er. Other rights may have been conferred affirmatively authorized by Congress, to the in different states by statute, usage, or cus- navigable capacity of any of the waters of tom, but the question involved here is wheth- the United States, is hereby prohibited; er such additional rights exist in this state." and it shall not be lawful to build or comIt is further said (p. 485, 177 Ill., p. 795, merce the building of any wharf, pier, dol43 L. R. A., p. 266, 69 Am. St. Rep., and p. phin, boom, weir, breakwater, bulkhead, 1058, 52 N. E.): "Under the common law jetty, or other structures, in any port, roadas declared in this case [Shively v. Bowlby], stead, haven, harbor, canal, navigable river, -and it is fully sustained by the authori- or other water of the United States outside ties, it is apparent that appellant, as own established harbor lines or where no harbor er of premises bounded on Lake Michigan, lines have been established, except on plans took no title to any submerged lands under recommended by the chief of engineers and the waters of the lake, nor did he, by vir- authorized by the Secretary of War; and it tue of being a shore owner, have any right shall not be lawful to excavate or fill, or in to construct piers upon the submerged any manner alter or modify, the course, lolands without the consent of the state." cation, condition, or capacity of any port, The question to be decided in the Revell roadstead, haven, harbor, canal, lake, harCase was whether the riparian owner had bor of refuge or enclosure within the limits the right to build piers out in the water in of any breakwater, or of the channel of any order to protect the shore of his lands from navigable water of the United States, unless erosion. This right was denied, and the the work has been recommended by the chief court further said (p. 489, 177 Ill., p. 796, of engineers and authorized by the Secretary 43 L. R. A., p. 269, 69 Am. St. Rep., and p. of War prior to beginning the same." These 1059, 52 N. E.): "As we understand the provisions of the law were designed to procommon law, any structure placed upon the tect the navigable waters of the United land of the state below or beyond the wa- States from encroachment and from obstructer's edge in the waters of the lake is a pur- tions to navigation, and commit the duty of presture, and may be abated in a proceed- their protection to an officer of the general ing instituted on behalf of the people." government, without whose permission no structures can be erected in them. After a careful reading of the authorities, we see no reason to recede from the position taken in the Revell Case, and are satisfied that by the common law, unmodified by local usage, custom, or statute, a riparian owner had no right to build any structures on the submerged lands in front of his own land unless he owned such submerged lands or had a license to do so. The title of the owner of such submerged lands is not burdened with an easement in favor of the owner of the adjoining upland to build wharves out to navigable water. Such being the common law, it is the law of this state until altered by the legislature. It is conceded that the power of Congress over the navigable waters of the country is derived from the commerce clause in the Constitution of the United States, and that it is exclusive and paramount whenever Congress has definitely spoken on any subject under its jurisdiction. It has been held by the Federal courts that when Congress has authorized the erection of a bridge it is not necessary to obtain the consent of the state authorities for its erection, and that no compensation need be made to the state for the use of its property in the lands under water (Stockton v. Baltimore & N. Y. Appellant also claims that, by virtue of R. Co. 1 Inters. Com. Rep. 411, 32 Fed. 9), the license from the Secretary of War, he is and that an individual has no claim for comentitled to build this wharf, because, as he pensation when the general government says, a license from the executive officer of erects piers on his submerged lands, in aid the government to build this wharf means of navigation, and thus cuts off his access permission and authority from the United to the water. Scranton v. Wheeler, 179 U. States government to do so, and, such per- S. 141, 45 L. ed. 126, 21 Sup. Ct. Rep. 48. mission and authority being granted, neith- But, however that may be, we are of the er the state nor any of its agents has any opinion that the act prohibiting the erection control over the subject-matter. He refers of wharves without the consent of the Secto the river and harbor act of Congress of retary of War is a mere regulation for the September 19, 1890 (26 Stat. at L. chap. benefit of commerce and navigation, and that 907, p. 426), as sanctioning his contention. the license or permission of the Secretary of Section 7 of this act was superseded by §§ War is only a finding and declaration of 9 and 10 of the river and harbor act of such officer that such proposed structure March 3, 1899, chap. 425 (30 Stat. at L. would not interfere with or be detrimental 1121, 1151 [U. S. Comp. Stat. 1901, p. 3540]). to navigation, and not that it is equivalent Section 10 of the latter act is as follows: to a positive declaration by the authority of "That the creation of any obstruction not 'Congress that the licensee may build the wharf or other structure without first obtaining the consent of the owner of the submerged land on which it is his purpose to build. Appellant not having, by the law of this state, the right to construct a wharf over his neighbor's submerged lands without his neighbor's consent, could not acquire that right, without his neighbor's consent, by obtaining a license from the Secretary of War. the right to wharf out is not recognized, without the consent of the owner of the submerged land. The fixing of harbor lines is only a finding by an officer of the government that erections within such lines will not injure or interfere with navigation. If parties choose to build within such harbor lines, the general government will not interfere. It is not a declaration touching the rights of the owners of the submerged lands We are further strengthened in this view in the harbor. When harbor lines are not by § 11 of the act of Congress of 1899 (a established, or beyond established harbor substantial re-enactment of § 12 of the act lines, the permission of the general governof 1890), which authorizes the Secretary of ment to build a wharf in navigable waters War to establish harbor lines, beyond which is necessary. But such permission is not no piers, wharves, bulkheads, or other works given to override the rights of the owners of shall be extended, except under such regu- the submerged lands. It is, as said above, lations as may be prescribed from time to a declaration by the guardian of the intertime by him. When harbor lines are estab-ests of the public at large that the proposed lished, no permit or license from the Secretary of War is necessary to build a wharf not extending beyond such lines. It certainly cannot be said that because the statute does not make a license necessary in such a case, a riparian owner can build his wharf within the harbor lines, in a state where structure will not interfere with navigation. It is strictly permissive, and not an authorization by paramount authority to build the structure. The decree of the Circuit Court will be affirmed. KANSAS SUPREME COURT. Ingals X. LEE, by Next Friend, Plff. in บ. MISSOURI PACIFIC RAILWAY COM PANY. (........Kan.......................) 1. One who is entirely ignorant of the meaning of the ceremony of administering an oath is not a competent witness. 2. A ruling sustaining a demurrer to the evidence will not be reversed, notwithstanding that sufficient evidence was actually admitted by the trial court to make a prima facie case for plaintiff, where a part of the evidence essential for that purpose was incompetent and admitted over proper objection, although it was not formally stricken out, and no notice was given plaintiff that it was to be disregarded. The facts are stated in the opinion. Messrs. Atwood & Hooper and Lee Bond, for plaintiff in error: More care must be used towards a child of tender years, and less care must be expected of him than an adult. Kansas P. R. Co. v. Whipple, 39 Kan. 531, 18 Pac. 730; Washington & G. R. Co. v. Gladmon, 15 Wall. 401, 21 L. ed. 114. Contributory negligence of the person injured will not prevent recovery, where such negligence was known to the party causing the injury, and the injury could have been avoided by the use of reasonable and ordinary care. 37 Century Digest, p. 475, § 115; Grand Trunk R. Co. v. Ives, 144 U. S. 408, 36 L. ed. 485, 12 Sup. Ct. Rep. 679; Denver & B. P. Rapid Transit Co. v. Dwyer, 20 Colo. 132, 36 Pac. 1106; Indianapolis & C. R: Co. v. McClure, 26 Ind. 370, 89 Am. Dec. 467: Romick v. Chicago, R. I. & P. R. Co. 62 Iowa, 167, 17 N. W. 458; McGuire v. Vicksburg, S. & P. R. Co. 46 La. Ann. 1543, 16 So. 457; Christian v. Illinois C. R. Co. (Miss.) 12 So. 710; Czezeuzka v. BentonBellefontaine R. Co. 121 Mo. 201, 25 S. W. 911; Burnett v. Burlington & M. R. Co. 16 note; State v. Juneau, 24 L. R. A. 857; State v. Washington, 42 L. R. A. 553; and Uttermohlen v. Bogg's Run Min. & Mfg. Co. 55 L. R. A. 911. Neb. 332, 20 N. W. 280; Styles v. Richmond | Railway Company for injuries received in & D. R. Co. 118 N. C. 1084, 24 S. E. 740; alighting or falling from a flat car of a Gulf, C. & S. F. R. Co. v. Danshank, 6 Tex. freight train on the road of that company. Civ. App. 385, 25 S. W. 295; Hall v. Ogden His claim was that the defendant was reCity Street R. Co. 13 Utah, 243, 57 Am. St. sponsible on account of the refusal of an emRep. 726, 44 Pac. 1046; Young v. Clark, 16 ployee to protect him from injury after disUtah, 42, 50 Pac. 833; McKean v. Burling- covering him in a place of danger. The ton, C. R. & N. R. Co. 55 Iowa, 192, 7 N. W. trial court sustained a demurrer to the evi505; Purcell v. Chicago & N. W. R. Co. 109 dence, and the plaintiff brings this proceedIowa, 628, 77 Am. St. Rep. 557, 80 N. W. ing to reverse such ruling. 682: Houston & T. C. R. Co. v. Wallace, 21 Tex. Civ. App. 394, 53 S. W. 77; Houston & T. C. R. Co. v. Harvin (Tex. Civ. App.) 54 S. W. 629; Anderson v. Hopkins, 33 C. C. A. 346, 63 U. S. App. 533, 91 Fed. 77; Louisville & N. R. Co. v. Kemery, 23 Ky. L. Rep. 1734, 66 S. W. 20; Atchison, T. & S. F. R. Co. v. Todd, 54 Kan. 551, 38 Pac. 804; Johnston v. Atchison, T. & S. F. R. Co. 56 Kan. 263, 43 Pac. 228; Union P. R. Co. v. Ure, 56 Kan. 473, 43 Pac. 776. He Plaintiff testified in his own behalf. was at the time eleven years of age. Upon cross-examination, defendant's attorney inquired regarding his understanding of the nature of an oath, and moved to strike out his entire testimony on the ground that his answers showed that he was incompetent as a witness. The court overruled the motion, the defendant excepting. The defendant in error contends that, in passing upon the sufficiency of the evidence in behalf of plaintiff, Messrs. Waggener, Doster, & Orr, for this court should disregard plaintiff's own defendant in error: testimony, notwithstanding that the trial court admitted it. It is clear that without Among the defects of understanding which disqualified witnesses at common law was this testimony the demurrer should have inability to comprehend the character and binding obligation of an oath. 1 Greenl. Ev. §§ 365-7. Before testifying, the witness shall be sworn to testify the truth, the whole truth, and nothing but the truth. Civil Code, § 339. Before a person can give evidence in a court, he must take an oath or affirmation, as required by the provisions of our statute. Mayberry v. Siccy, 18 Kan. 291. To say that the mere taking of the oath, the compliance with the prescribed formality, but without any comprehension whatever of the meaning of its moral or legal requirements, or the moral or legal penalties consequent upon falsehood, is sufficient to justify a court in receiving testimony, is a proposition that passes beyond mere absurdity, and becomes monstrous in the extreme. Rex v. Williams, 7 Car. & P. 320; Carter v. State, 63 Ala. 52, 35 Am. Rep. 4; Com. v. Reagan, 175 Mass. 335, 78 Am. St. Rep. 496, 56 N. E. 577; State v. Belton, 24 S. C. 185, 58 Am. Rep. 245; Holst v. State, 23 Tex, App. 1, 59 Am. Rep. 770, 3 S. W. 757, 16 Am. & Eng. Enc. Law, pp. 267 et seq. The supreme court may consider the question of plaintiff's competency. Missouri P. R. Co. v. Pierce, 39 Kan. 391, 18 Pac. 305; Harwood v. Blythe, 32 Tex. 800; Dishazer v. Maitland, 12 Leigh, 524; Handley v. Missouri P. R. Co. 61 Kan. 237, 59 Pac. 271. Mason, J., delivered the opinion of the court: been sustained. Probably, if this testimony is to be considered, the demurrer should have been overruled. The two questions for our determination, therefore, are whether the plaintiff was a competent witness, and, if not, whether this court should consider his testimony in reviewing the decision upon the demurrer to the evidence. The entire testimony of plaintiff with regard to his competency is as follows, the last question being asked by his own attorney: Q. Ingais, do you know what an oath is? Q. You don't know what it means when Q. You have no idea what the obligation is which is required of you when you hold up your hand? A. No. Q. You don't know what would happen to you if you would tell an untruth, do you? A. No. Q. You haven't the least idea? Q. And then when you tell this story here, Q. You haven't the least idea? Q. You don't know whether they would put you in the penitentiary or not, do you? A. No. Q. Don't you know that if you should tell Ingals X. Lee sued the Missouri Pacifica lie they would put you in prison? A. No. Q. You don't know that? ror, but the language quoted is broader than required by the facts of the case, and, if it had not appeared that the testimony re Q. So you would just as soon tell the ferred to was given under the influence of truth as lie about it, so far as the punish-fright and embarrassment, a different result ment is concerned, would you? might have been reached. Moreover, in the case at bar the witness could not be disqual A. Yes. Q. When you say you don't know the na-ified within the literal terms of the statute. ture of an oath, Ingals, when you told this to this man, were you telling the truth or not? A. Yes. He was eleven years of age, and, even it found incapable of receiving just impres sions of facts or relating them truly, would still not be disqualified unless by implication. In this respect his case is very sim In support of the proposition that the wit-ilar to that of an Indian who was held to ness was competent, plaintiff in error argues that the decision of the trial court is conclusive, and not subject to review by this court. If the objection to his competency were that he was lacking in general intelligence or capacity, this contention would be sound. As to this matter the trial court, in seeing and hearing the witness, had means of reaching a just decision that are wholly wanting here. Moreover, the character of the boy's testimony relating to the facts of the case is such as to lead to the conclu sion that he was not mentally deficient. But the objection made is a very different one, namely, that he showed that he had no conception of the significance of an oath. His testimony in this regard is plain and unambiguous, and warrants no other conclusion than that he was entirely ignorant, not merely as to the character of the obligation assumed by a witness in taking an oath, but practically as to the fact that there was any such obligation. But plaintiff in error further contends that this does not disqualify him from testifying, the argument being that our statute has entirely superseded the common law in this regard. The statute in point (§ 4771, Gen. Stat. 1901) reads: "The following persons shall be incompetent to testify: Second, children under ten years of age who appear in capable of receiving just impressions of the facts respecting which they are examined, or of relating them truly." be a competent witness in Smith v. Brown, 8 Kan. 608, with this important distinction, that here the plaintiff showed that he had no knowledge that he might be punished in any way if he testified falsely. In the opinion in that case it was said: "The objection urged to this witness was not a want of sufficient age, or that he was an idiot, or insane, or of weak mind; but that he did not understand the nature and obligation of an oath. He was an uneducated Indian, not deficient in understanding, but uninstructed as to the nature of an oath, and mistaken as to the punishment for perjury, an act which by that name he did not know; yet he knew that it was wrong to speak falsely, and that he would be punished for so doing. Whether he believed that he would be punished in another life was a matter that could not be inquired into under our Constitution." The decisions on the question of the competency of children and other persons whose understanding of the nature of an oath is doubtful are many and conflicting. A numerous list is collected in a note to State v. Michael, 19 L. R. A. 605, to which later cases are added in the American. Digest, 1899 B, cols. 4621, 4622. It is not necessary for the purposes of this case to review these authorities in detail. We hold that there is by necessary implication a class of persons incompetent to testify, in addition to those expressly defined in the statute, namely, those who have no understanding In State v. Scanlan, 58 Mo. 204, decided that the taking of an oath imposes any new under a statute framed in the same words, obligation to speak the truth. We reach a girl of nine or ten years of age was held this conclusion less from any application of competent, although she said at one time the principles of the common law than from that "she did not know the nature or obliga- the consideration of the statute itself. It tion of an oath, nor what would be the con- is required that a witness be sworn before sequences of false swearing." This statement was made while she was frightened testifying, and this requirement is mandaand embarrassed, but was not in terms con- tory. Mayberry v. Sivey, 18 Kan. 291. In tradicted. The second paragraph of the syi-order that the ceremony of swearing the labus reads: "The only test of competency witness may be effective at all, it is cerin a child under ten years of age to be a tainly necessary that he understand somewitness is whether it appears incapable of thing of the meaning of it. If he has no receiving just impressions of the facts, or such understanding whatever, the form is of relating them truly." This decision seems idle; under such circumstances the witness to support the contention of plaintiff in eris not sworn at all in any reasonable sense, or in contemplation of law. If he merely holds up his hand and nods his head in response to the formula propounded him, not understanding that in doing so he has assumed any additional obligation to tell the truth, or risk of punishment should he fail to do so, he has no more bound himself than if he were of unsound mind. The assent he yields, to be effective, must be an intelligent assent, and it cannot be intelligent if he has no idea of the meaning of what he is doing. In State ex rel. Yilek v. Jehlik, 66 Kan. 301, 61 L. R. A. 265, 71 Pac. 572, it is held that a woman who is an imbecile cannot institute a proceeding in bastardy. In the opinion it is said: "The statute, it is true, provides that ‘any unmarried woman,' etc., may institute an action, and such terms, without qualification, are broad enough to include idiots and lunatics. There is language, however, employed in the same connection, which clearly implies that only rational beings were within the contemplation of the legislature. As already indicated, she only can begin the prosecution, and that she is to do by making a written complaint on oath. Only those who understand the binding force of an oath and are capable of giving testimony, are within the spirit and intent of the act. Having no mind or understanding, there was, in fact, no complainant." In order that one may be competent as a witness, it is not necessary that he should have a definite or accurate knowledge of the difference between his duty to tell the truth after being sworn and that already existing, still less that he should be able to state it; but it is necessary that he should be conscious that there is a difference. As is said in Hughes v. Detroit, G. H. & M. R. Co. 65 Mich. 10, 31 N. W. 603: "A witness must be under some pressure, arising out of the solemnity of the occasion, beyond the ordinary obligation of truth-telling." In the present case the witness said that he did not know what an oath was, that he did not know what it meant when he held up his hand and was sworn, and had no idea of what the obligation was which this act required of him; that he had not the least idea of what would happen to him if he told an untruth, and that, so far as punishment was concerned, he would just as soon tell the truth as lie about it. Nothing in the record tends to detract from the force of these statements. We think they show that the witness had no just appreciation of the fact that he was under any legal or moral restraint by reason of having taken an oath, and that therefore his testimony should have been stricken out and disregarded. evi The It remains to determine whether the evidence of this incompetent witness should be considered by this court in reviewing the ruling sustaining the demurrer to the evidence, the trial court having refused to strike it out. In Duveneck v. Kutzer, 17 Tex. Civ. App. 577, 43 S. W. 541, and in several cases there cited, it is held that a demurrer waives all objection to the admissibility of the evidence to which it is addressed. Huntington Nat. Bank v. Loar, 51 W. Va. 540, 41 S. E. 901, and Megrue v. Lennox, 59 Ohio St. 479, 52 N. E. 1022, are to the contrary. This court has, however, definitely determined the question in Gillett v. Burlington Ins. Co. 53 Kan. 108, 36 Pac. 52, where a decision sustaining a demurrer was affirmed, although incompetent dence, sufficient (except for its incompetency) to complete a prima facie case for plaintiff, had been admitted by the trial court and not formally stricken out. second paragraph of the syllabus reads: "Where incompetent testimony is received over objection, it is within the province of the court to correct such error at any time before the final disposition of the case; and, upon a demurrer to plaintiff's evidence, it is not improper for the court to strike out or to disregard such incompetent testimony.” It is obvious that this rule imposes something of a hardship upon a plaintiff, in that it requires him to judge at his own risk of the competency of evidence that he offers, instead of permitting him to rely upon rulings in his favor. But the issue raised by the demurrer is one of law. The evidence is passed upon by the court. The jury is for the time eliminated. It is a familiar fact that-especially in matters presented for the determination of a court-evidence is often admitted tentatively, the decision being held subject to reconsideration upon the submission of the whole matter. such a case it is not essential to a review of the result that a definite final ruling should be indicated upon each objection made. court is supposed to consider so much of the testimony as is competent, and to disregard the rest. The situation is not terially different when a demurrer to the evidence is presented. The trial court, at least in the absence of a distinct and affirmative recital in the record to the contrary, must be deemed to have finally left out of consideration any evidence that ought not to have been admitted, or that ought to have been stricken out. The judgment is affirmed. All the Justices concur. In The ma |