The opinion on the petition for a rehearing merely seeks to adopt this rule more accurately to the facts and to make the division more correct. The cases as a whole are, as we said, of great moment because they settle without bloodshed that which in South America and perhaps in Europe, and perhaps in America itself at an earlier day, would have furnished the occasion for civil or international war. They are important because, as between states which locally adopt the rule of appropriation, they certainly announce that doctrine as between one another. They are important also because they establish the irrigation of the West on a sure and sound foundation, and because they recognize the rights of the state as parens patriæ to protect its citizens by suit in the federal courts.

They are important because in them, though the Attorney General of the United States intervened and asserted the paramount national claim of navigation, he evidently only did so out of an abundance of caution, and the day is certainly not far off when in the arid regions of the West the United States will recognize that in irrigation there is involved a broader public interest even than in navigation itself.

From the standpoint of equity they are important in that in them and in the exercise of its original jurisdiction the Supreme Court exercised the broadest equitable powers and did not hesitate not only to issue an injunction against a sovereign state, but to issue one in a case where a large measure of judicial supervision will be required. They are important because in them the Supreme Court of the nation recognizes to the full its importance as an American Hague Tribunal.

Above all, the cases are important because they evidence a triumph of the reign of law among us. They evidence a striking contrast to the time when the right to maintain a state militia was jealously insisted upon from a fear of and as a means of protection from the encroachments not merely of the other states but of the national government itself; and to the time when the Green Mountain boys were organized to make war on a neighboring commonwealth. They furnish a contrast to the time when, though the jurisdiction of the Supreme Court of the nation over sovereign states had been assumed, it was only to meet with successful defiance and even to a presidential taunt (Andrew Jackson's in re Worcester v. Georgia 6 Peters 515): "John Marshall has made the decision; now let him execute it." They answer the judicial foreboding: "That if the governor of the defendant state refused to discharge his duty there was no power delegated to the general government, either through the judicial department or any other department, to use any coercive means to compel him."2

The case of Chisholm v. Georgia evidenced a splendid faith that democracy would vindicate itself, and in it the court had the courage and the democratic faith to act upon the supposition that the sense of law and order would be so strong among us that even

2. Iredell, J., in Chisholm v. Georgia 2 Dallas 419 (1793); Carson "History of Supreme Court" p. 378.

sovereign states would obey judicial decrees. It was handed down at a time when the Supreme Court of the United States was without prestige and was openly condemned; but the faith of its authors has now been vindicated. It is a noticeable fact indeed that in the case which we are considering the jurisdiction of the Supreme Court of the United States was hardly questioned or denied, and that nowhere has there been heard any threat that the decision will not be obeyed. Every one, even sovereign states, has yielded to the magnificent concept of a government of laws and of laws alone, and it is upon this concept that the permanence of America and of our American democracy depends.

A. A. B.

TORTS-ATTRACTIVE NUISANCE. In the federal case of United Zinc & Chemical Co. v. Britt 42 Sup. Ct. Rep. 299 one recognizes the rule laid down in the Illinois case of McDermott v. Burke 256 Ill. 406. In the federal case the attractive nuisance was a pool of poisonous water in an abandoned cellar. Two children trespassed upon private land. and having got upon the land by trespassing were then attracted by the pool, went swimming in it and were poisoned by the water. In the Illinois case the attractive nuisance was a cable running over a sheave or grooved wheel inside a building under construction, which cable and sheave were operated by horse power and used to hoist brick and mortar to the second floor. The child was attracted to a sand pile inside the building, and once inside was attracted from that to the cable and sheave. In both cases, and for similar reasons of law, the courts held that there was no liability, the Illinois case using this language (256) Ill. 407):

"The dangerous thing must be so located as to attract them [the children from the street or some public place where they may be expected to be. An owner would not be liable if he maintained something for his own use which might be dangerous but which would only be found by children going upon his premises as trespassers."

After the decision in that Illinois case was handed down, the following cases appeared:

Thomas v. Anthony 261 Ill. 288, where a child went to a clay hole on private ground to fish. While occupied in fishing at this clay hole the child was attracted to a chicken that approached. caught it and threw it into the water of the clay hole, then attempted to rescue it, and in that operation slipped into the water and was drowned. Upon the theory that the element introduced by the chicken episode was not an independent intervening cause from the attractive nuisance element furnished by the clay hole, a recovery was sustained.

Follett v. Illinois Central R. R. Co. 288 Ill. 506, where the attractive nuisance was a push car, kept at an abandoned depot of the railroad. The child in this case had gone to this abandoned depot to play on this push car, and while there on that errand was run

over by a passing freight train. The court, in sustaining liability in that case, held that while "the push car was entirely harmless in itself and had no dangerous element which was a part of or inseparably connected with it," still it was "an attractive device or thing so located or situated that, in yielding to its allurement, the child without such intervention of another element as" breaks the relation of cause and effect was "brought directly in contact with danger from some independent source which" occasioned "the injury," and that that would support a right of action.

Oglesby v. Metropolitan West Side El. Ry. Co. 219 Ill. App. 322, where the attractive nuisance was a vacant coal elevator building, of which the stairway was visible from the street and from the defendant's elevated track, and children could enter, descend into the hoppers and go through the openings in the bottom. The child ascended the stairway and fell into the hopper and was killed. The Appellate Court, in sustaining liability, said (219 Ill. App. 325) "that a child is first attracted upon the premises by another instrumentality than the one inflicting the injury is not decisive of liability The question in these cases seems to be whether the owner maintained conditions and instrumentalities which as a whole could reasonably be expected to attract children in playing, and not whether the particular instrumentality inflicting the injury was the exclusive attraction."

In that condition of the law of this state, the case of Ramsay v. Tuthill Material Co. 295 Ill. 396 appeared. There the attractive nuisance was a condition consisting of various elements, viz.: an elevated switch track, three bins beneath-constructed in the trestle work-for holding sand to be dumped from cars above on the elevated track, chutes in the bottom of the bins whereby the sand in the bins could be made to move in various directions, doors by which the chutes could be closed, operated by levers, a ladder at one end of the elevated structure, a condition in one of the bins where the bin was nearly full of sand, but the chute below was open, presenting an open view through the bin. Children were in the habit of sliding through the openings in the bins, and in this case, a child attempted that with this particular bin, was buried in the sand and died. The court, after holding the whole condition with all its various features together, an attractive nuisance, said (295 Ill. 400): "It is not necessary to make a defendant liable, that the attractive and dangerous thing be visible from the street and that children should have been attracted to the premises by it"; and of McDermott v. Burke 256 Ill. 401, says: "In that case the attractive thing was a pile of sand in the middle of the lower floor of a building which was in process of construction. The sand itself was not dangerous and had nothing to do with the injury which gave rise to the cause of action in that case. The injury was occasioned by a rope running over a sheave.

The rope and sheave were not attractive and the injured child was not playing with them, but had merely rested his hand. upon the rope and was injured when the machinery was started."

What difference, it may be asked, is there on the statement of McDermott v. Burke as made in the case last above quoted from, and on the facts as above stated in the Follett case? In the Follett case, the push car was the attraction. It was harmless in itself. The child was not injured while playing with it, but was injured because its attraction brought it to a place where it was run over by a freight train. So in the McDermott case, the sand pile was not of itself, dangerous, and it did not cause the injury, but it attracted the child to a place where it came in contact with a moving cable, and was injured.

And that brings one to the last word of the Supreme Court in these cases, that appearing in the case of Stedwell v. City of Chicago 297 Ill. 486, where the attractive nuisance was a latticed pillar of an elevator structure. It was harmless in itself, but a child climbed upon it, and thus came in contact with a live wire near it.

It would follow from the above that our Supreme Court has at length, and despite its own disclaimer, in effect departed entirely from the doctrine of McDermott v. Burke. In this it is following the weight of authority, whereas the Supreme Court of the United States, it seems, is still clinging to old rules now discarded generally in this country. (Harvard Law Review XXXVI 112, 350).

E. M. L.

EQUITY-ELECTION OF REMEDIES-PUBLIC LANDS ACQUIRED BY FRAUD.—In the case of United States v. Oregon Lumber Company 43 Sup. Ct. Rep. 100, the majority opinion is written by Mr. Justice Sutherland and the dissenting opinion is written by Mr. Justice Brandeis. The latter opinion is concurred in by the Chief Justice and by Mr. Justice Holmes and, like many another dissenting opinion, is well worth the while. To us it appears to express the saner and the better established rule and we cannot but express the belief that in what appeared to them to be a hard case the majority have confused the doctrine of election of remedies with the doctrine of laches and have even gone so far as to apply the latter doctrine in a common law action for damages.

The United States brought an action at law against the Oregon Lumber Company to recover damages for the fraudulent acquisition of certain land under the Stone and Timber Act (20 Stat. 89). This action was commenced in February, 1918. The lands were patented in 1900 and were subsequently conveyed to an officer of the defendant company, and afterwards conveyed by the officer to the corporation and a fraudulent conspiracy was alleged throughout.

The defendants pleaded that in October, 1912, a suit in equity had been instituted by the United States for the cancellation of the patents for the fraud alleged and that the United States District Court had dismissed the suit "for the reason that the United States had had full knowledge of the matters complained of in its complaint for more than six years before the equity suit was instituted."

Both the district court and the majority opinion of the Supreme Court, on writ of error, held that this plea was good and that "as

the suit in equity was brought by the United States with knowledge of all the facts, it constituted an election final and conclusive."

"The mere filing of the bill in the first suit," said Mr. Justice Sutherland, "according to many authorities, did not constitute an irrevocable election. But upon ascertaining from their plea that the defendant intended to rely upon the statute of limitations, and having notice of the facts upon which the plea was founded, and thereafter sustained, the plaintiff in error had fairly presented to it the alternative: (a) of abandoning that suit and beginning an action at law, or transferring it to the law side of the court and making the necessary amendments to convert it into an action for damages, as a 'mere incident in the progress of the original case' (247 U. S. 219), or (b) of proceeding with the original case upon the issues as they stood. The plaintiff in error deliberately chose the latter alternative. If the election was not final before, it became final and irrevocable then."

The minority opinion took the opposite view; among other things it said:

"The general rule that statutes of limitations do not run against the United States often works hardship. The rule proves so oppressive when applied to proceedings to annul patents to land, that Congress erected for such suits the six-year bar. . . . This statute did not in terms extend the bar to the government's remedy at law. United States v. Whited & Wheless 246 U. S. 552, held that the law gave two remedies to protect the single right, and that the act of 1891 left intact the remedy at law for deceit practiced in securing the patent. The court therefore permitted recovery at law, although the remedy in equity had been barred

"The doctrine of election of remedies is not a rule of substantive law. It is a rule of procedure or judicial administration. It is technical, and as applied in some jurisdictions, has often sacrificed substantial right to supposed legal consistency. The doctrine has often been invoked in this court, but never before successfully. Its existence has been recognized, but in every case in which the question presented was actually one of election of remedies, the court held that the doctrine did not apply, giving as a reason that one or other of its essential elements was absent. These essentials are that the party must have actually had two remedies and that the remedy in question must be inconsistent with the other previously invoked. Here neither of these essential elements was present.

"The government did not have a remedy in equity when the suit to annul the patent was begun or at any time thereafter. That this is true was established by the decree in the equity suit. The government's alleged choice of the equitable remedy was therefore 'not an election, but an hypothesis.'"

Is not the position which is taken by Mr. Justice Brandeis unanswerable? It is conceded that before the final decree in the suit in equity had been rendered the plaintiff could have had the case transferred to the law side of the court and that the necessary amendments could have been made "to convert it into an action for damages as a mere incident to the progress of the original case"; but what real difference is there between such a proceeding and the one