divert it entirely, if this be necessary to the ordinary use or improvement of his land even, though the result be the cutting off of the sources of his neighbor's well, or the withdrawal of water already collected therein. This case has been followed generally throughout the United States.

In Chasemore v. Richards, 7 H. L. C. 349 (1859), percolating water was appropriated to be sold to the inhabitants of a village. The plaintiff complained of the interception of the sources of his mill-stream, but the House of Lords refused to allow him to recover, holding that the right to take underground water is not dependent upon the purpose for which it is diverted, thus recognizing and extending the doctrine laid down in Acton v. Blundell. This view had been taken in Vermont in a case of malicious interception, Chatfield v. Wilson, 28 Vt., 49 (1855). In England the right to interfere with the course of surface water not confined in a stream had previously been declared to be absolute, Broadbent v. Ramsbotham, 11 Ex. 602 (1856).

While decisions affirming the right of a land owner to intercept percolating water before it reaches another's land are numerous, cases dealing with the withdrawal of such water from the land of another are scarcely to be found. It is held that by inducing percolation one may take water from his neighbor's well, New River Co. v. Johnson, 2 E. & E. 435, (1860); but not from his stream, Canal Co. v. Shugar, L. R. 6 Ch. 483 (1871). It is difficult to see on what principle this distinction can be made.

In a recent New York case, Forbell v. City of New York, 160 N. Y. 357 (1899), no interference with well or stream was charged. By means of powerful suction pumps erected in wells driven on its own property the defendant municipal corporation daily withdrew quantities of subsurface water from the plaintiff's land. The Court granted relief to the plaintiff on the ground that to be lawful the appropriation of underground water must be for purposes connected with the ordinary use or improvement of the land, thus repudiating the doctrine of Chasemore v. Richards, supra, and adopting the view expressed by Lord Wensleydale in that case. The decision seems to represent a logical development of the common law as laid down in Acton v. Blundell.

RIPARIAN PROPRIETORS; TAKING PRIVATE PROPERTY WITHOUT JUST COMPENSATION.-The U. S. Supreme Court on November 12, 1900, decided that to cut off a riparian owner from access to navigable waters was not taking private property without just compensation, Scranton v. Wheeler, 21 Sup. Rep. 48. The plaintiff owned land originally granted by U. S. patent and bounded by "the right bank of the Ste. Marie River," Michigan. A Government pier has been built in the river bed which entirely cuts off the plaintiff's access to the river. Even if the plaintiff owned the fee of the river bed, says HARLAN, J., he acquired the same subject to the right of the Government to improve navigation

and so subject to "the possibility that such right might become valueless.' The reply of SHIRAS, J., dissenting, with whom GRAY and PECKHAM, J. J., concur, would seem to be most pertinent; the knowledge that private property is liable to be taken for a public purpose has not hitherto been supposed to deprive the owner of the right of just compensation. The learned Justice HARLAN fails to distinguish between the ownership of the fee of the highOwnership of the way and the abutting owner's right of access. former, as he says, is immaterial since it is already servient to an That easement, and improving this easement takes no property from the plaintiff unless a distinct property right is affected. the right of access may be such a distinct property right does not appear to have occurred to the learned Justice. Yet such is the English law. Rose v. Groves, 5 Mann. & G., 613 (1843); Lyon v. Fishmongers Co., L. R., 1 App. Cas., 662 (1876). Such intangible rights have received slow recognition except where the early Such common law doctrines of trespass could not be invoked. were the N. Y. Elevated Railway cases where the plaintiffs did not Story v. N. Y. El. R. Co., 90 N. Y., own the fee of the street. 122 (1882): Hare Amer. Const. Law, 372. Compare also Haskell v. New Bedford, 108 Mass., 208 (1871); Brayton v. Fall River, 113 Mass., 218 (1873); Delaplaine v. Chic. & N. W. R. Co., 42 Wis., 214 (1877); Brisbine v. St. P. & S. C. R. Co., 23 Minn., 114 (1876); Ind. B. & W. R. Co. v. Eberle, 110 Ind., 542 (1886); Steers v. Brooklyn, 101 N. Y., 51 (1885). It is submitted that cases holding contra are opposed to justice and the general trend of authority, Gould v. H. R. R. Co., 6. N. Y., 522 (1852); Stevens v. Patterson, 34 N. J. 532 (1870); Tomlin v. Dubuque R. Co., 32 Ia., 106 (1871). "So far as these cases justify the cutting off of a riparian proprietor they justify taking of property without just compensation. Cooley Const. Law, 6th Ed., 670, note 1.

AGENCY-EMPLOYER'S LIABILITY TO SURGEON FOR CARE OF INJURED EMPLOYEE.-The master is under no legal obligation to provide medical attendance for a servant injured in the course of his employment, whether the injury sustained be traceable to the employer's fault, or not, though in the former event the expense incurred may be included in the damages recovered for the injury.

The question whether, and under what circumstances, an agent of the employer, not expressly authorized therefor, may bind his principal by hiring a surgeon in an emergency to save a servant's life has been before the courts on numerous occasions in recent years, and in many of these instances the injured man has been one employed by a railway company.

It has often been held that a general agent of a railway corporation may bind his company by contract for such medical attendance as is necessary for the injured servant, though it seems difficult to support these decisions on any sound principle of agency. Toledo, etc., Ry. v. Rodriques, 47 Ill. 188 (1868); Walker v. G. W. Ry.

Co., L. R. 2 Exch. 228 (1867); Sevier v. R. R. Co., 92 Ala. 258 (1890).

Some courts in dealing with these cases have gone so far as to hold that the servant present, who is highest in authority, has the requisite power conferred on him by the necessity of the occasion. Ry. Co. v. McMurry, 98 Ind. 358 (1885); Ind. & St. L. Co. v. Morris, 67 Ill. 295 (1873). Recovery is certainly not to be sustained on the theory of quasi-contracts if the grade of the agent and not the necessity is to determine the principal's liability.

In a recent Kentucky case, Godshaw v. Struck, 58 S. W. 781, the foreman of the defendant contractor employed the plaintiff to attend a workman injured by a falling brick. The Court of Appeals denied the surgeon's right to recover, holding that the doctrine of the railway cases applied exclusively to them. Undoubtedly, the defendant should not be held liable Swazey v. Mfg. Co., 42 Conn. 556 (1875); Chaplin v. Freeland, 34 N. E. 1007 (Ind., 1893), but if the anomalous doctrine of the railway cases is recognized, it is not clear why it is not extended to other cases within the reason of the rule.

It is said that men in the railway service are usually at work far from their homes, and are apt to be injured when in localities where they have neither friends nor credit. Chaplin v. Freeland, supra. But these statements are equally true with respect to thousands of workmen living in the suburbs of any one of our great manufacturing centers many of whom are engaged in occupations quite as hazardous as that of the railway employees.

PROTECTION OF BUSINESS OR OCCUPATION. --The first case in which an action was allowed for improper interference with a man's employment or business seems to have been Garret v. Taylor, Cro. Jac., 567, in the 18th year of James 1, where plaintiff was given. damages against defendant, who had driven away workmen and customers from plaintiff's quarry by threats of violence and of lawsuits. In a long series of cases at law and in equity the English courts worked out the principles of their jurisdiction in such matters. But in the case of Allen v. Flood, L. R., 1898, App. Cas. 1, the earlier cases were exhaustively reviewed and the House of Lords, overruling the view of the lower courts and of most (six out of eight) of the Judges whose opinion was asked, held that to procure a workman's discharge, where he had no binding contract of employment, and to prevent his future employment, by threats of strikes, etc., violated no legal right of the workman. Both the decision and the reasoning by which it was reached substantially alter the law as previously understood, and sufficient time has not elapsed for the English courts to build on this new foundation.

Most of the reported cases in the United States arose upon applications for injunctions as a suit for damages is usually an utterly inadequate remedy. The general rule in this country agrees rather with the views held in England before Allen v. Flood, than with

those laid down by the House of Lords in that case. An employer may engage whom he likes; an employee may work for whom he chooses; aside, of course, from special contracts. Generally, workmen may combine to obtain better wages, etc., and may strike— and endeavor to persuade others to leave, or not go to work, so long as peaceable means only are employed; but they may not use their organizations to compel the discharge of other workmen, either by violence or by strikes, threats, etc. Curran v. Galen, 152 N. Y. 33 (1897); Cumberland, etc., Co. v. Glass Assn., N. J. 46 Atl. 208 (1899); Beck vs. Teamsters' Union, 118 Mich. 497 (1898); Amer. Steel, etc., Co. vs. Wire Drawers, etc., Union, 90 Fed. 608 (1899); 28 Law. Rep. Ann. 464, note. In a number of States, of which New York and New Jersey are examples, the right to combine and strike to better their condition, is given to workmen by statute.

In the recent case of National Protective Assn. v. Cuming, 53 App. Div., 227 (1900) the New York Supreme Court follows Allen v. Flood rather than the American cases. In view of the fact that a considerable proportion of the cases are brought by workingmen whose livelihood is in danger, e.g., Curran v. Galen, 152 N. Y., 33; Plant v. Woods, 57 N. E. 1011; Mass. (1900) and this very case of Nat'l Assn. v. Cuming; the advisability of restricting the authority now exercised by the Courts is at least questionable, for in such cases it is certainly used to protect individual freedom. is doubtful, however, if the Court of Appeals will sustain the distinction attempted to be drawn between the Cuming case and Curran v. Galen.

It

For a discussion of the charges of "Government by Injunction" which have been made in connection with these and similar cases, see Amer. Steel, etc., Co. v. Wire Drawers, etc., Union, supra; Shoe Co. v. Saxey, 131 Mo. 212; (1895) Matter of Debs, 158 U. S., 564; (1844) 28 L. R. A., 464, note.

REMOVAL OF Causes. CITIZENSHIP OF CORPORATION.

-Walters v.

C. B. & Q. R. R. Co., 104 Fed. 377 (Cir. Ct., D. of Neb., Oct. 3, 1900).

A corporation, as existing only by act of the Legislature, would seem to have a separate existence, for purposes of citizenship, in each State where it has been recognized by an incorporating as distinguished from a mere enabling act (Morawetz, Corporations, § 996, 999). Recent federal decisions apparently tend to nullify this distinction in matters of jurisdiction.

In R. R. Co. v. Whitton, 13 Wall. 283 (1871) the Supreme Court allowed a citizen of Illinois to sue defendant corporation in the Circuit Court of Wisconsin, where the cause of action arose, though defendant had also been incorporated in Illinois. In R. R. Co. v. James, 162 U. S. 545 (1895), a citizen of Missouri sued a corporation of the same State in the District Court of Arkansas for injuries received in Missouri. Held, the action must fail for want of

diversity of citizenship, the defendant having been merely "adopted" in Arkansas with the privileges of a domestic corporation but "not incorporated as such." A dictum added that defendant could not become a corporation of Arkansas for purposes of citizenship unless created out of natural persons whose citizenship could be imputed to the corporation itself." The Whitton case (supra) was, however, expressly distinguished on the ground of actual incorporation in Wisconsin, while HARLAN, J., dissenting, thought there had been such incorporation in the case at bar. Next came Louisville N. A. Co. v. Trust Co. 174 U. S. 552 (1898), a bill in equity by a corporation of Indiana, also incorporated in Kentucky, against a citizen of Kentucky. Suit in the District Court was allowed, the dictum of the previous case being confirmed, and the rule laid down that a corporation remains for jurisdictional purposes a citizen of the State where it was originally incorporated.

The rule so given has but recently been applied in Walters v. The C. B. & Q. R. R. Co. (supra). Defendant, originally incorporated in Illinois, had subsequently become a domestic corporation under the laws of Nebraska. A citizen of Nebraska sued in the Nebraska courts. Held, defendant may remove. Its citizenship remained that of the State of its original creation, it having been created in Nebraska out of an existing foreign corporation. "It was the citizenship of defendant that determined the jurisdiction of the Court, and not the question whether it was a corporation in Nebraska.

CONSTITUTIONAL LAW-TAXATION-DISCRIMINATION AGAINST NONRESIDENT STOCKHOLDERS. —It has been recently held in Connecticut, (State v. Travelers' Insurance Co.; see RECENT DECISIONS) that a State tax may be levied on domestic corporations on the basis of the value of shares held by non-residents.

In the opinion of the court it seems to be assumed that the tax in question fell on the individual non-resident stockholders because of their obligation to reimburse the corporation for an expense specially incurred on their account. No statute is cited which provides for such reimbursement. If the corporations paying the tax could not legally enforce such reimbursement by the exercise of a lien on dividends, or otherwise, the tax would simply be one on domestic corporations classified in a certain way. No question could be raised as to the constitutionality of the tax. For, as the court explains, there is no provision in the constitution of Connecticut that "taxation shall be uniform and equal," and in the absence of such a provision there is no State limitation on the legislative power which can enable the courts to declare unconstitutional laws classifying persons or property and discriminating between these classes when laying the burden of taxation. Knowlton v. Moore, 20 Sup. Ct., 747 (1900); nor does the XIVth amendment, U. S. Const., limit the taxing power of State legislatures in this particular-Slaughter House Cases, 16 Wall. 36 (1872); Maxwell v. Dow, 20 Sup. Ct., 448 (1900).