WATERS-continued. therein described, although in fact the channel in which the river then ran was a new and artificial one, and the natural channel, in which the water afterwards occasionally flowed, trended sharply to the southward and entered the lake at a different point. Bates v. Illinois Central Railroad Co., 1 Black, 204. 17. Under the several acts of congress providing for the survey and sale of public land bordering on navigable rivers, which declares such rivers to be public highways, the title of a grantee of such land does not extend to the medium filum, but stops at the margin of the stream. St. Paul & Pacific Railroad Co. v. Schurmeir, 7 Wal. 272. 18. But the proprietors of such lands have the same right to construct suitable landings and wharves, for the convenience of commerce and navigation, that owners of land on navigable waters affected by the ebb and flow of the tide have. lb. 19. Whether on navigable waters above the ebb and flow of the tide the riparian proprietor has a right to the shore and bed of the river, depends on the law of the state where the land is situated. Barney v. Keokuk, 94 U. S. 324. 20. So, as to whether his title shall extend to land reclaimed from the bed of the river by artificial means, as well as by accretion. Ib. 21. Semble that the true rule, however, since all waters in fact navigable have been held navigable in contemplation of law, would hold proprietorship to be, as it is held in Iowa, in the state. lb. WATERS-continued. 26. Such piers, the property of individuals, though they are, in general, for public use, may be held for the exclusive benefit of the proprietors; and if they are confined to unnavigable waters alongshore, a construction for public use is not to be presumed. Duiton v. Strong, 1 Black, 23. 27. If a vessel be attached to such a private pier in a violent storm, and it become apparent that the pier is thereby greatly endangered, the owners of the pier may, after due warning, cut the vessel loose, whatever her peril. Ib. 28. A statute conferring on a city the power to establish dock and wharf lines, to restrain encroachments and to prevent obstructions to a navigable stream, does not authorize it to declare by special ordinance a private wharf to be an obstruction to navigation and a nuisance, and to order its removal, when in fact it is not an obstruction or a nuisance. Yates v. Milwaukee, 10 Wal. 497. 29. A riparian owner on the Mississippi, having no authority other than such as arises from his ownership, has no right to erect a pier in the navigable water of the river, to be used solely as part of a boom for receiving and holding logs to supply a mill; and when a vessel comes into collision therewith, without fault, he is liable for the damage; but if the vessel be in fault, the damages, in the admiralty, may be divided. Atlee v. Union Packet Co., 21 Wal. 389. 30. Under a charter which, like that of 1848, to Keokuk, Iowa, gives the city power to establish landing-places, wharves, etc., along its river 22. A street, passage-way, or other open front, and to use a particular street running along space, permanently established for public use, the shore, of which there has been a commonbetween the most eastern lots in the original law dedication, for that purpose, if a riparian town of St. Louis and the Mississippi River, pre- proprietor holds the legal title to land reclaimed vented the owners of the lots from being riparian by the city from the bed of the river along that owners; but not so of a way kept up at the risk street, he holds it subject to the right of the puband charge of the owners, where the way and the lic to use it as a street and for the purposes of lot enclosures followed the recessions and en-wharves, landings, and levees; and the city, croachments of the river. St. Louis Schools v. Risley, 10 Wal. 91. 23. By the law of Massachusetts the littoral proprietor owns to low-water mark, subject to a right in the public to use the space between high and low water mark for purposes of navigation as long as he allows it to remain unoccupied, and subject to restrictions imposed by the state in the exercise of its power to protect public harbors, etc., and prevent encroachments thereon. Boston v. Lecraw, 17 How. 426; Richardson v. Boston, 24 How. 188. 24. But the use by the public, although lawful, is not adverse, and can lay no foundation for a presumption of dedication. Ib. 25. Riparian owners may erect piers and landing-places on the shores of the lakes, as well as of navigable rivers, bays, and arms of the sea, if they conform to state regulations and do not obstruct navigation. Dutton v. Strong, 1 Black, 23; Yates v. Milwaukee, 10 Wal. 497. while it may not permit the erection of a railroad warehouse on the land without compensation to such proprietor, may permit the laying of railroad tracks thereon, such tracks not being necessarily an obstruction to a highway, and the erection thereon of a packet warehouse, such a structure being necessary to navigation and a proper adjunct to a landing-place, and justified by the common law as well as by the charter; and such is the law in Iowa. Barney v. Keokuk, 94 U. S. 324. 31. Whether a riparian owner of land on the Mississippi in Iowa has or has not the right under the statute of March 18, 1874, to make an embankment along the river front and erect a pier at the outer end below low-water mark, the erection of piers being regulated by congress, a railroad company seeking to appropriate an embankment must pay therefor, as by the express terms of the Iowa statute, the statute being so far valid, notwithstanding the action of congress; WATERS continued. and this, although lands in Iowa between high and low water mark are vested in the state. Davenport & Northwestern Railway Co. v. Renwick, 102 U. S. 180. WATERS continued. property will be injured thereby may maintain Common Law as to Riparian Rights to the Power of Congress and of States over. Rights of Riparian Proprietors incident to 32. A purchaser of a lot in San Francisco not bordering on the shore of the bay, but lying along and back of the water-front line established by the statute of March 26, 1851, and half a mile inland, holds in subordination to the right of the city under that statute and the statute of May 1,1851, to control the space in front of that line, and cannot maintain a wharf in the bay by virtue of any claim of riparian proprietorship, as against the right of the city to remove the same in the exercise of her power under the latter statute to authorize improvements in the harbor. Weber v. Harbor Commissioners, 18 Wal. 57. 33. Riparian Owners -- Right to Allu vion To Accretions.] Alluvion is an addition to riparian land gradually and imperceptibly made, through causes either natural or artificial; WAY. - In Massachusetts, when land is taken and this, whether the stream is one that overflows for a public way, an easement only is acquired; its banks or not. St. Clair County v. Loving- the soil and freehold remain in the private owner. ston, 23 Wal. 46. Harris v. Elliott, 10 Pet. 25. 34. The owner of land bounded by a stream owns the alluvial deposit along the shore. New Orleans v. United States, 10 Pet. 662. 35. The right to alluvion depending upon contiguity, the accretion made in front of a strip of land bordering on a river belongs to such strip and not to the larger parcel behind, from which the strip was separated on a former sale thereof. Saulet v. Shepherd, 4 Wal. 502. 36. Accretions by gradual deposits to land with a water front, made after a platting of the land, will not pass to a purchaser of a lot as appurtenant to the lot as originally laid out, but only under a description which includes them. Jones v. Johnston, 18 How. 150. 37. If the deed of a purchaser of such a lot describe the lot by reference to the plat, in which the lot is laid down as bounded on one side by a street and included between two lines at right angles thereto extended to the shore, the claimi of the grantee to a water front and its accretions is to be determined by the condition of the water front at the time of conveyance, and not at the time of the platting. Ib. 38. In ejectment for land formed by accretion, the question of whether the plaintiff had a water front must be determined by the condition of the lot when the plaintiff took his deed, and not, through the fiction of relation, by its condition when the grantor gave a third person, of whom the plaintiff purchased, the title bond on which the deed was founded. Johnston v. Jones, 1 Black, 209. 39. What is the rule for dividing accretions between adjoining riparian proprietors. Jones v. Johnston, 18 How. 150; Johnston v. Jones, 1 Black, 209; Banks v. Ogden, 2 Wal. 57. See FISHERIES, 4. Riparian Rights of the United States in City of Washington. See WASHINGTON, 2. WIDOW - Dower-Right to. 1. -What is devisable.] In New York, a right of entry is devisable as being an estate of inheritance within the statute of wills. Inglis v. Sailors' Snug Harbor, 3 Pet. 99. 2. In New York, the power to devise is not abated by adverse possession of one who holds under a sheriff's sale of the land, as the property of one who has no title. Waring v. Jackson, 1 Pet. 570. 3. Under the Louisiana Code of 1808, the owner of property could not dispose of more than one fifth thereof by will, if he had a legitimate child. The child was the forced heir of the residue. Patterson v. Gaines, 6 How. 550. 4. Execution and Attestation.] A will, to pass title to land in the District of Columbia, must be executed in conformity to the laws then in force. It will not suffice that it is, and is to be, received as so executed and probated as to pass the title to real estate in Virginia. Robertson v. Pickrell, 109 U. S. 608. 5. Under the Spanish law in force in California before the formation of the state government, a will was not void merely because it did not appear on the face thereof that the witnesses were present throughout its execution, and heard and understood its contents. Adams v. Norris, 23 How. 353. 6. Revocation.] Under the law of France, in 1816, a will could be revoked by an act before a notary declaring such intention, or by a subsequent will. Ennis v. Smith, 14 How. 400. 7. By the law of Louisiana, the deed of a devisee under a will revoked by a subsequent will, conveys no title as against the devisee under the second will. Gaines v. New Orleans, 6 Wal. 642. 8. The probate of a will of later date necessarily annuls a prior will, so far as the provisions of the two are inconsistent, and so far as the estate has not been legally administered under the prior one. Ib. 9. A devisce, to set up a claim under a will duly proved, need not procure the probate of an earlier will to be formally set aside, the probate of the second will rendering the former one inoperative; and it makes no difference that there has been a partial administration under the first one. Gaines v. Hennen, 24 How. 553. 10. If one purchase from an executor, having WILL- continued. reason to believe in the existence of a later will, with different executors and making different disposition of the property, he will be liable to parties entitled under such will, notwithstanding the sale was made by order of court. Gaines v. De la Croix, 6 Wal. 719. 11. The later will, when found, relates back as against such a purchaser, and affects him with notice of its existence and contents as of the time when he purchased. Ib. 12. If a testator euter into a contract to lease land which he has specifically devised, reserving a perpetual ground rent, with a right to the lessee to extinguish it by paying a fixed sum, he thereby effects such a change of interest as to revoke the devise. Bosley v. Bosley, 14 How. 390. 13. Where a will has been admitted to probate, a revocation thereof by a subsequent will cannot be set up effectually for the making of title under the latter, except in a court of probate, although perhaps in some circumstances equity might compel a party to allow the revocation of the probate and the substitution of the subsequent will by that court. Gaines v. Chew, 2 How. 619. Probate How made 14. Necessity for- Effect of- Revocation of Probate, how effected.] Section 9 of the North Carolina statute of 1715, concerning the proving of wills, etc., was repealed by the statute of 1789; and the declaration to the contrary in the statute of 1799 is inoperative as to an action brought before the passage of the last-named act. Ogden v. Blackledge, 2 Cranch, 272. 15. In Kentucky, although under the statute a will must be subscribed by two witnesses, the testimony of one may prove it. Davis v. Mason, 1 Pet. 503. 16. In Louisiana, secondary evidence is admissible to prove the contents of a lost will, and to carry it into probate. Gaines v. Hennen, 24 How. 553. 17. The probate court of the place of domicile properly has jurisdiction to take probate of the will of a deceased patentee, and issue letters testamentary. Providence Rubber Co. v. Goodyear, 9 Wal. 788. 18. Title to land by devise can be acquired only under a will proved and recorded according to the laws of the state in which the land lies. Probate, therefore, in one state is inoperative upon the title to land in another. McCormick v. Sullivant, 10 Wheat. 192; Darby v. Mayer, Id. 465; Robertson v. Pickrell, 109 U. S. 608. 19. To give validity and effect to a will made in another state, under a state statute permitting such wills to be proved and recorded in the county where the land is situate, it must be made to appear that the requirements of the statute have been pursued. Kerr v. Moon, 9 Wheat. 565. 20. A testamentary paper executed in a foreign country, although valid as a will under the law of that country, cannot be made the foundation of a suit for a legacy, in the courts of this WILL continued. country, until it has been admitted to probate here. Armstrong v. Lear, 12 Wheat. 169. 21. A will which was never proved nor admitted to record, under which nothing was done for many years, and the execution of which is not proved to the court, cannot be received in evidence to defeat a title under the heirs of the supposed testator. Meegan v. Boyle, 19 How. 130. 22. Under the law of California, a will made prior to the formation of the state government, and while the Spanish law was in force, is not inadmissible in evidence because it has not been admitted to probate and established as an authentic act by the examination of the witnesses. Adams v. Norris, 23 How. 353. 23. An attempted disposition of property, void as a gift causa mortis, cannot be sustained as a will before probate and the appointment of an executor, in a state where, as in Tennessee, a will of personalty does not take effect until then. Basket v. Hassell, 108 U. S. 267. 24. The probate of a will, held not evidence on the question devisavit vel non, under the laws either of Maryland or Tennessee. Darby v. Mayer, 10 Wheat. 465. 25. No question under the constitution as to the credit to be given to the records, etc., of a state, can arise on the admission in evidence in one state of the probate of a will in another state under the law of which such probate is not evidence on the question devisavit vel non. Ib. 26. The regular probate of a will in a state court of competent jurisdiction is conclusive of its validity and contents in the supreme court. Gaines v. New Orleans, 6 Wal. 642. 27. In Louisiana, the probate of a will devising land may be collaterally drawn in question in a suit by an heir-at-law to try the title thereto; and if the parties be numerous, and the controversy complicated, and discovery be wanted and can be had, equity will give relief, especially in a case of fraud. Gaines v. Chew, 2 How. 619. 28. Where a will was admitted to probate in New Orleans, in 1792, by the alcalde, the only tribunal in the province then having jurisdiction, and the property was distributed and held under it without dispute for more than fifty years, it was held conclusive, in the absence of proof of fraud, both as to the validity of the probate in law, and its fairness on the facts. Fouvergne v. New Orleans, 18 How. 470. 29. In Illinois, a copy of a will proved in another state, if duly certified, may be recorded in the county court of a county in which the testator may have had property; and a copy of such record is evidence. Secrist v. Green, 3 Wal. 744. 30. The title of a bona fide purchaser from a devisee in a will admitted to probate on the ground of a probate in the state of the testator's domicile, is not affected by a subsequent reversal of the original probate in appellate proceedings collusive between the devisee and the heirs-at-law WILL― continued. and fraudulent as against the purchaser, although supported by ex parte proceedings setting aside the ancillary probate. Foulke v. Zimmerman, 14 Wal. 113. 31. Where the state law provided for an appeal from the probate of a will, held that errors in probate should be so corrected, and that an original bill in the circuit court alleging the probate to be void would not lie. Tarver v. Tarver, 9 Pet. 174; Fouvergne v. New Orleans, 18 How. 470. 32. A court of equity will not entertain jurisdiction of a suit to set aside the probate of a forged will, where the powers of the probate court in the premises were sufficient to afford the necessary relief. In re Broderick's Will, 21 Wal. 503. And see Ellis v. Davis, 109 U. S. 485. 33. And it will make no difference that the fraud and forgery were not known to the complainants until after the expiration of the time within which they might have applied for relief in the probate court, their only excuse for delay and want of knowledge being that, living in a secluded and distant part of the world, notice of the testator's death, of the probate proceedings, and of current rumors of the fraud and forgery, failed to reach them. [CLIFFORD and DAVIS, JJ., dissenting.] In re Broderick's Will, 21 Wal. 503. 34. Where, as in Ohio, the statute provides for setting aside the probate of a will by a suit in equity brought within two years, and declares that the verdict shall be final between the parties, a decree made in a suit in which, although the estate is devised to executors in trust, neither executors nor an administrator are made parties, except an executor who resigns pending the suit and before answer filed, the other executors having resigned before, does not bind after-born grandchildren of the testator who, under the terms of the will, acquire vested estates in remainder when they are born, the interests of infant grandchildren of the same class living at the time of the suit being represented by guardians ad litem who were either parents and heirsat-law or husbands of parents of such grandchildren and interested to defeat the will. [WAITE, C. J., and HARLAN, J., dissenting.] McArthur v. Scott, 113 U. S. 340. 35. Where a decree setting aside the probate of a will is rendered in a suit wherein unborn remainder-men are not represented, their rights in the land devised are not affected by a partition and a subsequent sale to third persons for a valuable consideration. McArthur v. Scott, 113 U. S. 340. Construction - By what Law governed. See FEDERAL COURTS STATE LAWS, RULES OF DECISION, 137. 1. 1864. See pl. 32-35. Competency in general — Insanity · Testimony of Jurors as to Grounds of Verdict.] It is no objection to the competency or credibility of a witness, sane when examined, that he is subject to fits of derangement. Evans v. Hettich, 7 Wheat. 453. 2. A person affected with insanity is admissible as a witness, if it appear to the court, on examining him and competent witnesses, that he has sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of what he has seen and heard bearing on the questions at issue. District of Columbia v. Armes, 107 U. S. 519. 3. The extent to which jurors may be heard to testify as to the grounds of their verdict, where the question of what was decided arises in another proceeding, discussed. Washington, Alexandria, & Georgetown Steam Packet Co. v. Sickles, 5 Wal. 580. 4. Competency as affected by Interest.] In a proceeding to enforce a forfeiture, the person who acted as agent of the government in making the seizure is a competent witness ex necessitate; and, besides, his interest in obtaining a certificate of probable cause is too remote to disqualify him, especially where he acted under a search warrant. Taylor v. United States, 3 How. 197. 5. A notary is a competent witness to prove his own acts in presenting a note for payment, etc., although liable to the plaintiff for negligence therein. Cookendorfer v. Preston, 4 How. 317. 6. A naked trustee, having no interest in the trust fund, is a competent witness in a suit concerning the fund. Patton v. Taylor, 7 How. 132. 7. A consignor out of whom title has passed is competent as against an attaching creditor to prove title in the consignee. Grove v. Brien, 8 How. 429. 8. In au action for the infringement of a patent, one who has used the thing patented is a competent witness for the defendant, although by the specification of defence matters are put in issue which, if found for the defendant, would justify a decree avoiding the patent. Evans v. Eaton, 7 Wheat. 356. 9. The owner of stolen goods is a competent witness for the prosecution, on an indictment under the act of April 30, 1790, § 16 (1 Sts. 116), for the punishment of larceny on the high seas, etc., although the statute gives to the owner half of the fine imposed on conviction. United States v. Murphy, 16 Pet. 203. 10. The grantor of a rent charge, who has devested himself of all interest in the land, who is released from liability to costs, and is not a party of record, is a competent witness to prove usury in the contract. Scott v. Lloyd, 12 Pet. 145. |