text:
    Charles Aldrich et al. v. The People of the State of Illinois.

      Filed at Ottawa November 10, 1881.

    1. Criminal law—receiving stolen goods and concealing same for gain, etc.—proof necessary. . In order to convict, under sec. 239 of the Criminal Code, for receiving and aiding in concealing stolen goods for gain, or to prevent the owner from recovering the same, etc., it is essential, first, to show that the property alleged to have been received or concealed was in fact stolen; secondly, that the accused received the goods knowing them to have been stolen, guilty knowledge being an essential ingredient of the crime; and lastly, that the accused, for his own gain, or to prevent the owner from recovering the same, bought, received, or aided in concealing the stolen goods.
    2. Where the owner authorizes or licenses another to receive stolen goods, and such other person receives the goods from the thief knowing them to have been stolen, with a felonious intent, he will be guilty of a felony in receiving the property, notwithstanding the license.
    3. Same—receiving stolen property—must be with criminal intent. Where a defendant, on behalf of the owner, receives stolen goods from the thief, for the honest purpose of restoring them to the owner without fee or reward, or the expectation of any pecuniary compensation, and in fact immediately after obtaining their possession restores all he receives to the owner, and is not acting in concert or connection with the party stealing to make a profit out of the transaction, he will not be guilty, under the statute.
    Writ of Error to the Criminal Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.

      Mr. John Lyle King, for the plaintiffs in error,
    after stating and reviewing the evidence in detail, and in its various hearings upon the question of guilt, among various points made the following:
    1. The statute makes the receiving of stolen goods by a party for his own gain, or to prevent the owner from obtaining their possession, the distinctive and sole criminal element of guilt in receivers of stolen property. Without such guilty intent the crime can not be committed.
    2. The restoration of the goods to the owner was the express object of the scheme of Aldrich and Isaacs, and every step taken by them for getting the property was in that direction, and there is no evidence they were at any time seeking their own gain in the transaction.
    3. The shortage in the goods restored is not attributable to the plaintiffs in error. Aldrich’s sole possession of the property, and his sole personal knowledge. of it, were confined to the five or ten minutes interval of its carriage from the cigar store to 'the Clifton House, and then in unopened packages, and with the belief and ambition of restoring the property intact. The shortage is no doubt attributable to the thieves, who confess to having retained a portion.
    4. The fact, also, that $100 of the money given to Aldrich to procure a restoration of the goods from the burglars, which was not used, was returned to the owner of the goods, shows very clearly that Aldrich did not seek or act for his own gam. If actuated by a criminal motive he would have reported its payment to the burglars.
    5. On the very night of the robbery Isaacs held the chance, for his own gain, of preventing the owner from repossessing his property, by buying it himself upon his own terms, if he had so desired.

      Mr. Luther Laflin Mills, State’s Attorney, for the People,
    in his printed argument, contended that Isaacs, the pawnbroker, and Aldrich, formerly in the police service, had learned and knew of the robbery, and knew the thieves, and concealed their names until the agent of the owner of the goods advanced money to be paid the thieves for a restoration, and thereby aided in the concealment of the goods until the thieves were paid for them, and were guilty, under the statute.
    That the fact of an agency for the owner existed, does not exonerate the plaintiffs in error where they aided in concealing the goods for their own gain, or to prevent the owner from recovering the same until he paid money therefor, counsel cited 1 Wharton’s Crim. Law, sec. 896, et seq., and People v. Wiley, 3 Hill, 194.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was an indictment in the Criminal Court of Cook county, against Charles Aldrich and Emanuel Isaacs, for larceny. In two of the counts it was charged, in the indictment, that for their own gain, and to prevent the owners from again possessing their property, the defendants did buy, receive and aid in concealing the goods of certain named persons, lately before feloniously stolen, the defendants well knowing they were stolen. The jury before whom the cause was tried returned a verdict of guilty of receiving stolen property, and found the property to be of the value of $6000. The court overruled a motion for a new trial, and rendered judgment on the verdict, and the defendants sued out this writ of error.

In order to obtain a clear understanding of the questions presented by the record, a brief statement of the facts seems necessary. On Friday night, November 26, 1880, four persons, Mike Bauer, Nick Bauer, Herman' Schrceder and Mathew Ash, stole a trunk from the Clifton House, in Chicago, belonging to J. PL Morrow, which contained jewelry belonging to Eaton & Eaas, and Ernest Thoma, of New York, of the value of from $7000 to $8000. Morrow had the goods for sale as agent of the owners. On the night the trunk was stolen, one of the thieves, Mike Bauer, told the defendant Isaacs, who was a pawnbroker in Chicago, that he had a quantity of jewelry for sale, and offered to sell to the defendant, but he declined to buy. Bauer desired the defendant to see the goods, which he promised to do át a future day. On the following Sunday, Isaacs, in company with Bauer, went to a room where the latter had the goods concealed, and looked them over, and was offered the property for $600 or $700. Isaacs declined to buy, but told him not to be in a hurry, he would talk to him the next day. On Saturday, night before this occurred, defendant Aldrich, a policeman, and one Levi, were at Isaacs’ place, and the robbery having been mentioned, Isaacs remarked that he could have had the goods for a small sum of money. After obtaining this information from Isaacs, Aldrich and Levi conceived the scheme to recover the property and return it to the owners through Isaacs. On Monday a meeting was had between Aldrich and Morrow, at the Union National Bank, in the presence of Pinkerton, where Aldrich was employed as special policeman, which resulted in an arrangement that Aldrich should obtain the goods belonging to Thoma for $700, or less if he could, without disclosing the name of the person with whom he should deal, and without reward to himself, save only the reputation which he anticipated would follow the transaction, as a detective of stolen property. On the following Wednesday Morrow paid over to Aldrich $700, on the guaranty of the vice-president of the Union National Bank that the goods or money should- be returned. On the same day Aldrich paid over to Levi $600 of the money, to be paid to the party who had the goods, through Isaacs, who alone knew such party. Out of the money thus received by Levi he paid over $450 to Isaacs. The $450 Isaacs paid to Bauer, who had the goods, as he testified; but Bauer says he only received of Isaacs $300. However that may be, upon the payment of the money to Bauer, on Wednesday evening, he took the goods, and, in company with Isaacs, carried them to a cigar store and barber shop on State street. Then Isaacs notified Levi where the goods could be found, and he notified Aldrich, who went to the place designated, found the goods, and within ten minutes carried them in unopened packages, precisely as he had found them, to the Clifton Hotel, and delivered them to Morrow. Bauer represented to Isaacs that the packages returned contained all the goods which had been stolen, those belonging to Baton & Baas, and also those belonging to Thoma, and Isaacs and Aldrich both understood this to be the case, but upon a subsequent examination it is claimed there was a shortage of some $1300.

These are, in brief, the substantial facts, as we understand the testimony.

In the argument a number of questions have been presented in regard to the admission and exclusion of evidence, but we have concluded to base our decision on the merits of the ease, and hence it will not be necessary to notice these questions.

The indictment in this case was found, and the conviction had, under section 239, chap. 38, of the Criminal Code, Bev. Stat. 1874, p. 388, which declares: “Every person who, for his own gain, or to prevent the owner from again possessing his property, shall buy, receive or aid in concealing stolen goods, or anything the stealing of which is declared to be larceny, or property obtained by robbery or burglary, knowing the same to have been so obtained, shall be imprisoned in the penitentiary, ” etc. On an indictment under this section of the statute for receiving stolen goods, the first thing to be proven is, that the property alleged to have been received was stolen. In this case, however, there is no controversy over that question. It is conceded that the goods in question were stolen. Indeed, several of the thieves who stole the property were introduced as witnesses, and testified to the larceny of the goods. After the larceny has been proven it becomes necessary to establish the fact that those accused of the crime received the stolen goods knowing them to have been stolen. Guilty knowledge on the part of the defendant is essential to the constitution of the offence. Wharton, vol. 2, sec. 1889.

The intent, as in larceny, is the chief ingredient of the offence. Thus, where A authorizes or licenses B to receive property lost or stolen, and B receives the property from the thief knowing it to be stolen, with a felonious intent,- he is guilty of a felony in receiving the property, notwithstanding the license. Wharton, sec. 1891.

Under our statute there is another essential fact to be proven,—that is, that the defendant, for his own gain, or to prevent the owner from again possessing his property, bought, received or aided in concealing stolen goods. There is no doubt, from the evidence in this ease, in regard to the fact that the defendants knew the goods were stolen. Their knowledge is a conceded fact. It is also an undisputed fact that the stolen goods, in passing from the custody of the thieves to -Morrow, the agent of the owners, passed through the hands, first, of defendant Isaacs, and, second, through the hands of defendant Aldrich. The question in the case is then narrowed down to this: Whether defendants received

the goods for their own gain, or to prevent the owner from again possessing his property. This, in our judgment, is the turning point upon which the decision of the ease must hinge. In the disposition of the question we will consider the case, first, as to the defendant Aldrich, and second, as to the defendant Isaacs, as the facts relating to each defendant are somewhat different.

It is not claimed that Aldrich undertook to secure the return of the goods for any fee or reward whatever, or that he expected to make any money out of the transaction. On the contrary, it was proven hy the prosecution that all he wanted was the reputation of recovering the goods. Upon this point Morrow testified: “Prior to the time the goods were returned, Aldrich said he didn’t expect to make a cent out of the transaction; said this on Monday; he never asked for -any compensation, or made offer, bargain or proposition for compensation; he said all he wanted was the glory of beating the other fellows in getting the goods.” The city authorities and Pinkerton' were after the goods. He never asked .a dollar. It is true he retained in his possession $100 of the money which Morrow gave to him, but this was not kept for his own benefit, but for the benefit of Morrow. Upon this point the same witness testified: “On Wednesday night he said he had got all the goods, instead of a part, and that he had saved me $100.” How could he save for Morrow $100 if the money was retained for his services? This could not be the case, as he had paid over to Levi all he received of Morrow, except this $100.

It is apparent, from the evidence, that no agreement was ever made under which Aldrich was paid anything for his services,—that he expected nothing and received nothing for the services he rendered in securing the return of the goods. How can it then be said that he received the goods for his own gain ? Nor did he receive the goods to prevent the owner from again possessing his property, but, on the other hand, he received them for the very purpose of restoring them to the owner, which he did within ten minutes from the time they came into his possession.

We will now consider the testimony as to the defendant Isaacs. He was a pawnbroker, and on the night the goods were stolen he was approached by one of the thieves, and requested to buy the goods. This he refused to do, but having obtained information as to the custody of the goods, he undertook, afterwards, to assist Aldrich in the consummation of his scheme to obtain the goods and restore them to the owner. There was no contract or agreement under which he was to receive any pay for what he might do in the premises. All that he did was done as a favor to help" Aldrich, who wanted the credit of getting the goods returned. Levi, who held $600 to be paid for the return of the goods, handed Isaacs $450, and retained the balance until it could be ascertained that all the goods were returned. This sum Isaacs testified he paid over to Bauer, but Bauer swears that Isaacs only paid him $300, promising to pay the balance the next day. This is the only evidence contained in the record tend- ' ing to show money in the hands of Isaacs as compensation for what he did in the transaction. We do not regard the evidence sufficient. Conceding that the credibility of the two men is equal, which is quite as favorable a view on the side of the prosecution as they could ask, it would leave the matter standing one oath against another, which, under the circumstances of this case, could not be regarded as estab: lishing the fact beyond a reasonable doubt. ’

Again, if Isaacs had been endeavoring to make money out of the transaction, it is strange he did not avail of the opportunity to buy all the goods for the $600 for himself, and say nothing to the detectives in regard to the matter. This would have been the course he doubtless would have adopted had he undertaken to get the goods for his own gain. The fact that he did not take this course is a circumstance tending to corroborate his evidence that all he did was without pay or reward. If, then, Isaacs received no compensation, and had no arrangement under which he was to be paid for what he might do, we perceive no ground upon which it can be determined that he received the goods for his own gain, or that he received them to prevent the owner from again possessing his property, within the meaning of the statute.

It may, however, be said, that as the goods passed through defendants’ hands they should be held liable for the shortage of $1300, and in this way they received the goods for their own gain. If they retained the goods that were missing there might be force in the position, but from the evidence that was impossible. Isaacs only saw the property on two occasions: first on Sunday, when he looked it over in the presence of Bauer, who does not pretend that Isaacs offered to take any part of the goods; again on Wednesday evening, when the goods were carried by Bauer from Fourth avenue, in packages, to the cigar store. While Isaacs was in company with Bauer, at the time, it does not appear that he in any manner handled the goods. As to Aldrich, his only possession of the property was during the ten minutes which it took him to carry the goods from the cigar store to the hotel, when the property was in packages, and unopened. We can see no ground upon which it can, from the evidence, be claimed that either of the defendants can be held liable for the shortage in the goods. The more reasonable view is, that the missing articles were taken by the thieves and appropriated to their own use while they had the goods in possession.

It is, however, urged, that the fact that the property could have been returned soon after the larceny for $500, and the fact that Aldrich, in his first interview with Morrow, in substance said it would require $1400 to obtain the property, the long pendency of the negotiations as to the amount to be paid, and the fact that $200 more was paid tó Aldrich than was demanded by the thieves, are facts which prove the motive of gain. As we understand the evidence, the defendants could not at any time have obtained possession of the property so it could be returned, without paying the thieves the amount of money demanded by them. The defendants can not, therefore, be blamed for the delay, as they acted as soon as Morrow furnished the money to be paid to the thieves. It is true, Aldrich, in his first interview with Morrow, expressed the opinion that $1400 would be required to obtain the property, and this may be regarded as a circumstance against him; but his subsequent conduct, agreeing to obtain the property for one-half that sum, or as much less as he could, clearly repels the inference that he was seeking to make any gain out of the transaction. It has been suggested that Levi was a myth—that no such person ever lived. The fact that he was never seen or heard of after the night the goods were returned looks somewhat suspicious, but we must be controlled by the evidence in the record, and unless Isaacs, Aldrich, and also the father of Aldrich, are guilty of willful perjury, then Levi was no myth, but was in Chicago at the time of this occurrence, and participated therein, as testified by the defendants.

We have given the evidence in the record a careful consideration, and the only conclusion we have been able to reach is, that it has not been established that the defendants were receivers of the goods for their own gain, or to prevent the owners from again possessing their property. On the other hand, the only logical conclusion that can reasonably be reached from the evidence is, that defendants undertook, on behalf of the owners, to obtain a return of the goods without compensation or reward, and that all of the goods which came into their possession were in good faith returned to the owners. If it had been proven in this ease that the defendants had entered into negotiations with Morrow to secure a return of the stolen goods in pursuance of a prior arrangement or understanding with the persons who had stolen the property, with the intent or purpose of making a profit out of the transaction, we would not hesitate to hold that they were guilty, under the statute. A party can not shield himself behind a supposed agency, growing out of an agreement made with the owner of stolen goods for their return, where it appears he is acting in conjunction with the thieves to make a gain or 'profit out of the transaction. But where the defendants are not actuated by the motive of gain, as they were not in this case, and do not aid in secreting the property, we do not understand that a conviction can be had.

The judgment will be reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    Mary Ann Keegan v. Peter Geraghty et al.

      Filed at Ottawa November 10, 1881.

    1. Adopted child—as to his right of inheritance—from whom. The rights of inheritance acquired by an adopted child under the laws of another State, where he was adopted, will be recognized and upheld in this State only so far as they be not inconsistent with our laws of descent, so that if such child can not take by descent by our statute, it can not take at all, no matter what may be the law of the State where the adoption was made.
    2. Under our statute for the adoption of children, an adopted child can take by descent only from the person adopting, and not from - the lineal or collateral kindred of the adopting parent. Therefore such child can not, by inheritance, take from a child of the adopting parent born in lawful wedlock, the adopted child not being a brother or sister in fact.
    3. Same—statute to be. strictly construed. As against an adopted child the statute should be strictly construed, as being in derogation of the general law of inheritance, which is founded on natural relationship, and is a rule of succession according to nature, which has prevailed from time immemorial.
    4. ’ Descent—what laws govern as to real estate. The laws of this State govern in the descent of real property situated in this State.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Mr. William G. McMillan, for the plaintiff in error:
    That courts will recognize and enforce rights derived under foreign laws, when not in contravention with the laws of their own State, counsel cited Bouvier’s Law Die. title “Comity;”
      Roundtree v. Baker, 52 Ill. 241; Story’s Conflict of Laws, chap. 8.
    The validity of a marriage is governed by the lex loci contractu, and by it the status of the husband and wife, and the legitimacy of the children, are determined. McDeed v. McDeed, 67 Ill. 545; Clark v. Clark, 8 Cush. 385; Phillips v. Gregg, 10 Watts, 158; Wall v. Williams, 11 Ala. 826; Patterson v. Gaines, 6 How. 550; Fourshill v. Murray, 1 Bland’s Ch. 479; Dumaresby v. Fishly, 3 A. K. Marshall, 366; Lacon v. Higgins, 8 Stark. 178; Ryan v. Ryan, 1 Phil. Ecc. 332; Herbert v. Herbert, 2 Hagg. Ecc. 263; Scrimshire v. Scrimshire, 2 Hagg. Consist. 412; Midway v. Needham, 16 Mass. 157; Dannelli v. Dannelli, 4 Bush, 51; 1 Bishop’s Marriage and Divorce, sec. 355; Story’s Conflict of Laws, chap. 5.
    That the marriage of the parents after the birth of an illegitimate child in a State or country where the marriage does not legitimatize the child, will not make it legitimate, and capable of inheriting in another State- or county where such a marriage would have legitimatized the child, counsel cited Shedden v. Patrick, 1 Macg. 622; 4 Wils. & Sh. App. 89 ; Strathmore Peerage case, 9 Bligh, 51; Munroe v. Saunders, 6 id. 468; Ross v. Ross, 4 Wils. & Sh. 289; Dalhousie v. McDonall, 7 Cl. & Fin. 817; Munro v. Munro, id. 842; Bertwhistle v. Vardill, 9 Bligh, 32; 2 Cl. & Fin. 571; 7 id. 895; Scott v. Key, 11 La. Ann. 232; Smith v. Kelly’s Heirs, 23 Miss. 167.
    As to the effect of the adoption of a child in another State, and the right of such child to take by inheritance, counsel cited Ross v. Ross, 129 Mass. 243.
    The adoption statute of Illinois was taken from that of Massachusetts, and the construction given to it in the latter State should be adopted here. Gage v. Smith, 79 Ill. 219; Campbell v. Quinlin, 3 Scam. 238.
    Mr. Geo. W. Smith, also for the plaintiff in error.

      Messrs. Crowley & Maxwell, also for the plaintiff in error:
    When Illinois and Wisconsin adopted the Massachusetts statute, they also adopted, to a certain extent, the construction of that statute by the Massachusetts court.
    If Michael B. Keegan had died intestate, his estate must have descended in equal shares upon Mary Gertrude Keegan and upon the plaintiff. The rights of the latter are the same as if she had been adopted under the laws of the State of Illinois. Illinois Stat. of Descents; Ross v. Ross, 129 Mass. 243.
    The plain, natural meaning of the statute of adoption is, that the adopted child becomes entitled to all the rights of a lawfully begotten child, not only as between herself and her adopting parents, but also as between herself and her parents’ lineal descendants, from whom she will take directly, and not by right of representation.
    Reference must be had to the statutes of legitimacy, of half blood, the alien laws, and to the statute of adoption, for the correct definition of the word “sister, ” or the words “descendants of such parents, ” in the Statute of Descents. Ross v. Ross, 129 Mass. 266; Rowley v. Strong, 32 Mich. 70. See, also, Sewell v. Roberts, 115 Mass. 262.
    Under a Massachusetts statute, which provides that a child, or the issue of a deceased child, unintentionally omitted in the will of the father or grandfather, shall take the same share as though the father died intestate, it seems that an adopted child has all the rights of lawful issue. Bowdlear v. Bowdlear, 112 Mass. 184. See, also, Loring v. Thorndike, 5 Allen, 263.
    Mr. Robert Hervey, for defendant in error Peter Geraghty:
    The doctrine of comity is not carried so far as to conflict with and abrogate the positive laws of 'another State.
    The legislature of the State of Wisconsin can not confer any right of inheritance by the person adopted under its enactments, to property in the State of Illinois, even if this State had no law on the subject of adoption.
    But there is a law of adoption in this State, by which the rights of adopted children are defined and settled. Such being the case, claimants to property in this State (as adopted children) must bring themselves within, and are necessarily in all things bound by, its provisions.
    The legislature of this State has exercised its sovereign right in providing for the descent of property. Can a foreign State legislature legislate for the mode of descent of property in this State at all, under any circumstances ? The plaintiff has no such status under the Wisconsin proceeding as will give her a right to inherit property in this State in direct opposition to our State laws.-
    The cases cited in relation to marriage and the status of married persons have no’ analogy to the case at bar. The marriage relation is sui generis, and is not the creature of any statute, while the adoption of children is purely a creature of the statute, no such thing being known to the common law.
    The case of Ross v. Ross, 129 Mass. 243, is.relied on by the plaintiff, but that case is different from this, where the father left no estate to distribute. The Massachusetts courts could not have held that an adopted child could inherit from a devisee, as a sister, for two reasons:
    1. Because she is not a sister, which in law means a sister of the whole or half blood. See Schafer v. Euen, 54 Pa. St. 304; Commonwealth v. Nancrede, 8 Casey, 389; Bouvier’s Law Dic. title, “Sister. ”
    2. Because the adopting parent had left no property for the law to distribute, but had devised the whole to the child of his body, and the statute of Massachusetts, like ours, prohibits inheritance by adopted children collaterally.
    In Barnhizel v. Ferrell, 47 Ind. 325, the court say: “Our statute contains no provision on the subject of the rights of the lawful and adopted children as between themselves.” The plaintiff if she could inherit at all, must be by representation, which the statute prohibits.
    Mr. Wm. W. Fabwell, also for the defendants in error:
    1. Mary G. Keegan being a resident of this State when she died intestate, our statute of descent must control as to the descent of her property.
    2. Adopted children are not recognized by the common law as children of the adopting parent.
    3. The new rights acquired and the new obligations assumed by reason of such adoption, will not be recognized or enforced in any other State, except so far as they are consistent with its own laws and policy.
    4. The word “child” and the word “sister,” as used in our statute of descents, are to be taken to mean what they ordinarily mean under our laws and according to our language.
    5. No new meaning is given to the word child or sister by reason of the statute of adoption. A child adopted under the statute is allowed to claim as a child, by reason of the provisions in that statute, which has been taken into account in applying the statute of descent. The language of the statute of descent is general, while the statute of adoption contains a provision which amounts to a special exception in certain cases. The latter must control as to all cases specially excepted, but the general act must be given effect in all other cases. Litchfield Coal Co. v. Taylor, 81 Ill. 590; Town of Ottawa v. Town of LaSalle, 12 id. 339; Potter’s Dwarris on Statutes, 273.
    6. The Illinois- statute of adoption does not give the adopted child any right to inherit from the kindred of the adoptive parent.
   Mr. Justice Sheldon

delivered the opinion of the Court:

Michael R. Keegan, and his wife, Margaret, resided many years in Columbia county, Wisconsin. They had no children, but in 1862 adopted Mary Ann Keenan, the plaintiff in error, as their daughter, pursuant to the provisions of chap. 49, of the Revised Statutes of Wisconsin of 1858. In 1869, Keegan and his wife removed from Wisconsin to Chicago, in this State, and about this time Mary Ann, being then of lawful age, went to Boston, Mass., where she has ever since resided. Margaret Keegan died in 1874, and Michael R. Keegan not long afterwards married Bedelía M. Geraghty, daughter of Peter Geraghty, one of defendants in error. As the issue of this marriage, Mary Gertrude Keegan was born, in 1875. The mother died in July, 1879. The father, Michael R. Keegan, died in the November following, seized of real estate in this State, leaving his last will, by which he gave all his property to this child, Mary Gertrude Keegan. In December following she died, leaving no brother or sister, and no grandparents except said Peter Geraghty, who was declared by the probate court in Cook county, Illinois, in the adjudication of heirship, to be her next of kin and sole heir at law. Mary Ann, the plaintiff in error, petitioned the probate court to have that order vacated, claiming that by virtue of the adoption proceedings of Wisconsin she became the child of Michael R. Keegan, and consequently was the half-sister of Mary Gertrude Keegan, and as such half-sister is now her sole heir, according to our statute of descent. The probate court found against her. She appealed to the circuit court of Cook county, and that court found against her, from which decision she appealed to the Appellate Court for the First'District, which court affirmed the judgment, and she now brings the record here by writ of error.

As Mary Gertrude Keegan was a resident of this State, and died here, intestate, our statute of descent must control as to the descent of her real property situated in this State. Under that statute, in order to take, the petitioner must take as the heir at law of Mary Gertrude Keegan, and as her sister. She must answer 'this description of sister.

It is claimed that she is to be regarded in the light of such sister because she is the adopted child of Michael R. Keegan, the father of Mary Gertrude Keegan. The adoption took place in Wisconsin, under a statute of that State, and it is contended on the one side that the statute of Wisconsin has no extra-territorial force; and on the other, that the status of child of Michael R. Keegan having been acquired in Wisconsin, such status, with the capacity -of inheritance belonging to it, is to be recognized and given full effect to in this State.

The case of Ross v. Ross, 129 Mass. 243, is referred to as sustaining the latter position. That ease raised the question whether a child adopted in Pennsylvania, having a statute of adoption similar to that of Massachusetts, and whose adopting parent afterward removed to Massachusetts, could inherit real estate in Massachusetts upon the adopting parent dying there, intestate. The child was held to be the heir, in an opinion showing great research and consideration. It was there said: “It is a general principle that the status or condition of a person, the relation in which he stands to another person, and by which he is qualified or made capable to take certain rights in that other’s property, is fixed by the law of the domicil, and that this status and capacity are to be recognized and upheld in every other State, so far as they are not inconsistent with its own laws and policy. ”

We are not disposed to question that decision upon the facts of that case, or this general principle so announced, with its limitation that the acquired status and rights belonging to it in one State be not inconsistent with the laws and policy of the other State in which they are set up. But we do not admit that the point there-decided has any such direct bearing upon the ease at bar as should control its decision. The' facts of the two cases are materially different. In that case the adopted child claimed to inherit the property of the adopting father. The laws of Pennsylvania, where the adoption took place, gave the child such right of inheritance. The laws of Massachusetts, where the family were afterward domiciled, and where the father died, gave such right of inheritance to a child adopted under the laws of Massachusetts. The decision was, that the adopted child might inherit in Massachusetts from the adoptive father.

The adoption of one person by another is the creation of an artificial relation between people, and is taken from the Roman law, being unknown to the English law. But a majority of the States of the Union have enacted statutes of adoption. There is not urfiformity in such statutes. In no two of them, perhaps, are the new rights and obligations precisely the same. Except Louisiana and Texas, Massachusetts seems to have been first of the States to enact a law of adoption. The first statute on the subject in the latter State was passed in 1851, some change in which was made by subsequent statutes there passed in 1860 and 1871. Wisconsin passed the law under which petitioner was adopted, in 1858, it being a re-enactment, substantially, of the Massachusetts law of 1851. Hlinois passed her first law on this subject in 1867 (Laws 1867, p. 133,) which remained in force until 1874, when the present law was enacted, which, as to the rights of the adopted child, seems to be taken directly Rom the Massachusetts acts of 1860 and 1871, its wording in such respect appearing to be identical with that of the Massachusetts acts. The Massachusetts act of 1871, and the present Illinois act, as to the rights of the adopted child, are substantially the same as the Wisconsin law, except that by the latter there is no exclusion of taking from the lineal or collateral kindred of the parents by right of representation.

The Wisconsin statute, under which petitioner was adopted, is as follows:

“Sec. 6. A child so adopted as aforesaid, shall be deemed, for the purpose of inheritance and succession by such child, custody of the person and right of obedience by such parent or parents by adoption, and all other legal consequences and incidents of the natural relation of parents and children, the same, to all intents and purposes, as if such child had been born in lawful wedlock of such parent or parents by adoption, saving only that such child shall not be deemed capable of taking property expressly limited to the heirs of the body or bodies of such petitioner or petitioners.”

The Illinois statute of 1874 is, as to the rights of the adopted child:

“Sec. 5. A child so adopted shall be deemed, for the purposes of inheritance by such child, and his descendants and husband or wife, and other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same as if he had been born to them in lawful wedlock, except that he shall not be capable of taking property expressly limited to the body or bodies of the parents by adoption, nor property from the lineal or collateral kindred of such parents by right of representation. ”

We shall not presume to put a construction upon the statute of Wisconsin, deeming it unnecessary, as, according to the principle laid down in the case of Boss v. Boss, supra, as we -understand and accept it, the rights of inheritance acquired by the adopted child under the law of Wisconsin will be recognized and upheld in this State only so far as they be not inconsistent with our law of descent, so that if, by our own statute of adoption, the petitioner could not take in this case under our statute of descent, then she can not take, no matter what may be the law of Wisconsin in respect to the rights of an adoptedochild. Hence, we think we need only address ourselves to the inquiry, whether an adopted child under our statute of adoption could inherit in a case such as this, and if wp find that she could not, that determines the case against the petitioner.

Our statute of adoption provides that the child adopted shall be deemed, for the purpose of inheritance by such child, the child of the parents by adoption, etc. “For the purpose of inheritance by such child, ”—from whom ? The statute does not say, but we say, from the adoptive parents. We think it must be so limited from the nature of the proceeding, the propriety of so doing, and from the absence of express words of further extent. The proceeding of adoption is one entirely between such parents and the child, at the instance, by the consent, and upon the petition of the parent or parents. The artificial relation from adoption is established between these parties, and the statute defines what shall be the duties and rights of the parties from this relation between them. As we construe the statute, as between the parties to the transaction the adopted child is deemed, for the purpose of inheritance from the adoptive parents, their child, the same as if he had been born to them in lawful wedlock. And when such an adoptive parent dies intestate, having had no children born to him in wedlock, it is reasonable and just that the property he leaves should go to a stranger to his blood, his adopted child. It would be a consequence of his own desire and request in the taking of the" adoption proceeding. But another person, who has never been a party to any adoption proceeding, who has never desired or requested to have such artificial relation established as to himself, why should his property be subjected to such an unnatural course of descent ? To have it turned away upon his death from blood relations, where it would be the natural desire to have property go, and pass into the hands of an alien in blood,—to produce such effect, it seems to us, the language of the statute should be most clear and unmistakable, leaving no room for any question whatever. We find in our statute of adoption no express language giving to the adopted child the right to inherit from any one else than the adoptive parents. By the statute the adopted child is to be deemed the same as if born in lawful wedlock, for the purpose of inheritance by such child, “and the legal consequences and incidents of the natural relation of parents and children. ” These last general words, we think, are to be qualified in like manner as the others remarked upon, by restriction to the parties to the adoption proceeding and the persons named in the statute. Surely, in this generality of language there can not be found given the important right to inherit from a person other than the adoptive parents.

The decree of adoption made by the court under section 3 is, that from the date of the decree “the child shall, to all legal intents and purposes, be the child of the petitioner or petitioners, ” etc. But evidently there was not, under the statute, meant to be given by these general words, nor by those general .words “other legal consequences and incidents, ” etc., in section 5, any rights of inheritance; for section 5 is one making express provision what the rights of inheritance of the adopted child shall be, and section 6 provides what the rights of inheritance of the adopting parents shall be, the sections being devoted solely to those respective subjects. Now, if it had been the intention to give, by the general language above quoted, all rights of inheritance the same as if the adopted child was the child in fact of the adoptive parents, there would have. been no need of any further provision upon the subject of inheritance, and the 5th and 6th sections would have been superfluous. But the employment of those sections, providing specifically as to the respective rights of inheritance, shows that it was not the intention to give any rights of inheritance by those general words mentioned. . •

A point is made upon the change of phraseology in our law of adoption of 1874 from that ‘ in the law of 1867. The statute of 1867 was repealed in 1874. That statute of 1867 was: “It shall he the duty of the court * * * to make an order declaring said child to be the adopted child of such person, and capable of inheriting his or her estate, and also what shall be the name of such child; and thenceforward the relation between such person and the adopted child shall be, as to their legal rights and liabilities, the same as if the relation of parent and child existed between them, except that the adopted father or mother shall never inherit from the child; but to all other persons the adopted child shall stand related as if no such act of adoption had been taken. ” By the old law the adopted child, as to the adopting parent, was made “capable of inheriting Ms or her estate.” The new law says, “for the purposes of inheritance the child shall be deemed as if bom in lawful wedlock of the adopting parents.” By the old law, as “to all other persons the adopted child shaE stand related as if no such act of adoption had taken place. ” The new law contains no such restriction, and it is said this indicates the intention of the legislature, by the last act, that the adopted chEd should have the relation to all persons as if born in wedlock of the adopting parents, except in so far as the law itself restricts it. There is force in this suggestion that the dropping out from the present statute of those words of the former statute expressly confining the adopted child’s right of inheriting to taking from its adopting parents, and expressly denying that the act of adoption should. in any way affect the child’s relation to any other persons, indicates a change "of the legislative will in the direction of the enlargement of the adopted child’s right of inheriting. But when the revision of 1874 was made, there had been no decision, either in Wisconsin or Massachusetts, placing a construction upon their laws on the points we are considering. It is not clear that the revisers or the legislature intended, in changing our statute and adopting section 6 of the Massachusetts act of 1851, as amended there in 1860 and 1871, to make such an important and uncalled for change in our law, as now contended for; and it may be, the statute being a new one upon a novel subject in our law, that they made the changes in this case for the sake of uniformity, to bring the statute into conformity with that of Massachusetts on the same subject, thinking that1 the law remained substantially as before.

It is contended that the last clause of the. 5th section of our statute of adoption, by excluding the right of an adopted child to take from the lineal or collateral kindred of the adopting parents, by right of representation, impliedly says such child can directly inherit, in his own right, from the lineal or collateral kindred of the adopting parents, and that petitioner’s claim of inheritance here is, to inherit directly in her own right. We rather deduce the contrary inference from this language,—that it is more in denial than in allowance of inheriting directly from the kindred of the adopting parents. This clause is introduced by way of exception from what had before been granted,—the right of inheritance,— and as by our interpretation the right so given is to inherit from the adopted parents only, the exception is to the right of inheriting from or through the adopting parents—the provision being, in meaning, that the adopted child shall not be deemed so much a child of the adopted parents, that he can, as their representative, inherit from their kindred, lineal or collateral. If, then, as being the adopted child, such child be not permitted to represent and stand in the place of the adoptive parent, and take by representation from the kindred of such parent, it would seem that much more he should not take directly from such kindred.

This whole excepting clause at the close of the 5th section is pointed to inheriting from or through the adoptive parents, the first branch of it being, that the adopted child shall not take property expressly limited to the body or bodies of the parents by adoption; and the second, that he. shall not take property from the lineal or collateral kindred of such parents by right of representation. The language is all restrictive of inheriting from or through the adoptive parents, and an adopted child being made, “to all legal intents and purposes, the child” of the adopting parent, there would seem to be the more reason that, as representing and standing in the place of the adoptive parent, he should take by right of representation from such parent’s kindred, than that he should take directly from such kindred; and any implication there may be from the prohibition to take by right of representation, should rather be against than in favor of the right to take directly. The language in question is all negative, restrictive of the right of inheriting, and it can not be. con-' strued as giving any right of inheriting.

Notwithstanding the general words that the adopted child “shall, to all legal intents and purposes, be the child” of the adopting parents, and shall be deemed, as to the “legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same as if he had been born to them in lawful wedlock, ” the right of inheritance from the child, which is given to the adoptive parents by section 6, is very limited, being confined to such property as the child got from the adoptive parents; and there is, besides, an express prohibition against such parents inheriting any property which the child got from his kindred by blood. Mutuality would dictate that if the parents do not inherit from the adopted child’s kindred by blood, neither should the child inherit from the adopted parent’s kindred. We can not admit this anomalous right, here claimed in a stranger in blood to take by descent in exclusion of kindred, to be given by any doubtful implication or vague generality of language. As against the adopted child the statute should be strictly construed, because it is in derogation of the general law of inheritance, which is founded on natural relationship, and is a rule of succession according to nature, which has prevailed from time immemorial.

Another case is referred to by petitioners’ counsel as being in support of their claim,—that of Sewall v. Roberts, 115 Mass. 262. It holds that an adopted child, as regards a settlement made by the adopting father, by which the remainder was limited to his children, which settlement was made many years before the passage of the act of 1851 of Massachusetts, and before the adoption of the child, must be regarded in the light of a child born in lawful wedlock, and entitled to the remainder. This, like that of Ross v. Ross, is the case of a claim by the adopted child to take from the adopting parent, and allowing to the former as against the latter the full rights of a natural child may be reasonable and warrantable under the statute. But the case before us is not a claim by the adopted child to inherit from the adopting parent, but one of the adopted child claiming to inherit from a child of the body of the adopting parent, as her sister; so that authorities upon the right of the adopted child to inherit from the adopting parent do not reach this case, and should not govern the decision of it.

We then find that our statute of adoption contains no provision on the subject of the rights of the children born in wedlock and adopted children, as between themselves,—that no right is given to them to inherit from or through each other. Hence, under our law, the petitioner, for any right to inherit from Mary Gertrude Keegan, the child of the adoptive parent, Michael B. Keegan, must look to our statute of descent; and the right, if any, must be found there alone. To inherit under that statute she must be the sister of Mary Gertrude Keegan. Petitioner is not such sister, nor has she been made an adopted sister, and had given to her the rights of a sister to Mary Gertrude Keegan. An adopted child is not a child in fact, nor is an adopted child, having the rights of a child, a child in fact. But under the statute of descent, to inherit from Mary Gertrude Keegan, as her sister, petitioner must have been the actual child of -Michael E. Keegan— being his adopted child will not suffice.

By our own law, then, we find that petitioner can not inherit from the intestate, Mary Gertrude Keegan, and that she could not, if she had been the adopted child of Michael E. Keegan under our own statute of adoption. Even then, if by the adoption proceedings in Wisconsin petitioner did acquire, under the law of that State, such a status of child as made her capable to inherit from Mary Gertrude Keegan as her sister, we could not recognize and give effect to such capacity to inherit in this State, as to do so would be in contravention of our own law, and it is our law which must govern in the descent of real property situated in this State.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    Edgar A. Crane et al. v. Monroe N. Lord.

      Filed at Ottawa November 10, 1881.

      1. Rescission—can not be had after contract has been abrogated, and new one entered into with another. A sold B a fourth interest in certain real property, receiving part payment, and notes for the balance. Afterwards the conveyance to B was cancelled, and a new one made to B’s wife, who gave her notes for the balance due, secured by trust deed to C, which notes A indorsed to O. B becoming dissatisfied, all parties came together, when a new arrangement was made, by which the deed to B’s wife was surrendered and her notes given up, and B then took a contract from 0 for the same premises, giving his notes to him for the sum due on the prior contract. B afterwards filed his bill against A to set aside his original contract as fraudulent, but not making C a party, or seeking to have the contract with him rescinded: Held, that by the subsequent arrangement the original contracts with A were abrogated, and there was no contract between A and B to be rescinded.

      2. Chancery jurisdiction—remedy at law. Where a contract for the purchase of land alleged to have been induced by fraudulent and false representations is abrogated by the parties, without any promise to return the purchase money paid, and the purchaser takes a contract for the purchase of the same land for the sum due on the original purchase, from a third person, who is invested with the title, a court of equity has no jurisdiction of a bill by the purchaser seeking to recover back the money paid the original vendor, on the ground of fraud, the remedy being at law, if any.
    Appeal from the Appellate Court for the First District;—■ heard in that court on appeal from the Superior Court of Cook county; the Hon. J. A. Jameson, Judge, presiding.
    Mr. Levi Sprague, and Mr. E. A. Cbane, for the appellants, made the following among other points: '
    Fraud is a matter of chancery jurisdiction, notwithstanding the statute may have conferred a .similar jurisdiction upon courts of law. Babcock v. McCamant, 53 Ill. 215; Truett v. Wainwright, 4 Gilm. 418.
    In cases of fraud, chancery has always jurisdiction, though courts of law may exercise it concurrently in all cases in which their powers are sufficient for the relief sought. Jones v. Neely, 72 Ill. 449; 1 Story’s Eq. Jur. sees. 64, 76, 80.
    An agent employed to purchase, can not sell his own property to his principal without disclosing his interest. 1 Story’s Eq. Jur. sec. 316; Pensonneau v. Bleakley, 14 Ill. 15; White et al. v. Sutherland, 64 id. 181; Cottom v. Holliday, 59 id. 176.
    That a purchaser may, for fraud, rescind and recover back the money paid by him, even though it be not possible to restore the parties to then* former position, counsel cited Masson v. Bovet, 1 Denio, 69; Hopkins v. Snedeker, 71 Ill. 449 ; 2 Parsons on Contracts, 278; Thomas v. Coultas et ux. 76 Ill. 493.
    Mr. Geo. C. Christian, for the appellee,
    made various points in the case, aside from the question of jurisdiction upon which the case was decided.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a bill, filed in the Superior Court of Cook county, by appellants, asking to have a contract for the purchase of a fourth interest in a tract of land set aside, on the ground of fraud perpetrated by appellee on appellants. Appellant Crane claims he first employed appellee to loan some money for him; that appellee persuaded him to invest it in real estate, as being more profitable; that he knew of a piece that could be purchased at low rates; that it belonged to a person in Europe, who was hard pressed for means, and was compelled to sell, and had placed the title in another person, for the purpose of conveying to purchasers; that appellee professed to be anxious to purchase the property, but claimed to lack the requisite means, but would do so if he could get others to join him; that he proposed to take one-fourth of the title if Crane would take one-fourth, and one Abbott would take the other half; that this was agreed to, but Abbott, on examining the abstract of title, declined to purchase; that it was then agreed that appellee should receive a deed for the entire piece of ground, and would sell to Crane one-fourth interest for $4100. Appellee received a deed for the tract from Silas C. Stevens.

In October, 1873, appellee gave to Crane an agreement in writing for a conveyance of one-fourth of the tract, which was situated on Indiana avenue, in the city of Chicago, on his paying the $4100 purchase money. Payments were made on the purchase money, interest and taxes, aggregating, as he claims, $2329.26. Subsequently a division of the property was made, and appellee made a conveyance of a lot, being Crane’s fourth, and notes were taken for the balance of the purchase money. Subsequently this conveyance was cancelled, and a conveyance, bearing date in January, 1876, was made for the property from appellee to Crane’s wife, and she and Crane executed two notes of $500 each, and two of $800 each, drawing ten per cent interest, payable within five years, for the balance of -the purchase money; and to secure their payment they gave a trust deed on the property to James Bolton. Appellee indorsed the notes to Bolton. Crane becoming dissatisfied, in June, 1878, notified appellee that he would pay no more on the notes, and .tendered him a quitclaim deed for the premises, executed by himself and wife, and demanded the purchase money he had paid, but appellee refused to. receive the deed, or to repay the money. Thereupon, Bolton, Crane and appellee came together, when a new arrangement was entered into. By it the deed to Mrs. Crane, which had not been recorded, was surrendered up, and the notes of Crane and wife were surrendered by Bolton and cancelled, and' it was agreed that appellee should quitclaim the lot to Bolton, and, on Crane’s proposition, a new contract was entered into between him and Bolton. By it Bolton was to release Crane from his personal liability on his and his wife’s notes, Bolton to convey to him the lot on Crane’s paying him a sum equal to the balance of the purchase money due on the first purchase from appellee, which amounted to $2820.60, with interest at six per cent, within five years from that date. Crane prepared the agreement for the conveyance, and he and Bolton executed it.

Crane claims that appellee perpetrated a fraud on him in selling him the property, by misrepresenting its value, and its salable quality, etc., and also in false representations as to the ownership of the property, and inducing him to make the purchase under the belief that appellee was a co-purchaser, when he was in fact a part owner, and was but selling the property to Crane. As to fraudulent representations as to the value of the property, etc., we presume that branch of the case was abandoned in the Superior Court, as we find no evidence as to its value, whether less or greater than the contract price. There can therefore be no discussion on that question, as the proof must sustain the allegations of the bill, and there is none whatever as to that allegation.

On the question as to the representations as to who owned the property, there is evidence. It appears that John M. Wilson sold to Stevens, Bolton, Flack and appellee, a tract of land embracing the lot in controversy, and as a matter of convenience in making sales they had Wilson to convey it to Stevens, to hold for himself and the other parties. They entered into a written agreement, declaring their several interests,, by which it appears that appellee held three-eighths, Stevens one-fourth, Bolton one-fourth, and Flack one-eighth. Thus it appears that it was untrue that the property belonged to a party in Europe, who was compelled from necessity to sell it; but it does appear that appellee did own three-eighths of the title to the land he pretended he was purchasing with Crane.

Notwithstanding all of these facts, was there any subsisting contract between Crane and appellee in reference to this land when this suit was brought? If there was not, then there was none to be rescinded. At the instance of Crane appellee had twice conveyed the land,—once to him, and next to his wife,—in fulfillment of his part of the contract. Next, on these conveyances being cancelled, at his solicitation, appellee conveyed the property to Bolton, and the notes given on the first purchase were surrendered by Bolton, and Crane became the purchaser of him. It is difficult to perceive that this left any contract whatever relating to the land in existence between appellee and Crane. By that arrangement all prior contracts were abrogated and at an end, and the case, stripped of all extraneous circumstances, is but a bill to recover back all of the purchase money paid by Crane to appellee, leaving Crane the purchaser of the lot from Bolton at a much reduced price. Crane seems to be willing, if not anxious, to hold the property, as he does not make Bolton a party, and seek to be absolved from that eon-tract; but if he can recover the money paid appellee, With interest, as claimed, that will pay all but a fraction of the balance due on the purchase, and he will thus obtain the property by paying but a comparatively small sum more than he agreed to pay when he first purchased. Had appellee, when the last arrangement was entered into, promised to repay what he had received on the purchase, to Crane, would any one have contended that equity could entertain jurisdiction to decree its payment ? The remedy in that case would have manifestly been at law. And if, from all the circumstances of the case, the law will imply a promise to repay it, the remedy, for the same reason, must be at law, and equity can not exercise jurisdiction to decree its repayment.

There was therefore no error in dismissing the bill, nor did the Appellate Court err in affirming the decree, and the decree of the latter court must be affirmed.

Decree affirmed.


text:
    The Washington Ice Company v. John G. Shortall.

      Filed at Ottawa November 10, 1881.

    1. Bipabian pbopbietok—on both sides owns the bed of the stream. A stream above the tide, although it may be navigable in fact, belongs to the riparian proprietors on each side of it to its center thread, unless the grant shows a contrary intention; and the only right the public has therein is an easement for the purpose of navigation. If the same person is the owner on both sides of a river, ho owns the whole stream to the extent of the length of his lands upon it. This is the rule of .the common law which has been adopted in this State.
    2. Same—rights of riparian proprietor to use of the water. A riparian owner has rights with respect to water in a running stream, which authorize the actual talcing of a reasonable quantity of the water for his own use for domestic, manufacturing and agricultural purposes. The limitation in extent of the use of the water is, that it shall not interfere with the public right of navigation, nor in a substantial degree diminish or impair the right of use of the water by a lower or upper proprietor, as it passes along his land.
    3. Same—rights of riparian owner, to ice on stream over his land. The just and reasonable use of the water which belongs to the riparian proprietor, in case of its being congealed into ice, would give him the unlimited use and appropriation of the ice as his exclusive property, of which he can not be deprived by a mere wrongdoer. The ice may be regarded as attached to the soil, and, like any other accession, may be considered as a part of the realty, and any stranger who enters upon the same and appropriates the ice to his own use, will be liable to the owner in trespass guare clausum, fregit.

    4. Measure oe damages—talcing and removing ice from stream over the land of another. Where a person takes the ice in a stream, over the land of another, to which the owner of the land has the exclusive right, the measure of damages in trespass for such wrongful taking is the value of the ice as soon as it is made a chattel,—that is, when scraped, plowed, sawed, cut and severed, ready for removal. The rule is analogous to cases where coal is wrongfully taken from the soil of another.
    Appeal from the Appellate Court for the First District:— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John Gf. Rogers, Judge, presiding.
    Mr. Francis H. Kales, for the appellant:
    1. To take ice from a fresh water river, navigable defacto, without the consent of the riparian owner, is not, where there is a right of access, an act of trespass. 3 Kent’s Com. *427, 439; Lyon v. Fishmongers' Co. L. R. 1 App. Ca. H. L. 683 ; Marshall v. Peters, 12 How. Pr. 218; Myer v. Whitaker, 55 id. 376; State v. Pottmeyer, 30 Ind. 287; State v. Pottmeyer, 88 id. 402; De Jur. Mar. part 1, chap. 3; Barney v. Keokuk, 94 U. S. 324.
    2. Water in a running stream is not the property of any man. 3 Kent’s Com. 427, and cases cited above.
    3. That part of the common law which distinguishes salt from fresh water rivers, where both are navigable, has always been quite inapplicable to our condition, and in no sense can it be said to have been adopted as part of our law. The Daniel Ball, 10 Wall. 557; The Montello, 11 Wall. 411; Barney v. Keokuk, 94 U. S. 324; Chicago v. McGinn, 51 Ill. 266.

      4. The mis-survey and plat returned to the government office, showing that a stream is apparently not navigable, when in point of fact it is navigable, will not be allowed as authority for a conveyance to a private party of a river which is actually navigable.
    5. If the river be navigable, nothing passes below the low water, and that rule is applied by the Supreme Court of the United States to fresh water rivers navigable de facto. Railroad Co. v. Schurmier, 7 Wall. 272; Yates v. Milwaukee, 10 id. 497; Barney v. Keokuk, 94 U. S. 324.
    6. Meander lines are not boundary lines. Railroad Co. v. Schurmier, supra; Middleton v. Pritchard, 3 Scam. 522.
    7. The court erred in instructing the jury as to the measure of damages. It should have given defendant’s instruction, that in no case was the plaintiff entitled to recover more than nominal damages.
    Mr. Joseph Weight, for the appellee:
    By the common law only arms of the sea, and streams where the tide ebbs and flows, are regarded navigable. The stream above the tide, although it may be navigable in fact, belongs to the riparian proprietors on each side of it, ad filum aquce, and the only right the public has therein is a right of easement for the purpose of navigation. City of Chicago v. McGinn, 51 Ill. 266; Ensminger v. The People ex rel. City of Cairo, 47 id. 384.
    By the common law,' which prevails in this State, it is well settled -that grants of land bounded on rivers or upon their margins, above tide water, carry to the grantee the exclusive right and title to the centre of the stream, unless the terms of the grant clearly denote the intention to stop at the edge of the river. Braxon et al. v. Bressler, 64 Ill. 488; Canal Trustees v. Havens, 11 id. 554; The City of Chicago v. Laflin et al. 49 id. 172; The Chicago and Pacific R. R. Co. v. Stein,
      75 id". 41; Middleton v. Pritchard, 3 Scam. 510; Houck v. Yates, 82 Ill. 179.
    And when the riparian proprietor has the title to land on both sides of the stream, he is the owner of the whole of the bed thereof, subject to the public right of navigation. Angelí on Water Courses, (7th ed.) p. 14, sec. 10; Olson v. Merrill, 42 Wis. 203.
    The same rule adopted by our courts prevails in other States. Brown v. Chadbourne, 31 Maine, 9; Lorman v. Benson, 8 Mich. 18; Adams v. Pease, 2 Conn. 481; Stover v. Freeman, 6 Mass. 439; Marnier v. Shulte, 13 Wis. 692; Claremont v. Carleton, 2 N. H. 369; Commissioners v. Withers, 29 Miss. 29; Gavit v. Chambers, 3 Ohio, 495; The State v. Pottmeyer, 33 Ind. 402; Morgan v. Livingston, 6 Martin, (La.) 216; Barry v. Snyder, 3 Bush, (Ky.) 266.
    As to the rights of riparian proprietors to the use of the flowing water, to fish therein, etc., counsel cited Agawam Canal Co. v. Edwards, 36 Conn. 476; Angell on Water Courses, (7th ed.) 70, 73; Hart v. Hill, 1 Whart. 138; Coolidge v. Williams, 4 Mass. 140; Beckman v. Kramer, 43 Ill. 447.
    That a riparian proprietor owns the soil of the stream, subject to the public easement, the same as in the case of an ordinary highway, see Cook v. Green, 11 Price, 736; Sir John Lade v. Shepherd, 2 Str. 1004; Stevens v. Whistler, 11 East, 51; Makepeace v. Worden, 1 N. H. 16; Babcock v. Lamb et al. 1 Cow. 238.
    That such proprietor is entitled to all accretions and alluvions, counsel cited the following authorities: Angell on Water Courses, (7th ed.) 68; Ingraham v. Wilkinson, 7 Pick. 268; Berry v. Snyder, 3 Bush, 266; Lovingston v. County of St. Clair, 64 Ill. 56; Adams v. Frotheringham, 3 Mass. 363 ; Ex parte Jennings, 6 Cow. 518; Deerfield v. Arms, 17 Pick. 41; Middleton v. Pritchard, 3 Scam. 510.
    The principle governing accretions is applicable to the addition of ice formed over the bed of the stream.

      That ice is a commodity and property, see State v. Pottmeyer, 33 Ind. 402; Myer v. Whittaker, 55 How. Pr. R. 376; Mill River Woolen Mill Co. v. Smith, 34 Conn. 462.
    As to the measure of damages, counsel cited Illinois and St. Louis R. R. and Coal Co. v. Ogle, 92 Ill. 53; McLean Coal Co. v. Lennon, 91 id. 561; Illinois and St. Louis R. R. and Coal Co. v. Ogle, 82 Ill. 627; McLean Coal Co. v. Long, 81 Ill. 359; Robertson v. Jones, 71 Ill. 405.
    As to appellee’s right to maintain trespass quatre clausum fregit, the court is referred to Cox v. Glue, 5 C. B. 533; Smith v. Royston, 8 M. & W. 381; Wilcox v. Kinzie, 3 Scam. 218.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action of trespass quare clausum fregit, brought in the circuit court of Cook county by Shortall, against the Washington Ice Company, for cutting, removing and appropriating, in January and February, 1879, a quantity of ice which had formed over the bed of the Calumet river, within the limits of plaintiff’s land, in Cook county. Defendant pleaded the general issue, and liberum tenementum. A verdict and judgment were rendered in favor of plaintiff for $562.40, which judgment, on appeal "to the Appellate Court for the First District, was affirmed, and defendant appealed to this court.

On the trial, the patent from the United States to Lafrombois and Decant was introduced in evidence, showing that there was no restriction or reservation by the government, and that the locus in quo was embraced in the 125t871q- acres the patent conveyed. Under this patent plaintiff derived title.

From the evidence it appears that the call of 125T3^- acres contained in the patent required that the bed of the river should be included to make that quantity; that the Calumet river, extending from Lake Michigan westward past the plaintiff’s premises, where it is between 165 and 200 feet wide, is in fact a navigable river; that the defendant company owned ice-houses on its own property on the next lot east of plaintiff’s, and that in operating on the ice it did not go on the plaintiff’s land, save as it entered upon the ice; that it first gathered the ice in front of its own land from the river, and then commenced to take the ice opposite the plaintiff’s premises.

The court, at plaintiff’s request, instructed the jury that the plaintiff was the owner of the whole bed of the river flowing through his premises; that when the water became congealed, the ice attaching to the soil constituted a part thereof, and belonged to the owner of the bed of the stream, and that he could maintain trespass for the wrongful entry and taking the ice; and that the measure of damages, in case of a finding for plaintiff, would be the value of the ice as soon as it existed as a chattel—that is, as soon as it had been scraped, plowed, sawed, cut and severed, and ready for removal. Defendant excepted to the giving of such instructiqn, and asked the court to instruct the jury that a riparian owner on the banks of a river, navigable in fact, has no property in the ice formed in the midst of the stream, where he has done nothing to pond or separate it; but that any person might, as against such riparian owner, where he could gain access without passing over the shore or banks of the owner, enter upon the ice and remove the same, without cause of action or damage to such riparian owner, and that if such access as above stated had been gained, then at most, plaintiff could recover but nominal damages, even if the action of trespass be sustained,—which was refused, and defendant excepted. The giving and refusing of instructions is assigned as error.

It may be well to inquire, first, whether plaintiff, as riparian proprietor on both sides of the Calumet river, is the owner of the bed of the stream within the limits of his land. By the common law, only arms of the sea, and streams where the tide ebbs and flows, are regarded navigable. The stream above the tide, although it may be navigable in fact, belongs to the riparian proprietors on each side of it to its centre, and the only right the public has therein is an easement for the purpose of navigation. Chancellor Kent, in his Commentaries, declares it as settled that grants of land bounded on rivers or upon their margins, above tide water, carry the exclusive right and title of the grantee to the centre of the stream, subject to the-easement of navigation, unless the terms of the grant clearly denote the intention to stop at the edge or margin of the river. If the same person be the owner on both sides of the river, he owns the whole river to the extent of the length of his lands úpon it. 3 Comm. 427, 428, Marg. And this title to the middle of the stream includes the water, the bed, and all islands. 2 Hilliard on Beal Prop. 92; Angelí on Water Courses, sec. 5.

This rule of the common law has been adopted in this State,, and is here the settled doctrine. It was so held in Middleton v. Pritchard, 3 Scam. 510, and Houck v. Yates, 82 Ill. 179, with regard to the Mississippi river where it bounds this State; in Braxon v. Bressler, 64 Ill. 488, as to Rock river; City of Chicago v. Laflin, 49 Ill. 172, and City of Chicago v. McGinn, 51 Ill. 266, in regard to the Chicago river.

The Calumet river then being non-tidal, and plaintiff owning lands on both sides of it, he is the owner of the whole of the bed of the stream to the extent of the length of his lands upon it.

The next question respects the ownership of ice formed over the bed of the river passing through the land. It is objected by defendant that water in a running stream is not the property of any man,—that no proprietor has a property in the water itself, but 'a simple usufruct while it passes along; but manifestly different considerations apply to water in a running stream when in a liquid state and when frozen.

In Agawam Canal Co. v. Edwards, 36 Conn. 497, it is said: “The principle contained in the maxim, ‘cujus est solum ejus est usque ad caelum, ’ gives to a riparian owner an interest in a stream which runs over his land. But it is not a title to the water,—it is a usufruct merely,—a right to use it while passing over the land. The same right pertains to the land of every other riparian proprietor on the same stream and its tributaries; and as each has a similar and equal usufructuary right, the common interest requires that the right should be exercised and enjoyed by each in such a reasonable manner as not to injure unnecessarily the right of any other owner, above or below. ”

In Elliott v. Fitchburg Baibvad Co. 10 Cush. 191, Shaw, Ch. J., says: “The right to flowing water is now well settled to be a right incident to property in the land,—it is a right publici juris, of such character that whilst it is common and equal to all through whose land it runs, and no one can obstruct or divert it, yet as one of the beneficial gifts of Providence each proprietor has a right to a just and reasonable use of it as it passes through his land; and so long as it is not wholly obstructed or diverted, or no larger appropriation of the water running through it is made than a just and reasonable use, it can not be said to be wrongful or injurious to a proprietor lower down. * * * Still, the rule is the same, that each proprietor has a right to the reasonable use of it for his own benefit, for domestic use, and for manufacturing and agricultural purposes.”

In Rex v. Wharton, 12 Mod. 510, Holt, Ch. J., says: “If a river run contiguously between the land of two persons, each of them is, of common right, owner of that part of the river which is next his land. ”

Hilliard states that a water course is regarded in law as a part of the land over which it flows. 2 Hilliard on Beal Prop. 100,

It will thus he seen that the riparian, owner, as such, has rights with respect to water in a running stream,—he has a right of use, which right authorizes the actual taking of a reasonable quantity of the water for his purposes. The limitation in extent of the use of the water is, that it shall not interfere with the public right of navigation, nor in a substantial degree diminish and impair the right of use of the water by a lower or upper proprietor as it passes along his land. The only opposing rights are such rights of the'public, and such upper and lower proprietors. But when the water becomes congealed, and is in that state, these opposite rights are in nowise concerned. The ice may be used and appropriated without detriment to the right of navigation by the public, or to other riparian owners’ right of use of the water of the stream when flowing over their land. The just and reasonable use of the water which belongs to the riparian proprietor would be, in such case of congealed state of the water, the unlimited use and appropriation of the ice by him, as it would be no interference with rights of others. We 'are of opinion there is such latter right of use, and that it should be held property, of which the riparian owner can not be deprived by a mere wrongdoer. When water has congealed and become attached to the soil, why should it not, like any other accession, be considered part of the realty? Wherein, in this regard, should the addition of ice formed over the bed of a stream be viewed differently from alluvion, which is the addition made to land by the washing of the sea or rivers ? And we do not perceive why there is not as much reason to allow to the riparian owner the same right to take ice as to ' take fish, which latter is an exclusive right in such owner.'

In McFarlin v. Essex Co. 10 Cush. 309, Shaw, Ch. J., remarked : “ It is now perfectly well established as the law of this Commonwealth, that in all waters not navigable in the ■ common law sense of the term,—that is, in all waters above the flow of the tide,—the right of fishery is in the owner of the soil upon which it is carried on, and in such rivers that the right of soil is in the owner of the land bounding upon it. If the same person owns the land on both sides, the property in the soil is wholly in him, subject to certain duties to the public; and if different persons own the land on opposite sides, each is proprietor of the soil under the water to the middle or thread of the river. ”

The riparian proprietor has the sole right, unless he has granted it, to fish with nets or seines in connection with his own land. Angelí on Water Courses, sec. 67.

In Adams v. Pease, 2 Conn. 481, it was held that the owners of land adjoining the Connecticut river above the flowing and ebbing of the tide, have an exclusive right of fishery opposite to their land, to the middle of the river; and that the public have an easement in the river as a highway, for passing and repassing with every kind of water craft. So, too, sea-weed thrown upon the shore belongs to the owner of the soil upon which it is east. Emans v. Turnbull, 2 Johns. 313.

The exclusive right in the owner to take the ice formed over his land, is an analogous right to those other ones which are acknowledged to exist in the subjects which have been mentioned, and may with like propriety be recognized. It is connected with and in the nature of an accession to the land, being an increment arising from formation over it, and belonging to the land properly, as being included in it in its indefinite extent upwards.

Ice, from its general use, has come to be a merchantable commodity of value, and the traffic in it a quite important business. It would not be in the interest of peace and good order, nor consist with legal policy, that such an article should be held a thing of common right, and be left the subject of general scramble, leading to acts of force and violence. In reference to the rule which we here adopt, of assigning to the owner of the bed of a stream property in the ice which forms over it, we may well use, as fitly applying, the language of Hosmeb, J., in Adams v. Pease, supra, in speaking of the common law rule as to the right of fishery, viz: “The doctrine of the common law, as I have stated it, promotes the grand ends of civil society, by pursuing that wise and orderly maxim of assigning to everything capable of ownership a legal and determinate owner. ”

The views we hold are in accordance with the holding in The State v. Pottmeyer, 33 Ind. 402, that when the water of a flowing stream running in its natural channel is congealed, the ice attached to the soil constitutes a part of the land, and belongs to the owner of the bed of the stream, and he has the right to prevent its removal. See further, relative to the subject, Myer v. Whitaker, 55 How. Pr. Rep. 376; Lorman v. Benson, 8 Mich. 18; Mill River Woolen Manufacturing Co. v. Smith, 34 Conn. 462; Brown v. Brown, 30 N. Y. 519.

Defendant claims that it committed no trespass in taking the ice, because the ice in the midst of a stream navigable in fact, is naturally an obstruction to -navigation, and that any one has the right, having obtained access independent of the riparian owner, to enter upon the ice and remove it. We said in Braxon v. Bressler, above cited: “Where the .river is navigable, the public have an easement or a right of passage upon it as a highway, but not the right to remove the rock, gravel or soil, except as necessary to the enjoyment of the easement. ” The same is to be said as to the ice here. But it was not removed as necessary for the enjoyment of the public easement of navigation,—it was for the purpose only of the appropriation of it for defendant’s gain.

As to the instruction as to the measure of damages, we think the case is analogous to those where coal is taken from the soil, and that the instruction is sustained by former decisions of this court in those eases. Illinois and St. Louis R. R. and Coal Co. v. Ogle, 92 Ill. 353; McLean County Coal Co. v. Lennon, 91 id. 561; Illinois and St. Louis R. R. and Coal Co. v. Ogle, 82 id. 627; McLean County Coal Co. v. Long, 81 id. 359; Robertson v. Jones, 71 id. 405.

Perceiving no error in the giving or refusing of instructions by the circuit court, the judgment of the Appellate Court is affirmed.

Judgment affirmed.

      As to the right of fishery in this State, in riparian proprietors, see Beckman v. Kreamer, 43 Ill. 447, and cases there cited.