the party claiming to have an equitable title to the land is out of possession, his equitable right will be barred if he fails to take steps within a reasonable time to establish it unless he can show an actual hindrance or impediment caused by the fraud or concealment of the party in possession. In determining the validity of an equitable claim to real estate, the court will take into consideration such questions as the loss of muniments of title; 2 the no such omission on his part in perfecting the right he claimed as the law deemed laches, and that he was entitled to a decree establishing his title. Michie v. Ellair. 54 Mich. 518. 1. Hail. Law, 102 U. S. 461; United States v. Moore, 12 How. (U. S.) 209; Wagner v. Baird, 7 How. (U. S.) 234; Pindell v. Mulliken, 1 Black (U. S.) 585; Underwood v. Dugan, 24 Fed. Rep. 74: Comer v. Comer, 119 Ill. 170; Whipple v. Whipple, 109 Ill. 419; Murphy v. Blair, 12 Ind. 184; Severns v. Hill, 3 Bibb (Ky.) 240; Farrow v. Farrow, 6 B. Mon. (Ky.) 482; Allen v. Allen, 47 Mich. 74; Hendrickson v. Hendrickson, 42 N. J. Eq. 657; Chapin v. Wright, 41 N. J. Eq. 438; Weiss v. Bethel, 8 Oreg. 522; McGrew v. Foster, 113 Pa. St. 642; Carr v. Wallace, 7 Watts (Pa.) 394; Hughson v. Mandeville, 4 Dessaus. (S. Car.) 87; Hines v. Thorn, 57 Tex. 98; Carlisle v. Hart, 27 Tex. 350; Cholmondely v. Clinton, T. & B. 107. Presumption of Validity of Title.-In Pope v. Harrison, 16 Lea (Tenn.) 82, and Pope v. Alwell, 16 Lea (Tenn.) 99, the court held that a lapse of sixty years, while not absolutely conclusive against an action in equity to recover land which was not otherwise barred, afforded a strong presumption of the validity of a judicial sale through which the defendants derived title. Laches for Less than Statutory Period. -If a person purchases property with knowledge of an equitable claim prior to his own, he cannot plead laches for a period less than the statute of limitations as a defence to the action, no rights of third persons having intervened. Connecticut Life Ins. Co. v. Eldridge, 102 U. S. 545. Subrogation to Rights of Mortgagee. A sister made payments on a mortgage of her brother's land upon the understanding that she was to be substituted to the mortgagee's rights. She intended that her brother should have the land free of expense during his life, and that his widow should have a home there after his death. Held, that a suit brought by her executor and trustee four years after her death, three years after the death of her brother and three months after the death of his widow, was not barred by laches, the facts having come to his knowledge only a short time previous. The court laid stress úpon the fact that the bill had been filed quite as soon as the deceased would have enforced the mortgage if she had lived. Robertson v. Mowell, 66 Md. 530. Vendor of Lands.-The laches of a vendor in claiming land in the possession of his vendee, who has set up an adverse claim as purchaser of an outstanding title, will be sufficient to bar an action. Green v. Dietrich, 114 Ill. 636. The proprietor of a hotel died intestate, leaving a wife and several children, of whom plaintiff, then six years of age, was one. Two adult sons, in order to preserve a home for the widow and younger children, took charge of the hotel property, charged themselves to the estate with the value of the property, paid a balance due of the purchase price, and continued business in their own name for more than thirty years under the supposition that they owned the legal title. For more than twenty years after attaining majority, plaintiff had asserted no claim to the property. Held, that her claim was barred by lapse of time. Hendrickson v. Hendrickson, 42 N. J. Eq. 657. Knowledge of Adverse Possession.To charge a party with laches, it is not necessary that he should have knowledge of the defendant's adverse possession. Bowman v. Webber, 1 How. (U. S.) 189. Parties obtaining wrongful possession, and setting up a false title (under color of instruments finally condemned), during the investigation of which they are protected in their possession of the court, shall not avail themselves of any length of possession pending the investigation, as a bar to the person who ultimately proves to have the right. Bond v. Hopkins, 1 Sch. & Lef. 413. 2. Brewer v. Keeler, 42 Ark. 289. loss of other evidence; the acquisition of rights by innocent third parties; the death and insolvency of persons against whom purchasers otherwise would have had recourse; 3 and the increased value of the property.4 XXXIII. INTEREST. -Where interest is recoverable, not as part of the contract, but by way of damages, if the plaintiff has been guilty of laches in unreasonably delaying the prosecution of his claim, it may be properly withheld. But it would appear that where the delay of the plaintiff in bringing his action has been for the defendant's benefit, and that the plaintiff has been prevented from having his damages ascertained, and in that sense has been kept out of the sum that would have made him whole so long that that sum is no longer an indemnity, the jury, in their discretion, and as incident to determining the amount of the ori ginal loss, may consider the delay caused by the defendant, and may add interest on the original damage. XXXIV. COSTS.--Where the successful party has been guilty of unnecessary delay in instituting proceedings, the costs are deemed to be within the discretion of the court, and may be granted or refused as to the court seems proper. 1. Brewer v. Keeler, 42 Ark. 189; Lequatte v. Drury, 101 Ill. 77; Page v. Booth, I Rob. (Va.) 161. 2. Harkness v. Underhill, I Black (U. S.) 316; Wall v. Arlington, 13 Ga. SS; Howe v. South Park Commrs., 119 Ill. 101; Chew v. Farmers' Bank of Maryland, 2 Md. Ch. 232; Page v. Booth Rob. (Va.) 161. 3. Chew v. Farmers' Bank of Maryland, 2 Md. Ch. 232. 4. Harkness v. Underhill, 1 Black (U. S.) 316; Howe v. South Park Commrs., 119 Ill. 101. 5. Redfield v. Ystalyfera Iron Co., 110 U. S. 174; Adams Express Co. v. Milton, 11 Bush (Ky.) 49; Morford v. Ambrose, 3 J. J. Marsh. (Ky.) 688; Newel v. Keith, 11 Vt. 214; Baun v. Dalzell, 3 C. & P. 376; Merry v. Ryes, I Eden 1. Claim for Services as Agent.-In Newel v. Keith, 11 Vt. 214, the plaintiff sued for compensation for services as agent under an agreement which fixed no time of payment. The services lasted during a period of sixteen years, and the claim was first made in administration proceedings after the death of the principal. It was held that under the circumstances interest ought only to be allowed from the principal's death. 6. Delay Pending Decision of Test Case. In an action for damages for flooding lands it was urged that interest should not be added because the delay arose from the plaintiff's not bringing his action. He had, however, presented his claim, and was informed that the defendants denied their liability. A case involving the same questions was then pending, and plaintiff delayed until that had been decided before bringing suit. It was held that the delay was caused by the defendant as truly as if a suit had been begun and continued to await the decision in the test case, and that interest was properly allowed. Frazer v. Bigelow Carpet Co., 141 Mass. 126. 7. Barge's Appeal, 108 Pa. St. 510; Colclough v. Sterum, 3 Bligh 181; Lamare v. Dixon, L. R., 6 H. 414; South Eastern Ry. Co. v. Brogden, 3 Macn. & G. 8, 28. Discretion of Court.-By the articles of incorporation of the American Academy of Music, Philadelphia, stockholders holding five shares were en titled to receive tickets for admission to a certain portion of the house. It had long been the custom of certain shareholders to make a fictitious sale of five shares to persons who purchased them for the sake of obtaining tickets of admission. This practice, which had existed from the first incorporation of the company, began to injuriously affect the other stockholders only about two or three years before a suit was brought to enjoin the practice, there having XXXV. EVIDENCE.-The burden of proof is on the party alleging laches; and if fraud on the part of a defendant relying upon laches is proved, he must prove that the plaintiff was guilty of delay after acquiring knowledge of his rights.2 XXXVI. PLEADING.-The person seeking relief must set forth the reasons for the delay, the means used by the respondent to conceal his fraud, and the time when and manner in which he first acquired knowledge of the facts.3 If the laches of the plaintiff and the staleness of his claim is apparent from the pleadings, objection may be taken by way of demurrer. It is not necessary, however, that the defence should be pleaded. If the evidence shows laches on the part of a plaintiff, objection may be taken at the hearing and relief will be denied.5 been up to that time ample accommodation for all the stockholders who wished to avail themselves of the privilege. The suit was brought against the company and two of the directors to enjoin them from continuing the practice of fictitiously transferring shares to persons who simply wished to obtain admission to the performances. The injunction having been granted, it was held that under the circumstances the company were properly found liable in the costs of the suit. The court said: "As to the question of costs, we do not think they should be imposed upon the plaintiffs who are successful in their suit, on the theory of laches. It is true the practice of issuing tickets of admission in similar circumstances had long prevailed. But as it worked no practical injury to the plaintiffs, they were scarcely to be subjected to a duty to litigate for their rights. The practice only prevailed to an extent sufficient to affect the rights of the plaintiffs for two or three years before suit was brought, and we do not think a delay during such a period of entering into litigation, which most persons wisely dread, can be called laches. On the other hand, the two principal defendants might well say that they did but follow an example which had been set and followed for a number of years without objection. Of course they might, nevertheless, incur the penalty of costs, but the discretion of the court below has imposed them on the corporation, which at least sanctioned and participated in the objectionable practice, and we do not feel warranted in interfering with that discretion." Barge's Appeal, 108 Pa. St. 510. 1. Wall v. Cockrell, 1 H. L. Cas. 229. 12 C. of L.-39 See also Pickering v. Staniford, 2 Ves. 2. Lindsay Petroleum Co. v. Hurd, L. R., 5 P. Č. 221. 3. Marsh v. Whitmore, 21 Wall. (U. S.) 178, 181; Badger v. Badger, 2 Wall. (U. S.) 95; s. c., 2 Cliff. (U.S.) 137; Stearns v. Page, 7 How. (U. S.) 819; s. c., 1 Story (U. S.) 204, 215. 4. Lansdale v. Smith, 106 U. S. 392; Spiedel v. Henrici, 120 U. S. 377, 7 Sup. Ct. Rep. 610; Sullivan v. Portland etc. R. Co, 94 U. S. 811; Maxwell v. Kennedy, 8 How. (U. S.) 210; Copen v. Flesher, 1 Bond (U. S.) 440; Solomon v. Solomon, 81 Ala. 505; Furlong v. Riley, 103 Ill. 628; Hall v. Fullerton, 69 Ill. 448; School Trustees v. Wright, 12 Ill. 432; Williams v. First Presbyterian Society, 1 Ohio St. 478. Laches cannot be taken advantage of by demurrer if it can only be made out inferentially from the statements in the plaintiff's pleadings. To be available it ought to be expressly pleaded. Deloraine v. Browne, 3 Bro. C. C. 633; Turner v. Borlase, 11 Sim. 17; Mitf. Pl. 212; Sheldon v. Keokuk Northern Line Packet Co., 10 Biss. (U. S.) 470. 5. Sullivan v. Portland etc. R. Co., 94 U. S. 811; Fisher v. Boody, 1 Curt. (U. S.) 206, 218; Baker v. Biddle, 1 Baldw. (U. S.) 394, 418; Adams v. Taylor, 14 Ark. 62; Kline v. Vogel, 90 Mo. 239. But compare Baent v. Kennicutt, 57 Mich. 268; Ross v. Willoughby, 10 Price 2; Leavenworth County v. Chicago R. I & P. R. Co., 12 Am. & Eng. R. Cas. 354. Plea of Not Guilty.-In an action of trespass to try title the defence of laches may be made under the plea of not guilty. Montgomery v. Noyes (Tex.), 11 S. W. Rep. 138. 609 LAKES AND PONDS (See also ACCRETION; BOUNDARIES; DAMS; FISH AND FISHING; ICE AND ICE COMPANIES; WATERS AND WATER COURSES). I. In General, 611. 1. Scope of Terms, 611. (a) Size as Distinguishing Lake from Pond, 611. 2. Lake Distinguished from Stream, 611. (a) Current as Criterion, 611. (b) When Lake Is running Stream, 612. 3. Navigable Lakes and Waters, 612. (a) In General, 612. (b) Lake Held Not Navigable, 613. 4. Outlet Streams Flowing from Lakes, 613. (a) When Not Mere Surface Water, 613. (b) Riparian Rights in Irrigating Ditch, 614. (c) Drainage of Lake Interfering with Flow of Water, 614. (d) Ownership of Bed of Lake or Pond, 614. II. Title to Lakes and Ponds, 615. 1. Rights of Crown Under British Decisions, 615. 2. Great Inland Lakes in the (a) New York Doctrine, 616. 3. Grant by State, 617. (a) Effect in New York, 617. (b) Scope of Grants, 618. III. Rights Concerning Lakes and Ponds, 618. 1. Riparian Rights, 618. (a) Under Early English Authorities, 618. (b) Under Massachusetts V. Wrongs Concerning Lakes and Ponds, 628. 1. Obstructing View and Diversion of Water, 628. 2. Pond Owner Erecting Dam and Draw-Gate, 629. 3. Lowering Pond by Deepening Drain, 630. VI. Use for Aqueduct Purposes, 630. 1. Uses in General, 630. (a) Matter One of Statutory (b) Taking Waters Insuffi- (d) 2. Equitable Remedies Against Aqueduct Corporation, 632. (a) For Interference Great Pond, 632. with (b) For Tapping and Draw ing Off Underground Sources of Water Sup ply. 633. VII. Great Ponds, 634. 1. What Constitutes in Massachusetts, 634. (a) In General, 634. (b) Area of Over Twenty Acres, 634. (c) When Not Regarded as Above Ebb and Flow of Tide, 634. (d) Increase by Dam, 635. 2. Public Rights in Great Ponds, 635. (a) Fishing and Fowling,635. (b) Purpose to Make Various Privileges Free, 635. (c) Uses Included as They Arise, 635. (d) Enumeration of Uses, 635. 3. Right of Fishing in Great Ponds, 636. (a) Compensation for Taking Land for Fishery of Ale Wives, 636. 4. Lease of Great Ponds, 636. (a) Inclusion of Migratory Fish, 636. (b) When Pond Is Placed Where Fish Are Artificially Cultivated, etc., 636. (c) Enclosures and Appliances, 637. (d) Sufficiency of Occupation of Pond, 637 (e) Constitutionality of Statute, etc., 637. 5. Title to Great Ponds in Massachusetts, 637. (a) By Grant from King, 637 6. Colony Ordinance of Massachusetts, 638. (a) Operation of Ordinance, 638. (b) State Ownership of Great Ponds, 639. 7. Eminent Domain in Case of Great Ponds, 639. (a) Decision Favoring Condemnation with Compensation, 639. (b) Discussion of Watuppa Pond Case, 641. VIII. Lakes and Ponds as Boundaries, 642. 1. In General, 642. (a) Prevailing Doctrine, 642. (b) Diversity in Decisions,642 2. Massachusetts Doctrine, 642. (a) Rule as to Waters in General, 642. (b) Application to Artificial (c) Grant Bounded by Great 3. Maine Doctrine, 644. (b) As to Large Lakes, 646. 7. Ohio Doctrine, 647. 8. Illinois Doctrine, 648. 9. Michigan Doctrine, 648. 10. Indiana Doctrine, 648. (a) State Ruling, 648. (b) Federal Ruling, 649. II. Wisconsin Doctrine, 650 12. Receding of Waters, 651. (a) In General, 651. (b) New York View, 652. 13. Intervening Water, 653. 14. Artificial Ponds, 653. (a) General Doctrine, 653. I. IN GENERAL-1. Scope of Terms (a) Size as Distinguishing Lake from Pond.--The material difference between a lake and a pond is in size. A lake has been defined as a large and extensive collection of water contained in a cavity or hollow of the earth; and a pond as a confined or stagnant body of fresh water, and further as a natural or artificial body of fresh water usually less extended than a lake.2 2. Lake Distinguished from Stream-(a) Current as Criterion.The mere fact that there is a current from a higher to a lower 1. GILCHRIST, J., in State v. Gilmanton, 14 N. H. 467, 477. 2. Webster's Dict., tit. Lake and Pond. Pond May be Natural or Artificial.The word 66 pond" is indefinite. It may mean a natural pond or an artificial pond raised for mill purposes, either permanent or temporary. In both cases, the limits of such body of water may vary at different times and seasons, by use or by natural causes. Hence, according as the one or the other is adopted as a descriptive line or boundary, a different rule of construction may apply. Waterman v. Johnson, 13 Pick. (Mass.) 261, 265. Concerning artificial ponds raised for mill purposes, see DAMS, vol. 4, p. 971. |