night time when he cannot see it, or in the daytime if he cannot aviod it, without interfering with the reasonable prosecution of his voyage, or be driven upon it by stress of weather and not be liable therefor.' Since the facts of the principal case do not come within any of the limitations placed on the paramount right of navigation, it would seem that the court was correct in giving effect to the general rule. G. J. Knight, '21. Real Property: Foreshore: Rights of public. In Johnson v. May, 189 App Div. (N. Y.) 196 (1919), plaintiff had erected a small tent on the foreshore between two safety lines that defendant had placed in the water for the convenience of the defendant and his patrons. The action was brought for false imprisonment. The trial court charged the jury that below high water mark upon the shore the rights of the plaintiff and the defendant were equal and that all have equal rights on the beach front. In reversing the judgment and granting a new trial the Appellate Division held that the charge to the jury was erroneous and that, "The public right is to pass and repass when the tide is out and to sail and fish over the foreshore when the tide is in, and to make such other reasonable use of the foreshore as may be consistent with the rights of others."1 In England the rights of the public in the foreshore are limited to navigation and fishing. The public have no common law right of bathing on the foreshore,2 or of shooting ducks, or of holding public meetings there. However, it has been suggested that the public may have the right to bathe on the foreshore in certain places because of immemorial custom, as the courts have upheld custom in some instances.5 In America it has generally been held that, in the absence of grant, the foreshore belongs to the state which holds it in trust for the public," and that the state cannot grant the shore to an individual, so as to enable him to make use of it in a way which will impair the public rights of navigation and fishing. In those jurisdictions where the littoral owner can wharf out over the foreshore to deep water, this wharf must be so built as to permit the public to pass on the foreshore. The foreshore is subject to the right of navigation in the public, and also to the right of the public to take fish thereon and therefrom, to dig for shell-fish,10 and to take seaweed lying thereon,"1 1p. 202. Blundell v. Catterall, 5 B. & Ald. (Eng.) 268 (1821). 'Llandudno Urban District Council v. Woods, 81 L. T. Rep. (Eng.) 170 (1899). 'Hall v. Nottingham, 33 L. T. Rep. (Eng.) 697 (1876). "Leverich v. City of Mobile, 110 Fed. Rep. 170 (1867); Coburn v. San Mateo County (C. C.), 75 Fed. Rep. 520 (1896); Johnson v. State, 114 Ga. 790 (1902); Amos v. Norcross, 58 N. J. Eq. 256 (1899); People v. Steeplechase Park Co., 218 N. Y. 459 (1916). "Bell v. Gough, 23 N. J. Law 624 (1852); People v. New York & S. I. Ferry Co., 68 N. Y. 71 (1877). Barnes v. Midland R. R. Term. Co., 218 N. Y. 91 (1916). Libbey, 37 Me. 472 (1854); Weston v. Sampson, 8 Cush. (Mass.) 347 (1851); Allen v. Allen, 19 R. I. 114 (1895). 10Peck v. Lockwood, supra, note 9. "Mather v. Chapman, 40 Conn. 382 (1873). but not to remove sand from it.12 The foreshore is not a highway for public travel upon foot or with vehicles, but the Court of Appeals of New York in Murphy v. Brooklyn said, "Everyone can, however, unless the public authorities by lawful action interfere, go upon the sea shore between high and low water marks to fish, to bathe, or for any other lawful purpose."'13 It is always subject to use for purposes in connection with navigation." The public has no right to cross private property to reach the shore.15 The power of the state to grant the foreshore to an individual for his sole use for the purpose of an amusement park has been upheld in New York, 16 the prevailing opinion stating, however, that it would not be lawful for the state to grant any large part of the shore to an individual or corporation; the minority of the court were of the opinion that there was an implied reservation of the public's right of travel on the beach. It is thus clear that the rights of the public to the shore are much greater in America than in England. The littoral owner has a right that the public does not have, in that he has the right of access to his upland from the water, a right which cannot be taken from him by the state without compensation, except in aid of navigation." 17 The definition of the rights of the public in the foreshore, as given in the principal case, would seem to be supported by authority. The plaintiff's right to erect a tent at the particular point should depend upon two questions: did such erection cut off the defendant's access by water to his property; and was it a nuisance to the remainder of the public in their reasonable use of the foreshore? Earl C. Vedder, '22. Real Property: Validity of restraints on alienation partial as to persons and for a limited time.-In Title Guarantee and Trust Co. v. Garrott, 183 Pac. (Cal.) 470 (1919),' the appeal involves the validity of a condition in a deed providing for forfeiture of the title conveyed in the event the grantee should lease or sell to any person of African, Chinese or Japanese descent prior to January 1, 1925, a period of a little over fourteen years. The property, a lot in Los Angeles County, was subsequently conveyed to the defendant, a negro of African descent. The plaintiff claims right of reentry for condition broken. After holding that the provision in the deed created a condition subsequent and did not violate the fourteenth amendment of the federal constitution, the District Court of Appeals held the condition void. The principal arguments against it were: (1) that it was repugnant to the fee granted, in violation of the common law rule of which section 711 of the Civil Code is declaratory, "Conditions restraining alienation, when repugnant to the interest created are void"; (2) 12Clement v. Burns, 43 N. H. 609 (1862). 13 Murphy v. Brooklyn, 98 N. Y. 642, 644 (1885); Hunt v. Graham, 15 Pa. Super. Ct. 42 (1900). 14Sisson v. Cummings, 35 Hun (N. Y.) 22 (1885). 15 Bickel v. Polk, 5 Harr. (Del.) 325 (1851); Stetson v. Bangor, 60 Me. 313 (1872); Coolidge v. Williams, 4 Mass. 139 (1808). 16 People v. Steeplechase Park Co., supra, note 6. 17Matter of City of New York, 168 N. Y. 134 (1901). 'District Court of Appeal, Second District, Division 2, July 10, 1919. Rehearing denied by Supreme Court, Sept. 8, 1919. total restraints on alienation for however short a time2 and restraints permitting alienation only within an unreasonably limited class3 are generally held void; (3) it would give rise to too much uncertainty and litigation to determine when the restricted class is unreasonably large or the time unreasonably long. The court disagreed with a Louisiana case, which held valid a condition restraining alienation or leasing to a negro, on the ground that the decision was based on the civil law. The court also disagreed with a similar Missouri case," stating that it was backed by no authority other than a dictum.6 The authorities on the particular point involved, the validity of a condition in restraint of alienation to a particular class for a limited time, are not numerous. Dicta to the effect that a restraint on alienation to a particular person or persons is valid are numerous,' and this position is supported by the commentators and text writers. Coke says, "But if the condition be such, that the feoffee shall not alien to such a one, naming his name, or to any one of his heirs, or to the issues of such a one, etc., or the like, which conditions do not take away all power of alienation from the feoffee, etc., then such a condition is good." Modern text writers generally quote this passage from Coke. Chancellor Kent doubted if it was true in his day." Gray,10 after an exhaustive review of the authorities, suggests that the condition should be good if it allows alienation to all the world with the exception of selected individuals or classes; but bad if it allows of alienation only to selected individuals. Dicta to the effect that all restraints on alienation are void are to be found," but they are not numerous. In addition to the Missouri precedent12 and the Louisiana precedent, 13 considered by the court in the leading case, there is a recent Tennessee case in point.14 The testator devised his property to his mother on condition that she should not by dying intestate, by will, by deed, or by gift, permit any of the property to come into the hands of the Kelly family. In case of breach there was a gift over. The condition was held valid as a reasonable restraint. The Kentucky cases permit a total restraint on alienation for a reasonable time.15 There is no recent case in England, but such a 2Potter v. Couch, 141 U. S. 296 (1890); Mandlebaum v. McDonnell, 29 Mich. 78 (1874), and the review of the authorities therein; Latimer v. Waddell, 119 N. C. 370 (1896). Manierre v. Welling, 32 R. I. 104 (1911). 4Queensborough Land Co. v. Cazeaux, 136 La. 724 (1915). "Koehler v. Rowland, 275 Mo. 573 (1918). "Cowell v. Springs Co., 100 U. S. 55 (1879). "Cowell v. Springs Co., supra, note 6; Langdon v. Ingram, 28 Ind. 360 (1867); Winsor v. Mills, 157 Mass. 362 (1892); Jackson v. Schutz, 18 Johns. (N. Y.) 174 (1820); McCullough v. Gilmore, 11 Pa. 370 (1849); Manierre v. Welling, supra, note 3; Camp v. Čleary, 76 Va. 140 (1882). 8Co. Litt. 223 b. 24 Kent's Commentaries, sec. 131. 10Gray, Restraints on the Alienation of Property, sec. 41. "Potter v. Couch, supra, note 2; Murray v. Green, 64 Cal. 363, (1883); Mandlebaum v. McDonnell, supra, note 2. 12 Koehler v. Rowland, supra, note 5. 13Queensborough Land Co. v. Cazeaux, supra, note 4. 14Overton v. Lea, 108 Tenn. 505 (1901), Accord, Francis v. Big Sandy Co., 171 Ky. 209 (1916). Contra, Morse v. Blood, 68 Minn. 442 (1897). 15 Lawson v. Lightfoot, 27 Ky. L. R. 217 (1905); Stewart v. Brady, 3 Bush (Ky.) 623 (1868); Wallace v. Smith, 113 Ky. 263 (1902). restraint as that in the leading case would probably be valid.18 The Canadian courts permit restraints on alienation that are practically absolute where there is reason for the restraint." It is argued that this restraint is repugnant to the fee granted and against public policy. Conditions and restraints are frequently held good, where in fact they do lessen the enjoyment of the fee granted and are repugnant thereto. Alienation of the common law separate Conditions estate of a married woman could be totally restrained.18 restraining a charitable institution from conveying or using the property granted otherwise than as directed in the grant are held valid.19 All reasonable restraints on use are upheld,20 where the grantor has some purpose to subserve other than mere personal whim. Conveyances with conditions restraining alienation as in the leading case are very common in the southern cities, and their validity is rarely questioned. It is surprising that only two such cases appear on record. Such restraints subserve a useful purpose. Far from being contrary to public policy, they are in accord with public policy. It is too well known to admit of argument that the presence of negroes in a district used by whites for residence purposes quickly lowers the rental and sale value of realty, and often causes acute racial friction. The fact that the property is not to be used for residence purposes by negroes is considered in making the sale, as is necessary to protect the whole community. It is difficult to understand how a condition of this kind is more repugnant to the estate granted, or more contrary to public policy, than a condition restraining the use, the height or the cost of buildings to be erected. A restraint on use, forbidding certain trades, would effectually prevent alienation to persons following the forbidden trades. It is admitted that any restraint which entirely takes away the power of alienation even for a short time is void, and should be on principle. Furthermore any restraint which unreasonably reduces the power to alienate real property should be void. It is submitted, however, that the restraint under discussion did not materially or 16 Doe v. Pearson, 6 East (Eng.) 173 (1805), held valid a condition restraining the two devisees from alienating except to each other and their heirs. In Attwater v. Attwater, 18 Beav. (Eng.) 330 (1853), the condition permitted alienation only to one of five brothers. It was held void, as being practically an absolute restraint. But In Re Macleay, L. R. 20 Eq. 186 (1875), held valid a condition that the devisee never sell out of the family. It was said this did not take away "the whole But see the criticism of this case in In Re power of alienation substantially." Rosher, L. R. 26 Ch. Div. 801 (1884). In that case the restraint was practically absolute and was held void. 17In Earls v. McAlpine, 27 Grant Ch. (U. C.) 161 (1879), an absolute restraint for life of devisee's mother was held valid. See also Smith v. Faught, 45 U. C. Q. B. 484 (1881). In O'Sullivan v. Phelan, 17 Ont. Rep. 730 (1889), alienation was limited to the family, and the condition was held valid. The same was true Re Porter, in Pennyman v. McGrogan, 18 U. C. C. P. 132 (1868). Re Winstanley, 6 Ont. Rep. 315 (1884), held valid a restraint on alienation except by will. 13 Ont. Law Rep. 399 (1907), held valid a restraint forbidding mortgage or sale during life of devisee. 18 Fears v. Brooks, 12 Ga. 195 (1852). 19 First Universalist Society of North Adams v. Boland, 155 Mass. 171 (1892); Congregational Society of Halifax v. Stark, 34 Vt. 243 (1861). 20Cowell v. Springs Čo., supra, note 6; Firth v. Marovitch, 160 Cal. 257 (1911); Plumb v. Tubbs, 41 N. Y. 442 (1869). unreasonably lessen the grantee's power to alienate. The forbidden classes were relatively small and unimportant as prospective purchasers of property. The difficulty of determining when such a restraint is unreasonable was emphasized by the court, and it is admittedly hard to lay down an absolute test, but the objection is not insuperable. Certainly where the observance or failure to observe the condition can neither promote nor prejudice any interest but that of the owner, restrictions should be void. The difficulty of determining what is reasonable and what unreasonable occurs in every branch of the law and is always open to the same criticism. It is submitted that the authorities are not inconsistent with a holding that such a condition as has been under consideration is valid; that it would be in accord with sound public policy to permit such restraints; that they would not be more repugnant to a fee simple absolute than restraints on use; and that the difficulty of determining when such restraints are reasonable and when unreasonable is not insuperable. Horace E. Whiteside, '22. Wills: Construction: Contingent or unconditional.-In Walker v. Hibbard, 215 S. W. (Ky.) 800 (1919), the facts as agreed between the parties were as follows: Mrs. Long addressed a letter to her aunt stating that she was about to submit to an operation and directing that, if anything should happen to her, all her estate, with the exception of what household articles the aunt might desire, should be given to one Gomersell. She completely recovered from the operation and, shortly after being released from the hospital, delivered the letter, which had remained among her effects, to Gomersell, calling it her will. Some six months later she died from a cause entirely independent of and having no connection with the operation or the ailment to relieve which it was performed. The court refused to admit the paper to probate on the ground that it was void as a testamentary desire, because the contingency upon which it was to become effective had never happened. While there are seemingly contradictory decisions on the facts present in cases involving contingent wills, it appears that a uniform rule of law has been applied, the inconsistency of authority being the result of an attempt by the courts to give affect to the intent of the particular testator as ascertained from the language of the paper and, where such language is ambiguous, taking into consideration the circumstances surrounding its execution. If the testator wrote the instrument intending it to become his will in all events, merely giving a narrative statement of the reasons inducing him to make it at that time, it is unconditional and has binding effect. But if he made the fact of its remaining a will dependent on the happening of some particular event, intending only a temporary disposition to meet a present 'In the Goods of Dobson, 1 L. R. P. & D. (Eng.) 88 (1866); Likefield v. Likefield, 82 Ky. 589 (1885); Forquer's Fstate, 216 Pa. 331 (1907); Faton v. Brown, 193 U. S. 411 (1904); Skipwith v. Cabell's Executor, 19 Gratt. (Va.) 758 (1870). |