I BLACK.

1 Black, 23-35, 17 L. 29, DUTTON v. STRONG.

Wharves.-Riparian proprietors on navigable streams, lakes and tide water, may construct piers and landing-places, conformable to State regulations, extending out to low-water mark, and they are not nuisances unless interfering with the paramount right of navigation, p. 31.

This rule has been closely adhered to by the following cases: Railroad Co. v. Schurmeir, 7 Wall. 289, 19 L. 79, holding that riparian owners on navigable stream can construct wharves for convenience of navigation; as also in Yates v. Milwaukee, 10 Wall. 504, 19 L. 986, Case v. Loftus, 14 Sawy. 219, 39 Fed. 733, 5 L. R. A. 689, and n., Chicago v. Van Ingen, 152 Ill. 634, 43 Am. St. Rep. 291, 38 N. E. 896, Bainbridge v. Sherlock, 29 Ind. 369, 371, 95 Am. Dec. 648, 650, Mills v. Evans, 100 Iowa, 716, 69 N. W. 1045, B. & O. R. R. Co. v. Chase, 43 Md. 35, Wonson v. Wonson, 14 Allen, 78. Rippe v. Railroad Co., 23 Minn. 23, Union Depot, etc., v. Brunswick, 31 Minn. 301, 303, 47 Am. Rep. 790, 792, 17 N. W. 628, 629. Miller v. Mendenhall, 43 Minn. 97, 19 Am. St. Rep. 220, 44 N. W. 1141, 8 L. R. A. 92, and n., Bond v. Wool, 107 N. C. 148, 12 S. E. 284, Thornton v. Grant, 10 R. I. 484, 14 Am. Rep. 707, Groner v Foster, 94 Va. 651, 27 S. E. 494, and Diedrich v. Railway Co., 42 Wis. 265, 267, 269, 270, 272, 24 Am. Rep. 408, 410, 411, 412, 413, all holding same; Transportation Co. v. Parkersburg, 107 U. S. 699, 27 L. 587, 2 S. Ct. 739, in absence of congressional legislation, regulation of wharves belongs to States; St. Louis v. Rutz, 138 U. S. 246. 34 L. 949, 11 S. Ct. 344, holding riparian owner has right to island formed on his part of river-bed, otherwise his access to river would be cut off; Ill. Cent. R. R. v. Illinois, 146 U. S. 446, 36 L. 1040, 13 S. Ct. 115, holding railroad has right to use reclaimed land and piers in front of its lots; Shively v. Bowlby, 152 U. S. 36, 37, 38, 41, 42, 38 L. 345, 346, 14 S. Ct. 561, 562, 563, holding donation, by Congress, of land in a territory passes no title in lands below high water, as against subsequent grant by State, after its admission; Rutz v. St. Louis, 3 McCrary, 265, 10 Fed. 341, holding owner of opposite shore, suffering no loss from erection of dike by city, has no cause of action; Van Dolsen v. New York, 21 Blatchf. 458, 17 Fed. 819, holding city had no right to build new water-front before landing-place on lots owned by private parties; State of Illi103

U. S. Notes 1 Black, 17 L. ed. 246-78 p.

uois v. Ill. Cent. R., 33 Fed. 755, holding railroad, as riparian owner, could connect shore-line by artificial constructions with navigable waters; The Wm. H. Brinsfield, 39 Fed. 216, holding libellant enutled to pro rata compensation of wharfage; Grand T. Ry. Co. v. Backus, 46 Fed. 213, enjoining extension of docks into navigable waters; State of Illinois v. Ill. Cent. R. Co., 91 Fed. 958, holding riparian owner could maintain piers up to shifting line of practial navigability; Mayor of Mobile v. Moog, 53 Ala. 568, holding city could not lease wharf without charge; Demopolis v. Webb. $7 Ala. 669, 671, 6 So. 412, holding right to collect wharfage may exist as a riparian right, and cannot be taken away without com. pensation; Dana v. Wharf Co., 31 Cal. 121, 89 Am. Dec. 166, holding owner of lot upon water-front of San Francisco, is not a “riparian proprietor; " Harlan v. Paschall, 5 Del. Ch. 455, holding 'purpresture" is applicable to a wharf extended so far into chanuel as to become a nuisance; Sherlock v. Bainbridge, 41 Ind. 43. 46, 13 Am. Rep. 308, 312, holding navigator overlapping adjoining wharf not liable for consequential damages, if he used due care; Grant v. City of Davenport, 18 Iowa, 192, holding power of municipality to regulate wharves does not confer power to destroy them: Musser v. Hershey, 42 Iowa, 361, holding that right of owner to construct piers is a mere franchise, and cannot be sold independently; Brisbine v. Railroad Co., 23 Minn. 130, holding owner of naked fee of street bordering river is a riparian owner; Morrill v. Water-Power Co., 26 Minn. 226, 228, 37 Am. Rep. 401, 403, 2 N. W. $45, 846, holding that riparian owner upon navigable stream may use water without impeding navigation; Hanford v. Railroad Co.. 43 Minn. 112, 113, 44 N. W. 1145, 7 L. R. A. 725, holding that riparian right of reclamation may be transferred independent of the original estate; Concord Mfg. Co. v. Robertson, 66 N. H. 18, 25 Atl. 726. 18 L. R. A. 689, holding governmental grant of land on stream flowing from pond gives right in stream not subject to diminution by unreasonable use of pond; Steam-Engine Co. v. S. S. Co., 12 R. I. 365, 34 Am. Rep. 664, as street was appurtenant to his lots, and led to tide water, his interest therein could not be denied; Alex. & F. Ry. Co. v. Faunce, 31 Gratt. 765, holding railroad inust make compensation for injury to fishery; Stevens Pt. Boom Co. v. Reilly, 46 Wis. 242, 244, 49 N. W. 978, 979, holding that riparian owners on navigable river may construct booms, if they do not obstruct navigation; dissenting opinion in Eisenbach v. Hatfield, 2 Wash. 277, 26 Pac. 551, 12 L. R. A. 649, and n., majority holding riparian owner on shore of sea has no right, as against State, to extend wharves below high-water mark. Cited in 10 Am. Dec. 388, note on navigable river as boundary, collecting cases; 13 Am. Rep. 313, note, on obstructions in navigable rivers in aid of commerce; 19 Am. St. Rep. 232, note, on rights of riparian owners on navigable waters, collecting authorities; 53 Am. St. Rep. 294,

ANN

note on title to land covered by navigable waters, reviewing many cases; 57 Am. St. Rep. 697, extensive note on remedies for obstruction of navigable waters, collecting cases; note, 5 Biss. 344, F. C. 8,220. Cited, without particular application, in Boston v. Richardson, 105 Mass. 361.

Distinguished in Atlee v. Packet Co., 21 Wall. 392, 22 L. 620, and Northwestern U. P. Co. v. Atlee, 2 Dill. 485, F. C. 10,341, both holding pier erected in Mississippi as boom for sawlogs an unlawful structure; Water-Power Co. v. Water Commrs., 168 U. S. 368, 42 L. 504, 18 S. Ct. 165, holding grant of privilege to maintain dams subject to paramount right of State; Chisolm v. Caines, 67 Fed. 291, holding sovereign can make no valid grant of navigable streams, as to impede public use; Revell v. The People, 177 Ill. 486, 487, 69 Am. St. Rep. 267, 52 N. E. 1058, 43 P. R. A. 796, holding that erection of piers in Lake Michigan, by shoreowner, constitutes a purpresture; Sloan v. Biemiller, 34 Ohio St. 513, holding right of fishing in Lake Erie not limited to proprietors of shores; Austin v. Railroad Co., 45 Vt. 245, holding owners of land bordering Lake Champlain have no title to soil beyond low-water mark; Eisenbach v. Hatfield, 2 Wash. 246, 247, 248, 26 Pac. 541, 542, 12 L. R. A. 639, 640, and n., holding riparian owner on shore or sea has no right, as against State, to extend wharves below high-water mark; Ravenswood v. Flemings, 22 W. Va. 64, 46 Am. Rep. 496, holding riparian owners on Ohio hold titles to ordinary high-water mark.

Wharves. Whether piers are public or private depends upon their nature, purpose, application, and location, pp. 32-33.

Cited and applied in Potomac S. Co. v. Upper Pot. S. Co., 109 U. S. 686, 27 L. 1075, 3 S. Ct. 453, holding that plan of laying out streets was to prevent private monopoly of landing places; Heron v. The Marchioness, 42 Fed. 173, 174, holding ship mooring, for safety, at private wharf, not liable for wharfage; New York, etc., R. R. v. Long, 43 Atl. 564 (Conn.), holding that party leasing pubic wharf could not be enjoined by an individual from extending ame, though he was guilty of a nuisance; Barrington v. Dock Co., 16 Wash. 174, 45 Pac. 749, 33 L. R. A. 117, holding private wharf nay from its use become public.

Wharves.- Piers not located in a harbor or other public resting lace for vessels, confined within unnavigable waters, and not seld out as intended for public use, are private, and vessels have Do implied license to moor there, p. 33.

Wharves.- Owner of private pier, after due warning to a vessel attached without a license, may cut her loose, to save pier, and is not responsible for loss of vessel, p. 34.

Miscellaneous.- Miscited in Cornelius v. State, 12 Ark. 810; Mc Cann v. State, 9 S. & M. 468.

1 Black, 35-38, 17 L. 29, UNITED STATES v. HENSLEY.

Public lands.— Sutter general title again declared invalid, p. 37. Cited in United States v. Knight, 1 Black, 489, 17 L. 80, refusing to receive depositions on motion, where point had already becn decided.

1 Black, 38-39, 17 L. 52, BACON v. HART.

Appeal and error.- If citation on writ of error is not served. another may be obtained, returnable during the term, p. 38.

Cited in Sammis v. Wightman, 25 Fla. 555, 6 So. 175, discussing. historically, citations and writs of error.

Appeal and error. It is not a sufficient service of citation on writ of error where both defendant and his counsel are dead, to serve the counsel's executrix, or his former partner, p. 39.

Cited and principle applied in Alviso v. United States, 5 Wall. 824, 18 L. 492, and Chisum v. Ayers, 3 N. Mex. 541, 4 N. Mex. 50, 12 Pac. 699, dismissing writ, where no citation was issued, or a waiver; Bigler v. Waller, 12 Wall. 147, 20 L. 261, holding that acceptance by counsel was a waiver of irregularity in citation; Scruggs v. Railroad Co., 131 U. S. cciv, App., 26 L. 741, holding service of citation on attorney sufficient; Tripp v. Street R. R., 144 U. S. 128, 36 L. 372, 12 S. Ct. 656, holding service of citation by depositing copy in post-office, addressed to counsel, insufficient; Williams v. Hutchinson, 26 Fla. 519, 7 So. 854, dismissing appeal where there had been no legal service of citation.

Distinguished in Downs v. Allen, 23 Blatchf. 62, 22 Fed. 810, where ex-partner served, appeared as counsel.

1 Black, 39-53, 17 L. 52, WEIGHTMAN v. THE CITY OF WASHINGTON.

Trial. Where there is evidence tending to prove the entire is sue, though conflicting, court cannot give an instruction taking from Jury the right of weighing the evidence, p. 49.

Cited in Behr v. Insurance Co., 2 Flipp. 698, 4 Fed. 362, holding charge overlooking proof of one party was properly refused.

Municipal corporations are not liable for a failure to carry out their discretionary and legislative powers, such as regulation of the public health, of police, and of firemen, p. 49.

Cited and principle applied in Hart v. Bridgeport, 13 Blatchf. 292, F. C. 6,149, holding municipality not liable to injured party for neg. ligence of public officers in not protecting his property; Safety Ins. W., etc., Co. v. Baltimore, 66 Fed. 144, 25 U. S. App. 166, after the exercise of such discretion, contracts made in reference thereto cannot be revoked by municipality; Mayor, etc., of N. Y. v. Work

man, 67 Fed. 349, 35 U. S. App. 201, Greenwood v. Louisville, 13 Bush, 229, 26 Am. Rep. 266, and Fisher v. Boston, 104 Mass. 94, 5 Am. Rep. 198, all holding municipality not liable for negligence of fire department; Field v. Des Moines, 39 Iowa, 583, 18 Am. Rep. 53, holding municipality not liable for private property destroyed to prevent spread of fire; Baltimore v. O'Neill, 63 Md. 345, holding city not liable to fireman for salary after his removal by commissioners; City of Richmond v. Long, 17 Gratt. 379, 94 Am. Dec. 164, holding city not responsible for loss of slave, through negligence of attendants at city hospital.

Municipal corporations, under duty to repair streets or bridges, and having means of accomplishing it, are liable for injuries arising from neglect of that duty; hence, city is liable for injury from fall of bridge defectively constructed, p. 50.

The citing cases constitute a numerous collection of authorities on this point, as follows: Nebraska City v. Campbell, 2 Black, 592, 17 L. 272, Ericsson v. Manchester, 3 Hughes, 196, 197, F. C. 4,511, Denver v. Dunsmore, 7 Colo. 337, 3 Pac. 710, Jansen v. Atchison, 16 Kan. 382, Shartle v. Minneapolis, 17 Minn. 314, and Sutton v. Snohomish, 11 Wash. 28, 48 Am. St. Rep. 850, 39 Pac. 275. Principle cited and applied in Barnes v. Dist. of Columbia, 91 U. S. 551, 23 L. 443, holding District of Columbia liable for injury resulting from neglect of street; The F. C. Latrobe, 28 Fed. 379, holding municipality liable in personam for damage done by its iceboat; Boston v. Crowley, 38 Fed. 204, declaring municipality liable in tort, though right of action is not conferred by statute; Greenwood v. Westport, 60 Fed. 569, 63 Conn. 591, holding town liable for injury to vessel from operation of drawbridge; Webster v. Beaver Dam, 84 Fed. 282, holding charter provision requiring abutting owners to repair sidewalks, does not relieve municipality from liability for failure to perform same; Campbell v. Montgomery, 53 Ala. 529, 25 Am. Rep. 657, holding duty of city to repair streets has no reference to riots; McCullom v. Black Hawk Co., 21 Iowa, 414, holding county not liable for injuries caused by defective bridge within city; Soper v. Henry Co., 26 Iowa, 268, holding county not liable for injury occasioned by defective bridge under charge of road district; Collins v. Council Bluffs, 32 Iowa, 328, 7 Am. Rep. 202, holding city liable for injury caused by accumulation of ice on sidewalk; Oliver v. Worcester, 102 Mass. 500, 3 Am. Rep. 488, holding city liable at common law for injury occasioned by hole dug in public path by her servants repairing a municipal building; dissenting opinion, Bell v. City of West Point, 51 Miss. 289, approving rule, but dissenting on ground of jurisdiction; Tritz v. City of Kansas, 84 Mo. 641, holding city must keep sidewalks reasonably safe; likewise in Jordan v. Hannibal, 87 Mo. 677, holding same as to bridge; Sullivan v. Helena, 10 Mont. 144, 25 Pac. 96, holding city of territory liable for injury occasioned by excavation in street; Omaha v.