as stated by Mr. Boone in has preface to the Law of Corporations, "to discard all obsolete law on the one hand, and to avoid all disquisitions as to what the law ought to be on the other." As a result of this plan it has been found possible to keep the size of the volumes within reasonable limits.

The foregoing remarks are applicable to all of the works included within this series. Of Mr. Desty's Federal Procedure a few more words of commendation are needed.

The first edition of this book appeared in 1875. It met with deserved favor from the profession, and five editions were rapidly exhausted. These facts are the strongest possible evidence of the merits and necessity of Mr. Desty's work, and render an extended criticism thereof unnecessary. It need only be said of the present edition that it is a great improvement on its predecessors. The form of the work has been recast, and it has been increased in size from four hundred and forty-seven to nine hundred and seventy pages. This increase is mainly due to the great number of citations added. Statutes subsequent to the revised statutes, and relating to the subject-matter of the book, are set forth in extenso in an appendix. The publishers promise that all future amendments to statutes and rules will be printed in the same style and presented to purchasers who send in their names for such purpose. The index covers a space of about ninety pages, and is a model for thoroughness and convenience of reference.

NOTES.

The president has appointed Judge Brewer, of the supreme court of Kansas, to fill the vacancy in the eighth circuit, caused by the resignation of Judge McCrary. The appointment has been approved by the profession in general, who have long been familiar with the judicial ability of Judge Brewer. It was a particularly happy one, in so far as no political or personal interest appears to have influenced the appointment. Judge Brewer is forty-six years of age. He was born in Asia Minor in 1836. He removed to the west in 1858. After serving as United States commissioner for some time, he was elected judge of probate in 1862. In 1864 he was elected to the district court for the first judicial district of his state, and in 1868 prosecuting attorney for his county. In 1870 he was elevated to the supreme court of the state, where he has since remained, having been re-elected in 1876 and 1882. He is a nephew of Judge Field of the United States supreme court.

The supreme court of the United States has just decided an important case of interest to the large number of Americans who visit Europe, and in returning bring with them a replenished wardrobe, which they desire to have admitted free of duty. The facts of the case and the rulings of the court are as follows: William Astor, plaintiff in error, a citizen of the United States, arrived from a visit to Europe, late in September, with his family, by vessel, and brought with him wearing apparel bought there for his and their use, to be worn here during the season then approaching, not excessive in quantity for persons of their means, habits and station in life, and their ordinary outfit for winter. A part of the articles had not been worn, and duties were exacted on all these articles. This court holds that under section 2,505 of the revised statutes, exempting from duty "wearing apparel in actual use, and other personal effects not merchandise," the proper rule to be applied was to exempt from duty such articles as fulfilled the following conditions: First, wearing apparel owned by the passenger and in condition to be worn at once without further manufacture; second, brought with him as a passenger, and intended for the use or wear of himself or his family who accompanied him as passengers, and not for sale, or purchased or imported for other persons, or to be given away; third, suitable for the season of the year which was immediately approaching the time of arrival, and not exceeding in quantity, quality, or value what the passenger was in the habit of ordinarily providing for himself and his family at that time and keeping on hand for

his and their reasonable wants, in view of their means, habits, and station in life, even though such articles had not been actually worn. The judgment of the circuit court was reversed, and the cause remanded with instructions to award a new trial.

In Ex-parte Crow Dog, U. S. Sup. Ct., October and December, 1883: 109 U. S. (Davis) 556, the supreme court of the United States applied the rules that in the interpretation of statutes, clauses which may have been repealed may still be considered in construing the provisions that remain in force (citing Bramwell, L. J., in Attorney-General v. Lamplough, L. R., 3 Ex. D. 223-227; Hardcastle on Statutory Law, 217; Bank for Savings v. Collector, 3 Wall. 495--513; Commonwealth v. Bailey, 13 Allen, 541; Bates v. Clark, 95 U. S. 204), and that implied repeals are not favored. The implication must be necessary. There must be a positive repugnancy between the provisions of the new laws and those of the old (citing Wood v. The United States, 16 Pet. 342; Davies v. Fairbairn, 3 How. 636; United States v. Tynen, 11 Wall. 88; State v. Stoll, 17 Wall. 425). * * * The rule is, generalia specialibus non derogant. "The general principle to be applied," said Bovil, C. J, in Thorpe v. Adams, L. R., 6 C. P. 135, " to the construction of acts of parliament is that a general act is not to be construed to repeal a previous particular act unless there is some express reference to the previous legislation on the subject, or unless there is a necessary inconsistency in the two acts standing together." "And the reason is," said Wood, V. C., in Fitzgerald v. Champenys, 30 L. J., N. S., Eq. 782; 2 Johns. and Hem. 31-54, "that the legislature having had its attention directed to a special subject, and having observed all the circumstances of the case and provided for them, does not intend by a general enactment afterwards to derogate from its own act when it makes no special mention of its intention to do so.

وو

A strong case of the application of the latter rule was made by the same court in Townesend v. Little, U. S. Sup. Ct., Oct. and Dec., 1883: 109 U. S. (Davis), 504, where the territorial act under which a deed of the property was made to A by the mayor, directed that " deeds of conveyance of the same shall be executed by the mayor of the city or town, under seal of the corporation." A general act of the territory at the time the deed was made required deeds to be witnessed. The deed to A bore the corporate seal, as required by the special act, but was not witnessed: Held, that the special act controlled the general act, and that the deed was good: Citing Pease v. Whitney, 5 Mass. 380; Nichols v. Bertram, 3 Pick. 341; The State ex rel. Fosdick v. Perrysburg, 14 Ohio St. 472; Lowdon, &c. Railway v. Wandsworth Board of Works, Law Rep. 8 C. P. 185; Bishop on the Written Laws, sec. 112a).

RIPARIAN PROPRIETORS AND RIPARIAN RIGHTS ON PRIVATE STREAMS.

That it is so, the authorities bear abundant witness. We do not wish to be understood as saying that there is such an absolute property in the water that the whole stream may be destroyed by a riparian proprietor, so that others below him will be deprived of it; but that it is an incident of his land to the extent that he has the right to have it continue to flow in its natural course, subject to such changes only as may be occasioned by such use of it as the law allows the various proprietors to make, as it passes along, and which will be hereafter more fully explained. In this sense only is the right to be understood, when spoken of in the authorities about to be quoted." The opinion then quotes numerous authorities, and it may not be inappropriate to copy those which are cited from American decisions. After quoting the general definitions given by Lord Coke and by Mr. Angell, the Chief Justice proceeds (p. 266): "The supreme court of Ohio says: The uses of the waters of private streams belong to the owners of the land over which they flow. They are as much individual property as the stones scattered over the soil.' Chancellor Kent says: 'A right to a stream of water is as sacred as a right to the soil over which it flows. It is a part of the freehold of which no man can be disseized but by the lawful judgment of his peers, or by due process of law.' It is said in the note to ex parte Jennings: The general distinction deemed of so much excellence and importance by these learned judges, and which at this day no lawyer will hazard his reputation by controverting, is that rivers not navigable, that is fresh water rivers of what kind soever, do of common right belong to the owners of the soil adjacent, to the extent of their land in length; but that rivers where the tide ebbs and flows, belong of common right to the state.' In Wadsworth v. Tillotson,' speaking of the rights to a water course, the supreme court says: This right is not an easement or appurtenance, but is inseparably annexed to the soil, and is parcel of the land itself.' Chief Justice Shaw says: The right to flowing water

1 10 Ohio 297. 2 Gardner v.

Johns Ch. 166.

No. 18.-1.

2

Village of Newburgh, 2

681

* Cow. 543.

15 Conn. 372.

5 Elliott v. Fitchburgh R. R., 10 Cush. 193.

'**

is now well settled to be a right incident to property in the land.' In another case the same judge says: It is inseparably annexed to the soil, and passes with it, not as an easement or as an appurtenance, but as parcel. Use does not create it, and disuse cannot destroy nor suspend it.' The supreme court of North Carolina says:' The right is not founded in user, but is inherent in the ownership of the soil, and when a title by use is set up as against another proprietor, there must be an enjoyment for such a length of time as will be evidence of a grant.' 'The common right here spoken of is not that existing in all men in respect to things publico juris, but that common to the proprietors of the land on the stream. And, as between them, the use to which one is entitled is not that which he happens to get before another, but it is that which, by reason of his ownership of the land on the stream, he can enjoy on his land and as appurtenant to it.' The supreme court of Vermont say: The owner of land has rights to the use of a private stream running over his land peculiar to himself as owner of the land, not derived from occupancy or appropriation, and not common to the whole community. It is the right to the natural flow of the stream. Of this right he can not be deprived by the mere use or appropriation by another, but only by grant, or by the use or occupancy of another, for such length of time as that therefrom a grant may be presumed.'." The right to the water of running streams being thus an incident of ownership by a riparian proprietor is held by the United States as completely as by any private owner, and necessarily passes to its grantee by the patent which conveys the full legal title to the tract of land bordering on the stream. In examining still more closely the nature of the right, and showing that it does not depend upon actual use or appropriation of the water by a riparian owner, the learned chief justice most ably proceeds as follows (pp. 268–272): “If a stream be an incident to the land, it can no more be diverted, simply because it cannot be presently used by the person owning the land, than he can be deprived of any other property for the same reason. The whole argument on this point evidently originates out of an utter misunderstanding of what is meant by the language, when it is said that the riparian proprietor has no property in the water itself, but simply a usufruct while it passes along.' The reason for this expression is this, that as each proprietor has a right to the flow of the :stream through his land as it was wont to flow, as it is the common property of all the owners of the soil through which it passes, no one of them can have such a property in the water as will entitle him to consume or divert it all from those on the stream below him, as he might do if he had an absolute property in the water itself; hence the expression so often used. It is, however, never employed as limiting the entire right 6 Johnson v. Jordan, 2 Met. 239.

Page v. Williams, 2 Dev. & Bat 55.

8 Davis v. Fuller, 12 Vt. 190.