of those judges & their familiarity with the L. of Ill. give to these Ops. great weight. We, therefore, dissent from the conclusions of the Ct. Mitchell v. Smale, 140 U.S. 406 (1891)

“ Your petitioner states that said suit is one arising under the laws of the United States in this, to wit, that plaintiff seeks in and by said suit to recover lands embraced in a survey of public lands made by the government of the United States in 1874, embracing a part of said section twenty (20), t’p 37 N., R. 15 E., 3d p. jn Illinois, and patents issued under p. 408said survey under which your petitioner deraigned title in fee simple before the commencement of said suit and in him then vested by conveyance from the patentee.

Whether the facts stated in the original petition for removal were sufficient for that purpose, may perhaps admit of some question. The plaintiff was alleged to be a citizen of Illinois, and the defendant, Jordan, a citizen of New York. The citizenship of the other defendants was not mentioned, though it is understood they were residents of Illinois. It is clear, therefore, that the case was not removable unless the interest of Jordan was so separate and distinct from that of the other defendants that it could be fully determined, as between him p. 409and the plaintiff, without the presence of the others as parties in the cause. As he alone, according to his statement, had the title, and as Smale was merely his tenant, if this relation was admitted by Smale, (as it was,) there would seem to be no good reason why the contest respecting the title might not have been carried on between him and the plaintiff alone, so far as Smale was concerned. This was done in the case of Ayers v. Watson, 113 U. S. 594; but no objection to the removal on that ground was made, though objections were made on other grounds, which were not sustained by the court. Still, as the fact appeared on the record, if it had been sufficient to divest the Circuit Court of jurisdiction altogether, this court could hardly have omitted to pass upon it. We do not see that the statute of Illinois would make any difference in the result. It merely declares that in ejectment the occupant of the land shall be named as defendant, and that all other persons claiming title or interest to or in the same may be joined as defendants. Starr & Curtiss’ Stat. 981, § 6. This is merely declarative of the common law rule, and makes no change in the character of the action or the principles of procedure therein. True, it was decided in the case of Phelps v. Oaks, 117 U. S. 236, that the tenant is a proper party, and that if the cause is removed by reason of his citizenship, the Circuit Court will not be deprived of jurisdiction by the subsequent admission of the landlord as a defendant, though a citizen of the same state with the plaintiff. But this does not prove that a landlord may not become the primary and only contestant, where the tenant’s interests are subordinated to and made dependent on his.

The defendants pleaded not guilty, and a jury being waived, the cause was tried by the court before Judge Gresham, m July, 1885, at the same time with the case of Ha/rdin v. Jordan. The judge made a special finding of facts, and gave judgment for the plaintiff for the S.W. fractional quarter of fractional section 20, in township 37 north, range 16 east, as patented by the United States to Horace B. DeWitt under patent dated p. 411March 1,1850, and described in the first count, but limited by the meander line of the original survey on the side next to the lake; and as to all the rest of the land in dispute, found the defendants not guilty. The fractional quarter section thus found to belong to the plaintiff was one of the fractional lots on Wolf Lake surveyed in 1834-5, as mentioned in the case of Hardin v. Jordan, lying on the north side of the lake, and on the plat of the survey it was shown as bordering on and bounded by the lake.

“Eighth. That the lakes and lands not embraced in the original survey — that is to say, all the lands, swamp as well as those covered by water, including the ridge, which are p. 412outside the meandered line run around said lake or lakes — the Commissioner of the General Land Office caused to be surveyed in 1874; that after such survey was made the United States, by its proper officers, sold to Alice A. Condit the west half of the southwest quarter, the south half of the east half of the southwest quarter, and lot 2 of the southwest quarter, of fractional section 20, T. 37 N., R. 15 E., of this P. M., and issued to said Alice A. Condit patents in the usual form for said lands, and that the defendant, Conrad N. Jordan, is the owner, by mesne conveyances, of the lands so patented to said Condit; that Horatio B. DeWitt, owner of the fractional S.W. i of fractional section 20 in the original survey, contested before the proper officers of the land department the right of the United States to sell and convey title to said lands under said second survey, which contest was decided against the said DeWitt by the Secretary of the Interior on appeal, and in favor of the right of the United States to sell said lands under said survey.

Our general views with regard to the effect of patents granted for lands around the margin of a non-navigable lake, and shown by the plat referred to therein to bind on the lake, were expressed in the preceding case of Hardin v. Jordan, and need not be repeated here. We think it a great hardship, and one not to be endured, for the government officers to make new surveys and grants of the beds of such lakes after selling and granting the lands bordering thereon, or represented so to be. It is nothing more nor less than taking from the first grantee a most valuable, and often the most valuable part of his grant. Plenty of speculators will always be found, as such property increases in value, to enter it and deprive the proper owner of p. 413its enjoyment; and to place such persons in possession under a new survey and grant, and put the original grantee of the adjoining property to his action of ejectment and plenary proof of his own title, is a cause of vexatious litigation which ought not to be created or sanctioned. The pretence for" making such surveys, arising from the fact that strips and tongues of land are found to project into the water beyond the meander line run for the purpose of getting its general contour, and of measuring the quantity to be paid for, will always exist, since such irregular projections do always, or in most cases, exist. The difficulty of following the edge or margin of such projections, and all the various sinuosities of the water line, is the very occasion and cause of running the meander line, which by its exclusions and inclusions of such irregularities of contour produces an average result closely approximating to the truth as to the quantity of upland contained in the fractional lots bordering on the lake or stream. The official plat made from such survey does not show the meander line, but shows the general form of the lake deduced therefrom, and the surrounding fractional lots adjoining and bordering on the same. The patents when issued refer to this plat for identification of the lots conveyed, and are equivalent to and have the legal effect of a declaration that they extend to and are bounded by the lake or stream. Such lake or stream itself, as a natural object or monument, is virtually and truly one of the calls of the description or boundary of the premises conveyed; and all the legal consequences of such a boundary, in the matter *of riparian rights and title to land under water, regularly follow.

We do not mean to say that, in running a pretended meander line, the surveyor may not make a plain and obvious mistake, or be guilty of a palpable fraud ; in which case the government would have the right to recall the survey, and have it corrected by the courts, or in some other way. Cases have happened in which, by mistake, the meander line described by a surveyor in the field-notes of his survey did not approach the water line intended to be portrayed. Such mistakes, of course, do not bind the government. Nor do we mean to say that, in granting lands bordering on a non-navigable p. 414lake or stream, the authorities might not formerly, by express words, have limited the granted premises to the water’s edge, and reserved the right to survey and grant out the lake or river bottom to other parties. But since the grant to the respective States of all swamp and overflowed lands therein, this cannot be done.

In the present case it cannot be seriously contended that any palpable mistake was made, or that any fraud was committed, by the surveyor who made the survey in 1834-5. It is apparent from the finding of facts that the lake in question is subject to considerable changes in the height and depth of the water therein. A datum, or bench mark, is used in Cook County, Illinois, (where the premises in question are situated,) as a standard of comparison for the height of water in Lake Michigan. Of course the height of water in Wolf Lake is affected by that of Lake Michigan, since they are connected by two different outlets. The finding of facts states that the level of water in the lake in question, when the government survey was made in 1834-5, was 2.2 feet above the datum, and four-tenths of a foot above the average level of Lake Michigan, which is 1.8 feet above datum. But it also states that Lake Michigan, at times, rises to five feet above datum, which would cause the lake in question to rise to a level of 2.8 feet (or nearly 3 feet) higher than it was when the government survey was made. At such times, of course, very little of thé said projecting tongue of land would be visible. But whether so or not, it would not alter the case. The existence of such projecting tongue is entirely consistent with the water or lake being the natural boundary of the plaintiff’s land, which would include the said projection, if necessary, in order to reach the said boundary. It has been decided again and again that the meander line is not a boundary, but that the body of water whose margin is meandered is the true boundary. Railroad Co. n . Schurmeir,^ Wall. 272; Jefferis n . East Omaha Land Co., 134 IT. S. 178; Kiddleton v. Pritchard, 3 Scam. 510 ; Canal Trustees n . Haven, 5 Gilm. 548, 558 ; Houck v. Yates, 82 Illinois, 179 ; Fuller v. Dauphin, 124 Illinois, 542 ; Boorman n . Sunnuchs, 42 Wisconsin, 235 ; Pere p. 415Marquette Boom Co. n . Adams, 44 Michigan, 403; Clute n . Fisher, 65 Michigan, 48; Ridgeway v. Ludlow, 58 Indiana, 249; Kraut v. Crawford, 18 Iowa, 549; Forsyth v. Smale, 1 Bissell, 201. The case last cited, Forsyth v. Smale, presented the very case of a tongue of land projecting beyond the meander line into Lake George, a small lake in Indiana, situated to the east of Wolf Lake and connected therewith. It is cited and commented on in the opinion in Hardin n . Jordan. In conclusion, our view on this part of the case is that the patent to DeWitt conveyed, and the plaintiff is entitled to, all of the fractional S.W. quarter of section 20 from its northern boundary line extending southwardly to the actual water line of the lake, wherever that may be, with the riparian rights incident to such position.

Me . Jus tice Geay , Me . Jus tic e Beow n and myself dissent in this case also, as in the preceding, on the merits: for the reason stated therein. This further fact is worthy of notice. The tract originally patented consisted of a fractional quarter section, containing only four and yV? acres. It appears that at the time of the survey and patent, and now, there was and is a tongue of land extending out beyond the surveyed land into the lake, containing about twenty-five acres; so that by purchasing this little piece of four acres and a fraction, at the government price, the purchaser, as it is held, took title not merely to the land surveyed, but to the twenty-five acres of p. 416dry land outside of the. survey, as well as the large area of land under the lake and in front of the bank. This result is certainly suggestive.

If plaintiff’s first grantor, by his patent from the government for the land on the bank, took title to the centre of the lake, he was entitled to judgment for possession; and no act of the officers of the land department, subsequently thereto, p. 417could divest or limit his right or prevent his recovering judgment. On the other hand, if the patent only carried title to the water line, then it is entirely immaterial to the plaintiff what action the officers of the land department may have taken in reference to the premises beyond; the defendant would be entitled to judgment; and that irrespectively of the question whether he had any title, or though it was vested in the State.

Nor did he mention any circumstance, incident or occurrence, except being born in Dupont Street, upstairs, which would lead one to suppose that he had ever been in the city. His only memory seemed to be of the names of the three men p. 419who accompanied him back to China, whom he had not seen since, and whose names he only knew from having heard his mother repeat them. The father, who was examined, stated that he worked on a sewing machine ; that the petitioner was his boy, and that he was born “at 1030 Dupont Street, upstairs,” and went to China with his mother, and one of the witness’s friends; and that he wanted his boy to come back to learn English. He also produced what he called his “ store-book,” in which he had entered the purchase of a ticket for the boy and his mother. He gave no particulars of his residence in San Francisco, of his having a family there, or of his being known among his neighbors or others as having any children.

The testimony given by himself amounted to very little; indeed, it was of no force or weight whatever. The particularity and positiveness with which he stated the place of his birth in San Francisco was evidently the result of instruction for his examination on this proceeding, and not a statement of what he had learned from his parents in years past. And his failure to mention any particulars as to the city of San p. 420Francisco, which he certainly ought to have been able to do if he resided there during the first ten years of his life, was surprising. A boy of any intelligence, arriving at that age, would remember, even after the lapse of six years, some words of the language of the country, some names of streets or places or some circumstances that would satisfy one that he had been in the city before. But there was nothing whatever of this kind shown. He gave the name of no person he had seen; he described no locality or incident relating to his life in the city, nor did he repeat a single word of the language, which he must have heard during the greater part of several years, if he was there.

Undoubtedly, as a general rule, positive testimony as to a particular fact, uncontradicted by any one, should control the decision of the court; but that rule admits of many exceptions. There may be such an inherent improbability in the statements of a witness as to induce the court or jury to disregard his evidence, even in the absence of any direct conflicting testimony. He may be contradicted by the facts he states as p. 421completely as by direct adverse testimony; and there may be so many omissions in his account of particular transactions, or of his own conduct, as to discredit his whole story. His manner, too, of testifying may give rise to doubts of his sincerity, and create the impression that he is giving a wrong coloring to material facts. All these things may properly be considered in determining the weight which should be given to his statements, although there be no adverse verbal testimony adduced.

peached and uncontradicted testimony. The single question is one of fact, whether the petitioner was born in this country or not ? On the hearing he was represented by counsel; so was the government. He testified that he was sixteen years old, was born on Dupont Street in San Francisco, and named the place on that street; that he lived there until he was ten years of age; and that he then went with his mother, on the steamer Rio de Janeiro, to China. With them on the steamer were three friends of the family, whose names he gave. His father, who was also a witness, testified that the boy was born in San Francisco, at the place named, No. 1030 Dupont Street; that he remained there until he was ten years of age; and that at that time he sent the petitioner, with his mother, back to China. He gave the day and the year on which the boy sailed. He gave as a reason for sending his wife and son back to China, that his parents were old, and as he could not go himself, sent her to attend on them. He produced his store-book on which appeared an entry of the purchase of the tickets for the boy and his mother, an entry of date the day before that on which the steamer named sailed. No witness was called to contradict this testimony. They were the only witnesses. The only thing which makes against the boy’s testimony, is the fact that he did not know a word of English. But is it strange that a boy born and brought up in a Chinese family, and living until he was ten years old in that part of San Francisco which is practically a Chinese town, and then taken back to China, should know only the Chinese language ? It is true he did not give the details of his boyhood in San Francisco; but no question was asked of him in respect to them. If the government, through its counsel, wished to discredit his positive testimony it was its province, on cross-examination, to question him as to his knowledge of various localities in San Francisco, and of events which happened during the time he claimed to have resided there. The books of the steamer, if accessible, were not produced to show that no such passengers sailed on the trip named. No attempt was made to contradict either father or son, or impeach either, unless the ignorance of the English language is to be p. 424considered as impeachment. The government evidently rested on the assumption that, because the witnesses were Chinese persons, they were not to be believed. I do not agree with this.