it would not lay its hands upon property held in trust for the delinquent husband, and apply it as alimony for the support of the wife. This was all the property the husband had within the jurisdiction of the court which it could so apply. The fact that the legal title was vested in Seward and Nettie made no difference whatever in respect to the power the court had over it.

That principle is settled in Damon v. Damon, 28 Wis. 510, and Gibson v. Gibson, 46 Wis. 449, S. C. 1 N. W. Rep. 147. These were both cases where the fraudulent grantee was made a party defendant in the action with the husband, and it was held that this was proper practice to enable the court to finally adjudicate upon and enforce the rights of the wife to alimony out of the husband's estate. In no other way could full justice be done in the case. The learned counsel agrees that all the court could do was to adjudge the conveyance fraudulent in so far as it affects the dower rights of the wife. But this is a question of awarding alimony to an innocent wife, on granting a divorce on her application; and it cannot be that the court is powerless to reach property held in trust for the husband, and apply it to the support of the wife. This is what was done here, and we think the judgment is right, and must be affirmed.

FIELD and others v. APPLE RIVER LOG-DRIVING CO.

(Supreme Court of Wisconsin. January 11, 1887.)

1. LOGS AND LOGGING-RIPARIAN OWNERS-DAMAGE BY LOGS-ACTION-IMPROVEMENT COMPANY-NAVIGABLE RIVER.

A corporation authorized to drive logs on a naturally navigable stream, and to construct dams, booms, etc., for that purpose, is not liable for damage caused by the logs or water to the lands of riparian owners, unless such damage is caused by unskillful or negligent driving or use of the water-way, nor is such a corporation under any obligation to erect boonis or other structures to protect the shores of such owners, nor to place men along the banks to keep logs from butting against

In an action for damages to the land of a riparian owner, caused by the negligent driving of logs, it is not essential for a plaintiff who is in possession to show a valid and perfect title.

3. WILL-PROBATE-PROCEEDING FOR-NOTICE AND HEARING OF DIFFERENT DATES.

Where the records of the probate of a will show the proceeding to have been otherwise regular, the fact that the published notice fixed a date for the hearing of the petition, whereas the matter was in fact heard two weeks later, 3 no objection to the validity of the probate.

Appeal from circuit court, St. Croix county.

This is an action brought to recover damages occasioned to plaintiffs' lands, situate on the banks of Apple river, a stream navigable for logs, by the alleged negligent driving of logs and other negligent use of said highway by defendant, a corporation authorized to take possession of logs and timber coming down said river, and to drive the same, for a prescribed toll, with power to maintain dams, booms, etc., and to make improvements to facilitate the driving of logs and timber on the river. Plaintiffs, to prove their title, introduced a deed to their ancestor, Mary Field, which was defective in that the description did not embrace the land claimed by them; and, to cure this defect, one of the plaintiffs testified that he procured a survey of the land, and that it was intended the deed should be made to conform to such survey, which evidence was corroborated by the surveyor. In further proof of their title, plaintiffs called the county judge of St. Croix county, who produced and identified a petition for the probate of the will of said Mary Field, order for hearing said petition, and the records of the proof and probate of the will. To all this evidence defendant objected as incompetent and immaterial, and excepted to its admission. The objection to the records of probate was that the order for the hearing of the petition named a date in July, whereas the petition was v.31N.w.no.1-2

heard in August. No other irregularity was charged. Judgment was rendered for plaintiffs, from which defendant appeals.

L. P. Wetherby and John W. Bashford, (Tenney, Bashford & Tenney, of counsel,) for respondent. George B. Kidder, (Clapp & Macartney, of counsel,) for appellant.

COLE, C. J. We can see no force in the objection that the plaintiffs did not show a sufficient title to the premises alleged to have been injured to maintain this action. They were in possession, and it was not essential that they show a perfect title as against a wrong-doer. Hungerford v. Redford, 29 Wis. 345; McNarra v. Railway Co., 41 Wis. 69; Carl v. Railway Co., 46 Wis. 632; S. C. 1 N. W. Rep. 295.

Moreover, we can see no merit in the objection that the will of Mary Field, under which they made title, was not duly proved and admitted to probate. It is true, the published notice fixed Monday, the twenty-fourth of July, as the time for the hearing of the application to admit the will to probate, and the record shows that the matter was in fact heard on the seventh of August. We must presume, in the absence of proofs to the contrary, that other business prevented the hearing on the day named in the notice, or that the hearing was postponed to the subsequent day to suit the convenience of the parties in interest. The record shows that it was established as a valid will, effectual to pass the title to real estate.

The gravamen of the complaint is that the defendant carelessly, negligently, and unskillfully drove large quantities of logs along and down the river adjacent to the plaintiffs' land, and permitted large quantities of them to form jams in the river, and to remain so jammed for a long time, opposite to, above, and below their land, as to cause the channel of the stream to be changed or diverted from its natural course, and to cut into their land, wash it away, with the fences and structures upon it, by reason of which their buildings and improvements have been much damaged, and the lands much diminished in value. The defendant is a corporation, authorized by its charter (chapter 430, P. & L. Laws 1868) to take possession of all logs and timber coming down, or to be driven down, Apple river, or its tributaries, within certain limits, and to drive such logs and timber for a prescribed toll per 1,000 feet. It has power to maintain dams, booms, sloughs, remove obstructions, and make improvements to facilitate the driving of logs and timber on the river. The stream being a highway by water, the defendant, like a natural person, had the undoubted right, without the privilege given it by the charter, to use it for the purpose of driving logs and timber, taking reasonable care to prevent injury to riparian owners while in the exercise of the right of navigation. Counsel on both sides concede this to be the law, and that no action can be maintained except for negligence on the part of the defendant.

The material facts bearing on the issue of negligence are these: The premises washed or injured are on the south or east bank of the river. There is considerable testimony given by witnesses on both sides that the natural stream, owing to the formation of the river, has a tendency to go down against that shore. About 270 feet above the premises is a mill dam, not owned by the defendant, with a sluiceway or chute for passing through logs and timber. About 132 feet below the dam a bar has formed, which extends down the river beyond the plaintiffs' land. The main channel of the river is east of this bar. There are several dams built above on the river, for the purpose of collecting and holding surplus water, and discharging it when necessary to float logs. The evidence tends to prove that, in driving logs over the dam or through the sluiceway, they sometimes strike against or lodge upon this bar, and form what are called "wing-jams," which have the effect to narrow the channel, and increase the depth and rapidity of the water, by the plaintiffs' lands; also that these wing-jains have a tendency to throw logs,

with increased force, out into the stream and against their premises. Evidence was given, under objection, that the forming of these wing-jams might possibly be prevented by having men on the bar to keep it clear of logs, or the plaintiffs' shore might be protected against the consequences of such jams by placing a boom or other structure along their banks.

A number of instructions were given at the defendant's request. We shall not quote them at length, but observe that the jury were, in effect, charged that, the river being a navigable stream, the public and defendant had the right to use it for floating logs; that, in using the stream for the purpose of floating logs, the defendant, so long as it confined them within the recognized channel of the river, and within its banks, was exercising the public right of navigation, to which the rights of the riparian owners were subordinate, and if, in the use of the river for such purposes, the defendant was guilty of no negligence, the plaintiffs could not recover for an injury sustained, even though such use had resulted in damage to them; that the mere raising of the waters of the stream to a stage suflicient to permit the driving of logs therein by means of surplus water collected by dams, and maintaining a driving stage of water for such reasonable length of time as was necessary to float out the logs delivered to the defendant to drive, did not render the defendant liable so long as the water was confined within the recognized channel, and between the well-defined banks of the stream; that negligence was the failure to exercise such ordinary care and skill as a reasonably careful and prudent man would exercise under all the circumstances, and unless the defendant, in the exercise of its rights in driving logs down the stream and past the plaintiffs' land, had been guilty of negligence within that rule, either in permitting jams to form in the stream, and thereby causing the water and logs to be thrown against the plaintiffs' land with greater force, or in permitting such jams to remain, there could be no recovery; that, in considering the question whether the defendant had failed to exercise ordinary care and skill in permitting jams to form, the jury should take into consideration the situation of the premises, the practicability and possibility of preventing the formation of the jams by any ordinary means, the usual course and practice of lumbermen engaged in driving past similar places, the force and direction of the current, the volume of water, and the number of logs running, and the location of the jams,-all these matters were to be considered in determining the question of defendant's negligence in driving logs on the stream past the plaintiffs' land.

The court was asked to charge that the jury should not consider any evidence which had been given as to the feasibility of having a boom, or of putting any other structure or protection along the plaintiffs' shore, as such testimony had no bearing upon the question of negligence. The court refused to so charge, and an exception was taken by the defendant. We think this instruction, or some equivalent charge, should have been given; for, while the court had intimated that the only negligence complained of was simply in the act of running the logs past the plantiffs' premises, or in allowing jams to be formed, and that the evidence should be confined to that issue, still much testimony was admitted, under objection, that the defendant might have protected their land by building some structure along this shore, or by having men there to keep logs from striking it. Now, as we understand the law, the right of navigation is not subject to any such duty. The right of passage on a navigable stream is a common and paramount one, but must, of course, be exercised with due regard to the rights of riparian owners. The use of the stream must be reasonable, and it must be exercised with ordinary care and skill, such as the great mass of mankind would exercise, under like circumstances, in driving logs. If the wing-jam on the bar below the dam caused the injury complained of, it might have been the duty of the defendant to prevent such jams from forming if it was practicable to do so by any

reasonable means; but it is not its duty to build booms or other structures along the plaintiffs' shore to protect it from wearing or washing away. If the enjoyment of navigation on such a stream as the evidence shows Apple river to be was subject to that burden, the right itself would be of little value. Perhaps the proposition above stated is subject to the qualification that the defendant was not bound to remove the jam if it was reasonably necessary and proper for driving logs. The charter authorized the defendant to maintain dams, and make all other improvements that were required to facilitate the driving of logs on the river. There is testimony that log jams are formed sometimes to raise the water, and facilitate the running of logs. If the wingjams in question were reasonably necessary and proper to facilitate the driving of logs at this point, they would be lawful, and the defendant would not be liable for any damage resulting from them to a riparian owner. A fortiori, the defendant was not bound to erect booms or other structures along the plaintiffs' shore to protect it from washing away; neither was it under any obligation to place men along the bank to keep the logs from butting against it. These remarks have no reference to a case where an unnavigable stream is made navigable by some improvements, which of itself, or the use of the stream thus rendered navigable, causes an injury to a riparian proprietor. There, perhaps, a different rule would apply. Floating logs may cause damage to the estate of the riparian owner; but, if the owner of the logs uses due care and skill in driving them, he is not liable for such damage. Land on navigable streams is subject to the danger incident to the right of navigation; and, where logs are driven in a stream in an ordinarily careful, prudent manner, the owner is not liable for damages which may result to the riparian

owner.

As the cause was submitted, the jury may have based their finding on the failure of the defendant to protect the plaintiffs' land by a boom or some other structure. Negligence cannot be predicated on that fact, and to sustain a liability on that ground would practically destroy the public right of navigation on such streams.

The judgment of the circuit court is therefore reversed, and a new trial ordered.

GRISWOLD v. WRIGHT.

(Supne Court of Wisconsin. January 11, 1887.)

ASSUMPSIT-EVIDENCE-PROMISE TO PAY CLAIM IN CONSIDERATION OF RELEASE OF MECHANIC'S LIEN.

In an action by a subcontractor upon a promise by defendant to pay him his claim in consideration of his releasing a lien against her building for material supplied to the contractor for its construction, evidence tending to show that defendant had paid the contractor all he was entitled to receive at the time the promise was alleged to have been made is inadmissible to prove that the promise was not made.

Appeal from circuit court, Sauk county.

This was an action brought by a subcontractor on a promise to pay the value of bricks supplied by him to a contractor, having a contract with defendant for the erection of a brick block, in consideration of a release of his lien on the block. Defendant demurred to the complaint as showing no consideration for the promise, which demurrer was overruled, and such ruling sustained on the former appeal. 21 N. W. Rep. 44. The case was then tried on the merits, and judgment rendered for plaintiff, from which defendant appeals.

J. E. Wright, for appellant. G. Stevens, for respondent.

COLE, C. J. The legal questions involved in this case were considered and determined on the former appeal. 61 Wis. 195; 21 N. W. Rep. 44. It was

there decided that the waiver, by a subcontractor, of a lien for materials furnished for the erection of a building, and the discharge of the principal contractor from liability therefor, constituted a sufficient consideration for a promise, by the owner of the building, to pay for such materials, and that such promise, to be valid, need not be in writing. It is true, it was assumed on the allegations of the complaint that the subcontractor had a valid lien upon the building which he might enforce, but reference was made to authorities which decide that this is not necessary, but that the discontinuance of an action, brought in good faith, upon a doubtful claim, was a good consideration for a promise to pay the owner. The defendant's counsel says that no court has decided that where the lien of the subcontractor is worthless, and he knows it to be so, that its withdrawal furnishes a good consideration for the promise of the owner to pay him his claim. The abandonment of such a claim for a lien, he says, would not be anything of benefit to the promisor, or detrimental to the promisee. We need not consider whether this proposition is sound or not, for no such question is presented in this case. There is nothing which tends to support the assumption that the plaintiff, when he abandoned his lien, knew that it was worthless, and could not be enforced. For aught that appears in the evidence, or was attempted to be shown on the trial, the plaintiff supposed he had a valid lien upon the building. On this point it is said the defendant was not allowed to show the state of the account between the defendant and the contractor, Hier, or to prove that the plaintiff was informed that Hier had been overpaid when the lien was abandoned. The witness Wright, who transacted the business for the defendant, was asked questions tending to show these facts. The testimony was objected to, and excluded. It is now said that this evidence should have been admitted. There are two sufficient answers to the objection: (1) The statute gave a lien, not only for the amount which the defendant owed Hier upon the contract when the notice was given, but for what the defendant might thereafter owe him, (section 3315;) so that the state of the account at this time was not material. (2) This witness was afterwards permitted to tell all that was said upon the subject; so, if there was any error in excluding the question when first asked, the error was cured by allowing the witness subsequently to state all that he could recollect about the conversation. And he did testify that he stated to the contractor, in the presence of the plaintiff, that he had been overpaid, and, after detailing at much length the conversation, he closes his testimony by saying, "I have tried to state all that was said." There is therefore no ground for the claim that the witness was not allowed to tell all that he knew, and all that was in fact said, when the alleged agreement was made. It is claimed that the verdict is unsupported by the evidence. A reference to the bill of exceptions will show that this position is untenable. There is ample testimony to sustain the plaintiff's case; besides, there was no motion for a new trial.

The judgment of the circuit court must be affirmed.

FARR v. SPAIN.

(Supreme Court of Wisconsin. January 11, 1887.)

FENCES-DIVISION FENCES-ACTION TO ENFORCE CONTRIBUTION-TRIAL BY JURY-Rev. ST. WIS. CH. 55; LAWS 1880, CH. 138.

An action under Rev. St. Wis. c. 55, and Laws 1880, c. 138, to recover money by an owner of land used and occupied for farming purposes, against the owner of the adjoining land used for the same purposes, for his neglect and refusal to contribute to the building of a division fence, is legal, and not equitable, in its character, and should be tried by a jury, unless a jury is waived.

Appeal from circuit court, Marquette county.