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Dec. 331; Ellicott v. Nichols, 48 Am. Dec. 557. The subject is discussed in the monographic note to Beitz v. Fuller, 10 Am. Dec. 693 · 697, on new promise by joint debtor.

PAYMENTS UPON SALE OF MORTGAGED PROPERTY-APPLICATION OF.--A mortgagee, in the absence of an agreement with the mortgagor, is bound to apply moneys realized from the sales of property covered by the mortgage to the mortgage debt, without any direction to that effect from the debtor: Boyd v. Jones, 96 Ala, 305; 38 Am. St. Rep. 100; Montague v. Stelts, 37 S. C. 200; 34 Am. St. Rep. 736.


(162 ILLINOIS, 138.) WATERS_TITLE TO LAND UNDER NAVIGABLE LAKES. The title to, and right of dominion over, lands covered by Lake Michi. gan, within the boundaries of the state of Illinois, is held by the state, in its sovereign capacity, in trust for the people of the entire state, for the purposes of navigation and fishery; and the govern. mental powers of the state over such lands cannot be relinquished or given away.

WATERS-LEGISLATIVE POWER OVER NAVIGABLE LAKES.-The legislature, which represents not only the state, that holds the title to land under navigable lakes, but also the people, for whose use the title is held, possesses the sovereign power of par. lianient over the waters of such lakes and the submerged lands cove ered by the same.

COMMON LAW-LEGISLATIVE POWERS.-The powers of the legislature are in no manner limited or restricted by the common law of a particular state, which owes its existence to an act of the legislature.

CONSTITUTIONAL LAW-LEGISLATIVE POWERS.-The legislature of a state is clothed with all powers of legislation that do not conflict with the constitution of the state, or of the United States, and it cannot part with such governmental powers.

CONSTITUTIONAL LAW-UNWISE OR DETRIMENTAL LEGISLATION.–The propriety or impropriety of legislation is a matter of which the legislative department of the state is the sole judge, and, unless an act infringes upon some provision of the state or federal constitution, or attempts to part with governmental power, the courts will not declare it invalid, because it may be unwise or detrimental to the best interests of the state.

WATERS, NAVIGABLE-STATE CONTROL OVER SUBMERGED LANDS.-In this country, each state, subject to the limi. tations of the federal constitution, has absolute control of all navi. gable waters, within its limits. The disposition of lands lying under such waters is a question for the several states to determine for ther selves; and each state has power to convey lands so submerged, and held by the state, when the conveyance will not impair the remaining public interest in the lands and waters.

WATERS-NAVIGABLE LAKES-LEGISLATIVE RIGHT TO EXTEND DRIVEWAY.-Under the legislation of Illinois, a bonrd of park commissioners is authorized to extend a driveway over and upon the waters of Lake Michigan, where the rights of naviga. tion, of commerce, and of fishery are not taken away, or materially Infringed, but remain substantially in the public as before.

WATERS-NAVIGABLE LAKES-LEGISLATIVE RIGIIT TO APPROPRIATE SUBMERGED LANDS.-After a board of park commissioners bas, under statutory authority, lawfully extended a driveway over and upon the waters of Lake Michigan, the submerged lands lying between the shore and the inner line of such extension shall be appropriated, as directed by the statute, to paying for the improvement, and to this end, the board is authorized to sell and convey such lands.

WATERS-NAVIGABLE LAKES-SALE OF SUBMERGED LANDS WITHIN LINE OF IMPROVEMENT.-Under a statute authorizing a board of park cominissioners to extend a driveway over a navigable lake, to appropriate the submerged lands lying between the shore and the inner line of such extension toward defraying the cost of the improvement, and to sell and convey such lands to accomplish that end, the board is not bound to sell such lands for cash, but has power to convey them directly to shore owners, who have performed work on the improvement, if the board thereby receives their full value.

STATUTES-EXPRESSION OF SUBJECT IN TITLE.-If the main purpose of an act, as expressed in its title, is to confer power on a board of park commissioners to extend a boulevard or driveway which borders upon any public waters of the state, the constitutional prorision, that every act shall embrace but one subject, which shall be espressed in its title, is not violated by provisions in the act to defray the cost of the work, and making an appropriation of the submerged lands between the boulevard, as constructed, and the former shore, for that purpose, as these provisions are germane to the real purpose of the law.

Information filed by the attorney general against the board of commissioners of Lincoln Park and the owners of land adjacent to the shore of Lake Michigan, between Ohio street and Oak street, in the city of Chicago, for the purpose of canceling certain contracts entered into between the park commissioners and buch property owners for the extension of the lake shore drive from Oak street to Ohio street, and for the purpose of having removed the filling, breakwaters, and extension of the drive already made under said contracts, which were entered into under an act of the legislature passed in 1889. The contracts were dated June 22, 1891, and provided for the completion of the work called for during 1893. When the act of 1889 was passed, a drive had already been constructed by the park commissioners from the south line of Lincoln Park, at North avenue, to Oak street, over the bed of Lake Michigan a short distance from the shore, and the shore owners had filled out and improved their property to the inner edge of said lake shore drive. Lincoln Park had, in like manner been enlarged by the extension of the lake shore drive north from North avenue over the waters of Lake Michigan, and the filling in of the submerged lands lying between such drive and the original lake shore, excepting such portions thereof as were set apart for a basin to be used by boats. The main features of the act of 1889 appear in the opinion. Under this act, the board located its boulevard or driveway over and upon Lake Michigan in such a manner that 93 acres of submerged land, lying between the shore and the western boundary of the driveway, were reclaimed. The commissioners undertook to build


that part of the driveway lying north of the center line of Oak street extended, and to have the work completed by May 1, 1893. It was also to build the boulevard or driveway between the cen. ter line of Pierson street and the center line of Chicago avenue. The board sold the land to shore owners, each one taking that portion lying opposite the land owned by him. The shore owners, in consideration of the sale, agreed to construct the driveway in the lake, and to fill in the submerged lands between the driveway and the shore. In addition to the work thus agreed to be done by the shore owners, they also agreed to pay the commissioners $100 per lineal foot of their respective frontages on Lake Michigan. The following plat, put in evidence on the trial, shows the location of the boulevard and the lands lying east of Pine street made by its construction:

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Maurice T. Moloney, attorney general, T. J. Scofield, M. L Newell and Louis M. Greeley, for the appellants.

Herrick, Allen & Boyesen, for the appellees, the Newberry Library and Nathaniel K. Fairbank.

Edward O. Brown, for the appellees, the commissioners of Lincoln Park.

Marston, Augur & Tuttle, for the appellee, Arthur L. Farwell

Wilson, Moore & McIlvaine, for the appellees, Andrew H. Green and others, trustees.

Geo. W. Smith, for the appellees, Charles Fitz Simons and others.

145 CRAIG, J. The first ground relied upon by the people to reverse the judgment of the circuit court has been subdivided in the argument into the three following propositions: 1. That the legislature of the state of Illinois has no power to alienate the submerged lands of Lake Michigan, as proposed by the act of June 4, 1889; 2. That Lake Michigan and its submerged lands (subject to the paramount right of the general government under the commerce clause of the constitution of the United States) can only be disposed of by the state of Illinois in aid of trade, commerce, and the free navigation of the same; 146 3. The people of the state having a common right of piscary over all the waters of the lake, the state cannot alienate the submerged lands, or any part thereof, so as to destroy such right of piscary.

The law seems to be well settled in the different states that the title to and dominion over lands covered by tide waters within the boundaries of the several states belong to each state wherein they are located. The state holds the fee in trust for the public. The doctrine established in regard to lands covered by tide waters has also been held applicable to lands bounded by fresh water on our large lakes. As early as 1860 the question arose in this state in regard to the proper construction to be placed on a deed conveying lands with Lake Michigan as a boundary line, and, in disposing of the question, this court, in Seaman v. Smith, 24 Ill. 521, held that a grant giving the ocean or a bay as the boundary line, by the common law carries it down to the ordinary high-water mark; that the point at which the tide usually ebbs and flows is the boundary of a grant to the shore, and that the rule which governed in regard to lands on tide water applied to lands on our large lakes. It is there said (page 525): “A fair and rcasonable construction of the language, 'running to the lake and

with the lake,' would mean to that place where its outer edge is usually found. .... We are, therefore, clearly of the opinion that the line at which the water usually stands when free from disturbing causes is the boundary of land in a conveyance calling for the lake as a line."

Aside from the fact that the waters of our large lakes are fresh, and there is no ebb and flow of the tide, they do not differ materially from the open sea, and no reason is perceived why one rule should be applied to lands bounded by the sea and a different rule applied to lands bordering on our great lakes. Where a navigable river is called for as a boundary line, the grantee will take to the thread of the current of the stream. But the rule that 147 governs our rivers has no application to our great lakes. The supreme court of the United States, in Illinois Cent. R. R. Co. v. Illinois, 146 U. S. 387, announces the same doctrine laid down by this court. It is there said: “We hold that the same doctrine as to the dominion and sovereignty over and ownership of lands under the navigable waters of the great lakes applies which obtains at the common law as to the dominion and sovereignty over, and ownership of lands under, tide waters on the borders of the sea, and that the lands are held by the same right in the one case as in the other and subject to the same trusts and limitations." It is true that the state holding the title to the lands covered by the waters of Lake Michigan does not hold such title subject to barter and sale, as does the United States its public lands; but the state holds the title in trust, in its sovereign capacity, for the people of the entire state, for the purposes of navigation and fishery. The governmental powers of the state over these lands cannot be relinquished or given away. The trust imposed upon the state must be kept and faithfully observed.

But did the state repudiate the trust and transcend its powers on the enactment of the act of June 4, 1889, which authorized the board of park commissioners to extend its boulevard or driveway over and upon the bed of Lake Michigan, and sell and convey the submerged lands which might be reclaimed in extending the driveway in the lake? The extension authorized, as construed by the board of park commissioners in making the improvement, is not a matter of small moment, but, on the other hand, owing to the large amount of territory involved and the large interests of the public in the waters of the lake and property owners on the lake, the proposed extension is so far reaching in its effect as to present questions of great importance. The distances of the outer breakwater from the shore line of the lake as it existed in

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