the title," etc. The question raised is not new to this court. In Werner v. Edmiston, 24 Kan. 147, it was held that under a law entitled "To restrain dramshops and taverns, and to regulate the sale of intoxicating liquors,” a section providing that any one causing intoxication of another should be compelled to pay for his care while so intoxicated, and that every person who was injured in his property or means of support by an intoxicated person, in consequence of intoxication, might recover therefor of the person causing the same, came fairly within the scope of the title. In an able discussion of the question, found in Philpin v. McCarty, 24 Kan. 393, the court, through Brewer, J., lays down the rule that the constitutional requirement is not to be enforced in any narrow or technical spirit; and quoting from State v. County Judge of Davis Co., 2 Iowa, 280-282, says: "The intent of this provision of the constitution was to prevent the union, in the same act, of incongruous matter, and of objects having no connection,-no relation." And again, from Cooley, Const. Lim., as follows: "There has been a general disposition to construe the constitutional provision liberally, rather than to embarrass legislation by a construction whose strictness is unnecessary to the accomplishment of the beneficial purposes for which it has been adopted." In the case of In re Pinkney, 47 Kan. 89, 27 Pac. 179, a law entitled "An act to declare unlawful trusts and combinations in restraint of trade and products, and to provide penalties therefor," was held to be sufficiently comprehensive to justify the inclusion of a section in the act to prevent combinations from controlling the cost or rate of insurance. Johnston, J., in discussing the question, collects all of the decisions in this state up to that time bearing upon the point. It is said in this opinion: other rule recognized and followed by all courts in determining the validity of legislative enactments is that they will not be declared void if they can be upheld upon any reasonable grounds. If their invalidity is a matter of any reasonable doubt, the doubt must be resolved in favor of the act." same principle was enunciated by this court through Horton, C. J., in Commissioners of Cherokee Co. v. State, 36 Kan. 337-339, 13 Pac. 558, where it is said: "We are not to declare an act of the legislature unconstitutional unless the reasons against its unconstitutionality at least preponderate over the reasons in favor of its validity. If the reasons are equally balanced, we should declare in favor of the validity of the act. It is gen

"An

The

erally said that, before an act of the legislature can be declared unconstitutional, its unconstitutionality must clearly appear."

It will be noted that the title of the law under consideration is an act relating to the sale of intoxicating liquors. Can it be said that section 7 does not relate to such sales? If the section did not have relation to, or

connection with, the subject of illegal sales of intoxicating liquors, then the constitutional directions above quoted would have been violated. It in fact relates to no other subject than that of the prohibition of the sale of intoxicating liquors contrary to law, and the suppression of nuisances resulting from the keeping of places where such liquors are kept and sold as a beverage. If this section had relation to the suppression of gambling or of any other act declared to be unlawful, having no reference to the sale of intoxicating liquors, it would be open to the objection urged against it by counsel for the appellant. The fact that cities of the first, second, and third classes are authorized by the section attacked to pass ordinances prohibiting unlawful sales of intoxicating liquors does not make such section any less a provision which relates to the sale of intoxicants. Power conferred on cities to prohibit sales of liquor is a means employed by the state to accomplish the suppression of such traffic. Cities are creatures of the legislature, and in the suppression of unlawful liquor selling, which it has been the policy of the state to interdict for more than 20 years, such cities are mere agents of the state. See State v. Atkin, 63 Kan. - 67 Pac. 519. Section 7 relates clearly to the sale of such liquors, and its provisions are germane to the general language of the title. No person would be surprised, startled, or misled by finding the matter contained in section 7 under the title which the act bears. The chapter under discussion deals with the same subject throughout its different sections.

It is not necessary, in order to satisfy the constitutional requirement above referred to, that the title of a legislative act should express an abstract or catalogue of its contents. It is sufficient that the general purposes of the act be declared; the details provided for the accomplishment of that purpose being mere incidents. In Lynch v. Chase, 55 Kan. 367-376, 40 Pac. 666, 668, it is said: "It is not necessary that the title should be an abstract of the entire act, but it is deemed to be sufficient if the title fairly indicates, though in general terms, its scope and purposes. Everything connected with the main purpose, and reasonably adapted to secure the objects indicated by the title, may be embraced in the act, without violating the constitutional inhibition."

The judgment of the court below will be affirmed. All the justices concurring.

BIGELOW v. BEAR.

(64 Kan. 8879

(Supreme Court of Kansas, Division No. 2. March 8, 1902.)

ATTACHMENT-DISSOLUTION—EVIDENCE.

In proceedings to dissolve an attachment. declarations of defendant, made several months before his property was attached, to the effect that he intended to return to the

state, and had not abandoned it as his residence, are admissible in his behalf.

Error from district court, Miami county; Jahn T. Burris, Judge.

Action by S. G. Bigelow against J. A. B. Bear. Judgment for defendant, and plaintiff brings error. Affirmed.

Argued before SMITH, CUNNINGHAM, and GREENE, JJ.

W. L. Joyce, for plaintiff in error. F. M. Sheridan and B. T. Riley, for defendant in

error.

PER CURIAM. The judgment of the court below in dissolving the attachment was sustained by abundant evidence. The error in admitting the copy of the letter written by defendant in error to Bigelow, in which he said, "I am glad to know that I can yet call it (Paola) home, and, after a little wandering, return," was merely cumulative to a great deal of other competent evidence introduced by the defendant below in support of his motion to dissolve the attachment. Defendant below testified that he told Bigelow, before leaving Paola, that he did not intend to change his residence. This was not denied. The statements of Bear, made about four months before his property was attached, to the effect that he intended to return from New Mexico, and had not abandoned his residence in Kansas, were competent in his behalf. Church v. Rowell, 49 Me. 367; Offutt v. Edwards, 9 Rob. (La.) 90; Thompson v. Stewart, 5 Litt. 5; Baker v. Kelly, 41 Miss. 696, 93 Am. Dec. 274; Thorndike v. City of Boston, 1 Metc. (Mass.) 242; Wilson v. Terry, 9 Allen, 214; Insurance Co. v. Hillmon, 145 U. S. 285, 12 Sup. Ct. 909, 36 L. Ed. 706; Kilgore v. Stanley, 90 Ala. 523, 8 South. 130; 1 Greenl. Ev. (Lewis' Ed.) § 108.

The judgment of the court below will be affirmed.

(64 Kan, 887, 104 Kan. 286)

TATE et al. v. CROOKS et al. (Supreme Court of Kansas, Division No. 2. March 8, 1902.)

PARTNERSHIP-EVIDENCE.

Where plaintiffs purchased car loads of potatoes and shipped them to customers in the state, and defendants loaned them the money to make the purchases, collected their drafts, and kept their books, they to receive as compensation what potatoes they needed in their business at cost price, it did not constitute them partners with plaintiffs.

Error from district court, Wilson county; L. Stillwell, Judge.

Action by A. D. Crooks and J. L. Cook against John W. Tate and W. H. Tryon. Judgment for plaintiffs, and defendants bring error. Reversed.

Argued before SMITH, CUNNINGHAM, and GREENE, JJ.

The

PER CURIAM. This was an action to charge plaintiffs in error, as partners, with others, under the firm name of the Southwest Produce Company, upon a contract made by said company, and whether they were such partners was the determinative fact litigated. All of the evidence upon that point was presented to the trial judge, sitting as a jury, in the form of a deposition, and is found in the record. We are thus practically in the same position to determine this question of fact as was the trial judge. Durham v. Mining Co., 22 Kan. 232; Woodward, Faxon & Co. v. Clark, 30 Kan. 80, 2 Pac. 106. The witness who testified as regards this matter was one of the plaintiffs in error, who explicitly denied the partnership. It is claimed by the defendants in error, however, that the circumstances testified to by him were such as to create a partnership as a matter of law. facts were briefly as follows: Two brothers by the name of Anderson desired to engage in buying and selling produce, principally potatoes. Their plan was for one of them to go to Northern potato-producing states, purchase by the car load, and ship to customers who had been obtained by the solicitation of the other, operating in Kansas. The plaintiffs in error loaned these parties money with which to make these purchases, collected drafts made on their customers, kept their books, and to some extent conducted their correspondence. They were to have, as compensation for the use of the money, what potatoes they needed in their business, which was that of retail grocers, at cost price. A bond was given by the Andersons to repay this money. We do not think that this contract constituted plaintiffs in error partners with Andersons. We think that the court below, in holding that it did, was in error.

The judgment of the court below will be reversed, and the case remanded for further proceedings.

(27 Wash. 490) WASHOUGAL & L. TRANSP. CO. v. THE DALLES, P. & A. NAV. CO. (Supreme Court of Washington. March 5, 1902.)

QUIETING TITLE-SHORE LANDS-STATE GRANT -PUBLIC LANDS-UNITED STATES GRANTBOUNDARIES OF RIPARIAN OWNERS-RIVER MEANDER LINE-HIGH-WATER MARK-EROSION-ARTIFICIAL FILLS-APPEAL — EQUITY CASES REOPENING CASE FOR EVIDENCEABUSE OF DISCRETION,

1. What titles or rights pass under United States grants of lands is a federal question, and the judgment of a state supreme court thereon is subject to the appellate jurisdiction of the federal supreme court, and hence the decisions of such federal court on such questions are binding upon the state courts.

2. United States grants of public lands bordering upon navigable rivers convey title to the line of ordinary high-water mark of such rivers, regardless of the river meander lines, thus making such high-water mark the boundary of such grants in all cases where the meander line was run above such high-water mark; and the state cannot, by deed or otherwise, convey any lands above such high-water mark by reason of its ownership of the tide and shore lands bordering thereon.

3. In an action to remove a cloud on title to land, plaintiff claimed the land by reason of a state grant of all the shore lands in front of a certain United States river meander line, and defendant claimed it by virtue of a United States grant of the upland bordering on the river. The court found that the original meander line was above the high-water mark, but there was uncontradicted evidence that there were no shore lands originally at the point in controversy; that the banks were perpendicular, thus making the high and low water marks practically coincident; and that such shore lands as appeared at that point when the state grant was made were created by erosion and artificial fills. Held, that defendant's land extended to the original high-water mark, regardless of the meander line and of the shore line created by erosion and filling, and hence the state had no shore land which it could grant to the plaintiff.

4. If the reopening of an equity case for the admission of further evidence amounts to an abuse of the trial court's discretion, the only effect thereof would be that the supreme court would disregard the evidence so admitted, since, under the statute, it must try such cases de novo upon the evidence properly in the record.

Appeal from superior court, Clarke county; A. L. Miller, Judge.

Action by the Washougal & Lacamas Transportation Company against The Dalles, Portland & Astoria Navigation Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Carey & Mays, for appellant. Coovert & Stapleton, for respondent.

FULLERTON, J. This is an action to remove a cloud from title to real property. The respondent, who was plaintiff below, claims title to the property in question by virtue of a deed from the state of Washington, dated October 1, 1898, granting to it "all shore land of the second class situated in front of, adjacent to, or abutting upon that portion of the United States government meander line described according to the certified copy of the surveyor general's field notes as follows: Beginning at a point on said meander line on the right bank of the Columbia river in front of section 17, township 1 north, range 4 east, W. M., where the east boundary line of the Richard Ough donation land claim, No. 53, intersects same; thence along said meander line in front of sections 17 and 18, said township and range, as follows: N., 564°W., 20.00 chains, to the meander corner to fractional sections 17 and 18, which meander corner is 19.50 chains south of the corner to sections 7, 8, 17, and 18; thence N., 65° W., 11 hains; thence N., 624° W., 8 chains, to a -point on said meander line in front of said Richard Ough donation land claim; being a

total length of 39.00 chains, as measured along said meander line in front of said sections 17 and 18, township 1 north, range 4 east, W. M." The meander line mentioned is the usual meander line which is run by the government surveyors along the banks of navigable streams to mark the sinuosities of such streams, and for the purpose of determining the areas of the fractional subdivisions of the public lands bordering thereon. The uplands bordering on this part of the Columbia river were originally conveyed by the United States to Richard Ough and wife as a donation land claim, by patent bearing date December 22, 1865. In 1880, Richard Ough and wife conveyed by warranty deed a part of this claim-a tract containing some seven acres-to Joseph E. C. Durgin and Lewis Love. The description of this tract was by metes and bounds, the south boundary of which was described as running along the right bank of the Columbia river at low-water mark. At the time of the execution of this deed, Ough and wife leased to the grantees named therein the free use of the bank of the river from a point commencing at the southeast corner of the seven-acre tract, and running thence upstream for a distance of 200 feet. Afterwards one S. G. Reed became the owner, by certain mesne conveyances, of the seven-acre tract, and of the rights granted by the lease, whereupon he purchased from Mrs. Ough, who succeeded to the interests of Richard Ough in the donation land claim, a tract described as beginning at the southeast corner of the seven-acre tract above mentioned, and running from "thence upstream in said river, and following the lowwater line thereof, 200 feet; thence north or back from said river, at right angles with the same, a sufficient distance to include onehalf acre of land; thence westerly and parallel with low-water line of said river generally to the east line of said seven-acre tract; thence southerly along said east side line to place of beginning; containing one-half acre, together with riparian rights." Both of these tracts were afterwards conveyed by Reed to the appellant in this action. The corners of the Ough donation land claim bordering on the Columbia river were long since washed away and obliterated. The evidence shows that measurements made from existing monuments set by the government surveyors at the time of the original surveys would place them in the river below what is now lowwater mark. The original meander corner between sections 17 and 18 is also destroyed. This the surveyors employed by the respondent sought to re-establish by measuring from the section corner to sections 7, 8, 17, and 18. This corner was also destroyed, and it became necessary to re-establish it in order to get a base for the measurement. This they did by running a right line between the nearest existing section corners, and setting the last corner at a point proportionate to the distances given in the field notes of the original

survey.

From the corner thus established they measured south 19.50 chains, and established the meander corner. From the corner thus established they projected the meander line according to the calls in the original field notes given for that line at that point. Between the line thus projected and the present low-water mark of the river is a strip of land varying in width from 50 to 75 feet, extending across the south end of the halfacre and seven-acre tracts included with the appellant's deed. The respondent claims that this strip of land is shore land, and is included within its deed from the state of Washington, and that the appellant's deed thereto is a cloud upon its title. There was a sharp conflict between the testimony of the surveyors testifying on the part of the respondent and those testifying on the part of the appellant as to the true location of the meander line. The respondent's surveyors located it in the manner we have above indicated. The appellant's surveyors proceeded by a different method. They sought to establish the line by re-establishing the corners to the Ough donation land claim, and projecting the meander line according to its courses and distances as given in the field notes between these corners. This survey located the original line below what is now ordinary lowwater mark of the river. They also tested their work by pursuing the methods adopted by the surveyors employed by the respondent. In so doing they located the section corner to sections 7, 8, 17, and 18 some 20 feet further south than the respondent's surveyors located it. They also testified that existing monuments set by private surveyors at an early time, when the original surveys were comparatively new, and probably easily traced, such, for example, as the monuments marking the boundaries of the town of Washougal, would indicate that the section corner had been set originally further south than even their surveys located it, and sufficiently far to place the meander corner below what is now ordinary low-water mark on the river. There was much uncontradicted evidence also introduced on the part of the appellant tending to show that the river had gradually encroached upon the donation land claim. It was shown that the corners of the claim, including the witness trees, had been washed away; that a house constructed by the Oughs, which was originally some 300 feet or more distant from the bank of the river, is now about 15 feet distant therefrom; that an orchard paralleling the river bank had as many as three rows of its trees washed away. It was also shown that the banks of the river, particularly in front of the land in dispute, were originally perpendicular,—so much so, in fact, that there was little or no difference horizontally between ordinary low and ordinary high water mark; that steamboats drawing from 2% to 3 feet of water, plying on the river, landed directly against the bank at all seasons of the year, and dis

charged and took on freight directly from the bank. It was further shown that in 1880 some of the appellant's grantors had constructed a wharf on piles driven from the bank out to deep water; that this wharf had tended to collect débris drifting in the river, causing the bottom of the river to fill at this point, creating shore lands that did not originally exist.

At the conclusion of the evidence and arguments of counsel, the court took the case under advisement. Afterwards the court, on its own motion, made an order reopening the case for further evidence, reciting therein that the court was unable to make a finding from the evidence before it as to the location of the meander line of the Ough donation land claim at the point in controversy; that the same was material to a determination of the case; that the court had theretofore procured two expert and competent surveyors to make a survey, whereupon he fixed a time for taking their testimony, and caused notice thereof to be given to the respective parties. Against this order the appellant filed a written protest, contending therein that the court was without power on its own motion to reopen the case for further evidence, and that it was the court's duty, if the plaintiff had failed to make a case, to find against it and dismiss its action. The protest was overruled, and one of the surveyors named testified at the time fixed for the hearing. His testimony was to the effect that he had run over the lines after the manner adopted by the surveyors testifying for the respondent, testing them by some additional existing monuments, and had found their location of the meander line substantially correct. Thereafter the court made findings to the effect that the meander line as established by the respondent's surveyors was the true meander line; that the land between that line and the present line of ordinary low water was shore land, and passed to the respondent by the deed from the state; that the appellant's deeds were a cloud upon the respondent's title,-and entered a decree removing the cloud.

The respondent throughout the trial proceeded upon the theory, which the trial court seems to have finally adopted, that all of the lands lying between the meander line of the donation land claim, as originally run by the government surveyors, and the present line of low-water mark on the river, were shore lands, and that such part of it as lay in front of the line described in the deed from the state passed to it in virtue of that deed, regardless of the question whether the land lay below the line of ordinary high-water mark or not. Manifestly this is not the rule. What title or right passes under a grant of lands made by the United States is a federal question, and the judgment of a state supreme court thereon is within the appellate jurisdiction of the federal supreme court. Shively v. Bowlby, 152 U. S. 1, 14

Sup. Ct. 548, 38 L. Ed. 331. The judgment of that court on any question affecting the construction of such grants is therefore authoritative and binding upon the state courts. That court has repeatedly held that grants by congress of portions of the public lands bordering on or bounded by navigable waters convey the title to ordinary high-water mark, notwithstanding such navigable waters may have been meandered, and such meander line may not correspond with the line of ordinary high-water mark. "Meander lines," says Mr. Justice Clifford in Railroad Co. v. Schurmeir, 7 Wall. 272, 19 L. Ed. 74, "are run in surveying fractional portions of the public lands bordering upon navigable rivers, not as boundaries of the tract, but for the purpose of defining the sinuosities of the banks of the stream, and as the means of ascertaining the quantity of the land in the fraction subject to sale, and which is to be paid for by the purchaser." And in that case it was held, over the contention that a tract of land granted according to the description contained in the official surveys stopped at the meander line run along the banks of a navigable stream, that high-water mark on the stream itself, and not the meander line, was the boundary line. the same effect are the following cases: Jefferies v. Land Co., 134 U. S. 178, 10 Sup. Ct. 518, 33 L. Ed. 872; Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 838, 35 L. Ed. 428; Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331; Horne v. Smith, 159 U. S. 40, 15 Sup. Ct. 988, 40 L. Ed. 68.

To

But counsel seem to think this court has in its previous decisions announced a different rule. The cases chiefly relied upon to support this claim are Scurry v. Jones, 4 Wash. St. 468, 30 Pac. 726, and Cogswell v. Forrest, 14 Wash. 1, 43 Pac. 1098. These cases hold that the state of Washington, by the disclaimer in its constitution (section 2, art. 17), waived its right to assert title to such of the tide lands as lay above the meander line run by the government surveyors as the boundary of uplands which had been conveyed by patent from the government of the United States prior to the admission of the state into the Union. But however illogical it may seemingly be to hold that the meander line marks the boundary of a government grant when it runs below the line of ordinary highwater mark, but does not so mark it when it runs above that line, it is plain that the distinction rests upon widely differing principles. The title to all tide and shore lands passed to the state at the time of its admission into the Union. From thenceforward the state had the sole and absolute right and power of disposition over such lands, and it could, either in its fundamental law or by statutory enactment, provide for their disposition. When, therefore, by its constitution, it disclaimed "all title in and claim to all tide, swamp, and overflowed lands patented by the United States," it was within

the power of this court to determine the effect of the disclaimer; and the court could very properly hold that its effect was to vest title in the upland owner of all tide lands lying within the meander lines described in the calls of his patent. But the upland boundary of tide and shore lands is the line of ordinary high-water mark. Above that line the state's title does not extend, no matter where the government meander line may have been run; and the state cannot, by deed or otherwise, convey any title to or Interest in such land by reason of its ownership of the tide and shore lands bordering thereon. The primary disposition of the soil is vested exclusively in the congress of the United States. And as the federal court of last resort holds that the authorized grants of public lands bordering upon a navigable river made by congress conveys title to the line of ordinary high-water mark of such river, regardless of the meander line, this court must hold the line of ordinary high-water mark to be the boundary of such grants in all instances where the meander line was run above such line.

Applying these principles to the case at bar, it is evident that the meander line, conceding it to be correctly relocated by the trial court, does not necessarily determine the line of high-water mark of the river, or, what is the same thing, the river boundary of the Ough donation land claim. While the one may be presumptive evidence of the other, it is not conclusive evidence, and can be overcome by proofs, to the contrary. Here there are such proofs. It is not only shown that the meander line was originally run, if run at the place the trial court found it to be, above the line of high-water mark, but it is shown, as we have said, by uncontradicted evidence, that originally there were no shore lands at this point; that the lines of high and low water marks were practically coincident, differing only with the rise and fall of the river upon a perpendicular bank; and that such shore lands as may appear at that point now were caused in part by the erosion of the banks, and in part by the débris caught and held by the piling driven in constructing the old wharf erected by the appellant's grantors. This being true, the state had nothing at this place it could pass by a deed purporting to convey shore lands. It cannot be that shore lands created by the erosion of the banks of a stream within the boundaries of a private claim inure to the benefit of the state; nor can the state claim, as shore lands, fills in a river caused by artificial means. If such fills interfered with the right of navigation, it may be that the state could cause their removal as a nuisance, but this would be the extent of its power. It could not take possession of them, or sell them to the private use of another.

As the meander line does not mark the shore line, the question of practice suggested is not material to the determination of the