New-York daily tribune., 1858-10-14

After the verdict was given in favor OF the deieDu-
ants in the Of Bates VS.. the Illinois Central ha'i-
road at Chicago for the depot LANDS OF the latter jus
tee Mclean said:
wish 10 make two or three observations on the
case, which submitted to the jury ast ev.h'ng.
In that case | declined to make the charge 10 'ic
Jury for the reason stated, and remarked 10 my
brother Judge would acquesce IN any cnaTSe ne
might give. Aud in the charge thnk ne Pul ,lG .le
case fully and fairly upon the rule rs to the gradua
md impercepiible disappearance of the soil. But
stated to him that the rule did not appear to NE to be
applicable to the case before Us.
In the Circuit Courts Of the United States cases
are often ruled pro t0Tm0 with the view OF taking
them to the Supreme Court on legal points Ihs
practice is found convenient sometimes, Where the
parties are inclined to have decision IN the appellate
Court. And this being case of great importance,
in regard to the principles involved and the amount OF
property, attributed but little importance to the de-
eison Of this Court.
The doctrine of alluvial formation appears to me
10 be well settled. Where changes Of soil are imper-
ceptiby made by the flowing Of river taking 1t away
from one piece of land and depostng 1t on another,
the owner Of the land whence il is taken, sustans
a loss and the owner Of the land where the de-
post is made gains. The latter is not liable to the
former the soil thus changed cannot be identified.
The law, therefore, can afford remedy III such
But where n body Of land sufficiently large to
be identified is hOated from the Of the soil to
land owned by another, II may be recovered
The case, not being susceptible of proof is
without remedy but the other it may be identified,
nay be recovered.
But the soil the shore of a lake or navigable
river however imperoeptibly, may be removed; ifit
cause the river TO encrOach the land, the of
the soil may fill up to his line, and protect his Shore
not renching the original bed of the river. The
soil removed imperceptiblyi is lost but the substraum
remains, ard may be reclaimed. And this may be
done, however deep the water may be, and however
long il may have run the reclaimed shore. This
may be done the principle that the former line OF
the shore may be established. Exery riparian propri
etor has this right and he may protect his land from
the action Of the water by piers, in any other
manner.
Where lake extends over the soil of land, which
for wears has been occupied claimed by gradual
rise Of the water by artificial structures, the land
though il may, its surface be removed few inches
or a few feet so that the flowing of the water enables
boats to sail it, the land is not lost to the owner
If il can be designated by metes ard bounds. The use
of the public for navigation, in such case is not In
compatible with the claim of the owner Of the land.
And in this view, il appears to Inc not to be material
whether the change in the soil was imperceptible or
not Ii the land may be identified the title of the
owner remains. This is the doctrine of the Supreme
Court in the case Of the City Of Boston vs.. Lacrew,
and that understand is tie doctrine of the common
law The ordnance spoken of in the opinion OF the
Court in that ise contains tie principles OF the com
mon law 81
think my brother Judge presented the case fully
md fairly to tie jury on the principles stated by him,
md these remarks are made that may not be conSid-
cred ruling, except by acqmescence with the view
Of trying the case.
And, on motion Of plaintiff counsel, after the above
remarks new trial was granted.