Edwards v. Sims (Kentucky, 1929)

At the beginning of the academic year, it was suggested to me that I should write reviews of cases on this blog in the same way I wrote reviews of books. Now, I did not think I had the time to do this (indeed, writing about every single case would become unbearably time-consuming, and while my next post may be a milestone (#150), had I done this I might be approaching #1000, seriously diluting the quality I have endeavored to achieve on Flying Houses), but I promised myself that I would call attention to this single case from my Property class. I promised myself that when I covered it in my outline, I would transcribe a good portion of its dissent.

Now, our professor in this class did not seem to like this dissent very much. He claimed it "goes on...and on....and on...." True, when it goes on, it does not discuss legal principles. However, there are plenty of opinions that go on, and on, and on, and make one positively drowsy. I have mentioned many times on this blog that "normal people" in 2011 think reading novels is "boring." If you think that is boring, do not go to law school (more on this later).

Whatever the legal utility of the dissent, it was the single-most transcendent reading experience of the year for me. I showed it to my roommate one night, and tried to read it aloud. I could not. I could not stop laughing. He read it aloud instead and agreed that it was fantastic. Perhaps it is unintentionally hilarious, but it is also striking in its beautiful quality.

Some discussion of the facts may be necessary. This is a case about a cave that was discovered underneath a person's land. Edwards discovered the cave, and he improved its conditions, and opened it up as a tourist destination in Kentucky. (This reminded me greatly of "The Lost Sea," an underwater lake in a cave in Sweetwater, TN, which I had planned to visit with a friend, but which unfortunately never came to pass). His neighbor brought an action claiming the ad coelum doctrine, which posits that a person owns everything above or below his land. The cave was beneath his land, and he claimed a right to it. The court held in favor of the neighbor.

The dissenting judge, Logan, found this incredibly unfair (and I agree with him). For the first two pages, Logan mostly keeps to legal principles, while still affecting a somewhat poetic manner. However, by page 3, he completely shifts his focus to a comparison of this cave (The Great Onyx Cave) to Hades, extolling the virtues of the brave workers who excavated it. The best possible explanation I can make is that he smoked a lot of weed and then wrote the part that begins here:

"...Edwards owns this cave through right of discovery, exploration, development, advertising, exhibition, and conquest. Men fought their way through the eternal darkness, into the mysterious and abysmal depths of the bowels of a groaning world to discover the theretofore unseen splendors of unknown natural scenic wonders. They were conquerors of fear, although now and then one of them, as did Floyd Collins, paid with his life, for his hardihood in adventuring into the regions where Charon with his boat had never before seen any but the spirits of the departed. They let themselves down by flimsy ropes into pits that seemed bottomless; they clung to scanty handholds as they skirted the brinks of precipices while the flickering flare of their flaming flambeaux disclosed no bottom to the yawning gulf beneath them; they waded through rushing torrents, not knowing what awaited them on the farther side; they climbed slippery steeps to find other levels; they wounded their bodies on stalagmites and stalactites and other curious and weird formations; they found chambers, star-studded and filled with scintillating light reflected by a phantasmagoria revealing fancied phantoms, and tapestry woven by the toiling gods in the dominion of Erebus; hunger and thirst, danger and deprivation could not stop them. Through days, weeks, months, and years--ever linking chamber with chamber, disclosing an underground land of enchantment, they continued their explorations; through the years they toiled connecting these wonders with the outside world through the entrance on the land of Edwards which he had discovered; through the years they toiled finding safe ways for those who might come to view what they had found and placed their seal upon. They knew nothing, and cared less, of who owned the surface above; they were in another world where no law forbade their footsteps. They created an underground kingdom where Gulliver's people may have lived or where Ayesha may have found the revolving column of fire in which to bathe meant eternal youth."

"When the wonders were unfolded and the ways were made safe, then Edwards patiently, and again through the years, commenced the advertisement of his cave. First came one to see, then another, then two together, then small groups, then small crowds, then large crowds, and then the multitudes. Edwards had seen his faith justified. The cave was his because he had made it what it was, and without what he had done it was nothing of value. The value is not in the black vacuum that the uninitiated call a cave. That which Edwards owns is something intangible and indefinable. It is his vision translated into a reality."

"Then came the horse leach's daughters crying: 'Give me,' 'give me.' Then came the 'surface men' crying, 'I think this cave may run under my lands.' They do not know they only 'guess,' but they seek to discover the secrets of Edwards so that they may harass him and take from him that which he had made his own. They have come to a court of equity and have asked that Edwards be forced to open his doors and his ways to them so that they may go in and despoil him; that they may lay his secrets bare so that others may follow their example and dig into the wonders which Edwards has made his own. What may be the result if they stop his ways? They destroy the cave, because those who visit it are they who give it value, and none will visit it when the ways are barred so that it may not be exhibited as a whole."

"It may be that the law is stated in the majority opinion of the court, but equity, according to my judgment, should not destroy that which belongs to one man when he at whose behest the destruction is visited, although with some legal right, is not benefited thereby. Any ruling by a court which brings great and irreparable injury to a party is erroneous."

All judges should write like this. True, applications of legal rules to facts of whatever the present case may be are not always conflated by such poetic subject matter, but they really should make more of an effort. There should be a certain pleasure in reading judicial opinions. Sometimes, they are pleasurable. Many law professors speak of Cardozo as the be-all, end-all of linguistic masters. Holmes is similarly held up on a pedestal. As much as I may disagree with much of what he has to say, one cannot deny that Scalia sometimes strings together an entertaining phrase or two. One of the first dissents I read, by Justice Black in Goldberg v. Kelly, I found similarly great. I should state that I am a huge fan of Posner, and that if I were a much better student, had a background in economics or engineering, and had gone to say, Northwestern or U Chicago, it would be my "dream job" to be his clerk or intern. Kozinski has also written more than his fair share of very humorous opinions.

Yet these moments of literary epiphany in law are rare. 95% of the opinions I read are boring, tiresome, and as dry as a math textbook, despite the usually incredible circumstances they are called upon to adjudicate. I would love to be on a journal next year, and write a "note" on this topic, but unfortunately I doubt it would be supported by the staff. You are supposed to write about novel legal issues that have not been addressed by anyone before. I would love to write a biographical note on Logan, to see what his other opinions looked like, and to gauge his legal philosophy, or to write about the phenomena of poetic or humorous judicial opinions in general, but I am afraid this would not be allowed. Note that this is one of the reasons I hate law school. There, I said it.

What legal issue is important to me, that is novel, that no one has addressed? Something in intellectual property law perhaps, copyright, whether posting large sections of text from novels is legal (I hope so). But this is not something I care particularly deeply about. My 4 "followers" (and I cherish each and every one of them) may know that the only thing I care particularly deeply about is literature, and creating my own, in a search for perfection or transcendence. It is a shame that there is so little money associated with such a venture. It is what led me to think a position within the legal profession was the next best thing. It is not. I do not think it will (would?) be the worst job in the world, but what you have to go through in order to get it is certainly one of the worst things in the world. Oh, I know it must be very hard to get a PHD or an MBA or CPA certification, and probably MD too. However, I think psychologically, there is nothing more difficult or painful, particularly going through it from 2010-2013 at a "2nd tier" school in New York City.

It is time to draw this post to a close. The next post I write will be after May 13th. It will be a reflection upon the entire year. The post to follow that will be a commentary on the phenomena of "scamblogs." That post will be dedicated to every one who is considering going to law school, or who has already sent in their seat deposit for the class of 2014. I now must return to my outlining. Good night, and good luck.