will do their duty, and he considers that in sustaining the action of the circuit court in taking jurisdiction and granting a drastic remedy in, to say the least, an exceeding doubtful case we are setting a dangerous precedent."

It looks like the disposition of some courts to interfere with state jurisdiction is not halted very greatly by doubts. The main thing is

excuse.

THE MISUSE OF THE EQUITY POWER.

The modern use of the Writ of Injunction, especially in labor disputes, is revolutionary and destructive of popular govern

ment.

Our government, was designed to be a government by law, said iaw to be enacted by the legislative branch, construed by the judiciary and administered by the executive.

An injunction is "extraordinary writ issued out of equity enjoining a threatened injury to property or property rights, where there is not a plain, adequate and complete remedy at law

The definition of equity is, "the application of right and justice to the legal adjustment of differences where the law by reason of its universality is deficien," or, "that system of jurisprudience which comprehends every matter of law for which the common law provides no remedy

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springing originally from the royal prerogative, moderating the harshness of the common law according to good conscience." In other words, it is the exercise of power according to the judgment

and conscience of one man.

It was for this reason that in Great Britain, whence the United States derives its system of equity, as well as of law, the equity power was limited to the protection of property or property rights, and in such cases only where there was no remedy at law; the words "adequate and complete"

have been added here.

When the courts of equity take jurisdiction over and issue injunctions in labor disputes, they do so to protect business, which, under late rulings by several courts is held to be property. These rulings are disputed and condemned by other courts, which hold that relations between employers and employees-between buyer and seller-are personal relations, and as such, if regulated at all, are regulated by statute or common law only. If the latter contention

be no question, the ruling that makes business property, or the right to carry on or continue in business a property right, is revolutionary, and must lead to a complete change, not only in our industrial, but in our political life. If the court of equity be permitted to regulate personal relations, it will gradually draw to itself all legislative power. If it be permitted to set aside. or to enforce law, it will ultimately arrogate to itself jurisdiction now held by the law courts, and abolish trial by jury.

The constitution confers equity power upon the courts by stating that they shall have jurisdiction in law and in equity in the same way that it makes it their duty to issue the writ of habeas corpus and in substantially the same way as it provided for trial by jury.

Equity power came to us as it existed in England at the time of the adoption of our constitution, and it was so limited and defined by English authorities that our courts could not obtain jurisdiction in labor disputes except by the adoption of a ruling that business is property. If business be property in the case of a strike or a boycott, and can therefore be protected by the equity court against diminution of its usual income caused by a strike or boycott conducted by the working people, then it necessarily must be property at other times and therefore entitled to be protected against loss of income caused by competition from other manufacturers or business men.

Business and the income from business

would become territorial and would be in the same position as land and the income from land. The result would be to make all competition in trade unlawful; it would prevent any one from engaging in trade or manufacture unless he comply with the whims and fancies of those who have their trade or means of protection already established.

No one could enter into business except through inheritance, bequest or sale.

In order to show the fallacy of this new definition of property, we here state the