The Lawyers Easy Chair. passer, merely because he was a trespasser, without showing that the property itself was of peculiar value, and could not well admit of due recompense, and would be destroyed by repeated acts of trespass. These cases all show that, in respect to acts of trespass committed upon land, even by persons in a public trust, under color of law, the Court has not interfered by injunction, unless where the trespass was permanent, as well as grievous, or went to destroy the value of the property to the owner. It is not sufficient that the act be simply per se a trespass, but it must be a case of mischief and of irreparable ruin to the property in the character in which it has been enjoyed." The Court also cited Kerlin v. West, 3 Green, Ch. (N. J.), 440. The Court tested the plaintiffs rights by considering what they would have been in con demnation proceedings by the defendant, and argued that as he would have had no standing in such pro ceedings, because he had suffered no loss, but on the other hand had acquired benefit in the enhanced value of his land, so he should not be enabled to re strain the operation of this beneficial enterprise. This is a plausible contention, but suppose the plain tiff does not desire to sell, and thus realize the alleged enhancement of value; suppose the premises constitute his old home, and he desires to live and die there in peace; may he be thus annoyed and harried by a cor poration that did not choose to condemn his land, but took their chances on his power to recover dam ages? Gray, J., is quite correct in his admission that "there may be some embarrassment in reconciling" all the decisions of Courts upon this point.
Dying Declarations. — "The Harvard Law Review" and the "New York Law Journal have fallen into a very courteous quarrel over the question whether dying declarations are impeachable by proof of contradictory previous statements by the deceased. This arises upon the cases of People 7>. Lawrence, 21 Cal. 368, and State v. Lodge (Del.), 33 Atl. Rep. 312. These comments raise an interesting query as to the weight to which dying declarations are entitled. On the one hand extreme sanctity may be attributed to them on account of the solemnity and responsibility of the occasion; on the other hand, that occasion may give an excellent opportunity to an unscrupulous man to wreak a posthumous revenge. It should seem that this species of evidence ought to be open to every contradiction and impeachment to which other evidence is subject, and that no extra ordinary weight or sanction should be attributed to it. It is always ex parte and Self-serving, and never under oath, and never subject to cross-examination. Some courts have gone so far as to hold that dying declarations are not receivable in favor of the pris oner; but the contrary has been held, and appears the better doctrine. Moeck v. People, 100 III. 242 :
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39 Am. Rep. 38; Com. v. Matthews, 89 Kentucky. 2S7. That contradictory statements are receivable to impeach them is held in Felder 7'. State, 23 Tex. App. 477; 59 Am. Rep. 277 : Morelock v. State, 90 Tenn. 528 : State -•i. Burt, 41 La. Ann. 487; 6 L. R. A. 79; Com. v. Cooper, 5 Allen 495; Goodall 7'. State, 1 Oreg. 333; State 7'. Elliott, 45 Iowa, 486. Contra: 1 Woe v. State, 20 Ohio St. 472. In the Felder case the Court observed : — "Dying declarations derive their admissibility as evidence from the necessity of the case. They are gen erally made to the friends of the deceased, and under circumstances where the physical conditions and surround ings of the declarant are such that cross-examination is impossible. Made under a sense of nearly impending death, the awful solemnity of the occasion stamps them with the verity which attends statements made under the sanction of an oath. But the allowance of them is a jealously guarded concession to the ends of human justice. That this is so is evidenced by the requirements as to predi cate for their introduction, and also by the limitation upon their admissibility to the identity of the perpetrator and the circumstances of the crime. The oath may be dis pensed with, but no circumstances of extremity can com pensate the want of a cross-examination. They are them selves hearsay testimony, and as has been said, their ad missibility springs out of the necessity of the case. liut after admitting them, it would be a perversion of all right reasoning to deny an accused a like relaxation of the rule, the occasion for it being produced by a coincident and co-extensive necessity. If the State may invoke a departure from the ordinary rules of evidence upon the ground of necessity, would it not be a hardship to deny the same to the accused when the necessity has been put upon liim by the'eoncession made to the State? "' Statements by the defendant,' says Mr. liishop, ' con tradictory of dying declarations, and contradictions in the latter, may be shown to detract from their weight with the jury.' Bish. Crim. Proc. 1209. The same doctrine is asserted in a long line of adjudicated cases. McPherson v. State, 9 Yerg. 279; Moore v. State, 12 Ala. 764; People v. Lawrence, 21 Cal. 368." In a recent case in the New York Court of Appeals, People v. Kraft, an indictment for manslaughter by abortion, the deceased made an ante-mortem state ment to the Coroner while at the hospital to which she had been removed, which was admitted on the trial as a dying declaration. The trial judge, in charging the jury, said that such declaration was competent testimony for them to consider, and added : "It is your duty to take it into consideration because it is evidence for you, and it is given all the sanction of evidence which the law can give to evidence." Such instruction was held reversible error. The Court, Judge Gray writing the opinion, said : — "It is of course true that such declarations are con sidered to be e<|ual to an oath taken in a court of justice; but that is because of the circumstances surrounding them when made. It is assumed that, being made in extremity,
