Opinion of the Court.

edge or margin of the stream. If the record in this case shows the existence and concurrence of all these facts, this judgment, upon the authority of the cases cited, may be affirmed; but if it shall appear that the case made by the record does not show the existence of the supposed facts, reversal must follow.

It is not pretended that Meredosia lake is a stream or body of water navigable at common law,—that is to say, it is not within the ebb and flow of the tide,-and hence the rules of law applicable in such case can not be invoked. The contention is, that Meredosia lake is a stream of water about five miles long, emptying into the Illinois river, with its southern extremity and outlet within the bounds of section 16.

A careful examination of the record shows that this lake is a natural body of water, five or six miles long, and in some places a mile in width; that it is fed by springs; that its southern extremity extends into section 16; that it has no connection with any stream of water, except by a slough at the south end, and near the south line of section 16; that the body of the lake, in its natural state, is without current, but that during portions of the year a current of water passes from the lake, through the slough referred to, into the Illinois river, which flow, however, is stopped in the summer. The record does not show the average width of the lake, the average depth of the water in the lake in its natural state, nor whether or not it is in fact navigable, nor are we able to learn therefrom the length and width of the slough, nor the depth of the water flowing through the same, or the rapidity of the flow from the lake into the river at the natural stage of water in the lake. All we can know of this outlet we must gather from the plat made by the township trustees in 1846, taken in connection with the fact testified to by witnesses, that for a portion of the year some water from a land-locked natural body of currentless water, five or six miles long, and in places a mile in width, flows therethrough, and from this, alone, we are asked

Opinion of the Court.

to find and hold that such a body of water so situated is a stream, and not a lake. This, as we understand the law, we can not do.

The word "stream" has a well-defined meaning, wholly inconsistent with a body of water at rest. It implies motion, as, to issue in a stream,-to flow in a current. (Webster's Dictionary.) Indeed, the controlling distinction between a stream and a pond or a lake is, that in the one case the water has a natural motion,-a current,-while in the other the water is, in its natural state, substantially at rest. And this is so, independent of the size of the one or the other. The flowing rivulet of but a few inches in width is a stream as certainly as the Mississippi. And when lands are granted by the proprietor of both land and stream, bounding such grant upon the stream, the grantee acquires right and title to the thread or middle of the stream. This right is grounded upon the presumption that the grantor, by making the stream the boundary, intended his grantee to take to the middle of the stream; and this presumption will prevail until a contrary intent is made to appear. (Rockwell v. Baldwin, 53 Ill. 19.) The right spoken of does not rest upon the principle that when a grant is bounded on a stream, the bed of the stream to the thread or middle passes as incident or appurtenant to the bordering land, for the bed of the stream is land, though covered with water, and land can not pass as appurtenant to land. As is said in Child v. Starr, 4 Hill. 369: "A conveyance of one acre of land can never be made, by any legal construction, to carry another acre by way of incident or appurtenance to the first." The riparian proprietor claiming to the thread or middle of the stream must show the bordering water to be a stream, and that his grant, in terms or legal effect, is bounded upon or along such stream,-that the stream is made the boundary. And while it is obvious that a currentless body of water can not be a stream, the fact of some current in a body of water, is not of itself, in every instance, .

Opinion of the Court.

sufficient to determine its character as a stream, as distinguished from a pond or lake. The presence of some current is not enough, alone, to work an essential change in so essentially different things as a stream and a lake, for a current from a higher to a lower level does not necessarily make that a stream or river which would otherwise be a lake; nor the swelling out of a stream into broad water sheets does not necessarily make that a lake which would otherwise be a river. Angell on Water-courses, sec. 4.

We are, therefore, constrained to hold, that the position, size and character of this body of water, as shown by this record, fixes its character as a lake, and not a stream, notwithstanding some part of its water, during a portion of the year, may flow through the slough into the Illinois river.

Another fact, the existence of which is presupposed, is, that the proper officers, acting under the laws of the State, granted the lands bordering on so much of the stream called Meredosia lake as was within section 16, bounding such grants on the stream. The only grants shown in this record to have been made, and upon which this contention could be based, are the patents issued to Edward Watson and Edward Lusk. Watson took, under his patent, that part of section 16 designated on the plat of the section made by trustees, as lots 12 and 13, containing 221 acres, by survey, and Lusk took, under his patent, lots 3 to 11, inclusive, by the same plat, containing, by the plat, 88,75 acres. By reference, the plat of the section made by the trustees in 1846, became a part of the conveyance, as much so as if it had been copied into the patent deed. (Piper v. Connelly, 108 Ill. 646; Louisville and Nashville Railroad Co. v. Koelle, 104 id. 455.) And the rule of law is, that when lands are purchased and conveyed in accordance with a plat, the purchaser will be restricted to the boundaries as shown by the plat. (McCormick v. Huse, 78 Ill. 363,-citing McClintock v. Rogers, 11 id. 279.) The patent deeds contain no intimation that the lots conveyed

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Opinion of the Court.

border on a lake or stream, and when we look at the plat, as we must, all we can determine, is the shape and area of the several lots. No data is given from which we can determine the width or depth of any lot; nor can we know from the plat that either the east line of lot 3 or the west line of lots 4 to 13, inclusive, as shown on the plat, are, in fact, the western and eastern boundary of Meredosia lake. It may be so, in fact, but this record fails to show it to be so, while as to lots 1 and 2 the record does not show that they were at any time sold or conveyed, or the title vested in the State in any way divested. We therefore hold, that it does not appear, by the record, that the State, for the inhabitants of the township, granted all the lands bordering on Meredosia lake, and within this fractional section 16, nor that the grants, to the extent they were made, were bounded on the lake.

It is thus seen that the essential facts, the existence of which is presupposed as a basis for the defence interposed, are not shown to exist, and hence the defence based on the right as riparian owners on streams to take ad filem aquæ, can not be invoked, and has no application to this case. For the reasons stated, all the evidence offered by appellees, on the trial, relating to the title, ownership and possession of the lots shown by the trustees' plat, should have been refused as immaterial, and its reception, over the objection of appellants,

was error.

One other question remains to be considered, viz.: Appellees claim that they are in possession "of a portion of water known as Meredosia lake, claiming title to it by possession for more than twenty years, as fishermen." Appellants sue for a body of land. Some part of the premises described in the declaration must form the bed of that part of Meredosia lake within section 16, but what part is lake-bed, and what shore, we can not determine from this record. Appellees' claim of title by possession is not of land, but of water. But if this should be thought hypercritical, and it be assumed that

Syllabus.

appellees' claim is of twenty years' adverse possession of the bed of the lake within the section, still it must be observed that such possession of land as here claimed, is a conclusion of law arising from existing facts. The evidence preserved in the record goes no further than the declaration of witnesses that appellees, and those under whom they claim, had, and had had, exclusive possession for that length of time; but how, and to what extent,-whether the lake, or any part of it, was enclosed by fences, dams, walls or weirs, and how this adverse dominion was manifested,-there is not one word to show. The claim, under this proof, is without force or merit. The judgment of the circuit court is reversed and the cause remanded.

Judgment reversed.

SARAH PINNEO

v.

FRANCIS GOODSPEED et al.

Filed at Ottawa May 12, 1887.

1. RES JUDICATA-effect of a judgment of reversal, as to a master's report. A master's account of the rents and profits fixed the rents, etc., at three dollars per acre, and a decree was entered approving the same, and, among other provisions, striking a cross-bill from the files. The Supreme Court reversed that decree, chiefly on the ground of the striking out of the cross-bill, holding that one of the parties was not bound by the master's statement of the account, and that such account was not sufficiently specific, and the opinion stated, that "so much of the decree, therefore, as directs a dismissal of the supplemental cross-bill, and approves of the report of the master," etc., is reversed, etc.: Held, that there was no confirmation of the master's report by the judgment of this court, and that the former finding of the master as to the rents to be charged, went for naught, and did not become res judicata.

2.

MORTGAGEE IN POSSESSION-liability to account. A mortgagee in possession of the mortgaged premises is only required to account for the actual receipts therefrom, less such sums as he may have paid out for taxes and necessary repairs, unless it is shown that more might have been realized by reasonable diligence.