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Canada-the original manuscripts if she could find them; otherwise copies revised or not revised, at her choice. The contract in this particular required the plaintiff to send the manuscripts of her 1912 revision of her stories, if she could find them; otherwise, copies of the stories revised or unrevised. If she did not find the 1912 revised manuscripts, the only source from which copies could be obtained, on which to exercise the option reserved to her by the contract of revising or not revising before sending them to the defendant, was the original publication in newspapers and magazines. That was a quite different agreement from one giving unconditional permission to the defendant to publish copies of the 1912 revision in the possession of the defendant. The contract prohibits the defendant strictly, in making permissible slight changes in or amendments to the stories, from bringing Anne Shirley into any story where she did not appear in the story as originally published or as revised by the plaintiff. That character did not appear in any of the original publications of these stories, nor in any of the 1919 revisions, but did appear in some of the 1912 revisions. This limitation would be bootless if the defendant could use a copy of the 1912 revision coming from its own vault rather than such originals or copies as the plaintiff might be able to find and send to the defendant.

The frame of the contract as a whole, its carefully phrased language, its references to certain manuscripts and its omission to refer specifically to the 1912 revision of manuscripts, in the light of the knowledge of the parties and the circumstances in which they approached the execution of the contract, forbid the interpretation that the 1912 revision of manuscript stories was transferred to the defendant, or that it thereby acquired the right to publish them.

There was no error of law in ruling in effect that the form of the stories sent by the plaintiff to the defendant in 1919 was a compliance with the obligation resting on her under the contract.

There is no occasion to disturb the ruling that the plaintiff has not established a right to damages.

The contract in its entirety in the light of the attendant facts restricted the defendant to the publication of the stories in the form sent to it by the plaintiff in 1919. It is not ambiguous. The rights of the plaintiff under it must be enforced according to its terms.

The plaintiff seasonably asserted her rights under the contract and gave notice of her intention to hold the defendant responsible for what she regarded its breach of the contract. It rightly has not been contended that the order for injunction and for taking account

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2. Landlord and tenant 124(1) — Grant of premises held not to carry right to enjoy conveniences in lessor's land which were not of strict necessity.

Lease of premises without grant of appurtenances or of privileges and conveniences did not carry right to enjoy conveniences in land of lessor which were apparent but were not of strict necessity.

3. Easements 19-Tenant held not to have easement of light and air in landlord's adjoining premises.

Where lease of premises was not with appurtenances or with rights and privileges convenient or essential to beneficial use and there was no absolute or reasonable necessity that light and air should continue to pass unobstructed through movable window on leased premises, tenant had no easement of light and air in lessor's adjoining premises.

Appeal from Superior Court, Suffolk County; Marcus Morton, Judge.

Bill by Henry Hampe against Satir Elia and another to enjoin defendants from building structure on passageway and open area adjoining premises demised to plaintiff. Decree for defendants, and plaintiff appeals. Affirmed.

G. J. Ganer, of Boston, for appellant.
G. R. Farnum, of Boston, for appellees.

PIERCE, J. Without any restriction as to use, the defendants' grantor leased the premises numbered 791 Harrison avenue to the plaintiff for a period of five years from February 1, 1921, with an option of renewal. The grant of the described premises is not with the appurtenances or with all rights and privileges thereto belonging which are convenient or essential to the beneficial use and enjoyment thereof, or any words equivalent or similar thereto.

The premises consist of a room on the street floor, on the northwesterly side of Harrison avenue, which is twenty feet square and about eight feet in height. The entrance is in front and there is no other means of entrance or exit. The room has

(146 N.E.)

plate glass, stationary windows on each | Guggenheim, 106 Mass. 201, 205, 8 Am. Rep. side of the entrance, which face Harrison 322; Keats v. Hugo, 115 Mass. 204, 15 Am. avenue; there are on the sides of the en- Rep. 80; Case v. Minot, 158 Mass. 577, 33 trance to the door stationary windows of plate glass. Over the door there is a movable transom four feet by ten and one-half inches. The door is set back from the street line about two feet and has two glass, stationary panels forty-six inches high by thirteen inches wide. Overlooking the adjacent premises of the defendant there is now, and was when the lease was executed, a window four feet nine inches high by thirty-six inches wide with two movable sashes of equal size. This window is located in the northeasterly wall three feet back of the street line. Over this window is a sign affixed to the outside wall of the building with the plaintiff's name printed thereon and the word "Tailor" below, which sign has been so located for about fifteen years. There is no window or door in the rear brick wall or in the southwesterly wall of the room. Whatever light and air flow into the store comes from the front of the store and from the movable window.

N. E. 700, 22 L. R. A. 536; Lipsky v. Heller.
199 Mass. 310, 85 N. E. 453; Tidd v. Fifty
Associates, 238 Mass. 421, 431, 131 N. E. 77.
The grant of these premises, without a grant
of the appurtenances or of the privileges
and conveniences, did not carry the right to
enjoy conveniences in the land of the lessor
which were apparent but were not of "strict
necessity." Buss v. Dyer, 125 Mass. 287,
291. The case of Raynes v. Stevens, 219
Mass. 556; 107 N. E. 398, and the case of
Doyle v. Lord, 64 N. Y. 432, 21 Am. Rep.
629, rest largely upon terms in the grant
which are not present in the lease now un-
der consideration. The findings of the mas-
ter above quoted go no further than to show
that the room would be more suitable as a
place of doing tailoring work, and financially
more valuable as leasehold property, should
the conditions of light and air continue than
would be the situation if the window were
closed. The master does not find, and could
not find properly on the evidence, that when
the lease was executed without restriction
as to the use of the premises there was an
absolute or reasonable necessity that light
and air should continue to pass unobstructed
by any act of the lessor or of his grantee
through the movable window to the leased
premises. 'Raynes v. Stevens, supra.
Decree affirmed.

BRODE'S CASE.

BRODE v. F. K. WILLIAMS CO.

(Supreme Judicial Court of Massachusetts. Suffolk. Feb. 27, 1925.)

member of Industrial Accident Board, from whose decision no review is asked, is final.

There is an open areaway between the northeasterly wall of the leased premises and a public alley or passageway. The defendants propose to build and now have in process of erection on this areaway a one-story brick building, the roof of which, when constructed, will be above the top of the side of the movable window. The face of the front wall of the proposed building will come flush with the inside line of the sidewalk and the rear wall will be parallel to and an extension of the rear wall of the building in which the plaintiff's shop is located. The face of the southeasterly side wall of the proposed building will be on the line of the lot and entirely block up said movable window of the plaintiff's shop, so that it will. Master and servant 419-Finding by fully obstruct the admission of both light and air into the room used by the plaintiff as a tailor shop. The master to whom the case was referred found that over this areaway light and air flow into the movable window, and that "this window is necessary to a substantial extent to the beneficial enjoy. ment of the tailor shop as conducted by the plaintiff for both light and air and also for ventilating purposes"; he also found that "while blocking up of said side window may not make the premises wholly unsuitable for the purposes of the plaintiff, nevertheless, said premises will be appreciably of less value as and for a tailor shop as the same is used and operated by the plaintiff than if allowed to be and remain as they now are." [1-3] It is settled in this commonwealth that an easement of light and air can be acquired only by express grant, by covenant. or by implication where the light or air is actually and absolutely necessary. Royce v.

Finding by member of Industrial Accident Board, not reserving rights of parties, under G. L. c. 152, § 12, from whose decision no review is asked, that injury arose out of and in course of employment, is final.

2. Master and servant 419-Finding of single member of Industrial Accident Board that incapacity was at end held conclusive.

Finding of single member of Industrial Accident Board that incapacity ended in September, 1923, where no claim for review was requested, stands as other finding of fact, and is conclusive on parties, and law of case, unless reviewed by board.

Appeal from Superior Court, Suffolk County; O'Connell, Judge.

Proceeding under the Workmen's Compensation Act by Gussie Brode, claimant, opposed by the F. K. Williams Company, em

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ployer, and the Travelers' Insurance Com-ties were open under the statute, and could pany, insurer. On finding of single member be reviewed. G. L. c. 152, § 12. It was said of the Industrial Accident Board, decree for in Hunnewell's Case, 220 Mass. 351, 353, 107 compensation was entered in superior court, N. E. 934, 935: and the insurer appeals. Reversed, and decree entered for insurer.

L. C. Doyle, of Boston, for Travelers' Ins. Co.

Joseph B. Cowett, of Springfield, for employee.

CARROLL, J. This is a proceeding under the Workmen's Compensation Act.(G. L. c. 152). The employee was injured August 23, 1922, her hand being caught in a press. Four of her fingers were fractured. She was paid compensation at the rate of $7 a week. In September, 1923, at the request of the insurer to discontinue payments, there was a hearing before a member of the Industrial Accident Board. It was decided at this hearing that she was able to do her former work, and if unwilling to return to the same employment, she was able to earn the same amount of wages elsewhere. "On all the evidence, I find that the employee is able to do her former work, if she cares to apply herself, and the application of the insurer to discontinue compensation payments is granted as of date of filing of this decision, September 28, 1923." By this decision, specific compensation for the period of 12 weeks, for the loss of the use of the "terminal phalange of her middle right finger," was ordered. No claim for review was filed.

"The insurer rightly contends that the finding of the arbitration committee, no review all matters covered by it and that it cannot having been requested, bound the parties as to

be reviewed."

The finding in that case, however, was not construed to be a final decision ending all payments under the act. A finding by a member of the Industrial Accident Board, from whose decision no review is asked, that the injury arose out of and in the course of the employment, is final. The question having been settled, it cannot be reviewed by another member of the board. Hurley's Case, 235 Mass. 387, 126 N. E. 775. See Kareske's Case, 250 Mass. 145 N. E. 301; Frizzi's Case, 237 Mass. 460, 130 N. E. 95. The question now under consideration was not discussed or considered in Hudson's Case, 244 Mass. 330, 138 N. E. 235.

[2] If the single member found that all incapacity was at an end in September, 1923, as no claim for review was requested the decision stands like any other finding of fact, and is conclusive upon the parties, unless reviewed by the board. When the employee came before the single member in 1923, at the hearing on the petition of the insurer to discontinue compensation payments, the member found that there was a "permanent stiffness of the terminal phalange of the mid

In January, 1924, a hearing was held bedle finger" (for which, as we construe the fore another member of the Industrial Accident Board. He found that the employee was entitled to compensation from September 28, 1923, to November 1, 1923, the rights of the parties being reserved under G. L. c. 152, § 12. No claim for review was filed.

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finding, specific compensation was ordered to be paid); that "outside of that, her hand is in fairly good condition after such an injury"; that although the employee testified she was unable to operate the press, no rea son was shown indicating her inability to do In March, 1924, there was another hearing this work; that she was able to earn the before a third member of the board. It was amount of her former wages at other work; decided that compensation was due the em- and, finally, that "on all the evidence ployee from January 15, 1924, partial comthe employee is able to do her forpensation to continue in accordance with the mer work, if she cares to apply herself." provisions of the act. On review, this find- The application to discontinue payments was ing of the single member was affirmed. A granted without any reservation of the emdecree was entered in the superior court for ployee's rights under the act. As we con the employee, and the insurer appealed. strue this decision, it was a final determination that all incapacity was ended, that the employee was able to work, that she was no longer prevented from engaging in her employment by reason of her injury. No claim for review being asked for, the decision must stand. It was the law of the case, and the parties are bound by it.

[1] If the finding of the member at the hearing in September, 1923, amounted to a decision that all incapacity to labor, total and partial, had ceased at that time, no claim for review having been filed, and the rights of the parties not having been reserved under G. L. c. 152, § 12, the parties are bound by the decision. It is final and cannot be subsequently reviewed under the machinery provided in the workmen's compensation act. If, on the other hand, that finding did not mean that all compensation was to cease, or that all disability arising from the injury ended on September 28, 1923, then the decision was not final and the rights of the par

If the compensation of the employee is ended by the decision of the member of the board, the employee, if he desires, may have the case reviewed by the Industrial Accident Board; and if compensation is discontinued, and there is no finding that all incapacity is ended, or if there is such a finding and the rights of the parties are left open under the

(146 N.E.)

act, the decision of the member may be re- 15. Indictment and Information
viewed. But when, as in the case at bar,
there is a finding that incapacity to labor
had ceased, which must be implied from the
finding that she was able to do her former

work if she cared to apply herself, and there
is no request for a review to the full board,
and the rights of the parties are not kept
open, the decision on this point is final. This
question the insurer could argue at the hear-
ing before the Industrial Accident Board.
It follows that the decree of the superior

court must be reversed and a decree entered for the insurer.

So ordered.

(316 Ill. 77)

STATE v. FROELICH. (Supreme Court of Illinois.

(No. 16447.) Feb. 17, 1925.) 1. Intoxicating liquors 258-Proceeding to restrain maintenance of liquor nuisance is civil and not criminal proceeding.

Proceeding to restrain maintenance of liquor nuisance, under Prohibition Act, § 22, is a civil and not a criminal proceeding.

2. Intoxicating liquors 279-Proceeding to punish for contempt for violation of injunction against maintenance of liquor nuisance is civil proceeding.

Proceeding to punish for contempt for violation of injunction against maintenance of liquor nuisance, under Prohibition Act, § 25, is a civil chancery proceeding, in which the pleadings and the character and quantity of proof required are governed by the rules and practice applicable to other chancery proceedings.

3. Intoxicating liquors

279-Constitutional provision as to name in which prosecution shall be conducted held inapplicable to proceedings to punish for contempt for violation of injunction against maintenance of liquor nuisance.

202 (2)

Noncompliance with constitutional provision as to name in which prosecution shall be carried on available on motion in arrest of judgment or on writ of error.

viding that all prosecutions shall be carried on Noncompliance with Const. art. 6, § 33, proin the name and by the authority of the people of the state of Illinois," and conclude "against the peace and dignity of the same," is available on motion in arrest of judgment or on writ of error.

6. Action 16-Title given proceeding cannot change its nature or character.

Title given proceeding cannot change its nature or character.

7. Intoxicating liquors 274-Bill of complaint in suit to enjoin maintenance of liquor nuisance filed in name of state held sufficient.

In action to enjoin maintenance of liquor nuisance, bill of complaint filed in the name of the state of Illinois held sufficient under Prohibition Act, § 22.

8. Intoxicating liquors 279-Petition in contempt proceedings based on violation of liquor injunction held sufficient.

Institution of contempt proceedings based on violation of injunction against maintenance of liquor nuisance, by verified petition in the name of the people, held sufficient under Prohibition Act, § 25.

9. Contempt 30-Power to punish for contempt inherent in court.

The power of courts to punish for contempt does not depend on constitutional.or legislative grant, but is inherent in all courts, as necessary for self-protection, and as an essential auxiliary to the administration of the law.

10. Contempt 70-Criminal law 163Punishment for contempt not bar to prosecution for same act if criminal offense.

Fine and imprisonment which court is authorized to impose for a contempt are not intended as a punishment for the violation of the Const. art. 6, § 33, providing that all prose-criminal law, and punishment for contempt is cutions shall be carried on "in the name and not a bar to a prosecution for the same act by the authority of the people of the state of if it also constitutes a criminal offense. Illinois," and conclude "against the peace and dignity of the same," held inapplicable to pro-11. Jury ceeding to punish for contempt for violation of injunction against maintenance of liquor nuisence, under Prohibition Act, § 25, being applicable merely to prosecutions of a public or criminal character, and formal accusation of of fenders by presentment or indictment by grand jury or by information.

4. Indictment and information 28, 32(3), 49, 50-Constitutional provision as to name in which prosecution shall be carried on, and conclusion, held mandatory.

Const. art. 6, § 33, providing that all prosecutions shall be carried on "in the name and by the authority of the people of the state of Illinois," and conclude "against the peace and dignity of the same," held mandatory in all prosecutions to which it is applicable.

13(21)-Punishment for contempt without jury trial held not violative of Constitution.

Punishment for contempt for violation of injunction against maintenance of liquor nuisance, under Prohibition Act, § 25, without trial by jury, held not violative of Const. art. 2. §§ 5, 9, and Const. U. S. Amends. 5, 6, guaranteeing the right to trial by jury. 12. Intoxicating liquors

279-Defendant

could be adjudged in contempt for violation of permanent injunction against maintenance of liquor nuisance, though given no notice of temporary injunction.

A defendant permanently enjoined from maintaining a liquor nuisance, under Prohibition Act, § 22, may be adjudged in contempt. for violation of such injunction, though no

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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ance of the evidence.

DE YOUNG, J. A bill for an injunction under the Prohibition Act (Laws of 1921, p. 681) was filed in the circuit court of Lake county on September 20, 1921, in the name of the state of Illinois, by Ashbel V. Smith, state's attorney of that county, against Edward Froelich, Minnie Rosenberg, and Andreas Rosenberg. The bill alleges that a certain parcel of real estate situated in Lake county, particularly described, is improved by a 2-story frame building known as Willis Inn; that the premises are used and maintained by Froelich as a place where intoxicating liquor, as defined by section 2 of the Prohibition Act, is manufactured, sold, kept or bartered in violation of the provisions of the act; that the premises, and all intoxicating liquors kept and maintained therein, are a public nuisance, as defined by section 21 of

In contempt proceedings, under Prohibition Act, § 25, based on violation of injunction against maintenance of liquor nui- the act; that Froelich is the owner and prosance, violation can be established by pre-prietor of the business conducted on the ponderance of evidence, and need not be proved premises; that Minnie and Andreas Rosenbeyond reasonable doubt.

15. Intoxicating liquors ~279-Evidence held to prove defendant guilty of violating injunction against maintenance of liquor nuisance. In contempt proceedings, based on violation of injunction against maintenance of liquor nuisance, under Prohibition Act, § 25, evidence held to prove violation of injunction by defendant.

16. Intoxicating liquors 279-Evidence held to prove venue in contempt proceedings based on violation of injunction against maintenance of liquor nuisance.

In contempt proceedings, based on violation of injunction against maintenance of liquor muisance, under Prohibition Act, § 25, evidence

held to prove venue.

17. Intoxicating liquors 279-Order held valid as against contention that it failed to fix beginning and termination of period of imprisonment.

In contempt proceedings, based on violation of injunction against maintenance of liquor nuisance, under Prohibition Act, § 25, order adjudging defendant guilty of contempt, and sentencing him to imprisonment in certain jail

for period of 90 days, held valid as against contention that it failed to fix the beginning and termination of period of imprisonment. Heard, J., dissenting in part.

Error to Circuit Court, Lake County; Claire C. Edwards, Judge.

Edward Froelich was adjudged guilty of contempt, and he brings error. Affirmed.

E. V. Orvis, of Waukegan (John T. Murray, of Chicago, of counsel), for plaintiff in error. Edward J. Brundage, Atty. Gen., Ashbel V. Smith, State's Atty., of Waukegan, Albert D. Rodenberg and Virgil L. Blanding, both of Springfield, and George C. Dixon, of Dixon (Sidney H. Block, of Waukegan, of counsel), for the State.

berg are the owners of the premises, and have knowledge that the building is occupied and used for the sale of intoxicating liquor contrary to the provisions of the act, and allow such occupation and use, and that unless restrained Froelich will continue to keep, maintain, and use the premises as a place where intoxicating liquor is manufactured, sold, kept, and bartered in violation of and as a common public nuisance, as defined in section 21 of the act. The prayer was for process directed to the sheriff commanding him summarily to abate the nuisance, for a temporary injunction pendente lite, and for a permanent injunction upon the final hearing. The bill was verified by the state's attorney. Summons was issued and personally served upon Froelich on September 23, 1921.

The joint affidavit of Robert E. Jeske and Fred Muenchen, stating that they had on different days purchased beer at Willis Inn, which, in their opinion, was intoxicating and contained more than one-half of 1 per cent. of alcohol by volume, was filed on October 10, 1921. On the same day a temporary injunction was issued but the writ was not served on Froelich. Although served with summons, Froelich did not appear but defaulted, and by order the bill was taken as confessed against him. The proof in support of the bill was not confined to affidavits, but testimony also was heard. On June 8, 1922, a decree for a permanent injunction was entered, in which, after finding, among other things, that the premises situated in Lake county, Ill., were used and maintained by Froelich as a place where intoxicating liquor was manufactured, sold, kept or bartered in violation of the Prohibition Act, and that the premises, and all the intoxicating liquor and property kept, used, and maintained therein, were a public and common nuisance as defined and declared by the act, the court

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