Sidebilder
PDF
ePub

by the obstructionist tactics of those who, in discussing remedies, confound conservation with confiscation, reminds one of Mark Twain's saying about the weather: "We all complain about the weather, but nothing is done."

The first five chapters of this book are addressed, not only to the engineer, but primarily to the lawyer and the legislator. They deal with the subject of conservation of water powers, as affected by present and proposed legislation, federal and state. Conservation is aptly defined as "wise use and the avoidance of waste." With respect to water power, waste is demonstrated to mean nonuse. Use, then, is of the essence of conservation. The respective rights of the individual riparian owners, of the states and of the federal government, are clearly distinguished. The federal power is a limited delegated power solely to protect commerce, that is, navigation; all other rights remaining in the states or in the citizens thereof, according to the property law of the respective states. The ultra-federal-control view is shown to be without authority and to be based upon no right, except that of legislative brute force; which is, as Professor Swain says, the might of the bandit extorting "tribute as the price of life." So it is, when the Congress witholds its consent to the construction of a power dam for any purpose or under any restriction or condition other than that which is necessary to protect navigation.

After discussing other legislative water-power problems, Professor Swain treats (Chapter V) of water powers on the public domain and of the present legislative obstacles to the conservation of such water powers. In this phase of the subject he assumes, as some of the authorities whom he cites have too much assumed, that public-domain water powers are within states recognizing the law of riparian rights. So far as such assumption is justified, the conclusions stated are correct; for, in such cases, the federal government would hold the position and rights of a riparian owner at common law and could deal with such rights as such riparian owner, in addition to exercising also its sovereign right of control of navigation. But in the states where most of the public domain is situated, the riparian common law rights are not a part of the property law of the state. On the contrary, rights of use are there governed by the law of state ownership or of state control. No greater or different right would belong to the federal government because it owned a riparian tract than would belong to any other riparian owner in the state in question. Where no riparian-right law existed, the

right of the federal government would be confined to its limited power of protection of navigation. For these reasons, it seems rightly claimed that the pending federal measure for the control of water powers upon the public domain encroaches, in most instances of its application, upon the rights of the states. The latter, therefore, protest, not only through their representatives in Congress but also through their legislatures.

The more technical aspects of water conservation by storage, presented in the remaining chapters, are treated primarily from the viewpoint of the engineer but in a manner intelligible to the non-expert. Regularity of stream flow may be promoted by surface reservoirs and by forestry and tillage. Here conservation means the saving from waste caused not only by excrss runoff but also by damage from floods.

Copious appendices contain reference matter which has been selected with great care; and there is added a list of bibliographical references for each chapter, useful for those who wish to pursue the subject further. The book is richly illustrated and its typographical excellence is deserved by the exceptionally attractive and admirable presentation by the author of its subject matter.

ROME G. BROWN.

MINNEAPOLIS, MINN.

Railroad Rate Regulation. By Bruce Wyman. Published by Baker, Voorhis & Co., New York City. 1915. pp. XCVI, 1210.

This book is a second edition of a work by Professor Joseph H. Beale and the present author which appeared in 1906. Since that time there has been a very great development in the law on this subject, due to both legislation and judicial decision. Much of the present work is based upon the opinions of the Interstate Commerce Commission during the last eight years. A great deal of this book therefore, though it purports to be but a second edition of an earlier work, is entirely new.

Appreciating the fact that, in order to evaluate former decisions and rulings, it is necessary for a lawyer to have clearly in mind.

See Minority Report from Committee on Public Lands, February 2, 1915, accompanying H. R. 16673-Report 898, Part 2-63d Congress, 3d Session.

'See recent memorial to the Congress by Colorado State Legislature against H. R. 16673, the Public Domain Water-Power Leasing Bill, proposed by the Secretary of the Interior.

the powers which the Commission had when a ruling was made, the author had devoted the early part of his work to the story of the rise of the Commission by the successive amendments which have been made to the original act. About one-third of the original work, which was devoted to an exposition of the fundamental obligations of public employment and common carriers in particular, has been omitted in this work, it having been included in the author's general treatise on Public Service Companies. The subjects of Rates and Discriminations, treated separately in the first edition, are here subjected to a single analysis of the problems involved. Fundamental chapters of the first edition, such as those dealing with Classification of Goods, Discrimination between Localities, Schedule of Rates, and Investigations of the Commission, have not been structurally changed but have been elaborated and notable additions made in the number of cases cited. The treatment, in the present work, upon the Functions of the Commission and its jurisdiction over joint rates is entirely new matter, being based entirely upon decisions rendered since 1906 where the Commission has exercised the important powers conferred on it by the Amendments of 1906 and 1910. The opposing theories of rate regulation receive separate treatment. The policies of basing schedules on original cost of plant or upon its present value are discussed, as is also the question as to whether a particular rate to be charged for a given service should be based upon its cost or value, the author favoring the former. The matter of practice before the Commission is ably treated in a lengthy chapter in which all the cases have been collected. The final chapter is devoted to subsequent proceedings before the courts where the action of the Commission has been brought up. In the appendix appear, in addition to the statutory provisions, the rules of practice together with forms of pleading, both before the Commission and the courts, which have stood the test of litigation.

The conceded position which the author of this work has for sometime held as one of the very first authorities in this country upon the general law of Public Service Corporations makes any expression of opinion by the reviewer as to the excellence of the work superfluous. The author's name practically stands for the last word in this field of the law, if any one except the courts may be considered as speaking authoritatively. We heartily commend the book to our readers.

H. W. A.

Probate Law and Practice of Connecticut. By Livingston W. Cleaveland, Harrison Hewitt and Charles Edward Clark, of the New Haven Bar. Banks Law Publishing Company, New York City. 1915. pp. LXVIII, 1098.

Mr. Cleaveland, formerly Judge of Probate of the District of New Haven, assisted by Messrs. Hewitt and Clark, have rendered a valuable service to the members of the Bar and Probate Judges of Connecticut by the preparation of this book, the more praiseworthy, because a work of its thoroughness and extent must, in a small state like Connecticut, have been undertaken without hope of reward other than that of benefiting their profession and the state. Prior to publication of the book under consideration, there have been two publications on Connecticut Probate Law, the more considerable of which was by Nobbs & Stevenson of Bridgeport, in 1905. This was a valuable and extensively used work. Much has happened in the development of Probate Law in the last ten years, and the present work has been brought down to date, including a large part of Volume 88 of the Connecticut Reports. Although containing over a thousand pages, the statutes are sparingly reprinted and the citation of other than Connecticut authorities is limited. A few leading textbooks are cited. The extent of the body of Probate Law is shown by the fact that approximately two thousand cases are cited from our reports, this being from one-sixth to one-seventh of the entire number of cases reported on all subjects.

This work will be of immediate and great practical value to all interested in probate law, and the one hundred and fifty-three forms printed in the appendix will be of much use. There is also printed in the appendix an essay by Judge Cleaveland on the history of the Origin of Connecticut Probate Jurisdiction, and of some of our probate doctrines, showing much research. The discussion of the various subjects is full but not redundant, and, so far as can be determined without actual use, is as exhaustive and accurate as the present state of our law will allow.

We congratulate the authors on doing a valuable piece of work which cannot fail to be of constant use to the bench and bar of our state. And its value for use in this state is greatly emphasized by the fact that its scope is practically limited to our own law and does not involve the liability to error always likely to occur when our law must be selected from a treatise covering the law of the several states. While such treatises are important

when some obscure or undetermined point is under investigation, in the great majority of instances arising in daily practice, a local hand book like this is quite sufficient.

This book has made easily available all our law upon the subject as determined to date.

E. B. GAGER.

Restrictions on the Use of Real Property. By C. P. Berry. Published by George I. Jones, St. Louis, Mo. 1915. pp. XLV, 657.

A great many law books which are being published nowadays and which purport to be text-books are in reality not much more than digests of the law on the subject to which they relate. The book in question is of this kind. It is a digest of the law relating to restrictions on the use of real property. But it would hardly be fair to the author to say that he claims to have written a textbook. In his preface he says that he has made special effort to produce "a practical working tool for the busy lawyer." This might mean either a text-book or a digest and the book in hand is essentially a digest.

It does not follow from this, however, that the author has not rendered a valuable service to the legal profession. The phase of the law which he has chosen is one of growing importance and will become more and more important with the increase in population and its incident necessity of crowding larger and larger numbers of people into given territorial areas.

The author has covered his field well. He has not confined himself to the American cases, but has included the Canadian, English, Irish and Scotch cases as well. The excellence of his index makes the material included easily and readily accessible. Half a dozen different words or expressions in the index will often conduct you to the case on the question in hand. The book should prove of very great value to every lawyer who has a real estate practice.

H. W. A.

The Doctrine of Intervention. By Henry G. Hodges. The Banner Press, Princeton. 1915. pp. 288.

This is a useful summary of a subject much in evidence in public thought and the author may be congratulated on having chosen for his work a branch of international study which has

« ForrigeFortsett »