1. A bill of exceptions should contain only so much of the
evidence as is necessary to present the legal question raised. When
more than this is inserted in the bill, it is an irregularity to be
condemned as a departure from established practice, inconvenient
and embarrassing to the court.
2. Where a series of propositions are embodied in the
instructions of the court which are excepted to in a mass, the
exception must be overruled if any one proposition be sound.
3. The right which the owner of a water lot has to the
accretions in front of it depends on its condition at the date of
the deed which conveyed him the legal title, and cannot be carried
back by relation to the date of a title bond previously assigned to
him, and under which he procured the deed.
4. Maps, surveys, and plats are not necessarily and of
themselves independent evidence, and are therefore to be received
only so far as they are shown to be correct by other testimony in
the cause.
5. Where a lot had no waterfront, and the plaintiff who was the
owner of it had therefore no right to any part of the accretions
for which he was suing, and it is apparent from the record that the
fact was so found by the jury, this Court will not reverse for an
error committed by the court below with respect to the rule by
which the alluvium should be divided among those who are
owners.
6.
Jones v.
Johnston, 18 How. 150, and
Deerfield v.
Arms, 17 Pick. 45, affirmed as laying down the rule to which
this Court adheres for measuring the rights of riparian proprietors
in the accretions formed along the water line.
7. Where a lot was conveyed by A to B as having a waterfront,
and reconveyed by B to A as having no such front, and afterwards
conveyed by A to the plaintiff, a deed from B to the plaintiff made
after suit brought cannot be given in evidence to show the right of
the plaintiff to a waterfront and consequently a title in the
alluvium.
8. If there was a mistake in the original deed, the remedy
should have been sought in chancery, by a proceeding against all
parties interested; the rights of third persons cannot be affected
by a private agreement and a deed made in pursuance of it.
Page 66 U. S. 210
9. A witness cannot be permitted to make a calculation founded
upon a map which is not itself original and reliable evidence, and
permission to ask a question calling for such a calculation is
properly refused by the court.
10. The extent to which a cross-examination maybe carried beyond
what is necessary to exhibit the merits of the case must be guided
and limited by the discretion of the judge who presides at the
trial, and is not the subject of review in a court of error.
11. This Court will not interfere with the practice of the
circuit courts concerning the order and time of introducing
evidence, nor reverse a judgment for the rejection of evidence as
rebutting, which ought to have been given in chief.
William S. Johnston brought ejectment in the circuit court
against John A. Jones and another for a part of the land formed by
accretion on the shore of Lake Michigan north of the north pier of
the harbor of Chicago. The cause was tried in the circuit court,
and a verdict and judgment were given for the plaintiff, when the
defendant brought it up to this Court by writ of error, where it
was reversed and a
venire facias de novo awarded. The
facts as they appeared upon the record at that time are fully
stated in the opinion of MR. JUSTICE NELSON,
59 U. S. 18 How.
150. On the second trial, the same evidence was given, with no new
additions except the two documents pertaining to the plaintiff's
title which are mentioned in the opinion of MR. JUSTICE SWAYNE.
That opinion also contains a statement of the facts upon which the
several rulings of the circuit court upon the admissibility of
evidence were based, and quotes at sufficient length the
instructions which were given to the jury. The verdict and judgment
were in favor of the defendant, and the plaintiff took this writ of
error.
Page 66 U. S. 218
MR. JUSTICE SWAYNE.
This case was before this Court at December term, 1855. It is
reported as then presented, in
54 U. S. 13 How.
250. The judgment of the circuit court was reversed and the cause
remanded for further proceedings. The action below was ejectment,
brought to recover a part of the land formed by accretion on the
shore of Lake Michigan north of the north pier of the harbor in the
City of Chicago. The land in controversy was claimed to belong to
water lot No. 34, in Kinzie's addition to that city. The plaintiff
in error sought to recover it in virtue of his ownership of that
lot. Upon the last trial, many days were consumed in submitting to
the jury the parol and documentary evidence of the parties. The
former was printed as the cause proceeded.
At the close of the argument, prayers for instructions to
the
Page 66 U. S. 219
jury were submitted by both parties. All the testimony given in
the case, the instructions asked for by both parties, and the
entire charge of the court as given are embodied in the record.
They make an aggregate exceeding four hundred and fifty printed
pages. The bill of exceptions embraces all this matter. It
commences with an introduction, setting forth that the whole of the
printed evidence was made a part of it, and terminates with a
supplement containing the exceptions taken by the plaintiff in
error. Six of these exceptions are to the rulings of the court in
excluding testimony. They are in this form: "2. Also to the ruling
of the court in excluding the testimony of Samuel S. Greeley, as
stated on pages 133 and 134 of the printed report." The pages of
the "printed report" do not agree with the pages of the printed
record. The reference, therefore, affords no aid in finding the
matter referred to.
The 8th exception is as follows: "Also to the charge of the
court as contained on page 453, and as stated on page 462."
It is then stated that in compliance with the rule of this Court
and for the sake of greater caution, the plaintiff below "specially
excepted on the trial, and the exceptions were allowed by the
court" to the parts of the charge which follow.
The first part of the charge as thus set out contains a distinct
legal proposition. To this the plaintiff distinctly excepted. This
was proper. Then follows nearly two pages containing the views and
reasonings of the court, comments upon the evidence, and several
legal propositions. They are followed by this exception: "To the
instructions as given by the court to the jury the plaintiff then
and there excepted." Exception was also taken to the refusal of the
court to give to the jury the instructions prayed for by the
plaintiff.
It has been found irksome and inconvenient to the Court to look
through this record and find the parts that are necessary to be
considered. The necessity of performing this office has imposed
upon us a labor which would have been avoided if the bill of
exceptions had been properly framed. In
27 U. S. 2 Pet.
15,
Pennock & Sellers v. Douglas, Mr. justice Story
remarked upon the irregularity, inconvenience, and expense of
putting
Page 66 U. S. 220
the entire testimony in a case into the bill of exceptions, and
expressed the regret of the Court that such a practice should
prevail.
In
45 U. S. 4 How.
297,
Zeller's Lessee v. Eckert, MR. JUSTICE NELSON, in
delivering the opinion of the Court, said:
"This mode of making up the error books is exceedingly
inconvenient and embarrassing to the Court, and is a departure from
familiar and established practice. . . . Only so much of the
evidence given on the trial as may be necessary to present the
legal questions thus raised and noted should be carried into the
bill of exceptions. All beyond serves only to encumber and confuse
the record, and to perplex and embarrass both court and
counsel."
The Court desires to put on record again its condemnation of
this irregularity, and to express the hope that a better practice
may prevail hereafter in all cases intended to be brought before
this Court for revision.
The 38th rule of this Court, adopted at January term, 1832,
directs that thereafter
"the judges of the circuit and district courts do not allow any
bill of exceptions which shall contain the charge of the court at
large to the jury, in trials at common law, upon any general
exception to the whole of such charge, but that the party excepting
be required to state distinctly the several matters in law in such
charge, to which he excepts, and that such matters of law, and
those only, be inserted in the bill of exceptions, and allowed by
the court."
The rule was not observed in this case. It is questionable
whether the exceptions in respect of the greater part of the charge
are so distinct and specific that this Court, if the point had been
made, could consider them. It is well settled, that if a series of
propositions be embodied in instructions and the instructions are
excepted to in a mass, if any one of the propositions be correct,
the exception must be overruled. 3 Seld. 273;
Hunt v.
Maghee, 2 Kernan 313;
Decker v. Matthews.
The point was not made by the defendants. We have therefore not
thought it necessary to consider it. As it may arise hereafter in
other cases, we have deemed it proper thus to call attention to the
subject.
Page 66 U. S. 221
The same evidence substantially was given upon this trial which
was given upon the former trial, as reported in 18 Howard. It would
unnecessarily encumber this opinion here to repeat it. The only
features claimed to be new by the plaintiff in error are 1st, the
title bond of Robert A. Kinzie to Gordon S. Hubbard, of June 10,
1835, for lot 34, and other property therein described. Johnston,
the plaintiff, became the assignee of this bond, and under it
procured his deed of October 22, 1835, from Robert A. Kinzie, for
lot 34. 2d. The deed from John H. Kinzie to the plaintiff, dated
July 1, 1857. This deed was offered, but not received in
evidence.
The plaintiff in error relies upon the following exceptions.
They will be considered as we proceed:
1. The court instructed the jury
"that the controversy turned upon what the fact was, on the 22d
October, 1835, as to this waterfront. Had lot 34 a waterfront at
that time north of the north pier?"
The instruction was according to the ruling of this Court when
the case was formerly here.
59 U. S. 18
How. 157.
The counsel for the plaintiff in error insists that the deed
from Robert A. Kinzie to Johnston related back to the date of the
title bond from Kinzie to Hubbard, and that this was a new element
in the case which required a change of the rule as to the point of
time to which the attention of the jury should have been directed.
We do not think so. The doctrine of relation cannot be made to work
such a result. It is a legal fiction, invented to promote the ends
of justice. It is a general rule that it shall do no wrong to
strangers. It is applied with vigor between the original parties
when justice so requires, but it is never allowed to defeat the
collateral rights of third persons, lawfully acquired. 4 J.R. 234,
Jackson v. Bard, 3 Caine's 262,
Case v. DeGoes;
18 Vin.Abr. 287, Relation B.; 13 Coke 21,
Menville's Case;
7 Ohio St. 291,
Wood v. Furguson.
The plaintiff could recover only upon a legal title. That title
was vested in him, if at all, by the deed from Robert A. Kinzie of
the 22d of October, 1835. The equities subsisting
Page 66 U. S. 222
at any time between those parties could not in any wise affect
the result of the action.
We are satisfied with this instruction. Under it, the jury found
a verdict for the defendants.
2. It is objected that the court did not instruct the jury
correctly as to the value, as evidence, of the surveys, maps, and
plats exhibited by the plaintiff upon the trial, but that, on the
contrary, it was stated that they were not independent evidence,
and that the jury were to receive them only insofar as they were
shown to be correct by the other testimony in the case.
The facts touching these maps and plats are not stated in the
bill of exceptions. We have been compelled to look over much of the
testimony in our search for them. Without intending to lay down any
general rule upon the subject or to question the soundness of the
authorities relied upon by the counsel for the plaintiff in error,
we content ourselves with saying that we are not satisfied that the
court below committed any error in what was said in this
connection.
3. It is insisted, that the court erred in laying down the rule
for the partition of the alluvium. It would be sufficient to say
that the jury having found that lot 34, at the time referred to,
had no waterfront north of the north pier, the question did not
arise. The instructions given and those refused were, in this view
of the subject, abstract and speculative propositions. Those given,
whether right or wrong, could not have injuriously affected the
plaintiff. A party cannot be allowed to complain of an error which
has done him no harm. 9 Gill 61,
Ramsey v. Jenkins.
But as the views of the Court have been misapprehended, and that
misapprehension may mislead in other cases, we prefer to deal with
the subject as if it were properly before us. The court below
instructed the jury in the language used by this Court when the
case was here in 1855. Upon that occasion, it was intended to adopt
the rule laid down by the Supreme Court of Massachusetts in 17
Pickering 45, 46,
Deerfield v. Arms. That court said:
"The rule is -- 1, to measure the
Page 66 U. S. 223
whole extent of the ancient bank or line of the river, and
compute how many rods, yards, or feet each riparian proprietor
owned on the river line; 2, the next step is, supposing the former
line, for instance, to amount to 200 rods, to divide the newly
formed bank or river line into 200 equal parts, and appropriate to
each proprietor as many portions of this new river line as he owned
rods on the
old. When to complete the division, lines are
to be drawn from the points at which the proprietors respectively
bounded on the
old to the points thus determined, as the
points of division on the newly formed shore. The new lines thus
formed, it is obvious, will be either parallel, or divergent, or
convergent, according as the new shore line of the river equals, or
exceeds, or falls short of the old."
It is further said:
"It may require modification, perhaps, under particular
circumstances. For instance, in applying the rule to the ancient
margin of the river, to ascertain the extent of each proprietor's
title on that margin, the
general line ought to be taken,
and not the actual length of the line on that margin, if it happens
to be elongated by deep indentations or sharp projections. In such
case, it should be reduced by an equitable and judicious estimate
to the general available line of the land upon the river."
To this rule we adhere. With the qualification stated, it may be
considered as embodying the views of this Court upon the subject.
In this case, if lot 34 had been found to have had a waterfront
north of the north pier at the time stated, the pier front would
have had nothing to do with the partition to be made. The lake
front, where the accretion occurred, only could have been regarded.
The whole of
that front should have been taken as the
basis of the adjustment.
4. The court refused to instruct the jury as prayed upon the
subject of the possession of the alluvium in controversy by the
plaintiff in error. It is sufficient to say that both the prayers
upon that subject assume as an element that lot 34 had to some
extent a front on the lake north of the north pier. The verdict of
the jury, for the purposes of this case, is conclusive upon that
subject. It is frankly admitted by the counsel for
Page 66 U. S. 224
the plaintiff in error that if the lot had no such front, his
propositions had no application to the case.
5. The court rejected the deed of John H. Kinzie to the
plaintiff when offered in evidence.
Robert A. Kinzie was the patentee of the land upon which his
addition to the Town of Chicago was laid out. He conveyed lot 34 to
John H. Kinzie by a deed which, in describing the lot, referred to
the
original plat of the addition. John H. Kinzie conveyed
the lot back to Robert by a deed describing it, with a reference to
the plat as recorded. The original plat showed a waterfront to this
lot. On the plat as recorded, this fact was wanting. The deed from
John H. Kinzie to Johnston was executed for the consideration of
twenty-five dollars, to correct the alleged error in the deed from
John H. to Robert A. Kinzie, in pursuance of a covenant for further
assurance in the deed of Robert A. Kinzie to Johnston, and thus to
give the plaintiff a title to the alluvium claimed to belong to
that lot, if he had not such title already.
If there were any mistake in the original deeds of which
Johnston had a right to avail himself, the remedy should have been
sought by a proceeding in chancery had for that purpose, with all
the proper parties before the court. The agreement of the parties
themselves that there was such error, and a deed made in pursuance
of that agreement, cannot affect the rights of third persons. A
further and fatal objection to the admission of the deed in
evidence is the time at which it was executed. It bears date more
than seven years after the filing of the declaration in this case.
In ejectment, the plaintiff must recover, if at all, upon the state
of his title as it subsisted at the commencement of the suit.
Evidence of any after acquired title is wholly inadmissible. 4 Term
680,
Goodlitle v. Herbert; 11 Ill. 547,
Wood v.
Martin; 13 Ill. 251,
Pilkin v. Yaw; 33 U. S. 8 Pet.
218,
Binney v. The Canal Co.
6. "The ruling of the court, in excluding the testimony of
Samuel S. Greeley, as stated on pages 133 and 134 of the printed
report."
This, we suppose, refers to the following passage in the
Page 66 U. S. 225
testimony of this witness as it appears in the printed
record:
"2. [Presenting Allen's map of 1838.] Look at the accretion at
the north side of the north pier, and tell me whether the ratio of
increase between what is represented there in '34 and '37, and what
was made from '37 to '38, call for any accretions made in '34 and
'35, and if so, to what extent and in what year?"
The facts disclosed in the testimony show that Allen's map was
not itself original and reliable evidence. A calculation founded
upon it was therefore clearly inadmissible. The admissibility of
this evidence, as regards other objections, would depend upon a
proper foundation being laid for it. As it is not necessary, we
have not gone into any inquiry upon that subject.
7th. "The ruling of the court, in excluding the testimony of
Capt. J. D. Webster, as shown on page 191 of the printed
report."
It appears in the testimony of this witness that he went to
Chicago in 1841 or 1842 as an officer of the United States. The
following also appears:
"Question. Did you hold the position of superintendent of
harbors here -- the same that Captain Allen did once?"
"Answer. Yes, sir, I did, for a while."
"Question. State whether it was any part of your duty as
superintendent of the harbor to report to the government the
changes that were occurring in and about the harbor?"
The latter question was objected to, and the objection
sustained.
The testimony which the question objected to sought to elicit
would in itself have been immaterial and irrelevant. If intended,
as part of the evidence proposed to be drawn out to prove the
duties of Lieut. Allen at a former period, as the language of the
court, in deciding the point, seems to imply, it was inadmissible
also upon that ground. The official duties of Lieut. Allen could
not be proved in that way.
8th. "The rulings of the court, in excluding evidence tending to
affect the credibility of one of defendant's witnesses,
Page 66 U. S. 226
viz., Benjamin Jones, as stated on pages 360 and 362 of
the printed record."
The witness Jones was the brother of the defendant Jones, and
had been examined in chief for him. In his cross-examination, he
stated that his brother formerly owned lot 35, adjoining lot 34;
that it had been sold at sheriff's sale; bought in by Dennison; by
Dennison conveyed to him, and afterwards by him back to his
brother.
He was asked: "Did you pay Dennison anything?"
This question was objected to by the defendants, and overruled
by the court.
We estimate at its highest value "the power of
cross-examination." The extent to which it may be carried, touching
the merits of the case, was defined by this Court in
39 U. S. 14
Pet. 445,
Philadelphia & T. R. Co. v. Simpson. The
rule there laid down this Court has since adhered to. A
cross-examination for other purposes must necessarily be guided and
limited by the discretion of the court trying the cause. The
exercise of this discretion by a circuit court cannot be made the
subject of review by this Court. We have looked through the long
and searching cross-examination to which this witness was
subjected. There would have been no error if the objection had been
overruled. There was none in sustaining it.
9. "The ruling of the court, in excluding the evidence of
Theophilus Greenwood, offered by the plaintiff, as rebutting
evidence to the evidence of possession of the alleged accretion by
defendants, at the date of the deed to the plaintiff, as stated on
page 424 of the printed report."
Upon looking through the testimony of the witness, we find he
was allowed to testify fully upon the subject of possession. The
court expressly held that he should be permitted to do so. The
plaintiff in error then proposed to prove by him where, at a
certain time,
"the actual waterline east of or upon water lot 34 was, in
reference to the east line of said lot 34 . . . which the court
refused, on the ground that it should have been introduced as
evidence in chief, not as rebutting."
That this evidence was of the former and not of the latter
character seems to us too clear to admit of discussion.
Page 66 U. S. 227
"The mode of conducting trials, the order of introducing
evidence, and the times when it shall be introduced are matters
properly belonging to the practice of the circuit courts, with
which this Court ought not to interfere."
39 U. S. 14 Pet.
448,
P. & T. R. Co. v. Simpson.
These are substantially all the points pressed upon our
attention by the counsel for the plaintiff in error in his able and
elaborate argument. They are all to which we deem it necessary to
advert.
We find no error in the record. The judgment below must be
affirmed, with costs.
Decree of the circuit court affirmed.