Part 28

While a land owner is not liable for a nuisance created on his land by a stranger, whose acts cannot in any way be attributed to him, he is liable for a nuisance resulting from a licensee's use of his property. Thus, if a licensee by attaching a wire to a chimney converts it into a nuisance to passers-by, the land owner who knowingly permits the nuisance to continue will be liable for the damages that result. Nor can one who has fouled a stream or the air, or who indulges in disturbing noises, defend himself for doing these things by showing that others did them before he began.

As a person acts at his peril in maintaining a nuisance, so is the owner of trespassing cattle liable for all the harm done by them, whether he knows of their disposition to do harm or not. But he is not liable for harm done by them while they are driven along the highway without negligence on the driver's part; nor is he liable for mischief done by them to the person or personal property of one at other times without knowledge of their viciousness or other proof of negligence. Nor is he liable by the common law as an insurer against all damage done by them when they escape from his land.

When vicious animals are kept for any purpose and are a menace to human beings they are a nuisance. Hence, they may be killed without incurring liability, and should they do damage their owner or responsible keeper must answer for it. If the animal be a vicious dog, the owner must exercise a degree of care commensurate with the danger to others following his escape from custody, and must secure it from injuring anyone who does not unlawfully provoke or intermeddle with the animal.

By the early common law a person who started a fire, even for a needful and lawful purpose, was responsible for the consequences. This rule has been modified with time. "A person," says Burdick, "does not start a fire on his land at his peril. If it spreads beyond his premises and harms others his liability for the harm must be grounded on his negligence. The same is true of his liability for electricity escaping from his control. In both cases the care he must exercise in guarding the dangerous element varies with the hazard to which it exposes others."

The liability of a person who keeps explosives is not absolute, unless he is maintaining a nuisance. Otherwise he is liable only when negligent. If he is ignorant of the character of the explosive, and without fault in not knowing, his duty of care is fixed by the apparent character of the article. Suppose a carrier was carrying a trunk containing an explosive of which he had no knowledge or reason for supposing was there, surely he would not be held liable if it exploded and caused injury.

The liability of a manufacturer, seller, lender, or user of things is not that of an insurer in making, selling, lending or using them. But he does incur liability whenever he fails to exercise such care as is fairly needful to protect others against the hazard in buying and using them. A druggist, therefore, who affixes a wrong label to a bottle of medicine and thereby injures a person who uses it is responsible. And the rule would apply whether the taker was the purchaser or some other person.

When persons are invited on one's premises for mutual advantage, the inviter owes the duty of ordinary care. He is not an insurer of their safety, nor need he exercise extraordinary care in guarding them from harm, unless there was unusual danger. Suppose a man had a way which persons used in going to and from his business, and he began to dig a well near the way and left the place unprotected during its construction, undoubtedly the owner would be liable. Suppose the well was a considerable distance from the way where persons did not usually go and had no occasion for going. Then he would not be liable. How far away from the road could he dig without thought of the public? The answer would depend on the facts in the case.

A somewhat different rule has been applied to children. Although a child of tender years who meets with an injury on the premises of a private owner may be a technical trespasser, yet the owner may be liable, if the things causing the injury have been left exposed and unguarded, and are of such a nature as to be attractive to children, appealing to their childish curiosity and instincts. Unguarded premises, which are thus supplied with dangerous attractions, are regarded as holding out implied invitations to children. There has been a great deal of controversy over this important rule. Those opposed say, if everywhere applied, it would render the owner of a fruit tree, for example, liable for damages to a trespassing boy who, in attempting to get the fruit, should fall from the tree and be injured. Professor Burdick, after a full review of the cases, says that the tide of judicial opinion is setting the other way. Children, therefore, who invade the premises of a person without any right are trespassers like older people. The duty of caring for children remains with their parents and guardians; and if they are injured while unlawfully going on the land of others their parents cannot visit the consequences of their neglect on the owners of the land where the injuries happened.

=Warranty.=--The law, assuming that the purchaser knows or can find out the quality and worth of things, does not make an implied warranty of them generally. The legal maxim is, "Let the purchaser beware." He must take care of himself. In many cases, though, he does obtain a warranty. He must, however, distinguish between this and a mere representation. It may be difficult to draw the line always, but it exists. A statement that is not intended as a warranty, made simply to awaken the buyer's interest in the thing for sale, is not a warranty. Nor does the law imply a warranty from the payment of a full price. Formerly, when a commodity was adulterated, it could be returned, and the courts became sorely troubled to defend an adulteration. More recently, statutes have cleared away the difficulty, and are a great protection to buyers. In many cases, doubtless, they know more about the quality and condition of the things they buy than the inexperienced salesmen who are behind the counters, so they need no protection from the law; when they do need it a warranty may serve a good purpose. In articles concerning which the seller does possess a superior knowledge, precious stones, drugs, medicines, and the like, the modern law has raised an implied warranty for the buyer's protection. In this class of cases the buyer and seller do not deal on equal terms. The vendor is professedly an expert.

In a sale of food there is no longer an implied warranty of fitness, unless the buyer expressly or by inspection acquaints the seller with the purpose of the purchase and unless it appears that the buyer relies on the seller's skill and judgment. Even then, if the buyer has examined the goods and has discovered a defect, there is no warranty. The burden of showing that he has made known his purpose and that he has relied on the seller is on the purchaser who claims the existence of an implied warranty.

There is another implied warranty, that of the seller's title, when he is in possession of the goods. This is limited to persons who are acting for themselves, and not agents, trustees, officers of the law, who are acting for others. An innocent purchaser of goods, therefore, for a good consideration obtains a good title, even from a vendee who has obtained them by fraud, as against the original vendor. This rule, though very broad, does not prevent a lawful owner from recovering his property. Thus, if a farmer's oxen were stolen and the thief should sell them as his own, and the purchaser should pay for them, nevertheless the farmer could recover them. The only exception to this rule is negotiable paper. This is made in order to surround it with greater protection.

Where goods are sold by sample there is a warranty that the goods will be like the sample, but there is no warranty of the sample itself. In one of the well-known cases hops were sold by sample, and after the hops had been delivered the discovery was made that they had been injured by heating. The buyer sued though failed to recover anything, for it was proved that they were like the sample, which had been shown several months before, and at that time the heating had not begun. As they were sold at the earlier period, their condition at the time of the delivery did not affect the sale. See Deceit; Sale.

=Will.=--A will is a disposition of one's property to take effect after his death. He is called a testator, and must possess a sound mind to make an effective will. He must be able to comprehend what he is doing. Wills are often contested on the ground that the testator's mind was feeble and that undue influence was exercised over him in disposing of his property. Married women can make wills like their husbands and so can a minor in many states.

All of the states have enacted statutes on the subject which require various things; one of the most important is the witnessing of wills. Generally, three witnesses are required. An eminent judge, not long since, made a will to please his wife leaving a large sum to found an institution. He was opposed to the thing. The astute judge had no witnesses, so he both fooled his wife and pleased himself, for his will was worthless. The statutes require the witnesses to sign in the testator's presence, who often give important testimony of his competency whenever his will is contested. As they may be called for this purpose, intelligence should be used in selecting persons to become witnesses. A witness who is competent at the time of signing does not become incompetent by reason of anything that may happen to him afterward. A witness should not be given anything in the will, for, if this is done, his act of witnessing in perhaps all the states violates the gift. Though this may be the consequence the rest of the will is not thereby impaired. The property given is either real or personal. Real property consists of land extending indefinitely upward and downward, every building thereon, every growing thing, likewise all minerals and in some cases even ice. Personal property includes everything of a movable nature. A transformation is often effected. A tree while standing on the land is a part thereof; cut down it becomes personal property.

A will should be in writing; and this in most states is a statutory requirement, to guard against the wrongs and frauds that might otherwise arise. A testator may write his own will, indeed to do so would be a good test of will-making capacity. If he is unable to write his name, he may make his mark. When this is done, there should be ample proof that he did so, for a mark can be so easily made by any one.

A person to whom real estate is given is called a devisee; the receiver of personal property a legatee. When the testator gives real estate he must have regard to the laws of the state where it is situated; in giving personal property he is governed by the law of the state where he resides, his domicil. Many a devise has been declared invalid, because the testator in devising it did not comply with the law of the state where the land was located.

The principal ground on which wills are attacked is feebleness of mind, lack of mental capacity. The question assumes this form: did the testator at the time he executed his will have sufficient mental capacity to do it. An eminent jurist, Chief Justice Redfield, has said that he must have undoubtedly sufficient active memory to perceive the more obvious relations of things to each other. Even if unable to manage his business, he can nevertheless make a will if he knows what he is doing.

Again an insane person may make a will provided this is done during a lucid interval. Many a person is insane only at times or on particular subjects and therefore may be competent to make a rational disposition of his property. Some persons have curious religious beliefs, prejudices against persons, governments and institutions, and yet these vagaries may not impair their capacity to dispose of their property in a legal and rational manner.

Another requirement of a testator is that he must declare in the presence of the witnesses that it is his last will and testament. This is called a publication of the will. Of course, his will must be completed when this is done. Suppose a person makes several wills, which one of them is effective? The last one. A will should be dated, suppose this has been forgotten, what then? The last will must be established, if possible, by other evidence. Suppose it is believed that the last will has been destroyed, and a prior will is found, can this be set up as establishing the testator's disposition of his property? It is not his last will, for he has made another.

Any person may be a devisee or legatee including married women, minors and corporations. If a bequest is made to a corporation not in existence, is it valid? By some courts this can be done, by others this power is denied to a testator. Many a well-meant bequest to a noble charity has been smitten down because there was no legal donee then existing to receive the gift. A testator may bequeath property to a trustee who shall select the objects of the testator's bounty.

The thing bequeathed must be described with sufficient clearness to identify it, nothing more is required. In some cases proper evidence may be used to identify things where the description in the will is ambiguous.

A devise of lands may consist of the entire estate or interest of the testator, or he may give the devisee a lesser interest in them. It is a common thing for a testator to devise the use of land to a person during his lifetime, and after his death the entire interest or fee to another. He usually adds a final or residuary clause to his will to the effect, that all he may have which has not been bequeathed to any one specifically shall be given to one or more persons or objects named in his will. Or, if a legacy shall lapse, that is, the person to whom it has been given shall die, or for any other reason cannot, or will not take it, it falls into the residuary portion and goes to the residuary legatee.

If a will does not contain such a clause, and there is no statute in the way, then a lapsed legacy or other property, not covered by the will, goes to such persons as the law has prescribed whenever persons die leaving no will, or, in legal language, die intestate.

A will takes effect from the testator's death and so does the validity of all the bequests. Thus, should a person mentioned as legatee die before the testator, the legacy would be invalid. But many or all of the states have provided by statute for the continuation of these in many cases. Thus, should a son, to whom his father has devised some land, die leaving children, they take it in place of their father. These statutes vary much, some limiting the substitution to the lineal heirs of the deceased, son, grandson, etc., others extending the substitutes to the collateral heirs of any devisee or legatee.

Again, by statute and common law a wife is entitled on the death of her husband to a specific portion of his property. Should he not give her as much by his will, unless he had made an agreement with her before marriage with respect to what she was to receive, she may renounce her rights under her husband's will and claim what the law would give her as if he had made no will.

A will can be revoked any time. The common way is to destroy it. Another way is to dispose during his lifetime of his property. In one of the cases a testator had indorsed on his will in his own handwriting "canceled." Though this was not signed, it was held to be a revocation. In another case a blind testator called for his will which was handed to him. He gave it back with the direction to put it in the fire. Instead of doing so another piece of paper was substituted and burned. This was a downright fraud, and the court justly held that the will had been revoked.

=Workmen's Compensation Acts.=--Who is entitled to compensation by these acts? The proper test to apply is, whether the employer possessed the power to control the other while at work at the machine or other thing from which the injury arose. Says Honnold: "In the ordinary acceptance of the term, one who is engaged to render services in a particular transaction is not an employee; the term employee embracing continuity of service and excluding those employed for a single and special transaction. It does not usually include physicians, pastors or professional nurses. It may, however, include those not engaged in manual labor, such as a school-teacher. The fact that a workman furnishes tools and materials, or undertakes to do a specified job will not prevent his being an employee. A deaconess, living and working in a hospital and receiving an annuity to cover clothing and expenses, is not an employee of the hospital," nor is an employee of a religious home for the aged who works around the house for which he is not paid any fixed amount. A director of a bank is not an employee within the meaning of the acts under consideration.

To be an employee there must be a contract of service. This is not the same thing as a contract for services. By the latter relationship one is an independent contractor and excluded from the acts. The contract of service need not be actually made, it may be implied, for example, the case of a substitute who is engaged by an employee in accordance with custom. A contract of service is not created by the relation of landlord and tenant, carrier and passenger, bailor and bailee, nor by professional service, nor by forming a partnership, nor by performing manual labor beyond the employer's control. Whether a contract of service arises from charitable work depends on the circumstances of the particular case. State employees are within these acts in some states, and excluded in others, likewise municipal employees. By the federal act the term "laborer" is used to designate men who do work that requires but little skill as distinguished from an artisan who practices an industrial art. The act includes a storekeeper, an inspector who performs no manual labor, a messenger in the government printing office, the master of a dredge, the matron of an Indian school, a transit man, a surveyor, a clerk engaged in office work, an assistant veterinarian, a laboratory assistant, a dock master.