and respectable persons, especially females and orphans, as they in their discretion shall think of," was held to fail if the executors renounced the trust and discretion reposed in them. See also Lepage v. McNamara, 5 Iowa, 124, before stated. So in Zeisweiss v. James, 63 Penn. St. 465 (1870), it was held that although a devise to indefinite charities may be good, if a trustee be named, clothed with discretionary power to carry out the general purposes of the testator, yet if such trustee die or resign, and there is no provision made by the testator for the continuauce of the trust, the charity must fail, since the discretion of the first trustee cannot be assumed by the court, nor reposed in a trustee of their selection: and Fontain v. Ravenel, 17 How. 369, was fully approved, on p. 469. Bristol v. Bristol, 53 Coun. 242, is also directly in point. The language of Judge GRAY, in the exhaustive opinion in Jackson v. Phillips, 14 Allen, 576, appears to be in conformity with this view, in which he says: "The second class of bequests which are disposed of by the King's sign manual, is of gifts to charity generally, with no uses specified, no trust interposed, and either no provision for an appointment, or the power of appointment delegated to particular persons who die without exercising it. Boyle on Charities, 238, 239; Attorney-General v. Syderfen, 1 Vern. 224; s. c. 1 Eq. Cas. Abridge. 96; Attorney-General v. Fletcher, 5 Law. J. (N. S.), Ch. 75.”

No doubt if the trustee accepts and is still living, a court of equity could compel him to execute the trust and make a selection, and would not allow him to keep the fund himself: Bartlett v. Nye, 4 Met. 378; Tainter v. Clark, 5 Allen, 66. They could order him to report a scheme as in Cook v. Duckinfield, 2 Atk. 562; Pocock v. Attorney-General, 3 Ch. Div. 342, and many other cases. But they could not remove him and appoint another trustee to do it, nor do it themselves, upon a scheme suggested by the Attorney-General. They would have no right to substitute another man's discretion for that of the trustee named, whether it be that of a new trustee, a master of chancery, an attorney-general, or the court. It is clementary law that a power of trust which is purely personal cannot be exercised by another: Tainter v. Clark, 13 Met. 220; Down v. Worrall, 1 M. & K. 561. There being, therefore, no method in America

by which a fund so given can be applied to any charitable purpose, and the trustee named not having any personal interest in it, it must go to the heirs at law or next of kin, as intestate

estate.

Boston.

EDMUND H. BENNETT.

RECENT AMERICAN DECISIONS.

Supreme Judicial Court of Maine.

WOODMAN v. PITMAN AND OTHERS.

Neither the right of traveling upon the ice of a river affected by the tide, nor the right of taking ice therefrom, is an absolute property right in any person. Both are natural or common rights, belonging to the public at large. Though such rights are theoretically open to all, those persons who first take possession of them are entitled to their enjoyment without interference from others, such rights being the subjects of qualified property by occupation.

Each right is relative or comparative, and, when conflicting with the exercise of the other right, is itself to be exercised reasonably. What would be a reasonable exercise of the one or the other, at any particular place, must depend largely upon the benefits which the people at large are to receive therefrom.

The right of passage over the ice for general travel is not the paramount right at such a place as the Penobscot river at Bangor, and for some distance below, where the great body of the ice is annually harvested for the purposes of domestic and foreign trade; the traveler's privilege at such place being of trifling consequence, compared with other interests conflicting with it, and beset with difficulty and danger during the ice-cutting season.

It is the duty of those who appropriate to their use portions of a public river for ice-fields to so guard their fields, after they have been cut into, as not to expose to danger any persons who may innocently intrude upon them.

Although the defendant may have been in fault in leaving his ice-field unprotected against accident, yet, where the plaintiff's servant, knowing the customs of ice-gatherers, willfully left the usual driven track, and drove over a bank of snow by the side of the defendant's ice-field, knowing that he was going upon an ice-field, and that it was dangerous to do so, he was guilty of contributory negligence, and the plaintiff cannot recover for injuries to his property.

ON motion by defendants from Supreme Judicial Court, Penobscot county.

Action on the case to recover damages to plaintiff's property because of alleged negligence of defendants. The verdict was in favor of the plaintiff, and the defendants filed a motion. for new trial. The opinion states the material facts.

C. P. Stetson, for plaintiff.

Wilson & Woodward, for defendants.

PETERS, C. J.-This case largely depends for its solution upon what may be the extent of the right to harvest ice from our large rivers, compared with the conflicting right of traveling upon such rivers during the winter season. This is an interesting topic of inquiry, in view of the importance which ice has lately assumed as a merchantable commodity, and is a branch upon which the law has as yet hardly passed beyond a formative period. The inexhaustible and ever-changing complications in human affairs are constantly presenting new questions and new conditions which the law must provide for as they arise; and the law has expansive and adaptive force enough to respond to the demands thus made of it, not by subverting, but by forming new combinations and making new applications out of its already established principles, the result produced being only "the new corn that cometh out of the old fields."

Neither of the rights which seem in conflict in the present case, that of harvesting ice and that of traveling upon the ice, is absolute in any person. No one has any absolute property in either. They are derived from a natural right which all have, to enjoy the benefit of the elements, such as air, light, and water, and are common or public rights, which belong to the whole community. In the Roman law they were classified as "imperfect rights." Not that all persons can or do enjoy the boon alike. Much depends upon first appropriation. One man's possession may exclude others from it. Says Blackstone (2 Comm. 14): "These things, so long as they remain in possession, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seize and enjoy them afterward." They are the subjects of qualified property by occupation: 2 Kent, Comm. 348.

Each right is in theory, speaking generally, relative or comparative. Each recognizes other rights that may come in its way. Each must be exercised reasonably. And what would be a reasonable exercise of the one or the other, at any particular place (for, clearly, there would be a difference in the relative

importance of the different rights in different localities), depends in a large degree upon the benefits which the community derive therefrom. The public wants and necessities are to be considered. The two kinds of franchise belong to the people at large, are owned in common, and the common good of all must have a decisive weight on the question of individual enjoyment.

These, and all other public rights, and the relation that shall subsist between them, when not thereby trenching upon congressional jurisdiction, may be regulated by the legislature. The legislature is the trustee of the public rights for the people. And, as such agent or trustee, the legislature of this State has gone a great way in abridging an individual enjoyment of some of the common rights and privileges possessed by society, when the legislation has presumably inured to the common good. It authorized the changing of the channel of the Saco river, although the effect of the diversion was to impair the value of a good deal of private property (Spring v. Russell, 7 Me. 273); has allowed private interest to be subserved to the injury of other private interests, by permitting dams and mills to be erected which prevented the flow and ebb of the tide, upon the ground that the public as a whole were to be benefited thereby (Parker v. Cutler Mill-Dam Co., 20 Me. 353); has granted to a single individual, the exclusive right of navigating Penobscot river above the tide with steamers, for a period of 20 years, for the consideration of improvements to be made in the navigation of the river by the grantee (Moor v. Veazie, 31 Me. 360; 32 Id. 343; 14 How. 568). These are illustrations of the legislative power in such matters.

The legislature has the constitutional authority, no doubt, to provide rules regulating the possession and cultivation of the ice-fields upon our navigable rivers, where the tide ebbs and flows, at all events so far as the business is carried on below low-water line, and for the adjustment of conflicting interests which may affect that privilege. If it omits to do so, such matters necessarily become the subjects of judicial interpretation. While the judicial is not co-extensive with the legislative jurisdiction upon the questions, there can be no doubt that it is within the scope of judicial authority to determine the manner in which such public privileges may be best enjoyed by the

public, provided that any judicial regulation which may be attempted shall do no violence to existing law.

The law is subject to slow and gradual growth. A remarkable instance of the development of the law is seen in the doctrine unanimously adopted by the courts in this country that a river may be considered navigable although not affected by a flow of the tides from the sca. The common law was otherwise. Lord Hale, the great publicist, knew no such doctrine. Legislation did not create it. The courts felt obliged to adopt the interpretation, as a new application of an old rule, from an irresistible public necessity. The court of no State has probably ventured so far as this court has in maintaining that small streams have floatable properties belonging to the public use. Our climate and forests, together with the interests and wants of the community make the doctrine here reasonable,―a reasonable interpretation of the law; while in some of the States, where less necessity for the doctrine exists, it is considered by their courts to be untenable, as subversive of private rights. So, in handling the somewhat novel and important questions now pending before us, we are certainly at liberty to construct out of admitted legal principles such reasonable rules as will meet the requirements of the case.

The importance to the public of the ice privileges within the territory before named is incomparably greater than is that of traveling on the ice. Winter river-roads are of much less consequence at the present day than formerly. In the earlier days the natural ways were the only ways for travel, and upon the large ponds and lakes, and upon the rivers in remote places, the same necessity may even now exist. But at Bangor, and for some distance below, the principal area of Penobscot river from which the ice-cuttings have been for some years customarily taken, the public have no need of a way on the ice. The traveler receives much more than an equivalent for any deprivation of the natural passage, in the use of the roads on the banks of the river, at all times kept passable at the public expense. Roads over the ice are rarely suitable and passable,-only occasionally so. The access to them from the shores is difficult, if not dangerous, where the tide, as it does here, ebbs and flows. Permission must be had of the riparian proprietor to cross his