which point the waters gradually receded and at last disappeared? The latter might coincide with the former, but, where the two do not coincide, which should control? If the waters had receded, leaving some of these small bodies of water at different points in the original lake, division might be made upon the theory that they constitute independent lakes, to be treated as central points. But, as a general rule, such conditions do not exist, and the center of the fig jacent to the shore. In some cases, by a [tion as the water receded toward the center fair partition, a shore owner would, by his the difficulties would increase, and, now that extent of shore line, obtain a share beyond the water has entirely disappeared, we find the center. But it seems impossible, if the the side lines converging upon one another whole water is to be regarded as divided up, to such an extent that the rule cannot be to reach a division without some proceeding strictly applied. Whatever inequalities or in the nature of a partition, which will fix injustice may arise from these conflictthe various possessions." And again, in the ing interests, caused by the irregularcase of Jones v. Lee, 77 Mich. 35, 43 N. W. ity of the shore, must be solved upon 855, the same learned justice, in discussing some equitable basis which will, as nearly the general question, states: "It appears as possible, give to each proprietor that porclearly enough in the present case that, tion of the increase which belongs to him. while there is a considerable frontage facing | In the first place, What is the center of the northwest or southeast, the lake being long-lake bed? Is it the center of the figure est in that direction, there must also be (lake bed), or is it the deepest portion to large end frontages which look up or down the lake perpendicularly, or nearly so; to any line across from bank to bank, at most places along the shores. If this body of water were not navigable, and if all its waters could in any way be apportioned among the riparian proprietors for any lawful purpose, it is evident that it could not be done by reference to any filum aquæ, or middle thread, but must be done by some rule of proportion, which probably could only be got at by some partition proceeding, inas-ure must be accepted as the common center. much as such waters are common for all ordinary uses." And in Hardin v. Jordan, 140 U. S. 402, 35 L. ed. 440, 11 Sup. Ct. Rep. 808, 838, the court says: "If there should arise any question between the plaintiff and other riparian owners of lands situated on the margin of the lake, as to the convergence of the side lines of the plaintiff's land in the lake, it can be disposed of by the parties themselves by a resort to equity, or to such other form of procedure as may be proper." And in referring to the difficulties of applying the general rules of division it was said: "Where a lake is very long in comparison with its width, the method applied to rivers and streams would probably be the most suitable for adjusting riparian rights in the lake bottom along its sides, and the use of converging lines would only be required at its two ends." To return to a consideration of the lake bed in question, eliminating the center-line theory for the reason already stated, we are unable to apply any principle of ownership to the disputed land except the one already recognized by this court in the decisions above noted; i. e., that the several riparian proprietors own that portion of the increase immediately adjacent to and included in the triangle made by projecting lines from the points where the side division lines respectively cross the marginal line to the center of the lake. Had the waters only receded a few rods from the marginal line, there would be little difficulty in dividing up the strin of land thus laid bare; but in propor An examination of the plat Fig. 2, where a central point, C, is assumed, discloses that, if a division be made according to this principle, lot 1, section 20, will have an advan tage over lot 2, which lies immediately south, on account of the peculiar formation of the point or projection of land which extends into the lake. The same thing occurs in lot 4, section 17, and lot 10, section 18, the latter having the advantage, and a difficulty arises as between lots 10 and 11, section 19. The chief difficulty, however, is in reference to lots 1, 12, and 14, at the western end of the lake. Commencing with lots 1 and 2, in section 20, lot 1 should not be permitted to have the advantage given it by the projection into the lake at the intersecting line between 1 and 2. The inequality occasioned by this irregularity in the shore ought to be divided between the parties immediately affected. It is a fair adjustment as between the two lots that such projection be ignored, and the division line running to the center point start, not at the marginal line, but at the point where the division line of lots 1 and 2 crosses a line drawn from the point where the northerly side line of lot 1 crosses the marginal line to the point where the south line of lot 2 crosses the marginal line as indicated on Fig. 2. This would result in giving to lot 2 a slight portion of the increase directly in front of the southwest corner of lot 1. The same principle applied to lot 4, section 17, and lot 10, section 18, makes an equable division, as indicated on the plat. In respect to lots 10 and 11, sec ders, the property of the owners of lots 1, 14, and 12, which should be apportioned between them by the court in accordance with the acreage acquired by each in the bay west of the dotted line A, B. We are aware that in applying this method of dividing the lake bed it will be a mat points. They may be located by the interested parties by common consent, and, if they cannot agree, a competent surveyor can ascertain them by actual tests, or by the application of a mathematical rule which is used for the purpose. It is also apparent that some of the divisions of land thus alloted would be of no practical value on account of their peculiar shape. No doubt the small tracts would be purchased by the larger holders, or be otherwise adjusted to make the land practically useful. tion 19, the inequality may be adjusted as in- | C, less the portion of lot 11 within its bordicated on the plat. This arrangement gives lot 10 all it is entitled to, and gives lot 11 no credit for the small bay of the lake where the dividing line between the lots crosses the marginal line. Lot 12, section 18, bordering on the northwest corner of the lake, had a considerable water frontage, but, on account of the peculiar shape of the point of land atter of some difficulty to find the exact center the southerly part of lot 11, the division line between lots 11 and 12 crosses the marginal line at a point too far south to leave any considerable portion of the lake bed adjacent to lot 12, and the interests of lots 1, 11, 12, and 14 conflict in any attempt to divide up the bed immediately in front of those lots. There are two ways of adjusting this inequality: First, by disregarding the point of land at the southerly end of lot 11, and dividing the space on the principle applied to lots 1 and 2, section 20; and, second, treat the bay bordering on lots 1, 14, and 12, west of the dotted line A, B, as an independent lake. The latter method might very properly be applied if, as the waters receded, some portion were cut off from the main part of the lake by a ridge across the neck of the bay, or if there were a deep central point where the water remained last. The evidence is silent on the subject, and we can only assume that such condition did not exist, and that the lake bed slopes gradually from west to east. However, even if such were the case, this bay may be treated by analogy as a separate lake, and by so doing the interests would appear as indicated in the plat Fig. 2, assuming D to be the center point. This arrangement leaves the irregular tract A, B, D, The method of adjustment here suggested may not be suitable for the division of all irregular lake beds, but we have aimed to outline a plan which will give the riparian owners as near as possible what is theirs by law. Let it be understood that the effect of this decision is not to direct a division of the lake in question according to Fig. 2. We have attempted only to lay down certain principles which may be applied in case the facts shall prove to be as we have assumed them to be. Upon a new trial evidence should be taken as to the history of the lake, and the division worked out as near as may be in accordance with the principles herein defined. Order reversed, and new trial granted. SOUTHERN MISSOURI SUPREME COURT. ILLINOIS & MISSOURI traffic for the benefit of which the bridge is to be erected. 3. That a corporation has under its charter power to condemn land for 8 certain purpose will give it no right to exercise the power in another state unless it is permitted to do so by the laws of the latter. 4. Power to construct railroad toll bridges is not destroyed by the amendment of a statute providing for the formation of corporations to construct bridges by striking out a provision requiring the articies of incorporation to state whether the bridge is to be for railroad or other purposes, and remitting incorporators to the general provisions of the statute in forming their articles of incorporation without mentioning railroad purposes as one for which a bridge may be constructed. 5. A railroad bridge is within the provisions of a statute permitting the construction of bridges for public use. said corporation," in the section of a sippi river, in Scott county, in this state, statute providing for the creation of bridge for approaches, roadway, and terminal companies, which specifies for what purposes yards. The amount of land which it sought property may be acquired under the power of eminent domain, so as to read "for ap- to condemn for its use as a bridge company proaches, road, foot, or wagon ways," does was about 20 acres, a strip 200 feet wide not indicate an intention to deprive a com- and about 4,500 feet long, and extending pany organized to construct a railroad bridge west from the bank of the river. The deof the power to condemn property for termi- fendants were the record owners when the petition was filed. The application in the nal accommodations for the use of such rail roads as may desire to use the bridge, since the word "road" may be held to include rail-first instance was made to Judge Riley, the road. regular judge of the Scott circuit. An affidavit of prejudice was filed against him, and he thereupon granted a change of venue to Judge Fort's circuit, and sent the case to Dunklin county. The petition is as follows: 7. A statute authorizing a foreign bridge company upon filing its articles of incorporation and receiving a certificate from the secretary of state, to transact within the state the business which its charter authorizes, confers upon it the right to acquire by the exercise of the power "In the Circuit Court of Scott County, of eminent domain the property which is Missouri, to October Term, 1902. Southern necessary for its approaches and terminal Illinois & Missouri Bridge Company, Plainfacilities, where by the local laws that is one of the incidents of the granting of a charter tiff, v. Robert Stone, R. M. Finley, Nannie authorizing the construction of such a bridge. E. Finley, David Heldt, Burhardt Miller, and The fact that a corporation organ-Perry Bates, Defendants. Plaintiff for its ized to build a bridge is not expressly cause of action says: It is a corporaauthorized by its charter to obtain approaches by an exercise of the power of eminent domain does not bring an attempt to secure such approaches in a foreign state within the operation of a constitutional provision of such state forbidding any company to engage in business other than that expressly authorized by its charter. 8. 9. Courts will not take judicial notice of legisiative acts or statutes of other states, PPEAL by plaintiff from a judgment of A the Circuit Court for Dunklin County denying its right to acquire property by an exercise of the power of eminent domain. Reversed. Statement by Gantt, J.: tion regularly incorporated under the laws inois Bridge Co., as located and platted, beginning at a point on the east line of fraetional sec. 24, twp. 30, R. 14 east, and 1,240 ft. from the S. E. cor. of said frac. sec.; thence run south, 70 degrees 45 minutes This is an appeal from a judgment of east, 765 feet; thence by a one degree curve the circuit court of Dunklin county dismiss to the right 980.4 ft.; thence south, 59 deing the petition of the plaintiff, in which it grees 45 minutes east, 924.8 ft.; thence by prayed for the appointment of commission- a 2 deg. 30 min. curve to the left 1,289.3 ft.; ers to assess the damages which would be thence N., 87 deg. 51 min. east, to the west sustained by its appropriation of certain bank of the Mississippi river. Said center land lying on the west bank of the Missis-line intersects the north line of twp. 29 or "Second. It appears from the face of the plaintiff's pretended petition that the plaintiff is a corporation incorporated under the laws of the state of Illinois for the purpose of constructing and maintaining and operating a bridge across the Mississippi river, and these defendants say such a corporation, incorporated under the laws of another state, for such a purpose, has no right, power, or authority, under the Constitution and laws of Missouri, to condemn property of any kind situated in the state of Missouri, for any use, public or private. 100 ft. west of the N. W. cor. of lot 2 in | tended petition. It appears upon the face the . E. qr. of sec. 2, twp. 29, R. 14 east, of said pretended petition and of said and also intersects the west line of said lot pretended notice summons that said 2, 69.1 ft. south of the N. W. cor. of said lot petition was never ordered filed and 2. The tract above described contains 20.3 said pretended notice or summons never oracres, and will appear by a blue print here- dered issued by the court or judge, and that to attached and made a part of this peti- said pretended petition was received and said tion. That the defendants herein, together pretended notice made out without authority with R. M. Finley, the husband of one of from the court and contrary to law. the defendants, are the owners of said real estate. That defendants Heldt, Miller, and Bates are tenants, having growing crops on different portions of said real estate. That the defendants have refused to relinquish to the plaintiff the right to the occupancy and use of said real estate for the purposes designated. That your petitioner has endeavored to agree with defendants and each of them upon the price to be paid for said property, but has been unable to amicably settle or to agree at all upon a proper compensation to either of the parties defendant. That said real estate is necessary for the laying of tracks and the handling of business over and across plaintiff's bridge. Wherefore your petitioner prays the court to make such order and decree that may be proper and necessary, and to appoint three freeholders of the county of Scott and state of Missouri as commissioners to assess the damages which defendants may sustain in consequence of the establishment, erection, and maintenance of said road and approaches over and through the said premises and for all proper orders." Summons regularly issued and was served on defendants. When the cause reached Dunklin county, the defendants filed the following pleading which they denominate an "answer" in the caption, and a "motion" in the body: "In the Circuit Court of Dunklin County, Missouri. Southern Illinois & Missouri Bridge Company, Plaintiff, v. R. G. Stone, R. M. Finley et al., Defendants. Answer. Defendants in the above-entitled cause, Robert G. Stone, R. M. Finley, and Nannie Finley, limit their appearance herein for the sole and only purpose of this motion, and make the following suggestions and objections against the appointment of commis sioners as prayed for in plaintiff's pretended petition: "Third. It does not appear by said pretended petition that plaintiff has received any authority from the Congress of the United States to erect a bridge across the Mississippi river. "Fourth. It does not appear by said pretended petition that plaintiff has any right or authority to do business in the state of Missouri, there being no allegations anywhere in said pretended petition showing compliance by it with sections 1014, 1015, 1016, 1017, 1024-1025, 1026, and 1027, article 1, chapter 12, of the Revised Statutes of Missouri, 1899. "Fifth. It does not appear by said pretended petition that plaintiff has surveyed or located the ground over and upon which it pretends to have the right to build railway tracks, bridge, and terminal yards, nor does it appear by said pretended petition that it has filed in the office of the clerk of the county court of Scott county any profile or map of any such survey or location. "Sixth. The plaintiff has no right, power, or authority under the law to condemn a strip of land 200 feet wide for a right of way for railroad purposes, or for any other purpose. "Seventh. These defendants further state that prior to the time of the issuance of the pretended notice or summons herein, and "First. No summons or notice has ever that prior to the delivery of the said pre been issued and served upon these defend- tended petition to the clerk of the circuit ants in the manner required by law. The court of Scott county, Missouri, they had pretended summons or notice purports to sold, conveyed, and transferred the land dehave been issued by the clerk of the court, scribed in said pretended petition in good and it does not appear that prior thereto faith and for a valuable consideration to the said court or the judge thereof had or- J. H. Crowder, L. B. Houck, and Giboney dered plaintiff's petition to be filed, nor that Houck, by deed duly signed, executed. the court or the judge thereof ordered any acknowledged, and delivered, and recorded summons or notice issued upon said pre- in the office of the recorder of deeds of said Scott county. Defendants further state that, prior to the beginning and prior to the pretended institution of this suit in the circuit court of said Scott county, the aforesaid deed had been duly filed for record in the office of the recorder of deeds of said Scott county. Defendants further state that long prior to the execution of the aforesaid deed they had entered into a contract with the said grantees in said deed for the sale and conveyance of said real estate to said grantees, and that said deed was executed and delivered in pursuance of said contract for the sale of said land, and that the plaintiff herein had notice and knowledge, long prior to the execution of said deed, and long prior to the pretended beginning of this suit, of the existence of said contract of sale, and of the fact that these defendants had sold said property to the said grantees in said deed. So the defendants say that at the time of the pretended beginning of this suit they were not the owners of said property and had no title thereto, and did not appear upon the record in the recorder's office of said county as own ers thereof, or as having title thereto; but, on the contrary, the plaintiff herein had constructive notice of said sale and conveyance by the record thereof in said recorder's oflice, as well as actual notice and knowl-Bridge Company is defendant, the object of edge of said sale and conveyance. business in this state violates the plain provisions of section 1024 of the Revised Statutes of Missouri, 1899, and section 7 of article 12 of the Constitution of Missouri. "Tenth. These defendants further state that the appropriation by the plaintiff of any part of the real estate mentioned in plaintiff's pretended petition by the plaintiff herein, to any extent whatever, would not only interfere with the use of the same by the Cape Girardeau & Thebes Bridge Terminal Railroad Company for the purpose for which it has acquired and appropriated the same, but would utterly ruin and confiscate the same as the property of said Cape Girardeau & Thebes Bridge Terminal Railroad Company; and, even if the plaintiff has a right to condemn, which these defendants deny, the condemnation attempted by the plaintiff in this proceeding would and does violate the fifth subdivision of section 1075 and section 1272 of the Revised Statutes of Missouri, 1899. "Eleventh. Defendants further show and state to the court that there is now, and has been since May 2, 1902, pending in the said circuit court of Scott county, Missouri, a suit wherein the Cape Girardeau & Thebes Bridge Terminal Railroad Company is plaintiff and the Southern Illinois & Missouri which suit is to permanently restrain and "Eighth. Defendants further state that enjoin the plaintiffs herein from in any way prior to the beginning of this pretended suit, interfering with said property, and from doand prior to the delivery of the plaintiff's ing anything in or about said property pretended petition to the clerk of said tending to disturb the said Cape Girardeau Scott circuit court, and prior to the issu- & Thebes Bridge Terminal Railroad in its ance of the pretended notice or summons sole and exclusive possession and use of herein, and prior to the pretended service said property; and that a temporary inof the said pretended notice or summons on junction of the said Scott county circuit these defendants, the Cape Girardeau & court issued in said cause is now, and has Thebes Bridge Terminal Railroad Company, been since May 3, 1902, in full force and a corporation organized under the laws of effect, and by said temporary injunction the state of Missouri, for the purpose of plaintiff herein, its agents and employees, constructing and maintaining a railroad in and all who may act in aid of them or Scott county, Missouri, from Frensdorf Sta-either of them, were and are now enjoined tion, on Houck's Missouri & Arkansas Rail- and restrained from interfering in any way road, to the Mississippi river, had bought and had acquired and had appropriated to the public use and for the purpose for which it was incorporated, the property described in the said pretended petition. "Ninth. Defendants further state that the plaintiff, which is a corporation under the laws of the state of Illinois, had no right to construct and operate a railroad, nor to engage in the railroad business, in the state of Missouri, because such business is not expressly authorized in its charter or by any law of this state under which said corporation may come; and this proceeding by it to condemn property for the building of a railroad and its engaging in the railroad with said Cape Girardeau & Thebes Bridge Terminal Railroad Company in its exclusive use, occupancy, and possession of said property, and particularly enjoined and restrained from prosecuting the very suit in which this motion is filed, and from taking any possession, and from doing anything under or by virtue of any order or proceeding in this suit to disturb said Cape Girardeau & Thebes Terminal Railroad Company in its said exclusive use, occupancy and possession of said property; and that permitting plaintiff to further prosecute this suit, or making any further order or judgment for them or in their behalf in this cause, would be contrary to the terms of said injunction, |