author: By the Court.

text:
    Emery et al. v. The Ohio Candle Co.
    “ Trusts ” and “ Combinations ” to increase the price of commodities— Contrary to public policy — No standing in a court of justice.

    An association organized for the purpose of increasing the price and decreasing the production of a commodity of general use, such as candles, is contrary to public policy; and a claim based upon an enforcement of the agreement by which the association was formed, can receive no aid from a court of justice.
    (Decided May 6, 1890.)

      Error to the Superior Court of Cincinnati.
    In 1880 an unincorporated company was formed, to continue six years, called The Candle Manufacturers’ Association, which included the manufacturers of ninety-five per cent, of the star candles in that part of the United States lying east of the 114° of longitude west of Greenwich, or substantially all the territory east of the western boundary of Utah. Its object was to increase the price and decrease the manufacture of candles in the territory covered by the agreement; and is found, as a fact, to have had that effect during the whole existence of the association. The members composing the association were required to pay into its treasury two and one half cents per pound on every pound of candles disposed of on their own account within the territory. But neither was bound to operate his factory; and whether he did, or did not, he received at stated times his proportion of the profits of the pool, which was based upon the business that had been done by him in previous years; thus making it to the interest of each member'to operate his factory when the price of candles was high, and to remain idle when the price was low.
    The receipts of the association were placed in a selected! depository, The First National Bank of Cincinnati, to the credit of an executive committee, consisting of three members, selected by the association, and could only be paid out on a check signed by at least two of them. The claims of all members were adjusted by this committee.
    The Ohio Candle Company, incorporated under the laws of this state, joined the association in 1883 and withdrew therefrom in March, 1884. During the month of January of that year it had paid into the association $22.40, but there was due to it, under the terms of the agreement, as- profits for that month, the sum of $2,151.17. The committee agreed to pay the company the sum it had paid in, but refused to pay the sum due as profits, on the ground that by withdrawing before the expiration of the life of the association it had violated the agreement, and was entitled to none of its gains. Thereupon the company brought suit for the amount against the members composing the committee, to which the bank was made a party, asking that the bank be ordered to pay the money to the plaintiff, or that a judgment be rendered in its favor for the amount with interest.
    Issues of fact having been made up, the case was tried to the court, and reserved for hearing in general term, which made a finding of facts — the substance of which has been stated — and rendered judgment against the members of the committee, which is sought to be reversed on the ground that it is against the law.

      Perry $ Jenny, for plaintiffs in error.
    Ramsey, Maxwell $ Ramsey, for defendants in error.
   By the Court.

We are of the opinion that the suit cannot be maintained, for the reason that the objects of the association were contrary to public policy, and in no way to be aided by the courts. No recovery can be had except by giving effect to the terms of the agreement. The action is, in substance, a suit against the association to recover a sum due the plaintiff under the terms on which the association was formed. The committee represent the association, and a judgment against them is a judgment against .it. If, as claimed by the defendants, a member could not withdraw from the association until the six years had expired, then the committee, as representing the association, bad a defense on which they might have relied, had the objects of the association been perfectly legitimate. But should a court be called on to consider any defense, so long as the claim itself is based upon an agreement to which it can give no countenance ? It must be observed that the withdrawal of the plaintiff was not at a time, nor under circumstances, that could give to it the merits of repentance. It had passed beyond where it might, by withdrawal, have secured the aid of a court in recovering what it had advanced in furtherance of an illegal object. Its suit is to recover its portion of the ill-gotten gains. The case of Norton v. Blinn, 39 Ohio St. 145, can have no application here, for this is a suit between parties to enforce the terms of the illegal agreement. See, Texas & P. Ry. Co. v. Southern Pac. Ry. Co., 6 Southern Reporter, 888, where Broolcs v. Martin, 2 Wall. TO, is accurately distinguished, and shown to have no application to a case such as this.

Judgment reversed, and petition of plaintiff below dismissed.


source: Caselaw Access Project

author: Digerían, J.

license: Public Domain

text:
    Behrens v. Behrens.

      Spoliated will — Burden of proof — Presumption of revocation — Declarations of Testator.

    1. Where the prohate court has found and established the contents of a lost, spoliated or destroyed will, in a future proceeding to contest the validity of such will, the order of probate will be prima facie evidence of the due attestation, execution, validity, and contents of the will, and the burden of proof will be on the contestants to invalidate such will.
    2. When a will, once known to exist, and to have been in the custody of the testator, cannot be found after his decease, the legal presumption is, that it was destroyed by the testator with the intention of revoking it.
    3. To strengthen such presumption, it is competent to prove the declarations of the testator after making his will, that he had destroyed, or intended to destroy the same.
    (Decided May 20, 1890.)
    Error to the Circuit Court of Defiance county.
    The original action was commenced in the Court of Common Pleas of Defiance county, by the plaintiffs in error, Henry Behrens, Frederick Behrens, and John Knape, administrator of Daniel Behrens, deceased, against the defendant in error, George Behrens, to contest the validity of & lost or destroyed will alleged to have been made by Daniel Behrens, the father of the contestants, Henry Behrens and Frederick Behrens, and of the contestee George Behrens, and to have been destroyed after bis death, and which was. by the Probate Court of Defiance county established as to its contents, and admitted to probate on the 28th day of July, 1885.
    A transcript from the probate record reads as follows:
    “ The court being satisfied from the testimony taken, that the said Daniel Behrens did, on the 31st day of October, 1882, duly execute his last will and testament in the mode provided by the law at the time of its execution; that said Daniel Behrens died on the 28th day of November, 1884, and that said will was not revoked by said testator, but that it has been lost or destroyed subsequent to the death of said testator; finds and does hereby establish the contents of said last will and testament to have been, as near as .can be ascertained, as follows, to-wit:

      "Item 1st. Said testator by said last will and testament devised to his son, George Behrens, the following described lands and tenements, in fee simple, to-wit: The north half of the southwest quarter of section number twenty-six (26), township number five (5) north, range number five (5) east, in Defiance county, Ohio.
    “ Item 2nd. He also devised to his said son George Behrens, and to his sons Frederick Behrens and Henry Behrens in equal shares, all the personal property, goods, chattels, moneys, notes, rights and credits of which he should die possessed, after all his debts were paid.
    “ Item 3rd. He also appoints his said son, George Behrens, executor of his said last will and testament, and the court further order that said will and testament be recorded as in cases of other wills admitted to probate.”
    The amended petition in the court of common pleas, among other things, alleged three grounds of contest:. First —That the contents of the will were not truly and correctly stated by the probate court in its finding and order; second— «Chat undue influence was used by the defendant to induce Daniel Behrens to make the will in his favor; third — That Daniel Behrens in his life-time, and while of sound, disposing mind, destroyed the will, for the purpose, and with the intention of revoking the same.

      . The defendant for answer admitted, that the probate court, on the 28th day of July, 1885, under proceedings duly had, admitted to probate the last will and testament of Daniel Behrens, deceased, as set forth in the amended petition, but denied each and every other allegation contained in the petition.
    On the trial in the court of .common pleas, the evidence was mainly directed to the question, whether the will was destroyed before or after the death of the testator.
    The plaintiffs, to show that the will, which was not found after the death of the testator, was destroyed by the testator with the intention of revolting it, offered and gave in evidence, against the objection and exception of the defendant, the declarations of the testator made to several persons at different times during the summer and fall before his death. The following witnesses to those declarations were offered by the plaintiffs, and testified as follows:

      John O. Schultz. — “ In the forepart of the summer of 1884, the latter part of May or forepart of June, old man Daniel Behrens came into my store in Defiance, and made the remark he would (or had) put his papers in the stove and burn them up. I said, ‘ you did not burn up your deeds, did you?’ He said, ‘no, my will.’ He said he would serve his children all alike; that is all I heard him say; I think he was then called out of the store.”

      Henry Behrens. — “ He (Daniel Behrens) said what he had should be divided among us three children; he said that at my house; he was there a couple of days; it was in May, 1884. He was quite old, and I wanted to know about his circumstances; he said we would find everything in his trunk, and it was to be divided amongst us three children; that was the last time he was at my house. I never had any talk with him afterward about his property.”

      Frederick Behrens. — “ About four weeks previous to his*’ death I asked him (Daniel Behrens) how it was about his circumstances. He said that the money.that was then on hand he saved himself; the land was all in his own name; all three of you are my boys, one shall not have any more than another.”

      Dora Behrens. — “ Two weeks before he died, he (Daniel Behrens) said he had three sons, and all three should all share alike. He did not want no damning after his death, any swearing or cursing.”

      Mary Behrens. — “ I had one conversation with Daniel Behrens about the disposition of his property. He said he had three sons and they all should have an equal share. That was all that was said there about his sons. My husband and children were present. This conversation was in May, 1884.”

      William Schultz — “ I had a little talk with the old gentleman (Daniel Behrens) in March, 1883, about the disposition of his property. He got out his papers and showed me that he had made a will; he showed it to me ; I looked at it, and did not give him much satisfaction; I told him it was not made right; that I did not read it all, but I did not think it was made right; he said he thought so himself. I told him to put his papers back where they belonged; that was all that was said. This was in his own individual house on his farm. In 1884, about wheat-harvest time, I had another talk with him. I came in the back way and came on the porch. There was nobody at home but a boy and the old man; he asked what I thought of his son George; I told him I did not think much of him. He then said : ‘ I tell you George has just cut his nose off his face.’ He said: ‘ I have burned that will, and they will go in equal shares now.’ ”
    At the close of the testimony, and after the conclusion of the argument, the court charged the jury, and to the whole charge there was a general exception by the defendant, without stating specifically the portion or proposition of the charge excepted to, or the grounds of his exception.
    And thereupon the plaintiffs requested the court to give certain charges to the jury — hereinafter stated in the opin- • ion — which charges, as requested, ihe court gave, to which the defendant by his counsel excepted.
    The jury returned a verdict for the plaintiff, finding that the will, as found by the probate court and admitted to probate therein as the last will and testament of Daniel Behrens, deceased, was not his last will and testament. A motion for a new trial, filed by the defendant, was overruled; judgment was entered on the verdict, and a bill of exceptions embodying all the evidence and charge of the court was allowed, signed and filed as part of the record. On petition in error by the defendant, the circuit court reversed the judgment of the court of common pleas, and remanded the cause for further proceedings. To reverse the judgment of the circuit court, and affirm that of the court of common pleas, this proceeding is instituted.

      Benjamin B. Kingsbury and Henry Kewbegin, for plaintiffs in error.
    1. The proceedings to contest a probated will are in the nature of an appeal from the probate court. The probate proceedings make a prima facie case in favor of the writing produced. Haynes v. Haynes, 33 Ohio St. 598; Sinclair's Will, 5 Ohio St. 290.
    2. Where a testator had a will in his custody, and that will cannot be found after his death, the presumption is that he destroyed it himself. 1 Williams on Executors (3 Am. ed.), p. 129; 1 Jarman on Wills (Bigelow’s ed.), p. 163; Betts v. Jackson, 6 Wend. 173; Hatch v. Signare, 1 Demarest, 519; Schouler on Wills, Sec. 402; Collyer v. Collyer, 110 N. Y. 486; Minor v. Guthrie, 4 S. W. Rep. 179; Lam-son v. Morrison, 2 Am. Lead. Cases (3 ed.)., pp. 653, 656, aud cases cited; 1 Redfield on Wills (3 ed.), p. 328, See. 48.
    3. The declarations of the testator, after making his will, that he had destroyed it, are competent to strengthen such presumption. 1 Phillips on Ev. 316; 2 Am. Lead. Cases, 653; Schouler on Wills, See. 403; 1 Jarman on Wills (5 Am. ed.), 284, note 8; 1 Williams on Executors, 129-130; Boggs v. Taylor, 20 Ohio St. 604; Breck v. State, 4 C. C. Rep. 160; Shailer v. Bumstead, 99 Mass. 112; Weeks v. McBeth, 14 Ala. 474; Patterson v. Hickey, 32 Ga. 156; Steele
      v. Price, 5 B. Mon. 58; Johnson's Will, 40 Conn. 581; Smock v. Smock, 3 Stockt. 156; Miller v. Phillips, 9 R. I. 141; In re White, 25 N. J. Eq. 501; Youndt v. Youndt, 3 Grant, Pa. 140; Foster's Appeal, 87 Pa. St. 67; Lawyer v. Smith, 8 Mich. 412; Harry v. Allen, 25 Mich. 506; Jones v. Mosley, 40 Miss. 261; Wilburn v. Shell, 59 Miss. 205; Tucker v. Whitehead, 59 Miss. 594; Tynan v. Paschal, 27 Tex. 286; Lillie v. Lille, 3 Hagg. Ec. 184; Wargent v. Hollings, 4 Hagg. Ec. 245; Sugden v. St. Leonard, 1 P. D. 154; S. C., 17 Moak, 453; Whitely v. King, 17 C. B. 756; Pickens v. Davis, 134 Mass. 252; Brown v. Brown, 10 Yerger 84; Beadles v. Alexander, 9 Baxter 604; Southworth v. Adams, 11 Bissell 256; Hopp v. Byers, 60 Md. 381; Kitchens v. Kitchens, 39 Ga. 168.
    4. A general exception to the charge of the court is of no avail. Adams v. State, 25 Ohio St. 584; Same v. Same, 29 Ohio St. 412; Berry v. State, 31 Ohio St. 219; Everett v. Sumner, 32 Ohio St. 562; Powers v. Railway, 33 Ohio St. 429; Ins. Co. v. Tobin, 32 Ohio St. 77.

      J. R. Tyler, Peaslee ‡ Enos, and Stephenson Knapp, for defendant in error.
    There was no brief filed by attorneys for defendant in error, but the cause was argued orally by J. R. Tyler, Esq.

   Digerían, J.

It is conceded that Daniel Behrens, on the 31st day of October, 1882, made and executed in due form of law his last will and testament. On the 28th day of November, 1884, he died leaving real and personal property, and as his heirs at law, Frederick Behrens and Henry Behrens, the plaintiffs herein, and George Behrens, the defendant, his only sons. After his decease, it was discovered that his will had been lost or destroyed, and the question arose, whether the will was lost or destroyed prior or subsequent to the death of the testator, and if before his death, whether or not it was destroyed by 'the testator himself, with the intention of revoking the same. On the application of George Behrens, the probate court found that the will was not revoked by the testator, but that it had been lost or destroyed subsequent to his death, and thereupon established its contents to be as in the alleged copy produced in court, and admitted the same to probate.

In the action to contest the validity of the will, the order of probate was prima facie evidence of its due attestation, execution and validity. By section 5948 of the Revised Statutes, last wills and testaments which have been lost, spoliated, or destroyed, when established as to their contents, and admitted to probate, are, in all respects, to be governed by the laws in force relating to other wills, not only as relates to the contents of the same, but in all other matters. In a proceeding to contest the validity of such a spoliated will, admitted to probate, the burden of proof is on the contestants to invalidate it. Haynes v. Haynes, 33 Ohio St. 598; Mears v. Mears, 15 Ohio St. 90. In Banning v. Banning, 12 Ohio St. 437, it is held, that where the contents of a spoliated will have been found, admitted to probate and recorded, in a proceeding duly had for that purpose in the probate court, such record is prima facie evidence, in a future proceeding to contest the validity of such will, not only of the due attestation and execution of such will, but also of its contents; and on the trial of the issue whether the will admitted to probate is the last will of the testator or not, the same must stand, unless the jury are satisfied, by a preponderance. of proof, that it is not, in substance, the will of the testator.

In assuming the burden of establishing by a preponderance of evidence, that the will admitted to probate was not the last will of Daniel Behrens, it became material for the contestants to prove, that his last will was not in existence at the time of his death, but had been revoked by the testator tearing, canceling, obliterating, or destroying the same, with the intention of revoking it. Section 5944 of the Revised Statutes authorizes the probate court to admit to probate an unrevoked last will, when the original has been lost, spoliated, or destroyed, subsequent to the death of the testator, or after the testator has become incapable of making a will by reason of insanity. The court in the matter of Sinclair's Will, 5 Ohio St. 291, in construing the same statutory provision then in force, held that the legislation of the state, as it then existed, did not permit a will lost, or destroyed, to be established, unless it was in existence subsequently to the death of the testator. “ The General Assembly,” said Swan, J., “ deemed it either impolitic, as opening the door to imposition and perjury, or unnecessary, to permit wills lost or destroyed before the decease of the testator to be established.”

The court, therefore, as an essential fact to be determined, charged the jury as requested by the plaintiffs : “ Before you can find that it was the last will and testament of the said Daniel Behrens, you must find that it existed, and had not been revoked at the death of the testator,'or at such time prior to his death when he ceased continuously after that to be of disposing mind and memory; and, unless you find from the evidence, that the said will was actually in existence at the time when the said Daniel Behrens ceased to be of disposing mind and memory, at or prior to his death, then, the conclusion of law follows, that the testator destroyed the will, with intent thereby to revoke it.”

If the will did not exist at the time of the testator’s death, and had been destroyed prior to that time, it could not be established under the statute as a will, of which the original had been lost, spoliated, or destroyed, subsequent to the death of the testator.

And here it may be inquired, what, if any, conclusion of law or presumption arises from the fact of the non-existence, at the time of the testator’s death, of his last will and testament proved to have been made and executed. As requested by the plaintiffs, the court gave the following charge to the jury:

“ The presumption is, that if a will be not found after the death of an alleged testator, it was destroyed with intention of revoking it. This presumption may be strengthened by the declarations made by the testator before his death, to the effect that he intended to destroy the will, and if you believe from the evidence that the will alleged to have been made on the 31st of October, 1882, by Daniel Behrens, was not in existence after his death, you are at liberty to believe from this fact alone, that the said will was destroyed by said Behrens with the intention of revoking it, and you may consider as strengthening this presumption any declarations made to persons before his death, by the said Daniel Behrens, that he would destroy the will, or had destroyed the will, or intended his children should share equahy in his property.”

In giving the aforegoing instructions to the jury, and in admitting in evidence the declarations of the testator as to destroying his will, and dividing his property equally among his three sons, we find no error for which the judgment of the court of common pleas should have been reversed.

In general, it may be assumed that a will is kept in the custody of the testator himself, or under his control, to be changed, modified or revoked according to his good pleasure. If at his decease it cannot he found, it is more reasonable to presume that he himself has destroyed his will, than that some other person has committed the crime, and incurred the penalty of secreting or destroying it. In Betts v. Jackson, 6 Wend. 181, it is said by Chancellor Walworth : “ Legal presumptions are founded upon the experience and observation of distinguished jurists as to what is usually found to be the fact resulting from any given circumstances, and the result being thus ascertained, whenever such circumstances occur, they are prima facie evidence of the fact presumed ; and I have no doubt that five wills, made with all due formality, have been destroyed by the testators either in secret, or when no one was present to be a witness to prove the fact, to where there has been one destroyed or suppressed by fraud, or lost by time or accident, before the death of the testator.” Indeed, it is now well settled, and is a principle of universal acceptance in both the English and American courts, that where a will is proved to have once existed, and the testator retained custody of it, or had ready access to it, and it cannot be found after his death, a legal presumption is raised that the will was destroyed by him with the intention of revoking it. In the recent case of Collyer v. Collyer, 110 N. Y. 486, the rule is stated, that when a will previously executed cannot be found after the death of the testator, there is a strong presumption that it was revoked by destruction by the testator, and this presumption stands in the plaee of positive proof. See also 1 Redf. Wills, 329; 1 Wms. Exrs. 157, and cases cited; 2 Am. Lead. Cas. (5 ed.), 510; Foster’s Appeal, 87 Pa. St. 67; Minkler v. Minkler, 14 Vt. 125; Betts v. Jackson, supra; Minor v. Gruthrie, 4 S. W. Reporter, 179 (Ct. of App. Ky.); Hatch v. Sigman, 1 Demarest, N. Y. 519; 1 Jar. Wills (5 Am. ed.), 290, and cases cited; Wargent v. Hollings, 4 Hagg. Ecc. 245; Lillie v. Lillie, 3 Hagg. Ecc. 184.

Such a presumption of revocation may be overcome by circumstantial or other proof to the contrary. It may be rebutted by showing that the testator had no opportunity to revoke, and that his will was destroyed after his death. And for this purpose, declarations of the testator to various members of his family down to a few days before his death, expressive of his satisfation at having settled his affairs, and intimating that his will was left with his attorney, have been held to have been properly admitted. Whitely v. King, 17 C. B. N. S. 756; Keen v. Keen, L. R. 3 P. & D. 105; In re Johnson’s Will, 40 Conn. 587.

But while the declarations of the testator may be used to weaken the presumption that he has destroyed his will with the intention of revoking it, his declarations may also be received as evidence 'to strengthen and fortify the presumption that he has destroyed his will with such intention. Whether it be the making of a will or the destroying of one, the competency of the testator's declarations as evidence is alike in each case, and for the same reasons admissible. Collagan v. Burns, 57 Me. 465. In Keen v. Keen, supra, in order to rebut the presumption of revocation arising from a will which was in a testator’s possession not being found after his death, evidence was produced of declarations by the testator showing an intention to adhere to the will. The court held that evidence of declarations of an intention not to adhere to the will, produced by the opponents of the will, was admissible to contradict the evidence of adherence, whatever might be the form of words in which such intention was expressed'; and therefore that a declaration by the testator that he had burnt his will was admissible, not as evidence of the fact of destruction, but as evidence of intention. Sir J. Hannen, in his opinion, in the case, says: “I think there can be no doubt that while on the one hand evidence of statements made by a testator subsequent to the execution of a will that he intends to act in conformity with the disposition contained in the will is clearly admissible, it necessarily follows that other statements made by the testator, to a contrary effect, must also be admissible. The admissibility of such evidence cannot depend on the form of words in which the intention is expressed. Therefore a statement by a testator that he has altered his mind as to the disposition of his property, and that he has therefore destroyed his will, although it may not be evidence of the fact of destruction of the will, is evidence of intention from which the fact of destruction may be inferred, there being other circumstances leading to the same conclusion.”

In Lawyer v. Smith, 8 Mich. 412, after the death of the testatrix, a will twenty-five years old was discovered, which was either torn or worn in several pieces. Whether the injury to the instrument was done by the testatrix or by some other person, and if by her, whether accidentally, or intentionally, and for the purpose of revoking'the will, were held to be questions of fact for the jury; and to aid them in determining these questions and not as separate and independent evidence of a revocation, the declarations of the testatrix, made after the date of the will, that she had destroyed it, were held to be competent evidence.

In Patterson v. Hickey, 32 Ga. 156, it was decided, that where the question is revocavit vel non, parol evidence, as to the acts and declarations of the testator, are admissible, although made at any time between the making of the will and the death of the testator.

A will is said to be ambulatory until the testator dies Until his death the instrument has no force or effect, and until then, he has the power to cancel or revoke it. If from being clothed with this power the presumption arises after his death that he destroyed his will, that presumption will be aided by his declarations as expressive of his feelings and intention. In Weeks v. McBeth, 14 Ala. 474, it was held, that the declarations of the testator were admissible to strengthen the presumption of revocation, and to show that the will was destroyed by the testator animo revocandi. And it was there stated as the invariable rule in the courts of England, to admit.the declarations of the testator, either to strengthen, or to repel the presumption of revocation, arising from the non-production of the will, after the death of the testator; or to explain the act of destroying or canceling it.

The case of Smiley v. Gambill, 2 Head. 164, was a contest upon the will of Margaret Stewart. The testatrix burnt a paper which she believed was her will, and died in that belief. This was proved by her uniform declarations, and by her acts in disposing by deeds otsome of the same property named in the will, and in applications made to write another will for her, on the ground that she had destroyed the first. Caruthers, J., in delivering the opinion of the court, said that if the jury believed, as a matter of fact, that Mrs. Stewart burnt a paper which she thought was her will, although it was not, with the intention of revoking by its destruction, and honestly believed that she had done it, and continued in that belief, without any subsequent recognition, or even knowledge of its existence, the paper propounded would not be her will. As testimony bearing on this question, her declarations alone might not be sufficient, but they were competent, and it would be for the jury to determine whether they, together with other facts proved, made out the fact of burning, or intention to do so, by the act done.

The strongly expressed conclusion of the court in Reel v. Reel, 1 Hawks 248, is in’ accord with citations already made. “ To reject the declarations of the only person having a vested interest and who was interested to declare the truth, whose fiat gave existence to the will, and whose fiat could destroy, and in doing the one or the other could interfere with the rights of no one, involves almost an absurdity; and they are received, not upon the ground of their being a part of the res gestee, for whether they accompany an act or not, whether made long before or long after making the will, is entirely immaterial as to their competency. Those circumstances only go to their weight or credit with the tribunal which is to try the fact.” See, also, Collagan v. Burns, supra; Tynan v. Paschal, 27 Tex. 286; Youndt v. Youndt, 3 Grant Cas. 140.

It is not necessary to refer to the numerous other authorities which we have examined, and which bear directly upon this branch of the case. No claim is made that a will may be revoked by the mere declarations of the testator, or otherwise than in the modes prescribed by the statute. But where a legal presumption is raised upon the' decease of the testator, that he destroyed his last will and testament in the statutory mode with the intention of revoking it, it is obvious, that while the declarations of the testator may be admitted as evidence towards rebutting the presumption of such destruction and revocation before his death, they may with equally good reason be received as evidence to support and strengthen that presumption.

It is urged in behalf of the defendant in error, that the charge to the jury was erroneous and misleading. At the trial the defendant excepted generally to the whole charge given by the court to the jury without pointing out specifically the part or proposition of the charge excepted to, or the grounds of his exception. Of such an exception a reviewing court is not bound to take notice. Adams v. State, 25 Ohio St. 584; Adams v. State, 29 Ohio St. 412; Berry v. State, 31 Ohio St. 219; Everett v. Sumner, 32 Ohio St. 562; Powers v. Railway Co., 33 Ohio St. 429; Insurance Co. v. Tobin, 32 Ohio St. 77. But, in the case'at bar, upon an examination of the charge to the jury, we discover no error calling for a reversal of the judgment of the court of common pleas. The judgment of the circuit court should be reversed, and that of the court of common pleas affirmed.

Judgment accordingly.


author: Bradbury, J. Spear, J.

text:
    Lembeck v. Nye. Same v. Andrews.

      Hiparían proprietors — Bights in non-navigable lakes — Trespass—Continuous, may be enjoined.

    1. (a) Anon-navigable inland lake is tlie subject of private ownership; and where it is so owned, neither the public, nor an owner of adjacent lands, whose title extends only to the margin thereof, have a right to boat upon, or take fish from, its waters.

      (b) Such riparian proprietor, however, is of right entitled to the use of the water therein for domestic'and agricultural purposes connected with the adjacent land upon which he may reside or be engaged in cultivating.
    2. (a) Where one who owns a tract of land that surrounds and underlies a non-navigable lake, the length of which is distinguishably greater than its breadth, conveys a parcel thereof that borders on the lake, by a description which makes the lake one of its boundaries, the presumption is that the parties do not intend that the grantor should retain the title to the land between the edge of the water and the centre of the lake,' and the title of the purchaser, therefore, will extend to the centre thereof.
    (6) If, however, the call in the description be to and thence along tlie margin of the lake, no such presumption arises, and the title of tlie purchaser will extend to low-water mark only.
    (c) Or, if the description be by metes and bounds, no reference being made therein to the lake, then only the land included within the lines, as fixed by the terms used by the parties to the deed, will pass to the grantee.
    3. Where numerous acts are being committed, and their continuance threatened, under a claim of right, by one person on tlie land of another, which acts constitute trespass, and the injury resulting from each act is, or would be, trifling in amount as compared with the expense of prosecuting actions at law to recover damages therefor, the owner may resort, in the first instance, to a court of equity for appropriate relief,
    (Decided May 20, 1890.)
    Error to the Circuit Court of Medina county.

      The plaintiff in error, who was also the plaintiff in the courts below, brought, in the court of common pleas of Medina county, two actions, one against the defendant E. E. Andrews, and the other against the defendant John Nye; the pleadings in the two actions being substantially alike, if not exact copies, one of the other.
    The plaintiff in 'his petition set forth that he owned in fee simple, and was entitled to the exclusive possession, of the land that underlies and forms the natural bed of Chippewa Lake in Medina countyr, Ohio, together with a narrow strip, of land that surrounds the same ; that the lake was valuable for the purpose of keeping boats and fishing tackle for hire to persons who resort to it for recreation and pleasure; that the defendants, who respectively occupy certain lands that border on the lake, in violation of the rights of the plaintiff, have each fitted out and keep for hire boats and fishing tackle, have let the same to excursionists and pleasure seekers for hire and intend to continue to do so, whereby repeated and constant acts of trespass are being committed and will continue to be committed upon his said property by transient, and in many instances irresponsible, persons; that the defendants are each irresponsible pecuniarily, and that the ordinary actions at law would furnish him no adequate remedy. Whereupon he prays for an injunction and general equitable relief.
    Each defendant, by an answer filed in the action against him, denied that the plaintiff owned in fee simple, or was entitled to the exclusive possession of, the premises in dispute admits that he keeps and lets for hire boats and fishing tackle-from the front of his premises to persons who resort to the-lake for pleasure, and claims a right to continue to do so, averring that the same has been done by himself and predecessors for more than twenty-one years, and that for more-than forty years the public has resorted to said lake for boating and fishing.
    The record does not disclose any of the proceedings in the-court of common pleas, but shows that the two actions were tried in the circuit court of Medina county, upon an agreed statement of facts and a judgment rendered against the plaintiff in each action, who thereupon instituted proceedings in this court to reverse those judgments.
    Excluding certain immaterial matters, the agreed statement of facts shows that the Chippewa Lake has an area of about four hundred acres, is oval in form, its length from north to south being about twice as great as its width from east to west, its principal tributary emptying into it at its northerly end and its surplus water escaping by a stream flowing from its southern extremity ; its bottom sloping gradually from the shore to its centre where the depth is “ considerable; ” that its waters are valuable not only for the purpose of letting boats and fishing tackle to pleasure seekers thereupon for hire, but to gather ice from its frozen surface ; that it has never been used for navigation, but that from very early times hunters and fishermen have resorted to it, without license, to fish and hunt, and for more than forty years the public have had free access to it for boating, hunting and fishing; that the defendants and their grantors have, for more than forty years, occupied continuously their respective lands to the water in all its variations, and have enjoyed the free use of the water in connection with their lands for the purpose of watering cattle, washing sheep, boating and fishing, and without license or consent from any one. That the defendants, Andrews and Nye, have constructed on the premises, occupied by each, buildings and appliances such as are found ■at pleasure resorts, to which their places are adapted, and the value of which, for such purposes, is dependent upon their right of access to, and use of, the lake for the purpose of ■boating and fishing. They keep for hire a large number of small boats, which they let to pleasure seekers and sportsmen resorting to the place, and they derive some profit from such hiring of their boats. In the use of the lake, in connection with the hiring of their boats, they have constructed a temporary dock, extending from the shore occupied by them, into the lake far enough to get beyond shallow water, and at, such docks they keep their boats tied when not in use, and from them the public take such boats for hire. That a pub-lie road is opened to the lake along the line between the lands of the two defendants, and they having fitted up their lands for places of resort, and being situated on such public road, resort to tlie lake was, at the time of the commencement of this action, substantially confined to persons who reached it' over the defendants’ grounds, they being the only ones having boats for hire and grounds open to the public.
    The lands, the title of which is immediately in dispute in these actions, lying between the water’s edge of the lake and its centre, and in front of the shore land occupied by the defendants, as well as the entire lake and its surrounding lands, as a part of the Western Reserve lands were, at the time of the division of the Connecticut Land Company, allotted to Samuel Fowler and three others, and as early as 1815, by virtue of sundry conveyances 'of interests and proceedings in partition, the ownership of all such lands was in James Fowler and Samuel Fowler.
    That sales of parcels of the entire tract were made from time to time by the Fowlers until all the lands immediately surrounding, or bordering on, the lake were conveyed away by them, the last conveyance thereof bearing date of January 24, 1868. That on August 11, 1876, the Fowlers conveyed to D. H. Ainsworth and A. W. McClure whatever title they then had to the bed of the lake and the lands surrounding it, which title, by subsequent conveyances, is now vested in the plaintiff in error. That the descriptions in the several deeds, by which the Fowlers conveyed to purchasers thereof the several parcels of land that surround and border on the lake, are not uniform, some of these' descriptions were by metes and bounds only, containing no words referring to, or indicating the existence of, the lake, while others made the margin of the lake a boundary. The descriptions in two of the deeds, however, that to Fred B. Chamberlain and the one to Delanson DeForrest, under whom the defendant Nye claims title by mesne conveyances, expressly make Chippewa Lake one. boundary of the land conveyed, though the deed to the lessor of Nye makes the margin of the lake the boundary of the lands which it conveys to him.

      Henderson $ Kline, and Harrison, Olds f Henderson, for plaintiff in error.
    The rule in Ohio, as to all streams, is that the owner of land situate on the bank of a stream, in the al sence of words of limitation in his title, is entitled to the bed of the stream to the middle thereof; and that, by words of limitation in his title, either he may be limited at the top of the bank, or the bank, or the shore, or high water mark, or low water mark, or the water’s edge. Lessee of McCulloch v. Aten, 2 Ohio 307; Gavit v. Chambers et al., 3 Ohio 496; Bennet’s Lessee v. Platter et al., 6 Ohio 509; Hopkins v. Kent, 9 Ohio 13; Lessee of Bulkley v. Blackwell’s Heirs, 10 Ohio 509; Lessee of Blanchard v. Porter et al., 11 Ohio 138; Lamb v. Rickets, 11 Ohio 311; Walker v. Board of Public Works, 16 Ohio 544; June v. Purcell, 36 Ohio St. 396; State v. Shannon, 36 Ohio St. 423; Lough v. Machlin, 40 Ohio St. 332; Day v. Railroad Co., 44 Ohio St. 408. The first part of this rule has never, in this state, been held to be applicable to the owners of lands on the bank or shore of lakes or ponds. Sloan v. Bienmiller, 34 Ohio St. 492.
    An examination of the decided cases, both in the courts of the several states, and of the United States, some of which are hereinafter cited, show that the great weight of authority is against the proposition, that the rule as to streams is applicable to lakes and ponds. The reasons underlying the rule as to streams, are against the application of that rule to natural lakes or ponds. The determination of boundary as to lakes or ponds, has itself become crystalized into a rule of law, recognized and followed by many cases, and by the weight of authority. 3 Washburn on Real Property, 634; Angell on Water Courses, Secs. 41, 42; Devlin on Deeds, See. 1026; Waterman v. Johnson, 13 Pick. 261, 265; Roxbury v. Stoddard, 7 Allen 158; Paine v. Woods, 108 Mass. 160; Fay v. Salem & Danvers Aq. Co., 111 Mass. 27; Bradley v. Rice, 13 Me. 198; Wood v. Kelly, 30 Me. 47; Robinson v. White, 42 Me. 209; Bradford v. Cressy, 45 Me. 13; Stevens v. King, 76 Me. 197; State v. Gilmanton, 9 N. H. 461; Fleteher v. Phelps, 28 Vt. 257; Jakeway v. Barrett, 38 Vt. 323; Mill River Woolen Co. v. Smith, 34 Conn. 463; Canal Comr’s v. People, 5 Wend. 423, 446; Railroad Co. v. Valentine., 19 Barb. 484; Austin v. Railroad Co., 45 Vt. 215, 242; Wheeler v. Spinola, 54 N. Y. 337; Cobb v. Davenport, 32 N. J. L. 369; Fowler v. Freeland, 44 N. J. Eq. 268; Primm v. Walker, 38 Mo. 99; Seamen v. Smith, 24 Ill. 521; Trustees of Schools v. Schroll, 120 Ill. 509; v. Milk et al., 11 Fed. Rep. 389; Hathron v. Stinson, 1 Fairf. 238; Child v. Starr, 4 Hill 369; Rockwell v. Baldwin, 53 Ill. 19; Angell on Water Courses, See. 4; Hodges v. Williams, 59 Am. 242; Forsythe v. Smale, 7 Bliss 201; Williams v. Buchanan, 1 Ired. 535; 35 Am. Dec. 760; Ingram v. Threadgill, 3 Dev. 58; 9 Cush. 544; Ingraham v. Wilkinson, 4 Pick. 268; 16 Am. Dec. 342.
    The deeds to the Trumps and DeForest each contain such words of limitation as limit the title the grantee received, or could convey, to the east margin of Chippewa Lake. Smith v. Ford, 48 Wis. 115; Bradford v. Cressy, 45 Me. 10; Hamm v. City of San Francisco, 17 Fed. Rep. 119; Mulford v. LeFranc, 26 Cal. 108, and cases cited; Reamer v. Nesmith, 34 Cal. 627; Murphy v. Copeland, 51 Ia. 515; Peabody Heights Co. v. Sadler, 52 Am. Rep. 519; Buckingham v. Smith, 10 Ohio 288; Angell on Water Courses, Sec. 5; Walker v. Board of Public Works, 16 Ohio 544; June v. Purcell, 36 Ohio St. 396; State v. Shannon, 36 Ohio St. 423; Devlin on Deeds, Secs. 836 to 840; Angell on Water Courses, Sec. 23; Hammond v. Ridgley, 5 H. & J. 215; Herring v. Fisher, 1 Sandf. 344; Hammond v. McLachin, 1 Sandf. 323.
    The west boundary of the premises conveyed by both the DeForest and the Trump deeds, was the east margin of Chippewa Lake, as it existed at the time of the execution of the conveyances. In the absence of evidence showing that the parties to those deeds contemplated a shifting boundary, it will not be presumed that they did so intend. The defendants in error must support the contention for a shifting boundary by the burden of proof. There is no implication of such intention in the fact that the word margin" is the term used to describe the west boundary. There is no evi

      denoe in the record showing such intention: in fact, the evidence shows the contrary. Stone v. City of Augusta, 46 Me. 127; Cook v. McClure, 58 N. Y. 437; Bank of Buffalo v. Nichols, 64 N. Y. 65; English v. Brennan, 60 N. Y. 609; Holden v. Chandler, 18 Atlantic Rep. 310; 3 Kent. Com. (12th ed.), 435; Gould on Waters, Sec. 200; Eddy v. St. Mars, 53 Vt. 462.

      Boynton, Hale $ Horr, for defendants in error.'
    The title of persons owning lands in this state upon streams, whether navigable or non-navigable, extends to the centre of the stream, subject only in the case of navigable streams to the public easement of navigation. Bay v. Railway Co., 44 Ohio St. 406; Hogg v. Beerman, 41 Ohio St. 81; June v. Purcell, 36 Ohio St. 396; State v. Shannon, 36 Ohio St. 423; Walker v. Board of Public Works, 16 Ohio St. 540; Lamb v. Rickets, 11 Ohio 311; Benner v. Platter, 6 Ohio 504; Gavit v. Chambers, 3 Ohio 496.
    The reports of other states abound in decisions in which the rule, as to small lakes and ponds, is formulated, and in nearly every case there are no special circumstances 'upon which a variance from the rule should be predicated; the same rule is applied that is applied in Ohio to streams. Stoner v. Rice, 22 N. E. Rep. 968; Ledyard v. Ten Eyck, 36 Barb. 102; Smith v. City of Rochester, 92 N. Y. 463; Ridgway v. Ludlow, 58 Ind. 248; Ross v. Faust, 54 Ind. 471; 18 Am. Law Register (N. S.) 337; Forsythe v. Forsythe, 7 Bliss 201; Schaffer v. Marthaler, 34 Minn. 487; Warren v. Chambers, 25 Ark. 120; Clute v. Fisher, 65 Mich. 48; Reynolds v. Commonwealth, 93 Pa. St. 458; Webber v. Boom Co., 62 Mich. 926; Turner v. Holland, 65 Mich. 453; Angell on Water Courses, Secs. 11, 12; Watson v. Peters, 26 Mich. 508; Bristow v. Cormican, L. R. 3 App. Cas. 641; Bell’s Principles of Law of Scotland, Sec. 65.
    An examination of the decisions rendered by the Supreme Court of Ohio, shows that the extension of the rule as to streams, to the construction of boundaries of small inland lakes like Chippewa, will simply be carrying out a well defined policy of this court inaugurated more than fifty years ago. Benners’ Lessee v. Platter, 6 Ohio 504; Lessee of White v. Sayre, 2 Ohio 303; Gavit v. Chambers, 3 Ohio 495; Blanchard v. Porter, 11 Ohio 138; Booth v. Hullard, 8 Ohio St. 247; Sloane v. Biemiller, 34 Ohio St. 492; Hogg v. Beerman, 41 Ohio St. 81.
    The statement is made in the brief on behalf of plaintiff in error that these cases, in which this rule of law is applied to the boundaries of lands on small lakes, rest in their reasoning upon some peculiar grant or origin of the title. So far is this from the truth that, not only do we invite the attention of the court to. the facts particularly, and the reasoning in the foregoing cases, but we respectfully submit that the very cases which counsel for the plaintiff in error cite in their brief in support of the contrary of the proposition for which we contend, come within their designation of exceptional cases.
    The sole question to be determined is, whether the grantor, James Fowler, intended to convey to his several grantees of land upon the borders of Chippewa Lake, any title to the land underlying the water adjacent to the premises conveyed. Or if he did not so intend, if the words employed, in view of their legal construction, import such an intention, such intention must be carried into effect. Dwight v. Insurance Co., 103 N. Y. 347; Farmer's Co. v. Bank, 15 Wis. 463; Canal Co. v. Hewitt, 14 Cent. Law Jour. 475; Day v. Railway Co., 44 Ohio St. 406; Mueller v. Landa, 31 Tex. 265; Luce v. Carley, 24 Wend. 451; Ex parte Jennings, 6 Cow. 518; Banks v. Ogden, 2 Wall. 57; Wright v. Day, 33 Wis. 260; Braxson v. Bressler, 64 Ill. 488; Varick v. Smith, 9 Paige 551; Chicago v. Laflin, 49 Ill. 172; Stolp v. Host, 44 Ill. 219; Kent v. Taylor, 64 N. H. 489; Sleeper v. Laconia, 60 N. H. 201; Kains v. Turville, 32 Ontario Q. B. 17; Boom Co. v. Smith, 84 Ky. 372; Angell on Water Courses, Sec. 24; Gould on Waters, Secs. 149, 203.
    Title to the centre of the stream is conveyed by the operation of a well established rule of law, and the mere fact that the grantor, in describing the property, mentions the supposed area of the land not covered by water, does not, in any way, restrict the operation of the deed to convey title to the centre of the watercourse. Lamb v. Rickets, 11 Ohio 311; June v. Purcell, 36 Ohio St. 396; Railroad v. Schuermier, 7 Wall. 272; Gould on Waters, Sec. 196; Dwyer v. Rich, Ir. Rep. 4 C. L. 424; Kent v. Taylor, 64 N. H. 489.
    It is claimed by our opponents that the well established rule of law in Ohio, as to the boundary of land upon streams is not applicable to boundaries of land upon small inland non-navigable lakes and ponds, because its application to the latter class of bodies would not be in accordance with the origin of the rule as applied to streams. They base the rule as applied to streams, upon the supposition that conveyances of land were bounded simply by the stream or by the river, without using any words which might define to which portion of the stream or river the grantor intended to limit the grant, and that inasmuch as the banks and water-line of streams and rivers vary greatly at different seasons and under different circumstances, that part of the stream, namely its thread, or the centre of the current, should be taken as the legal equivalent of such language. It is evident that this is in nowise the origin of the rule. The rule rests upon a much broader foundation. Turner v. Holland, 65 Mich. 453; Watson v. Peters, 26 Mich. 517; Gavit v. Chambers, 3 Ohio 497; Hogg v. Beerman, 41 Ohio St. 97; Water Works v. Potter, 3 H. & C. 300; Ormerod v. Todmorden Mill Co., L. R. 11 Q. B. Div. 155; S. C., 17 Cent. Law Jour. 252; Wright v. Day, 33 Wis. 260; Norcross v. Griffiths, 65 Wis. 599; Champlin v. Pendleton, 13 Conn. 23; 3 Kent’s Com. 433; Gould on Waters, Sec. 195; Ridgeway v. Ludlow, 58 Ind. 248; State v. Milwaukee, 11 Fed. Rep. 380.
    But whether it was the intention of Fowler, by his conveyances to Trump and DeForest respectively, to make the shore of the lake the boundary of the land conveyed, or to extend the grant to the centre of the lake, it is certain that the grantees acquired all riparian rights in and over the waters and the lake; and that riparian rights include all the rights which the petition alleges are being enjoyed by the defendants. Wood v. Kelley, 30 Me. 47; Rice v. Ruddiman, 10 Mich. 125; Yates v. Van DeBogart, 56 N. Y. 526; Paine v. Woods, 108 Mass. 160; Cummings v. Barrett, 10 Cush. 186; Yates v. Milwaukee, 10 Wall. 497; Delaplane v. Railway Co., 42 Wis. 214; Gould on Waters, Secs. 149, 179, 182, 191; Bowman's Devisees v. Walthen, 2 McLean, 376; Chapman v. Railway Co., 33 Wis. 629; Wright v. Day, 33 Wis. 260; Tuck v. Olds, 29 Fed. Rep. 738; Clute v. Fisher, 65 Mich. 48; Lorman v. Benson, 8 Mich. 32; Boom Co. v. Smith, 84 Ky. 372; Lyon v. Fishmongers Co., 1 App. Cas. 66.
    Counsel for plaintiff in error, in reply.
    As to riparian rights, our contention is, not only that there is no authority for the assertion of a right to boat, or fish, or take ice, in favor of a riparian proprietor not owning the bed of the stream, but it is generally, if not universally, settled, that these rights belong to the owner of the bed of the stream only. 3 Kent 415; Brown v. Chadburn, 31 Me. 1; Rowe v. Bridge Co., 21 Pick. 344; Charlestown v. Commissioners, 3 Met. 202; Murdock v. Stickney, 8 Cush. 113; Walker v. Board of Works, 16 Ohio 540; Morgan v. King, 18 Barb. 277; Brown v. Scofield, 8 Barb. 243; Waters v. Lilley, 4 Pick. 145; Cobb v. Davenport, 32 N. J. L. 369; Hooker v. Cummings, 20 Johns. 90; State v. Pottinger, 33 Ind. 402; Edgerton v. Huff, 26 Ind. 36; Paine v. Woods, 108 Mass. 173; Mayer v. Whitaker, Albany Law Jour. 128; Stevens v. Kelley, 78 Me. 445; Buckingham v. Smith, 10 Ohio 288; Mill Run Co. v. Smith, 34 Conn. 462; Hiqgins v. Kusterer, 41 Mich. 318.
   Bradbury, J.

The contention between the parties to this action is over their respective rights to and in Chippewa Lake, a non-navigable body of water in Medina county, in this state, having an area of about four hundred acres, oval in form, though its extension from north to south is about twice as great as that from east to west. It is true that the plaintiff in error claims that the waters of the lake have subsided by'reason of the deepening of the channel of its natural outlet, whereby a narrow strip of land entirely around the lake has been recovered, but as this claim is not sufficiently supported by the agreed statement of facts to require any consideration of the principles or authorities upon which he founds his claim "to title thereto, it will not be further noticed in the.decision of the cause. ■

The lake is situated in the Western Reserve lands, and upon the division of the lands of tire Connecticut- Land Company was, together with a body of land entirely surrounding it, allotted to Samuel Fowler and three others, and which by sundry conveyances and certain proceedings in partition became the property, in fee simple, of Samuel Fowler and James Fowler as early as the year 1815, to whom all the parties to this proceeding trace title. By the conveyances and proceedings above noticed, the title to the lake, as well as the title to the lands enclosing it, vested in the Fowlers, if it is susceptible of private ownership, which we think it clearly is. Bristow v. Cormican, 3 App. Cas. 641, 652. “ A lake which -is not really useful for navigation, although of considerable size compared with ordinary fresh water streams, may be private property.” Gould on Waters, Section 83; Ledyard, v. Ten Eyck, 36 Barb. 102; Hoggy. Beerman, 41 Ohio St. 81. Many other authorities could be cited in support of this proposition, but it is too well settled to require it to be done, even if controverted, which it is not in this action, although material to its determination.

It is agreed that, from an early period in the history of the state, hunters and fishermen, without license, resorted at will to the lake to hunt and fish, and that for more than forty years the public has had free access to it for boating, hunting and fishing. It is not readily perceived how this early and continued custom can be said to cast any material light upon the intention of the parties in respect of the deeds by which the lands around the lake were from time to time conveyed; it can only be material, therefore, as tending to show a dedication of the lake by its owners to the public, and a consequent extinguishment of their private property therein. These facts may constitute a link in the chain of evidence necessary to prove a dedication of the lake to the public, but fall far short of establishing that fact. In truth, when consideration is given to the early customs of the people of this state in this respect — their well-known habit of hunting and fishing upon all lands and waters where fish or game might be found, irrespective of their ownership, or whether enclosed with fences or not — it is apparent that this class of evidence ought to be received and weighed with extreme caution as proof of a dedication to such uses. Private owners are not to be deemed to have devoted their property to uses of this kind simply because they interposed no objections to their neighbors, or even to strangers, hunting and fishing upon it; other circumstances must appear manifesting that it was his intention to do so. Dedication depends upon the intention of the owner to devote his lands to a public use and should be made to appear clearly and satisfactorily. 5 Am. & Eng. Ency. of Law, 400-401; Smith v. State, (N. J.) 712; Wash, on Easements, 209.

Here the owner did no act indicating an intention to devote the lake to the use of the public; it does not even appear that the owner had any knowledge that the public was using it in the manner that the agreed statement shows it to have been, in fact, used; and as dedication by parol, or in pais, acts by way of estoppel on the proprietor, used by the public unknown to him, can have no appreciable probative force to establish a dedication against him.

The lake, as we have seen, being susceptible of private ownership, and having been allotted to the Fowlers, or to them and others whose title they obtained, upon the division of the Western Reserve lands, and not having been dedicated to the use of the public, passed by the deed made by the Fowlers August 11, 1876, to Ainsworth and McClure, under whom the plaintiff derives title, unless it had already passed to some, or all, of the purchasers of the lands surrounding the lake by virtue of the prior deeds of the Fo'wlers made to such purchasers. This depends upon the descriptions in those deeds and the rules of law that apply to conveyances of lands bounded upon non-navigable inland lakes. By a series of deeds, the first of which bears date of October 16, 1823, and the last, of January 24, 1868, the Fowlers conveyed all the lands that surrounded the lake to various parties, under which the same are now held, and such parts of the lake as may have passed by virtue of these conveyances could not, of course, have been conveyed by a subsequent deed of the Fowlers under which the plaintiff in error derives title; and it is, therefore, of the first importance to ascertain what those conveyances, in fact, include, which necessitates a construction of their respective descriptions.

These descriptions may be divided into three classes. In the first class are two deeds, one from James Fowler et al. to Delanson De Forrest, the other from James Fowler and wife to Fred B. Chamberlain, wherein the lake itself is made one boundary of the land thereby conveyed; in the second class are four deeds, one from James Fowler to Catharine and Sally Trump, one-from James Fowler to Charles Wheeler, one from James Fowler to William Walter, and the other from James Fowler to Charles Wright, wherein the margin of Chippewa lake is made either a corner or one of the boundary lines of the lands conveyed by them respectively; while in the third class are two deeds, one from James Fowler et al. to Abraham Fritz, the other from James Fowler et al. to Conrad Snyder, in which the lands conveyed are described by metes and bounds only, no reference whatever being made to the lake.

The rule that lands, one boundary of which is a navigable river running through this state, extend to the middle of the stream subject to easement of navigation, was laid down by this court as early as the year 1828. Gavit v. Chambers et al., 3 Ohio 496. The same rule was applied to calls in a survey bounding lands upon a non-navigable stream, shortly thereafter, Benners' Lessee v. Platter et al., 6 Ohio 505; since which time the doctrine therein announced has been firmly maintained by this court. Curtis v. The State, 5 Ohio 324; Lamb v. Rickets, 11 Ohio 311; Walker v. Board of Public Works, 16 Ohio 540; June v. Purcell, 36 Ohio St. 396; Day v. R. R. Co., 44 Ohio St. 406.

The rule, however, is otherwise in respect to calls in a deed bounding the lands conveyed by it on the waters of Lake Erie. Sloan v. Biemiller, 34 Ohio St. 492. And in the case of lands bounded on the Ohio river the clear tendency of judicial opinion in this state is to limit the title of the riparian proprietor to law-water mark. Benners’ Lessee v. Platter, 6 Ohio 508; Lessee of Blanchard v. Porter et al., 11 Ohio 138, 142; Booth v. Hubbard, 8 Ohio St. 247; but the effect to be given to a call in a deed that makes a non-navigable lake one boundary of the lands conveyed by it has not heretofore received the attention of this court. The authorities upon the question are in conflict, and seem to be incapable of reconciliation. In some of the states, and in England, the rule is to limit the operation of the conveyance to the water edge. Gould on Waters, sec. 80, p. 155. Bloomfield v. Johnston, Jr., R. 8 C. L. 68; Bradley v. Rice, 13 Me. 198; Wood v. Kelly, 30 Me. 47; Wheeler v. Spinola, 54 N. Y. 377.

In other states, notably Indiana and Michigan, the contrary rule may be considered as established. Ridgway v. Ludlow v. 58 Ind. 248; Stoner v. Rice, 22 N. E. Rep. 968; Clute v. Fisher, 65 Mich. 48.

In this conflict of authority we are at liberty to adopt such rule on the subject as best comports with the presumed intention of the parties, a sound public policy, and the analogies of the rules in force in this state respecting boundaries upon running streams. It may be conceded that the numerical weight of authority supports the rule that a call in a deed making a non-navigable lake a boundary, only passes title to tire land to low-water mark; but, be that as it may, no solid ground is readily perceived for limiting, in that case, the deed to the waters’ edge, and in the case of a running stream, extending its operation to the centre or thread thereof ; and in'this state, where the rule is so firmly established that a boundary on a running stream carries the land to the middle, or thread thereof, principles of analogy afford strong grounds for applying it to non-navigable lakes. The main reasons for the rule in one case apply equally to the other. The existence of “ strips or gores ” of land along the margin of non-navigable lakes, to which the title may be held in abeyance for indefinite periods of time, is as great an evil as are strips and gores of land along highways or running streams ; the litigation that may arise therefrom after long years, or the happening of some unexpected event, is equally probable, and alike vexatious in each of the cases, and that public policy which would seek to prevent this by a construction that would carry the title to the centre of a highway, running stream, or non-navigable lake that may be made a boundary of the lands conveyed, applies indifferently, and with equal force, to all of them. It would seem, also, that whatever inference might arise, from the presumed intention of the parties, against the reservation of the land underlying the water, would be as strong in one case as in either of the others.

That practical difficulties in the application of the rule may arise where the lake is so nearly round that it cannot be said to have any length as distinguishable from its breadth, or when the side lines of the respective parcels of land bounding on the lake approach it in such direction that if they should be extended to the centre thereof, they would cross each other is apparent.

The latter difficulty is not at all unusual in the case of lands bounding on running streams, but does not prevent the application of the rule. 3 Wash. 459, star note ; Angelí on Water Courses, Sec. 55,. where the subject is learnedly discussed by those able authors, and this difficulty overcome. Whether there are in Oliio non-navigable lakes of such shape that no length can be affirmed of them does not appear; if there are any such, and the rule applicable to running streams and to non-navigable lakes distinctly longer than they are wide, cannot be applied to them, other appropriate rules must be adopted which, in the light of all the circumstances, may be regarded as effectuating the intention of the parties, and are consistent with public policy; one main object in all cases of this kind being to adopt and apply such rules as will accomplish those important ends.

Whatever difficulties may be conjectured as liable to arise in possible cases to the application of the rule we have adopted, in fact none do arise in the case before us, for Chippewa Lake is distinctly longer than it is wide, and a prolongation to its centre of the side lines of the respective parcels lying along its sides will not cause them to cross each other. The rule, of course, excludes those lands which merely touch the end of the lake and do not at all extend along its sides.

This rule, however, is applicable • to but two of the conveyances, that to Delanson DeForrest and that to Fred B. Chamberlain. While, if the parties to a deed make a running stream, a non-navigable lake, or a highway, one boundary of the lands conveyed by it, public policy and the presumed intention of the parties will extend the line to the middle of such monument, yet it is competent for them to limit the conveyance to the side of the highway, the top of the bank of the running stream or to the edge of the water of the lake. Lessee of Blanchard v. Porten et al., 11 Ohio 138; Lough v. Machlin, 40 Ohio St. 332; and the question is whether the parties to the other deeds conveying the land surrounding Chippewa Lake have not done so. As has been shown in four of the conveyances of the Fowlers, of the lands bordering on the lake, the “ margin ” of the lake is made a boundary or corner instead of the lake itself. “ Margin of the lake ” is a term of unequivocal import, meaning the line where the earth and water meet around the lake ; by the use of these words the parties have declared their intention to make, not the middle, but another part of the lake — the edge of the water — the boundary line. No other construction can be given to the words the parties themselves have chosen, without doing violence to. their meaning; and an intention contrary to the one expressed by the very words selected by the parties themselves cannot be presumed. Lessee of McCullock v. Aten, 2 Ohio 308; Lamb v. Rickets, 11 Ohio 311; Hopkins v. Kent, 9 Ohio 13; Gould on Waters, Sec. 199.

In the remaining deeds from the Fowlers to the lands around the lake the lands were described by metes and bounds, no mention of the lake being made. In descriptions of this class only the lands within the bounds pass. “ When lands are granted by metes and bounds, all the area within those bounds, and no more, passes.” Lockwood et al. v. Wildman et al., 13 Ohio 430. Indeed, where the parties have by their deed enclosed the land by agreed lines, without any reference whatever to adjacent natural objects, it is difficult to conceive of a principle that would extend those lines to include those natural objects, however convenient they might be to the enjoyment of the land actually conveyed.

From the construction we have given to the descriptions contained in deeds made by the Fowlers conveying away the several parcels of land that surround the lake, it follows, that the deeds made to Delanson DeForrest and Fred B. Chamberlain make the centre of the lake one boundary of the tracts conveyed to them respectively, and that the other deeds cany title no further than the eclge of the water, and that therefore the title to all the bed of the lake, except what was covered by the DeForrest and Fred B. Chamberlain deeds, remained in the Fowlers, and by their deed of August 11, 1876, was conveyed to D. H. Ainsworth and A. W. McClure, and is now owned by the plaintiff in error by virtue of mesne conveyances from Ainsworth and McClure, as set forth in the agreed statement of facts.

It also follows, that as the defendant Andrews claims title under conveyances, which constitute the margin of the lake a boundary, he has no title to any portion of the bed of the lake, nor has the defendant John Nye a title to any portion thereof; for the reason that although the deed from the Fowlers to Delanson DeForrest, and the mesne conveyances from the latter to J. H. Barrett, conveyed title to the centre of the lake, yet the deed from J. H. Barrett to Levi Nye, the lessor of defendant John Nye, limits its operation to the edge of the lake by expressly making the margin thereof its boundary on the side, or end, of the tract abutting thereon. We therefore hold that the plaintiff in error is the owner in fee simple of all that part of the bed of Chippewa Lake not covered by the deeds made by the Fowlers to Delanson DeForrest and Fred B. Chamberlain, and that those two deeds cover such parts thereof as are enclosed by a prolongation to its centre, of those lines of the description that approach the sides of the lake.

The bed of the lake being private property the public has no right to fish in, and boat upon, its waters ; nor have the defendants the right to engage in the business of letting for hire boats and fishing tackle to such portions of the public as may resort to the lake to boat and fish for their pleasure and recreation. That the latter right is one that can be acquired by prescription may be admitted, but the facts agreed upon fall short of establishing it by that method, even if that contention was maintained on behalf of the defendants in error, which we do not understand is the fact, in view of the arguments presented in the able brief of their counsel.

The agreed statement of facts in respect to this question is as follows:

“ The defendants and their grantors have for more than forty years occupied continuously their respective lands to the water in all its variations, and have enjoyed the free use of the water in connection with their lands for the purpose of watering cattle, washing sheep, boating and fishing, and without license or consent from any one.”

This does not show that the enjoyment was adverse or under any claim of right. Both of these elements must exist, according to the current of authority, in connection with the prescribed period of enjoyment to create a right by prescription. Washburn on Easements, 150; Tootle v. Clifton, 22 Ohio St. 247.

However, conceding that these are not necessary elements of prescription, and that the defendants had acquired a prescriptive right to water cattle, wash sheep, boat and fish in the lake, yet it by no means follows that because they may do these things, that they may also erect docks extending into the water and embark in the business of keeping boats and fishing tackle to let for hire to pleasure seekers who may-resort to the lake to boat and fish for recreation upon its waters. The two lights are clearty distinguishable from each other; and the contention is over the latter right only, in respect to which the agreed statement of facts, while it states that the defendants are exercising it, is silent as to the duration of their enjoyment thereof, and therefore does not establish the right by prescription.

That a riparian proprietor by virtue of his ownership to the edge of the water of a private stream or lake has access to, and the right to use the water for domestic and agricultural purposes, is not controverted by the plaintiff in error. Such use may fairly be considered as within the presumed intention of the parties.

That the lake is valuable for the purpose of gathering ice from its frozen surface appears from the agreed statement of facts, and the right of the defendant to gather it was asserted on one side and denied by the other in the course of the argument, but the question is not made by the parties in their pleadings and therefore cannot be noticed in the decree.

The agreed statement of facts shows that the defendant Nye is insolvent, and that the financial condition of Andrews doubtful; but aside from this, and were they both solvent and fullj'- able to respond to any damages that might be recovered against them in actions of trespass, yet, it is apparent from the whole record that such actions would not afford an adequate remedy for the violations of the rights of the plaintiff in error in the past; and those threatened in the future were, and are, during certain seasons of the year of daily, if not of hourly, occurrence under the claim of a right to do so : besides the injury resulting from each separate act would be trifling, and the damages recoverable therefore scarcely equal to a tithe of the expense necessary to prosecute separate actions therefor.

It follows from the holding of the court respecting the effect to be given the several descriptions in the conveyances made by the Fowlers and others to the various parcels of land that surround the lake, that neither of the defendants has shown a right to erect docks and let to hire for use thereon boats and fishing tackle; it also follows that in so far as these acts affect those portions of the lake to which the title of plaintiff does not extend, he is not entitled to relief against them; but is entitled to have so much thereof as his title covers protected from those unwarranted violations. There should be a decree, therefore, finding, that as against the defendants herein, the plaintiff in error is the owner in fee simple and entitled to the exclusive possession of all the lands underlying the waters of Chippewa Lake except those parts thereof that, according to the rules herein-before laid down, were conveyed by the Fowlers to Delanson DeForrest and Fred B. Chamberlain, and restraining the defendants from letting to hire either boats or fishing tackle, to be used on the water overlying the lands so found to belong to him.

Judgment accordingly.

Spear, J.

The decision in Gavit v. Chambers, 8 Ohio 496, is the foundation of the doctrine in Ohio that the ownership of lands bounded by an inland stream carries the title of the owner to the middle. It was held in that case to be “vitally essential to the public peace and to individual security, that there should be distinct and acknowledged legal owners for both the land and water of the country.” ... “It cannot be reasonably doubted, that, if all the beds of our rivers supposed to be navigable, and treated as such by the United States, in selling the lands, are to be regarded as unappropriated territory, a door is open for incalculable mischiefs. Intruders upon the common waste would fall into endless broils among themselves, and involve the owners of the adjacent lands in controversies innumerable. Stones, soil, gravel, the right to fish, would all be subjects for individual scramble, necessarily leading to violence and outrage.” '

The rule that the lands covered by such waters should not be public waste, rests upon the ground of public policy, and it is in recognition of this rule that the lands underlying Chippewa Lake are considered to be the subject of private ownership. This being determined, the only question remaining is, what part of the lake shall be held to be the bound intended when the lake generally is given as the boundary? As to streams, the centre, or thread, is the established bound, where the language of the deed does not contradict such construction, because the centre is the most conspicuous part. The water is a moving body, and, as to the depth and breadth, is subject to constant change, which produces variations on the opposite sides. The thread, or current, however, shifts but little, and is, in the main, stationary, so that a line running to the thread would be a reasonably certain line, and would be easily ascertained. This is not true as to natural lakes and ponds. Such bodies do not have any thread or current. The water is the most conspicuous portion, but no rule of convenience or certainty requires that the line, where the lake itself is mentioned as the boundary, should be extended to the centre. Indeed, the application of such rule would be attended, in most cases, with practical difficulties in the running of lines beyond the water’s edge. If lakes were always found in the shape of a square, or a parallelogram, these difficulties would be slight, perhaps, but more frequently they are nearer a circular shape. The difficulties in such case are apparent. They may be theoretically overcome by an engineer on a diagram, but practically, in the water, they would always exist, and would prove a fruitful source of contention and quarrel.

The rule which, it is submitted, is the true rule, is stated by Gresham, J., in Indiana v. Miek et al., 11 Fed. Rep. 889, as follows:

“ Non-navigable streams are usually narrow, and the lines of riparian owners can be extended into them at right angles without interference or confusion, and without serious injustice to any one. It was therefore natural, when such streams were called for as boundaries, to hold that the real line between opposite shore owners was the thread of the current. The rights of the riparian proprietors in the bed of the stream, and in the stream itself, were thus clearly defined. But- when this rule is attempted to be applied to lakes and ponds, practical difficulties are encountered. The}*have no current, and, being more or less circular, it would hardly be possible to run the boundary lines beyond the water’s edge, so as to define the rights of shore-owners in the beds. Beaver Lake is seven and a half miles east and west, and less than five miles north and south. Extending the side and end lines into the lake, there being no current, when would they meet? This rule is applicable, if at all, whether there be one or more riparian proprietors. I do not think the mere proprietorship of the surrounding lands will, in all cases, give ownership to the beds of natural non-navigable lakes and ponds, regardless of their size. It would be unfair and unjust to allow a party to claim and hold against his grantor the bed of a lake containing thousands of acres, solely on the ground that he had bought and paid for all the small surrounding fractional tracts — the mere rim.”

In my view there is no difference, in law, in the two cases now under consideration, and a like judgment should be rendered in each. But the judgment in the case of Nye is assented to as the best practical solution under the circumstances.

Williams, J., concurs in the above.

Minshall, C. J., and Dickman, J., dissent.


author: Spear, J.

text:
    The State v. Kindle.

      Dying declarations in writing — When admissible.

    Upon a trial for murder, after proper preliminary proof has been given, it is not error to admit in evidence and permit to be read to the jury, a written statement of the injured person, made in extrerjvis, while conscious of his condition and under a sense of impending dissolution, where such declaration was at the time reduced to writing by a competent person at the instance of the declarant, or with his consent, was approved and signed by him, and containing statements of the circumstances of the unlawful act which is the subject of the charge.
    (Decided May 20, 1890.)
    Bill oe Exceptions by tbe prosecuting attorney to the decision of the Court of Common Pleas of Brown county.
    At the October term, 1889, of the Court of Common Pleas of Brown county, George W. Kindle was tried upon an indictment charging him with the murder of one Thomas Butt; On the trial, to maintain the issue on the part of the state* the prosecuting attorney offered in evidence a written statement purporting to be signed by Thomas Butt, purporting to contain a dying declaration by him of the circumstances immediately attending the crime and relating to the identity of the perpetrator. Before offering the paper the state called witnesses who testified to the satisfaction of the court that the said Butt, at the time the paper was written and when it was signed by him, was under a sense of impending death and had no hope of recovery, and that the paper was read over to him before he signed it. The statement was then, against the objection and exception of the defendant, admitted in evidence, and read to the jury. A verdict finding the defendant guilty of manslaughter having been rendered, the defendant filed a motion for a new trial, on the ground, among others, that the court erred in admitting in evidence the written statement of Butt. On this ground alone the court sustained the motion. To this ruling the prosecuting attorney duly took a bill of exceptions, which, upon leave, was filed in this court “ for its decisions upon the points presented.”
    B. V. Pearson, prosecuting attorney, for the state.
    If the declarations of the deceased, at the time of his making them, be reduced to writing and signed by him, the written document must be given in evidence, and no parol testimony respecting its contents will be admitted. "Whart. Crim. Ev., sec. 295, and cases there cited; Roscoe’s Crim. Ev., 34; Russell on Crimes, vol. 2, p. 763; Brims v. State, 46 Ind. 311; State v. Fraunberg, 40 Ia. 555, and cases there cited; Greenleaf on Ev., sec. 161; Mockabee v. Commonwealth, 78 Ky., ; Merrill v. State, 58 Miss. 65; Montgomery v. State, 3 Crim. Law Mag. 523; Green v. State, 2 Crim. Law Mag. 467; 8 Ohio St., 163; 11 Ohio, 424; 5 Ohio St., 339; Rex v. John, 2 Lead. Crim. Cases, 393; 35 Ohio St., 78; Whart. Crim. Ev., p. 211; Whart. Crim. Law, sec. 669; Whart. Crim. Ev., secs. 276,282; Greenleaf on Ev., sec. 1158;

      W. W Young and C. A. White, for defendant.
    The admission of the paper writing made the deceased the witness, instead of the scrivener, thereby violating the constitutional right of the defendant to meet his accusers face to face. Constitution, Art. 1, sec. 10. Neither the common law, nor the statutes of Ohio, authorize the admission of such a paper as evidence. 1 Whart. Crim. Law, sec. 679; Betts v. State, 1 Meigs, 106 : The only deposition authorized to be used in a criminal prosecution, is provided for in sec. 7293, Rev. Stat. Such deposition must be. authenticated by the certificate of some officer.
    The only purpose for which the paper writing in controversy can be used, is to refresh the witness’s recollection. The paper writing admitted was a deposition. State v. Dayton, 3 Zab. (N. J.) 54; 1 Gall. (N. S.), 501; Summons v. State, 5 Ohio St. 325; Commonwealth v. Richards, 18 Pick. 434; Warren v. Nichols, 6 Met. 261; Wroe v. State, 20 Ohio St. 460; Runyan v. Price, 15 Ohio St. 1; Wharton’s Crim. Ev., 276, 295; State v. Faunberg, 40 Ia. 555; State v. Harper,
      35 Ohio St. 78; Montgomery v. State, 11 Ohio 424; Robbins v. State, 8 Ohio St. 131.
   Spear, J.

The question presented by the bill of exceptions is: did the court err in the admission as evidence of the written statement purporting to be a dying declaration ?

While some of the statements of the bill respecting the preliminary proof are not couched in the clearest and most positive language, yet it is fairly to be understood that the testimony of the witnesses satisfied the judge that the statement was prepared by one of the witnesses called, under the direction of the deceased; that it was, by one of the witnesses, read over to him, and was actually signed by him, and that, at the time, he was under a sense of impending death, and had no hope of recovery. The paper itself shows that it is a recital of the circumstances immediately attending the assault which resulted in Butt’s death.

It is not questioned that the words used by the defendant, or the substance of them, might have been testified to orally by those who heard them, if they were able to recall them, but it is insisted by counsel for defendant that to admit the written statement of the deceased is to make him a witness in the case, and is a violation of that clause of the constitution of the United States, which provides that every person on trial charged with crime shall have the right “ to be confronted with the witnesses against him,” and of the like clause in our own constitution which provides that in any such trial the party accused shall be allowed “ to meet the witnesses face to face.” It being conceded that what the deceased said is the substantive matter to be given to the jury, the only question is as to the proper mode of communicating from the declarant to the jury.

Dying declarations have been received in evidence on the ground of necessity, there often being no other evidence of the facts attainable, and sometimes on the further ground that the solemn circumstances surrounding the wounded person, in view of impending death, will create an obligation to utter the truth equal, in its influence, to the obligation of an oath, though it is difficult to see why, if the latter is a substantive ground, the declarations should be limited to the facts immediately connected with the killing. Mr. Roscoe, in his work on “ Criminal Evidence,” observes that “ the concurrence of both these reasons led to the admission of this species of evidence.” Such declarations are in the nature of hearsay, and their admission is an exception to the general rule of evidence. It follows from this that the person making them is not, but the person by whom they are proven, is, the witness. Hence, the witness by whom the accused has the right to be confronted, is the one called to lay the foundation for proof of the declaration, and by whom the making of the declaration is established. The object is to give the accused the opportunity to see and hear the witness, and for cross-examination. If these objects are secured the guaranty of the constitution is maintained. Applying these conclusions to the case at bar, how can it be said that the accused was deprived of any right ? In order to intelligently prepare the paper signed by the declarant, it was necessaiy for the witness to first talk with him, or at least, hear his verbal statement. Then, having reduced the statement to writing, he read it to the declarant, and it was then signed by him. All this must have been shown by the witness before the court could have been satisfied of the necessary facts preliminary to the admission of the paper. Being thus testified to, the whole transaction, and every detail, was the subject of cross-examination. The accused could inquire as to just what the declarant actually said; just how much care was taken in writing out the statement; how carefully and distinctly the paper was read to the declarant, and, in short, as to all that was said and done, the order of it, and the manner of it. Whether the accused availed himself of this opportunity or not, the opportunity was present. It is clear that, in this case, the constitutional requirement was complied with, and every constitutional right was preserved to the accused. Where this appears, the only question is, which is the preferable evidence of the actual declarations, the memory of witnesses and their ability to reproduce the words used, or the substance of them, or the paper, reduced to writing at the time and signed by the party making the statement ? Or, to present the exact question in this case, is there such preference to be given the former method as to render the latter improper? We think not. The common judgment of mankind, formed upon observation and experience, is that the attempt to repeat the language of others is always attended with uncertainty. It is in recognition of this fact that the custom has obtained at trials for the judge to caution the jury in weighing and considering testimony of this kind. The witness may not have fully understood the declarant; he may not recollect accurately the words, or their substance; or, having understood and remembering, he may not be able to fully and clearly express himself in their reproduction. At least the written statement, approved and signed by the declarant, is not, ordinarily, open to these objections. Nor can it be said that the paper, so prepared and verified, has not a legitimate tendency to prove the facts sought to be proven; that is, to show what the dying man said.

But if we had doubts as to this conclusion, on principle, we would be impelled to the same result upon authority. The admissibility of dying declarations in cases of homicide, has been recognized by the courts for more than a century, and the question of the form in which such declarations shall be given to the jury has often been under consideration.

In King v. Ely, tried before Chief Justice King, at Old Baily, in 1720, (12 Miner’s Abr. 118,) it was held that “in the case of murder, what the deceased declared after the wound given, may be given in evidence,” and in Trowter’s case, (same authority, 119,) “the court would not admit the declaration of the deceased, which had been reduced into writing, to be given in evidence without producing the writing.” To like effect is Rex v. Woodcock, 1 Leach 500, decided in 1789.

In Rex v. Gray, 7 Car. & P. 230, it was declared that if a declaration in articulo mortis be taken down in writing, and signed by the party making it, the judge will neither receive a copy of the paper in evidence, nor will he receive parol evidence of the “ declaration,” and Coleridge, J., refused to receive the parol evidence offered.

Under the head of “form of declaration,” Mr. Philips, in his. work on evidence, vol. 1, p. 240, uses the following language: ‘‘With regard to the manner in which a dying declaration may become the subject of legal evidence, it may be observed, that an examination taken on oath by a magistrate, and signed by the deceased and by the magistrate, has been received in evidence as of the same effect, in point of admissibility, as declarations not made with the same solemnity.” And in a note to page 241, occurs this : “Where the statement of the deceased is taken down in writing, it is of course more reliable, more accurate, than the memory of most men; but it is of no higher grade than unwritten testimony.”

Professor Greenleaf, in his work on evidence, section 161, gives the rule that “if the statement of the deceased was committed to writing and signed by Mm, at the time it was made, it has been held essential that the writing should be produced, if existing.”

Mr. Wharton, in his work on criminal evidence, section 295, thus states the rule: “ If the declaration of the deceased, at the time of his making it, be reduced into writing, and then read and approved by him as giving his deliberate view, the written document becomes primary evidence.”

It was held by the Supreme Court of Iowa, in State v. Tweedy, 11 Iowa, 350, that “when declarations in extremis are reduced to writing and signed by the person making them, the writing, if in existence, must be produced as evidence of such declaration.”

The admissibility of competent declarations, so evidenced,has been directly sustained in California, People v. Glenn, 10 Cal. 32; in Texas, Krebs v. State, 8 Texas Ap. 1; in Arkansas, Collier v. State, 20 Ark, 36; in Mississippi, Merrill v. State, 58 Miss. 65; in Alabama, Kelly v. State, 52 Alabama, 361; in South Carolina, State v. Ferguson, 2 Hill, 619; in Kentucky, Mockabee v. Commonwealth, 78 Ky. 380; in Indiana, Binns v. State, 46 Ind. 311, and in Wisconsin, State v. Martin, 30 Wis. 216. And, inferentially in Tennessee, Ep person v. State, 5 Lea (Tenn.) 291; and in Massachusetts, Commonwealth v. Haney, 127 Mass. 455. That such written statements are not admissible as depositions has been several times held, as in the last named case, but if there are any holdings against their admissibility under the general head of dying declarations, our attention has not been called to them, nor have we found such in an extended search of authorities. At all events there is, beyond doubt, a marked agreement in favor of their admissibility.

It is insisted that the written statement was a deposition, and that, as there has been no statutory provision, and, under our constitution, could not lawfully be such provision for the taking of depositions for the state, the paper, on that ground, was inadmissible. But is it a deposition ? In a certain general sense, any written statement, signed by a person, containing assertions of fact, may be treated as his deposition, and the term has been sometimes used in this sense by law writers and judges. In law, however, its accepted meaning is limited to the written testimony of a witness reduced to writing in due form, by virtue of a commission or other authority of a competent tribunal, upon notice, or according to the provisions of some statute law. Besides, the scope and subject-matter of a deposition and a dying declaration may widely differ. A paper competent to be received in evidence as a deposition, may be received in any case in which it is taken, and may contain statements as to any facts to which the witness, if on the stand in court, could have testified; a paper competent to be received as a dying declaration, is receivable only in a case where the death of the deceased is the subject of the charge, and, is limited in its statements, to declarations respecting the immediate cause of the death. Again, a deposition, duly taken, proves itself; a paper containing a dying declaration must be identified and established by oral proof. This paper does not purport to be a deposition. It was not offered as a deposition. It has nowhere in these proceedings been treated as a deposition. We think it cannot be now regarded as such.

Again, it is urged against the admissibility of this statement, that, “ as our experience teaches, there are many men who in the hour of death do not have the fear of God before their eyes, are filled with malice, hatred and anger, which go out only with their lives, and are buried with them in their graves, and with whom a consciousness of impending death moves to a desire for revenge; and that such declarations, in a majority of cases, are prompted by such desire.” But against this objection may be quoted the observation of Chief Baron Eyre, in Woodcock’s case, supra, to the effect that these “ declarations are made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced, by the most powerful considerations, to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.” However, it is manifest, that whatever force there may be in the objection, it goes to the weight of the testimony, and not to its competency, and would be just as forcible, if not more so, against the admission of declarations proven by word of mouth.

We are of opinion that in cases of homicide, a statement of the injured person made in extremis, while conscious of his condition, and under a sense of impending dissolution, reduced to writing by a competent person, at the instance of the declarant, or with his consent, approved and signed by him, containing statements of the circumstances of the unlawful act which results in death, after proper preliminary proof has been introduced, is admissible in evidence. Whether or not such paper is primary evidence in the sense that parol evidence of the declarations will not be received until the absence of the paper is accounted for, we are not called upon to determine.

It follows that the court of common pleas did not err in admitting the written statement of Thomas Butt in evidence, and that that court did err in sustaining the motion for a new trial by reason of the introduction of the written statement.

Exceptions sustained.