Hayden v. Souger.

cover it, and recoverable upon by another than the sheriff. Cummings v. Gann, 52 Penn. St. 484.

Where one gives information leading to an arrest, and tending to produce conviction, and without which conviction could not have been had, if the accused had not confessed his guilt he is entitled to recover the reward for the "apprehension and conviction," although he was not a witness on the trial, and the confession was the ground of conviction. Crawshaw v. City of Roxbury, 7 Gray, 374. One who gives information to the owners of stolen property, by which, with reasonable diligence on their part, they are enabled to recover the property and detect the thief, is entitled to a reward offered by them for the recovery and detection, although he does nothing further to aid in the matter, he having at the time of imparting the information stated that he expected the reward, and they not requiring any further service of him. Besse v. Dyer, 9 Allen, 151.

A bank addressed the offer of reward by circular, "to any bank officer or police detective" for the detection and conviction of a forger and the recovery of the money. One who was neither a bank officer nor a police detective, wrote to an officer of the bank communicating his suspicion of a certain person, and stating that he should claim the reward if he turned out to be right. The bank officer replied by letter, inclosing one of the circulars, telling him to "keep quiet, but a close watch," and that he would send a detective to him. The bank officer sent the detective and went himself, and they both communicated personally with the informant, and through his information the suspected person was convicted and most of the money was recovered. Held, that the informant was entitled to the reward, his services being accepted and availed of, with knowledge that he claimed the reward. First National Bank v. Hart, 55 Ill. 62.

Where a reward was offered for the detection of a thief, and one, having possession of the stolen goods, gives such information as leads to his detection, he will be entitled to the reward, unless it appears that before the offer he knew the goods to be stolen, or was connected with the felony. Jenkins v. Kelren, 12 Gray, 330,

Defendant offered a reward for the "capture and conviction" of each of certain crimi. nals. Plaintiff captured two of them who confessed their guilt; but the indictments against them were dismissed at the solicitation of the defendants' attorneys, in order to use them as witnesses against the others. Held, that plaintiff was entitled to the reward. Louisville & Nashville R. R. Co. v. Goodnight, 10 Bush, 552; s. c., 19 Am. Rep. 80.

A reward offered for information leading to a conviction of felony may be claimed by one, who, with notice of it, gives information solely from motives of revenge against the criminal. Williams v. Carwardine, 4 B. & Ad. 621.

The first person giving the information is entitled to the reward. Lancaster v. Walsh, 4 M. & W. 16; Williams v. Carwardine, 4 B. & Ad. 621; Thatcher v. England, 3 C. B. 254. Where one was procured to commit a crime by another, and criminally punished therefor, and afterward gave information leading to the conviction of his instigator, held, that he was entitled to a reward offered under authority of a statute for the conviction of the offenders. Matter of Kelly, 39 Conn. 159.

A reward offered for the conviction of the perpetrator of a specific crime cannot be recovered for a conviction of a different or subsequent crime. Cornelson v. Sun Mutual Insurance Co., 7 La. Ann. 345.

An offer was made of a "liberal reward" for information leading to apprehension, and a specific sum for the apprehension of an offender; held, that one who gave such information was entitled to a liberal reward, but not to the specific sum unless he personally or by his agents made the arrest. This was a reward for the apprehension of Surratt, accomplice of Booth in the assassination of President Lincoln. Shuey v. U. S., 92 U. S. 73.

A reward for the recapture of an escaped prisoner cannot be recovered by one who gave the required information, but had assisted in the escape, and withheld that fact at the time of the offer. The policy of the law forbids that he shall be compensated for that which his own crime rendered necessary. Hassan v. Doe, 38 Me. 45.

A mere statement of suspicions of a certain person, unaccompanied by any claim of the reward until after arrest and conviction, will not warrant a recovery. Burke v. Wells, 50 Cal. 218.

A reward was offered for the apprehension and delivery to the jail of Kershaw District of a slave accused of murder. A apprehended him and delivered him to a magistrate c

Hayden v. Souger.

the district, who delivered him to a constable, in whose hands he remained a few days until he was tried and acquitted. Held, that A, not having complied with the condition to deliver the slave to the jail, was not entitled to the reward. Clanton v. Young, 11 Rich. (S. C.) 546.

A reward for the arrest and delivery of a criminal to the sheriff of a certain county cannot be recovered by parties who have merely accompanied the sheriff to another county, where he received the prisoner from the custody of the sheriff of that other county, by whom he had been previously arrested. Adair v. Cooper, 25 Tex. 548.

The finder of lost property is not entitled to a reward for finding it, unless there has been a promise of reward by the owner, nor can he use it, without the owner's consent, to compensate himself for the trouble and expense of finding and taking care of it. Watts v. Ward, 1 Or. 86; Amory v. Flynn, 10 Johns. 102.

Where one accidentally leaves an article at a bank, and then offers a reward to the finder on returning it, describing it as lost, another person who, while dealing at the bank at the same time had seen and taken the article, was held not entitled to the reward upon returning the article, although it had been left by the owner on a desk outside the bank counters and accessible to all persons. This is not the finding of a lost article. The occupants of the banking house, and not the plaintiff, were the proper depositaries of an article so left. Kincaid v. Eaton, 98 Mass. 139.

Where an insurance company offered a reward to any person who should procure such testimony as should convict any incendiary, and thereafter the plaintiff procured such testimony as led to the conviction of two persons who were imprisoned on such a charge before the offer of the reward, held, that he could recover the reward, it being applicable to offenses committed before as well as after the offer. Salbadore v. Crescent Mutual Ins. Co., 22 La. Ann. 338.

One who has recovered a reward for the restoration of a child, through information furnished him by another, with the intention of his availing himself of it for his own benefit and at his own risk, is not liable to an action by his informant to recover the reward or any part of it. Fallick v. Barber, 1 M. & S. 108.

A reward offered for the apprehension and conviction of any one implicated in the murder of four specified persons is not recoverable upon the allegation of the conviction of the perpetrators of the murder of one of them only. Furman v. Parker, 21 N. J. L. 310. A reward of $5,000 being offered for the apprehension of a forger and the recovery of the moneys, or a proportionate amount for any part thereof, held, that both apprehension and recovery were conditions precedent to the payment of the reward. Jones v. Phoenix Bank, 8 N. Y. 228.

A reward was offered for such information to the superintendent of police at D. as should lead to the apprehension of G., an absconded forger. G. afterward presented himself at the police office at E., and inquired for the chief constable, the plaintiff; and said to him, "you hold a warrant for me; I am wanted for forgery." The plaintiff searched the police gazette and found a notice therein that G. was wanted for forgery; he then telegraphed to the superintendent of police at D., "Do you hold warrant for the apprehension of G. for forgery?" receiving an answer, "I still hold warrant for G., and should like him to be apprehended," the plaintiff apprehended G. before he left the office, and he was convicted; held, that plaintiff was not entitled to claim the reward, the apprehension not being the consequence of the plaintiff's information, but of the criminal surrendering himself to justice. Bent v. Wakefield Bank, L. R., 4 C. P. 1; A. D. 1878.

Remedy. If the arrest is made by one, and the reward is received by another, an action is maintainable by the former against the latter to recover the reward so received. Stephens v. Brooks, 2 Bush, 137.

Where a reward is offered for lost property the finder when he complies with the terms of the offer has a right to retain the property until the reward is paid him. Wentworth v. Day, 8 Metc. 352; Baker v. Hoag, 7 Barb. 113.

Where a reward is claimed by several jointly, it is not necessary to show that all rendered the same service; it is sufficient if each rendered a part of the service contributing to the result. Goldsborough v. Cradie, 28 Md. 477.

Where but one sum is offered, and several by separate acts contribute to the conviction they are entitled to an equitable apportionment. Fargo v. Arthur, 43 How. Pr. 193.

VOL. XXVI-2

Stein v. Hauck.

Where a public reward was offered for the recovery of a parcel of lost bank notes, it was held that the finder of a part was entitled to a pro rata proportion of the reward. Symmes v. Frazier, 6 Mass. 344. Any other construction," say the court, "would in most cases tend to convert an honest finder of lost or stolen property into a fraudulent concealer of it."

Who bound by offer.-The inhabitants of a town cannot be legally assessed to pay a reward offered by vote of the town for the conviction of a murderer who had committed the offense within the town. Towns are under no legal obligation to aid in the detection or conviction of offenders. The enforcement of the criminal law is intrusted to its appro priate officers. Gale v. Inhabitants of So. Berwick, 51 Me. 194. But otherwise, where the offer is authorized by statute. Janvrin v. Exeter, 48 N. H 83; s. c., 2 Am. Rep. 185.

An offer of a reward for the apprehension and conviction of the perpetrator of a specified crime is binding, although made by one having no interest in the matter. It is not void as against good morals or public policy. Furman v. Parker, 21 N. J. L. 310.

Revocation. An offer of a reward not expressly limited in time is not to be regarded as unlimited; it operates only for a reasonable time. Thus, where the mayor of Boston published an advertisement, for a week, reciting that there had been frequent incendiary attempts in that city, and offering a reward for the apprehension and conviction of any such offender, held, that the offer ceased to be operative after three years and eight months. Loring v. City of Boston, 7 Metc. (Mass.) 409. But in Matter of Kelly, 39 Conn. 159, it was held that the offer was not barred by lapse of time, but was binding until the Statute of Limitations had run against the crime.

The offer of a reward is a proposal merely, and not a contract, and may be revoked at pleasure; but if one before revocation performs the service he is still entitled to recover. Harson v. Pike, 16 Ind. 140. It is not necessary that notice should be given to the party offering, that his offer is being acted upon. Id. See, also, Symmes v. Frazier, 6 Mass. 344; Morse v. Bellows, 7 N. H. 549; Shuey v. U. S., 92 U. S. 73.

In a proceeding to compel the payment of a reward offered by a governor for the apprehension of a fugitive from justice, the defense set up that before said reward was offered the plaintiff had apprehended the fugitive, and that said fugitive had been delivered and was in jail when the proclamation of the reward was delivered to the public printer for publication; that, on learning these facts, the proclamation was withdrawn, and that the plaintiff did not know, when he apprehended and delivered the fugitive, that a reward had been offered. Held, that when the proclamation was signed and entered on the executive Journal the offer was complete, and that those acts amounted to a publication; that as the evidence was not clear that the delivery to the jailer was made before such signing and delivery, the plaintiff could recover. The Auditor v. Ballard, 9 Bush, 572; 15 Am. Rep. 728.

STEIN V. HAUCK.

(56 Ind. 65.)

Ancient lights.

An easement in light and air, to be supplied to the ancient windows of one from the premises of another, cannot be acquired by use or prescription, in the State of Indiana.

*See, also, Keats v. Hugo, 15 Am. Rep. 80; Mullen v. Stricker, 2 id. 879; Powell v. Sims, 13 id. 629.

A

CTION to establish an easement in light. The opinion states the facts.

N. S. Givan and W. H. Matthews, for appellant.

J. Schwartz, for appellee.

BIDDLE, J. This action is brought by the appellee, to establish, by use, an easement in light, to be supplied to his ancient windows from the premises of the appellant. The complaint alleged such use, uninterruptedly, during twenty years, acquiesced in by the vendor of the appellant, and by the appellant after his purchase; and that after such use and acquiescence, the appellant erected upon his own premises a frame structure, which effectively and permanently obstructed the light from the windows of the appellee. The sufficiency of the facts alleged in the complaint to maintain the action was questioned by a demurrer, which was overruled. Exceptions were taken to the rejection of certain evidence; also to the giving of certain instructions to the jury, and to the sufficiency of the evidence to sustain the verdict, upon all of which questions are presented for our decision; but the fundamental question in the case, which must be answered before the rights of the parties can be ultimately settled, continually recurs to us, namely: Can an easement in light and air, to be supplied to the ancient windows of one, from the premises of another, be acquired by use or prescription in the State of Indiana? We, therefore, proceed at once to the examination of this question.

We read much in our books about the common-law right in England, of an easement, acquired by use or prescription, in light or air coming to ancient windows from the premises of another; but when the history of the right is carefully studied, it will be found that it was sometimes disputed. It was denied in the case of Bury v. Pope, 1 Cro. Eliz. 118, and, under the reign of Charles II, in the case of Palmer v. Fletcher, 1 Lev. 122. It was modified by the custom of London, and, indeed, was never indisputably settled until it was established by the statute of 3 William IV, ch. 71, § 3. But assuming that such an easement was a commonlaw right in England, before the statute of William IV, the question, whether it is a common-law right in the State of Indiana, has never before been directly presented to this court. In the case of Keiper

Stein v. Hauck.

v. Klein, 51 Ind. 316, the question was incidentally noticed; but that case turned upon the question, whether a certain deed conveyed such an easement by implication; not whether it could be acquired by use or prescription. And it has been held that the common law, as a system, is adopted in this State, except such parts of it as are inconsistent with our institutions, or not suited to the condition of the country. In the case of Robeson v. Pittenger, 1 Green's Ch. 57, it is held that when ancient lights have existed for upward of twenty years, undisturbed, the owner of an adjoining lot has no right to obstruct them; but this case was decided mainly on the authority of Story v. Odin, 12 Mass. 157, which has long ceased to be the law of Massachusetts; for in the case of Randall v. Sanderson, 111 Mass. 114, decided more than sixty years later, it is expressly held, that "It is the established law, in this Commonwealth, that an easement of light and air cannot be acquired by prescription," in support of which many cases are cited. In the case of Durel v. Boisblanc, 1 La. Ann. 407, where the easement of light to a window was coupled with the right of way through a passage, it was held that they could not be obstructed; but the decision was expressly placed upon the ground that these servitudes were visible and palpable, and, on examination of the property, the purchaser must have seen them-the court remarking that "could we believe that he was ignorant of them, a very different case would have been presented." In the case of Gerber v. Grabel, 16 Ill. 217, it is held, that "Twenty years' uninterrupted and unquestioned enjoyment of lights, constitutes them ancient lights; in the enjoyment of which the owner will be protected." But CATON, J., in a separate opinion, evidently doubts the wisdom of the rule, and TREAT, C. J., dissented. These three cases are all the decisions we can find, and these three States-New Jersey, Louisiana and Illinois-the only States which have adopted the English rule concerning easements in light and air, acquired by use or prescription, and the case in Illinois is the only one fully in accord with the English decisions, and is based upon a full adoption of the English common law by a statute of the State.

Against these decisions we have many American authorities. In Napier v. Bulwinkle, 5 Rich. 311, it is held, that "In the case of a window, which gives no cause of action to the owner of the space over which it looks, he is not bound to obstruct within twenty years to prevent the acquisition of a right; and without some other