amount and grade of grain mentioned therein as deposited in a warehouse or elevator. Greenleaf v. Dows,* 3 McC.. 27; 8 Fed. R., 550; 12 Rep., 545. § 31. Surrender certificates issued by a warehouseman, setting forth that the parties named therein have "surrendered elevator tickets" for a certain quantity of wheat free on the track," are not evidence of title to grain deposited with warehousemen which is recognized by the above statute. Ibid. § 32. Where a warehouseman absconds leaving an insufficient number of bushels of grain in his warehouse to satisfy the holders of warehouse receipts for grain stored, and the holders of surrender certificates setting forth that the parties therein named “have surrendered elevator tickets" for a certain quantity of grain "free on the track," the claims of the latter must be postponed to those of the former, the actual depositors, who present the evidence of title recognized by the statute. Ibid. § 33. The assignee of a bankrupt is estopped, in the absence of fraud, from denying the validity of warehouse receipts issued by the latter. Sharp v. The Philadelphia Warehouse Co., 19 N. B. R., 378; 9 Rep., 572. * § 34. The surrender of possession by a warehouseman, after he has become insolvent, of property to parties holding warehouse receipts therefor is not in violation of the bankrupt law, as the title was in the transferee and not in the bankrupt. Ibid. § 35. A transfer by a warehouseman, made after his insolvency, of substituted property to a party holding a warehouse receipt, to meet a demand which arose out of a previous abstraction by the former of the latter's property, is, though honestly intended, a violation of the bankrupt laws. Ibid. § 36. Warehousemen who issue receipts for property in store become responsible only as custodians of the property, not as guarantors of its title to the assignees of the receipts. The duty of the warehouseman is performed when he gets the property into his own possession before he issues the receipt, and transfers that possession when demanded to the lawful holder of the receipt. Insurance Co. v. Kiger, 13 Otto, 352. § 37. A receipt by a warehouseman for property to be forwarded to order, and of payment, when assigned to a commission merchant, who makes an advance, does not create a lien on the property paramount to that of an attachment laid before notice of the assignment. The money advanced not being equal to the value of the property leaves an attachable interest beyond the lien, if it exist, of the commission merchant. Gibson v. Stevens, 3 McL., 551. § 38. When a warehouseman, having in store a quantity of wheat deposited by several persons, for which, under the statute, he issues receipts to each depositor, fraudulently disposes of part of the wheat, the receipt holders must share in what remains according to the equitable interest of each, to be ascertained by an accounting. No one of such receipt holders can recover the whole at law, nor could any number of such holders less than the whole number recover possession as against the remainder. Dows v. Ekstrone,* 1 McC., 434; 3 Fed. R., 19; 10 Rep., 419. § 39. The indorsement and delivery of a warehouse receipt transfers to the indorsee the legal title and constructive possession of the property, and the warehouseman from the time of the transfer becomes his bailee; the delivery of the evidence of title and the orders indorsed upon them is equivalent to the delivery of the property itself. First Nat. Bank v. Bates,* 1 Fed. R., 702. § 40. If warehouse receipts are assigned as collateral security for a general indebtedness, and the warehouseman afterwards deliver the property over to the assignor, the assignee may maintain trover and may recover against the warehouseman the value of the property not exceeding the amount of indebtedness the receipt was given to secure. Ibid. § 41. The jury were instructed that if they found from the evidence that all of the warehouse receipts in question were not pledged as general collaterals for general indebtedness of the assignor to the plaintiff, the assignee, but were pledged as special collaterals to secure specific loans, and the loans for which they were pledged had all been paid, then their verdict must be in favor of the defendant; or if a portion of them were so specifically pledged, the plaintiff would not be entitled to a recovery for those so pledged. Ibid. § 42. Where a fictitious certificate of deposit issued by a warehouseman is the basis of an action against his assignee, evidence is admissible to show that the receiver of the certificate never deposited any wheat in the warehouse. Jackson v. Hale,* 14 How., 525. § 43. Where a warehouseman gives a receipt for wheat which he has never received, and afterwards the quantity which he has received is divided amongst the respective depositors, an action of replevin brought by the assignee of the fictitious receipt cannot be maintained against a third person for wheat held by him in that warehouse, to which the plaintiff possesses no evidence of title other than the fictitious receipt. lbid. § 44. Assignees of a warehouseman are not responsible to a party to whom the latter has issued warehouse receipts unless it can be shown that grain was deposited which has come into their possession. Ibid. 45. To secure moneys advanced by plaintiff to defendants the latter delivered warehouse receipts to the former, and gave power of sale to be executed in case the advances were not repaid within a certain time after request made or notice given. Whenever defendants desired to sell any of the wheat represented by the receipts in the hands of plaintiff they obtained an order from the plaintiff to the warehouseman for the removal of the same, and as soon as it was delivered to the buyer they delivered the money or bills of lading received therefor to the plaintiff and received from it the warehouse receipts, which they surrendered to the warehouseman who issued them. All these receipts contained a clause that in case of flood the property was at the risk of the owner. Held, that the delivery of the receipts to the plaintiff was in the nature of a pledge; that the issue and delivery of the receipt was only a mode of furnishing the plaintiff with the evidence of the deposit of the pledge at the place agreed upon, and the right of possession of the same, and to dispose of it according to the terms of the bailment, and that the pledge was so qualified by the contract and conduct of the parties that the custody of the property, instead of being actually or absolutely in the plaintiff, remained in the warehouseman, subject to its control, for the purposes of the contract, and while there at the risk of the owners, the defendants, in case of flood. Bank of British Columbia v. Marshall,* 11 Fed. R., 19. § 46. An agent who is broker and has an interest may maintain an action in his own name for goods sold, and the suit cannot be resisted on the ground that there is a warehouse receipt for the goods in the hands of a third party. McCullough v. Roots, 19 How., 349. § 47. A fabricated warehouse receipt, representing that a large amount of pork had been received by defendant, subject to the orders of the plaintiff, irrevocably, which receipt, accompanied by a draft of $12,000, being forwarded, was accepted and paid by the plaintiff, affords ground for an action against the warehouseman to the extent of the injury received. Suydam v. Watts, 4 McL., 162. § 48. Interstate commerce. Where warehouses are situated and their business carried on exclusively within a state, though incidentally, but not necessarily, their business may be connected with interstate commerce, the state may, until congress acts in reference to their interstate relations, exercise all the powers of government over them, though in doing so it may operate upon interstate commerce. Munn v. Illinois, 4 Otto, 113. § 49. The business of warehousemen is a private business which has no special privileges granted to it by the government, and the state has no right to interfere with the profits of the same or regulate the compensation for the use of warehouses or elevators. (Per FIELD and STRONG, JJ., dissenting.) Ibid. 50. The Illinois statute of April 25, 1871, to regulate public warehouses and elevators, is not repugnant to section 9, article 1, of the constitution of the United States, because it gives preference to the ports of one state over those of another, as this section operates only as a limitation of the powers of congress, and in no respect affects the states in the regulation of their domestic affairs. Ibid. § 51. Grain mixed.—Where wheat stored by various parties with a warehouseman has been mixed, and a portion of it disposed of by the latter, the holders of the warehouse receipts are entitled to their pro rata proportion of the property, on the principle that property intrusted to a bailee is still taken to belong to the bailor, notwithstanding any change it may have undergone, so long as such property can be identified and distinguished from all other property. Rahilly v. Wilson, 17 Int. Rev. Rec., 46. See §§ 19-22. § 52. Lien.- A warehouseman who receives goods from a steamboat in the carrying trade, and pays to such boat the freight charges, does not by reason of such payment obtain a lien upon the goods. His lien for warehouse charges depends upon principles of law that cannot be applied in the case of payment of freight charges. Bass v. Upton,* 1 Minn., 408. § 53. Foreign goods deposited in a private bonded warehouse, under the laws of the United States and regulations of the treasury department, are subject to the charge of half storage. Clark v. Peaslee,* 16 Law Rep. (N. S.), 609. $54. A pledge by a factor of property belonging to his consignor, in which he has no interest, as security for a debt of his own, conveys no title to the pledgee adverse to the consignor, although the pledge be accompanied by a warehouse receipt. Such a pledge under the laws of Louisiana is invalid. If, in such case, upon judicial process sued out by the consignor, he surrender the property pursuant thereto and give notice to the pledgee, the duty of the warehouseman under those laws is performed. Insurance Co. v. Kiger, 13 Otto, 352. § 55. Jurisdiction.-A federal court has in general no jurisdiction of suits against warehousemen by citizens of the same state. The Mary Washington, 1 Abb., 1; Chase's Dec., 125. § 56. Liability as carrier.— A carrier who transports goods to the port of delivery and stores them in his warehouse without giving the consignee notice of their arrival remains liable as carrier, not as warehouseman, until the latter shall receive information from some quarter of their arrival and have an opportunity to remove them. Ibid. § 57. Delivery of wheat to vessel.-The duty of the warehouseman in delivering a cargo of wheat to a vessel ends the moment the wheat is placed in the outside pipe leading to the vessel. The pipe is attached to the warehouse, and is used jointly by the warehouse and the vessel, but the vessel controls the discharge of the wheat from the warehouse through the pipe. The R. G. Winslow, 4 Biss., 13. WATER AND WATER-COURSES. [See CONSTITUTION AND LAWS; MARITIME LAW. Rivers as Boundaries, see LAND. Use of Water by Miners, see MINES AND MINING.] I. RIPARIAN AND LITTORAL PROPRIETORS, | IV. POWER OF CONGRESS OVER NAVIGABLE II. RIGHT TO USE OF WATER, SS 151-192. III. OBSTRUCTIONS TO NAVIGATION, SS 193346. V. MISCELLANEOUS, $$ 369–392. I. RIPARIAN AND LITTORAL PROPRIETORS. [See LAND.] SUMMARY — Injury by public improvements, §§ 1, 2.— Power of state to improve navigable stream, § 2.- Public rights on navigable waters, § 3.- Title to land under navigable waters, 4.- Property in use of water, § 5.-Wharves on lakes, § 6.— Bridge piers and landing-places, § 7.— Street extending to harbor; rights of wharf owners, § 8.— Boundaries of public lands, §§ 9, 11, 12.- Mouth of river, § 9.- Accretions, §§ 10, 15-19.- Right to construct buildings and wharves, § 13.- Public use of land between high and low water; dedication, § 14.— Mill owners on opposite sides of a stream, § 20.— Title to use of water, § 21. Reasonable use of water, § 22.— Right to use water to injury of mill owner, § 23.— Rights of purchasers of public lands; act of 1866, § 24, 26.- Certain streams held to be natural water-courses, § 25.- Parties holding possession and beneficial interest, § 27.Right of action without showing actual damage, § 28.— Use for irrigation; diversion to injury of another; title by adverse use, § 28.— Diverting, retarding and throwing back, 29.- Temporary diversion; relief in equity, § 30.- Relative rights of riparian proprietors and owners of mills on trench or canal, § 31. § 1. To divert a stream from its natural channel into an artificial one, for the purpose of affording improved navigation and benefiting commerce, may be a work of public concernment and advantage, but if thereby a riparian owner is wholly or injuriously deprived of the use of its waters, which he is employing advantageously as an incident to his land, it is taking the private property of such owner in and to the use of that water for public use, and, unless compensation is made, is against both the principles of the common law and the provisions of the constitution of the United States. Avery v. Fox, §§ 32-40. § 2. A state may authorize the improvement of a navigable stream by widening the same, changing its course, etc., in any manner that will not interfere with the rights of riparian proprietors or deprive them of such enjoyed use as they are entitled to have continued in the water. And whenever it is necessary to take or destroy property of a riparian proprietor in order to effect the improvement compensation must first be made. Ibid. § 3. The public have the right to use such streams as are navigable as highways, and the owner of the bed of a stream has no rights in the water thereof which will permit him to use it to the injury of the public. His right and the right of the public to the use of the water of such streams are to remain unimpaired as far as possible, but the right of the public for purposes of navigation is paramount, and there can be no use by a riparian proprietor inconsistent with the public easement. Ibid. 4. The owner of land bordering on a navigable stream, in which the tide does not ebb and flow, owns the land beneath the water to the center thereof. Neither the nation nor the state has any ownership therein. Ibid. § 5. A riparian proprietor has a property in the use of water flowing by his premises and may use it in its flow in any manner not inconsistent with the rights of others to its use. Ibid. § 6. Where a lake is not navigable for a distance from shore the owner of adjoining land VOL. XXVIII-44 689 1 may erect a wharf extending into the water up to the point of navigability. Dutton v. Strong, SS 41-44. § 7. Bridge piers and landing-places, as well as wharves and permanent piers constructed by riparian owners on the shores of navigable rivers, bays and arms of the seas, as well as on lakes, where they conform to state regulations and do not extend below low-water mark, are not nuisances unless it clearly appears that they are an obstruction to the paramount right of navigation. Ibid. § 8. If a city lays out a street, extending to a harbor, to low-water mark, the owners of wharves on either side have the right to use the street between high and low-water mark for the purpose of gaining access to their wharves, and an erection therein which interferes therewith is a nuisance. Richardson v. City of Boston, $$ 45-51. § 9. Where the plat and survey by which the government sold lands shows the eastern boundary to be a lake and the southern boundary to be a stream flowing into it in a straight line, a purchaser is bound by the limits of the survey, even though the channel represented on the plat is an artificial one and the river itself makes a bend to the south, leaving a sandbar between its natural mouth and the channel shown on the plat, for the government has the right, as far as surveys of public lands are concerned, to declare which shall be taken to be a true mouth of the river. Bates v. Illinois Central R. Co., §§ 52, 53. Ibid. § 10. It seems that no one can claim an accretion until he shows title to the shore. § 11. The purchaser of public land lying along a meandered stream takes to the stream. Railroad Co. v. Schurmeir, § 54-59. § 12. Congress, in distinguishing between navigable and non-navigable streams in statutes relating to surveys of public lands, intended that the common-law rules of riparian ownership should apply to lands bordering streams not navigable, but that the title to lands bordering navigable streams should stop at the stream. Ibid. § 13. Riparian owners on streams in fact navigable have the same rights to construct landings and wharves as were given by the common law to owners of land bordering tide-water streams. Ibid. § 14. The right of the public to use that part of the land of a littoral proprietor lying between high and low-water mark for purposes of navigation is defeasible, and terminates on the erection thereon of structures for the benefit of such proprietor, and a dedication of such land will not be inferred by long acquiescence in such public use. City of Boston v. Lecraw, § 60; Richardson v. City of Boston. §§ 45–51. § 15. A riparian proprietor is entitled to accretions although the same were caused wholly by obstructions placed in the river above. Whether the flow of water was natural or caused by artificial means is immaterial. County of St. Clair v. Lovingston, §§ 61–65. § 16. The riparian right to future alluvium is a vested right. It is an inherent and essential attribute of the original property. Ibid. § 17. Alluvium is an addition to land gradually and imperceptibly made by water to which 'the land is contiguous. The test as to what is gradual and imperceptible in the sense of the rule is that, though the witnesses may see from time to time that progress has been made, they could not perceive it while the progress was going on. Whether it is the effect of natural or artificial causes makes no difference; the result as to ownership in either case being the same. Ibid. § 18. In determining whether a certain lot in the possession of a grantee has a water front such as to entitle him to accretions, reference must be had to the condition of the lot when he received his deed, and not to the condition of things at the time the grantor made his title bond to another on which the deed to the grantee was founded. Johnston v. Jones, S$ 66-71. § 19. Accretions are to be divided between riparian owners by lines drawn from the shore ends of the boundary lines to the new margin in such a manner that the new water-line of each owner shall bear the same proportion to the whole length of the new line that the shore of each in the old line bears to the whole extent of the old line. Ibid. § 20. Where two persons own lands on opposite sides of a river respectively, and own a dam between, they hold an undivided one-half of the water as tenants in common. Stillman v. White Rock Manuf'g Co., §§ 72-79. § 21. One can only acquire title to an easement in the use of water by such possession as is consistent with the idea of a grant, and if such possession is against the objection of persons adversely interested the presumption is rebutted. Ibid. § 22. The test as to whether the use of water by a riparian owner is reasonable or unreasonable is whether it works actual, material and substantial damage to the common right, not to an exclusive right to all the water in its natural state, but to the right which each proprietor has as limited and qualified by the precisely equal right of every other proprietor. Union Mill & Mining Co. v. Dangberg, §§ 80-87. § 23. A riparian owner may at all times, even in a dry season, hewn the water supply is insufficient to drive the mill of a riparian owner below him, consume as much water as is necessary for his household and domestic purposes, and for watering his stock. Ibid. § 24. Since a patent when issued relates back to the inception of title, that is, the original entry and payment, one who entered and paid for his land prior to the passage of the act of congress of July 26, 1866, entitled "An act granting the right of way to ditch and canal owners over the public lands, and for other purposes," has his land and the water upon it unaffected by that act. Ibid. $25. "Brockliss Slough," Cottonwood Slough,' ""Rock Creek Slough," "The Old Channel" and "Dangberg Creek," situated in the state of Nevada, in the vicinity of Carson river, are natural water-courses, and the persons through whose lands they pass have a right to use the water naturally flowing in them for irrigation and other lawful purposes. Ibid. 66 § 26. A person who has entered and paid for his land and received a certificate of purchase can claim and exercise riparian rights, although he has received no patent. Ibid. $27. Persons who have the actual possession as well as the beneficial estate or interest in the land are to all intents and purposes the owners of the land, and entitled to riparian rights. Ibid. § 28. There may be an invasion of a right to use the water of a stream which will justify an action without showing actual damage. But in applying this doctrine a distinction must be taken between those uses of the water which are the exercise of the riparian proprietor's natural right and those which are not. Such proprietor has a right to use the water for the purpose of irrigation as incident to his ownership of the land, the only limitation being that he must so use the water as to cause no actual material damage to another; and no action against him arises until such damage has resulted. On the other hand, one proprietor has no right to divert any portion of the water permanently from another, so that it either does not return to the stream at all, or not until it has passed the land of him below. Such diversion would be a clear violation of right, and, if continued adversely for the requisite period, would ripen into title. In such a case an action will lie without proving actual damage or showing that the plaintiff was making any practical use of the water. Ibid. § 29. No riparian proprietor or mill owner has a right to divert or unreasonably retard the natural flow of water to the parties below, and no proprietor or mill owner below has a right to retard or throw it back upon the lands or mills above, to the prejudice of the right of the proprietors thereof. Webb v. The Portland Manuf'g Co., § 88-101. 30. Where there is a mere fugitive and temporary diversion of water, without damage, and without pretense of right, a court of equity will not interfere, by way of injunction. Whether there would be any redress at law, quære? Ibid. $ 31. In a controversy between riparian owners and the owners of mills situated upon a trench or canal supplied from the river it was held that the owners of the trench had the right to use so much of the water of the river as had been accustomed to flow through the trench during twenty years before suit, subject, however, to such limitations as had been acknowledged or rightfully exercised by the riparian owners during that period. Held, also, that the trench owners could not further appropriate water from the river on the ground that it was not used by the riparian owners, because such surplus was the property of such riparian owners, and therefore not open for occupancy. Tyler v. Wilkinson, §§ 102-104. [NOTES.-See §§ 105-150.] AVERY v. FOX. (Circuit Court for Michigan: 1 Abbott, 246-260. 1868.) Opinion by WITHEY, J. STATEMENT OF FACTS.-The bill in this case is for an injunction against defendants, contractors and employees in constructing a new channel from White lake into Lake Michigan. Based on bill and affidavit, a motion is made for a temporary injunction to restrain defendants from proceeding with the work. It appears from the bill that White lake is four miles long and one mile wide; that with a commodious channel for entrance this lake would afford one of the best harbors on Lake Michigan. White lake is separated from Lake Michigan by a strip of land about fifty rods in width. White river empties into White lake, and is, for a distance of about five miles immediately above the lake, a stream from one hundred to two hundred feet wide, from |