The sun. [volume] (New York [N.Y.]) 1833-1916, 1899-10-15
NOTES or LEGAL EVENTS.

The appointment. however. Is one emiD entity
ft to be made. as after the 1st Of January. 1900.
Judge Adams will be the only one left on the
bench OF that Appellate Division who was a
member OF the court as originally constituted
when the new judicial system came into exist
ence at the beginning OF 1895. Three OF the
Associate Justices then appointed have died.
Manly G. Green Of Buffalo. Hamilton Ward OF
Belmont and David l.. FolIett OF Norwich. Their
successors on the Appellate bench are Alfred
Spring OF Franklinville. Peter b. McLennan OF
Syracuse and Walter Lloyd Smith OF Elmlra
When Judge Adams takes the place Of Judge
Hardin as Presiding Justice. the Governor will
have to designate fourth Associate Justice as
his successor. The early appointm ent OF Judge
Adams 10 probably due to the desire Of tho
Governor to prevent any long continued COM
petition for the place. The present term Of
Judge Adams will expire at the end OF the year
1901.
The false announcement which went out
from Albany on Tuesday to the effect that the
Court OF Appeals had reversed tho judgment In
the Benham murder case was not the q rst pub
LEGATION on the sui ject limitations that Judge
HaiRht had written an opinion for reversal ap-
peared during the summer in some OF the
newspapers at Buffalo. where Judge Haight
resides and where 1t was well known that he
hdu pcoH ~ Work at tno record III tho chho,
which f1lls several large printed volumes. For
the most part. the secrecy OF deliberations in
the Court Of Appeals has been we'll preserved.
and in many i'm portsnt cases the confident pre-
diction Of particular result has turned out to
be all wrong Unusual delay in rendering q
decision often leads to the expectation that
when It comes 1t will be by divided Court yet
frequently the longer discussion induced by
diverse views at the outset leads to concur
renee in the end. and the determin alton when
announced Is unanimous.
The most i'm portant decision rendered by the
Court OF Appeals on Tuesday was the afflrm-
ance OF the judgment OF the Appellate Division
OF the Second Department in the case OF Smith
against tho City Of Brooklyn. 1t goes a step
further than any previous case In this State in
asserting the liability OF one who intsrferes
with pond or watercourse on the land OF an
other In such way as substantially to deprive
the owner OF the use OF the water. In Van
Wycklen against the City OF Brooklyn 11SN.
Y. Reports. page 424l. the driven wells OF the
city were near the plaintiffs mill stream. and
he recovered damages because 1t appeared
that tho action Of these wells. in taking water
out OF the stream after the water had got into
1t. deprived the plaintiff OF the power which had
previously been available for the operation OF
his mill. 1t was conceded In that case. however.
-" that II. in sinking the wells. the city
did no more than intercept the psrcolation OF
underground currents. and thereby prevented
such water from running through the soil and
reaching the stream. the action would not le."
In the Smith case the diversion and diminu-
ton OF the stream were caused by arreSttng
and collecting the underground waters which.
percolatinR through the fed the stream:
and the Court Of Appeals nevertheless holds
that the landowner thus deprived OF the nat
ural and ordinary supply Of water on his prem
ises can maintain a suit for damages against
mum pal corporation whose acts occasion
the injury.
The opinion OF the Appellate Division Of tho
Supreme Court In the case OF Smith against
the city OF Brooklyn was written by Mr.. JUS
tlcs Hatch. and is the ablest exposition to be
found In the reports OF this State Of the law
relating to the interference by an adjoining or
neighboring owner with streams or ponds
upon his neighbours lands There Is no dif-
ference" he said. in the Injury inflicted II
the stream be taken. whether 1t be brought
about by drawing the water from the
stream itself or cutting on the supply"
This. as We have seen. is substantially
the view now adopted by the Court Of
Appeals. Judge Hatch. however, discussed
another point which the Court OF Appeals does
not decide. Recognizing the right OF a land
owner 10 use tho peTcOldtIHR water on MS own
land. he expressed the opinion that such right
was limited to purposes OF use upon the
land or the beneficial enjoyment OF the prem
isss; and he pronounced 1t monstrous to
assert that one landowner may deliberately
and Intentionally mako an erection for the e1-
press purpose OF draining the land OF another
OF its percolatng water and thereby destroy
streams. springs. ponds and wells and be sup
ported in so doing upon the theory that 1t is
the exercise Of legal right In the use OF his
land" Thus a farmer may use the natural
flow Of percolating water on his farm for farm
purposes. although the consequences be In
furious to his neighbor: but the injury must
be made good il an artificial flow Is created by
suet on aud the resulting supply 10 sold and
conveyed to a distant city. (Ses 18th vol. APP
peiate Division Reports. page 34O1
We have received from the Corporation Coun-
sells office a copy OF tho opinion OF Judge
Edward It. Bartlett in the case OF Hendriokson
against the Jamaica Electric Lighting Com
pany. to which we referred last week as having
lust been decided BY the Court OF Appeals. 1t
condemns the contract which was the plaintiffs
object OF attack with even moro severity than
did the Appellate Division. This ten-ysar
agreement was made fourteen days before
consolidation. whereas. II made afterward, it
could be only for a period not exceeding one
year. Tho motive actuating this proceeding"
says Judge Bartlett, is quite apparent. Weare
OF opinion that the contract before us was not
entered into In good faith by the Town OF
Jamaica. but was intended to EN- barrass and
control the greater City OF New York In light
ing its streets In the territory covered by the
town for ten years after it's execution" AL
though this agreement Is declared to have been
unauthorized and against public policy. the
Court of Appeals is careful to say that reasop-
able and proper contracts made after the
Greater New York charter was enacted. where
It was not possible TO limit their term TO the
precise period during which the municipality
was to exist. will doubtless DO approved as
valid.
The legal versus tho scientific test OF insanity
In criminal cases 10 the subject OF a pamphlet
which we hava received from DR.. Carlos F.
Macdonald. In which that distinguished special
ist in mental disease condsmns the criminal
law of the State OF New York for having under
taken to draw an arbitrary line OF demarcation
between lnsa nifty and irresponSibity which is