A consideration of the history, theory and the law of property down and through the annals of history, both sacred and profane, from the days of primeval man whose primitive modes of production were hunting and fishing and the yields thereof were shared in common, then the gradual development of the family and family rights, the roving bands, the clans and later the parcelling of lands held by the overlords with their retainers, the gradual development of individual rights, the separation of property and its recognized ownership, is a most interesting study.

In a study of the evolution of property right we must look first to the fundamental principles and the thing we style property and its development. Production and ownership are so closely associated and intermingled, as it were, with the more modern term capital and the basic term, or foundation, labor that neither can be treated or discussed without the association of the

*This article is by Hon. George H. Wark, one of the three judges of the new Court of Industrial Relations recently established by the legislature of Kansas. We shall be very glad to hear further from Judge Wark, especially with respect to the work of the new tribunal in which all of us are interested.-ED.

other and the mental picture of the one is synonymous of both.

The term capital is really a modern one, it is a product and the result of labor and one of the first instances of the securing of the thing called capital is illustrated by the story of the crafty savage who possessed two bows and arrows and loaned one of them to a neighbor on condition that he receive one-half of the game slain.

The struggles, and I use the term in its broadest sense, which at times have seemed to the people hopeless, down through the ages of civilization, a continual battle of theory, facts, ideas and ideals have had to do with and have been the guiding force and the resultant end is the law of our modern property rights and a candid perusal and study of the legal lore on this subject might lead to the use of the term, in a very literal sense, the revolution in property rights in place of evolution.

Certain authorities in considering the forms of property both common and private, and in this discussion we will deal with the latter, classify it as follows:

First, (a) Common property of ancient origin, the types of which are the communal lands exposed for centuries past to the ownership of the nobility and the bourgeoisie.

(b) Common property of modern origin administered by the state, comprised under the term Public Service (as the mint, post office, public roads, national libraries, museums, etc.).

Second, Forms of private property, (a) Property of personal appropriation, (b) property-instruments of labor, (c) property-capital.

But through all, from the very beginning of things, there runs a thread of reason and progress, though no doubt at the time, to the individuals then living, it seemed a hopeless tangle. Still we must bear in mind that many of the things and events stamped as perfectly correct and just by the verdict of history when divorced from the heat and prejudice that were associated with the events now seem the most logical solution and conclusion but at the time of their

occurrence were no doubt construed to be diametrically opposed to all established customs and traditions. With our high degree of civilization and development of government there are now greater chances and opportunities for advancement in any field by orderly and sane legislation, wise executive action and the fairness on the part of our courts, than under the old system of right by force and might.

For long ago man by and through organized society, styled government, found that unless he had law, order and respect for the rights and property of others there could be no government.

The right of ownership and control of property is the first step in the civilization of mankind. And while men give up many of their natural rights and their independence to live under political laws they have given up natural community of goods to live under civil laws, for in the early stages of civilization all property was owned in common. By the first they acquired liberty, by the second property. The public good consists in every man having his individual property which is given him by the civil laws and invariably preserved.

We find that property and law were born together and die together. Before laws were made there was no property. Take away law and property ceases. We cannot have property without law for through law possession ripens into property; this is a true theory but stated thus it is insufficient because there must be just and public order and moral law behind the statute law.

The manner of the distribution of property has for a long time been a favorite topic of discussion with the modern sociologist and schemes without number are suggested to remedy evils, some fancied but many real, which have arisen from it.

It is clear that the fundamental law of supply and demand cannot be set aside, that all men are not created equal when it comes to the ability to acquire property or pre serve that which they inherit. It is impossible to deny the laboring man the right to determine the number of hours he shall

work and the wages he is willing to accept, that is his privilege and right and likewise no legislation can compel an employer to pay more than he is able to pay or carry on his business at a loss. The price of labor thus becomes the price of everything that labor produces. Legislation is powerless to permanently affect this law of supply and demand and the conditions that we are now facing in the controversy affecting property of every nature and between capital and labor is no new question, in fact it is as old as governments themselves and has always been a factor in the growth and development of property rights and distribution thereof, indeed, it is ages old and these controversies have occurred from a time whence the oldest historical records. run not to the contrary.

One of the earliest recorded in the annals of the race is that of the exodus of the Israelites from Egypt which seems to have been a national protest against the oppression of capital and to have possessed the substantial characteristics of a modern strike. How far this revolt was due to the order of Pharaoh that the Israelites should provide their own straw to make bricks and how far to the hereditary adversion of the Jewish race to manual labor we shall never know at least not until we hear the Egyptians' side of the story. It is true they despoiled the Egyptian, a fact not wholly un

known to our modern strikes but there is no evidence that the Israelites ever claimed a proprietorship in the cities they had built or used any violence to prevent others from working at the same rate of wages. The boycott had not then been invoked. The Egyptians are said to have been reluctant to let the strikers go and pursued them across the Red Sea but the pursuit was fruitless and attended by somewhat unpleasant consequences to the pursuers.

A later manifestation of the same spirit was shown by the Romans who in the early | days of the republic, driven to despair by the oppressive patricians, withdrew in a body to the sacred hill whence they declared their own terms and obtained the appoint

ment of Tribunes of the people for their protection from the cruelty of the bourgeoisie. The Romans were pre-eminently

an

industrious and progressive people. Trade unions and guilds existed from the time of the Kings and were often in trouble with the patricians who though hating the plebian at the same time found him indispensable.

The history of the middle ages is replete with the accounts of conflicts of feudal lords who descended from their castles, waylaid the traveler and plundered him of his property, seized his person and unless ransomed sold him as a slave. The merchant dared not risk his person and property in foreign parts. If shipwrecked it was the universal practice to confiscate his goods and property as belonging to the lord on whose land he was thrown. Indeed for some hundred of years the seas were so infested by pirates and commerce and all kinds of property subjected to such exactions and the crews of shipwrecked vessels were so cruelly treated that intercourse between nations practically ceased, commerce was abandoned and the laws regulating it forgotten or lost.

From this brief analysis it is apparent, first, that strikes so far as being peculiar to modern enterprise, as is generally supposed, are as old as civilization itself, seccnd, that they prevail most extensively in the most enlightened and wealthy communities and as far as being an indication of extreme poverty are equally as frequent in times of general prosperity.

Property exists because it promotes the general welfare and by the general welfare its development is directed. As society has developed there has been a corresponding evolution in the development of property rights, for it is only through law that possession ripens into property and ownership. Public property again into public property, and extensive forms of property make way for intensive forms because all this evolution promotes a general welfare.

As an example or evidence of changes in property rights let us consider some of the

irrigation laws of our country. Irrigation in a crude form can be traced back to a period which in our new world would be called a remote past, probably seven hundred years. The Pueblo Indians occupied and irrigated lands long ago, so also did the Mexicans and years before the settlement of the west by the Americans the Spanish missions in California employed irrigation. But these early methods were very largely happy-go-lucky. The use of water was a very extensive one rather than an intensive one and there were no highly developed systems. The Mormons in the middle of the nineteenth century and the colony at Greeley, Colorado, twenty years later began modern irrigation in the United States. Where mere possession existed it had to make way for full property into which it often ripened.

The old common law doctrine of riparian rights stood in the way of the extensive and intensive use of water and in the irri

gated sections of our country this doctrine has been abolished either explicitly as in Colorado or by modification through statute law and judicial decisions until it has become essentially a different thing. The doctrine of riparian rights was regarded in England as a “natural right.” It seemed to the Englishman a thing right in itself not requiring statute law to establish it, that the owner of land should receive the uninterrupted flow of streams crossing his fields. but the so-called natural right has had to yield to the necessities of social co-existence.

Less extensive uses constantly yielded to more and are yielding to more intensive uses. The cattlemen of the plains were satisfied with mere possession for flocks and herds and waged many bloody battles to prevent the development of full property rights by permanent settlers but the general welfare demanded a more intensive tenure and the permanent settler fought a winning fight. The common grazing grounds have for the most part disappeared and the remainder are rapidly dwindling. The Texas Trail of the cattlemen has become a thing of the past.

In considering whether the right of the owner of property, either real or personal, to govern or influence its disposition of ownership after death is a vested right or one not directly dependent on statute, it will be necessary to briefly review the history of this right under the English and American law. The oldest writers upon English law inform us that as some property can be vested in individuals by the right of occupancy it was necessary for the peace cf society that this occupancy or ownership should be centered not only in the person possessing but in those persons to whom he should think proper to transfer it, which introduced a doctrine and practice of alienations, gifts and contracts. To leave property without ownership at death and subject to be seized by the first finder or taker would necessarily create an infinite variety of strife and confusion hence the establishment of the testamentary right and the distribution of property upon intestacy which is never spoken of as based upon any socalled rights of the living owner but merely upon the necessity of preserving the peace and well being of the community of which he ceases, upon his death, to be a member.

It is interesting to note that the idea or notion of a will or testament is a creation of the jurisprudence of the Roman and that our Saxon ancestors were strangers to any such conception as that of a will. It was introduced among them by the ecclesiastical power. At that early date, among the northern nations, particularly among the Germans, wills or testaments were neither known or used. The right of making wills and disposing of property in this manner. is a creature of the civil state which has permitted it in some countries and denied it in others and everywhere it is permitted by law is subject to different formalities and restrictions in almost every nation and state.

As a concrete example of the growth and development of property rights consider our own state, originally a primeval prairie frequented by roving bands of Indians, then partially by the ability of one tribe to

overcome the other and partially by government direction we have the reservations, then government control and the distribution of the land of the state as divided into claims of one hundred and sixty acres each. Treeless claims proved fertile and prosperous farms stocked with personal property, the fee holder having absolute ownership not only of the surface but all that beneath, within comparatively recent years the mineral development of our state has greatly affected and changed the manner of transfer and distribution of the owner's title or interest. In many instances the surface is owned by one party, the oil rights by another, the gas rights by a third and perhaps a fourth interest held by a mortgage. Similar conditions are found in the coal fields of our state.

The past history of property and its development and the rights in its distribution and the present conditions impress one with the fact of the rapid growth and development and constant changes in our social and political system and that matters considered a few years ago as near revolutionary must now be accepted as facts with the right of the state to extend, so to speak, its police power with a broadening view of the state's right to supervise or control property when the public health, welfare and safety are endangered. We wonder whether or not the student of history in the future will not, in the calm verdict of time, even greater and more substantial growth and variety of property distribution. and control of the same than we do in a study of the past.

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TRIMBLE, J. This is an action in replevin to recover possession of five cases of pint bottles of sealed Elk brand whiskey, thirteen cases of half-pint bottles of the same brand of liquor, and seven barrels of beer. The case was by agreement tried before the Court without a jury. Judgment was rendered "that plaintiff is not entitled to the possession of the personal property described in plaintiff's petition." Plaintiff has appealed.

The main contention is that, under the law and the evidence, the Court was bound to find for plaintiff and could not properly do otherwise. The case, however, is an action at law, and the finding of the Court sitting as a jury stands on appeal as does the verdict of a jury. Consequently, if there is any evidence upon which the finding and judgment can be upheld, they will not be disturbed in the Appellate Court merely upon the ground that they should have been the other way.

Plaintiff, a negro and a convicted violator of the local option law, lived in Columbia. On Sunday morning, August 18, 1918, the defendant Whitesides, city marshal of Columbia, learned from his deputy that a truck load of what he suspected to be intoxicating liquor was being taken into plaintiff's yard. The marshal accosted plaintiff on the street and asked him about it. He denied that any whiskey had been left there, but went with the marshal to plaintiff's home, where the marshal after searching the premises found a shed that was closed and locked but which plaintiff assured him contained nothing but junk and other old things. He denied having a key to the shed, but when the marshal began prying off the hinges to the door plaintiff procured a key and unlocked the door, and the intoxicating liquor was found. Plaintiff denied it was his, saying it belonged to John Miller, another negro in

Columbia, also a violator of the liquor laws. The cases of whiskey each bore the name of John Miller as consignee in a shipment from Quincy, Ill., to John Miller at Moberly, Mo.; and there is no dispute but that the shipment was made to Moberly to John Miller, and that Miller together with a man by the name of Gregory brought the liquor and beer from Moberly in a truck and placed it in plaintiff's shed where the marshal found it. It is also beyond dispute that, at the time the shipment to Moberly was made, the plaintiff was in jail serving time for a violation of the local option law.

The marshal took charge of the intoxicating liquor, and plaintiff was arrested and charged with storing of the same for John Miller, to which charge he pleaded guilty and paid a fine of $300 and costs. Afterwards, however, plaintiff claimed that he was the owner of the goods and brought this suit to recover possession of them. He claims that Miller does not own them and has no interest in them; that he had them sent to Moberly consigned to Miller so that the latter could get them and bring them to Columbia for him. He admitted that he had a federal license to sell intoxicants and said he bought the liquor intending to sell it in Columbia. Moberly was at that time a "wet" town, but the local option law was in force at Columbia. Plaintiff offered evidence to show that it was his money that paid for the liquor; and both he and Miller swore the latter had no interest in the goods, but that plaintiff owned them.

If the liquor was Miller's, then the Court was justified in finding against plaintiff on that ground, since it is, and for a long time has been, the law in Missouri that it is a good defense to a replevin suit to show that general ownership is in some one other than the plaintiff. Broadwater v. Darne, 10 Mo. 285; Baker v. Campbell, 32 Mo. App. 529; Moriund v. Johnson, 140 Mo. App. 345, 124 S. W. 80; American Metal Co. v. Daugherty, 204 Mo. 71, 102 S. W. 538; Draper v. Farris, 56 Mo. App. 417, 419. And even if the liquors were owned by plaintiff and Miller jointly, plaintiff could not prevail. Steckman v. Galt State Bank, 126 Mo. App. 664, 105 S. W. 674. And the fact that Miller is making no claim to the liquor does not necessarily change this last-mentioned rule. For good reasons Miller may well desire to disclaim any ownership of or interest in the goods, and on the other hand if he does own or have an interest in them, good reasons exist why such ownership should be recognized and the case decided in strict accordance with the rules governing such fact even though he denies it.