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action was real or fictitious, although dismissing the bill without proceeding further may be more summary. Upon this question the evidence, although full as to the motive, is that the lease was real, or at most does not show that it was not real and effectual to pass the title of the term to the orator. There is therefore no good ground apparent for dismissing the orator's case without passing upon his rights involved in it.
The original grants are shown by entries and are not set forth at large, and there are several breaks in the chain of title, in the public records; but the chain is perfect since very ancient times, and references are made from subsequent to prior grants, and from thence to the original grants, so as to be traceable throughout, and in connection with peaceable possession shown beyond memory, the title from the Crown through the grant of the royal governor down to the water, satisfactorily appears. Kingston v. Horner, Cowp. 102; Johnston v. Ireland, 11 East, 280; Read v. Brookman, 3 T. R. 159; Fletcher v. Peck, 6 Cranch. 97; 1 Greenl. Ev., sec. 45. The defendants, the Mayor, etc. of New York, derive their title from the charter of Thomas Dougan, royal governor in 1686, granting all the lands about the Island to low water mark, reserving prior grants, made within twenty years, and from subsequent grants from the Crown and State, extending further out under water. The rights of the Crown at the Revolution became vested in the State. Martin
v. Waddell, 16 Pet. 367. Thus what was granted to Curttessee and Deffore in 1676 and 1677, in respect to the front of this land, has come to the orator during his term, and what remained to the Crown after those grants, has come to the defendants.
The river by which the grant to Curtessee, and the water by the side of which the grant to Deffore, is the East river, through which the tide ebbs and flows, and which is a great highway for all people with all kinds of watercraft. The shore at this place was so steep that there was little or no difference, literally, between high and low water, and vessels could always land there without artificial docks or wharves. The owners, and others by their permission, could and did pass freely from the land on to the river, and from the river on to the land; and could always do so while the river should remain where, in the grants, it was described to be.
There is no question but that the grants stopped at high water mark, and left the right to the soil under water beyond in the Crown, subject to the right of the public to the river as a highway over it. Brac., Book 1, chap. 12; Rex v. Smith, Doug. 425; Commonwealth v. Charlestown, 1 Pick. 180; Martin v. Waddell, 16 Pet. 367. This highway was a way to this land when the successive grantees took it, and when the orator took his lease of it. So far as the defendants could have any right to it, or to the soil under it, the original grantor, the Crown, had the same right.
The Crown, after Magna Charta, could not
grant land bounded on a way, and afterwards, without compensation, remove the way, any more than an individual could. The defen lants, as grantees, from and under the Crown, are limited as if they had made the grant which the Crown made. They could not grant land to a way on land, and afterwards remove the way. Story v. New York Elevated Railway Co., 15 Cent. L. J. 391.
The title to the land under the way in that case came from the same source as the title to the land under this water way, and in the same manner. If the authority of the State and city was not equal to the obstruction of that way it is not apparent how they can be adequate to the total removal of this one. That is the latest decision, so for as is now known, of the highest court of the State upon the subject, and to the extent of the principles involved these must be considered to be the law of the State. The right of a land owner to enjoy the way over navigable water adjoining his land seems to have been several times fully recognized by the Supreme Court. Dutton v. Strong, 1 Black 25; Railroad Company v. Schumier, 7 Wall. 272; Yates v. Milwaukee, 10 Wall. 497. In the latter case Mr. Justice Miller expressly states the proposition to have been decided in the two former. And in delivering the opinion of the court he further says: "This riparian right is property, and is valuable, and though it must be enjoyed in due subjection to the rights of the public it cannot be arbitrarily or capriciously destroyed, or impaired. It is a right of which, when once vested, the owner can only be deprived in accordance with established law, and if necessary that it be taken for the public good, upon due compensation."
This doctrine does not appear to have been overruled. In Weber v. Harbor Commissions, 18 Wall. 57, Mr. Justice Field, in the opinion of the court says: "It is unnecessary for the disposition of this case to question the doctrine, that a riparian proprietor whose land is bounded by a navigable stream, has the right to access to the navigable part of the stream in front of his land, and to construct a wharf or pier projecting into the stream, for his own use, or the use of others, subject to such general rules and regulations as the legislature may prescribe for the protection of the public as was held in Yates v. Milwaukee. On the contrary, we recognize the correctness of the doctrine as stated and affirmed in that case." Barney v. Keokuk, 94 U. S. 321, was an action of ejectment and involved the right of soil, and not a right of way, and what is there said appears to have been said in that view. This seems to be the English doctriue now.
Lyon v. Fishmongers Company, I. L. R. Appeal Cases 662; 35 Law T. Rep. N. S. 569. In this case the Lord Chancellor appears to have said: "I cannot entertain any doubt that the riparian owner on a ravigable river in addition to the right connected with navigation to which he is entitled as one of the public, retains his right as an ordi
nary riparian owner, underlying and controlled by, but not extinguished by, the public right of navigation;" and Lord Selborne: "For the purpose of a riparian proprietor, lateral contact with a stream is jure naturae, as good as vertical right. It is true that the bank of a tidal river, of which the foreshore is left bare at low water, is not always in contact with the flow of the stream, but it is in such contact for a great part of every day in the ordinary and regular course of nature, which is an amply sufficient foundation for a natural riparian right."
The defendants are not proceeding to take such rights for public use upon making compensation, but are proceeding arbitrarily in denial of the existence of any such rights.
These cases and principles seem to entitle the orator to relief. There are numerous cases which standing alone, would support the claims of the defendants. Lansing v. Smith, 4 Wend. 9; Gould v. Hudson River Railroad Company, 6 N. Y. 522; Furman v. Mayor etc., 10 N. Y. 567; Stevens v. Paterson Railroad Company, 5 Vroom 532; 10 Am. Law Reg. 165. They are not considered to be controlling in view of the later cases referred to.
The orator's title has expired now, but had not at the commencement of the suit nor at the time of hearing. The delay would not take away any right to relief which he then had, although his right to continued relief might cease. He has no occasion now for the continuance of an injunction, but may be entitled to an account for damages.
Let there be a decree for the orator, accordingly, with costs.
Supreme Court of Kansas, July Term, 1883. 1. In cases decided by the Supreme Court, when the facts are found by the trial court, and a mandate is sent to that court directing it to render judgment upon the findings for the defendant below, the case is not to be retried by the district court upon the old facts; nor upon facts which ought to have been, and might have been, presented at the trial; nor is the court below, after receiving the mandate, authorized to make additional findings upon the evidence originally offered to aid or cure the judgment pronounced erroneous by the Supreme Court and ordered to be reversed.
2. The district court, upon being directed by the mandate of the Supreme Court to enter judgment on the findings of facts found by the trial court for the defendant below, in a case brought on error to the Supreme Court, must execute the mandate, unless there shall be presented new and different facts in the case.
2. Where the duty is cast upon the district court to carry out the direction of the mandate of the Supreme Court, and that duty is not performed, a mandamus will issue from the Supreme Court ordering the mandate to be obeyed.
Original proceedings in mandamus.
H. T. Green, for plaintiff; E. Stillings, for defendant.
HORTON, C. J., delivered the opinion of the court:
After the decision in Duffitt v. Tuhan, 28 Kan. 292, a mandate was sent to the court below, directing it to enter judgment upon the findings of fact in that case in favor of the plaintiffs in error. These parties presented in open court to the judge thereof, this mandate, and requested the court to render judgment in accordance therewith. Pending this motion, Ellen Tuhan moved the court for leave to introduce further evidence and for other findings in the case. To the hearing of this motion, Duffitt and Ramsey objected. The court overruled their objection and sustained the motion of Tuhan. Thereupon Tuhan and one J. C. Douglass were produced as witnesses. Their evidence, however, was immaterial and irrelevant. It really amounted to nothing and sustained no issue in the cause. The court then found the following fact, in addition to its facts heretofore found: "That the said R. D. Callaghan, at the time of the tax sales and deed heretofore found in this case were made, had knowledge of the making of the same, and of the record of the said tax deed, and that no proceedings were had or taken by him to annul or set aside said tax sales or deeds for more than two years after his knowledge of the taking of said tax deeds by said plaintiff to herself, nor at any other time."
The court stated as a conclusion of law on the facts hereretofore, and at said time found, that Ellen Tuhan is entitled to recover the premises. mentioned in her petition. Subsequently, upon the application of Duffit and Ramsey, an alternative writ of mandamus was issued from this court requiring the judge of the court below to comply with the mandate issued by this court, or to show cause why he had not done so. The answer of the judge sets forth the proceedings in the district court subsequent to the filing of the mandate, and also alleges that said proceedings were done and had in accordance with the rulings and decisions of this court as understood by him, and in furtherance of justice. The question, therefore, before us is, whether, upon the record and the agreed facts, the district court must be required to enter the judgment directed by the mandate. When the case of Duffitt v. Tuhan was brought into this court by a writ of error, the whole record was brought up, and the judgment of this court, going to the merits of the case, was rendered upon the findings of fact specifically stated by the district court. Thereupon, a mandate was sent to the court below, directing it to render the judgment it should have rendered on the facts found in the case; and as no matters
arising subsequent to the decision of this court were called to the attention of the trial court when the motion was made for entering judgment upon the mandate, and as no new or additional facts were presented to that court, the duty devolved upon the court to render judgment so as to conform to the mandate. Gunter v. Laffin, 7 Cal. 588; Argenti v. San Francisco, 30 Cal. 458; McMasters v. Blair, 31 Pa. St. 467; Comp. Laws 1879, sec. 7, ch. 27, p. 316; Code, sec. 599; Ex parte Sibbald, 12 Pet. 492: Ex parte Dubuque, etc. R. Co., 68 U. S. 69. The evidence introduced does not sustain the new or additional finding of fact, and the court below had no power within the direction of the mandate of this court to grant a new trial, or to go back to the evidence produced upon the first trial, and therefrom make an additional finding so as to uphold and cure a judgment which this court pronounced erroneous, and reversed. The district court had no power to set aside the judgment of this court. Its authority upon the record extended only to executing the mandate.
Counsel for defendant allege that the action of the district judge was warranted by the language used by this court in Conroy v. Perry, 26 Kan. 473. Counsel has evidently an erroneous conception of that case. It was stated therein that the district court, when instructed by this court to enter a specific judgment in a case reversed, may, upon a new and different presentation of facts, give rights to either party and proceed to inquiry and judgment thereon; but this discretion can only be exercised upon the presentation of new facts. When a case is heard upon proceedings in error in this court, and the merits of the case are passed upon and the judgment of the inferior court reversed, with direction for the entering of a judgment, the case is not to be retried by the trial court upon the old facts; nor is the defeated party permitted to introduce other facts, which ought and might have been presented upon the original trial. On the proceedings of the district court, subsequent to the filing of the mandate in Duffitt v. Tuhan, no additional or new facts were presented to justify the court's action. The pleadings were not changed, no supplemental petition was filed, no affidavits were read, and the evidence offered was not worthy of consideration. Again, in Conroy v. Perry, supra, the district court held the supplemental petition to be insuflicient, and therefore the rights of Perry were in no way prejudiced by the leave given to file the supplemental petition. Further, the final judgment rendered therein by the district court was the judgment substantially directed by this court in the mandate sent to that court. Where cases are decided by this court upon the facts found by the trial court, and the judgment of the inferior court is reversed, and a mandate sent to that court to render judgment upon the findings for the defendant, and no new or additional facts are presented within the rule stated, the duty is cast upon the court below to carry out the direction of the man
date. If the district court, under such circumstances, does not carry the judgment into execution according to the mandate, a mandamus will issue from this court ordering the mandate to be obeyed.
It is, therefore, ordered that a peremptory writ of mandamus issue to the judge of the District Court of Leavenworth County, commanding that judgment be rendered in accordance with the mandate of this court, a copy of which is set forth in the answer of this case. Valentine, J., concurring.
I desire to add a few words in reference to the questions in this case. I was not present at the argument and therefore shall say nothing about the facts. I understand that counsel for defendant rested the action of the district court, mainly on the opinion filed in the case of Conroy v. Perry, 26 Kas. 472. The claim which was made in that case, and to which the opinion was directed was that under no circumstances could the district court do anything other than enter judgment in accordance with the mandate of this court. That, it was said, is the end of the litigation. The record was entirely silent as to the showing made for further proceedings and the only question was whether, under any circumstances, further action might be had by the trial court. Nothing was said in briefs or argument as to the showing necessary to justify such action, but the power was absolutely denied. It was held that the power existed. I see no reason to doubt the power, neither do I understand my associates as questioning its existence. In a certain sense the judgment in this court is an end of the litigation. So also it may be said that any judgment is an end of the litigation. It is a finality, and yet not absolutely final. Take a judgment in a district court. When it is once entered, there is said to be a final adjudication. Neither party can come into court and by simply saying he has more, or different testimony, have the judgment set aside and the matters in issue re-litigated. The reply to such an application would be:-you are too late the matter is at end. And yet every lawyer knows that such a judgment is not absolutely final even in that court. By motion or petition, a reinvestigation may be had within days or even months thereafter, and the statute provides within what time, and upon what conditions such further inquiry may be had. Code of Civil Procedure, secs. 306 to 310; Sexton v. Lamb, 27 Kas. 432.
Now, I suppose, that when a mandate goes back from this court directing the entry of a judgment, the judgment should be entered in conformity therewith. But even then, upon proper petition and showing,further proceedings may be had the judgment opened up, and the issues re-litigated. But this can not be done upon the mere application of a party. That would make the judgment of the appellate less of a finality than that of a trial court. There must be a showing of new
facts or newly discovered testimony, such as would make an opening up of the judgment and a re-examination ju-tifiable. And such application must in the first instance be made to the district, and not to this court. While the language of the opinion in Conroy v. Perry, supra, may not have been as guarded as it should have been, this was all that was then in contemplation. There is one thing in that opinion, however, which I think should be corrected, in which correction my associates concur. It was then said that in the silence of the record, it would be presumed that a sufficient showing was made to the district court. That rule we think is wrong. The judgment of this court should be presumed the end of the litigation, and before any further action by the trial court, other than entering the judgment in conformity to the mandate can be sustained, it should affirmatively appear in the record that a sufficient showing therefore was made.
Again, my impression when this question was first presented, was that the plaintiffs had not sought the proper remedy; that no mandamus would issue to compel obedience to a mandate; that if the mandate was only disobeyed, an attachment as for contempt was the proper proceeding; and that if the action of the district court was predicated upon some showing made by either party, a proceeding in error was the only remedy. But the authorities cited in the opinion from the Supreme Court of the United States, go to the effect that mandamus is the appropriate proceeding.
I believe this is all that I care to add to what is said by the court in the opinion of the chief justice.
Supreme Court of Vermont.
1. The plaintiff delivered to the defendant bank $4,000 of U. S. bonds, and received this writing: "Received of J. W. Whitney four thousand dollars, for safe keeping as a special deposit. S. M. Waite, C." Held, that it was a naked deposit without reward; that the defendants would not be liable for the robbery or larceny of the bonds, unless there was complicity or bad faith; that it was answerable only for fraud or for gross neglect; that the law demands good faith, and the same care of the plaintiff's bonds as defendant took of its own of like character.
2. The bonds were not delivered at the solicitation of the defendant; the bailment was gratuitous; and it was error for the court to allow the jury to speculate as to the benefit derived from the purchase and sale of coupons.
3. It was error to instruct the jury that there might be a benefit to the defendant, perhaps in the sale of the bonds," when by the contract it had no right to sell or use the bonds, and also error in using these words, perhaps in some other way," a way not disclosed by the evidence.
4. Evidence showing that other depositors of bonds in this bank had been misused, or wronged by the cashier, is not admissible to prove that the plaintiff
5. The facts that the safe was left open during the transaction of business, that there was no gate in the passage way from the rear of the banking room, behind the counter, that only one person was left in charge of the bank about noon each day, do not seem so unusual as to be accounted negligence, much less gross negligence.
6. The true test of gross negligence in this case is whether the defendant took the same care of these bonds as it did of its own.
7. No notice having been given the defendant to produce its books, no request for their production during the trial, no evidence that there was any entry in them touching the bonds, and the books being in the hands of the receiver, it was error for the court to charge that their non-production might be considered bythe jury to the defendant's prejudice.
8. If a party fails to call for books, when he has a right to have them, it will not be presumed that there are entries in them beneficial to such party.
Case for negligence in keeping certain United States bonds. Plea, general issue. Trial by jury, March Term, 1881, Taft, J., presiding. Verdict for the plaintiff to recover $7,149.89. The facts in this case are sufficiently stated in the opinion of the court, and in the 50 Vt. R. 388, where this case is reported, except the following request by the defendant and charge to the jury. The defendant requested the court to charge the jury:
"11. Upon the gratuitous bailment existing, the defendant is only liable for gross negligence in the keeping of the bonds, whereby they were lost.
"12. And if the jury find that the bank was robbed of the bonds, the defendant is not liable except it was guilty of some gross negligence which occasioned the loss.
"13. Such negligence is equivalent to fraud and can not be presumed or inferred, but must be in some particular which can be stated, and must be proved by the plaintiff in order to entitle him to
14. The true test of gross negligence is whether the defendant took the same care of the plaintiff's bonds as it did of its own. That is the measure of its undertaking, both as defined by law, and as actually occurred between the parties upon the statement of both parties."
The court charged, among other things: "Now, this was a contract to keep the property, the bonds of the plaintiff, safely. I believe it reads, 'for safe keeping.' There is evidence tending to show that it was made at the solicitation of the cashier of the defendants. And the proof being, or the concessions in the case being, that the defendant was acting in the line of taking special deposits in that business, whatever the cashier did in the business would be the act of the defendant itself. And there is evidence tending to show that the bank received a benefit from this special deposit and deposits of like character by the purchase and sale of the gold coupons; and
perhaps in some other way; perhaps in the purchase and sale of the bonds themselves. There is evidence in the case which tends to show that they purchased these coupons which were payable by the government in gold, which at that time was bearing something of a premium, and buying them at a less rate than the market quotations of them at the time that they purchased, a difference being made, the price depending upon the state of the market, and whether it was regular or settled. Of course if the market was steady for a long time, and quotations were regular at one rate, they could perhaps afford to pay nearer to it than they could where the market was fluctuating and prices changing from day to day.
"If you find that this contract was made and these bonds delivered, the special deposit made at the solicitation of the defendant, with the expectation of receiving gain and benefit, and they did receive such benefit, or expected to do so, by the buying and selling of the bonds, or in any other way that justified them in their action, with reference to the matter, or that induced it, or in keeping a set of customers that they wished to have deal at the bank, or for any other reason that was satisfactory to them, although nothing was paid in money by the plaintiff to the defendant for taking these bonds and taking care of them; in that case the court tell you that the defendant was bound to exercise ordinary care and diligence in the custody of these bonds, such care and caution as a prudent man would exercise where he is guided by those considerations which ordinarily regulate the transactions of human affairs; the same rule which is conceded to be the law, and which the court tell you is the law, that exist in those cases where the bailment is one for hire or reward, as it is called; the same rule of diligence that would be required of the bank in case Mr. Whitney went to the bank and said: 'I will pay you one per cent. annually for keeping these bonds.' That is a bailment which is called one for hire or reward."
Kittredge Haskins and E. J. Phelps, for defend
The bailment was gratuitous; if so, the defendant was only liable for loss of the bonds caused by gross negligence. Coggs v. Bernard, 2 Lord Ray, 909; Foster v. Essex Bank, 17 Mass. 501, 479; Nat. Bank of Lyons v. Ocean Nat. Bank, 60 N. Y. 278. First Nat. Bank of Carlyle v. Graham, 100 U. S. 644; Scott v. Nat. Bank of Chester Valley, 72 Penn. 471; DeHaven v. Kensington Nat. Bank, 81 Ib. 95; Nat. Bank of Allentown v. Rex, 89 Ib. 308; Smith v. First Nat. Bank, 99 Mass. 605; Jenkins v. Nat. Vill. Bank, 58 Me. 275; Spooner v. Mattoon, 40 Vt. 300; Story on Agency, sec. 16: Schouler on Bailm., pp. 15-51; Story on Bailm., sec. 23.
Gross negligence is a degree of negligence that is equivalent, or nearly equivalent, to fraud. It is precluded where the bailee takes the same care of the deposit as he does of his own similar property. It is not the want of the care exercised by
the most prudent man, but of that employed by "the most inattentive." Coggs v. Bernard, supra; Foster v. Essex Bank, supra: Tompkins v. Saltmarsh, 14 Serg. & R. 275; Nat. Bank of Allentown v. Rex, supra; Story on Agency, sec. 16-19; Schouler on Bailm., supra; Jones on Bailm., sec. 8; Scott v. Nat. Bank of Chester Valley, 72 Penn. 471.
It is well settled that officers of a corporation can make no admissions that will be evidence against it, except where such admissions are part of the res gesto which is in Itself admissible. No antecedent or independent fact can be so proved. Ang. & Ames Corp., pp. 299-300; 1 Greenl. Ev., sec. 436; Story on Agency, 115; Ruby v. Hud. Riv. R. Co., 17 N. Y. 131; Hamilton v. New York Cent. R. Co., 54 Ib. 334; Nat. Bank of Lyons v. Ocean Bank, 60 Ib. 278; Underwood v. Hart, 23 Vt. 120.
Martin & Eddy, for plaintiff.
In the case of bailment, it has been always understood and held that if the bailee spontaneously proposes to keep the goods of another, he is answerable for the want of ordinary care, or, in other words, he is held to the same degree of care that he would be if he was receiving a just com→ pensation for keeping the goods. 2 Kent. Com. 565; Jones Bail. 55; Story Bail. 80, 81; Schouler Bail. 39; Newhall v. Paige, 10 Gray, 268; Story Bail. 153; 1 Parson Con. 431; 1st Thompson Nat. Bank Cases, 466.
If defendant took upon himself the burden of exercising a greater degree of care than he otherwise would have been obliged to take, he is liable if he fails to perform. Schouler Bail. 21; Story Bail. s. 71, p. 77; Jones Bail. 54; 2 Kent Com. 560; 2 Par. Con. 94. The defendant's fourteenth resquest should not have been granted. Sher. & Redf. Negl. 19; Doonan v. Jenkins, 2 Ad. & El. 256; Rooth v. Wilson, 1 B. & Ald. 59; Schouler Bail. 44, 45, 46; 2 Par. Cɔn. 91, 92, 93; 2 Kent Com. 563.
In no case that we have been able to find has it been claimed or held that the question whether the benefits or expected benefits to be derived by the bailee from such deposits might not have formed the basis of and induced the solicitation, nor that this was not a proper question to submit to the jury, and one which would warrant them, from the receipt or contract itself, the language used and the surrounding circumstances in finding that these did constitute an inducement and consideration to the bailee upon which his promise to keep safely was made. Foster v. Essex Bank, 17 Miss. 479; Scott v. Nat. Bank of Chester Valley, 72 Penn. 471; Leach v. Hale, 31 Iowa 99; Newhall v. Paige, 10 Gray 366; Lawrence V. McBalmont, 2 Howe 452. Reasonable care demanded by a gratuitous bailment. Schouler Bail. 42, 58; 2 Kent Com. 560; Sher. & Redf. Negl. ss. 21, 23; Newhall v. Page, 10 Gray 366; Ludor v. Lewis, 3 Met. (Ky.) 378. REDFIELD, J., delivered the opinion of the