which had not already found its way into a defined surface channel. The rest of the Dickinson case, however, to the effect that water already in such a channel could not be touched by percolation was left intact, and twelve years later expressly reaffirmed in Grand Junction Canal Co. v. Shugar (L. R. Ch. 483). “If," said Hatherley, L. C., "you cannot get at the underground water without touching the water in a defined surface channel, I think you cannot get at it at all." And such seems to be the law in England to-day. Provided water is not drained out of a defined surface channel, the flow beneath the surface is subject to unlimited appropriation, and any injury that may result therefrom is damnum absque injuria.

In America, particularly in New York, this growth in the law has been carried a great deal further. In the early cases, it is true, the English rule was unquestioningly followed. For example, in Goodale v. Tuttle (29 N. Y. 459), decided in 1864, the rule is laid down that an owner is not liable for the proper draining of his own land, although it may reduce the supply of a stream, provided such draining took no water out of the stream itself. Again, in Van Wychlen v. The City of Brooklyn (118 N. Y. 424), the dictum of the court states very clearly what was then conceived to be the law. "There appears," it said, "to have been a concession at the trial, and the same is made in this court, if in sinking the wells on its own land, the city did no more than intercept the percolation of underground currents, and thereby prevented such water from running through the soil and reaching the stream, the action would not lie. And such is the law applicable to the case," citing Chasemore v. Richards. In 1897, however, the case of Smith v. The City of Brooklyn came before the Appellate Division 18 App. Div. 340. Upon the plaintiff's premises there had been for fifty years, a brook and a pond formed by a dam thereof. At a distance of about half a mile the defendant had built an aqueduct, and had sunk a conduit 16.8 feet lower than the level of the pond. The soil in the locality was gravelly, and the water in the pond began to fail the moment the conduit was laid. Both pond and stream disappeared entirely upon the erection of the pumping station, and remained dry until the date of the trial. It will be noticed that the facts did not expressly find that water was actually drained from the stream into the reservoir; and the appellate court went on no such distinction. The basis of their judgment for the plaintiff seems to have been, not where the water came from, but the use to which it was to be put. The source for this view was the dissenting opinion of Lord Wensleydale, in Chasemore v. Richards. His lordship held, with the Roman law, that the test of the defendant's right was whether or not the water was used for the improvement of the land. This test the appellate court made the basis of its decision. "No case," it declared, "will be found in this State, where the right has been upheld in the owner of the land to

destroy a stream, a spring or well upon his neighbor's land by cutting off the source of its supply, except it was done in the exercise of a legal right to improve the land, or make some use of the same in connection with the enjoyment of the land itself, for purposes of domestic use, agriculture or mining, or by structures for business carried on upon the premises." On appeal (160 N. Y. 357) this novel test was elaborated and applied. That Chasemore v. Richards was not regarded as law by the court the opinion leaves no doubt. "That the diversion and diminution of the stream," it declared, "was caused by arresting and collecting the underground waters, which, percolating through the earth, fed the stream, does not affect the question. When the fact was established that the defendant's works and wells had caused, by this subsidence of water, a diversion of the stream's natural flow in its channel, the injury was proved, and the plaintiff's cause of action established." This rule was broader even than that in the opinion of the court below, for it would seemingly apply, no matter to what use the water was put. Under the pressure of science and the steam pump, the court had lost its fear of the vagaries of underground water, and established the short-lived case of Dickinson v. Grand Junction Canal Co. as the law of the State.

But the test laid down by the appellate court was destined soon to bear fruit. Only last year the case of Forbell v. The City of New York (47 App. Div. 371) came before the same tribunal. Here no diversion of a surface stream was alleged or proved. The defendant had sunk a great number of wells, and had connected them with powerful steam suction pumps, and enormous quantities of water was withdrawn daily to supply the distant city. As a result the hydraulic level was lowered for an immense area around, wells and springs were dried up, and farms rendered arid. Again the Appellate Division found against the municipality. The rule of the Smith case, as laid down by the Court of Appeals clearly could not apply, for the diversion was of "percolating water running in no defined channel." The lower court, therefore, revived its own rule in the former case, and declared it would apply equally to "percolating water collected for the purpose of transportation and sale, and not for any use connected with the land." The defendant at once appealed, but the principle thus laid down was expressly sustained. This decision certainly goes a long way. Under it, Acton v. Blundell can no longer be the local law, whenever the water withdrawn is not to be used in connection with the premises. That the departure was justified by the greater knowledge we now possess of subterranean flows and the tremendous power that we can now exercise over them, there can be no doubt.

The criminal law, also, is not without a striking example of the subject in hand. Much of late has been written or said upon the subject of insanity as an excuse for crime. In primitive times the position of the lunatic was that of an outcast, if

on the 14th of September, 1805, and the purest and best blood of New England flowed in his veins. He was a direct descendant from John Alden and Priscilla Mullins, and few can boast a lineage more honored in our annals than his. His grandfather, General Gold S. Silliman, was a distinguished and gallant officer of the Revolution; and his great grandfather, Judge Ebenezer Silliman, was for many years speaker of the house in the colonial legislature, and for twenty-three years judge of the Superior Court of the colony of Connecticut.

His family upon both his paternal and maternal side has been prominently identified with Yale College for very nearly two centuries; and his uncle, the Senior Professor Silliman, was the most noted scientist of his day and the father of chemistry in America.

From his early manhood Mr. Silliman preferred the distinction arising from success in his chosen profession to the more showy honors of political life. Yet, first as a Whig and afterwards as a Republican, he was ever ardent and uncompromising in his advocacy of the principles of his party, and prominent and influential in its councils.

sacred city of the dead become the resting place of more than 300,000 silent dwellers.

He has established many of the ancient landmarks of the law.

More than half a century ago, as counsel for the Bank of Commerce, he argued the leading case against the Union Bank (3 Comstock, 230), which fixed the liability of banks upon forged or altered checks paid by mistake, and in 1897, as senior counsel for the same bank, in the very important case in which was involved the question of the right of the contending banks to the proceeds of the old clearing house building. Mr. Silliman, then in the ninety-second year of his age, while listening to the argument of Mr. Choate, who was opposed, wrote a few lines, which the counsel making the oral argument read, and which Ex-Judge Charles F. Brown (who with Hamilton Odell were the referees), pronounced to be as terse as forceful and as accurate a statement of the proposition contended for as Mr. Choate himself could possibly have written.

That, as a lawyer, Mr. Silliman stood in the front rank of his profession will be universally conceded. Cultivated beyond the cultivation of most collegebred men; imbued by constant association with the most eminent and learned men of his day with refined tastes; endowed by nature with exceptional mental vigor, sound judgment and a splendid physique; devoted to his profession, and ever insisting upon and upholding its honor and dignity; indefatigable in his industry even after he had attained an age when most men covet and all are entitled to repose; strong and inflexible in his convictions of the right; tactful in his management of his cases, employing conciliatory measures when possible, avoiding invectives which would make it difficult for the court to decide in his favor, he manifested under all circumstances a calm, unruffled and dignified demeanor, which during nearly three-quarters of a century of active practice never provoked an affront. His arguments were models of clear statement, forceful reasoning, apt illustration and polished diction. Inflexible in his integrity and rigidly conscientious, he won the respect of bench and bar, attained marked success, and acquired a clientage exceptionally valuable.

It is believed that the practice of no lawyer in this country has covered so long a period of time as his.

Sixty-three years ago he drew the charter of Greenwood, and he lived to see that beautiful and

has been truly and beautifully said, "he seemed to see in all the world about him those very virtues which all the world saw, in such full measure, in him, and every man seemed to turn toward him that part of his conduct which was at least unworthy to come under his pure and kindly eye," none could upon proper occasion be more emphatic than he in denouncing dishonesty, political trickery or unprofessional conduct, in expressing contempt for all forms of hypocrisy and deceit, or scorn of the unfounded pretenses to social distinction of those whose poor extraction and doubtful antecedents he easily recalled.

His tastes were rather scholastic than aesthetic. He loved books, but had no appreciation of music, and manifested little interest in art.

His reading was not indiscriminate. His conversation and writings disclosed an everyday and most familar acquaintance with the Bible and Shakespeare. He admired the gradeur of Milton, and was constantly quoting the didactic lines of Pope and Young and the hymns of Cowper and Watts; but with most of the sentimental poetry of a later day he was less familiar, and modern fiction was to him a closed book. His preference was for the Latin classics, for philosophical works, and for history, travels and biography, as the well thumbed and thickly annotated volumes of his large library relating to these subjects will attest. He took especial delight in reading the books that recorded the operations of the Civil War. He suffered again and again the tortures and privations of Andersonville, and fought a thousand times the triumphant campaigns of Grant and Sherman.

The heroes of the war were his heroes, and the

He loved domestic animals (cats excepted), and on his walks around his country place at Islip, was almost invariably accompanied by three dogs, who tumbled over each other in their zeal as candidates for his kindly notice.

Although he seldom, if ever, took exercise for the sake of exercise, and at times seemed regardless of the laws of health, dyspepsia and headache were strangers to him; and to the day of his death he read the finest of print without glasses, and suffered but very slight impairment of his hearing, and none of his ever ready and prodigious memory of past

events.

From his boyhood he was fond of aquatic sports, and was an enthusiastic fisherman, an expert sailor and a good shot.

To his lifelong habit of associating with those younger than himself he attributed much of the happiness of his old age. The contemporaries of his youth and early manhood had all passed away, but to the last he lacked not the society of the best and most learned who flocked about him, fascinated by his courtly manners, his charming hospitality, his wise and philosophical reflections, his inexhaustible and unparalleled wealth of reminiscences of by-gone times. To those who thus sought him and were admitted to his friendship he was indeed 46 sweet as summer."

The barter which youth offers to age of fresh thought for ripe experience was never refused, and was mutually profitable. It made Mr. Silliman the youngest of old men," cheerful, alert, interested in current events, and well informed as to the latest phases of human thought and achievement; while his friends rightly regarded his acquaintance as an honor, his companionship as a liberal education and the sunshine of his presence as a benediction.

Wherever he went, whenever he entered a court, a club or a salon, he became at once the subject of a spontaneous demonstration, expressive not only of the veneration due to his great age and exalted character, but of the sincere and undisguised affection and admiration of those present.

On the occasion of his last appearance in the Court of Appeals his opponent, who represented the appellant, was asked the not unusual question, "Did the court intimate any opinion?" "Yes," answered he, "I should say they did. They decided on the spot that Mr. Silliman was a gentleman, and every blessed one of them came down from the bench and shook hands with him."

That judgment was affirmed.

The high esteem in which Mr. Silliman was held by the legal profession and by the community found public expression in 1889, when one hundred and fifty of the most distinguished members of the bench

sixtieth anniversary of his admission to practice; and again in 1895, when before a large assemblage in Brooklyn, with many eulogiums, his bust was presented to the New England Society. Rarely are such tributes paid to the living.

His tact was as instinctive and unerring as his sense of honor. Having been for a quarter of a century president of the Brooklyn Club, he was invited to a reception given upon the opening of a neighboring club much more pretentious in its appointments; and while being shown about, was somewhat wearied and possibly annoyed by a reiteration of comparisons between the billiard rooms, the dining-rooms, etc., of the new club and the old, not flattering to the latter.

At last, with his pleasant smile, he replied: "Yes, my friends, it is all true, but there is a glory of the sun and there is another glory of the moon."

Other lawyers may have been more renowned than Mr. Silliman, but none more beloved.

During his last illness the message constantly sent by scores of his professional brethren, old and young, was: "Give Mr. Silliman my love."

Had such a message been sent to many a distinguished lawyer it would have been an incongruity. To him it was eminently fitting.

Throughout his long life his conduct had been such as to endear him to the profession.

His loyalty to country and to friends, his encouragement of the young members of the bar, manifested not only in pleasant recognition and cheering words, but oft-times in substantial assistance; his polite deference to the bench; his courtly courtesy to his opponents, his high standard of professional conduct beautifully illustrated in his own blameless career; his reverence for the right, his tolerance of opposing opinions, his spotless character, his fairness, his modesty, his patience, and, above all, the ever-present thought that he was the last link that bound us to the generation gone, the only man in all the world who had been well acquainted with Aaron Burr and Daniel Webster, who had crossed swords with David B. Ogden, George Wood and Ogden Hoffman, and who had associated on terms of intimacy with Chancellor Kent, made him the object of the affectionate and reverent regard of every lawyer who knew him.

The last link is broken, the life that like a beautiful bow has spanned the century has faded away. The example, priceless and inspiring, remains.

NEW YORK, Feb., 1901.

FREDERIC A. WARD.

Glenn P. McKinley, the speaker of the Idaho house of representatives, is the youngest member of that body, being only twenty-two years of age. He is a student in the law deparment of the University of Idaho.