2. A riparian owner on a navigable stream may, in ejectment, recover land lying between high and low water mark, from one in possession not claiming rights as a navigator or fish

erman.

Appeal from district court, Choteau county; Dudley Du Bose, Judge.

Action by Charles S. Gibson against William Kelly to recover land. Judgment for plaintiff, and defendant appeals. Affirmed.

A demurrer to the defendant's answer was sustained, and judgment accordingly entered for plaintiff. The defendant appeals. The action is one in the nature of ejectment. Plaintiff sets up in his complaint that for five years last past he has been, and still is, the owner of lot No. 3, section 12, township 23 N., range 7 E., county of Choteau, state of Montana, according to the government survey; that said land is bounded on the southeast side by the Missouri river; that the defendant has entered upon and taken possession of a portion of said premises, to wit, a strip 600 feet wide, lying next to and bounded by the said river, on the southeast side; and that he wrongfully and unlawfully occupies and possesses the same, and detains the same from the plaintiff. The answer admits that the plaintiff is the owner of said lot No. 3, and alleges that the defendant is not occupying any portion of said lot. The defendant admits that the Missouri river is the southeast boundary of said lot, but that the said southeast boundary is the highwater mark of said river. He alleges that said river is a navigable river. The, defendant admits that he is in possession of a strip of land 600 feet wide in said section 12, township 23 N., range 7 E., and he alleges that said strip is bounded on the southeast by the Missouri river, and on the north by said lot No. 3,-the land owned by the plaintiff, and that said northwest boundary of defendant's said land is the ordinary highwater mark of the Missouri river; that the piece or parcel of land so possessed and occupied by the defendant is the same parcel alleged in plaintiff's complaint to be a part of said lot No. 3; and that said strip of land in controversy is the land which lies between the low-water mark and the high-water mark of said river. By reason of which facts, defendant alleges that said strip of land is not, and never was, a part of said lot 3, and that plaintiff has not, and never had, any right, title, or interest therein, or in any part thereof, or any right to possession thereof. The plaintiff's demurrer to this answer was upon the ground that the answer did not state facts sufficient to constitute a defense. This demurrer was sustained. The question presented is whether, when the plaintiff's land was bounded by the Missouri river, he could maintain ejectment against the defendant for taking possession, and retaining and excluding the plaintiff from the possession, of the strip of ground between the high-water mark and the low-water mark.

Ransom Cooper and W. M. T. Pigott, for appellant.

Riparian owners on navigable waters own to high-water mark only. Coburn v. Ames, 52 Cal. 385; McManus v. Carmichael, 3 Iowa, 1; Parker v. Packing Co. (Or.) 21 Pac. 822; Bowman v. Wathen, Fed. Cas. No. 1,740, 2 McLean, 376; Pollard's Lessee v. Hogan, 3 How. 212; Goodtitle v. Kibbe, 9 How. 471; The Genesee Chief v. Fitzhugh, 12 How. 453; Howard v. Ingersoll, 13 How. 381; Illinois Cent. R. Co. v. Illinois, 13 Sup. Ct. 110. Arthur J. Shores, for respondent.

Riparians on navigable streams own to low-water mark. Bell v. Gough, 23 N. J. Law, 624; Nichols v. Lewis, 15 Conn. 137; Simons v. French, 25 Conn. 346; Mather v. Chapman, 40 Conn. 382; Illinois Cent. R. Co. v. Illinois, 13 Sup. Ct. 110; Town of Ravenswood v. Flemings, 22 W. Va. 52; Delaplaine v. Railroad Co., 42 Wis. 224; Lyon v. Fishmongers' Co., 1 App. Cas. 662; Berry v. Snyder, 3 Bush, 266; Miller v. Hepburn, 8 Bush, 332; Ball v. Slack, 2 Whart. 508; Blundell v. Catterall, 5 Barn. & Ald. 268; Clement v. Burns, 43 N. H. 609; Rice v. Ruddiman, 10 Mich. 130; Hanford v. Railroad Co. (Minn.) 44 N. W. 1144; Morrill v. Water-Power Co., 2 N. W. 842, 26 Minn. 228; Middleton v. Pritchard, 3 Scam. 510; Morgan v. Reading, 3 Smedes & M. 366; The Magnolia v. Marshall, 39 Miss. 109; Fletcher v. Boom Co., 16 N. W. 645, 51 Mich. 277; Webber v. Boom Co. (Mich.) 30 N. W. 472; Wadsworth v. Smith, 11 Me. 278; Day v. Railroad Co. (Ohio Sup.) 7 N. E. 528; Jones v. Pettibone, 2 Wis. 309; Delaplaine v. Railway Co., 42 Wis. 224; Ex parte Jennings, 6 Cow. 518; Smith v. City of Rochester, 92 N. Y. 463; Fishing Co. v. Carter, 61 Pa. St. 21; Stuart v. Clark's Lessee, 2 Swan, 9; Home v. Richards, 4 Call, 441; State v. Narrows Island Club (N. C.) 5 S. E. 411.

DE WITT, J. (after stating the facts). This case presents a proposition which is wholly new in this state, and one which, for a century past, has commanded the interest and learning of the ablest of the United States and state courts. The question is simply stated: If one's land be bounded by a navigable river, does his title extend ad filum medium aquae, or to the low-water mark, or to the high-water mark? The legal literature upon this subject in this country is rich in research, reasoning, and learning. In fact, the matter has been so extensively treated that at this late day, when a new state is called upon to fix the rule, there is nothing left to say upon the subject, either new or original; and the labors of a court are perhaps nothing more than to select from the three rules which have heretofore been adopted in different jurisdictions that which may be deemed to be the one which, under all the circumstances, should obtain in this state.

Under the common law, navigable water was that which ebbed and flowed with the tides of the ocean. Upon navigable water the abutting landowner had title to high-water mark. Upon nonnavigable streams the abutting landowner had title ad filum medium aquae. In some of the original 13 states, which lay along the seashore, and where streams navigable in fact were generally those in which the tide ebbed and flowed, the common-law rule was adopted. But when, early in this century, the great tide of immigration began to flow westward, and follow the mighty water courses of the continent, it soon became apparent that the common-law rule could not be applied to the great rivers, navigable in fact, and one of which alone is in fact navigable above tide water for a distance which would several times girdle the ancient home of the common law. The common law was therefore modified, and the rule is now established by the overwhelming weight of American authority that a stream navigable in fact is navigable in law. For the history of the development, up to the year 1856, of this American rule, we refer to that profoundly learned treatise found in McManus v. Carmichael, 3 Iowa, 1, in which case the supreme court of Iowa, with the aid of able counsel, exhausted the whole subject. With the adoption of this rule, the doctrine that the riparian owner's title to the land bounded by a river nontidal, although navigable in fact, runs ad filum, was also generally repudiated. But at this point the courts of different states have followed different paths. One group of states holds that the abutting title goes to high-water mark, and the other group holds that it extends to lowwater mark. On this line the battle of decisions has waged since a period long prior to the time when the waters of our state were made the servants of commerce. Argument, history, reasoning, and politics have been called to the aid of the advocates of the two doctrines. See the interesting collection of cases in the briefs of counsel in this case. As we, among the last commonwealths of the Union, approach a solution of this question, it would be interesting-but, in view of what has been done by scores of able courts before us, it would probably not be instructive or important-to make an excursion through this field, where the footprints of our remote predecessors have long ago been beaten into plain paths by those who are even now, to us, ancient explorers. But, in selecting into which one of these paths we shall turn the course of jurisprudence of this state, it would, were it not for a matter which we will mention below, be appropriate that we briefly state our reasons why we deem one rule, rather than the other, to be justified or demanded by our history, circumstances, geography, and topography, and by the fact that the common law, so far as the same is applicable and of a general nature, is adopted and in force in this state until repealed by legislative authority.

We have concluded, after a review of the decisions of other states upon this subject, that upon reason and authority, and in view of all the circumstances of this state, we are fully justified in holding that the boundary of land bordering upon a navigable river should, whenever another intent is not expressed, be held to extend to the ordinary low-water mark. We refrain from an elaborate presentation of our grounds for this holding, for the reason suggested above, and also for the reason that the rule thus announced by decision will become in a few months the rule by statute. This state is just about to enter upon a fully developed code era. The legislative assembly has just adopted a Code of Civil Procedure, a Civil Code, a Penal Code, and a Political Code, prepared by commissioners during the labors of several years past. The law adopting the Civil Code was approved by the governor February 19, 1895. This Code is to take effect and become the law on July 1, 1895. This subject of land being bounded by a navigable river is settled for the future by the Civil Code. The code commission and the legislature had before them the legal literature and learning to which we have above referred, and, as a result, they have adopted the rule of the low-water mark. Section 772 of the Civil Code is as follows: "Except where the grant under which the land is held indicates a different intent, the owner of the land, when it borders upon a navigable lake or stream, takes to the edge of the lake or stream at low water mark; when it borders upon any other water, the owner takes to the middle of the lake or stream." This rule will be the law on the 1st day of July, 1895. We are also of opinion, as above stated, that it is the wisest and most expedient rule. We are thus, by the view which we take of the reason and authority for the rule of the low-water mark, enabled to leave the law, in this important matter, so that it will suffer no change by the adoption of the Civil Code. We therefore, for the reasons given, shall follow the decisions of those courts which hold that the title of one owning land bounded simply by a navigable river extends to the ordinary low-water mark.

Another matter, perhaps, should be noticed. Defendant claims in his argument that ejectment is not the proper remedy. He asserts that he has rights, as a navigator or a fisherman, upon the strip of land between the high-water and the low-water mark, and that, having such rights, he cannot be ejected from that strip of land. It is true that, while the abutting owner owns to the lowwater mark on navigable rivers, still the public have certain rights of navigation and fishery upon the river and upon the strip in question. But no such case as that is made in the pleadings. Defendant does not claim any right whatever to be upon this strip of land for the purposes of navigation or fishery. His defense is clearly made upon the issue

that plaintiff has no title whatever to the strip, and therefore he cannot recover possession of the same. Upon this issue we have to hold against the defendant. By the pleadings it appears that defendant had excluded plaintiff from the possession of the ground, and is in possession himself, generally, if it may be so expressed, and that he is not there claiming rights as a navigator or fisherman. The rights of navigation or of fishing are not at all involved in these pleadings. Therefore, the plaintiff owning this strip of land, subject only to the public use of navigation and fishing, which are not here concerned, and defendant having no claim or color or pretense of title or right of possession, it is difficult to see why ejectment would not lie. It was said in Rice v. Ruddiman, 10 Mich. 130, by Martin, C. J., in a concurring opinion, as follows: "I think the rights of riparian proprietors upon our interior lakes * are the same as those of proprietors upon navigable streams. They have the right to construct buildings, wharves, and other improvements in front of their lands, so long as the public servitude is not thereby impaired. They are a part of the realty to which they attach, and pass with it. Certainly, no one can occupy for his individual purposes the water front of such riparian proprietor, and the attempt of any person to do so would be a trespass." See, also, Berry v. Snyder, 3 Bush, 266; Hanford v. Railroad Co., 43 Minn. 104, 42 N. W. 596, and 44 N. W. 1144; and Ball v. Slack, 2 Whart. 508. We are therefore of opinion that the demurrer to the answer was properly sustained, and the judgment for the plaintiff is accordingly affirmed. Affirmed.

HUNT, J., concurs.

(15 Mont. 439)

BATEMAN et ux. v. RAYMOND et ux. (Supreme Court of Montana. March 4, 1895.) DEED INTENDED AS A MORTGAGE-POSSESSION BY GRANTEE ALLOWANCE FOR IMPROVEMENTSACCOUNTING-INCONSISTENT FINDINGS.

1. Where, in an action by a grantor to have a deed declared a mortgage, the jury finds that it was intended as a mortgage, and such finding is not attacked, a subsequent finding by the court, on an accounting between the parties, that the grantee believed it was a deed, and under such belief made improvements while in possession, must be set aside as inconsistent with the admitted facts.

2. Where, in such action, the court allows the mortgagee certain items for improvements, etc., while in possession on the erroneous theory that he was in possession in the bona fide belief that he was the owner in fee, the case must be remanded for an accounting on the correct the ory.

Appeal from district court, Madison county; Frank Showers, Judge.

Action by Rozelle P. Bateman and wife against Winthrop Raymond and wife to have a deed executed by plaintiffs to defendant

Winthrop Raymond declared a mortgage, and for an accounting. From the judgment, plaintiffs appeal. Reversed.

This action was brought by Bateman and wife, plaintiffs, against Raymond and wife, defendants, for the purpose of having a cr tain deed made by the Batemans to Winthrop Raymond declared to be a mortgage, and for an accounting between the parties. In about the month of July, 1887, the plaintiffs, being indebted to the defendant Raymond in the sum of $11,574, made and delivered to Raymond a deed conveying a large quantity of real estate. That deed was absolute upon its face. Some time after making this deed, defendant Raymond went into possession of the real estate, and remained in such possession until the commencement of this action. The cause came on for trial before the district court, sitting with a jury, at the February term, 1894. Only one question was tried to the jury. That question was stated in a finding submitted, as follows: "Was the instrument executed on the 29th day of July, 1887, by plaintiffs to defendant Raymond, given as, and intended at the time to be, a mortgage to secure existing indebtedness of plaintiffs to defendant Raymond?" This question the jury answered in the affirmative. Thereupon the court appointed a referee to take evidence upon the accounting between plaintiffs and defendants. The referee reported at the May term, 1894. The court considered the testimony reported by the referee, and also some further oral testimony, on the question of the accounting. Upon this report of the referee and the evidence, the court made findings as to the accounting between the parties. The findings contained the account, as the court settled it, showing a balance due from Bateman to Raymond of $13,924.44. Judgment was entered upon said account as follows: "That all the accounts between plaintiffs and defendants be declared settled, according to the judgment herein; that upon the payment of said sum of $13,924.50 by the plaintiffs to the defendants, Winthrop Raymond and Ella Raymond, his wife, they shall accept the same, and shall reconvey to the plaintiffs, by good and sufficient deed, the said lands described in the complaint, and the whole thereof, except those parcels sold by the defendant as town lots; and that the costs of this accounting be divided equally between the parties." A motion for a new trial was made by the plaintiffs upon this question of the decision upon the accounting. This motion was denied. From the order denying this motion, and from the judgment upon the accounting, the plaintiff's appeal to this court. The alleged errors upon which they rely are set forth, along with the discussion of the same, in the opinion below.

Samuel Nord, Smith & Nord, and Wm. A. Clark, for appellants. Blake & Penwell and Corbett & Wellcome, for respondents.

firm it as modified. We are of opinion that the case must go back to the district court, and that court must place itself upon the right ground for a determination of what items should be allowed. The court must ascertain what items of expense were necessary for the protection and preservation of the estate by a mortgagee in possession. The court below has never made findings upon this correct theory.

The judgment of the district court is therefore reversed, and the case is remanded, with the following directions: The court will set aside finding No. 10, allowing the credit of $188 for surveying; and finding No. 13, allowing $100 per annum for superintending the property; and also finding No. 14. The court will then find from the testimony already before it, and from any other testi-. mony which it finds it necessary to take, whether said sum of $188 for surveying, and said sum of $100 per annum for superintending the property, and all other items of expenditure upon the estate, set forth in the account, were necessary for the protection and preservation of the estate by a mortgagee in possession, and will allow all of such items as a credit to the defendants, and will disallow all such items of expenditure upon the estate which were not so necessary for such protection and preservation. Johnson v. Bielenberg, supra. Having found these facts, the court will then enter judgment for the balance, as it may appear from the finding and the account. The findings in all respects except as herein set forth are undisturbed. The costs of this appeal will be taxed against the respondents. Reversed.

HUNT, J., concurs.

(21 Colo. 38)

In re CONSTITUTIONALITY OF SENATE BILL NO. 293.

(Supreme Court of Colorado. March 1, 1895.) CONSTITUTIONAL LAW-SPECIAL ACTS-JUDICIAL

NOTICE.

1. Where a bill, by its terms, is made applicable to all towns and cities contiguous to any city of 100,000 or more inhabitants, the courts will take judicial notice of the fact that there is only one city in the state with such a population, and there is no probability that any other city will come within its terms for many

years.

2. Under Const. art. 14, 88 13. 14, providing that the general assembly shall make general laws for the organization and classification of cities and towns, an act making cities and towns contiguous to Denver subject to the special charter of the city of Denver is unconstitutional.

Question submitted by the senate of the state of Colorado as to the constitutionality of senate bill No. 293, providing for the cɔnsolidation of contiguous towns and cities.

The opinion of the court is in response to the following preamble and interrogatories: "Whereas, provision is made in and by section 2 of senate bill No. 293 for the consolida

tion of certain towns and cities with larger cities, said section being in the following words, namely: 'Sec. 2. All towns and cities now or hereafter existing, having a population of less than one hundred thousand, and lying contiguous to any city existing or to exist under general laws or a special charter with a population of one hundred thousand or more, shall, upon the passage of this act, or on becoming contiguous to any such larger city, be dissolved, and the territory included therein shall be consolidated with and become part of the larger city, under the name of the larger city; and whereas, the constitutionality of said provision has been questioned: Therefore be it resolved by the senate of the state of Colorado that the supreme court of this state is hereby respectfully requested to inform the senate whether, in their opinion, section 2 of said bill is in conflict with section 25 of article 2, or with section 25 of article 5, or with section 13, of article 14, of the constitution of this state.'

F. A. Williams and Platt Rogers, for the bill. L. E. Kenworthy, J. E. Robinson, T. H. Thomas, and C. W. Everett, against the bill.

HAYT, C. J. The constitution requires the legislature to provide by general law for the organization and classification of cities and towns, and prohibits special legislation in all cases where a general law can be made applicable. By the first provision mentioned, the sovereign power has determined that a general law can be made applicable to the organization and classification of cities and towns, and it therefore follows that all special legislation upon the subject is prohibited. The legislature has by general law provided for the incorporation of cities and towns, for the annexation of contiguous territory, for the uniting of contiguous cities or towns, for the consolidation of contiguous cities or towns, for the annexation of one town or city to another, and for the discontinuance of incorporations. These provisions are all general in character, and cover the entire ground attempted to be covered by the bill before us. Mills' Ann. St. §§ 4364-4369, 4374, 4376, 4378, 4523-4528; Sess. Laws 1893, p. 451.

The particular section of this bill to which our attention is directed is similar in character to certain provisions of a bill submitted to this court by the ninth general assembly, entitled "A bill for an act to revise and amend the charter of the city of Denver." It was the design of that bill, as it is of this, to consolidate with the city of Denver, the various towns and cities contiguous thereto; but it was then held that the corporate existence of towns incorporated under the general laws of the state could not be destroyed under the guise of amending the charter of Denver; that such legislation was special in character, and prohibited by the constitution. In re Extension of Boundaries of City of Denver, 18 Colo. 288, 32 Pac. 615. The present bill