defendants' ancestor, and locator of a mining claim, was a citizen, and to prosecute an action in their behalf to establish their rights in the claim, in consideration of a contingent fee, payable out of the recovery. In passing upon the validity of this contract, the court said:

"Before a contract can be declared illegal upon the ground that it is against public policy, it must clearly appear that it is obnoxious to the pure administration of justice, or manifestly injurious to the interests of the public. The usual test to apply in determining these questions is whether the tendency of the contract is evil. 15 Am. & Eng. Enc. Law, 934. The contract in question does not show upon its face that plaintiff was to procure testimony of any certain character, or furnish sufficient to establish the principal question of fact which was deemed material, but, on the contrary, simply required him to furnish evidence which was then in his possession, and which he had secured prior to the execution of the contract. It appears that plaintiff collected this testimony under a contract with the party by whom he had been employed, which in no manner rendered his compensation contingent upon the character of the testimony which he had been employed to procure, or the result of any action in which it might be used. On the contrary, for the services thus performed he was paid or promised a specific compensation, no manner contingent upon his success. It cannot be said, therefore, that the agreement of the plaintiff to furnish the testimony referred to in the contract, or any act upon his part in securing it, would involve the commission by him or by any other person of any act having the slightest taint of immorality, or which would be obnoxious to the pure administration of justice, or injurious to public interests, and therefore it is not void as against public policy." Casserleigh v. Wood, 14 Colo. App. 265, 59 Pac. Rep. 1024.

SALES LIABILITY OF THE MAKER OF AN ARTICLE SOLD TO A STRANGER INJURED BY DEFECTIVE CONDITION OF SAID ARTICLE. When is the manufacturer of an article sold liable to a stranger for injuries caused by the defective condition of the said article? A recent case distinguishes the authorities on this question and announces the rule that the manufacturer and seller of an article which is essentially dangerous to person or property owes a duty to the public to use care in its manufacture, that it shall not be unnecessarily dangerous; but with respect to articles not of such dangerous nature his only liability for negligence is to the party with whom he contracts. In this case an engineer, injured by an explosion of oil purchased by his employer, the court held, specifically, that an action could not be maintained against the seller to recover for the injury, merely because the oil was not of the quality represented; such an action being grounded on a breach of contract of sale to which

the plaintiff was neither privy nor party. The court lays down the rule as follows:

"The acceptance by a vendee of a thing sold, except under special circumstances, relieves the vendor from liability to a stranger for an injury resulting to him from the negligent manufacture or construction of the thing sold. Bragdon v. Perkins-Campbell Co., 30 C. C. A. 567, 87 Fed. Rep. 109; Necker v. Harvey, 49 Mich. 517, 14 N. W. Rep. 503. The duty owing to the public, for breach of which one injured may recover, has respect to and is limited to instruments and articles in their nature calculated to do injury, such as are essentially, and in their elements, instruments of danger, and to acts that are ordinarily dangerous to life and property. If the wrongful act be not imminently dangerous to life or property, the negligent vendor is liable only to the party with whom he contracted. McCaffery v. Manufacturing Co. (R. I.), 50 Atl. Rep. 651, 55 L. R. A. 822. Petroleum oil, as we held in Goodlander Mill Co. v. Standard Oil Co., supra, and in Railway Co. v. Balentine, 28 C. C. A. 572, 84 Fed. Rep. 935, is not a dangerous agency within the rule that he who uses it does so at his peril. It is dangerous only, when in considerable quantities, it is brought into contact with fire. That is a fact of common knowledge with which every one is chargeable."

THE APPLICATION OF THE COMMON LAW TO LANDS HELD BY THE UNITED STATES IN THE FORMER TERRITORY OF THE UNITED STATES NORTHWEST OF THE RIVER OHIO, AND ESPECIALLY IN RESPECT TO PRIVATE WATERS AS DISTINGUISHED FROM PUBLIC WATERS.

Earlier numbers of the CENTRAL LAW JOURNAL contain two articles which treated of "Title to Lands Under Fresh Water Lakes and Ponds."1.

I. The following observations are intended to supplement those articles with some suggestions as to the common law bearing upon title derived by patents from the United States for lands in the northwest territory. It is not, however, the purpose of this contribution to bring under review or comparison many of the later decisions bearing upon the general subject; but, rather to refer to some features of the common law, leaving to a later time, or to another contributor, the task of comparing cases to date in the different states, in one or two of which a sentiment counter to the current of decisions on the subject has been expressed, in declining to recognize a 1 Vol. 13, p. 1; vol. 32 p. 291.

settled principle of the common law in regard to private or nonnavigable waters.

II. The territory named was ceded to the United States by the state of Virginia.2

The cession was to the United States in congress assembled, for the benefit of the United States, Virginia included. All lands so ceded were to be considered as a common fund for the use and benefit of such of the United States as had become or should become members of the confederation or federal alliance of the said states, Virginia inclusive, according to their usual respective proportions in the general charge and expenditure, and were to be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatsoever. The cession was as well of soil as of jurisdiction which the commonwealth of Virginia had to the territory or tract of country within the limits of the Virginia charter situate to the northwest of the River Ohio.

The Charter of Virginia of May 23, 1609, was very comprehensive in its specification of the property granted. It was described as embracing "all the soils, grounds, rivers, waters," etc.3

The theory of law then and still prevailing was that "All the lands and tenements in England, in the hands of subjects, are holden mediately or immediately of the king." (Co. Lit. la., lb.)

This principle had so full an application that a later author says, "That part of the land which the king and his ancestors have never granted out to the subject, remains to the king, as his demesnes, in absolute ownership."4

Littleton's statement that "It was a principle in law that of every land there is a fee simple, etc., in somebody, or otherwise the fee simple is in abeyance," was said by Sir Edward Coke to be "so plain as to need no explanation."

This theory in its essential features, prevails in the United States, whereever the common law is maintained. As was declared in Cobb v. Davenport,5 "The policy of the

2 Act of Virginia, October 20, 1783; Deed of Cession thereunder from said state, March 1, 1784: Statutes of Ill. compiled by Treat, Scates and Blackwell, 1878, pp. 18-20.

8 Id., 1-7.

4 Moore's Hall on the Foreshore, 672, Ed. 1888. 532 N. J. Law 369, 378.

common law is to assign to everything capable of ownership a certain and determinate owner, and for the preservation of peace, and the security of society, to mark, by certain indicia, not only the boundaries of such separate ownership, but the line of demarcation between rights which are held by the public in common and private rights. In pursu

ance of this policy, by the common law, all waters are divided into public waters and private waters. In the former the proprietorship is in the sovereign; in the latter in the individual propietors."

In the territory under consideration the titles depending upon grant must be traced from the United States through congressional legislation or action. This principle applies not only as to the land, but as to non-navigable waters, and is consistent with the fact of dominion or sovereignty of the states respectively over navigable waters and the soil under the same.

Full proprietorship of the territory ceded by Virginia, comprising the present states of Ohio, Indiana, Illinois, Michigan and Wisconsin, and the part of Minnesota which is east of the Mississippi river, passed to the United States; and this in the broadest sense in respect to the whole territory, save so much thereof as was excepted in the Deed of Cession. 6

In Story on the Constitution, §1328, it was said, "The power of congress over the public territory is clearly exclusive and universal, and their legislation is subject to no control, but it is absolute and unlimited, unless so far as it is affected by stipulations in the cessions, or by the ordinance of 1787, under which any part of it has been settled."

The principle thus declared has not been qualified-not even by the opinion in Dred Scott v. Sanford, in which case some members of the court, and especially Mr. Chief Justice Taney and Mr. Justice Curtis, spoke at some length of the cession, with reference also to the ordiuance of 1787 and the Act of Congress of August 1, 1789, recognizng or providing for carrying out the ordinance under the new form of government created by the Constitution of the United States.

The provisions of the ordinance have been

6 Johnson, etc. v. McIntosh, 8 Wheat. 543. 19 How. 393.

observed in the admission into the Union ot the new states formed out of this territory.

Article IV. of the ordinance provided that "The legislatures of those districts or new states, shall never interfere with the primary disposal of the soil by the United States in congress assembled, nor with any regulations congress may find necessary for securing the title in such soil to the bona fide purchasers." Also, among other things, that "The navigable waters leading into the Mississippi and St. Lawrence and the carrying places between the same, shall become highways, and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other states that may be admitted into the confederacy, without any tax, impost or duty therefor."

The former of these provisions has been expressly or tacitly incorporated into the several enabling acts under which the states formed from this territory have come into the Union as states; and the inhibition has been maintained whenever attempted to be gainsaid.

The latter provision was also kept well in mind by the congress in making enactments looking towards the disposition of the public lands, for in the Act of May 18, 1796, having reference to that subject, it was provided that "All navigable rivers within the territory occupied by public lands, shall remain and bedeemed public highways; and in all cases where the opposite banks of any streams not navigable belong to different persons, the stream and the bed thereof shall become common to both."8.

In the section just quoted, a distinction was properly drawn between navigable rivers and streams not navigable; and this is a distinction well ingrafted into the common law, and proper to be marked as a part of the law of the land.

The states which were to be formed in this territory were to be admitted into the Union on an equal footing with the original states." This being so, the several states organized out of this territory acquired in becoming members of the Union the right in their sovereign capacity to all their navigable waters. The right so acquired by the states was in the nature of a municipal power, subject to the

8 § 2476 Rev. Stat. U. S.

9 Article V. of the Ordinance.

constitution of the United States and the laws made in pursuance thereof. 10 In other words the new states, as was expressed in that case, had the same rights, sovereignty and jurisdiction over this subject, to-wit: the navigable waters within their borders, as the original states had in like waters therein. But such waters must be navigable in fact or in law, otherwise the state does not hold the same in its sovereign capacity; and as to such waters the United States "has wisely abstained from extending its sur

vey and grants beyond the limits of high water."11

It is to be noted here that the states formed in the territory under consideration did not at the time of their admission into the Union, nor at any time thereafter, acquire the title to any of the public lands, except so far as the enabling acts or special grants to them by acts of congress gave such title. In respect to the public lands, including private or non-navigable waters, the state had to trace title from the United States substantially as an individual would trace such title; and the sovereignty allowed to the respective states in regard to navigable waters and the soils there

under is not to be used so as to affect the exercise of any national right of eminent domain or jurisdiction of the United States under the constitution. 12

Going back again to earlier authorities, we find "Land, terra, in the legal signification, comprehendeth any ground, soil or earth whatsoever, as meadows, pastures, woods, moors, waters, marishes, furses and heath."13 "And as in England all the lands and tenements in the hands of subjects, are holden mediately or immediately of the king,"14 so in the states formed out of this northwest territory, all the lands and tenements in the hands of subjects must be said to be holden mediately or immediately of the United States, excepting, of course, those public or navigable waters over which the states in their sovereign capacity and in trust for the people took jurisdiction in assuming state

hood.

when acquired by the United States under the Deed of Cession from Virginia, it is to be observed, "That the common law of England, and all the statutes of parliament made in the aid of the common law prior to the fourth year of the reign of King James I., which are of a general nature, and not local to the kingdom, were expressly adopted by the Virginia statute of 1776."15

That statute, of course, affected the whole territory of Virginia, including the County of Illinois, into which the colony or state formed the outlying territory northwest of the River Ohio. Thus were matters left at the time this terrttory was ceded to the United States, and it may be said that the common law continued to prevail as to the territory and in respect to the whole of the public domain therein while in the hands of the United States, and consequently as to the titles given by the United States, save so far as these may, in any instance have been qualified by the grants or patents. This is but equivalent to stating that there is a branch of the common law that for the most part settles the manner and form of acquiring and transferring property. 16

Or again, the common law in one of its branches "declares the principles applicable to the expounding of wills, deeds and acts of parliament."17

Speaking historically, the older Atlantic states held within their own borders large quantities of land. After they ceded their outlying territory to the United States they continued to be proprietors of the lands within their own borders, save so far as individuals had acquired title thereto, and except as a further illustration, that Massachusetts may have owned some part of the unsold or unappropriated lands in the state of Maine. In such cases it was, of course, the right of the respective states owning the land in their own right to impress thereon any characteristic which would be thought to be beneficial to the public. An example of such change of the common law occurred in the adoption of colony ordinances in Massachusetts in regard to large ponds. 18

15 Scott v. Lunt's Administrator, 7 Peters, 596, 605. 16 1 Bl. Com., 67.

17 Broom's Com. on Common Law, *8.

18 Cummings v. Barrett, 10 Cush. 186; Inhabitants of West Roxbury v. Stoddard 7 Allen, 158.

But

The provisions of such ordinances have been held to be applicable in Maine, and the principles of the same have received a wider recognition, sometimes without observing their non-concordance with the common law. where such recognition has occurred in respect to lands, the title to which has been derived from the state, no federal question would be presented, and therefore the decisions of the state courts would generally be final. Such decisions, however, should not be taken to be indicative of the common law in construing patents from the United States for lands bordering on non-navigable waters not excepted from the grants. Congressional action similar to such ordinances would have been necessary while the United States owned the land to make the principle of the ordinances applicable.

IV. To the class of decisions not subject to be reviewed by the Supreme Court of the United States, as not presenting a federal question, may be assigned Trustees of Schools v. Schroll. 19 For, in that case, while the title to section 16 was held to have passed to the state of Illinois by congressional grant through the Enabling Act of Congress of April 18, 1818, yet the question which the case presented was whether the School Trustees, holding through or under the State, had parted with the title to land which they had platted, or had lost such title by reason of any of the matters of defense set up, and the court ruled that the evidence offered by the defendants, including a deed from the county of Morgan for supposed swamp land, was incompetent, and should have been excluded by the trial court. All that was said as to any difference between streams and lakes in respect to the construction of deeds for lands bounded thereon is to be attributed to the argument, rather than to the facts actually involved.

The case was ejectment by the trustees of schools, and involved a part of Meredosia Lake in fractional section 16, township, 16 north, range 13 west, in Morgan county, Illinois. The court found, as stated above, that the title to said section passed to the State of Illinois, by the said enabling act. The grant to the state was, of course, "for the use of the inhabitants of such township, for the use of schools." Under authority of the

19 120 Ill. 509.

state laws, the trustees of schools made a plat of the section, and sold certain lots, which were thereupon granted by the state. No construction was put upon the grant from the United States, save in holding that it conveyed the whole fractional section, including that part of it which was covered by the lake. The construction sought by the defendants, in connection with attempted defenses, was based upon the patent from the state for certain of the school lots, a deed under the Swamp Land Act, and possession claimed to be sufficient under limitation laws; but it was held that all of the defendants' evidence was insufficient and immaterial, and should have been excluded by the trial court.

It will be observed that the defendants' title papers did not require nor authorize the application of the general rule of construction of grants of land bounded by water; for it was held, "that it did not appear that the state ⚫ granted all the lands bordering on Meredosia Lake in (said) fractional section." But the construction of the grant from the United States gave right of recovery by the trustees of schools as to the lake and former upland alike.

20

The same court, in an earlier case, speaking by Mr. Justice Scates, said: "We feel bound to construe grants by the government according to the principles of the common law, unless th rnment has done some act to qualify or exclude the right." The court consequently held, "that an island in the Mississippi river not marked or mapped upon the plat of the government's surveys passed to the patentee of the land bordering on the river, such patentee having become the owner of the soil under the river to the center of the current." In fact there is no essential distinction between the upland measured, and the land covered with water, when surveyed and offered for sale by the government, speaking always, in this connection, of waters that are not navigable at law; and the question of high water or low water is in the main immaterial.

A liberal policy was pursued by the United States in disposing of the public lands. Such a course was observed as was thought likely to promote actual settlement. Thus, as our

20 Middleton v. Pritchard, 3 Scam. 510, 520.

has never been held (said the court), that the lands under water, in front of such grants are reserved to the United States, or that they can be afterwards granted out to other persons, to the injury of the original grantees. The attempt to make such grants is calculated to render titles uncertain and to derogate from the value of natural boundaries like streams and bodies of water."

Under the common law, also, "the general rule of construction of all grants of land bounded by water of any kind is now well established, that, unless qualified by restrictive words, they pass the soil toward the center of the water as far as the grantor owns."2 2

It requires an exception in the grant, or something equivalent to it, to limit the right of the grantee to the edge of the water, when land is conveyed with the water as a boundary, the grantor being the owner of the soil under the water. It is, as if the grantor conveyed land on a public highway, he being the owner in fee of the land on which the highway is laid. 28

V. We refrain for the present from comparing the decisions in Ohio, Indiana, Michigan and Minnesota, with a few cases in Wisconsin and Illinois, which seem to favor the principles of the colonial ordinances of Massachusetts, amendatory of or intended to be restrictions upon the common law. Yet it is pertinent to raise the question, whether such restrictions should be adopted by the courts, in the absence of any legislation by congress equivalent to those ordinances, prior to the sale of the public lands; which legislation might have been proper, if found advisable, before the government parted with its title to such lands.

In Hardin v. Jordan, supra, consideration was given to the question whether it was advisable for the courts to make a departure

21 Hardin v. Jordan, 140 U. S. 371, 35 Law Ed., 428, 433.

22 Paine v. Woods, 108 Mass., 160, 169; Canal Trustees v. Haven, 10 Ill. (5 Gilm.) 548.

23 Elphinstone on the Construction of Deeds, *182-3 and note 47; Dunham v. Williams, 37 N. Y. 251.