impose upon the weak. Whether it be the great corporation with its lead works, or the mechanic with his tin shop, the rule is the same: "So use your own as not to injure another." Moreover, there is, after all, one underlying principle which influences both, and that is private gain. Lead works and tin shops alike may result incidentally in the public good, but this is only an incident; for the primary object which induces the exercise of either trade is personal good; therefore to neither party is the general community under any special obligation, and as a consequence there is no good reason why the rules of law should be relaxed in the one case rather than the other.

To

Again, we can not but regard this company as unfortunate in the selection of a place for the erection of its works. undertake the business of lead smelting in the midst of a rich suburban valley, occupied by farms and country residences, was, to say the least of it, not very prudent. Lord Cranworth, in the case of The St. Helen's Smelting Co. v. Tipping, 11 H. L. Ca. 652, quoting Mr. Justice Mellor, says: "It must be plain that persons using a lime kiln, or other works which emit noxious vapors, may not do an actionable injury to another, and that any place where such an operation is carried on so that it does occasion an actionable injury to another, is not, in the meaning of the law, a convenient place." If, however, any place is improper for a business of this kind, where injury may result from it to others, surely a situation like that selected by the defendant ought, in the outstart, to have been regarded as improper, since common knowledge and prudence should have informed its managers that injury, sooner or later, must result to the adjacent property.

But it is insisted that the plaintiff has no equity as against this company, because he gave it no notice before or at the time of the erection of its works. But of what would he give it notice? Of the effect the fumes would have upon his farm? But the master has found that he knew nothing of lead works and their probable effect on adjacent land; he could not, therefore, notify it of that of which he was ignorant. One would suppose that on this matter the managers of the corporation would be fully posted; if they were so posted, if they knew what the effect would be on the surrounding property,

then they acted with knowledge wantonly, and notice to them was unnecessary; but if they were ignorant, if they knew not the consequences which would follow the business in which the company was about to engage, then they ask too much of the plaintiff when they require of him a knowledge of their own business which they themselves did not possess.

Decree affirmed.

1. Coal dust considered as a nuisance: Barrow v. Richard, 8 Paige Ch. 351.

2. Right of action against upper proprietor for pollution of stream: Wood v. Waud, 3 Exch. 748.

3. Jury to determine amount of damages to which surface owner is entitled for injury to growing crops from negligent coal mining and by heat and smoke from coke ovens: Brown v. Torrence, 10 M. R. 692.

4.

Digging ditches and mining within plaintiff's inclosure upon the public domain held to be a nuisance: Fitzgerald v. Urton, 12 M. R.

5. No recovery for injuries from nuisances which affect the public generally: Grisby v. Clear Lake Water Co., 40 Cal. 397.

7.

6. Continuance of nuisance by party who is not the creator of it : Id. Action for abatement of a nuisance by the raising of defendant's dam two feet higher, brought at the time defendant commenced to raise the dam, held to be premature: Harvey v. Chilton, 11 Cal. 114.

8. The remedies against a canal company provided by their act of incorporation, for injuries arising from the construction of the works, do not exclude the common law remedies for injuries arising from an abuse of their privileges, or for the neglect of their duties: Schuylkill Nav. Co. v. McDonough, 33 Pa. St. 73.

9. Lime kiln, when a continuing nuisance: Slight v. Gutzlaff, 35 Wis. 675.

10. Nuisance caused by carrying on works in the vicinity, which fill the air with smoke and cinders, and render it injurious to health, is not of such a public nature that the remedy is confined to a public prosecution: Wesson v. Washburn, 13 Allen, 95.

11. Mining by hydraulics, in the Yuba river, continued from year to year, resulting in filling up the channel, destroying the riparian farms and prevented only from destroying cities on the banks by levees. Held, a public and a private nuisance: The Debris Cases; Woodruff v. North Bloomfield Co., 1 West C. R. 183; 16 Fed. 25; 18 Fed. 753; People v. Gold Run Co., 4 West C. R. 511, 521; Hobbs v. Amador Co., Id. 523.

12. No right can be acquired by prescription to maintain a public nuisance: Id.

VOL. XI-7

QUICKSILVER MINING Co. v. HICKS.

(4 Sawyer, 688. U. S. Circuit Court, District of California, 1868.)

1 Occupation distinguished from possession. Any subjection of land to the dominion of a party, such as cultivation or other substanial use, is sufficient evidence of possession to enable an adverse claimant to maintain ejectment against him. Actual occupation in person, or by agent or servant, is not essential.

Possession of land shown by use. Where a party claiming a small strip of land on the bank of a creek, constructed and maintained a bridge over the creek abutting on the premises, it was held, that this use of the land was sufficient evidence of possession to maintain ejectment.

2

Boundary along a meandering stream. Where land adjoining a creek was described in a patent as bounded on the side of the creek by a line meandering from a point in its center down the center a certain distance to a station on the bank, and thence a further distance to another station, and so on from station to station on the bank, to a point where the line left the creek, it was held, that the creek constituted the boundary of the land, and that the courses between the stations only indicated the general direction of the stream, being points fixed by the surveyor to enable him to compute the amount lying between the creek and the other boundaries.

Before Mr. Justice FIELD.

This was an action for the possession of a parcel of land situated in Santa Clara county, and was tried at the July term, 1868, by the court without the intervention of a jury, upon stipulation of the parties. The facts are sufficiently stated in the opinion of the court.

S. L. JOHNSON, for plaintiff.

S. O. HOUGHTON, for defendant.
Mr. Justice FIELD.

The property in controversy in this case is a narrow strip of land in Santa Clara county, lying on the northerly side of Capitancillos creek, measuring about one fourth of

1Strepey v. Stark, 7 Colo. 614; North Noonday Co. v. Orient Co., 9 M. R. 531.

2

Murphy v. Copeland, 58 Iowa, 409; 43 Am. R. 118; Branham v. Turnpike Co., 1 Lea, 704; 27 Am. R. 789; Holbert v. Edens, 5 Lea, 201; 40 Am. R. 26.

a mile in length, and between thirty and fifty feet in breadth, and containing a little more than two and one half acres. The action is brought for the entire tract of land granted by the Mexican government to Justus Larios, and pat-. ented by the United States to Charles Fossatt in February, 1865, containing over three thousand acres. The complaint alleges the seizin by the plaintiff, a corporation created under the laws of the State of New York, of that entire tract, and its ouster therefrom by the defendant; but on the trial it was not pretended that the defendant had ever asserted ownership or been in possession of any greater portion than the narrow strip mentioned. The claim to this strip by the respective parties arises from their different construction of the language of the patent to Fossatt describing the boundaries of the tract confirmed to him. The defendant asserts title to the premises under a conveyance from the pueblo of San Jose. The land patented to that corporation by the United States is bounded on one side by the land previously patented to Fossatt. The principal question, therefore, and the source of controversy between the parties, is one of boundary.

The incorporation of the plaintiff is admitted by the general denial which the defendant has pleaded. The want of legal capacity to sue must be specially set up in the answer by the provisions of the Practice Act of the State, which by rule governs in common law cases in the Circuit Court of he United States.

The possession by the defendant of a portion of the land in controversy is sufficiently established by the construction and maintenance by him of a bridge, over Capitancillos creek, abutting on the premises. This bridge he has, against the protestation and resistance of the plaintiff, rebuilt after it was destroyed, and has persistently maintained and used it. The possession which must be shown in the defendant to enable an adverse claimant to the land to maintain ejectment against him, is not necessarily an actual occupation in person or by agent or servant. Any subjection of the property to the will and dominion of the party is sufficient. Such subjection is shown by its cultivation or by any other substantial use, as well as by residence thereon by himself or his tenant. No more complete subjection to the dominion of the defendant,

of the land covered by the abutment of the bridge, could be shown, than by his appropriation of it for that purpose. The appropriation has always been accompanied by a claim of ownership; a claim asserted not merely to the particular parcel on which the bridge rests, but to the entire strip of land in dispute. It is sufficient, however, for the maintenance of the action that the possession by the defendant is shown of any portion of the premises claimed.

The patent to Fossatt in describing the land confirmed to him, gives the boundary line on one side as running to the center of Capitancillos creek, and thence meandering down the center of the same one chain and ninety links to a station; thence north seventy-four degrees, fifteen minutes west, five chains, to another station, and so on from station to station, according to various courses and distances, to a point where the line leaves the creek. The several stations designated are on the bank of the creek, and between the line drawn from one to the other and the creek, lies the narrow strip of land in controversy. The defendant contends that the line drawn from station to station constitutes the boundary. The plaintiff, on the other hand, insists that the creek is the boundary, and that the courses between the stations only indicate the general direction of the stream, and that the stations are points fixed by the surveyor to enable him to compute the extent of land lying between the creek and the other boundaries. This latter view is undoubtedly correct. The language stating that the line meanders down the center of the stream settles the point. The stations could not of course be placed in the stream; nor could the estimate of the area in the tract confirmed be made from a tortuous line following the sinuosities of the creek; of necessity, then, the stations had to be fixed on the bank, and they were fixed more or less distant from the creek, according to the condition of the bank at the points selected.

In Luce v. Carley, 24 Wend. 451, one of the courses in the description of the premises in the deed under which one of the parties claimed ran to a hemlock tree, "standing on the east bank of the river; from thence down the river as it winds and turns twenty four chains and ninety-four links to a hard maple tree." It was held that the grantee took to the