Opinion of the Court.

from north to south, and contain 82.02 and 82.42 acres respectively.

The line meandered by Bennett, if applied to the lots as they now exist, would start on the south line of lot 1, at a point about twenty-five rods west of the centre line of the lots, that is, a north and south line through their centre dividing them into east and west halves, and would run in a north-easterly course, crossing said centre line very near the line between lots 1 and 2, and running through lot 2, east of said centre line, would leave lot 2 at a point on its north line about ten or twelve rods east of the centre line of the lot.

The claim of the defendants is, that the lake here is the west boundary of their land,—the east half of lots 1 and 2,— and that they, as riparian owners, are entitled to the land which they are in possession of, as an alluvial formation,land gained from the lake by alluvium.

To entitle defendants to set up such a claim, of course the lake must be the west boundary of their land. But the assumption that the lake is their west boundary is without warrant. Their west boundary, instead of being the lake, is the east line of the west half of lots 1 and 2. Long before the east half of these lots was patented to St. Ores, under whom defendants claim, the United States had, on September 28, 1850, made the grant of the west half of these lots to the State of Illinois, under which grant the plaintiff derives title.

By that act of Congress of September 28, 1850, and at that time, the title to the west half of these lots passed from the United States and vested in the State of Illinois. Railroad Co. v. Smith, 9 Wall. 96; Keller v. Brickey, 78 Ill. 133. from the United States to St. Ores, for the east half of the lots, was not issued until November, 1855, more than five years afterwards.

The patent

Where the fee in a water course does not belong to the grantor, of course no words of description will convey to the centre of it. "A deed bounded on a highway, prima facie, carries the title of the grantee to the centre of the road, on the

Opinion of the Court.

assumption that the grantor owns it; but when it appears that it was in fact owned by another, the terms of the deed are satisfied by a title extending to the roadside." Dunham v. Williams, 37 N. Y. 251, and see Canal Trustees v. Haven, 11 Ill. 554.

Such would have been the case even if the patent had purported to bound the land west on the lake.

But it did not do so. It purported to convey simply the east half of the lots, using no other description and giving no intimation of any lake or water course. This made the west boundary the east line of the west half of the lots. The west boundary of the east half of these lots must, by all the rules of subdivision of government lands, be a straight north and south line through the centre of the lots.

The official plat shows nothing different from the patent. Bennett's meander line, if it is to be looked at for any purpose, nowhere in its course corresponds with the line dividing the east and west halves of the lots. But defendants' lands were not purchased according to any plat of Bennett's survey. The plat of the government survey in the land office and the one according to which the United States sold and St. Ores purchased the east half of the lots, is that of the Pollock survey, which meanders nothing. All that appears upon that plat, as to any meandering whatever, is a note on the margin, that "a line of meanders was run along the eastern and western margins of the swamp or lake, in sections 5, 6, 7 and 8, and those sections thereby made fractional. The survey of said sections having been completed in 1851, the areas of the several tracts are recalculated," etc.

What the defendants claim as being a lake upon which their lands were bounded on the west, and whereby they took to the centre of the lake, appeared upon the plat as land surveyed and the area thereof calculated, and the records of the land office showed, at the time St. Ores purchased, that it had been previously sold by the government as the west half of

Opinion of the Court.

lots one and two,-the east half of which lots St. Ores purchased.

It is evident, then, that there are no riparian rights involved here, and that, however much land may have been gained from the lake since the time St. Ores purchased, there can, under that purchase of the east half of the lots, be no rightful claim as riparian owners thereof to any land west of the east line of the west half of the lots.

Another defence set up by the defendants is that of the Statute of Limitations, arising from an alleged twenty years adverse possession. Waiving the question whether the statute applies in this case, we do not find that there is sufficient proof that the possession of defendants had continued for twenty years before this suit was brought.

True, Peleg Bristol, one of the defendants, testifies that he had been in possession of these lots of land for twenty years, and about a year or a year and a half more, probably. At the time this testimony was given this suit had been pending seven months. He says that he went into possession under the deed to him from French. That deed was dated December 8, 1858, and this suit was commenced September 2, 1878. The interval is more than three months short of twenty years.

Henchcliff Bristol, the other defendant, testifies: "We bargained for that land either in (I think it is one or the other,) 1857 or 1858, and went to work on the land. We commenced, I was thinking, we commenced work on the land getting out wood, rail timber and fencing, that winter; I would not be positive. But we commenced plowing on there the next spring or summer; I think it was in summer, or else in August or September following."

He states afterwards that he thinks it was in the winter of 1857 or 1858 that they bargained for the land.

French testifies that his impression is defendants commenced to work on the land some time previous to his deed to them of December 8, 1858. He would think they went to

Opinion of the Court.

work on it in September or October previous, of that same

year.

This is all the testimony in the case as to the time when defendants went into possession of this land. It comes short of showing with any clearness and certainty that they went into possession before September 2, 1858, a time twenty years before the commencement of this suit.

There is some testimony as to the possession of St. Oras, the remote grantor of defendants, as far back as 1852. He made some improvements, as, a house and stable, and had four to six acres of wheat on the land. But whether any of these improvements extended over on the west half of the lots, and if so how much of them was on the west half, is altogether indefinite. The evidence is that the main part of his improvements was on lot 2; that the buildings were on that lot, and the witness states he thinks the field enclosed was on both sides of the meandered line.

Now, on lot 2 the meandered line of Bennett's survey runs entirely east of the dividing line between the east and west halves of the lots. There seems to be no certainty that any of the improvements on lot 2 were west of this dividing line; and if on lot 1 there might have been any west of such line, there is no certainty as to their extent.

The doctrine seems to be that when an usurper enters upon land, he acquires possession, inch by inch, of the part which he occupies, and that the mere naked possession, without color of title, is adverse only to the extent of the actual enclosure, which must be definite and notorious. Tyler on Ejectment, 894.

There is a failure of proof here of any definite actual enclosure made by St. Ores on the west half of these lots. Upon the vague, indefinite and uncertain evidence upon the subject, we think the court below was justified in finding against the defendants on the question of fact of twenty years adverse possession.

Syllabus. Brief for Plaintiff in Error.

Perceiving no error on the part of the court below in finding the issue for the plaintiff, the judgment is affirmed.

MORTON C. FISHER

V.

WILLIAM H. GREENE.

Filed at Ottawa May 18, 1880.

1. PRACTICE-filing additional pleas. Where leave is asked to file additional pleas eighteen months after the issues have been made up, and on the eve of the trial, there will be no abuse of discretion or error in refusing the same, especially where no affidavit is filed showing a reasonable excuse for the delay.

2. Where a defendant, after filing the general issue and a continuance of the cause has been had, discovers that he has a substantial defence not admissible under the general issue, he should at the earliest convenient day ask for special leave of the court to file an additional plea, so as not to take the plaintiff by surprise or delay the business of the court.

3. CONTINUANCE-diligence to take deposition. Where due diligence has not been used to procure the deposition of a party or witness, a motion for a continuance, based on the fact that such deposition has not been returned, is properly overruled.

4. EVIDENCE-secondary. Where an original paper is in the hands of a third person residing out of the State, and he refuses to attach the same to his deposition when taken, and requested so to do, a sworn copy taken by another person present, who attaches such copy to his deposition, is admissible in evidence.

WRIT OF ERROR to the Appellate Court for the First District.

Mr. H. G. LUNT, for the plaintiff in error:

The court erred in refusing the defendant leave to file amended or additional pleas. The right is given by statute. Rev. Stat. ch. 110, p. 737. It can not be said that a party has a legal right to that which a court has a discretion to grant or deny. Tallman v. Hinman, 10 How. Pr. 90. See,