on the subject. Marchand v. Town of Maple Grove, supra, was a case where a highway, four rods wide, had been lawfully established by competent authority, but at one point along its course, by reason of the marshy character of the soil, the travel had been diverted wholly without the limits of the road as laid, and so continued for a sufficient time to establish an easement by user, and it was held that the width of the road thus acquired should be measured by the use. If such is the rule, where there

is a diversion from a road laid by valid proceedings, it must be so by a much stronger reason where the proceedings are invalid, and constitute color of title merely. So that, in order to make the easement or title available for the designated width, the road as used at the point in question must be shown to fall within the limits of the one attempted to be laid, otherwise the easement cannot be broader than the use. State v. Auchard, supra.

In this view of the law, the record and files of the county court were not competent, under the evidence subsequently developed. Mr. C. Schutz, the plaintiffs' witness, who was a surveyor, attempted to relocate the road survey, but found it utterly impossible to do so. He says, in effect, that it was not possible to locate the ground where the line would run from the field notes, and that "all of his efforts put the ice house and oil tank outside of the road, according to his survey." Nor does the evidence of the defendant help the plaintiffs' case. So that there was no testimony before the jury tending to show that the road as used, and which traversed the immediate ground occupied by the ice house and oil tank, was within the exterior limits of the road as attempted to be laid at that point; hence the ineffectual record was not pertinent or competent, and should not have been allowed to go to the jury.

The plaintiffs, however, produced evidence tending to show that there had been an adverse and continuous user by the public, under claim of right, of a way passing over the ground occupied by the oil tank for a period of time extending from 1867 to 1880, and insist that it was competent for the jury to determine from the nature of the user whether the highway had been established thereby. If so established in 1880, the title thus acquired must be presumed to have continued up to the time of the accident, unless the contrary is shown. There was evidence, upon the other hand, from which It may reasonably be inferred that the road, as established up to 1880, had subsequently been abandoned at the point referred to by nonuser, caused, perhaps, by the encroachment of the Oregon Railway & Navigation Company in constructing the ice house within and upon the way. It was held, in Grady v. Dundon, 30 Or. 333, 47 Pac. 915, that uninterrupted obstruction of a county road for

more than 10 years bars the right of the public by adverse possession. But the way at this point, so far as the evidence tends to show, was established, if at all, by prescription; that is, by user under claim of right. As a way may be obtained and established by user, it may also be lost to the public by nonuser. "Highways may be wholly, and there is no reason to hold they may not be partially, discontinued by nonuser." Gregory v. Knight, 50 Mich. 61, 64, 14 N. W. 700. And, in a later case, the court say: "It has been settled in this state that a highway can be partially discontinued by nonuser, and that it stands, as against long possession, no better than any other property." Coleman V. Railroad Co., 64 Mich. 160, 163, 31 N. W. 47. So it was held in City of Peoria v. Johnston, 56 Ill. 45, that the public loses its right to a highway where it has abandoned it, and has accepted another instead, for such a length of time, and under such circumstances, as to give it a title to the substituted road. "But," say the court, "independently of this principle, conceding this highway was laid out as claimed by appellant, and conceding there was an intention to dedicate the premises on the southeast of section 4, we are of opinion that the adverse possession of the appellee, open and exclusive as it has been, and the complete nonuser of the easement by the public for more than twenty years, are a sufficient answer to the claim now made by the city. It is said in 3 Kent (11th Ed.) marg. p. 448, that mere nonuser for 20 years affords a presumption of extinguishment, though not a very strong one, in a case unaided by circumstances; but if there has been, in the meantime, some act done by the owner of the land charged with the easement inconsistent with, or adverse to, the right, an extinguishment will be presumed." To the same purpose, see, also, Beardslee v. French, 7 Conn. 125; Holt v. Sargent, 15 Gray, 97; Amsbey v. Hinds, 46 Barb. 622; Hamilton v. State, 106 Ind. 361, 7 N. E. 9; Simplot v. City of Dubuque, 49 Iowa, 630; State v. Culver, 65 Mo. 607; Bank v. Stockwell, supra.

It would seem that by reason of the construction of the ice house, which was about the year 1882, and which has probably been maintained in the same position ever since, the thread of travel was diverted from the old highway before reaching the building from the east, and, after passing close by on the south, it again approaches the old way, and comes into it a few rods west; that this obstruction had existed, and this new way had been used, for more than 10 years, and at the same time and during all the while there has been a complete nonuser of the old way between the points of divergence. Now, if these are facts established by the proof, the jury would be warranted in finding that there was or had been an abandonment of the old way by nonuser, and an acquirement

of a new way, which should be measured, as respects its width, by the rules herein previously ascertained. If, therefore, the construction of the oil tank was without the exterior limits of the newly-acquired highway, then the defendant was not liable, and no recovery of damages could be had. The instructions of the court below, as we understand them, do not proceed under this view of the law, but, rather, upon the idea that the adverse occupancy extends no further than the space covered by the ice house, and that the construction of the tank within the limits of the old way, although not within these of the new, would constitute an obstruction for which it would be liable if injury ensued on account of it. These considerations render it necessary that the judg ment of the court below should be reversed, and a new trial ordered.

(62 Kan. 363)

PEUKER v. CANTER et al. (Supreme Court of Karsas. Jan. 5, 1901.) NAVIGABLE WATERS-MEANDERED LINESALLUVION.

1. Plaintiff is the owner of a 40-acre tract of land, which at the time of the government survey in 1855, and presumably when the patent was issued, was separated from the Missouri river on the west by two fractional 40-acre tracts belonging to defendant. By the erosion of the water a part of defendant's land was washed away until the river reached the plaintiff's said tract, and, by eating away a part of it, left the latter a shore line of about 700 feet. The river then receded, forming alluvion from

the line of contact with plaintiff's land westward within the original surveyed lines of the defendant, and past the same to the river. This alluvion also attached itself to what was left of defendant's land. Held, that plaintiff was not only entitled to such alluvion as formed within his original lines, but also to an equitable proportion of that formed within the origin. I surveyed lines of defendant's land, and beyond to the river bank.

2. Meandered lines along the shore of a navigable river represent the border line of the stream, and show that the water course, and not the meander line as actually run on the land, is the boundary.

(Syllabus by the Court.)

Error from district court, Doniphan county; W. I. Stuart, Judge.

Action by Charles Peuker against William J. Canter and another. Judgment for defendants, and plaintiff brings error. Reversed.

This was an action in ejectment brought by Charles Peuker to recover from William and Ella Canter the possession of certain alluvial lands formed by the Missouri river, in the process of accretion, in front of a 40-acre tract owned by him. The tract in controversy contains about 124 acres. The plaintiff's land, to which he claims the alluvion belongs, is described as the N. W. 4 of the N. E. 4 of section 30, town 4, in range 22, in Doniphan, county. He has owned and been in possession of the same for more than 30 years. The following map was received in evidence by the court below as a truthful representation of the plaintiff's 40 acres, the alluvial lands, the old and the present river bed, and the government survey in 1855:

CANTER

SKEQUE

PRESENT

RIVER BANK

"BANK AS SURVEYED BY U.5. IN 1855. 070

BANK MISS

CANTER

EUGENE

ANDERSON

PRESENT BANK MISS. RIVER

STONE JOHN BURK

N.E.FRAC SEC. 31-4-23

30 29

31 32

The evidence on the part of both plaintiff and defendants below showed that the alluvion in dispute was formed by gradual and imperceptible additions to the plaintiff's land (the 40 acres above described) by the action of the waters of the Missouri river. It was called and known at the trial as the "McLellan Land." It was admitted that the defendants below were the owners of lots 1 and 2 in section 30, township 4, range 22. It appeared from the evidence that prior to 1876 the river receded from the N. W. 4 of the N. E. 4 of section 30, owned by plaintiff, Peuker, and also from lots 1 and 2 in the same section, owned by the defendants, and had made a large tract of land west of and adjacent to said lots prior to that time. The defendants offered in evidence a certified copy of a map showing the government survey in 1855. It is as follows:

The jury returned a verdict for plaintiff below, and made findings in answer to particular questions of fact. Those necessary to be considered are as follows: "(1) Did the original government survey along the bank of the Missouri river west of the land known as the 'McLellan Land,' to wit, the northwest quarter of the northeast quarter of section thirty, in township four, range twentytwo, in Doniphan county, Kansas, cross said described McLellan land? A. No. (2) Did the waters of the Missouri river wash away any part of the said McLellan land? A. Yes." "(4) If the last question is answered in the affirmative, then did the Missouri river wash across any of the land known as the 'McLellan Land,' to wit, the southwest corner, washing away ten chains and fortyeight links out of the west line of said fortyacre tract? A. Yes. (5) Did the Peuker

though the channel of the stream had changed so that the quarry was below the ordinary high-water line,-in other words, that the original meandered line of the stream remained as the boundary of defendant's land. This instruction was held to be erroneous. It was said: "When the original government surveys were made, the Des Moines river was 'meandered'; that is, the banks of the river were surveyed, and the lines thereof indicated by corners and distances. The river being then a navigable stream, the then owner of the lot now owned by the plaintiff had no title beyond ordinary highwater mark. The title to the whole bed of the river was in the public. * → When, by the action of the water, the river bed was changed, the line of ordinary high-water mark was changed, and the defendant's ownership, or the line of his land, changed with it. The bank of a stream is what retains the water in its channel, and, if changed either by natural or artificial means, the river bank becomes the line." Pages 67, 68, 72 Iowa, pages 367, 368, 33 N. W., and pages 234, 235, Am. St. Rep. The riparian owner in this state owns only to the bank, and not to the center of a navigable stream. Wood v. Fowler, 26 Kan. 682; Perkins v. Adams, 132 Mo. 131, 33 S. W. 778. In Welles v. Bailey, 55 Conn. 292, 10 Atl. 565,-a well-considered case, in which elaborate briefs were presented, the court, at page 316, 55 Conn., and page 566, 10 Atl., says: "If a particular tract was entirely cut off from a river by an intervening tract, and that intervening tract should be gradually washed away until the remoter tract was reached by the river, the latter tract would become riparian as much as if it had been originally such. This fol lows necessarily from the ordinary application of the principle. All original lines submerged by the river have ceased to exist. The river is itself a natural boundary, and every changing condition of the river in relation to adjoining lands is treated as a natural relation, and is not affected in any manner by the relations of the river and the land at any former period. If, after washing away the intervening lot, it should encroach upon the remoter lot, and should then begin to change its movement in the other direction, gradually restoring what it had taken from the remoter lot, and finally all that it had taken from the intervening lot, the whole, by the law of accretion, would belong to the remoter, but now proximate, lot. Having become riparian, it has all riparian rights. This general principle is recognized by all the text writers and by numerous decisions of the English and American courts. The river boundary is treated in all cases as a natural boundary, and the rights of the parties as changing with the change of its bed." This doctrine was approved in the case of Naylor v. Cox, 114 Mo. 232, 21 S. W. 589; Wallace v. Driver, 61 Ark. 429, 33 S. W. 641, 31 L. R. A. 317; Cox v. Arnold, 129 Mo.

337, 31 S. W. 592. In the last-cited case the third paragraph of the syllabus reads: "A part of a fractional quarter section belonging to plaintiff and bordering on the Missouri river was washed away by the current, and a 'towhead' formed in the river between plaintiff's land and an island opposite thereto, and land gradually accrued to the towhead, and extended toward plaintiff's quarter section, and within the limits of the orig inal government survey thereof. Held that, as the land sued for was not an accretion to plaintiff's land, he had no title to it, notwithstanding it was within the boundaries of the original government survey of said quarter section." In Association v. Shriver (N. J. Err. & App.) 46 Atl. 690, the doctrine laid down in Welles v. Bailey is held, by a divided court, to be unsound. The Minnesota decision (Gilbert v. Eldridge, 49 N. W. 679, 13 L. R. A. 411) commented on to sustain the law of the case was, however, controlled by the conditions under which the respective parties took title to the land.

The right to alluvion is founded on the principle of compensation; that the owner of land subject to erosion is entitled to indemnity for the loss of that taken away by gaining the benefit of soil added to his boundary by the process of accretion. Blackstone says (2 Bl. Comm. 262): "And as to lands gained from the sea, either by alluvion, by the washing up of sand and earth, so as in time to make terra firma, or by dereliction, as when the sea shrinks back below the usual water mark, in these cases the law is held to be that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining. For 'de minimis non curat lex'; and, besides, these owners being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is therefore a reciprocal consideration for such possible charge or loss." In the present case Peuker, whose land at the time of the survey was remote from the river, suffered loss by erosion equally with Canter, the owner of the adjoining lots. The application of the rule stated would not deny to such originally remote proprietor the ownership of such accreted land in front of his shore line, although it may be found within the original boundaries of lots 1 and 2. When the waters washed the land of plaintiff in error, after eating away portions of lots 1 and 2, Canter, the owner of said lots, had the right of navigation and fishery, in common with the public, in the stream which displaced the land within his original boundaries, but he had no ownership in the bed of the river. Railway Co. v. Ramsey, 53 Ark. 314, 13 S. W. 931, 8 L. R. A. 559. He could not prevent others from enjoying the same rights therein which the law accorded to him. It is held in England that if the sea, by gradual and imperceptible progress, encroach upon the land of a subject, the land thereby covered with wa