of the survey of said lands returned to the General Land Office by the surveyor general." By divers mesne conveyances from the patentees, the title to lots 3, 5, 6, and 7, containing, according to the plat and to the patents therefor, the following quantities of land respectively: Lot 3, 50.37 acres; lot 5, 34.75 acres; lot 6, 30.5 acres; and lot 7, 25.25 acres, became vested in the plaintiff in the year 1891, and prior to the commencement of these actions; and the plaintiff is still the owner thereof, and, as such owner, has within the boundaries of the lots as shown upon the plat, and within the meander line of the lake described in the field notes, the full quantity of land above described as contained therein. The title to the government lots 1 and 8 (which are the only lots in the east half of section 4 apparently bounded by the lakes) was conveyed by government to certain patentees, and the patent title thereafter became vested in Simon J. Murphy and others, by whom a quitclaim deed was executed and delivered to the plaintiff, prior to the commencement of these actions, purporting to grant and quitclaim to the plaintiff that part of the southeast quarter of section 4 lying southerly and westerly of a line drawn from the center of the section to the southeast corner thereof, and also all the interest of the grantors in the west half of the section. At the same time, the plaintiff executed and delivered to Mr. Murphy and others a quitclaim deed purporting to convey to them that part of the east half of section 4 lying northerly and easterly of a line drawn from the center of the section to the southeast corner thereof.

the direction of the lake each of these lots has only one boundary, the lake itself, and that the meander line is not a boundary line for any purpose. In support of this claim, counsel invokes the well-settled general rule that a meander line is not a boundary line, but that the water whose body is meandered is the true boundary, whether or not the meander line in fact coincides with the shore line, for the latter, being a natural monument, must control courses and distances.

The first and leading case in this court upon this question is that of Schurmeier v. St. Paul & P. R. Co. 10 Minn. 82, 88 Am. Dec. 59, Gil. 59, which involved simply a question of riparian rights. In that case, the meander line was actually run along the Mississippi river, and was substantially the same as the shore line thereof. The land in dispute was a sand-bar island lying in the river, and the controversy was whether a fractional government lot, confessedly bounded by the river, stopped at the water's edge, or extended to the navigable waters of the stream, so as to include the island. The fact that plaintiff was a riparian owner was conceded, and only the extent of his riparian privileges and estate was in controversy. The contention was made that the meander posts on the bank marked the boundary of the landowner, but the court held that the river, and not the meander line, was the boundary line of the lot, and that the patentee thereof took title to the land between the meander line and low-water mark in the river, which included the island in question. The case was affirmed by the supreme court of the United States. 7 Wall. 272, 19 L. ed. 74.

The trial court found, as a conclusion of law, that the plaintiff is the owner of gov- In Everson v. Waseca, 44 Minn. 247, 48 ernment lots 3, 5, 6, and 7 in section 4 of N. W. 405, the meander line and the actual township 57 N., of range 17 W., in St. shore line of Loon lake in Waseca were not Louis county, Minn.; and that the pretend at all points coincident. Fractional governed meander line of the lake, as the same is ment lot 2 was delineated as lying on the described in the purported field notes of south side of, and as bounded by, the lake, but the surveyor, and as delineated upon the the meander line at this point was in fact plat, is the boundary line of the land owned run some distance from the shore of the by plaintiff in such lots. And, further, the lake, leaving a tract or point of several defendants are not, nor is either of them, acres of dry land between it and the shore. in possession of any part of the land in sec- It was held, following the Schurmeier Case, tion 4 belonging to the plaintiff; nor do the that the patentee of lot 2 took title to such defendants, or either of them, withhold point. The case of Lamprey v. State, 52 from the plaintiff any land of which it is Minn. 181. 18 L. R. A. 670, 53 N. W. 1139, the owner, or to the possession of which it was one involving a question of riparian is entitled. Do the facts found by the rights only for the meander line, and the court sustain this conclusion? The claim actual shore lines of the lake meandered of the plaintiff is that all patentees of lots were substantially the same at the time the which by the government plat were shown survey was made. The lake in question to abut upon the lake took their respective was a shallow and non-navigable one, comtitles by reference to the plat, and thereby prising about 300 acres, and after the suracquired, not only each as against the gov-vey, and before the litigation arose, the ernment, but each as against the other, the waters of the lake gradually receded, and right to a frontage upon the lake; that in the lake had practically ceased to exist.

Thereupon the Land Department of the | for the question here is as to the boundaries United States caused a survey to be made of the fractional lots owned by the plainof the former bed of the lake, and issued tiffs. If in this case there was in fact, or patents therefor. The plaintiffs claimed ever had been, a lake upon which any part title thereto by virtue of their ownership of the several fractional lots abutted, the of the land abutting on the lake when the general rule would apply, and their boundoriginal survey was made. The defendants ary would be the lake. But such is not this claimed that the patent, according to the case, for there was in fact no lake at or original survey through which plaintiffs within any reasonable distance of the meanclaimed title to the former bed of the lake, dered line or any part thereof, and never only conveyed the land to the margin of the had been, to which the meander line might lake as it existed when the survey was made. be found referable. It also appears, from Hence there was no question in that case the court's findings of fact and Exhibit B, as to any discrepancy between the mean- that the side lines of some of the lots would dered line and the actual shore line of the have to be extended from one-half to one lake, but, as said by the court, the question mile to reach the lake; that, as to others, if was: What rights in or to the soil under their side lines were extended at right angles water does the patentee of land bounded by they would miss the lake entirely; and that, a meandered inland lake acquire by his pat-if the side lines of all of the fractional lots ent? The court held that such patentes took title to the center of the lake and, therefore, the subsequent patent was void. In Olson v. Thorndike, 76 Minn. 399, 79 N. W. 399, the meander line purported to coincide with the bank of the Minnesota river, but in fact it did not do so, and a point of land 51 rods long by 26 rods wide at one end, running to a point at the other end, lay between the meander line and the river. This court held, following the Schur-paid for. In short, this is not a case where meier Case, that the point of land lying outside of the meander line was a part of the fractional lot which abutted on the river according to the official plat. The court, however, in its opinion, said: "There may be cases in which the error in the government survey is so gross that the purchaser of the fractional, or supposed fractional, subdivision of the government land, will not take to the shore of the stream or lake, although the plat of the subdivision calls for such shore as one of the boundaries. It was held that Whitney v. Detroit Lumber Co. 78 Wis. 240, 47 N. W. 425, presented such a case. That case is cited in Lamprey v. Mead, 54 Minn. 290, 55 N. W. 1132. But there is nothing in the record from which it can be held that this is such a case."

In the cases of Hardin v. Jordan, 140 U. S. 371, 35 L. ed. 428, 11 Sup. Ct. Rep. 808, 838, and Mitchell v. Smale, 140 U. S. 406, 35 L. ed. 442, 11 Sup. Ct. Rep. 819, 840, the general rule announced in the Schurmeier Case was followed. But in those cases, as well as in the cases in this court to which we have referred, there was in fact a stream or lake to be meandered, and the shore line of the body of water and the meander line substantially coincided except where tongues or points of land extended out into the body of water beyond the meander line, or the waters had receded; and the question was one of riparian rights strictly. No such questions are involved in this case,

were so extended, they would overlap each other in inextricable confusion. And, further, that, if the so-called meander line be accepted as a boundary line, it will give to the patentees or their grantees the full quantity of land bought and paid for by them, but, if they are permitted to extend their lot lines through the adjacent forest to the lake, they will obtain more than three times as much land as they purchased and

the surveyor, in running a meander line, has made a fair and honest attempt to follow the sinuosities of the shore line of an actual body of water, and by exclusion or inclusions of irregularities of contour has produced an average and approximately correct result, but one where the existence, at any time, of a lake upon which any part of the fractional lots in question could abut, is a pure fiction. Such being the case, it is not within the general rule as to meander lines; for the. far-away lake is an impossible boundary for all of the lots in question, and could never have been intended by the government and the patentees as the boundary of the lots. The official plat was only intended to be a picture of the actual conditions on the ground; but the fraudulent mistake in the plat in this case was so gross that no man actually viewing the premises could possibly be misled, or believe that the shore line of the lake was intended as the boundary line of the lots. He would understand at once that the meander line as traced on the plat was the actual boundary line of the lots. This case, then, is one where the call for the natural monument, the lake, must be disregarded; for the admitted facts show that it is an impossible call, and that, if it is rejected, the courses and distances and the meander line will exactly close, and give to the plaintiff the precise quantity of land bought from the government and paid for. It falls within the

In

. . If

rule that a meander line is not, as a general | government and its grantees are estopped proposition, a boundary line; yet the bound- to deny the supposed fact as represented to aries of fractional lots will not be indefi- the purchasers of abutting land. nitely extended where they appear by the there never was a lake in front of plaintiff's government plat to abut on a body of water lots, or if one did not exist there at the time which in fact has never existed at substan- of the survey, then there was no natural tially the place indicated on the plat. object or monument marking the north such exceptional cases, the supposed mean- boundary of said lots; hence resort must be der line will, if consistent with the other had to the secondary evidence, viz., the calls and distances indicated on the plat, courses and distances which are ascertainmark the limits of the survey, and be held able from the plats and surveys, and they to be the boundary line of the land it demust prevail. The result is natural, and limits. Horne v. Smith, 159 U. S. 40, 40 the land conveyed would be just what a L. ed. 68, 15 Sup. Ct. Rep. 988; Niles v. nathematical calculation would produce Cedar Point Club, 175 U. S. 300, 44 L. ed. 171, 20 Sup. Ct. Rep. 124; Fuller. Shedd, from the field notes of the survey of the 161 Ill. 462, 33 L. R. A. 146, 44 N. E. 286; fractional sections and the supposed meander line. . . ." The cause was brought into Whitney v. Detroit Lumber Co. 78 Wis. 240, 47 N. W. 425; Grant v. Hemphill, 92 Iowa, the Supreme Court of the United States by 218, 59 N. W. 263, 60 N. W. 618; French writ of error sued out by the plaintiff, and Live Stock Co. v. Springer, 35 Or. 312, 58 he there cited, in his brief, Murphy v. KirPac. 102. wan, 103 Fed. 104, and urged, among others, this point: "The patents in this instance, on their face and when read in connection with the plats, conveyed all the public land up to the line of Lake Malheur. If, by reason of any error or fraud, the survey improperly included or omitted any public land, then the obviously proper mode of correction was a bill in equity putting directly in issue the supposed error or fraud. To allow the apparent purpose and legal effect of the patents to be defeated upon proof of error in the plats does not differ, in principle or practical result, from canceling the

The last case cited was affirmed by the Supreme Court of the United States, and its decision in that case seems conclusively to establish the rule we have stated. In that case the government plat showed that the fractional lots in question were bounded on the north by the meander line of Malheur lake. The land in controversy lay outside the meander line, but adjoined the lots. The plaintiff claimed that the lake, at the time of the survey and for some years thereafter, was a continuous body of water up to the meander line, but that from year to year, for some time, its waters receded, leav-patents in a suit at law." The court, howing the disputed land bare. The defendant ever, affirmed the decision of the state court, introduced evidence tending to show that and in doing so said: "If, indeed, there there never was a lake in front of the lots; had been a lake in front of these lots at the that Malheur lake was a well-defined body time of the survey, which lake had subseof water lying northeasterly from the lots; quently receded from the platted meander that, if the lines of the lots were extended line, the claim of the owner of the lots to north indefinitely, they would never inter- the increment thus occasioned might be consect the lake; that the lake never extended ceded to be good if such were the law of to the supposed meander line; and that the state in which the lands were situated. there had never been any recession of the But if there never was such a lake-no wawaters, so as to constitute the land in con- ter forming an actual and visible boundary troversy reliction in front of the lots. The -on the north end of the lots, it would seem questions of fact so presented were tried, unreasonable either to prolong the side lines and found in favor of the defendant, and, of the survey indefinitely until a lake should upon plaintiff's appeal, the supreme court be found, or to change the situs of the lots of Oregon, in affirming the decision of the laterally in order to adapt it to a neighbortrial court, said: "The real question of caring lake. The jury having found that the dinal and pivotal concern arises upon the urgent and strong contention and argument of counsel for plaintiff that the official survey of the lake, the approval thereof, and the official plats and maps made thereunder, showing the lake and the meander line thereof, conclusively establish the fact and location of the lake so far as the rights of riparian grantees are concerned, and the

facts under this issue were as claimed by the defendant in error, the conclusion must be that the rights of the plaintiff in error must be regarded as existing within the actual lines and distances laid down in the survey and to the extent of the acreage called for in the patents, and that the meander line was intended to be the boundary line of the fractional section." French

Glenn Live Stock Co. v. Springer, 185 U. S. 47, 46 L. ed. 800, 22 Sup. Ct. Rep. 563. Our conclusion is that the trial court in this case was correct in holding that the boundary line of the plaintiff's lots was the line

appearing on the government plat as a meander line.

Judgments affirmed.

Affirmed by Supreme Court of United States, February 29, 1904.

NEW YORK COURT OF APPEALS.

James H. HOAG, Respt.,

υ.

Edward WRIGHT et al., Exrs., etc., of Hester Hoag, Deceased, Appts.

(174 N. Y. 36.)

1. The payee of a note alleged to have been made by one since deceased is incompetent to testify, in an action to enforce its payment, that the note was in his possession prior to the maker's death, where no evidence as to delivery has been given, under a statute forbidding interested witnesses to testify as to personal transactions with decedents against whose estate claims are sought to be established.

2. An objection to the competency of evidence is not sufficient to raise the question of the competency of the witness, where the evidence is competent, but the witness is under statutory disability to testify to the facts.

3. A ruling admitting competent evidence to be given by a witness who at the time was incompetent, over the objection that the evidence was not competent, does NOTE.-Examination of witnesses to handwriting by comparison.

I. Scope of note, 163.
II. Direct examination.

a. Of ordinary, or nonexpert, witnesses.
1. Generally, 163.

not require a reversal where evidence subsequently admitted removed the disability, and by a proper objection the witness might have been qualified before his testimony was received.

4. Opinion evidence of the payee of a note as to the genuineness of the deceased maker's signature is not made inadmissible by a statute forbidding interested witnesses to testify as to personal transactions with decedents, where the opinion is not based upon knowledge gained in such transaction.

5. Where a handwriting expert makes a mistake in his effort to distinguish spurious from genuine signatures, and he does not acknowledge his error, it may be shown by other testimony.

6.

That evidence to show that a handwriting expert has been mistaken as to signatures which he has pronounced genuine will introduce collateral issues does not render it incompetent.

7. It is error to strike out an admission by a handwriting expert that he had been mistaken as to signatures which he had pronounced genuine, although the trial judge might, in his discretion, have excluded an

| to writing, and the examination, by that or other means, of expert witnesses called to testify simply by juxtaposition and comparison, are included in this discussion; and the questions, as to what witnesses are competent to testify as to handwriting, either as nonexperts, from knowledge of the hand, or as experts, from a

2. Refreshing the recollection of the comparison; as to what is a proper standard witness, 164.

b. Of expert witnesses.

1. Generally, 166.

The questions treated here are incidental to the main question presented in the note to University of Illinois v. Spalding,. 62 L. R. A. 817, upon Comparison of Handwriting generally. This note is limited to the discussion of what is a proper method of examination of witnesses to handwriting, in connection with that method of proof of handwriting which consists of opinions as to its identity or source, derived from juxtaposition of several writings and comparison of their characteristics.

So the examination, accompanied by such comparison, of ordinary or nonexpert witnesses

with which the comparison may be made; and as to when, and how, and where, and by whom such comparison may be made,-are excluded; the last question being the subject of the note referred to above, and found in 62 L. R. A. 817.

II. Direct examination.

a. Of ordinary, or nonexpert, witnesses.

1. Generally.

The general rule as to comparison of handwriting prohibits comparison by witnesses who are not qualified as experts, having, from frequent comparisons, especial knowledge of handwritings generally. There is no present authority for juxtaposition and comparison, properly so called, by nonexpert witnesses upon the direct examination (except in the states of Delaware and Michigan, treated in the note to University of Illinois v. Spalding, 62 L. R. A. 817).

The rule excluding comparison by nonexperts applies where the party calling a witness is taken by surprise as to his testimony.

Where a defendant called a witness to prove the plaintiff's signature to a receipt, but he was unwilling to express an opinion, and then the

effort to secure such admission in the first instance.

8. Papers containing false signatures

A

which were pronounced genuine at a former trial by experts called at the second trial may be introduced in evidence for the purpose of showing the former mistake, and thereby affecting the weight of their opinions.

(February 24, 1903.)

Mr. James M. Hunt, for appellants: It was error to permit the plaintiff himself to testify that the signatures attached to the alleged notes were in the genuine handwriting of his deceased mother, Hester Hoag, the testatrix of the defendants.

Richardson v. Emmett, 170 N. Y. 412, 63 N. E. 440; Re Weeks, 23 App. Div. 151, 48 N. Y. Supp. 908; Hobart v. Verrault, 74 App. Div. 444, 77 N. Y. Supp. 483. PPEAL by defendants from a judgment Whenever the statute prohibits an interof the Appellate Division of the Su-ested party from testifying directly concernpreme Court, Second Department, affirm- ing a transaction or communication with a ing a judgment of the Westchester Coun- deceased party, it prohibits just as positivety Circuit in plaintiff's favor in anly indirect testimony involving such transaction brought to enforce payment of action or communication. certain promissory notes and the amount alleged to be due upon an open ac

count. Reversed.

Clift v. Moses, 112 N. Y. 426, 20 N. E. 392; Boyd v. Boyd, 164 N. Y. 234, 58 N. E. 118; Richardson v. Emmett, 170 N. Y. 412, 63 N. E. 440.

The facts are stated in the opinion. defendant submitted to him other papers pur- A witness was called by the plaintiff to prove porting to be signed by the plaintiff, but hav- the signature of the defendant to the agreeing no connection with the case, in order to ment sued upon, and stated that he once saw obtain his opinion upon them before question-him sign his name to a paper which he had in ing him further in regard to the signature to his possession in court; that the fact made so the receipt, it was held that this course of ex- slight an impression upon his mind that, judgamination was improper, and that the witnessing from that single occurrence, he was not able should not be examined as to the other writ- to say whether the handwriting to the agreeings until he had first, from his own recollec- ment was the defendant's or not; that he would tion of the plaintiff's handwriting, given an not venture, from a mere inspection of the opinion upon the signature of the receipt in paper, to form a belief on the subject; but that, question but the court suggested that, if the by comparing the signature to the agreement witness had been called on the other side to with that which was subscribed to the paper discredit the receipt, and had assigned as his then in his possession he was able to swear that reason for not believing it to be genuine that he believed it to be the defendant's writing. it differed in some particular point from the This procedure was objected to as being complaintiff's ordinary signature, it would have parison of handwriting. But the decision of been competent for the defendant to attempt to Dallas, L. C. J., distinguished it. He said: convince him that he was mistaken by exhibit-"The present case, however, turns upon a difing to him other genuine signatures of the plaintiff, which, by containing or lacking the peculiarity on which he laid stress, might convince him or satisfy the jury that he was mistaken. Gleeson v. Wallace (1847) 4 U. C. Q. B. 245. (As to the cross-examination of a nonexpert witness, see infra, III., a, 1.)

2. Refreshing the recollection of the witness.

One method of proof of handwriting which in theory is distinct from actual comparison by juxtaposition, but in practice is generally ac companied by a juxtaposition of two writings, so that it amounts to the same thing in the end, is that by means of a nonexpert witness who has seen the person write whose signature is disputed, but is yet unable, from his insufficient knowledge of the handwriting in question to swear to the identity of the disputed writing with the genuine production of the other person. In such a case it has been commonly the custom, since a decision in 1816, to allow the party producing such a witness to show him a paper containing what the witness knows to be the genuine writing of the person whose signature is in question, and to ask him whether, upon refreshing his recollection of the handwriting, he is then able to swear to the authorship of the disputed writing.

This kind of proof was first allowed in 1816 in the case of Burr v. Harper, Holt N. P. 420.

ferent point.

Comparison of handwriting has been rejected upon two grounds: (1) That, unless a jury could read, they would be unable to judge of the supposed resemblance; (2) that specimens may be unfairly selected, calculated to serve the purpose of the party producing them, and, therefore, not exhibiting a fair example of the general character of the handwriting. But the present evidence cannot, in strictness, be called a comparison of handwriting. What are the materials of judgment to which a witness has recourse when he says that he believes a particular signature to be the handwriting of a particular person?

He has seen the person write, and he is presumed to have formed a standard in his mind; and with that standard to compare the writing in question. This standard will be more or less perfect according as the instances have The mere fact of been more or less frequent. having seen a man once write his name may have made a very faint impression upon the witness's mind. But some impression, however slight in degree, it will make; and surely, as the standard exists, and the witness possesses the genuine paper, he may recur to it, to revive his memory upon the subject. Here, a basis is laid in the fact of his having seen the defendant sign his name once. But his memory is defective. He then recurs to a paper which he knows to be an authentic writing. He uses it to retouch and strengthen his recollection,