, 1859-11-29

- AAia 10 AHt SO. MlQk IL the IOR&D-
ing Of at the authorities. including int Of the
supreme goarr Of the United Stases, when tley
ats'are that as the riparian proprietor ia subject
10 tue toss lie shall have the gain ofuluyon: How
can he be subject 10 loss except Of title 10 bis
land? 1t is imposaible to suppose .tha4 sfhey
mean merely the loss Of The fe. particles Of su-
pers'ratnm rs Which be removed By The water.
proceeds upon the grouhd Ct acqiescence in
tue owner, whether public or private. sup
pose that i the water gradually ills up by its ac-
tloh harbor or grens public highway, the Gov-
ernnent las tie right to remove from tine to
tue the deposits which .hEeaten to impair its
usefulness; aud 30 the private owner may resist
anu oppose, hy every means in lis power, the
encroachrncnts Of the water upon his land how
erez GTadua! they may be; md yet in cithcr
cdse, If there is an acautc,cence .or long time.
say for ser!e3 OF years, in the results brought
about by these natural causes, the public in the
one case loses the title to what was once the
bed Of tue Lake, and the prirats person, in the
other, to what was once firm, dry laod, md Of
slslch hc had been the absolute owner. II is
oct more unreason. bic or unDhitosophical that
i title to land should be washed eT By the
action Of the water; than that it should be
washed on Us the same operating cause.
These being my views Of 1he luw Of this part
OF tlc case, it remains to make m application
oft; The placiug tho piers there did not in my
"tAnaOA <ANAHE Lie pflAClpiE3 u1 ~" WHICH
hare been stated. Tie riparian owners still
took their chances Of ipcreasc or diminution
Ihc effect OF consequence Of the construction
Of the piers was, that land was formed on the
north and worn away on the south side; but be-
ing there, natural causes, modified or affected
1t may be, by them. brought about the results
Which VIC now know. 1t follows from what
hare said that if the gain on tho north aud the
loss on the south side were caused gradually
aud iEnperceptibly By the action Of tie water,
tny opinion is that in the one case the owner
acquired in the other lost, title to land, If
there has been an ac4uiesence for q series OF
years by the public in the gain, and by t. prl
vate owner ID the loss.
Il Is then u matte. or fact which shall leave
70 Inc !"-*; If they find that kinzic Vas the
srner Of this es.:d bar, whether it was washed
away gradually by the action Of the water, and
# SO. to what extent. lf they nnd from the evi-
dence that this Ear WIS washed away gradually
and in,perceptibly By the water Of the Lake, and
that what ~aR the sand bar became the bed Of
the open lake. and 50 continued for series OF
years, that the owners Of it did not resist the
action Of the water, but permitted it TO remain
Tor seven rears. and more, an open roadstead,
then think that the tile to TINT portion Of the
>and bar SO washed awoy, and SO covered with
Eatcr, has become vested in The public, mo
that the plaintiff cannot recover such portion in
this action, rnder the conceded facts in the
case. II, however, Jon SHOULD find it was not
50 washed away and SO continued, then The
pla;ntiG may recover.
If you should ind that q portion Of the sand
bar was not washed away At all, then Of course.
Ibis principle would not apply, but it would dc.
pend entirely upon the fact whether the plaintiff
ias showu tile to such portion.
Its necessary in order to avoid misappre-
hension, tiat na explanation should be made OF
the terms gradual and inapefctpkibte as used iu
these instructions. A gradual and i1npercept-
'bte washing away means that change which
was going On on the shore Of the luke, and whicl,
could not nj any particular time be seen OF
measured. The meaninga is not that
change cannot be noticed between different in.
tergas Of time, hut it caunot be seen as it occurs
imperccptblc that there should a1wuys be tic
same deSrcee OF change in the sauo time. Some
OF the authorities say That it mcaus the chauge
"h'rh cannot be observed 1t any one moment
Of time.
It would seem to be sound principle. that if
tue plaintiff las shown title to tue sand bar 10
kinzie and his grantees through whom he
claims, it dcyolves upon the defendants to nuke
out the title to be gone. if they rely simply upon
its suhmersiou by the Lake.
As think the point-whe:hcr the sard.bar
vas carried away gradually aud imPcl ceptibty
bs the action Of the water or not-a3 it ltiav br
found By the jury, must substantially rule the
material matters in dispute in This ease, it is
perhsps unnecessary to advert to some other
questions which ere referred to in the instruc.
tions asked on both sides.
As understand upon the proof before the
jury, the plaintiff has whatever titte to tho
eandbas klnz,e bad lf any J. or his grantees: I
would ask the defendants counsel whether
they make any point Oh that?
Mr. Jor-Wc make no point on tLat, your
Uouor- =
Judge DnCuxoSD-There can be no doubt,
it the jury hc!i:rt tic ctidencet that the de-
PENDANTS had notice, rs we'll constructive by
the records as actual by information to them,
Of the claim OF kinzie and his grantees, before
they Qhe defcndants) took possession;
81 that the case turns manly upon the point,
Ftt1t, Had ktnzie a title to The sand barf
StphI. Has lhus title, If it ever existed in
him or lis assignces or grantees, been lost BY
the gradual ard iuperceptible action of the
Luke, and If SO, how lnuch and 10 what extent:
There seems to be no reasonable doubt, IN.
der the evidence. Of Tue position Of the sand
bur.
Neither doc there seem to be any doubt, that
if the grant of the government to kinzie cor.
cred the sand-bar aud bis title passed to bis as
slgnccs and 50 to The plaintiff, TINT the deeds
introduced by the defendants from the Secrfta-
ry Of War aud from the owners Of the Fort
Dearborn Addition luts could not convey any
l4ud clai1ned By the plaintiff in this case.
tue Court deems il necessary 70 eivc yon upon
the Law Of this caxe; with this caution to you:
that you are to find your verdict exclusively
npon the Law and upon the facts that nrc intro
duccd in evidence before you. It is your i'm
pera''ve duty 70 disregard uil outside ishaense.
should he determined By the law aud by the ev-
idence, and BY them aIya<.
JrpGE McLEAS.--1 acgu;csce in the charge Of
my brother Judge, though we differed in one or
two points, ms to The Law Of the case.
HF. Jof.-l bare remark, which is personal
to myself. thst wish TO nuke 10 your Honors,
i this is the proper tiu,e 10 make it, before the
jury 10 out-a remark having no direct 1elec-
ence to this case.
Judge DrrxuoSp.-Ycs, sir.
Sir. Jor.-1 obssrsc. may it please your
Honors, that some remarks which bare made
during tic progress Of this trial have been mis-
construed, and have been construed rs casting
Ill imputation either upon this Court, or upon
one Of the members Of this Court. wish now,
may It please your ilonors, to dsc1ainl. distinct
ly and entirely, ever designing 10 make any I'M
putason whatever upon either Of the members
Of this Court.
doubled for moment, after what took place
this morning. whetherI could with prop1i.ty
make this disclaimer; but hare come 10 the
morning shall prevent my doing what deem a
duty to myself and the court when 1aye been
tntsapprellendcd. That is nil hare to SAY,
your iionors.
JrpcE DarxuoxD-Thc Court is much graft.
fed in hearing the disclaimer OF the gentleman.
Ills remarks were liable to mi<constructiou.
Mr. McLEAS-If the Court please, iu regard
to tie instructions which We have asked, to-
gether with the additional instructions, wish
10 ak the Court to pass specifically upon Cur
Instructions, iu order that We mas hare the ben
eft of exceptions to tho rulings upon any Of
them before the jury retire. l wish to be re-
garded as having made the exceptions in the
presence nf the juty to the charge.
JCpGE DEcNnoSD-Ccrtaio1y< certainly. The
Court understands that there hare been instrnc.
tions asked on both sidsk, and the counsel on
either side can except 10 the Courts refusal to
give the instructions asked. The Court las re,
fused 10 give any Of the instructions asked By
either party, and has giTcn its own instruction.
to the jury, dccnins those instructions ali thu,
are necessary in the case.
Dir. NcLIAS.-There is another matter, il tht
| Court Please, in regard to which would say
word. The counsel for the defense in this ca*t
| has made disclaimer in view OF the remark:
which were made BY me this morning ut til.
| close Of my argument. AL hare to say in n
| ply, is that atn exceedingly happy to fiud tha
| wu3 50 much mistaken in my understandin!
| Of the remarks Of the gentleman, and AMI clat
TO find that have done him injustice 10 suppos
ing that he could bare been guilty Of maxim.
such IN inpu1ation.
| Mr. LAnxEn II understand that the instruc
tions on either side that are not girea are to b
considered and marked as refused!
JupGE DEuNXoSp.-ic*, sir, ol course.
The Court pussed the written instruction
over to the Jury. stating to them the form j
which lhe verti;c, should be rendered, Whesenp
on the Jury retired.
After an absence Of less than half IN hour u
Jury returned, ind, being called bY the clerl