heritance to a particular spouse constitutes his or her separate property. By giving both, in a separate way, a right of action, this implies it is to be his or her separate property. But the principle above noted by us would, if applied, have cut her out along with her husband.

MARRIAGE AGREEMENT BY ONE SPOUSE TO PAY THE OTHER MONEY FOR ACTS GIVING GROUND FOR DIVORCE.-In Bowden v. Bowden, 167 Pac. 154, it is held by Supreme Court of California, that an agree ment by a husband in consideration of his wife dismissing her suit for divorce, that he would pay her $3,000 "should he at any time in the future cruelly treat, abandon, desert or cease to live with" her, or "commit any act giving her cause for divorce," was a valid contract and based on a good consideration.

The court concedes that the authorities go to show that an antenuptial agreement to such effect is without consideration, but says this is upon the theory that the relationship on which the parties are about to enter presumes that he will do nothing that such a contract provides against.

Where, however, there is resumption of a relation that has been violated, the consideration is in "re-establishment of the family and to make better provision for the wife's support" in case there is repetition of a prior offense.

Speaking of the case at bar, the court said: "What the contract does is to reserve to the wife without impairment all of her marital rights, to waive upon the part of neither their legal or equitable rights for any wrong which either might commit against the marriage status, but simply to impose upon the husband the duty, in addition to that which the law imposes, of observing his marital vows and obligations, or, failing to do so, to pay to the mistreated wife something in addition to that which the law would award to her in her action based on such mistreatment, either for divorce or for separate maintenance."

We fail in this to distinguish the case from a case of antenuptial contract. If he mistreats her, he violates her marital rights and for that her right is to demand full satisfaction at law. Can she, if full satisfaction is claimed and awarded, be said to have given anything as consideration for the promise by the husband? Furthermore, if she is to get something in addition to this full satisfaction which the law awards, is not the agreement contrary to public policy, in that she is encouraged to bring about a divorce in the future? It cannot be said the resumption of the relation constitutes

the consideration. That is but the inducement to the promise being made. Though it be a moving cause, it cannot be the predicate for an illegal contract. The right way, we think, to look at this contract is its effect on the continued status, and, if it is contrary to public policy in an antenuptial contract, how may that be distinguished in one providing for a resumption of marital relations after a break? The court cites in support of its view, Terkelsen v. Petersen, 216 Mass. 531, 104 N. E. 351; Duffy v. White, 115 Mich. 264, 73 N. W. 363; Hite v. Hite, 136 Ky. 529, 124 S. W. 815. This last case bases consideration on reconciliation by saying: "A contract for the re-establishment of a ruined home is one which equity is swift to approve." This is true, but it ought not to approve of what will stand as an inducement to ruin the re-established home. If the contract provides for an unconditional settlement or payment in re-establishment of the ruined home, that would be another thing.

PRIOR DECI

COURTS-OVERTURNING SION BY MINORITY OF A COURT.-The Supreme Court of Missouri, sitting in Division No. 2, composed of four of the seven judges of the court, by a vote of two judges, in which a third "concurs in result," and one judge dissents, undertakes to declare that a rule consistently adhered to by the court "should no longer be recognized as in existence." Claxton v. Pool, 197 S. W. 349.

This case is referred to as concrete illustration of a defect in organization, which operates against certainty in the creation of binding precedents emanating from a tribunal that should settle the law of a state.

Under Missouri system, its Supreme Court sits en band with its full force of seven judges and in Division 1 and Division 2, respectively composed of three and four of these judges.

In the instant case it was ruled, that a husband is not, because of "the spirit and general trend of legisaltion" responsible for the torts of his wife, this spirit and trend being exemplified in the Married Woman's Acts. But notwithstanding the existence in Missouri for many years of an act of this character, in many cases its Supreme Court has held that the common law rule of "the personal vassalage" of the wife to her husband survived that act.

We have no quarrel with the ruling in the instant case. It ought long ago to have been declared that the common law as to this was unsuited to our condition and opposed to the principle underlying Married Woman's Acts, but we do think that, if a court has committed its

self the other way for a long period of time, it ought to take more than a minority of the judges thereof to set that rule aside. At least a majority en banc would seem necessary.

Let us ask what respect has the new ruling? Would the other division of the court feel bound by it? Or would the court sitting en banc feel obliged to respect it, notwithstanding a majority should believe it wrong? Or that the doctrine stare decisis has not been efficiently displaced? And how is the Missouri bar able to say how in the very court itself this latest pronouncement will be regarded? Suppose that the uniform ruling by this tri bunal had been in regard to something amounting to a rule of property, could a minority, sitting in Division, displace it? If so, contracts entered into would become very uncertain as to fluctuation in judicial decision.

EASEMENTS OF NECESSITY

Cases have frequently reached courts of last resort of our various states wherein the owner of two adjoining estates, subjects one of such estates to a right of way in favor of the other of the estates, and subsequently conveys the quasi-dominant estate, without any reference to such right of way, retaining the quasi-servient estate, and the question has arisen whether or not such easement in favor of the dominant estate continued to exist, after the severance of the estate. Courts have uniformly held that the dominant estate, under such circumstances, has an easement appurtenant to it over the servient estate, when no other way exists whereby the owner of such dominant estate can reach a public highway:1 and this rule obtains although the dominant estate may not be surrounded by the servient estate, but is partly bounded by the lands of strangers.

The reason of the rule is that the grantor, conveying such lands, is presumed to in

(1) Gilfoy v. Randall, 274 Ill. 128; Bass v. Edwards, 126 Mass. 445; Whitehouse V. Cummings, 83 Me. 91; Pleas v. Thomas, 75 Miss. 495; Smyles v. Hastings, 22 N. Y. 217; Brown v. Kemp, 46 Ore. 517.

tend to grant an estate of practical value and to grant those rights necessary for the beneficial use and enjoyment of the premises.2

A more serious question arises, however, when the owner of two heritages, one of which has been subjected to an easement in favor of the other, grants, by warranty deed, that part of his estate which has been subjected to the easement, the quasi-servient estate, and retains the quasi-dominant estate. Under such circumstances, when no other right of way to and from a public highway to the lands conveyed by the grantor exists, does a right of way by necessity over the lands granted exist appurtenant to the lands reserved by the grantor?

It is generally held that one conveying lands by warranty deed, without limitation or exception, covenants that no encumbrances of any kind exist upon such lands: and courts further hold that, if a private right of way exists over such lands, such covenant against encumbrances is broken.

One conveying lands by warranty deed, therefore, warrants that no private ways exist thereon. It would appear, therefore, on theory, that the grantor retaining the socalled dominant estate, having warranted that the lands conveyed were clear of encumbrances, an easement over such lands in favor of the dominant estate, retained by the grantor, would not exist; and a grantor, under such circumstances, should be estopped to affirm the existence of an easement over the lands granted.

The doctrine of the intention of the parties, as applied in those cases wherein the grantor conveyed the quasi-dominant estate, and retained the quasi-servient estate, cannot be applied in this case as the inten

(2)

Morrison v. Marquardt, 24 Ia. 35; Evans v. Dana, 7 R. I. 306.

(3) Butt v. Riffe, 78 Ky. 352; Hubbard v. Norton, 10 Conn. 423; Hyck v. Andrews, 113 N. Y. 81; Penn v. Schmisseur, 77 Ill. App. 526; Young v. Gower, 88 Ill. App. 70; Sherwood v. Johnson, 28 Ind. App. 277; Rawle on Covenants for Title, 5th Ed., Sec. 79.

tion of the grantor in the instant case is best indicated by the warranty contained in his deed.

A number of cases have held that such a grantor cannot derogate from his grant, and that an easement of necessity is not impliedly reserved in favor of the quasi dominant estate retained by the grantor.* And the only exception noted is that such an easement does exist, if the estate would be rendered valueless without it.

What appears to be the law of a majority of jurisdictions in which such cases have arisen, however, is that a way by necessity exists by implication, whether or not the servient estate entirely surrounds the dominant and regardless of whether such way is strictly necessary.

In many of the cases holding this doctrine, it is based on the theory that if the easement is of such a nature as to be apparent to the ordinary observation of a purchaser, such purchaser is presumed to have purchased with notice of the easement and is estopped to deny the existence of it; and this doctrine has been extended to buildings using a common stairway. This doctrine, it would appear, is an entire departure from the rule of easement of necessity and the reasons underlying that rule. It disregards the covenants of the grantor and nullifies the warranty contained in the warranty deed, and, in so far as an easement of this nature is concerned, it, in

(4) Walker v. Clifford, 128 Ala. 67; Meredith v. Frank, 56 Ohio State 479; Covell v. Bright, 157 Mich. 419; Toothe v. Bryce, 50 N. J. Eq. 589; Shoemaker v. Shoemaker, 11 Abb. (N. C.) 80; Sloat v. McDougall, 30 N. Y. (S. R.) 912.

(5) Brigham v. Smith, 4 Gray 297, 64 Am. Dec. 76; Collins v. Prentice, 15 Conn. 39, 38 Am. Dec. 61; Lawton v. Rivers, 2 McCord 445, 13 Am. Dec. 741; Rollo v. Nelson, 34 Utah 116; Zell v. First Universalist Society, 119 Pa. 390; Manbeck v. Jones, 190 Pa. 170; Steinke v. Bentley, 6 Ind. App. 663; Moore v. White, 124 N. W. (Mich.) 62; Willey v. Thiving, 68 Vt. 128; Ewen v. Baker, 98 Ill. App. 271.

(6) Rollo v. Nelson, 34 Utah 116; Ewen V. Baker, 98 Ill. App. 271.

(7) Ingals v. Plamondon, 75 Ill. 118.

substance, applies the doctrine of "caveat emptor" to the grantee.

east.

It would appear that the rule of easement of necessity as originally applied, has, in many jurisdictions, developed into a rule of easement of convenience, and the extent to which courts have at times gone in the application of this doctrine of easement of necessity is well illustrated by the case of Martin v. Murphy. In that case, Martin was the owner of a corner lot fronting upon two streets, and facing Murphy owned a lot adjoining Martin's lot on the south and having a street frontage on the east. There was no alley touching either of the lots. Both of the lots were formerly owned by one Briggs, who had built a sidewalk the entire length. of both lots on the western and rear edge thereof, and for many years, the occupants of the lot owned by Murphy, situated on the south, used this walk across Martin's lot for the purpose of hauling ashes, garbage, etc. to the street contiguous to Martin's lot on the north. In the conveyances of these lots to Martin and Murphy, no reference was made to the passageway. Martin finally obstructed the passageway and Murphy filed a bill in equity to establish an easement across the premises of Martin. The Supreme Court of Illinois held that an easement existed over Martin's lot and appurtenant to Murphy's lot on the sole ground that when Martin bought the lot owned by him, he had notice of the easement and was estopped thereafter to deny its existence. There is very little of the element of necessity involved in this case, as both of the lots involved had frontage upon a public street on the east, and it appears to establish a doctrine of easement of convenience, solely, rather an easement of necessity.

There is no logical reason for applying the rule that an easement of necessity ex

(8) Powers v. Heffernan, 233 Ill. 597; Ingals v. Plamondon, Supra; Lampman v. Milks, 21 N. Y. 505.

: (9) 221 Ill. 632.

But the carrier is not responsible for the consequences of following the instructions of its employes, unless such instructions are acted upon seasonably. A railroad will not be bound by statements of a ticket agent made several weeks before the ticket is bought and not referred to at the time of the purchase.3

While a carrier is responsible for misinformation given by its agents, it is not liable where the passenger boards the wrong train without receiving information or directions from any employe of the railroad. No affirmative duty rests upon the railroad to see to it that passengers take the -proper trains. The duty of action in this respect rests upon the passenger and not the carrier. Unless already advised, it is the duty of the passenger in every instance to inform himself by proper inquiry as to the route, destination and stopping places of the train he boards. If he chooses, without making inquiry of the railroad em

(1) New York, L. E. & W. R. v. Winter, 143 U. S. 60; Burnham v. Grand Trunk R., 63 Me. 302, 18 A. R. 220; Central R. & Bkg. Co. v. Roberts, 91 Ga. 513, 18 S. E. 315; Alabama G. S. R. Co. v. Heddleston, 82 Ala. 218, 3 So. 53; Lake Shore & M. S. R. v. Pierce, 47 Mich. 277, 11 N. W. 157; Gulf, C. & S. F. R. v. Moorman (Texas Civ. App.), 46 S. W. 662; Texas & P. R. Co. v. Armstrong, 93 Tex. 31, 51 S. W. 835; Illinois C. R. v. Harper, 83 Miss. 560, 64 L. R. A, 283; Kansas City, F. S. & M. R. v. Little, 66 Kans. 378, 61 L. R. A. 223; Church v. Chicago, M. & S. P. R.. 6 S. D. 235, 26 L. R. A. 616; Robertson v. Louisville & N. R., 142 Ala. 216, 37 So. 831; Sira v. Wabash R. R., 115 Mo. 127, 37 A. S. R. 386.

(2) St. Louis, S. W. R. v. White (Texas), 89 S. W. 746. 2 L. R. A. (N. S.) 110.

(3) Atchison, T. & S. F. R. v. Cameron, 66 Fed. 709.

upon the wrong train, he has only himself to blame and cannot hold the railroad responsible for failing to restrain him from making this mistake.*

"It is the duty of a person about to take passage on a railroad train to inform himself when, where and how he can go or stop, according to the regulations of the railroad company; and if he makes a mistake not induced by the company, against which ordinary care in this respect would have protected him, he has no remedy against the company for the consequences."

(4) Beauchamp v. International & G. N. R. Co., 56 Tex. 239, 9 A. & E. R. R. C. 307; Missouri, K. & T. R. Co. v. Dawson, 29 S. W. 1106; Texas & P. R. R. Co. v. Ludlaw, 57 Fed. 481; Atchison, T. & S. F. R. Co. v. Gants, 38 Kans. 608, 5 A. S. R. 780; Wills v. Alabama, G. S. R. Co., 67 Miss. 24, 6 So. 738; Deitrich v. Pennsylvania R. Co., 71 Pa. St. 432, 10 A. R. 711; Pittsburgh, C. & S. L. R. Co. v. Nuzum, 50 Ind. 141, 19 A. R. 703; Platt v. Chicago & N. W. R. Co., 63 Wis. 511, 23 N. W. 412; Chicago, St. L. & P. R. Co. v. Bills, 104 Ind. 13, 3 N. E. 611; Noble v. Atchison, T. & S. F. R. Co., 40 Okla. 534, 46 Pac. 483; Illinois C. R. Co. v. Harper, 83 Miss. 560, 64 L. R. A. 283; Boehm v. Duluth, S. S. & A. R. Co. (Wis.), 65 N. W. 506; Church v. Chicago, M. & S. P. R. Co., 6 S. D. 619, 26 L. R. A. 616; Hall v. Memphis & C. R. Co., 15 Fed. 65; Evansville & T. H. R. Co. v. Wilson, 20 Ind. App. 5, 50 N. E. 90; St. Louis, K. C. & M. R. Co. v. Marshall, 78 N. W. 610, 18 A. & E. R. R. C. 248; Pittsburgh, C. C. & S. L. R. Co. v. Lightcap, 7 Ind. App. 249, 34 N. E. 243; Albin v. Gulf, C. & S. F. R. Co. (Texas), 95 S. W. 589; Baltimore & Ohio R. Co. v. Norris, 17 Ind. App. 189, 60 A. S. R. 166; Louisville & N. R. Co. v. Maxwell, 192 Ala. 47.