reasonably necessary for a right of way;29 and the owner of land lying on a stream of water, over which a public highway exists by virtue of statute, the State not having a fee in such soil, the owner thereof does not lose his rights to the accretions formed to it, the road of course running along the edge of the stream. A Massachusetts case aptly expresses the idea of highways in the following language: "the soil and freehold remains in the owner, incumbered with a way; and every use to which the land can be applied, and all the profits which may be derived from it consistently with the continuance of the easement the owner may lawfully claim.130 Where an island is claimed by the owner of land on a stream as an accretion to it, caused by the partial filling up of the channel on the owner's side of the stream, evidence that it was in continuous adverse possession for more than twenty years will defeat the landed owner, and convey the title to same together with the accretions to the adverse claimant; so when land formerly obtained by patent from the government, which at the time of the grant had no river frontage, but which afterwards, by a change in the course of the river, is made riparian, and some thirty acres, more or less, of accretions have formed to it, the sale of the original tract before the formation of accretions under an execution sale, so defective as to render the title obtained thereunder, invalid, the purchaser at the sale being the judgment creditor with knowledge of such defects cannot, by taking possession of the land formed by accrétions, subsequent to the sale, claim the original tract under the doctrine of adverse possession, where such absolute and notorious adverse possession does not extend over the original tract the statutory period, for not being a bona fide purchaser, he enters without color of title, his possession only extends to the part actually occupied and must be for the statutory period; but where the purchaser is a bona fide holder of the sheriff's deed, and his entry under color of title, his adverse possession of the accreted land for the statutory period would have extended over the entire tract. The general rule by which accretions are apportioned are the same as those given in determining alluvion, in that they are analogous to those applied in the division of lands on the sea shore. The trend of authority seems to be to give to each proprietor the same width on the new shore as that had on the old shore, unless, as in some grants33 they are otherwise provided for. In general, the rule as given by an eminent writer, for distribution of accretions between "coterminous proprietors is to extend the side lines of each owner to the nearest river bank, 29 Taylor v. New York Long Branch R. Co., 38 N. J. L. 28. 30 Perley v. Chandler, 6 Mass. 454; otherwise when bounded on highway: Sneddy v. Bolen, 122 Mo. 479. 31 Bonewits v. Wygant, 75 Ind. 41. 32 Gothermann v. Schiermeyer. 125 Mo. 291. 33 Margaret Daws v. William H. Prentis, 16 Pick. 435. giving to each that part of the accretions formed in front of his own land;" whether the stream is navigable or non-navigable, the course of the banks when they approximate a straight line, the accretions are divided among the coterminous owners by lines drawn perpendicular to the original bank; but if it should curve, care must be exercised to give to each a fair proportion of the land thus formed, together with convenient access to the water by giving each a share of the outward or new line proportioned to the original line owned by him.35 The owner of a town lot bounding upon the water is entitled to the accretions formed thereto; for if the river is the boundary, it may be riparian just as much as a tract of land would be in the country. A street laid out along the margin of the water, the grantee of a lot on the opposite side of the street, and the accretions forming to the other half of the street, belong to the original owner; but if the waters which form the boundary of the street above mentioned are the property of the State to high-water mark, the levee constructed by the city along its margin becomes the artificial boundary of the private property adjoining, and the accretions added thereto belong to the city; so accretions to a tract of land over which there is a right of passage, the accretions also become subject to that right. Reliction-Right to Land-Made by or Resulting From. There is practically no distinction between reliction and accretion in land formed or land gained, for in either case it belongs to the owner of the contiguous land to which the addition is made. We have seen how reliction was regarded at common law, it follows closely the rules laid down by accretion, and so similar are the two in application of principle that they are sometimes confused. The definition hinted at already suffices to-day; and embraces all cases where there have been gradual recessions of waters by which land that was before covered with water is left dry. The land, so relicted, or gained, by the dereliction of the water, belongs to the riparian owner from whose shore or bank the water receded. The principle is the same whether applied to lakes, ponds, rivers, islands. or arms of the sea; the situation of the land and the manner of recess of the water are all that is necessary to be ascertained. The title to the relicted lands and the rights or interests in such lands, are analogous to those already considered under the head of accretions, and need not be repeated here. The doctrine of reliction appears to be very harsh, if carried upon principle to the end; innumerable instances arise where it seems positive injustice. The theory of our jurisprudence is founded in natural justice, and it seems a perversion to speak of the hardships that could 34 Lawson Rights, Rem. Pr. vol. 6, p. 4759. 35 Laverty v. Moore 32 Barb. 347; but a boundary may be established by acquiescence: Evans v. Kunze, 128 Mo. 670. 36 St. Louis Pub. Schools v. Risley Heirs, 40 Mo. 371. be entailed upon the strict application of the principle. We should remember the principle had its foundation in a time when its exigencies were more commendable, and accorded more with the spirit of the age, and that in its preservation the civilization of two hundred years ago were more interested than could be justified at the present day. However this may be, it is not the case, the law is well established, and it is our duty to trace and adjust the principle to the facts as they appear under the law, and not the law, as it should be made to suit the facts. The court in Mulry v. Norton, in speaking of the reliction of water in a case where land had been submerged and lost, said that if "the water retires gradually from the land, or from an elevation, such as the formation of an island, the ownership of such land is restored by the recession of the water," the court taking the position that unless the submergence be of such duration as to destroy or preclude the identity of the property upon the reliction of the water, the ownership should be restored to the original party, thus seeming by hypothesis to base a solution upon duration, which, were it more generally recognized in respect to reliction, might save an amount of worry and expense and the incident annoyance to prolonged litigation. But how the court would define duration in respect to reliction is not given; it does define duration in respect to avulsion, but the two are as much unlike as it is possible to conceive. It would be no easy task to even approximate a rule for duration by which the effects of water upon the soil under normal conditions could be determined, for the soil varies in quality as much so as do the forces in substance when considered in relation to reliction and avulsion, for what might be erosion of the soil in one case, in another, only facial deflection. It would be an anomaly to speak of the two in connection with any given case, for it could not be but one or the other, and the test for ascertaining which it is, is so radically distinct as to need no comment here. If a river gradually finds its way through adjoining territory and leaves entirely its former bed, the ownership in the soil of the bed must be determined by reference to the local law. If the river I have just spoken of is one in which riparian ownership extends to the filum aquæ, the adjacent proprietors still own to that point in the old bed, and neither have claims by right of reliction; but on the other hand, if the filum aquæ was constantly undergoing changes from the gradual eating away of the soil of the opposite bank which causes the water to encroach upon that side until the bed is entirely forsaken, the ownership in such belong of right by reliction to the owner of the bank from which the water receded. And where land, under a government survey is bounded by a lake, is sold, and under a subsequent survey it is found to have increased considerably, measured by the boundary under the first survey and the present position of the waters of the lake, it was contended that the new land did not con stitute a part of the original tract, but it was held to belong to the owner of the original tract under the law of reliction; so in timber cutter's claim on a lake meandered by the government gets title by reliction upon the drying up of the lake. Where the sea gradually cut off the sea front of the mainland between certain points and afterwards a beach reformed outside the mainland, and divided from it by a bay of navigable water, it was held that the title to the new formation was in the owners of the part cut off. Islands are incident to the soil upon which they form; they belong to the owners of such soil; they are capable of expansion by reliction of the water; and they may be the property of one or more according to the place of formation; for, as expressed in the case of Brown v. Kennedy, the court said: "All islands, relicted lands, and other increase arising in navigable rivers, belong, in England. to the King, here to the State, where the property in the soil has not been appropriated; but when it has become private property, either by grant or prescription, the same rules do or should apply to it that govern other private property of the same nature, "40 and the same principle would apply in waters other than navigable rivers. in Avulsion Rights to Land-Made by or Resulting From. We have now reached that stage our proceedings when what has been written of accretions and reliction in theory and principle must be reversed. The pacific tendencies no longer prevail; and the idea of gradual and im perceptible changes have no place in the consideration of avulsion. The term avulsion is itself associated with the idea of force; and from its convulsive character violence is always present in the eruptions and changes which through its actions become manifest and apparent to all. It is from this sudden and impetuous tendency that avulsion is most distinguishable; and unlike the two former considerations, it never alters nor i changes the legal status of the right embraced in the title when once vested. Under the common law as we have seen this was not strictly true, yet in a sense it was, for it only gave what in theory was already possessed. The theory that ownership is never changed through the acts of avul sion is to be accepted with the modification tha: proper diligence must be regarded, for soil carried away by avulsion cannot be reclaimed if i has coalesced with the earth upon which it was placed. The recession of the waters of a river until its bed has been forsaken give no additional rights in the soil of such bed, for the land thus uncovered results from the absence of water which may, or may not, have been attended with any rapidity or force; but when from the violence of the current a considerable part of one tract deposited upon another and distinct tract of land. 37 Warren v. Chambers, 25 Ark. 120. 38 Noyes v. Collens, 61 N. W. Rep. 250. 39 Mulry v. Norton, 100 N. Y. 421. 40 Brown v. Kennedy, 5 Har. & J. 206. 41 Bouvier v. Stricklett, 59 N. W. Rep. 550; Cooley v. Golden, 117 Mo. 33. the tract so carried away is still the property of the owner of that tract from which it was taken, and no rights are thereby affected, diminished or increased, unless the tract so carried away is allowed to remain upon the other until it loses its identity by amalgamating with the soil. In the case of Nebraska v. Iowa, it was held that when the "change is of a sudden and rapid character, such as occurs where a river forms a new course by cutting through a bend, the boundary does not follow the change, but remains in the middle of the old channel," and the doctrine applies in all bodies or streams of water. In conclusion let us remember that in avulsion, as well as in accretion and reliction, the entire question is one of fact, ascertain the fact, and the principles are easy of application. U. S. Circuit Court, S. D. New York, June 8, 1897. When a shipper of freight over a railroad has signed a waybill containing stipulations limiting the carrier's liability which are not very plain, and are not so situated as to be plainly included within the terms of the contract, it is for the jury, in an action to recover for the loss of the freight, to determine whether the shipper understood, or ought, under all the circumstances, to have understood, that there was such a limitation of liability. WHEELER, D. J.: The plaintiff's agent put into a car on the Boston & Maine Railroad some valuable horses, to be carried over that road and the defendant's road to Pawtucket, R. I. The agent of that road at the time presented to the agent of the plaintiff a waybill, to be signed by him, which said: "Forward the property mentioned below, marked and numbered as in the margin," to the plaintiff, "at Pawtucket," which included, among other things, these horses, and "Subject to the rules and regulations in the freight receipt presented with this, and which are accepted and agreed to be just and reasonable." This bill of lading was signed by the plaintiff's agent. The agent of the Boston & Maine Railroad at the same time delivered to the agent of the plaintiff a freight receipt, signed by him, which said: "Received from, the property described below, in apparent good order," etc., and, "It is mutually agreed, in consideration of the rate of freight to be paid for this service, as to each carrier of all or any of said property over all or any portion of said route to destination, and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the conditions, whether printed or written, shown or in dorsed hereon, and which are hereby agreed to by the shipper, and by him accepted for himself and his assigns as just and reasonable." On the left-hand margin of both the bill of lading and receipt was a square in black lines, headed "Marks and Numbers," in the lower part of which, on the receipt, was a blank for car number, weight, and advanced charges. Across this square, and extending beyond it. in another colored ink, and lines running the other way from the rest of the print, on each, was printed: "The rates for transporting animals are based upon and intended only for those of ordinary value, viz.: If horses or mules, not exceeding $100 each; if cattle or cows, not exceeding $75 each; if fat hogs, or fat calves, not exceeding $15 each; if sheep, lambs, stock hogs, or stock calves, not exceeding $5 each; if a full chartered car, on the entire contents of each car, not exceeding $1,200. And in giving this receipt this Co. assumes no risk for a higher value, unless by special arrangement with the general freight department." In the squares of this receipt and bill of lading was written in pencil, "B. L. 5566." The horses were forwarded over the Boston & Maine Railroad, and part way on the defendant's road towards Pawtucket, and killed, so that the defendant is unquestionably liable. This suit is brought for the damages for the killing of the horses and the loss of other property, and no question is made, except as to whether, upon this transaction, the defendant is liable for more than $100 for the loss of each of the horses. That a common carrier may conclusively agree with a shipper as to the value of property carried for which the carrier may be liable, is fully settled in the United States courts. Hart v. Railroad Co., 112 U. S. 331, 5 S. C. Rep. 151; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 9 S. C. Rep. 469. And that a notice or memorandum upon the shipping papers is not conclusive as to such contract, when not plainly a part of the same as agreed to, seems to be also well settled in these courts. Railroad Co. v. Manufacturing Co., 16 Wall. 318; Ayres v. Railroad Corp., 14 Blatchf. 9, Fed. Cas. No. 689. Whether such a memorandum upon the papers is a part of the contract of shipment, where it is not over the signatures, and plainly a part of the contract signed, seems to be a question of fact. Generally, in making a contract, what the promisor fairly gives the promisee to understand is agreed to is the extent of the terms of the contract. This is elementary. Here the agent of the carrier took from the agent of the shipper the bill of lading and gave the receipt, upon each of which was this indorsement at the left hand; not very plain, and not directly above the signatures. It was not so situated as plainly to be included within the terms of the contract. It would be a part of the contract if understood to be so by the parties, or if the promisor (the carrier) fairly gave the promisee (the shipper or his agent) fairly to understand that it was a part of the contract. In this case the testimony of the agent of the carrier tended to show that these terms as to value were expressly mentioned when the horses were taken and the papers delivered. The testimony of the agent of the plaintiff tended to show that his attention was not expressly called to this indorsement, that it was not mentioned by the agent of the carrier, nor noticed or understood by him. The defendant insisted that it became conclusively a part of the contract by being so indorsed thereon, and requested that a verdict of the plaintiff be directed for the amount of $100 for each of the horses only. This instruction was refused, and the jury were, in substance, directed to return a verdict for the plaintiff for $100 for each horse, only, if the plaintiff's agent in fact understood that the horses were to go at the value of $100 each, or if from the indorsement, under all the circumstances, he ought to have understood that there was a limitation in value to $100 for each horse, or ought to have understood that there was a provision of the contract by which the value might so be limited, although not in fact understood so by him. In this court the trial of all questions of fact must be by jury. Whether this limitation actually existed by contract could not be determined as a matter of law. The plaintiff's agent did not sign any paper which plainly and conclusively included such a provision. What he did understand about it was a question of fact for the jury, and if he did not come to an understanding about it, what he was fairly given to understand, and ought to have understood, was a further question of fact for the jury. This could not be taken from the jury without infringing upon the right of trial by jury guarantied to all parties. If the carrier would have the limitation upon the value, it should make the limitation to be clearly understood. Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 9 S. C. Rep. 469. If it left the matter doubtful upon the facts, the only right left was to have the question of fact remaining open tried by the jury. This is exactly what the defendant in this case had, and the jury have found, upon those questions, that the plaintiff's agent neither understood, nor ought reasonably to have understood, that there was any limitation upon the value. No question is made as to the fairness of the jury in reaching the conclusion they did; therefore no reason is apparent for setting aside the verdict. Motion for new trial overruled, and judgment on the verdict. NOTE. Limitation of Carrier's Liability. - It is just and reasonable that a carrier should base his rate of compensation, to some extent, upon the value of the goods carried; this measures his risk and is an important element in fixing his compensation. If a person voluntarily represents and agrees that the goods delivered to a carrier are of certain value and the carrier is thereby induced to grant him a reduced rate of compensation for the carriage, such person ought to be barred by his representation and agreement. Dunlap v. International Steamboat Co., 98 Mass. 371; Judson v. Western Railroad, 6 Allen, 486. Where a contract is fairly made with a railroad carrier agreeing on a valuation of the property carried, based on the condition that the carrier assumes liability only to the extent of the agreed valuation, the contract will be upheld, even though loss should occur by the carrier's negligence as a proper and law. ful mode of securing a due proportion between the amount for which the carrier is responsible and the freight he receives, and of protecting himself against extravagant valuation. Hart v. Penn. R. Co., 112 U. S. 331; Graves v. Lake Shore R. Co., 137 Mass. 33; Schouler on Carriers, § 457. The carrier may state a reasonable limit to the sum for which he shall be held accountable in case of loss; but he cannot, where this sum is understood to be an undervaluation of the goods thereby, evade his full accountability as an ordinary bailee. United States Express Co. v. Baekman, 28 Ohio St. 144; Selger v. Dinsmore, 51 N. Y. 166; Boorman v. American Express Co., 21 Wis. 152; Squire v. New York Central R. R. Co., 98 Mass. 239; South Alabama R. R. Co. v. Henlem, 52 Ala. 606; Westcott v. Fargo, 61 N. Y. 542; Magnin v. Dinsmore, 62 N. Y. 35; Harvey v. Terre Haute R. Co., 74 Mo. 538. The American current of authority sets against sustaining special conditions, which the carrier has printed, written or stamped, upon the back of his bills of lading, receipts or tickets requiring affirms. tive proof, in such a case, that the sender's attention was so called to the same, that his assent, as bailor, suitably extended to both sides of the instrument (Railroad Co. v. Manuf. Co., 16 Wall. 318; Brown v. Eastern R. Co., 11 Cush. 97; Newell v. Smith, 49 Vt. 255; Ayers v. Western R. Co., 14 Blatchf. 9); or where the carrier gives his document knowingly to an il literate foreigner, ignorant of the language, without offering to translate it correctly for him (Camden R. Co. v. Baldauf, 16 Penn. St. 67; Hadd v. U. S. Express Co., 52 Vt. 335); or without any explanation hands it over to his customer at times and in places where it cannot possibly be read in season for the consignor to announce his dissent. Blossom v. Dodd, 43 N. Y. 264; Madaw v. Sherad, 73 N. Y. 329. Whatever letters or abbreviations the carrier may use in the document of carriage, by way of qualifying his risks the customer is not bound, unless he cor rectly understood them (Rosenfeld v. Peoria R. Co., 103 Ind. 121, 3 Colo. 280), such for instance as printing the general objects of the carriage in large letters, and the special restrictions in small; stamping obscure words on, obliterating, or covering over, essential phrases, are strongly disapproved by our best declsions. Brittan v. Baraby, 21 How. 527; Perry v. Thomp son, 98 Mass. 249; Verner v. Switzer, 32 Penn. St. 208; Blossom v. Dodd, 43 N. Y. 264; Nevins v. Bay State Steamboat Co., 4 Bosw. 225; Jones v. Voorhees, 10 Ohio, 145. The presumption undoubtedly is, that one who in the exercise of his public vocation, undertakes to transport a thing, does so subject to the com mon law liabilities; and this presumption prevails until overcome by countervailing proof of a special agreement. New Jersey R. Co. v. Pennsylvania E. Co., 3 Dutch. 100. Oral negotiations merge in a subse quent written or printed contract, which embodies the final understanding of the parties at the time the carriage is undertaken upon a completed bailment. The written contract is not to be orally disputed. Hewett v. Chicago R. Co., 63 Iowa, 611; Ortt v. Minneapolis R. Co., 31 N. W. Rep. 610. A carrier cannot, while goods are in transit, vary the original risks by the mere delivery of a written instrument and thus escape his liability for losses already occurred. Gott v. Dinsmore, 111 Mass. 45; Gaines v. Union Trans. Co., 28 Ohio St. 418; Bostwick v. Baltimore & Ohio R. Co., 45 N. Y. 712; Cleveland R. Co. v. Perkins, 17 Mich. 296. Where loss to goods occur in the course of their carriage by special contract the party claiming damage should set forth the special contract. Austin v. Manchester R. Co., 10 C. B. 454; Crouch v. London R. Co., 7 Ex. 705; Davidson v. Graham, 2 Ohio St. 131; Camp v. Hartford Steamboat Co., 43 Conn. 333; Lake Shore R. Co. v. Bennet, 89 Ind. 457, 90 Ind. 459. Of all special contracts mutual assent is a necessary ingredient, for this principle is well shown where one was induced to sign a special contract under the misrepresentation that his signature was a mere matter of form and of no consequence, the special contract was pronounced invalid. Simons v. Great Western R. Co., 2 C. B. (N. S.) 620; Gibbon v. Payton, 4 Burr. 2302; Story on Bailm., § 558. Bills of lading have a twofold character being a receipt and a contract. So far as such an instrument is a contract, evidence is not admissible to vary or change its plain terms (Fox v. Peterson, 30 Ala. 608; Shaw v. Gardner, 12 Gray, 488; Barber v. Brace, 3 Conn. 9), though it may be allowed to explain doubtful language. Wayland v. Mosely, 5 Ala. 430; Vose v. Morton, 5 Gray, 594. But in respect of its receipt the bill of lading is open to explanation as between carrier and sender. Portland Bank v. Stubbs, 6 Mass. 422; Sear v. Wingate, 3 Allen, 103; O'Brien v. Gilchrist, 34 Me. 554; Bissell v. Price, 16 Ill. 408. The receipt under a bill of lad ing is not conclusive upon the carrier as to the quantity of goods received (21 Fed. Rep. 500); nor does it warrant the nature or quality of goods against a sender's fraud in making up the purchase so as to deceive by its appearance. 90 N. Y. 430. The transferee of a fictitious bill of lading or of one fraudu lently issued has no remedy against an indorser, unless for special wrong. Maybee v. Tregent, 47 Mich. 495. A common carrier may by special contract limit his common law liability, but that he cannot stipulate for exemption from the consequences of his own negligence or that of his servants. New Jersey Steam Co. v. Merchants' Bank, 6 How. 344; York Co. v. Central R. R. Co., 3 Wall. 107; Railroad Co. v. Lockwood, 17 Wall. 357; Bank of Kentucky v. Adams Express Co., 93 U. S. 174; Railway Co. v. Stevens, 95 U. S. 655. If shipper is guilty of fraud by misrepresenting the nature or value of articles he destroys his claim to indemnity, because by so doing he attempts to deprive the carrier of the right to be compensated in proportion to the value of the articles. 2 Kent's Comm. 603; Dunlap v. International Steamboat Co., 98 Mass. 371; Railroad Co. v. Fraloff, 100 U. S. 24. The law does not allow a public carrier to abandon altogether his obligations to the public and to stipulate for exemp tions which are unreasonable and improper. A contract of carriage that he shall be exempt from liabil ity for losses caused by the negligence of himself or servants is contrary to public policy and consequently void. Express Co. v. Cadwell, 21 Wall. 264, 268; Phoenix Ins. Co. v. Erie Transportation Co., 117 U. S. 312; Railway Co. v. Stevens, 95 U. S. 655. doctrine of privileged communications in the ordinary exercise of a citizen's political duties is well discussed, and particularly in the dissenting opinion by Grant, J., which reaffirms the conclusions reached in several cases in various States, especially in the case of Wieman, Jr. v. Mabee, 45 Mich. 484; and Bacon v. Mich. Cent. R. R. Co., 66 Mich. 166. We quote: "In Wieman v. Mabee, supra, the defendants had by affi davit, directed to the superintendent of schools, in order to prevent his granting a license to Wieman to teach school, charged him with being a man of bad moral character. The court said: 'In the present case the communication was privileged. It was made by persons interested in the school to the person qualified to receive and act on the petition, for an honest purpose, and with an honest belief in the justice of their action. In such cases no action can be maintained, even if the complaint is untrue, if not maliciously made.' So in this case there is nothing to show any malice, or that the statement was not made for an honest purpose. Are not reputable elec. tors as much interested in securing a man of good reputation and character for office as were the citizens defendants in the Wieman case to secure the licensing of a moral man to teach school? If the communication in that case was privileged, for what reason can it be held that this was not? Many authorities might be cited in support of this proposition. They can be found collected in 13 Am. & Eng. Enc. Law, 403; Ormsby v. Douglass, 37 N. Y. 477; Marks v. Baker, 28 Minn. 162, 9 N. W. Rep. 678; Briggs v. Garrett, 111 Pa. St. 405, 2 Atl. Rep. 513." A very recent decision is said to have been made in the Ohio Circuit Court for Hamilton Co., to the effect that a citizen not only has the right, but it is his duty, to communicate to the appointing power whatever he knows for good or ill concerning one who is an applicant for a position as teacher, and when such communications are made in good faith, the citizen is protected, even though the statements contained in the communica. tions be not true." This is an admirably condensed statement, and what seems to be law, and has a basis of common sense.-New Jersey Law Journal. |