,other podion of. it. The last part of this statement is a,s nothing less than the cultivation of the full five acres is a com· pliance with the act. But the indictment does not show the falsity of any part of the statement. True,' it alleges generally that the statement is false, but pro. ceeds to state wherein and why, . . . in so doing impliedly admits its . truth. The statement is false, says the indictment, because Kinney plowed and harrowed ten acres a! the land during the second year, c!ose<;>f it planted s.even of such acres in "cuttings" four and near feet apart each way. But this is not the cultivation of the five acres to a crop, as required by the act, and therefore these facts do not negative or contradict the affidavit. From this it only appears that Kinney broke ground and planted '''cuttings'' during the second year, and not that he cultivated five acres of the land as he was bound to do. The demurrer is sustained.
and others v. BASS and others.
August 9, 1882.)
(Ci1'cuit Comt. D. Indiana.
L LAND INCLUDED IN A VANAL-TITLE.
The owners of a canal have a right of 'landing and of using the bank of the canal in a manner consistent with the rights of navigation; but if the canal is to be filled up, and not used for the purposes of navigation. the title of purchasers of such canal and its appurtenances would not extend beyond what might be regarded as the highest water line. The title of owners of land abutting on a canal extends to tI,e line of such canal, subject to the use of the bank of such canal by the canal ownersfor purposes of commerce and navigation.
2. SAME-TITLE OF ABUTTING LAND-OWNERS.
At Law. Mr. Ellison and Mr. Ninde, for plaintiffs. Mr. Taylor and Mr. Bell, for defendants. DRUMMOND, C. J. The jury found a verdict for the plaintiffs in this case, under the instructions of the court, and' the defendants have made a motion for a new trial. It was an action of ejectment brought for a strip of land about 17 ·feet wide, more or less, lying on the canal basin, and claimed to be the northern part of lots 562 and 563 of Hanna's addition to Fort Wayne. Lots 562 and 563 were each 50 feet wide, and bounded on the east by Harrison street, on
MOSGAN V. BASS.·
the south by Pearl street, and on the north by the canal, or ca,nal land. On the plat which Hanna made, and ''Which was recorded, the depth of these lots north and south was marked 80S 163 feet, but the lines of the lots extended to the canal basin, and, as the court thought, and so instructed the jury, they V> ere intended by Hanna. to extend to the canal, and therefore the northern boundary of these lots was on the line of the canal, whether it was more or less than 163 feet north of Pearl street. The court did not instruct the jury that this north line was the water line of tbe basin, but laid down some rules to govern the jury as to the quantity of land that was covered by the canal, stating that it included the bottom, sides, and the towpath, ana anY' portion of the adjoining banks that were appropriated by the canal commissioners and used for the purposes of the canal, ·stating at the same time that as the canal was intended as a means of communication by water, it must be assumed that ce.rtain portions of its banks were t.o be used for the purposes of commerce, and for receiving and delivering freight along the line of the canal; and the court also stated that· there was nothing in the evidence to indicate how far from' the water line on the banks of the canal the right of the comtidssioners or owners of the canal extended, and that in those cases where no portion olthe banks of the canal had been appropriated for the uses of the canal, it must be assumed that the owners of adjoining lots abutting on the canal would own their propert.:r to the canal, subject, of course, to the uses of the canal, as heretofore stated. I can have no doubt that these instructions thus given by the court were substantially correct, and that they laid down the true rules upon the subject. The canal having ceased to be used for the purposes for which it was originally designed, it having been sold under the decree of tbis court under which .livorce the plaintiffs claim, we had to determine the rights of the parties under the circumstances as they actually existed, and as shown by the evidence. It did not appear that along the north line of lots 562 and 568, and bordering on the canal, there had ever been any particular Bpace approFriated by the canal commissioners, or by the state when it was the owner of the ·canal, for the uses of the canal. On the contrary, it appeared that the parties through whom the plaintiffs claim had to some extenthow far it was left to the jury to determine-exercised excluaive control and ownership ower the land in controversy, and therefore there 'was no question growing out of any appropRiation of the land by the canal commissioners, or tho state, independent of what might be ·considered indispensable on the bank of the canal.
It is objected by the defendants that a deed which was made by the sheriff, conveying the north 25 feet of lots 562 and 563 of Hanna's addition, constitutes a brbdkage in the chain of title of the plaintiffs, and defeats the claim made by them of a possession of 20 ,years under their title. The ground taken by the CJUl't in its instructions to the jury was that this deed conveyed the land in controversy, because the north 25 feet of these two lots would necessarily include all the land upon them up to the limits of the canal, and that proceeded upon the basis that Hanna's plat, as recorded, clearly showed that tho lines running north and south did extend to the canal, and therefore the figures marked upon the lines as 163 feet were not conclusive as to the length of those lines. It would have been the same, precisely. as thoul;'1 there had been a conveyance made of the whole of the lots. The northern boundary would then have been on the line of the canal, whether land or water. It is claimed there has been sora8 evidence recently discovered which would have a bearing on tho case, and which is adduced as an additionall'eason for the granting of a new trial, and that is a con· tract made between thtl state al::\d qne Charles Bellair, of the tenth of November, 1837, under which a portion of the Wabash & Erie canal was to be constructed. It is not claimed that this contract covered any portion of the ground or the lines in controversy in this case, but it is said that tb1s was similar to contracts that were made in relation to the construction of the canal. This is simply the statement of counsel, and there seems to be no independent proof or the fact. It is therefore not necessary to consider what would be the effect of such a contract if applied to the land which is the subject of controversy in this case. The difficulty on the part of the defend ants as the purchasers of the canal under tbe decree of tl1:s court consists in this: that there is no satisfactory evidence indicating how far their ownership would extend on the bank beyond the water line. The real oontest in this case between the parties is, who shall own the dry land south of the water line, and up to thQ Hue running east and west, which is 168 feet north of Pearl street? Tho jury have found that there never has been any appropriation of thi 3 land by the proprietors of the canal. They have found for the plaintiffs generally, but it is not to be understood by this that, if the canal is to remain a water-course. and to be used for the purposes of oommerce or navigation, that those who own it are to be deprived of all those rights whi0h are applicable to such a
STEPHENSON V. BROOKLYN CROSS-TOWN R. CO.
use of the canal. They would have the right, consequently, of landing, and of using the bank of the canal in a manner consistent with the rights of navigation; but it would also follow that if the canal is to be filled up and not used for the purposes of navigation, and the bed of the canal is to become dry land, then the rights of the defendants as purchasers of the canal, and its appurtenances, would not extend south of what might be regarded as the highest water line. In other words, because they were owners of the canal, and it had ceased to be such, they could not be permitted to extend their rights over. the adjoiniu'g banks, and include land of owners abutting upon the canal. The motion for a new trial will, therefore, be overruled.
(Ci1'cuit (Jourt, E. D. New York.
Where a patent .was claimed for an invention for an improvement in streetcars, the device being onll for opening and closing a door. and it was shown, as a defense to an action for an infringement, that some years prior to the time' when it was said to have been invented another person made a machine intended for the purpose of opening and closing a door, similar iuaU its: essential features to that upon which the patent was claimed, and used it during two , weeks to open and close a door, and numerous persons saw the machine in operation, though the device was not applied to the door of a car, the defense of want of novelty must be !Leld to havlJ been made out, and patent No. 142,. 810 is void.
In a suit for alleged infringement of a patent for a .device for signaling drivers on street-cars, consisting of two bell-cords with passing along the lower margin of the roof on opposite sides of the car, and connecting directly with a bell or gong attached to the outside of the driver's end of the car, held, that there was no novelty in the use of cord or pull-straps, nor in the length of the pull-straps; nor was any new and different result attained by the change ,of the location of the cord, etc., from the top of the car to the lower margin of the roof, nor in duplicating the cord, etc.; nor was there a patentable combination of the cord and pull-straps with the car, or the sides of the car, effected by placing the cord, etc., along the side of the car. Held, also, that the addition of pendants to the cord, and drawing the cord taut, was not sufficient to support.the patent, since attaching pendants to a cord is not a new idea, nor was it showJ1 that ataut cord was a feature. Patent No. 161,568 is void.
"Reported by R. D.... Wyllya BenedIct