ing. The navigable water is a highway; and when, in contact with this, the easement of a street or highway is granted, the very location of the latter shows that it was designed for the purpose of loading and unloading freight, and landing passengers from the water. The dedication of the banks of the water unites the two easements, each of which is essential to the full enjoyment of the other."

Every one knows that the accretions on the shores of our lakes, in most cases, rapidly increase, and that they are claimed as generally belonging to the owner of the fee. This has long been the doctrine of our courts, and it applies as well to the civil as the common law. But I am not sure that the doctrine may not have been carried too far, where the accumulations have arisen, in a considerable degree, from the improvement of the ports and landing places. In regard to a general commerce, or a more limited one, where the expenditure is necessarily incurred by the public, it should exercise control for the protection and interest of commerce.

It may be necessary to inquire how far this alluvial formation may be followed when the person bounded by it has been subjected to no expense, and when it may become inconvenient to the public. How shall the limit be fixed? It is indispensable that there should be a regulation which should be just to all parties interested in it, and should protect the symmetry and convenience of the port. It would seem that where the lot of the occupant was bounded by a street which formed the water line of the shore he was limited by the street, and could not claim beyond it. But where the street did not limit the boundary, the owner of the soil is obliged to protect his shore, and for this purpose he may claim the alluvial formation. So, in regard to the common at New Orleans; it was enlarged by deposit, and to preserve the commerce of the city the made land was protected to prevent the city from being cut off from the river.

Independently of the dedication of Bath street, extending to the line of the lake in 1801, and the abandonment in 1809, after the surveys were completed and the Indian title was extinguished, the objection remains that by the progress of time the claim had become stale, and not a proper subject of relief in equity. In the case of Smith v. Clay, 3 Brown, Ch. 642, note, it is said by Lord Camden:

"A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept upon his rights, and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive, and does nothing. Laches and neglect are always discountenanced; and therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this court."

By analogy to courts of law, chancery will apply the act of limitation. In Hovenden v. Annesley, 2 Schoales & L. 638, 639, the doctrine of the court is "that, in cases where the statute does not afford a direct analogy, the court will proceed according to its discretion, and this discretion will be governed by considerations of public policy, in view of the circumstances of the particular case." In a certain. class of cases a court of equity, acting on its own original principles, will refuse its aid under the special circumstances of the case; and

under other circumstances will give relief in less time than required by the statute. The chancellor, under ordinary circumstances, will follow the statute. But he is not bound to do so, but will be influenced by the peculiar circumstances of each case. This doctrine is laid down in almost all the leading authorities, and especially in Beckford v. Wade, 17 Ves. 98, 99; Bonney v. Ridgard, 1 Cox, Ch. 145; Bergen v. Bennett, 1 Caines, Cas. 19; Prevost v. Gratz, 6 Wheat, 481; Hughes v. Edwards, 9 Wheat. 489; Miller v. McIntyre, 6 Pet. 61; Piatt v. Vattier, 9 Pet. 405; Bowman v. Wathen, 1 How. 189. Vigilance is required in the prosecution of claims, and it has been the policy of all governments to bar claims if not prosecuted within a limited time. More than half a century has transpired since the affairs of the Connecticut Company were said to be finally adjusted. All claims known to the company at that time were settled in regard to debts due and the distribution of property. Great particularity, it is said, was observed in the exactness of this adjustment. The first and second generations of this large Connecticut company have gone to their account. I now speak of the shareholders of the original company. But a small portion of them can now be living. If they had left no other record of their lives and deaths, we should have looked for them among the memorials of the dead. But the papers of this suit contain some of the names of the descendants of the shareholders, if not some of those who belonged to the company originally. It is a well-established principle, that a mere quitclaim deed, without covenants of warranty, does not estop the grantor from showing that no title passed by such deed, and that, consequently, by the principle of reciprocity, it cannot estop the grantee from denying the title of the grantor at the date of the deed. The defendants, then, are not estopped from showing and claiming that the legal title to Bath street had passed to the trustees of the county or corporation of Cleveland, in trust for the public, before the date of their deed to Lloyd, and that, consequently, Lloyd took no title by that conveyance.

In their bill, the complainants charge that the conveyance by the trustees of the Connecticut Land Company to Lloyd of the land now in dispute was made by a fraudulent combination between the parties to that deed, in violation of the trust with which the land was charged, and with the design of depriving the complainants of their rights; that Lloyd had notice of the trust, and that the conveyance to him was fraudulent and void, seems to be clear. The original shareholders never authorized the trustees to make the assignment to Lloyd, it is believed, in any form, which seems to be apparent from the deed. They incurred no responsibility, nor were they authorized to assume any. The purchaser hoped to make something out of property which resulted from the labor of others, knowing that he could lose nothing. The prospect was a prospect of gain on the one side without loss on the other. Whether Lloyd had any interest in any original share in the company is not known. Whether he paid anything to the trustees is not known. The presumption, from the face of the quitclaim deed, is that, if any consideration were paid, it must have been a nominal amount only.

More than 27 years had transpired since the final adjustment of all claims by this company in 1809, and it would have been forgotten, or, rather, it would not have been brought again into view, had not the purchaser's hopes been quickened by a speculation. He is charged with fraud in procuring from the trustees the deed. Twentyseven years the claim remained dormant, and there is no reason why its sleep should be disturbed at this late date. Its resuscitation now can impart no vitality to the claim so deliberately abandoned in 1809, nor can it explain the dedication of Bath street in 1801; and, least of all, can it excuse that staleness which now rests upon it. Until 1842, no one took possession of the claim; but at this late period can the new claimant hope to connect it with the deliberate abandonment of 1809, when it was disclaimed by the original shareholders?

The case does not rest upon the statute of limitations, in the opinion of the court, but upon those great principles of equity which are exercised under its own rules by a court of chancery. It is a case not fitted for technical rules and special pleading. The associa tion was formed on liberal principles and on enlarged plans. Im mense sums of money have been expended in the construction of railroad depots and other improvements in this city, whose benefits have been extended not only through Ohio, but throughout the West. Having deliberately considered the leading facts of the case, and the law which applies to them, I am brought to the following conclusions:

1. That in 1795 the Connecticut Land Company made a large purchase in the Western Reserve, and issued to the stockholders certificates of stock for their respective interest therein, which was divided into shares; that this stock was vested in trustees, for the purpose of partition and conveyance to purchasers; that the lands were surveyed and distributed among the shareholders.

2. That the town of Cleveland was laid out, and the plot of the town was made into streets and squares, and that Bath street was laid out as the street bordering on the lake, and included the original street on the water line; that it was dedicated as including the land to the lake on the north.

3. The articles of the association were designed as temporary; and that the surveys having been completed, the Indian title extinguished, the shares were distributed among the stockholders in 1809, and a final settlement of their affairs was made of all matters between them; and it was agreed that there should be no other adjustment of their accounts which were then known, and only those which might afterwards be discovered should be examined. None such, it is understood, have been discovered, and any matters known should be considered as abandoned.

4. The claim is alleged to be a stale one, growing out of the beginning of the present century, and will not be aided in equity.

5. That the defendants have expended vast sums of money in the construction of five railroad lines and their depots, at the expense of near a million of dollars, on land made between Bath street and the lake, all of which, or nearly all of which, is now covered by

railroads, depots, and other buildings, for the accommodation of com

merce.

6. Under these circumstances and facts I am compelled by a sense of duty to say that I do not think the claim set out in the bill is sustainable in equity in favor of Lloyd or his assignees, or in favor of the Connecticut Land Company. It is therefore dismissed, with

costs.

CITY OF CLEVELAND v. CLEVELAND, C., C. & ST. L. RY. CO. et al. (Circuit Court, N. D. Ohio, E. D. March 1, 1899.) No. 5,730.

1. EJECTMENT-WHEN IT LIES-RECOVERY OF POSSESSION OF STREETS BY CITY. Ejectment will lie by a city to recover possession of streets in which the public has an easement.

2. COURTS-FOLLOWING PRIOR DECISIONS.

Defendants, claiming as licensees of a city, in a suit by adverse claimants, set up and successfully maintained the right of the city to certain land under a dedication for street purposes. Held that, in a subsequent action by the city against the defendants, the evidence being practically the same, the former decision, as to the validity of the dedication as claimed by the city. would be followed on the principle of stare decisis, though the city was not a party to the adjudication.

3. MUNICIPAL CORPORATIONS-ABANDONMENT OF STREET-INTENTION.

Where a city had granted, or attempted and assumed to grant, the right to defendants to use ground it claimed as a street, its acquiescence in such use, for any length of time, will not operate as an abandonment of its claim to the property.

4. ESTOPPEL-ACTS IN PAIS-CONSTRUCTION OF PARTY'S CONDUCT.

The conduct of a party, sought to be made the basis of an estoppel against him, must be viewed in the light of the understanding he then had of his rights, and not in the light of such rights as they may be thereafter determined.

5. SAME-ACTS OF CITY.

In 1849 the city of Cleveland entered into a contract with certain rail· roads, by which it granted them the right to use a portion of a tract of land claimed as a street. Not long afterwards, in a suit against the railroads by an adverse claimant, the defendants alleged their interest in the land to be that of licensees of the city, and successfully defended on the city's title under a prior dedication. Held, that the city, by permitting the railroads to remain in undisturbed, or even exclusive, possession of the ground for 45 years, and to expend large sums in the construction of improvements thereon without objection, was not estopped, as against them, to claim any rights in the property consistent with the contract, according to the construction and meaning given it by the defendants in their pleading in the former suit, where they had never given notice of any other or different claim.

6 LIMITATION OF ACTIONS-EJECTMENT-NATURE OF DEFENDANTS' POSSESSION. Nor can the defendants in such case successfully plead limitation against an action by the city, whatever may be the true construction of the contract under which they took possession, or the nature of their rights otherwise acquired, as by their own admission, in a sworn pleading, their holding was not adverse to the city, and it had the right to rely on such admission until notified that they claimed under a different tenure.

7. SAME-ADMISSIONS IN PLEADINGS.

A formal allegation in a petition in ejectment that, on the date it is filed, defendants unlawfully keep the plaintiff out of possession of the property, is not an admission that defendants' 'possession is adverse, 93 F.-8

which will support a plea of limitation, on proof that they have held in the same right for more than the statutory length of time.

8. RAILROADS-RIGHTS TO PUBLIC GROUNDS-CONSTRUCTION OF CONTRACT WITH

CITY.

Under the constitution of Ohio of 1802, the only restriction upon the exercise of the power of eminent domain by the legislature was the provision that money compensation should be made for private property when taken for public use, and by the railroad act of 1848 (46 Ohio Laws, p. 40) railroads companies were given power to construct and maintain railroads between the points named in their respective charters, and to appropriate streets or other public grounds to their use when necessary, either by agreement with the public authorities, or, such agreement failing, by a decree of a court. Held, that a contract made in 1849, while such act was in force, between a city and a railroad company, by which the city granted, "as fully and absolutely" as it had the power or legal authority to do, the right to the "full and perpetual use and occupation" of a portion of a street required by the railroad company for terminal purposes, did not reserve to the city any rights in, or control over, the property described, but that the railroad company took from the state, under the statute, and not from the city, an easement of a perpetual and exclusive use.

This was an action of ejectment by the city of Cleveland against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, the Lake Shore & Michigan Southern Railway Company, the Cleveland & Pittsburgh Railroad Company, and the Pennsylvania Company, to recover possession of ground claimed as a street, and accretions thereto, which was occupied by defendants, with their terminal buildings and tracks. The action was tried to a jury, and at the conclusion of the trial the court charged the jury in favor of the defendants, and also filed an opinion upon the legal issues involved.

Geo. L. Phillips, James Lawrence, and M. G. Norton, for plaintiff. John T. Dye and John H. Clarke, for defendant Cleveland, C., C. & St. L. Ry. Co.

M. R. Dickey and John H. Clarke, for defendant Lake Shore & M. S. Ry. Co.

Squire, Sanders & Dempsey, for defendants Pennsylvania Co. and Cleveland & P. R. Co.

HAMMOND, J. Gentlemen of the Jury: The first thing in order is the apology that I owe you and counsel in this case for the delay