To the same effect is Hamilton v. Armstrong, and strongest case of notice of any record I 120 Mo. 597. have ever examined. Holding these views, I am constrained to dissent from the majority opinion. I hold that the facts in this record show the clearest Brace and Burgess, JJ., concur in the foregoing opinion. OHIO SUPREME COURT. LAKE SHORE & MICHIGAN SOUTHERN | the premises described "with all privileges R. CO., Plff. in Err., V. Harvey P. PLATT et al. (52 Ohio St.-) *A conveyance of lands situated upon a navigable stream, the description being by courses and distances from a fixed monument and establishing a boundary line coincident with the line of navigation, conveys the grantor's title as far as the central thread of the stream. (June 25, 1895.) RROR to the Circuit Court for Lucas County ERROR a judgment affirming a judgment of the Court of Common Pleas in favor of plaintiff in an action brought to recover pos session of certain land under the waters of the Maumee River. Reversed. Statement by Shauck, J.: January 17, 1876, Platt et al. brought ejectment in the common pleas court of Lucas county to recover the subaqueous ground lying between the former and present dock lines along the Maumee river and in front of a part of lot 11 in the city of Toledo. Each party asserts title in fee to such ground, and their rights depend upon the following material facts as shown by the pleadings and the stipulations upon which the cause was submitted in the common pleas: and appurtenances to the same belonging." The company took possession and constructed the docks necessary for traffic in connection with boats navigating the river and lakes, upon the dock line which was established by authority. September 10, 1869, Mrs. Hall conveyed to Platt et al. a number of tracts of land, including lot 11, but expressly "reserving that portion of tract 11 which lies northwesterly of the center of the river road, the same being now in possession of the railroad company, such reservation including the premises now in controversy. the purpose of accommodating vessels of Thereafter the dock line was changed for greater draught, and the railroad company completing the reconstruction of its dock in docked out to the new line thus established, July, 1873. April 13, 1874, Mrs. Hall by quitclaim granted to Platt et al. all her interest in lot 11. recovered, and that judgment was affirmed by In the court of common pleas Platt et al. the circuit court. Mr. George C. Greene, with Mr. E. D. Potter, Jr., for plaintiff in error: The warranty deed to the railroad company, made in 1855, covered the title to the property described in the deed, together with all the privileges and appurtenances to the same belonging, including the riparian rights. Morgan v. Mason, 20 Ohio, 410, 55 Am. Dec. 464; Pickering v. Stapler, 5 Serg. & R. 107, 9 One who owns land bounding and abutting on the navigable rivers of this state owns to the center of the stream. In 1852 Harriet O. Hall was the owner in fee of lot 11 which included the premises in controversy. August 9, 1852, the Lake Shore Company (its predecessor), commenced pro-Am. Dec. 336. ceedings in the probate court to appropriate lands for railroad purposes. The appropriation by meets and bounds carried the line of the company's property thus acquired to the former dock line which was approximately parallel with the shore line and where there was available, for purposes of navigation, a depth of water somewhat exceeding nine feet. The company at once took possession of the lands acquired for landing, dock and terminal purposes (for which purposes they had been acquired) and built its dock upon the line established. June 21, 1855, Mrs. Hall executed to the company a deed for the same property for the express purpose of assuring its title. The description in this deed also carried the line to the former dock line, and granted Gavit v. Chambers, 3 Ohio, 496; Walker v. Ohio Board of Public Works, 16 Ohio, 543; Lamb v. Rickets, 11 Ohio, 316; Benner v. Platter, 6 Ohio, 510; Hopkins v. Kent, 9 Ohio, 14; Watson v. Peters, 26 Mich. 508; Luce v. Carley, 24 Wend. 451, 35 Am. Dec. 687; June v. Purcell, 36 Ohio St. 396; Day v. Pittsburg, Y. & C. R. Co. 44 Ohio St. 406. There are no apt words in this deed to the railway company showing any intention on the part of the grantors to exclude the plaintiff in error from the use, occupation, and enjoyment of the bed of the river, lying in front of the premises conveyed. Norcross v. Griffiths, 65 Wis. 599, 56 Am. Rep. 642; Goodin v. Cincinnati & W. Canal Co. 18 Ohio St. 169, 98 Am. Dec. 95; Knickerbocker Ice Co. v. Forty-second Street & G. Street Ferry R. Co. 65 How. Pr. 211; Rippe v. Chicago, D. & M. R. Co. 23 Minn. 18; 1 Rorer, Railroads, 402; Chenango Bridge Co. v. Paige, 83 N. Y. 178, 38 Am. Rep. 407; Smith v. Rochester, 92 | N. Y. 465, 41 Am. Rep. 290; Carli v. Stillwater Street R. & Transfer Co. 28 Minn. 373, 44 Am. Rep. 393; Kent v. Taylor (N. H.) 6 New Eng. Rep. 191: O'Donnell v. Kelsey, 10 N. Y. 412; Washb. Easem. 105, 124; East & West R. Co. of Alabama v. East Tennessee, V. & G. R. Co. 22 Am. & Eng. R. R. Cas. 90, and note; Sumner v. Seaton, 47 N. J. Eq. 103; Richard son v. Prentiss, 48 Mich. 88. The defendants in error having knowledge of and permitting the plaintiff in error to take actual possession of the property in dispute and improve it at a large expense and outlay. and the same being a part of its right of way and terminal property in Toledo with main and side tracks thereon and necessary in the daily use and operation of its road, should not be permitted to maintain an action of ejectment for the same, but their remedy, if they have one, is by action at law to recover the value of the property taken. Buffalo v. Nichols, 64 N. Y. 70; Kingsland v. Where any one is the owner of the soil under the water by virtue of his grant being extended to the center of the channel, when it is bounded by the river, he can dispose of this land under the water just as any other land he owns. He may divide it into water lots and sell them. He may convey it separately from the upland or he may sell part of it with the upland, and retain the balance, or convey it to a third party. What he has done is a question of interpretation of the conveyance from which the intention is to be derived. Gould, Waters, p. 45; Bradford v. Cressey, 45 Me. 13; Hatch v. Dwight, 17 Mass 298, 9 Am. Dec. 145; Storer v. Freeman, 6 Mass. 440, 4 Am. Dec. 155; Tyler v. Hammond, 11 Pick. 213: Child v. Starr, 4 Hill, 374; 3 Kent, Com. p. 434; Den v. Wright, 1 Pet. C. C. 69; Watson Goodin v. Cincinnati & W. Canal Co. 18 Ohio v. Peters, 26 Mich. 508; Chicago v. Rumsey, 87 St. 169, 98 Am. Dec. 95; Pryzbylowicz v. Mis- Ill. 351; Jackson v. Hathaway, 15 Johns. 453, souri River R. Co. 17 Fed. Rep. 492, 3 McCrary, 8 Am. Dec. 263; Trustees of Schools v. Schroll, 587; Taylor v. Chicago, M. & St. P. R. Co. 63 120 Ill. 521; Tyler, Boundaries, p. 123; Hall, Wis. 327; Paterson, N. & N. Y. R. Co. v. Kam-Rights in Seashores, p. 155; Moses v. Eagle & lah, 42 N. J. Eq. 93; Lawrence v. Morgan's Phanix Mfg. Co. 62 Ga. 456; Rivas v. Solary, Louisiana & T. R. & S. 8. Co. 39 La. Ann. 427; 18 Fla. 124. Indiana, B. & W. R. Co. v. McBroom, 114 Ind. 198; Evansville & T. H. R. Co. v. Nye, 113 Ind. 223; Omaha & N. W. R. Co. v. Redick, 16 Neb. 313; Cincinnati v. Kemper, 2 Week. L. Bull, 5. Whether the title of the owner of such lots extends beyond the dry land or not, he is certainly entitled to the rights of a riparian proprietor whose land is bounded by a navigable stream; among those rights are access to the navigable part of the river from the front of his lot, the right to make a landing, wharf or pier for his own use or for the use of the public, subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public. If he bounds the land by the river eo nomine the grantee takes to the thread; if he conveys by metes and bounds the title of the grantee is limited by the boundaries fixed. We find no power given the company to condemn or to hold private property to its exclusive use, solely for wharf purposes. Iron R. Co. v. Ironton, 19 Ohio St. 299; Walsh v. Barton, 24 Ohio St. 28; Pennsylvania Co. v. Platt, 47 Ohio St. 366. Where a grantor has the power to grant the fee or an easement in a particular piece of land, if he grants the easement, it could not have been his intention to convey the fee. Mott v. Mott, 68 N. Y. 254. In a river like the Maumee where the riparian owner, when the land is bounded by the river, takes to the center of the stream, the right to build wharves is dependent upon the ownership of the soil under them, and whoever erects a wharf upon soil not his own is a trespasser. to the public right of navigation. Yates v. Milwaukee, 77 U. S. 10 Wall. 497, 19 L. ed. 984: Gavit v. Chambers, 3 Ohio, 496; Benner v. Platter, 6 Ohio, 505; June v. Purcell, 35 Ohio St. 398; Wright v. Howard, 1 Sim. & Stu. 203; Handly v. Anthony, 18 U. S. 5 Wheat. The right to build wharves on soil owned 384, 5 L. ed. 115; Ex parte Jennings, 6 Cow. by the state or public is a franchise which the 518, 16 Am. Dec. 447; Whitehurst v. McDon-adjacent owner enjoys from the state, subject nald, 8 U. S. App. 164, 52 Fed. Rep. 633; Day v. Pittsburg, Y. & C. R. Co. 44 Ohio St. 406; Illinois Cent. R. Co. v. Illinois, 146 U. S. 387, 36 L. ed. 1018; Meyers v. Mathis, 42 La. Ann. 471; Luce v. Carley, 24 Wend. 451, 35 Am. Dec 637; Seneca Nation of Indians v. Knight, 23 N. Y. 498; Watson v. Peters, 26 Mich. 508; Norcross v. Griffiths, 65 Wis. 599, 56 Am. Rep. 642: Richardson v. Prentiss, 48 Mich. 88. Mr. Frank H. Hurd, for defendant in error: A call for a river carries the boundary to the center of the river, where it is not a navigable stream, at common law. But this is only in those cases where the river eo nomine is made the boundary. Jones v. Soulard, 65 U. S. 24 How. 65, 16 L. ed. 608; Boston v. Richardson, 13 Allen, 146; Luce v. Carley, Wend. 453, 35 Am. Dec. 637; Mott v. Mott, 68 N. Y. 254; White's Bank of East Haven v. Hemingway, 7 Conn. 202; Coburn v. Ames, 52 Cal. 398, 28 Am. Rep. 634; Hamlin v. Pairpoint Mfg. Co. 141 Mass. 57; Parker v. Rogers, 8 Or. 189; Houck, Rivers, p. 187; Wharf Case, 3 Bland, Ch. 373; Grant v. Davenport, 18 Iowa, 179; Naglee v. Ingersoll, 7 Pa. 201. The right of the adjacent owner to build wharves where he holds the title to the soil to the center of the river depends upon the ownership of the soil, which he may exercise by carrying out the wharves to the point of navigability, subject to the supervision of the state or municipality and without making obstruction to navigation. Houck, Rivers, p. 188; Wood, Nuisances, § 490; Atty. Gen. v. Earl of Lonsdale, L. R. 7 Eq. 389; Jeffersonville v. Louisville & J. 8. Ferry Co. 27 Ind. 100; 1 Dill. Mun. Corp. 3d ed. 1155; Nicoll v. Gardner, 13 Wend. 289; Hogan v. Campbell, 8 Port. (Ala.) 34; Norfolk City v. Cooke, 27 Gratt. 435; Delaware & H. Canal Co. v. Lawrence, 2 Hun, 186; Middleton v. Pritchard, 4 Ill. 521, 38 Am. Dec. 112; Chicago v. Laflin, 49 Ill. 176; Rice v. Ruddiman, 10 Mich. 141; Ryan v. Brown, 18 Mich. 207, 100 Am. Dec. 154; Walker v. Ohio Board of Public Works, 16 Ohio, 544; Hickok v. Hine, 23 Ohio St. 528, 13 Am. Rep. 255. When the riparian proprietor owns to the center of the river his right to build wharves depends upon the ownership of the soil, and if he cannot wharve out to the point of navigability, except by building upon the land of another, he will be a trespasser if he does so, unless he first obtains the latter's consent. ❘ Lembeck v. Nye, 8 L. R. A. 578, 47 Ohio St. 336; People v. Jones, 112 N. Y. 603. Shauck, J., delivered the opinion of the court: At the dates of the appropriation by the company and the subsequent grant of June 21, 1855, Mrs. Hall, the grantor, and the railway company, the grantee, were alone interested in what is now the subject of controversy. In the practical interpretation of its rights acquired by the appropriation and the grant, the company took actual possession not only of the bank of the stream but of so much of the river as might be necessary to reach the established dock line at a depth of water of nine feet. By the deed of September 10, 1869, Platt et al. acquired no title to the premises in controversy, for they were expressly excepted from the operation of the deed. Not only so, but by the terms of the reservation or exception, the grantees were notified that the grantor had, by a former conveyance, granted to the company the premises now in controversy. But from a consideration of the rules which prevail in the construction of grants of this character, we think the premises in controversy passed to the company by the terms of the deed of 1855. It is true of that deed, as well as of the previous proceedings to appropriate, that the Maumee river was not named as the boundary of the lands appropriated or conveyed. But by the strictest construction that could be placed upon the deed it conveyed not only the land upon the bank of the stream, but all that lay between the water's edge and the original dock line projected where a depth of nine feet of water was available for the purposes of navigation. The terms of the grant do not admit of any broader claim on behalf of the grantor than that she did not expressly convey to the central thread of the stream. If title to the subaqueous lands, lying between the former and present dock lines, remained in her, it was by virtue of a presumption operating in her favor, notwithstanding the location of the lands expressly granted, the obvious purposes of the grant and the limited and incidental use of which alone the lands in controversy are susceptible. The lands were acquired by the company for landing, dock, and terminal purposes. That these purposes were within the contemplation of all the parties is indicated by the location of the lands upon a navigable stream and the express grant of that portion of the stream which was necessary to make the grant available for that purpose. The ground in controversy is insusceptible of absolute and unqualified dominion, being incidental to the shore and subject to the public right to navigate the stream. Because of the permanent character of the riparian and public rights involved, the case is broadly distinguishable from those of grants bounded on streets and highways which may be abandoned and their sites thus restored to a con"dition in which they may be subject to absolute and unqualified dominion. For the same reason the case is distinguishable from those of grants of lands bounded by swamps, ponds, and lakes that are not navigable and are subject to drainage. The use of the stream for the purpose of navigation was not only within the contemplation of the parties to the deed from Mrs. Hall to the company, but it was the principal and most obvious element of the value of the lands expressly granted. The exception was not of "so much of tract 11 as the railroad company now occupies, but it was of "that portion of tract 11 which lies northwesterly of the river road, the same being now in possession of the railroad company. This was express notice to the grantees that the company was in possession not only of the bank of the stream but of all that portion of tract 11 which lay between the bank and the central thread of the stream. On April 13, 1874, when the defendants in error received from Mrs. Hall the quitclaim under which they now assert title, they found that the company had extended its docks over the disputed premises to the newly established dock line. This had been done in the assertion of the rights acquired by virtue of the appropriation and the deed of June 21, 1855, and with the acquiescence of Mrs. Hall to whom these parties now look as the common source of title. The defendants in error took nothing by the quitclaim, because, not only the terms of their former deed, but the actual possession of the company, affected them with notice of the rights now asserted by the company, which rights their grantor could not then contest, since she had acquiesced in the company's possession continuously from the date of the appropriation. Those considerations would seem to justify the presumption that a grant of this character is to the central thread of the stream unless apt terms are employed to limit it. And such appears to be the settled view of the courts of the country. Well-considered cases in which this doctrine is held are, Garit v. Chambers. 3 Ohio, 496; Walker v. Ohio Board of Public Works, 16 Ohio, 543: June v. Purcell, 36 Ohio St. 396; Watson v. Peters, 26 Mich. 508; Luce v. Carley, 24 Wend. 451, 35 Am. Dec. 637; Norcross v. Griffiths, 65 Wis. 499, 56 Am. Rep. 642; Yates v. Milwaukee, 77 U. S. 10 Wall. 497, 19 L. ed. 984; St. Clair County v. Lovingston, 90 U. S. 23 Wall. 46, 23 L. ed. 59. To the application of this doctrine it is cess to and use of the navigable waters would attach as an incident. But it was not there held that one may own that which he cannot enjoy. Since a plaintiff in ejectment must recover, if at all, by virtue of his own title, the contention of the defendants in error would not be aided by the conclusion that the lands in controversy are incapable of private ownership. quite immaterial whether the stream be, named as a boundary of the lands granted or there be a description by courses and distances from a fixed monument whereby a line is established coincident with the stream. The doctrine regards the substance of the grant and not its form. Watson v. Peters, and St. Clair County v. Lovingston, supra. It is true that the common law regarded only those streams as navigable which are subject to the ebb and flow of the tides; and, Confining ourselves to the requirements of in this view, the difference between riparian the case, we conclude that the lands in conand littoral titles becomes unimportant, since troversy passed to the plaintiff in error by they alike terminate at the water's edge, the the deed from Mrs. Hall because they were title to the residue of the alveus being in not by clear and apt terms excepted from its the public. While this view has been taken operation, and for the additional reason that, in some of the American cases, it cannot be it being an express grant of her lands to the regarded as the view generally received. Nor line of navigation with all the privileges could it avail the defendants in error. The and appurtenances to the same belonging, the manifest result of these cases is that riparian right asserted by the grantee is necessary to and alvean rights are inseparable, whatever satisfy the express terms of the deed. Gould, may be the nature or extent of those rights. Waters, § 179; Wood, Nuisances, § 491; MorAlvean rights appertain to the riparian title gan v. Mason, 20 Ohio, 402, 55 Am. Dec. 464. and do not depend upon title to the subaqueous land. That such rights are incapable of severance from the riparian title to which they are incident was distinctly held in Lake Superior Land Co. v. Emerson, 38 Minn. 406. The conclusion reached in that case was adversely criticised by the same court in Hanford v. St. Paul & D. R. Co., 43 Minn. 104, 7 L. R. A. 722, where it was considered that the rights may be severed if they are of such a nature that they may be enjoyed separately from the adjacent land to which they were iginally appurtenant. It was accordingly held that submerged lands lying between the high land upon the shore and the line of navigation might be severed from such high land; and that conclusion would result from the consideration that such submerged lands, being susceptible of reclamation without interference with public rights, might become the subject of the riparian title to which ac The views expressed in Lembeck v. Nye, 47 Ohio St. 336, 8 L. R. A. 578, were not intended to have, and cannot have, any application to a case of this character. The lands there in controversy lay under water that was not navigable. By the clear terms of the syllabus the case was limited to lands thus situated; and in the principal opinion prominence is given to the consideration that the lake there in controversy was susceptible of private ownership, and the views here expressed were recognized as controlling in cases of navigable streams. It is not necessary to consider the evidence offered by the plaintiff in error, in support of its plea of estoppel, as the right for which it contends is fully established by the stipu lations. Judgments of the Circuit Court and Court of Common Pleas reversed, and judgment for plaintiff in error. PENNSYLVANIA SUPREME COURT. Hiram H. GRAYBILL v. PENN TOWNSHIP MUTUAL FIRE IN- (170 Pa. 75,) Smoked meats taken from a smokehouse to a storage room as fast as they are cured are contents of the smokehouse within the meaning of a policy in separate sums upon a butcher's shop and its contents and the smoke-house and its contents, where it was the understanding of the parties that the smoked meats taken out of the smoke-house for storage were properly insured as contents of the smokehouse, and recovery may be had therefor when burned with the butcher shop, although the smoke-house is not burned. (July 18, 1895.) NOTE.-As to the location of movable property as affecting fire insurance thereon, see note to Benton v. Farmers Mut. F. Ins. Co. (Mich.) 26 L. R. A.237. See also 39 L. R. A. 545; 43 L. R. A. 838. APPEAL by defendant from a judgment of the Court of Common Pleas for Lancaster County in favor of plaintiff in an action brought to recover the amount alleged to be due on a policy of fire insurance. Affirmed. The facts are stated in the opinion. Messrs. A. F. Hostetter and Eugene G. Smith, for appellant: An executed written contract cannot be pushed aside by the uncorroborated testimony of a single witness. Rowand v. Finney, 96 Pa. 196; Martin v. Berens, 67 Pa. 459; Murray v. New York, L. & W. R. Co. 103 Pa. 43; North & West Branch R. Co. v. Swank, 105 Pa. 561. Previous negotiations of the parties are presumed to be merged in the written instru ment. Phillips v. Meily, 106 Pa. 543; Juniata Bldg. & Loan Ass80. v. Hetzel, 103 Pa. 507; Sylvius v. Kosek, 117 Pa. 76; Frey v. Heydt, 116 Pa. 611. No doubt the contents which were destroyed by fire, being smoked meat, had some time before been also the contents of the smokehouse. But wherever they might have been sometime, or howsoever often they may have been removed, cannot be material. At the time of the fire they were the "contents" of the building destroyed and were insured for $400, which the defendant company is now and always has been ready to pay. Cooper v. Farmers Mut. F. Ins. Co. 50 Pa. 807, 88 Am. Dec. 544. Messrs. W. U. Hensel and J. Hay Brown, for appellee: The testimony was simply descriptive of the term "contents" as used in this policy. There was no stipulation in the policy that the meat insured was insured only in the smoke house, while there was positive testimony that the president of the company knew exactly what the insured intended by the term "contents," and that by no possibility could the smokehouse have held $500 worth of meats at one time. There was no dispute that the property was destroyed, nor as to its value. "It is the duty of the court to interpret a' contract." Folsom v. Cook, 115 Pa. 539; Codding v. Wood, 112 Pa. 371. The contract being interpreted by the court, it is the function of the jury "to determine whether it is established by proof." The testimony shows the positive promise to pay the full amount of the policy by the officers of the company, which, in itself, if believed by the jury, would be a waiver of any forfeiture for an alleged breach in removing the meat from the smoke-house to the room. Williams, J., delivered the opinion of the court: This case turns upon the meaning of the word "contents as used in the policy of insurance sued on. A ground barn and a butcher shop were insured as one building for the sum of $400, and the contents were insured for $400 more. A smoke-house was insured for $5 and its contents for $500. The barn, and butcher shop were burned with their contents. The smoke house was not burned, but its contents, which had been removed to a storage room in one end of the butcher shop were wholly consumed. The question presented on this appeal is whether the smoked meats in the storage room, which were taken there as fast as they were cured in the smoke-house, were contents of the smoke-house, within the meaning of the policy, and were to be paid for by the company as part of the loss for which it was liable. Words must be understood in the sense in which they are commonly used in the busi ness to which the contract in which they are found relates. This contract was to insure the buildings, machinery, and stock of a butcher. The president of the company proposing to insure was on the ground. The buildings and the property were examined by him. The evidence shows that in the barn and butcher shops there were a steamengine and a boiler with conveniences for handling dressed cattle, machinery for chopping or grinding meat, and for making bomeat-logna and other sausages. These as the plaintiff alleges constitute the contents of the barn and butcher shop that were insured for $400. The smoke-house and storage room were also pointed out to him, and it was explained to him as the plaintiff testifies, that the smokehouse could hold but a small amount of meat at one time while the process of smoking was going on, but the hams, sausage, bacon, or other meat was removed from the smokehouse when cured and stored in the storage room, and that what was wanted was insurance on the smoked goods. The plaintiff says that the president stated that the smoked meat would be properly insured as contents of the smoke-house, and these words were written in the application and policy with that understanding, viz., that they would include and cover the smoked meats taken out of the smoke-house for storage in the room used for that purpose. The learned judge of the court below left this evidence to the jury for their consideration, telling them if they were satisfied by it the word "contents" used in connection with the smoke-house was understood and intended by both insurer and insured to cover the smoked meat in store, whether actually in the smoke-house or not, the plaintiff would be entitled to recover to the extent of $500 for his loss on these goods. This is assigned as error, and the contention of the appellant is that it permitted an alteration to be made in a written instrument upon the uncorroborated testimony of the plaintiff. But the word "contents" is not a certain and definite description of any particular class of goods. Its meaning must be ascertained by considering the contents, the nature and methods of the business for which the building whose con Wood, Fire Ins. 949; Greenfield v. Massachusetts Mut. L. Ins. Co. 47 N. Y. 439; Williams v. Hartford Ins. Co. 54 Cal. 442, 35 Am. Rep. 77. Contracts of insurance being prepared by the insurer, must be construed most strongly against the company insuring. Strunk v. Firemen's Ins. Co. 160 Pa. 345. The knowledge of the president of the company, who went there to survey the premises, and who subsequently wrote the policy, that the meat would not be kept permanently in the smoke-house, must be imputed to the company itself, and it cannot now take exception to or advantage of the fact that the meat was removed from the smoke-house to the smoke room. 2 May, Fire Ins. 3d ed. § 507, p. 1108; Viele v. Germania F. Ins. Co. 26 Iowa, 9, 96 Am. Dec. 83; Benson v. Ottawa Agr. Ins. Co. 42 U. C. Q. B. 282; McMaster v. Insurance Co. of North America, 55 N. Y. 222, 14 Am. Rep. 239. The question whether a change of circumstances in the situation, use, or condition of the property insured increases the risk, is purely one of fact for the jury, and their finding is conclusive. Wood, Fire Ins. § 243; Williams v. People's F. Ins. Co. 57 N. Y. 285. When an agent of an insurance company erroneously describes the property in an application for a policy of insurance prepared by him and signed by the insured, the company cannot in case of loss defend by reason of the misdescription. Susquehanna Mut. F. Ins. Co. v. Cusick, 109 Pa. 157. |