author: Mr. Justice Scott

text:
    ■ William Buttenuth et al. v. The St. Louis Bridge Company.

      Filed at Mt. Vernon January 20, 1888.

    1. Taxation—over-valuation—remedy—misleading statements of assessor. Where an excessive assessment of property for taxation is the result of a mere honest error in judgment on the part of the assessor making the same, a court of chancery has no jurisdiction to afford the party aggrieved any relief.
    2. The statute affords a party aggrieved the only remedy for an excessive valuation of his property for the purposes of taxation, unless it is fraudulently assessed too high. If the assessment is completed before that time, the application to reduce the same must be made, under the 86th section of the Bevenue act, to the town board on the fourth Monday of June.
    3. If the party assessed is told by the assessor, about the time such board meets, that he has not completed his assessment, and is thus misled, and prevented from appearing before that board, he should apply for relief to the county board under the 97th section of the Bevenue law, and show, by explicit evidence, a good reason for not having applied to the town board.
    4. Proof of the statement of the assessor that the assessment was made after the fourth Monday in June, made in a casual conversation, when not engaged in any official act relating to the assessment, is not competent evidence to prove when the assessment was in fact made or completed, and will not excuse a'party assessed from making application to the town board of review.
    5. Where a party aggrieved by an over-valuation of his property by the local assessor for taxation, fails to apply to the town board of review for a reduction at the proper time, the assessment then being completed, and no good reason is shown for such failure, this will justify the county board in refusing to grant him relief, and having lost his legal remedy, he can have no relief in a court of equity, except where the assessment is fraudulently made too high.
    6. State boundaby—ari/oer the boimdar'J between States—as, Illinois and Missouri. Where a river is declared to be the boundary between States, although it may imperceptibly change from natural causes, the river, “as it runs, continues to be the boundary. But if it should suddenly change its course or desert the original channel, the boundary remains in the middle of the deserted river bed.”
    7. Where a river is the boundary between States, as is the Mississippi between Illinois and Missouri, it is the main—the permanent—river which constitutes the boundary, and not that part which flows in seasons of high water and is dry at other times. The middle of the main channel of the river between States or countries will be regarded as the boundary line between them, in the absence of express agreement to the contrary.
    8. When applied to rivers as boundaries between States, the phrases, “middle of the river,” and “middle of the main channel,” are equivalent expressions, and both mean the center line of the main channel,—or, as it is most frequently expressed, the “thread of the stream.”
    9. By the acts of Congress fixing the boundaries of Illinois and Missouri, the middle of the main channel of the Mississippi river is the boundary line between the States, and that is the thread of the main stream. Where there are several channels, the middle of the principal one is the boundary.'
    10. Same—St. Louis bridge—what part within the jurisdiction of this State—for purposes of taxation. All that part of the St. Louis bridge, with its approaches, that lies east of the middle line of the main channel of the Mississippi river, is within the jurisdiction of the State of Illinois, ' for the purposes of State and local taxation.
    Appeal from the Circuit Court of St. Clair county; the Hon. W. H. Snyder, Judge, presiding.
    Mr. B. D. W. Holder, State’s Attorney, Mr. Bobert A. Halbert, and Mr. L. D. Turner, for the appellants:
    It was the official duty of the assessor to fix the value of the appellee’s property. Glass Co. v. McCaleb, 81 Ill. 556; Life Ins. Co. v. Pollak, 75 id. 292; Railroad Co. v. Surrell, 88 id. 535.
    The remedy for an-unjust or excessive assessment was by complaint to the proper boards of review. Rev. Stat. chap. 120, secs. 86, 97; Cooley on Taxation, 528; Felsenthal v. Johnson, 104 Ill. 21; Camp v. Simpson, 118 id. 224.

      Equity may interfere for fraud, but has no jurisdiction to correct a merely unequal or unjust assessment, when there is a legal board that may do so. Cooley on Taxation, 181, 182, 525; Humphreys v. Nelson, 115 Ill. 45; Mix v. People, 116 id. 265; Railway Co. v. Stookey, 119 id. 182; Railroad Co. v. Hodges, 113 id. 323.
    Even if other property had been omitted, or assessed too low, that gave no right to equitable relief. 1 High on Injunctions, sec. 490; State Railroad Tax Cases, 92 U. S. 575.
    The main channel of the Mississippi river has always been west of Bloody Island. 1 Wharton on Evidence, sec. 339; People v. St. Louis, 5 Gilm. 367; Lovingston v. St. Clair County, 64 Ill. 56; St. Clair County v. Lovingston, 23 Wall. 68.
    The rule of property in this State as to riparian proprietors on rivers not navigable in law, is, that they hold the soil to the center of the stream or river. Middleton v. Pritchard, 3 Scam. 510; Chicago v. Laflin, 49 Ill. 175; Railroad Co. v. Stein, 75 id. 206; Braxon v. Bressler, 64 id. 490; Chicago v. McGinn, 51 id. 266; Cobb v. Lavalle, 89 id. 330.
    If an unnavigable stream, in which the title of the riparian owners extends ad Jilum aqua, slowly and imperceptibly changes its course, the boundary line is at the center of the new channel ; but if the change is violent and visible, and arises from a known cause, such as a freshet, or a cut through which a new channel is formed, the original thread of the stream continues to mark the limits between the two estates. 6 G-ould on Waters, sec. 159, and authorities cited in notes 4 and 5; Bonewits v. Wygant, 75 Ind. 41.
    It is as though the Mississippi had left the main channel in 1847, and flowed entirely between Bloody Island and the mainland in Illinois. Bloody Island would have remained in Illinois, notwithstanding the main channel of the river had changed. Or should the river break through the slough which separated the island mentioned in Middleton v. Pritchard, supra, or in Houck v. Yates, 82 Ill. 181, the property in the islands would not be affected by the river abandoning the old channel and forming a new channel.
    The rule undoubtedly is, that if a boundary river between States forms a new and distinct channel, the jurisdiction of the States is not affected; but any gradual accretion of land belongs to the State which owns the bank to which it is added. Gould on Waters, sec. 159.
    When a stream, being the boundary between States, alters its channel by a gradual process of wear, the boundary shifts with the channel; but if it changes it violently and visibly by making'a “cut off,” the boundary adheres to the abandoned channel. Collins v. State, 3 Texas Ct. of App. 323.
    The controversy, in all the cases which we have been able to find, has been in the case of a sudden and perceptible change, or where the river has abandoned the old channel and formed a new one. This was the case in Holbrook v. Morse, 4 Neb. 437; Moss v. Gibbs, 10 Heisk. 283; State v. Young, 46 Vt. 565.
    Messrs. G. & G. A. Koerner, for the appellee:
    When fraud is charged in the assessment of property, equity may interfere. Cooley on Taxation, 157, 525, 547; Ottawa v. Walker, 21 Ill. 608; Chicago v. Burtice, 24 id. 489; Metz v. Anderson, 23 id. 463; Elliott v. Chicago, 48 id. 294; Insurance Co. v. Pollak, 75 id. 292; Porter v. Railroad Co. 76 id. 561; Railroad Co. v. Hodges, 113 id. 323; Lefferts v. Calumet, 21 Wis. *688; Iron Co. v. Hubbert, 29 id. 51; Merrill v. Humphreys, 24 Mich. 170; Railway Co. v. Supervisors, 44 id. 240.
    The middle line of the Mississippi river can not be construed into a line in the middle of the main channel or main current. The main channel must have been originally, and is now in many places above and" below St. Louis, on the Hlinois shore.
    The central line in the hed of the river parallel and equally distant from each shore, is the boundary line between the States. Missouri v. Kentucky, 11 Wall. 401.
   Mr. Justice Scott

delivered the opinion of the Court:

It is alleged complainant-, the “St.Louis Bridge Company,” is the legal successor of the “Illinois and St. Louis Bridge Company,” which was incorporated in 1868, and which constructed a bridge over the Mississippi river from Bast St. Louis to St. Louis. The work was completed on the 4th day of July, 1874, and from that time'on the bridge was operated by the original corporation until September 20, 1878, when it was sold, under a decree of court, and passed to complainant, and has since been operated and controlled by it. Only two persons are named as defendants,—one is William Buttenuth, the assessor for the year 1885 for the town in which the property is situated, and the other is Philip Rhein, who was then county clerk of the county in which the property is situated. Two principal grounds of relief are relied upon: First, that complainant’s property was assessed so high in proportion to other property in the town, that it was a fraud on its rights, and was oppressive; and second, that a portion of the bridge that was in fact within the State of Missouri, was assessed to complainant by the local assessor as property situated in this. State. The bill contains other matters of complaint of a less serious nature, some of which may be noticed further on. The specific prayer of the bill is, the assessment may be set aside, and that defendant Rhein, the county clerk, be enjoined and restrained from extending any taxes on the assessment made on complainant’s property. Although the answers of defendants are not under oath, they make the distinct issue complainant’s remedy for alleged grievances, if any existed, was at law, and not in chancery. It is alleged the town board was in session on the fourth Monday of June, 1885, and that although the assessment was completed before that time, no one appeared on behalf of complainant to complain its property was assessed too high, or otherwise wrongfully assessed. It is also alleged complainant did appear before the county board and claimed that its property was assessed too high. The complaint was not considered, perhaps for the reason it was not made to appear'the assessment was made after the fourth Monday of June, 1885. On the final hearing, the court found the assessment complained of was so grossly disproportionate to the valuation of other property in the township, and so excessive, as to amount to a fraud on complainant; and the court further found that part of the bridge structure,—that is to say, all of that part that lies west of the easternmost pier of the bridge,—is outside of the limits of the State of Illinois, and was illegally assessed and included in the assessment with that part of the bridge which is within the limits of the State of Illinois. It was therefore ordered and decreed by the court that the assessment of complainant’s property so made by defendant Buttenuth, be set aside and declared hull and void, and that the temporary injunction previously granted, enjoining the defendant Bhein “from extending the said taxes against said property, and from certifying the said taxes to be collected, to the collector of the township, or issuing his warrant for the said taxes to be collected upon said assessment, be made perpetual, and that the said defendant Buttenuth pay the costs of said suit.”

It is so obvious, the proposition needs no discussion, where the excessive valuation complained of is the result of a mere honest error in judgment on the part of the assessor making the assessment, chancery has no jurisdiction to afford the party aggrieved any relief. This court has expressly decided in English v. People, 96 Ill. 566, the statute affords the party aggrieved the only remedy for the correction of an excessive valuation of his property for the purposes of taxation, unless it is fraudulently assessed too high. When the assessment is completed before that time, the application must be made to the town hoard, under the provisions of the 86th section of the Revenue law, (Rev. Stat. 1874,) on the fourth Monday of June. In this case it appears the town board was in session on the fourth Monday of June, in the year complainant’s property was assessed, but no complaint was made to it, on behalf of complainant, that its property was assessed too high, or otherwise illegally assessed.

It is said complainant was misled by the answer of the assessor, in response to an inquiry concerning the assessment made, about the time the town board would meet, that he had not completed the assessment, and for that reason no application was made to the town board. Conceding that to be so, then the application for relief should have been made to the county board, under the 97th section of the Revenue law. Application was made to the county board under the latter section of the statute. Counsel for the bridge company was heard before the county board, and the matter was referred to an appropriate committee. That committee reported: “It is claimed by the attorneys of said bridge company that the Rlinois side of said bridge was assessed after the fourth Monday of June, but no further evidence having been produced, your committee does not recommend any action in the matter.” It seems counsel for the bridge company was again heard in regard to the assessment of its property for the year 1885, but the report was adopted. Conceding, as it is thought must be done, there was no satisfactory evidence the assessment was made after the fourth Monday of June, the county board very properly refused to take jurisdiction of the matter. There should have been explicit proof the assessment was made after the fourth Monday of June, and it seems the assessor himself would be the proper party by whom to prove that jurisdictional fact. Proof of his statement as to that fact, made in a casual conversation, when he was not engaged in any official act in relation to such assessment, is not competent evidence to prove when the assessment was in fact made or completed, and did not excuse complainant from making application to the town board when in session, as it was at the time designated in the statute. Omitting to make application then to the town board, at its regular session, at the appointed time, complainant lost all remedy, under the statute, for relief against the alleged excessive valuation of its property for taxation.

But it is alleged in the bill the assessment was fraudulent, and it is upon that ground it is suggested the jurisdiction of a court of chancery rests to afford the relief demanded. Should it be made to appear the assessment was fraudulent, in fact or in law, no doubt a court of equity would set it aside, on the principle fraud vitiates everything it touches, and equity will permit nothing to stand that is tainted with fraud, either in private or public transactions. But is it shown the assessment is fraudulent, either in fact or in law ? It is thought it is not. No misconduct is imputed to the assessor in connection with the assessment, except that he promised to visit the office of the company before making it, to hear the suggestions of the company’s officers as to facts that would materially affect the amount of the assessment, but it is alleged he failed to keep his promise in that regard. The assessor was under no legal obligation to call upon the officers of the company for information in regard to his duty in making the assessment of its property, nor is it insisted he was. The office of the company was located in St. Louis, out of this State, and it would seem if its officers had any facts to communicate to the assessor that would be at all likely to affect the assessment favorably for the company, it was their privilege to go to his office, and there lay them before him for his consideration. Because the assessor did not call at the company’s office, affords no just grounds for complaint, and the charge he omitted to do so does not aid, in the slightest degree, complainant’s demand for equitable relief.

The court found, by its decree, the assessment complained of was so grossly disproportionate to the assessment of other property in the town, and was so excessive in amount, as to be a fraud upon complainant. Is this finding of the court sustained by the evidence submitted at the hearing ? It can hardly be said it is. On this branch of the ease the evidence is very unsatisfactory. There are witnesses who state, in a general way, it is then: opinion the bridge property is assessed proportionately much higher than other property in the town; but upon what facts their judgments in that respect are based, does not appear with any distinctness. As compared with the valuation placed by the assessor upon all other property within the town, it was their judgment the valuation of the bridge property was much too high. It should not be forgotten the local assessor does not assess railroad property, of which there is a very large amount in that town, and when the value of all railroad property is added to that fixed by the assessor on other property, no witness ventures to state the valuation of the bridge property would be disproportionate to the aggregate valuation of the entire property of the town. It is shown the valuation placed on the property of complainant is less than the average valuation since 1875, including that year. In some years it was much higher, and in others less. In 1875 the assessed value was $1,900,000, and in 1876 it was the same, while in 1885, of which complaint is made, the assessed value was $1,100,000. On the whole evidence considered, it does not appear the valuation placed upon complainant’s property is so much higher in proportion to that placed on other property in the town, it is fraudulent for that reason. Nor does it appear, from anything contained in this record, the assessment is excessive in itself. There is no evidence of the value of that part of the bridge and its approaches subject to taxation in this State, and without evidence of its value it can not be declared, as a matter of fact, the present valuation is excessive to that degree it is fraudulent in law.

The remaining ground of relief insisted upon is, that part of the bridge structure which lies west of its easternmost pier is outside of the State of Illinois, and was illegally assessed and included in the assessment with that part which is confessedly within the limits of the State. On this branch of the case some evidence was offered, and some discussion has been had as to the boundary line between the States of Missouri and Illinois at the point were the bridge structure spans the Mississippi river. That question is certainly one of great gravity, and one this court will hardly undertake to determine definitely on the meagre evidence to be found in this record, and in a case where neither State is represented, and where there are no defendants other than private citizens, neither of whom had the slightest personal interest in the matter., The utmost this court will assume to decide is, what part of complainant’s bridge is to be regarded as within the State of Illinois for the purposes of taxation, or, what is the same thing, does the valuation of complainant’s property, as made by the assessor for 1885, include any portion of the bridge not subject to taxation in this State.

It is certain no part of that portion of the bridge structure assessed by the local assessor for taxation in this State is in the State of Missouri, nor does'it appear that it was ever subject to taxation in that State. In the act of Congress, March 6,1820, (U. S. Stat. at Large, p. 545,) to enable the territory of Missouri to form a constitution, in fixing the boundaries it is declared, “thence due east to the middle of the main channel of the Mississippi river, thence down and following the course of the Mississippi river, in the middle of the main channel thereof.” The State of Missouri, by its constitution of 1820, ratified the boundaries as fixed by the enabling act of Congress, and there can be no pretense the eastern boundary of the State has since been changed. The constitution of 18V5, of that State, simply ratified and confirmed the boundaries of the State as established by law. Notwithstanding the fact the main channel of the river might be changed by imperceptible natural wear on one side, or by gradual formation of alluvions, still “the middle of the main channel,” when ascertained, would be the boundary of the State. It might be a slightly shifting line, hardly perceptible; still it would be a well-known and easily ascertainable boundary line. The rule of law is, when a stream dividing co-terminous States, being a boundary line, alters its channel by a gradual or imperceptible process of wear or of alluvions, the boundary shifts with the channel. No matter what conclusion might be reached as to the western boundary of Illinois, it can not be maintained the eastern boundary of the State of Missouri is farther east than the “middle of the main channel” of the Mississippi at the point where the bridge structure spans that river. It is not alleged in the bill, nor claimed in argument, any portion of the bridge assessed by the local assessor in this State lies west of the “middle of the main channel” of the river. It would seem to follow, therefore, if that portion of the bridge included in the assessment that lies between the eastern pier of the bridge and the “middle of the main channel” of the river, is not within the limits of the State of Illinois, it is not included within the defined boundaries of either State. That conclusion will hardly be adopted, unless the question will admit of no other solution.

The act of Congress of April 18,1818, to enable the people of the territory of Illinois to form a State constitution, fixed the western boundary at the “middle of the Mississippi river,” and declared the State should have concurrent “jurisdiction on the Mississippi river with any State or States to be formed west thereof, so far as said river shall form a common boundary to both.” By the constitution of 1818, the people ratified the boundaries fixed for the State by the enabling act of Congress, and in the constitutions of 1848 and of 1870 the same boundaries and jurisdiction are declared, except in the two last constitutions it is provided “this State shall exercise such jurisdiction upon the Ohio river as she is now entitled to, or such as may be agreed upon by this State and the State of Kentucky.” It seems clear, from all legislation and ordinances on this subject, it was intended the Mississippi river should constitute “a common boundary” between the State of Illinois and any State or States that might be formed to the west and next to that river. That intention is more definitely declared than it was in regard to the Ohio river, for in fixing the boundary of Illinois, when the line down along the middle of the Mississippi river should reach the confluence of that river with the Ohio, the boundary should be from thence up the latter river “along its north-western shore,” and yet it has been held the river is the boundary between States divided by the Ohio river, although the original proprietor, in granting the territory, retained the river within its own domain. The law, as stated by law-writers, and in the adjudged cases, seems to be, that where a river is declared to be the boundary between States, although it may change imperceptibly, from natural causes, the river, “as it runs, continues to be the boundary.” But if the river should suddenly change its course, or desert the original channel, the rule of law is, the boundary remains in the middle of the deserted river bed. Where a river is a boundary between States, as is the Mississippi between Illinois and Missouri, it is the main—the permanent—river which constitutes the boundary, and not that part which flows in seasons of high water, and is dry at other times. (Handley’s Lessee v. Anthony, 5 Wheat. 174.) In no other way would a river be a permanent fixed boundary, at all times readily ascertainable. There are many cogent reasons why the boundary lines between States should be permanent, otherwise territory in one State at one time, sooner or later might be in another State. It must be in one State all the time, or else the State would lose jurisdiction over it.

Treating, then, as must be done, the Mississippi river as a common boundary between the States of Illinois and Missouri, what meaning is to be given to the term, “middle of the Mississippi river,” used in the enabling act of Congress and in the constitution, defining the boundaries of the State of Illinois ? Whether, when mere private rights are involved, the phrases the “middle of the river,” and the “middle of the main channel,” or, what is the same thing, the “thread of the stream,” mean the same thing, and may be interchangeably used, there are many considerations affecting the public welfare why it should be held the “middle of the channel” of a river between independent States or countries should be regarded as the boundary line between them, in the absence of express agreement to the contrary. When applied to rivers as boundaries between States, the phrases, “middle of the river,” and “middle of the main channel,” are equivalent expressions, and both mean the center line of the main channel,—or, as it is most frequently expressed, the “thread of the stream.” Should the expression, “middle of the river,” be construed to mean a line midway of the water surface, that would give no permanent boundary that could be ascertained. It would be at one point at one time, and distant away at another. Had the boundaries of Illinois been fixed at the time of the high water in 1844, and the middle of the river opposite St. Louis be held to be a line midway of the surface of the water, that line would then have been far east of the present city of Bast St. Louis, and on the waters receding, it would have shifted back towards the west, nearer the city of St. Louis. So unsatisfactory a proposition as that will not be adopted. It would lead to insurmountable difficulties. Some light will be cast upon the subject of inquiry by first ascertaining, as near as may be, the meaning of the words, “main channel,” “mid-channel,” “middle of the current,” as those terms are used in the adjudged cases and in the text books that shall be examined.

The definition of the word “channel,” given in the most recent edition of Webster’s Dictionary, is, “the bed of a stream of water; especially the deeper part of a river or bay where the main current flows.” The case of Dunleith and Dubuque Bridge Co. v. County of Dubuque, 55 Iowa, 558, while this court does not approve the decision of the case, contains a very accurate definition of the word “channel,” as commonly used by river men. It is, “the word channel, when employed in treating subjects connected with the navigation of rivers, indicates the line of the deep water which vessels follow.” In Rowe v. Smith, 51 Conn. 266, it is said, “the expression, ‘middle of the channel of the bay or harbor,’ does not refer to the thread of deepest water, but to that space within which ships can and usually do pass.” It is apprehended it is in this sense the expressions, “middle of the river,” “middle of the main channel,” “mid-channel,” “middle thread of the channel,” are used in enabling acts of Congress and in State constitutions establishing State boundaries. It is the free navigation of the river,—when such river constitutes a common boundary, that part on which boats can and do pass, sometimes called “nature’s pathway, ”—that States demand shall be secured to them. When a river, navigable in fact, is taken or agreed upon as the boundary between two nations or States, the utility of the main channel, or, what is the same thing, the navigable part of the river, is too great to admit a supposition that either State intended to surrender to the State or nation occupying the opposite shore, the whole of the principal channel or highway for vessels, and thus debar its own vessels the right of passing to and fro for purposes of defence or commerce. That would be to surrender all, or at least the most valuable part, of such river boundary, for the purposes of commerce or other purposes deemed of great value, to independent States or nations.

Construing, then, the phrases, “middle of the Mississippi river,” and the “middle of the main channel of the Mississippi river,” to mean the same thing, both acts of Congress fixing the boundaries of Illinois and Missouri declare the middle of the main channel of the Mississippi river to be the boundary line between the States, and that is the thread of the main stream.

In Thomas v. Hatch, 3 Sumner, 110, Story, J., said: “I consider the law to be clearly settled that a boundary on a stream, on or by a stream, or to a stream, includes the fiats, at least to low water mark, and in many eases to the middle thread of the river.”

A valuable case on this subject is Morgan v. Beading, 3 Sm. & Marsh. 366. The opinion is by Chief Justice Sharkey. Although not directly involved, the discussion, in part, had relation to the boundary line of the State of Mississippi. The facts as stated in the opinion are, that by various treaties and cessions the United States had succeeded to all the territory east of a line drawn along the middle of the Mississippi, above the 31st degree of latitude. Louisiana was then bounded on the east by the same line,—the middle of the river above the river Iberville, as it had been established by the treaty of 1763. In 1798, while the middle of the river was still the boundary line between the province of Louisiana and the United States, Congress established the Mississippi territory, bounding it on the west by the Mississippi. It was in reference to that line the court said, “we have said that Congress omitted to mention the middle of the river, but bounded the territory by the Mississippi.” The common law, by construction, extends grants bounded “by” or “on” or “along” a fresh water stream, to the thread of the stream. The Mississippi territory, by this rule, extended to the middle of the river.

In Handley’s Lessee v. Anthony, supra, it was said by the court: “Where a great river is the boundary between two nations or States, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream.”

Mr. Field, in his work entitled “Outlines of an International Code,” (2d ed.) section 30, in speaking of boundary by stream or channel, says: “The limits of national territory bounded by a river or stream, or by a strait or sound, or arm of the sea, the other shore of which is the territory of another nation, extend outward to a point equi-distant from the territory of the nation occupying the opposite shore, or, if there be a stream or a navigable channel, to the thread of the stream,—that is, to the mid-channel,—or, if there be several channels, to the middle of the principal one.”

In his work on the “Law of Nations,” p.-31, Mr. Poison says: “If the river divides two States, the mid-channel is considered as the boundary line, unless prior occupation has given to the one or the other the right of possession to the whole.”

There are cases in this and other courts, although the discussion had reference directly to riparian rights, and not to boundaries between States, that illustrate this same doctrine. In Fletcher v. Thunder Bay Boom Co. 51 Mich. 277, it was held, the riparian rights of defendant in the case being considered, extended to the thread of the stream,—to the center of the main channel of the river. It was said by this court in Middleton v. Pritchard, 3 Scam. 510, “that all grants bounded upon a river not navigable by the common law, entitled the grantee to all islands lying between the mainland and the center thread of the current.” In Cobb v. Lavalle, 89 Ill. 331, it was said: “It seems to be the settled law of this country, that the owner of land bordering upon a river not navigable at common law, such as the Mississippi river, will be entitled to claim to the center of the current of the stream.” The same doctrine was re-stated in Piper v. Connelly, 108 Ill. 646, where it is said: “The general doctrine that grants of land bounded upon rivers, or the margins above tide water, carry the exclusive right and title of the grantee to the center thread-of the current, -unless the terms of the grant clearly denote the intention to stop at the margin of the river, has been too long established and too firmly adhered to by this court to be now questioned.”

No reason is perceived why the principles here stated should not control the decision of the case being considered. As before remarked, it is manifest it was the intention of Congress the Mississippi river should constitute a “common boundary” between the States of Illinois and Missouri, and had the words the “middle of the Mississippi river,” and the “middle of the main channel,” been omitted in both enabling acts of Congress, still the river itself would be the boundary, and each State would hold to the “middle of the stream,”—that is to say, the middle thread of the stream. The intention in this respect is made most manifest by the fact it must have been and was known to Congress when it passed the enabling act for Missouri, and fixed the boundary at the “middle of the main channel of the Mississippi river,” that the western boundary of Illinois had been fixed “at the middle of the Mississippi river,” and certainly it was not intended to fix two distinct or different boundary lines. That would have left a space not in either State, and no such absurd intention should be imputed to Congress. It was most appropriately said by the court in Morgan v. Reading, supra, in respect to the boundary line as fixed by the act of Congress organizing the territory of Mississippi, which established the “Mississippi river” as the western boundary: “All west of that line,”—that is, the middle of the river,—“was owned by a foreign power, and we can not suppose Congress, under the circumstances, designed to limit the jurisdiction of the territory by the bank of the river.”

The suggestion, Congress, by its enabling acts, may have established one line in the Mississippi river for the eastern boundary for Missouri, and another line, farther east, for the western boundary of Illinois, has nothing, in law or in fact, upon which to rest. The whole legislation on this subject shows, as before remarked, it was the intention of Congress to make the river a “common boundary” between these States, and the expressions used in both enabling acts, although the words used may not be the same, make the middle of the main channel of the permanent river the boundary line. In such cases the principle is as stated by Mr. Woolsey, in his work on International Law, section 58: “Where a navigable river forms the boundary between States, both are presumed to have free use of it, and the dividing line will run in the middle of the channel, unless the contrary is shown by long occupancy or agreement of parties.” Commercial considerations make it imperative, where States or nations are divided by a navigable river, each should hold to the center thread of the main channel or current along which vessels in the carrying trade pass. That is the “channel of commerce,”—not the shallow water of the stream, which, at some seasons of the year, may be impossible of navigation,—upon which each nation or State demands the right to move its products without any interference from the State or nation occupying the opposite shore. So important has this right ever been deemed, it is thought to be embraced in all treaties, cessions, ordinances, statutes and constitutions made, enacted or adopted in regard to the Mississippi river since the Federal government was organized. It was the great desire to secure this important privilege that gave rise to all the efforts on the part of the general government to obtain the control of the Mississippi river from its source to that point where it empties into the gulf and connects with the sea.

It has been often ruled, the intention in such great matters as State boundaries, when clearly manifested by cessions, grants or legislative acts, should control. It is a fact so well known it is not called in question, that so far back as can be known, either from history or tradition, the main channel of the Mississippi river at the point where complainant’s bridge is constructed, was always west of Bloody Island,—that is, between that island and the Missouri shore. Both States have always recognized this fact, and for that reason “Bloody Island,” although the river east of it was in fact, at one time, navigable for shgllow-draft vessels,—certainly in seasons of high water,—was always regarded as being within the limits of the State of Illinois. At one time grave apprehensions were entertained that the main channel of the river might change to the east side of “Bloody Island,” and thus leave the Missouri side; but by the consent of Illinois, expressed by the General Assembly, dykes and other structures were erected at the upper end of the island to keep the main channel on the Missouri side, where it had previously been. Those structures proved efficient, and the main channel of the river now flows where it did since before the boundaries of either State divided by it were established by Congress or declared by State constitutions. It is not claimed, either by the bill or in the evidence, that any part of complainant’s bridge that was assessed by the local assessor lies west of the middle of what has always been the main channel of the river since the States were organized under the acts of Congress, and this court has no hesitation in coming to the conclusion that all of that part of the bridge, with its approaches, that lies east of the middle line of the main channel of the river, is within the jurisdiction of the State of Illinois, for the purposes of State and local taxation. Only that part of the bridge east of the middle of the main channel of the river, as appears from the plat used in making the assessment, was assessed in this case, and that was warranted by law.

The case of Missouri v. Kentucky, 11 Wall. 395, cited by counsel for complainant as being conclusive of the case in hand, has been examined, and it is not perceived it contains anything in conflict with the general views here expressed. Indeed, some of the reasoning in that case has been adopted in this opinion.

The judgment of the circuit court will be reversed, and the cause will be remanded, with directions to that court to dismiss the bill.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Shope

license: Public Domain

text:
    Thomas Knobloch v. Solomon Mueller.

      Filed at Mt. Vernon January 20, 1888.

    1. Chanobey—bill of review—upon what grounds it will lie—and of a bill as to newly discovered matters. The two grounds upon which a bill of review, or bill in the nature of a bill of review, will lie, are errors of law appearing on the face of the decree without further examination of facts, and new fact or facts discovered since the decree, which are material, and which it was impossible for the party to produce at the time the decree passed.
    . 2. Bills containing newly discovered matter are in the nature of original bills, in so far as such new matter presents an issuable fact, and therefore admitting an answer and the formation of an issue; but only so far as it relates to the truth and sufficiency of the alleged new matter, and. its admissibility, for the purpose of affecting and opening the original decree. The purpose of a bill of this character is to procure a reversal, alteration or explanation of the former decree. 0
    3. Same—requisites of a bill of review—the prayer. A bill of review should state the former bill, the proceedings thereon, and the decree rendered by the court, the grievance, under the decree, of the party presenting the bill, and the error of law or new matter discovered upon which it is sought to reverse,' re-open or impeach it. If the former decree has not been carried into execution, the prayer may simply be that the same may be reversed and set aside; if the former decree has been executed, that the decree be reversed, and the complainant be restored to his former condition or status. In bills in the nature of bills of review, instead of praying for the reversal of the former decree the prayer should be that the cause be reheard, in respect to and considering the new matter, at the same time it is reheard upon the original bill, etc.
    4. Same—decree by consent—whether it may be reviewed. A decree entered by consent can not be reversed, set aside or impeached by bill of review, or bill in the nature of a bill of review, except for fraud, unless it be shown that the consent was not in fact given, or something was inserted as by consent that was not consented to.
    5. Same—relief against admissions in ignorance of facts. While it is true that as between the parties and those chargeable with notice, courts of equity will entertain jurisdiction and grant relief, on proper bill filed, from the injurious effects of admissions and confessions of material facts, made in the course of judicial proceedings, in ignorance of the rights of the party making them, when he has been guilty of no negligence, either in the discovery of the fact or in applying to the proper forum for relief, yet such relief can only be granted upon s.uch grounds and for such reasons as would authorize the court to set aside agreements or contracts entered into by the parties.
    6. Same—as to one who has purchased on the faith of a decree of court—how far protected. A party died seized of lands, leaving what purported to be a will, but which was, by decree of the court, set aside. There were two sons and two daughters, who supposed they were the owners, each of an undivided fourth. One of the sons died, having devised what was supposed to be his part of the estate to his brother. On bill for partition, by one of the daughters, a decree was entered by consent, finding the surviving brother entitled to one-half of the father’s lands, and the two sisters each one-fourth. Before partition, the brother bought the interest of one sister, and the decree was modified, giving him three-fourths and the other sister one-fourth, and a partition was made accordingly, and reported, to which report exceptions were filed. Afterward, the sister sold and conveyed, by warranty deed, the undivided one-fourth of the lands for its full value, and the purchase money was all paid, and the exceptions to the report of the commissioners were overruled, and no appeal was taken from the decree approving the partition. About two years after this decree, a prior will of the father was found and probated, which gave all his lands to his two sons. The surviving son then filed his bill setting up the facts, seeking to set aside his sister’s deed as a cloud on his title, but not asking to have the decree set aside: Held, that as the purchaser from the sister had no notice of the defect of the title and had bought on the faith of the decree, the bill would not lie to divest him of his title, as his equity was equal to that of the complainant.
    7. In cases of this sort, no relief will be granted, in equity, injuriously affecting intervening rights acquired in good faith after the rendition of a judgment or decree, and in reliance thereon. Or, as the rule has been differently formulated: where there are circumstances which give rise to an equity, as distinguished from an equitable estate,—as, for example, an equity to set aside a deed for fraud, or to correct it for mistake,—and the purchaser under the instrument maintains the plea of purchase for valuable consideration without notice, the court will not interfere.
    8. Decebe—its conclusiveness. Decrees of courts of chancery in respect of matters within their jurisdiction, are as binding and conclusive upon the parties and their privies as are judgments at law. And a decree by consent, in an amicable suit, has been held to have an additional claim to be considered final.
    Appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.

      George Christian Mueller died March 27, 1870. By his will, dated March 14, 1870, his real estate was devised to his sons, George and Solomon Mueller. The will was admitted to probate,' but afterwards, at the January term, 1871, in- the circuit court of St. Clair county, this instrument was, on bill filed for that purpose, set aside, and declared not to be the will of said deceased. This decree was affirmed by this court. Mueller v. Rebhan, 94 Ill. 142.
    On the 27th day of March, 1879, Catharine Rebhan, one of the heirs-at-law of said George C. Mueller, deceased, filed in the circuit court of St. Clair county her bill for partition of the west half north-west, and the north-east north-west quarter of section 28, township 1 north, range 7 west, alleging the death of said George C. Mueller intestate; that at his death he left him surviving George Mueller and Solomon Mueller, Margarite Reinhardt and complainant Catharine Rebhan, his children and only heirs-at-law, to whom descended, in equal parts, the said lands; that on the death of said ancestor, George and Solomon had taken possession of the land jointly, and received the rents thereof until February 29, 1875, when George died, leaving all his property to Sólomon, by his will duly probated, etc., since when said Solomon has received the rents and profits of said land. The hill alleged that Solomon was the owner in fee of the undivided one-half of said lands, and the complainant and Mrs. Reinhardt were each the owner in fee of the undivided one-fourth part thereof, as tenants in common, and pray for partition of the land, and that Solomon he required to account for the rents and profits, etc. At the February term, 1880, of said court, said bill was taken as confessed as to Mrs. Reinhardt, and Solomon Mueller, and his wife, who was also made a party, filed their answer, admitting the material allegations of the bill, and consenting to partition of said premises according to the prayer thereof. Subsequently, an amended answer and cross-bill were filed, setting up that said Solomon had made lasting and valuable improvements on. the land, etc. On hearing, said defendant Solomon admitted, in open court, the allegations of the bill in respect of the interest of the parties as tenants in common, the death and intestacy of the ancestor, and consented to a decree of partition, and a decree declaring the several interests of the parties, as set up in the bill, as heirs-at-law of said George C. Mueller, deceased, in and to said land, was entered by the court by consent, and commissioners were appointed to make partition accordingly.
    At the May term, 1880, of said court, on proof that- defendant Solomon had purchased the interest of his co-defendant, Margarite Reinhardt, the decree was, on his motion, so changed as to require the commissioners theretofore appointed, to set off to the said Solomon three-fourths, and to the complainant one-fourth, of said land. The issue as to rents and profits and improvements was referred to the master for proofs. At the same term the commissioners filed their report, setting off to the complainant, Mrs. Rebhan, as and for her one-fourth interest in said land, lot 10, as shown in their report, containing forty-eight acres of the land, and set off the residue of said tracts of land to the said Solomon. Exceptions to the report were filed, which were, at the May term, 1881, overruled by the court, and the report approved by decree duly entered. No writ of error was prosecuted or appeal taken from the decree of partition.
    At the February term, 1883, of said court, on hearing of the issues as to rents and profits, a decree was rendered in favor of complainant Rebhan, for $1638.97, from which an appeal was prosecuted to the Appellate Court. On the 8th day of March, 1881, in consideration of $5050, Mrs. Rebhan, and Emil, her husband, by their warranty deed, conveyed the undivided one-fourth part of the premises of which her father died seized, and all their right, title and interest in the whole of said land, to appellant, Thomas Knobloch, reserving, however, her rights to rents and profits theretofore accrued. This deed was filed for record March 10, 1881. At the February term, 1882, appellant brought an action of trespass against said Solomon for alleged trespasses upon said forty-eight acres of land set off to Mrs. Eebhan, and afterwards brought ejectment to recover the same.
    In March or April, 1883, appellee found a paper dated March 9,1855, purporting to be the last will and testament of George Christian Mueller, deceased, in and by which the testator devised all his land to his two sons, George and Solomon, subject to the payment of $1500 to Catharine Eebhan. This will was duly admitted to probate. On July 6, 1883, Solomon Mueller, appellee here, filed in the St. Clair circuit court the present bill against appellant, Catharine Eebhan, Emil Bebhan, Margarite Beinhardt, and Edward Abend, who, prior to the probate of the last will, had been appointed administrator of the estate of said George C. Mueller, deceased, substantially setting up the foregoing facts, and praying that said will (1855) stand as the last will and testament of the said George Christian Mueller; that the deed from Catharine and Emil Eebhan to said Knobloch be set aside, as being a cloud upon complainant’s title; that all proceedings in partition regarding said land, and the stating of an account of rents and profits, now pending in the Appellate Court, and all actions commenced by said Edward Abend, as aforesaid, and by said Knobloch, be no further prosecuted, and that the defendants, their attorneys, agents, etc., be perpetually enjoined from taking any further steps in regard to said actions. An injunction was granted as prayed in the bill.
    Appellant answered, setting up that he had purchased in good faith, and paid $5050 for the interest of Mrs. Eebhan in said land, without any notice of any adverse claim or title, and also setting up that complainant, Solomon, is estopped by the decree of partition, rendered by his consent in open court, from disputing complainant’s title. At the September term, 1885, of said circuit court, a decree was entered perpetually enjoining the prosecution of said suits, and setting aside the deed from Mrs. Bebhan and her husband to appellant, as a cloud on complainant’s title. From this decree appellant, Knobloch, alone appealed.
    Mr. W. G. Kueffner, and Mr. James M. Dill, for the appellant :
    A decree becomes final at the expiration of the term at which it was rendered, and can not afterward be altered or amended, except as to mere matters of form. Hurd v. Goodrich, 59 Ill. 540.
    The amendment of a bill by the introduction of new matter disconnected from the original bill, can not affect any one as lis pendens until allowed and filed. It can not relate back to the filing of the original bill. Bradley v. Luce, 99 Ill. 235; Freeman on Judgments, sec. 199.
    A purchaser ’ pendente lite is one who purchases before decree, and is bound by the result of the pending case upon the pleadings, as they existed at the time of the purchase. (Ellis v. Sisson, 96 Ill. 106.) But such a purchaser is not bound by the result of some other suit, nor by an amendment of the same suit, which introduces new matter disconnected with the original bill. Freeman on Judgments, sec. 199.
    The rule of notice lis pendens does not apply to a purchaser under a decree of foreclosure who is not a party to the record. The law does not require such purchaser to inspect the record, and see that it is free from errors. He only has to see that the court has jurisdiction, and that there is such a judgment or decree, unreversed, as authorizes the sale. Fergus v. Woodworth, 44 Ill. 374.
    A person purchasing land with reference to the filing of a bill by his vendor to foreclose a mortgage given to him by a prior purchaser, buys the same pendente lite, and will be affected by a reversal of the decree of foreclosure; but a purchaser from him after decree of foreclosure, and before writ of error is sued out to reverse the decree, will not be affected by its reversal in the rights acquired by his purchase. Mulvey v. Gibbons, 87 Ill. 368.
    This whole claim,—that the appellant bought pendente lite,— has no meaning in this case. The doctrine does not apply. The whole extent of that doctrine is that a purchaser pendente lite will hold in subservience to the rights of the parties as finally determined in the pending litigation. Alwood v. Mansfield, 59 Ill. 496; 2 Bouvier’s Law Dic. p. 77, sec. 5, (ed. of 1873,) and authorities there cited.
    That the decree of partition was final, see Freeman on Judgments, sec. 30; Johnson v. Everett, 9 Paige, 638; Railroad Co. v. Bradleys, 7 Wall. 575; Myers v. Manny, 63 Ill. 211.
    Title acquired under an erroneous judgment is not divested by a reversal. McJilton v. Love, 13 Ill. 494; McLagan v. Brown, 11 id. 519; Goudy v. Hall, 36 id. 319; Wadhams v. Gay, 73 id. 417; Feaster v. Fleming, 56 id. 460.
    A decree of partition can not be changed, on bill, after the rights of innocent parties have intervened. DeWitt v. Hawkins, 107 Ill. 112.
    A decree by consent can not be set aside on appeal, error or hill of review. Armstrong v. Cooper, 11 Ill. 540; Wadhams v. Gay, 73 id. 434.
    Where a bona fide purchaser,.for a valuable consideration, without notice, is concerned, equity will not interfere to grant relief in favor of a party, although he has acted in ignorance of his title upon a mistake of law. Story’s Eq. Jur. sec. 139.
    In all cases of mistakes in written instruments, courts of equity will interfere only as between the original parties, or those claiming under them in privity, such as personal representatives, heirs, devisees, legatees, assignees, voluntary grantees, judgment creditors, or purchasers from them with notice of the facts. As against bona fide purchasers for a valuable consideration without notice, courts of equity will grant no relief, because they have at least an equal equity to the protection of the court. Story’s Eq. Jur. sec. 165; Lickmon
      v. Wood, 69 Ill. 329; Pomeroy’s Eq. sec. 776; Milmine v. Burnham, 76 Ill. 362; Russell v. Ranson, 76 id. 167; Bent v. Coleman, 89 id. 364.
    Me°ssrs. Gr. & G-. A. Koerner, for the appellee:
    A decree is only final when nothing remains to be done but a ministerial duty, and nothing in the cause is left except to see that the decree is properly executed. Beebe v. Russell, 19 How. 283; Ellis v. Sisson, 96 Ill. 105; Bradley v. Luce, 99 id. 235.
    That appellant was a purchaser pendente lite, see Gilman v. Hamilton, 16 Ill. 225; Talbott v. Bell’s Heirs, 5 B. Mon. 323; Clary v. Marshall’s Heirs, 4 Dana, 99.
    The cases cited by appellant as to the protection of bona fide purchasers involve purchases under judicial sales.
    The fact of a will could not have been shown or made available on appeal or bill of review. The bill might, however, be called an original bill in the nature of a bill of review. At the final hearing no objection as to the nature of the bill was made, and no exception taken to' the decree of the court on that head. That the bill was a proper one, we confine ourselves, .as we do not think the point can properly arise on this record, to a reference to a few authorities in regard to cases where all parties acted under a mistake of facts. Adam’s Eq. 416, 419, 420, side page 1; Story’s Eq. sec. 190; Bispham’s Principles of Equity, secs. 190, 191; White v. National Bank, 64 N. Y. 316; Kerr on Fraud and Mistake, 405, 419, and notes to pages 416, 417.
    Even a judgment confessed under a mistake will be set aside during the term, and if it is no longer in the power of the court, {as in this case,) relief may be obtained in chancery. The Hiram, 1 Wheat. 410, note, 417; Kerr on Fraud and Mistake, 405, 419, and notes to pages 416, 417.
    So, also, a compromise founded on a will which turns out to have been revoked by another will of which the parties are ignorant, the transaction can not he supported, and the parties will be relieved. Kerr on Fraud and Mistake, 433, 434. See, also, High on Injunctions, secs. 119, 125, 140, 53, 54, 55, 328.
    The loss of one conveyance in a claim of title is sufficient to warrant equity in enjoining proceedings at law to get possession of the premises, as well as on the ground of accident, whereby a defence can not be perfectly made at law, as from the necessity of preventing a cloud upon title. Codgus v. Cross, 3 Chandl. 34.
   Mr. Justice Shope

delivered the opinion of the C.ourt:

The bill in this case seeks to remove as a cloud upon the title of appellee, Solomon Mueller, derived under the will of 1855, the deed of Catharine and Emil Bebhan to appellant, and to restrain, by injunction, the prosecution of an action of ejectment brought by appellant to recover the land partitioned to Catharine Bebhan in the proceedings instituted by her for partition of the lands of which her father died seized, and to enjoin a certain trespass suit brought for alleged trespasses upon said land by appellee, and to restrain Mrs. Bebhan from collecting $1638.97, decreed her as rents and profits in said partition proceeding. Mrs. Bebhan not having appealed from the decree against her, the latter branch of the case made by the bill is not before us.

"When the instrument dated March 14, 1870, purporting to be the last will and testament of George C. Mueller, who died March 20,1870, was set aside upon bill filed for that purpose, it was supposed by all the parties in interest that his estate had descended to his heirs-at-law as intestate estate, and letters of administration were granted accordingly. All the parties acquiesced in this condition of affairs, and rested in the belief that the property had so descended, until the discovery, in March or April, 1883,—thirteen years after the death of the ancestor,—of the will of the 9th of March, 1855, by which the estate in question was devised to George and Solomon Mueller. The good faith of the parties is not questioned. No fraud or misconduct is alleged, or laches imputed or imputable to any one, on account of the delay in the production of this will, or in any of the proceedings had in respect to the real or personal estate prior to its discovery. When Catharine Eebhan, daughter and one of the heirs-at-law of said George C. Mueller, deceased, on the 22d day of March, 1879, filed her bill for partition of the real estate of which said George C. had died seized, and when Solomon Mueller filed his answer, admitting the intestacy of his father, and consenting to the partition to Mrs. Eebhan and Mrs. Eeinhardt, his sisters, each a one-fourth part or interest in the land of which their common ancestor died seized, and consented to the decree therefor, the several parties, in good faith, believed the facts alleged in her bill to be true, and that the land had descended to the four children of George C. Mueller, deceased, in equal parts, in fee. It is also equally clear that when appellant, Thomas Knobloch, purchased the interest of Catharine Eebhan in said land, and paid her therefor $5050, he did so in good faith, relying upon the title of said Catharine as found and declared by the circuit court of St. Clair county, in said partition proceeding, by the consent of appellee. Upon the production and probate of the will of 1855, in April, 1883, it became manifest that the title to said land had not, in fact, so descended to the heirs-at-law of said George Christian Mueller, but by virtue of that will the legal title thereto, at the death of the testator, vested in the devisees, George and Solomon Mueller, and that by the last will of said George Mueller, who died February 29, 1875, the legal title to the whole of said land became vested in appellee, Solomon Mueller. It is apparent that all of the parties, while acting in good faith, were mistaken, and that the decree of the circuit court finding one-fourth interest of said land in fee in Catharine Eebhan, would not have been entered had the court or parties been aware of the true condition of the title to the land.

It is said by counsel for appellee, that this bill may be maintained, if upon no other ground, as a bill in the nature of a bill of review. This is manifestly a misapprehension. In neither the frame of the bill, nor in the prayer, has the pleader attempted a review of the decree rendered in the partition proceeding of Rebhan v. Mueller et al. The bill sets out the filing of that bill, the decree of partition, and for rents and profits, but it nowhere seeks to re-open that decree, or reverse, impeach or alter it, or to procure a rehearing of that cause upon the alleged newly discovered matter. The prayer is to remove appellant’s title derived thereunder, as a cloud upon appellee’s title, and to restrain proceedings under that decree, without re-opening it or setting it aside. The whole scope of the bill is to procure the relief sought, upon the equitable ground of mistake of fact as to the title at the time of the entry of that decree, without in any way interfering with it, but seeks to enjoin proceedings under it.

The two grounds upon which a bill of review, or bill in the nature of a bill of review, will lie, are errors of law appearing on the face of the decree, without further examination of facts; and new fact or facts discovered since the decree, which are material, and which it was impossible for the party to produce at the time the decree passed. (Daniell’s Ch. Pr. 1576; 2 Smith’s Ch. Pr. 50.) Bills containing newly discovered matter are in the nature of original bills, in so far as such new matter presents an issuable fact, and therefore admitting an answer and formation of an issue; but only so far as it relates to the truth and sufficiency of the alleged new matter, and its admissibility for the purpose of affecting and opening the original decree. (Authorities supra; Buffington v. Harvey, 95 U. S. 99.) The purpose of the bill of the character named, is to procure a reversal, alteration or explanation of the former decree. The bill should state the former bill, the proceedings thereon, and the decree rendered by the court, the grievance under the decree of the party presenting the hill, and the error of law or new matter discovered upon which it is sought to reverse, re-open or impeach it. In hills of review, if the former decree has not been carried into execution, the prayer may simply be that the same may be reversed and set aside; if the former decree has been executed, that the decree be reversed, and the complainant be restored to his former condition or status as if it had not been rendered. In bills in the nature of bills of review, instead of praying the reversal of the former decree, the prayer should be that the cause be reheard in respect to and considering the new matter, at the same time it is reheard upon the original bill, etc. Daniell’s Ch. Pr. 1581, 1582.

The decree of partition, rendered at the February term, 1880, and the subsequent decree approving the report of the commissioner, rendered at the May term, 1881, of said court, remain unreversed, and in full force and effect. The court had jurisdiction of the subject matter and of the parties, and rendered its decree determining the several interests of the complainant Catherine Eebhan and appellee, by the consent of appellee, as appears by his answer filed in said cause, and by the recitals in said decree of partition.

Decrees of courts of chancery, in respect of matters within their jurisdiction, are as binding and conclusive upon the parties and their privies as are judgments at law; and a decree by consent, in an amicable suit, has been held to have an additional claim to be considered final. (Alleson v. Stark, 9 A. & E. 225.) Decrees so entered by consent can not be reversed, set aside or impeached by bill of review or bill in the nature of a bill of review, except for fraud, unless it be shown that the consent was not, in fact, given, or something was inserted as by consent that was not consented to. Daniell’s Ch. Pr. 1576; Webb v. Webb, 3 Swanst. 658; Thompson v. Maxwell, 95 U. S. 391; Armstrong v. Cooper, 11 Ill. 540; Cronk v. Traubbe, 66 id. 432; Haas v. Chicago Building Society, 80 id. 248; Atkinson v. Mauks, 1 Cow. 693; Winchester v. Winchester, 121 Mass. 127; Alleson v. Stark, 9 A. & E. 225; Earl of Hopetown v. Pamsey, 1 Bell’s App. Cas. 69. See, also, note to Duchess of Kingston's case, 2 Smith’s L. C. *826, et seq. It is the general doctrine that such a decree is not reversible upon appeal or writ of error, or by bill of review, for error. (Armstrong v. Cooper, 11 Ill. 540.) No exceptions were taken to the decree of partition, or attempt made in the cause in which it is rendered to vacate or modify it.

It is undoubtedly true, that as between the parties and those chargeable with notice, courts of equity will entertain jurisdiction and grant relief, on proper bill filed, from the injurious effects of admissions and confessions of material facts, made in course of judicial proceedings, in ignorance of the rights of the party making them, where he has been guilty of no negligence, either in the discovery of the fact or in applying to the proper forum for relief; but such relief can only be granted upon such grounds and for such reasons as would authorize the court to set aside agreements or contracts entered into by the parties. Attorney General v. Tomlin, 7 Ch. Div. (L. R.) 388; Millspaugh v. McBride, 7 Paige, 509; Ferroville v. Bogle, 4 Russ. 142; The Hiram, 1 Wheat. 440. But it is apparent that the decree in the partition proceedings can only be attacked, reversed, annulled or set aside by direct proceedings in that case, or upon bill of review, or bill in the nature of a bill of review.

If this were not so, however, there is another ground upon which the decree must be reversed. It is the well settled doctrine of this court that no relief will be granted, in equity, in cases of this sort, injuriously affecting intervening rights acquired in good faith after the rendition of a judgment or decree, and in reliance thereon. So it has been held, that amendments may be made in judicial proceedings, but not so as to affect the intervening rights of third persons accruing prior to such amendment. (Shirley v. Phillips et al. 17 Ill. 473; Cochran v. Gretches, 18 id. 390; Seckman v. Wood, 69 id. 33; 1 Story’s Eq. Jur. 165.) Belief will not be granted to the prejudice of appellant, if he has an equal equity with appellee, and is equally entitled to the protection of the court. (1 Story’s Eq. Jur. 165.) As already seen, all the parties to the partition proceedings supposed, in good faith, that Mrs. Bebhan was the owner in fee of the undivided one-fourth of the lands of which her father died seized, and that, on the 8th day of March, 1881, appellant purchased her interest in such lands for a full and adequate consideration, without notice, actual or constructive, of any defect in her title, and in good faith. All the elements to constitute him a bona fide purchaser are present,—that is, a -valuable consideration paid, absence of notice, and presence of good faith. (2 Pomeroy’s Eq. 745.) His grantor had, by a court of competent jurisdiction, in a proceeding instituted to find and declare her interests in these lands, been adjudged by the consent and admission of appellee to be the owner in fee of the undivided one-fourth part thereof, and there was nothing in the record, or elsewhere, apparent to disclose that she, who was thus clothed with apparent legal title, was not the owner in fact of that interest in the land, hi or is it shown or claimed that further inquiry would then - have disclosed anything to cast suspicion upon her title. The defence of a bona fide purchaser had its rise in equity, upon the doctrine that a court of equity acts upon the conscience of him against whom relief is sought, and if he has done no wrong, or it would be unconscientious or inequitable to grant the relief, the court will refuse to exercise its jurisdiction. If, in equity and good conscience, the complainant should not obtain what, he seeks, or the defendant ought not to suffer what is demanded, then the court will withhold its power. In theory, it is said the defence of a bona fide purchaser presupposes some defect in the purchaser’s title, but the court refuses to investigate the validity of the title of either party, upon the ground that good conscience does not dictate that he who has dealt honestly, in good faith, and without notice, should be deprived of the legal right he has thereby gained. 2 Pomeroy’s Eq. 739.

There was formerly much apparent conflict in the adjudged cases as to when the defence of a bona fide purchaser would ;be availing. In Phillips v. Phillips, 4 DeG., F. & J. 208, Lord I Wbstbubt grouped the cases in which a bona fide purchaser will j be protected, into three general classes, and reduced the doc- , trine to a formula, which it is said by Pomeroy, (Eq. Jur. 742,) has been accepted by subsequent judges almost without exception. The doctrine thus formulated, so far as applicable here, is: “Thirdly, when there are circumstances which give rise to-an equity, as distinguished from an equitable estate,—as, for example, an equity to set aside a deed for fraud, or to correct it for mistake,—and the purchaser under the instrument maintains the plea of purchase for valuable consideration without, notice, the court will not interfere.”

Without extended, discussion, it is apparent that the bill here filed seeks relief ancillary to the legal estate of appellee. The purpose of the bill is to remove the deed to appellant as a cloud upon appellee’s legal title, and to enjoin the assertion of rights by appellant thereunder. The right to the relief sought exists, if at all, upon the equity arising out of the alleged mistake as to the title to said land.in the grantor of appellant. This brings the case directly within the rule above given, which is sanctioned by the weight of modem authority, and if appellant made out his defence as bona fide purchaser, he should have prevailed in the court below.

The decree of partition, as seen, was rendered by a court of competent jurisdiction, having jurisdiction of the person and of the subject matter, and by appellee’s consent. Appellant, without notice, for full value and in perfect good faith, acquired the title sought to be removed as a cloud upon appellee’s title from the party found and declared by that decree to-be the owner, and we can perceive no principle upon which a court of conscience can hold that appellant shall lose in consequence of the mutual mistake, rather than appellee.

It can not be said that the equities of appellee are superior to those of appellant in respect of the title thus acquired, and the equities being equal, the court will give no assistance to the legal title, (2 Pomeroy’s Bq. Jur. 142, and cases cited,) but will remit the complainant to his remedy at law. It is said, however, that at the time appellant purchased, the report of the commissioners had not been confirmed by the court, and that he purchased subject to having the interest of his grantor, as found by the commissioners, set aside. It is true, that exceptions to the report of the commissioners were then pending, but none of the exceptions questioned the right or title of Catharine Eebhan to the undivided one-fourth part of the real estate of which her father died seized. Such exception related simply to the manner of partition, and the conduct of the commissioners in making the same. There was nothing therein to put appellant upon notice or inquiry as to the title of Mrs. Eebhan. He bought subject, as a matter of course, to having the amount set off to Mrs. Eebhan changed or diminished by subsequent action of the commissioners, or to have their report set aside by the court, but his purchase was of her interest in the land, which was conceded by appellee and declared by the court to be a one-fourth interest therein.

It is also said by counsel for appellee, that appellant may rely upon the covenants of warranty in his deed from the Bebhans, and therefore the equities are with appellee. It is not shown whether Mrs. Eebhan and husband, who joined in the execution of said deed, are solvent or insolvent, and we perceive no principle, nor is any suggested by counsel, upon which appellant should be driven to resort to his legal remedy against his grantor for indemnity from loss, especially in view of the fact that it is not shown that such remedy would be availing.

It will not be proper for ns to here discuss or determine the right of appellee to the money paid by appellant for the land in question, or as to whether he has any remedy in respect of the same.

We are of opinion that the defence of a bona fide purchaser has been maintained, and upon both of the grounds indicated, the right of appellee to the relief sought should have been denied as against appellant, Knobloeh, and the bill dismissed as to him.

For the error of the court in this regard, the decree, in so far as it affects the appellant, Knobloeh, will be reversed, and the cause remanded to the circuit court of St. Clair county, with instructions to enter a decree in conformity with this opinion, dismissing the bill as to said appellant.

Judgment reversed.


author: Mr. Justice Mulkey

text:
    The Chicago and Alton Railroad Company v. John M. Dillon.

      Filed at Mt. Vernon January 20, 1888.

    1. Negligence—railway trains approaching highway crossings—duty as i0 S^tny signals. Independently of the statute on the subject, it is the duty of those having charge of a train of cars to give notice of their approacb at all points of known or reasonably apprehended danger. This is almost always done by the ringing of a bell or sounding a whistle, and frequently by both. In exceptional cases, when the highest degree of care is deemed advisable, flagging, is resorted to. These duties are enjoined by ^he common law, independent of any statute.
    2. Same—of the rule when the crossing is not a public highway. An action against a railway company for an injury by a passing train at an intersection of an avenue used by the public, on the ground of a failure to give the usual warning by bell or whistle, is not a statutory action, although there may be references in the declaration to the statutory duty, and the company can not escape liability for the injury on the ground that the avenue is not a public highway, in the sense of that term as used in the statute, requiring such warning before crossing public highways.

      3. Same — of the higher degree of care required at dangerous place. Where an approaching engine is concealed from the view of persons with vehicles approaching a highway crossing at a place of much travel, the duty of the railway company to operate its train at a moderate rate of speed, and to give the usual signals of its approach by the ringing of a bell or sounding a whistle, or both, is more imperative than at a place of less danger.
    4. Same—evidence to show signals were not given by a train approaching a highway crossing. On the trial of an action against a railway company'to recover damages for a personal injury by a collision at a highway crossing, the court allowed several witnesses to testify that they were near the crossing at the time of the accident, and did not hear any bell or whistle, and that, in their o'pinion, if the bell had been rung or the whistle sounded they would have heard it: Held, that the evidence was properly admitted.
    5. Same—instruction—of its form—as to liability for negligence. In an action against a railway company, to recover for an injury received at a highway crossing by a passing train, an instruction was given for the plaintiff, the greater part of which was a mere statement of what the statute requires of such companies when crossing public highways. The other part simply told the jury, that if they found, from the evidence, that the place of the accident was at a public highway crossing, then it was the duty of the defendant to ring the bell or sound the whistle, as required by the statute: Held, that there was nothing objectionable either in the form or substance of the instruction.
    6. Same—instruction construed—as not being confined to the negligence charged. In' an action founded on certain acts of negligence, the court instructed the jury, that it was the duty of the defendant to use reasonable care and diligence to prevent injury to the plaintiff; and if they believed, from the evidence, that the defendant failed to perform such duty, by reason whereof the plaintiff, while exercising reasonable care on his part, received the injury complained of, then the defendant was liable: Held, that the instruction was not obnoxious to the objection that it authorized the jury to find the defendant guilty upon proof of any actionable negligence causing the injury, whether charged in the declaration or not.
    7. Bailboads—statutory penalty for not giving warning before crossing a highway. In a statutory action against a railway company, to recover the penalty for a failure to ring a bell or sound a whistle before reaching a public highway crossing, the question whether the avenue crossed is such a highway, might become a material one to a right of recovery.
    8. Pleadiks—of the declaration—in action at common law, and under a statute. In suing at common law, in any case where the provisions of a public statute are applicable, as a general rule it is not necessary to set them forth or refer to them, as the court will take judicial notice of them. There is an exception to this rule in cases where the remedy given by the statute is cumulative, and differs from that given by the common law. In such case, if the relief given by the statute is sought, the pleader must manifest that purpose or intent by apt words of reference to the statute.
    9. Same—u/rmecessary or improper reference to a statute—surplusage. Where an action lies at common law, and the declaration concludes against the statute, and the statute has been misreeited or incorrectly referred to, or there is no statute in fact in relation to the subject, those words of reference to the statute will be rejected as surplusage, and the action may be maintained as at common law.
    10. So in an action predicated upon the neglect of duty or negligence actionable at common law, reference in the declaration to the statute as imposing the duty, being entirely superfluous and uncalled for, may be' treated as surplusage.
    11. JUDICIAL notice — of public statute. The act requiring railway companies to ring a bell or sound a whistle before passing over a highway with a train, is a public statute, of which the courts will take judicial notice. The rule is different in respect to a private statute.
    12. Peactice—improper remarles of counsel in argument to the ju/ry. Complaint was made that the court erred in permitting plaintiff’s counsel, in an action against a railway company, in his opening statement and closing argument to refer to the number of trials there had been in the case and how they had resulted, and to state that the judgment on the first hearing in the Appellate Court had been reversed upon a mere technicality: Held, that if the matter complained of was improper, it was not of so serious a character as to justify a reversal of the judgment in favor of the plaintiff.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Mr. Luke H. Hite, and Messrs. Bbown & Kibbt, for the appellant:
    The court erred in admitting incompetent evidence for appellee. The conclusions and opinions of the witnesses were improper. Hopkins v. Railroad Co. 78 Ill. 32; Railroad Co. v. Moranda, 108 id. 576; Pennsylvania Co. v. Conlan, 101 id. 93.
    The first of appellee’s instructions is singularly confusing. The first part, as an abstract proposition, might be unobjectionable, but when taken altogether it was well calculated to mislead, and took from the jury the question whether the avenue was a public highway. It improperly submitted to the jury, the question whether the avenue was a public highway, without defining what constitutes a highway. Forbes v. Balenseifer, 74 Ill. 187.
    The evidence showed that the avenue was a private way, belonging to the Stock Yards Company. We do not contend that railroads may run their trains at such places without regard to public safety, but under the declaration, the plaintiff having counted upon the statutory duty to give the signal before crossing a public highway, there could be no recovery upon any supposed common law duties.
    Appellee’s second instruction was erroneous, because it did not limit the right of recovery to the cause of action stated in the declaration.
    There is but one good cause of action stated in the declaration, and that is the averment that the defendant omitted to ring a bell or sound a whistle at a public crossing. The other averment, as to the speed at which they were running, is wholly to be disregarded, because there are no other facts averred by which it can be seen that mere speed constituted negligence.
    - As to the care required of the plaintiff to entitle him to recover, see Railway Co. v. Dimick, 96 Ill. 42; Railroad Co. v. Houston, 95 U. S. 697; Scholfield v. Railroad Co. 114 id. 615; Brown v. Railway Co. 22 Minn. 165.
    On approaching a railroad a traveler must use his eyes and ears, and must avoid danger if he can, notwithstanding the negligence of the company. Hinze v. Railroad Co. 71 Mo. 636; Purl v. Railroad Co. 72 id. 168; Pennsylvania Co. v. Rudel, 100 Ill. 603; Railroad Co. v. Hatch, 79 id. 137.
    Neglect to sound a whistle or ring a bell is not such neglect as, of itself, will authorize a recovery, but it must be shown by the evidence that the injury was the result of such negligence. Railroad Co. v. Blackman, 63 Ill. 117; Railroad Co. v. Van-Patten, 64 id. 510; Railroad Co. v. Benton, 69 id. 174; Railroad Co. v. Notzki, 66 id. 455.

      Mr. W. H. Bennett, and Messrs. Dill & Schaefer, for the appellee:
    It is urged that the court admitted improper evidence for appellee, in this: that witnesses were permitted to testify that if a bell had been rung they would have heard it. In Peoria, Pekin and Jacksonville Railroad Co. v. Siltman, 88 Ill. 531, the court expressly approves this kind of testimony, and says: “Every one of these several witnesses is positive he could have heard it, had the bell been rung or the whistle sounded, * * * and their testimony seems to be equivalent to positive evidence as to the facts about which they testify.”
    There was no error in allowing counsel to refer to the former verdicts, and give the jury a history of the case. As the jury gave less damages than in the preceding trials, it is evident they were not influenced by such statements.
    We see no force in any of the objections to the instructions. The first does not assume that appellee was injured at a highway crossing. The strength of our case lies in the fact that the train- was being run at a greater rate of speed than was safe, and it makes no difference whether the injury occurred at a public crossing or not.
    The question of negligence and comparative negligence is one of fact for the jury, and the finding will not be disturbed except in a clear case. Haworth’s case, 39 Ill. 346; Hillmer’s case, 72 id. 239; Gillis’ case, 68 id. 317; Hetherington’s case, 83 id. 512; Schmidt's case, id. 410; O’Connor’s case, 77 id. 394; Lee’s case, 87 id. 457.
    It does not seem important to us, in the technical sense, whether it was a highway or not. It was a crossing, and a" very public crossing, and under the unquestioned facts in the record it was gross negligence for an engine to approach it without giving the warnings usually given at crossings. This would be true whether required by statute or not. Ordinary prudence - required it. The situation rendered it necessary. Stables' case, 62 Ill. 317.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 20th of November, 1882, John M. Dillon, the appellee, in attempting to cross the railway tracks of the National Stock Yards, in or near East St. Louis, at their intersection with Avenue F, received a serious, permanent injury, caused by the vehicle in which he was riding being struck by a passing locomotive engine, owned and operated by the Chicago and Alton Eailroad Company. The horse he was driving was killed outright, the wagon shattered to pieces, and Dillon himself was thrown a considerable distance, with such force as to cause a serious rupture, partially disabling him for life, and totally disabling him for several months. In 1883 he commenced an action on the case, in the circuit court of St. Clair county, against the Chicago and Alton Eailroad Company, the appellant herein, to recover damages for the injuries thus received by him, which were laid in the declaration at $25,000. The record before us does not appear to contain a transcript of all the proceedings which have occurred in the case from its inception, yet we are able to gather from it, that the cause has been tried three times, each trial resulting in a verdict for the plaintiff. In one of them the jury assessed the plaintiff’s damages at $875, in another at $4000, and in the last at $3500. The case has been heard twice in the Appellate Court. On the first hearing, the judgment of the court below was reversed, and the cause remanded for further proceedings. On the last hearing, that court affirmed the judgment of the trial court, and the present appeal is from the judgment of affirmance.

The avenue upon which the plaintiff was driving, runs in a north-westerly and south-easterly direction, and the railway tracks by which it is intersected at the place of collision run nearly east and west. On the westerly side of the avenue, • and immediately south of the tracks, is a large hog house, having many compartments, the east end of which is bounded by the avenue. This structure is from sixty to one hundred feet in width, and extends westerly, upon the line of the tracks, its full length, about the eighth of a mile. It was so high and closely built that no one in the avenue south of the crossing could see a train or engine coming from the west. The engine which occasioned the injury was coming from that direction, and the plaintiff was approaching the crossing from the southeast, but as his view of it was entirely cut off by the hog house on his left, he consequently could not judge of the safety in crossing, except by means of hearing. The large amount of business done at the stock yards, as is shown by the evidence, necessarily led to a great deal of travel, back and forth, over the crossing by those, like the plaintiff, doing business there. In view of the circumstances stated, the duty of the defendant to operate its train at a moderate rate of speed, and to give the usual signals of its approach by ringing the bell or sounding the whistle, or both, became the more imperative. Of this there there can be no question. The negligence imputed to the defendant in the declaration, and on account of which a recovery was had below, is the alleged failure of the defendant to do either of these things. It is averred in the declaration that the defendant neither rang the bell nor blew the whistle; also, that the train was being run at a high rate of speed. This is denied by the defendant’s plea, and the cause was tried on these issues.

If the statements of the witnesses on the part of the plaintiff be accepted as true, all three of these averments in the declaration were sufficiently proved on the trial. If, on the other hand, the defendant’s witnesses are to be believed, the defendant was guilty of no negligence whatever, but the injury complained of was the result of plaintiff’s own imprudence and negligence. Of course, these questions are not before us, they having been definitely and finally settled by the Appellate Court, adversely to the appellant. It only remains to consider whether any errors of law have intervened, of sufficient gravity to require a reversal of the judgment.

Several of appellee’s witnesses were permitted to state, on the trial, against the objections of the defendant, that they were near the crossing at the time of the accident, but did not hear any bell or whistle, and that, in their opinion, if the bell had been rung or the whistle sounded they would have heard it, and this is assigned for error. We perceive no valid objection to the ruling of the court upon this subject. Questions of this character are constantly permitted by the most enlightened trial judges, and we are aware of no authority questioning the propriety of allowing them.

The cases of Hopkins v. Indianapolis and St. Louis Railroad Co. 78 Ill. 32, Pennsylvania Co. v. Conlan, 101 id. 93, and Chicago and Northwestern Railway Co. v. Moranda, 108 id. 576, cited by appellant’s counsel as sustaining the contrary view, do not, so far as we are able to discover, even look in that direction. Such questions are permitted as matter of convenience, and to avoid prolixity in the examination. When a witness says he was near enough, and would, in his opinion, have heard or seen a given signal had it been given, he, in effect, says there was nothing to prevent his seeing or hearing it, as the case might be. The permitting of these questions to be asked, obviated the necessity of asking a great many others, to prevent certain unfavorable inferences that might he urged if not asked,—such as, whether their hearing was good, and if not, to what extent injured; if good, whether their attention was attracted to anything else at the time; whether there was any noise or confusion which might have caused them not to observe or note the fact that the signal was given, etc. All implications suggested by these and other questions of like character that might be mentioned, were negatived by the simple statement, that, in the opinions of the witnesses, if the signal had been given they would have heard it. Moreover, the competency of testimony of this kind is distinctly recognized by this court in Peoria, Pekin and Jacksonville Railroad Co. v. Siltman, 88 Ill. 531.

It is next complained, that the court erred in permitting counsel for plaintiff, in his opening statement and concluding argument to the-jury, to refer to the number of trials there had been in the case, and how they had resulted, and also to state that the judgment on the first hearing in the Apj>ellate Court had been reversed upon a mere technicality. What is here complained of we do not think,, even conceding it to be improper,—about which we express no opinion,—is of so serious a character as to justify a reversal of the judgment. Trial courts are given a large discretion in matters of this kind, with which courts of review are loth to interfere, unless it becomes necessary to prevent a failure of justice. Such is not the case here.

The court gave to the jury three instructions on behalf of the plaintiff, all of which were excepted to by the defendant. The objection to the first is, that it “is singularly confusing.” The greater portion of it is a mere statement of what the statute requires of railroad companies when crossing public highways, and the remaining portion simply tells the jury that if they find, from the evidence, that the place of the accident was at a public highway crossing, then it was the duty of the defendant to ring the bell or sound the whistle, as required by the statute. In other words, the court told the jury what the statute enjoined, and then instructed them that it was the duty of the defendant to obey it, if shown by the evidence to be within its provisions. We perceive nothing in this that the most hypercritical could object to.

Plaintiff’s second instruction is also complained of. It tells the jury, “that it was the duty of the defendant to use reasonable care and diligence to prevent injury to the plaintiff, and if the jury believe, from the evidence, that the defendant failed to perform such duty, by reason whereof the plaintiff, while exercising reasonable care on his part, received the injury complained of, then the defendant is liable.” The substance of the objection to this instruction, as we understand it, is that it authorized the jury to find the defendant guilty upon proof of any actionable negligence causing the injury, whether charged in the declaration or not. We regard this as a strained, hypercritical view of the subject. Instructions should always be construed in the light of the issues being tried and the proofs offered in support of them. When thus construed, we find no objection to the instruction in question.

It is finally urged, with great persistence, that the avenue in question is not, within the meaning of our statute, a public highway, and that, as the action is based exclusively on the statute, the failure to ring a bell or sound the whistle was violative of no duty which it imposes, and hence no cause of action is shown. We do not concur in this view. It is to be observed, in the first place, this is not a statutory action to recover the penalty which the statute prescribes for a failure to give such a signal. If it were, quite a different question would be presented. The present is a common law action, brought for the failure to perform a duty imposed by law. Under the facts disclosed by the record, we do not think it essential to the maintenance of the action that this duty should necessarily arise under the statute, notwithstanding the pleader may possibly have so regarded it in framing the declaration. Without regard to the statute, it is the duty of those having charge of trains to give notice of their approach at all points of known or reasonably apprehended danger. This i's almost universaEy done by the ringing of a bell or sounding of the whistle, and frequently both. In exceptional cases, where the highest degree of care is deemed advisable, flagging is resorted to. That these duties are enjoined by the common law is not disputed, but the claim is, as already seen, that the action is brought upon the statute, and the plaintiff, therefore, can not avail himself of his common law rights, although the averments in the declaration are otherwise broad enough for such purpose. This, as we view it, is an entire misapprehension of the whole matter. As before indicated, the action is not brought on the statute, nor does it purport to be. While-there are certain expressions in that part of the declaration which attempts to define the duty of the defendant, justifying the inference that the pleader had the statute in his mind, yet there is really nothing in it that can properly be called even a reference to the statute. Even the expressions referred to as showing the drift of the pleader’s thoughts, are entirely superfluous and uncalled for, and may therefore be treated as surplusage. As mere matter of composition tending to perspicuity; such averments are admissible, and even commendable, if not misleading. The act in question is a public statute, of which the courts will take judicial notice.

In suing at common law, in any case where the provisions of a public statute are applicable, it is, as a general rule, no more necessary to set them forth in the declaration than it is to plead a provision of the common law having a like application to the case, and all concede that is never necessary. (1 Chitty’s Pl. 215.) The only exception to this general rule, now remembered, is where the remedy given by the statute is cumulative, and differs from that given by the common law. In that case, if the relief given by the statute is sought, the pleader must manifest that purpose or intent by apt words of reference to the statute. Here the relief given by the common law is alone sought, hence the exception to the general rule just adverted to has no application. Of course, a different rule prevails in the case of private statutes. Even if the declaration in this case contained a direct reference to the statute, and it was evident that the pleader expected to rely exclusively upon it, still it would not, in our opinion, present an insuperable obstacle to a recovery on common law grounds, if the allegations otherwise were sufficiently broad, and the evidence warranted it. In a note to Oliver on Precedents, page 528, where this subject is under discussion, we find the following: “So, also, where the action is sustainable at common law, and the declaration concludes, ‘against the statute or statutes,’ etc., and the-statutes have been misrecited or incorrectly referred to, or there is no statute, in fact, in relation to the subject, those words in the declaration shall he rejected as surplusage, and the action shall he maintained at common law. See Salk. 212; Comyn’s Digest, ‘Action upon Statute, G.’ ” The general principle here announced fully answers the contention of appellant.

The judgment will be affirmed.

Judgment affirmed.