362 HARVARD LAW REVIEW. his remaining property. The absence of the word " heirs " does not limit the right to the life of the grantor. Ring v. Walker, 33 Atl. Rep. 174 (Me.). Courts in order to carry into effect the intention of the parties, have before this adopted the conception that land contains within itself certain undeveloped rights, as rights of way, etc., capable of exception in this unperfected shape, and capable of sub- sequently springing into full existence. Winthrop v. Fairbanks, 41 Me. 307 ; Karnniller V. Krotz, 18 Iowa, 359; Botvcn v. Connor, 6 Cush. 132. The difficulty with the case seems to be in calling the right excepted a profit h prendre, and so capable of inherit- ance and assignment, as distinguished from an easement in gross. The language of the deed seems decisive against considering it as an exception of the land itself on which the sluice-way was to be built. Property — Percoi.attng Water — Right of Diversion — Motive. — Water passed by percolation from the defendant's land to that of plaintiff, and supplied a large spring on the plaintiff's land. The defendant, with the intention of injuring the plaintiff, and so to induce him to buy out his land, or make him some other compensa- tion, commenced operations, the effect of which would be to divert the percolating water away from the plaintiff's spring. Held, affirming [1895] ^ ^^- ^A% defendant has an absolute right to appropriate or divert the water percolating through his soil, irrespective of his motive in so doing. The Mayor, &^c. of Bradford v . Pickles, [1895] App. Cas. 587. When this point has come up for direct decision in this country, in regard to the use of property, it seems generally to have been decided, in accordance with the doc- trines of the principal case, that the malice or negligence of the defendant is imma- terial. Chatfieldy. Wilson, 28 Vt. 49; Elster v. Springfield, 30 N. E. Rep. 274; Phelps v. Mfowlen, 72 N. Y. 39; Mahan v. Brown, 13 Wend. 261. But see, contra, Cheslcy v. King,'] Me. 164; Greeiileafv. Prancis, 18 Pick. 117; Wheatley v. Baugh, 25 Pa. St. 528; Haldeman v. Bruckhart, 45 Pa. St. 514; Bassett v. Company, 43 N. H. 569; S7vett V. Cntts, 50 N. H. 439; Roath v. Driscoll, 20 Conn. 533; Pan ton v. P/olland, 17 Johns. 92 ; Bartlett v. O'Connor, 36 Pac. Rep. 513. See also Angell on Watercourses (6th ed.) Ii4/-ii4<7. It would seem that whether one's right to appropriate percolating water is absolute or merely relative is a question, the determination of which, as in the case of malicious interference with business, depends largely on policy. Property — Prescriptive Right to Repairs. — Payment by owners of land for more than twenty years of an annual sum, toward repairs on a dam situated on a stranger's premises, subjects the land to a servitude to pay that sum annually. Whitten- ton Mfg. Co. v. Staples, 41 N. E. Rep. 441 (Mass.). See Notes. Sales — Condition Restricting Objection to Title — Specific Perform- ance Refused. — The defendant, at auction, bought of the plaintiff a leasehold interest in certain land, paying ;i^30 deposit. One condition of the sale was that the purchaser should " not make any requisition or objection " in respect to a certain inter- mediate title, but should assume a good title in the assignees, under whom vendor claimed, for the residue of the term. The defendant on examination found plaintiff's title worthless, and refused to go on. This is an appeal from an action for specific performance brought by the vendor. Pleld, that since plaintiff could not convey any title it would be manifestly unjust to decree specific performance, though the contract may be good enough in law. Nor will the deposit be recovered, as there is no per- sonal equity entitling the defendant to such a decree. The parties must abide by their legal remedies. Scott v. Alvarez, [1895] 2 Ch. 603. This decision, though without an exact precedent, seems sound. The purchaser entered into this contract fully warned of the condition of the vendor's title, and no equity has arisen to entitle either to a decree. The court is sound in allowing an inquiry into the intermediate title when specific performance is demanded. Jo7ies v, Cliff'ord, 3 Ch. D. 779. The deposit would not be recoverable at law, as there has been no fraud nor breach of contract on the part of the vendor. Corrall v. Cattell, 4 M. & W. 734. It seems probable, indeed, that the vendor could recover damages from the vendee for his breach, though the amount would ba inconsiderable. Statute of Limitations — Negligence of Public Officer — When Action Accrues. — A register of deeds recorded a mortgage from A. to B., but failed to index it, and in a few months went out of office. After more than six years, which was the period of limitation, C. advanced money on the same land, supposing from the index that it was unencumbered. The land was sold to pay the prior mortgage, A. became bankrupt, and C. sued the register. Held, the breach of duty was a complete cause of action, and, as the register could not commit a breach after the end of his term, the
