the cases and opinions. See 3 Kent Comm. *416. And in Bell v. Gough, 23 N. J. Law, 624, 655, Elmer J., commenting on the argument advanced by counsel, that in Martin v. Waddell, 16 Pet. 367. the United States Supreme Court had decided that soil below high-water mark was exclusively in the sovereign, and that the riparian owner had no right in it, said that this was not true. The plaintiff in that case did not claim as riparian owner, but under the proprietors' grant he claimed the land itself under Raritan Bay for an oyster fishery, and the question was whether the Jersey proprietors ever had any title to convey. The United States court held that by their charter they had only the sovereign rights of the crown, which could not be transferred as private property. When the case of Gough v. Bell, 22 N. J. Law, 441, came before the Court of Errors as Bell v. Gough, 23 N. J. Law, 624, in June, 1852, the decision was unanimously confirmed, and some of the judges expressed very strongly the view I have here taken as to the riparian right to wharf out and occupy, and that it was a sort of customary law there. 23 N. J. Law, 678. 685, 688, 695, 702.

In Massachusetts, and Sullivan says in New Plymouth, the ordinance of 1640 extended the riparian rights over the flats. The principles of this ordinance were adopted in New Hampshire, though the ordinance never extended thither. Sullivan on Land Titles in Massachusetts, 284. But it is probable that this ordinance only recognized and validated an existing usage. Sullivan, Land Titles, 285, says: "From the first settlement of the Colony of Massachusetts, that government practiced upon the principles of this provision." And Angell, Tide Waters, 225, says that although the ordinance was afterwards annulled the usage continued, and now has the force of common law, quoting the words of the Supreme Judicial Court in Storer v. Freeman, 6 Mass. 435, 438. And that this common law extended to the sea-shores as well as the coves, etc., was settled in subsequent cases there cited, although the words of the ordinance did not plainly extend to the sea-shore. And see the cases cited by Angell, Tide Waters, 234; i. e. Commonwealth v. Charleston, 1 Pick. 180; Commonwealth v. Pierce, 2 Dane's Abridg. 696, recognizing the common practice to wharf out to low water mark, or further if it was not injurious to navigation.

In this State it has always been understood that the riparian owner has the right to wharf or embank against his land, and so make land from tide-water, and this without license, provided he does not interfere with the navigation. It was so stated by Mr. Angell in the first edition of his work on Tide Waters, in 1826, repeated in subsequent editions, and this portion of his work has never been adversely criticised. In very few instances was there any legislating by the State, and notwithstanding the common practice of wharfing and filling, it is belived there has never been an instance of the State interfering to prevent it. There has, indeed, been a good deal of legislation regulating the Long Wharf in Newport.

now.

The State never undertook to regulate this right till 1815, and then did not profess to grant a right, but only to prevent encroachment to save the harbor; and it is noticeable here that the business was first taken up in town meeting, and a committee of five of the most respectable citizens appointed, men old enough to be well acquainted with the usages of our ancestors and the shore rights claimed by them, and who died before most of the present members of the present bar were born. And this committee reported that in their opinion "the rights of individuals have been extended beyond the original intention of the proprietors when the lots were first laid out as appears by plats," etc. And the town proceeded to vote in town meeting that the plat reported by the committee be "established as containing the boundary lines of the harbor aforesaid," and for greater security that application be made to the General Assembly. Up to 1815 we had no harbor act, and for a large portion of the shore have none But no Rhode Islander ever thought he was obliged to petition the General Assembly for leave to build a wharf on his own land, and the records of our General Assembly and courts will, we think, be searched in vain for any attempt to interfere with this privilege so generally used. From the very first settlement of the State, our people have claimed and held property in tidewaters. And as I have said, the State regulated the fencing of marsh land in June 1834; the marsh lands of the Woonasquetucket River in October, 1804; and again recognized the ownership in 1861. Pub. Laws, cap. 362. And the Providence purchasers exercised complete control over their thatch lots. In 1773 the Providence purchasers granted to the Baptists several acres in the cove, where the Worcester freight depot now is. They granted to the State a jail lot, covered by salt water (minutes of Judge Staples). If the State owned the tide-flowed land in fee, there was no need of this; nor was there any need when they sold the jail lot to the city, of obtaining a release from the proprietors. See Acts and Resolves of General Assembly of October, 1825, p. 63, October, 1828 p. 70; January 1838, p. 68, Bridgham and Carrington committee; June, 1838, p. 4, George Curtis's committe. And the committee of the proprietors of the grand purchase to convey the lot to the State were James Fenner, Zachariah Allen, and Joseph Some of these men, probably, L. Tillinghast. knew something about the old usages of Rhode Island. The State itself has sold large tracts of land bounding on the sea, confiscated in the Revolution, where probably half the value consisted in its sea frontage. It has received the money and put it into the public treasury, and saved the people from so much taxation, and the owners have ever since been taxed for this additional value. And the fact that from the first settlement of the State, down to 1815, no act was ever passed even to limit and restrain this ancient practice, is significant. The Harbor Act of 1815 does not profess to grant any rights, but only to prevent encroachments by wharves beyond the

established line. The amendatory act of January, 1837, was of the same character. The act of October, 1841, forbade the erection of any wharves in the cove above the bridge, except under the direction of the city authorities.

The right to wharf out or reclaim is a valuable right even before its exercise. It constitutes a part of the value and sometimes nearly the whole value of the upland. In Martin v. Waddell, 16 Pet. 367, 414, Taney, C. J., says: "The men who first formed the English settlements could not have been expected to encounter the many hardships that unavoidably attended their emigration to the New World, and to people the banks of its bays and rivers, if the land under the water at their very doors was liable to immediate appropriation by another as private property, and the settler upon the fast land thereby excluded from its enjoyment and unable to take a shell-fish from its bottom, or fasten there a stake, or even bathe in its waters, without becoming a trespasser upon the rights of another." In Bowman's Devisees & Burnley v. Wathen, 2 McLean, 376, 382, which was a case on the Ohio river, McLean, J., after holding that the English law as to the navigableness of streams has no application in this country and does not depend on the ebb and flow of the tide, goes on to say: "It is enough to know that the riparian right on the Ohio river extends to the water, and that no supervening right, over any part of this space, can be exercised or maintained without the consent of the proprietor. He has the right of fishery, of ferry, and every other right which is properly appurtenant to the soil. And he holds every one of these rights by as sacred a tenure as he holds the land from which they emanate. The State can not, eitner directly or indirectly, divest him of any one of these rights, except by a constitutional exercise of the power to appropriate private property for public purposes." In McManus v. Carmichael, 3 Iowa, 1, an action of trespass was brought against the defendant for taking sand from the shore against the plaintiff's land. After a very full discussion the court held it was no trespass, but expressly says that it does not mean to say that the riparian owner does not possess peculiar rights, and that he might not have a remedy by action on the case or by indictment. In Yates v. Milwaukee, 10 Wall. 497, 504, the United States Supreme Court, by Miller, J., held that whether the ownership extends beyond the land or not, this riparian right is property, and is valuable, and though it must be enjoyed in due subjection to the rights of the public, it can not be arbitrarily or capriciously destroyed or impaired. It is a right of which when once vested the owner can only be deprived in accordance with established law, and, if necessary that it should be taken for the public good, upon due compensation. And the court refers to Railroad Company v. Shurmeir, 7 Wall. 272, and Dutton v. Strong, 1 Black, 23. In Webber v. Harbor Commissioners, 18 Wall. 57, the court says it recognizes the correctness of the rule as laid down in Yates v. Milwaukee, 10 Wall. 497. In that case the legislature had granted to

the city the right to wharf out at the ends of all the streets, and the defendant, who had erected a wharf, was not a riparian owner. And the court make a distinction as to statutes of limitation as concerns the State between lands it holds as private proprietor and lands it holds as sovereign in trust for the public.

In Wisconsin, in Chapman v. Oshkosh & Miss. R. Co. 33 Wis. 629, where the riparian front was cut off by a railroad, the court, by Cole. J., consider the decision in Gould v. Hudson River R. R. Co. 6 N. Y. 522; and in Tomlin v. Dubuque, Bellevue & Miss. R. R. Co. 32 Iowa. 106, unsound; and in Delaplaine v. C. & N. W. R. Co. 42 Wis. 214, they approve and follow their former decision, holding that the riparian owner on a navigable river has rights therein differing in kind and degree from the rights of the public. He has the right of access to and from his land and to all the facilities which the location of the land gives him, and this although the water's edge is the boundary of his title. And they quote and approve the language of the English decision in Lyon v. Fishermongers' Company, L. R. 1 App. Cas. 662. And in Diedrich v. N. W. U. R. R. Co. 42 Wis. 248, 264, the court approve the decision in Chapman v. Oshkosh & Miss. R. R. Co. In Lorman v. Benson, 8 Mich. 18. it is held that the riparian owner is entitled to every right consistent with the public easement; and in Rice v. Ruddiman, 10 Mich. 125, it was held that the riparian owner's title extended into the lake as far as it was susceptible of private use. For this the United States had got an increased price for the laud. And it is queried whether the State could cut him off from the water. In Barron & Craig v. Mayor & City Council of Baltimore, 2 Amer. Jurist, 203, it was held that the owner had the right of access to his land by water, and that this was property.

Some of these cases arose on the large rivers and lakes of the West. But the principle must be the same. There is no use of referring to many of the cases where it has been held that no private person has a right to do anything to injure or take away the access of the riparian owner to his land. In Rose v. Groves, 5 M. & G. 613, the plaintiff, who had a house on the bank of a navigable river, recovered for the injury done him by the defendant in placing timber in his front. They have, however, an important bearing as recognizing that a riparian owner has rights, from the very fact of his being such owner, which are valuable, and, if so, constitute a species of property of which no one can legally deprive him, subject, of course, to the public rights of navigation, etc., and to be regulated by the legislature so as to protect them.

By the Thames Conservancy Act of A. D. 1857, the conservators of the Thames might license any riparian owner to make any dock, basin, or embankment in front of his land into the body of the river. with a proviso that it should not abridge or take away any right. franchise etc., etc.. to which any owner of lands on the banks of a river is now by law entitled. In Lyon v. Fishermongers' Company, the defendant under license was

embanking in such a way as to cut off a portion of the access which the plaintiff had before enjoyed to his wharf, and he prayed for an injunction. The defendant did not claim a right to interfere with the plaintiff's proper frontage on the river; but from the peculiar shape of the shore he had enjoyed a double frontage,-west as well as south. Malins, V. C., granted an injunction. L. R. 10 Ch. App. 681, n. The case was appealed, and the lords justices reversed his decision. L. R. 10 Ch. App. 679. 687. The justices base their decision on the ground that there was no violation of any private right of the riparian owner distinct from the publie right of navigation, and that they could find no authority for holding that on tidal rivers the riparian owner had any right, or easements similar to those which belonged to an owner above the flow of the tide. The House of Lords, L. R. 1 App. Cas. 662 reversed the decision of the lords justices and opinions of considerable length were delivered by Cairns, Lord Chancellor, and Chelmsford and Selborne, ex-Chancellors. They all hold that most explicitly that the right of the riparian owner does not depend merely on the fact that he suffers a particular damage from a public nuisance, but that he has, as in the case of a highway, certain rights distinct from those of the general public, which are valuable and can not be infringed. It is not a right held in common with the rest of the public, for the other members of the public have no access to orfrom the river at that particular place. It is a form of enjoyment of the land. and of the river in connection with the land, the disturbance of which may be vindicated in damages or restrained by injunction. See also Attorney General v. Conservators of the Thames, 1 Hem. & M. 1, where the same law is laid down by PageWood, V. C.

In Baltimore & Ohio R. Co. v. Chase, 43 Md. 23, it was held that the riparian owner on navigable water has the right of access from the front of his lot, and to erect wharves, etc., subject to regulation by the legislature; that these rights are property; and while they must be enjoyed in subjection to the right of the public, the owner can not be deprived of them. So in our sister State of Connecticut, it was laid down by Judge Swift, that while the sea and navigable waters are common for certain purposes, the owners of the bank have a right to the soil covered by water as far as they can occupy, that is, to the channel. It was subsequently explained that this does not mean that the riparian owners are seized, but only that they have a right to occupy, and that it is properly termed a franchise. The usage to wharf out is recognized as an immemoral usage, which makes a common law. It exclusively belongs to the riparian owner, and no one has any right to do anything to his injury in front of his land. 1 Swift's System, cap. 22, p. 341; East Haven v. Hemingway, 7 Conn. 186; Chapman v. Kimball, 9 Conn. 38; Nicholas v. Lewis. 15 Conn. 137; Simons v. French, 25 Conn. 346, 352.

The right to wharf out has also been generally recognized in the other States. See the cases and reasoning in a very able opinion in Clement v.

Burns, 43 N. H. 609, 617; and Mr. Justice Dillon, in Northwestern Union Packet Co. v. Atlee, 2 Dillon, 479, 485, says: "Structures of the character just named (that is, wharves and landing places) connected with the shore, when not erected in violation of legislative regulations, when they do not obstruct the paramount right of navigation, and are not nuisances in fact, have the sanction of long usage in this country, and under the qualifications suggested may be lawfully erected; but the right it is said must be understood as terminating at the point of navigability." And in the Scotch law it is held, while the riparian owner's absolute right extends only to high water he has a modified property below it, and that no one can interfere between him and the shore. Bell's Diet. and Digest.

That it may sometimes be a nice question as to when the right of the riparian owner is to be held to conflict with the rights of the public, is no sound reason for denying the right. In the language of Best, J., in Blundell v. Catterall, 5 B. & A. 268, 277, "the law in these, as in all other cases, limits and balances opposing rights, that they may be so enjoyed as that the exercise of one is not injurious to the other." That where land is reclaimed from the tide-water it may be held, at least to a certain extent, as private property, can not well be doubted. Bell v. Gough, 23 N. J. Law, 624.

The next question, and a very important one, is whether the person having the right to wharf out or to fill up can convey this right separate from the upland. If the street can be held as a street by estoppel, there is no reason whatever why the same doctrine should not be applied to the lots then under water. The street is laid out for the lots and not the lots for the street. Unless the lots then under water were to be filled up, the street would have been of little or no value. The right has been recognized in many States without any reference to the principle of estoppel.

The original proprietors of Providence conveyed thatch rights to persons not owners of the upland, as we have stated. In Massachusetts, under their Colony Ordinance of 1640, which as I have before said was probably only designed to recognize and limit an existing usage, the riparian owner had a qualified right to low-water mark, provided it was not more than one hundred rods, and a man might sell these flats separately. Adams v. Frothingham, 3 Mass. 352; Valentine v. Piper, 22 Pick. 85; Mayhew v. Norton, 17 Pick. 357. See also Storer v. Freeman, 6 Mass. 435; Knight v. Wilder, 2 Cush. 199; Dunlap v. Stetson, 4 Mason, 349; Bowman's Devisees & Burnley v. Wathen. 2 McLean, 376, 384, 389; Simons v. French, 25 Conn. 346, 352; Deering v. Long Wharf, 85 Me. 51; Chapman v. Kimball, 9 Conn. 38; Nichols v. Lewis, 15 Conn. 137. So in East Haven v. Hemingway, 7 Conn. 186, 202, the right to wharf out is recognized as of immemorial usage, and it is held that this right of occupation is properly a franchise. So also in Simons v. French, 25 Conn. 346, 352.

As to the doctrine of dedication, it is pretty difficult to understand how anything can be dedicated

which can not be used for the purpose intended. Here the land was under water. But if the water lots were validly conveyed, the right in their owners to fill up the street seems to follow; and the owners of those lots, as well as all the owners of lots on the plat, might well be held to be estoppel from denying it to be a highway.

As to the effect of unity of possession, the argument of the respondents that the purpose of this street was to provide a way for lots 13 to 22 would, it seems to me, from their location on the plat, be entitled to great force but for the language of the instrument attached to the plat, which declares expressly that all the squares, streets, and easements are attached to each lot. Decree accordingly.

with a premium note, taking a receipt from the agent. which provided that the note should be returned to plaintiff in case the application was not approved by defendant and a policy of insurance issued thereon. The powers of the agent were limited to receiving applications and forwarding them to the company. He did not forward the application and note of plaintiff, and twenty-five days after they were made a loss occurred. In an action to recover for the loss upon an alleged contract with defendant: Held, that the transaction between plaintiff and the agent did not constitute a contract of insurance binding upon defendant. Whether or not the failure of the agent to forward the application and note constituted negligence, for which the defendant would be liable-quare. Opinion by BECK, C. J.-Walker v. Farmers Ins. Co.

ABSTRACTS OF RECENT DECISIONS.

SUPREME COURT OF IOWA.

October Term (Davenport) 1879.

REAL ESTATE LIFE OWNER - TAX TITLE.-The devisee of real estate for life can not, by acquiring a tax title thereon, divest the title of the reversioner, it being the duty of such life owner to keep the taxes paid. The fact that the tax title is obtained before the will making the devise for life was admitted to probate will not have the effect to change this rule. Opinion by BECK, C. J.-Olleman v. Kelgon.

PROMISSORY NOTE UNAUTHORIZED INDORSEMENT.--Where a promissory note, payable to one of the defendants, had been indorsed to the plaintiff by the other defendant, in the name of the payee: Held, that the indorsements, being unauthorized, conveyed no title to the note, and that plaintiff could not maintain an action thereon against either defendant. Opinion by ADAMS, J.-Thorpe v. Dickey.

-

PROMISSORY NOTE PLACE OF EXECUTION USURY.-Where a note purported to have been executed in the State of Missouri, but was delivered and the consideration therefor received in the State of Iowa: Held, that it was an Iowa contract, and governed by the laws of this State relating to usury. Opinion by DAY, J.-Hart v. Wills.

LIABILITY OF CITY FOR ACTS OF POLICE OFFICERS.-Action to recover damages for an alleged assault upon plaintiff by the deputy city marshal of defendant. The plaintiff alleged that the assault was committed by the officer in arresting him upon a false charge: that it was done under color of authority, and that the act was afterwards ratified by defendant by its prosecuting him upon the charge. Held, that the city was not liable for the acts of its police officers, they being not the servants or agents of the city, but of the public, and being only appointed by city authorities as a matter of convenience. Citing Buttrick v. City of Lowell, 1 Allen, 172; Hafford v. City of New Bedford, 16 Gray, 297; Town of Odell v. Shroeder, 58 Il. 353; Ogg v. City of Lansing, 35 Iowa, 495; Prather v. City of Lexington, 13 B. Mon. 559; Elliott v. City of Philadelphia, 75 Pa. St. 347. Opinion by ADAMS, J.-Calwell v. City of Boone.

INSURANCE-Contract- PRINCIPAL AND Agent. --The plaintiff applied to an agent of defendant for insurance and signed a written application together

SUPREME COURT OF WISCONSIN.

October, 1879.

AFFIDAVIT FOR CHANGE OF VENUE-PERJURY.An affidavit merely in the words of the statute (Rev. Stats., sec. 2625), that the party making it has reason to believe, and does believe, that he can not have a fair trial of the action on account of the prejudice of the judge "(naming him), entitles such party to a change of the place of trial. 2. Whether perjury can be assigned upon such an affidavit, quære; but at least an assignment of perjury can not be laid upon traverse of the fact of prejudice. Opinion by RYAN, C. J.-Bachmann v. State.

PRESCRIPTION AND LIMITATION.-1. In this State prescription and limitation are substantially alike in their legal effects, both conferring title; and the period of prescription follows that of limitation prescribed by statute. 2. A prescriptive right to flow lands by a mill-dam may be acquired by twenty years' uninterrupted user, and under sec. 26, ch. 138, Rev. Stats. 1858, where the twenty years had expired before the passage of ch. 105 of 1877, it conferred such prescriptive right even as against the State. Opinion by ORTON, J.-Scheuber v. Held.

NEGLIGENCE-PRIVITY IN-DEGREES OF CARE.-1. Contributory negligence of the driver of a private conveyance, in which a person is voluntarily riding at the time of receiving an injury from a defective highway, is imputable to the person so injured to prevent a recovery. 2. In an action for injuries caused by negligence, the court, after correctly charging that "slight negligence' (which means in law a want of extraordinary care) would not prevent a recovery, but that a "want of ordinary care" would do so, refused to charge that a slight want of ordinary care" would have that effect. Held, misleading and therefore error. Opinion by ORTON, J.-Otis v. Town of Janesville.

BOND-SURETIES WHAT NOT AFFIRMANCE OF LIABILITY.-In an action on a bond, where the sureties defended on the ground that the instrument was essentially different from that which they promised to execute, and believed themselves to be executing, it was error to admit evidence for the plaintiff that the principal obligor had turned over property to one of said defendants as security against the liability, the taking of such security not being an affirmance by the sureties of their liability on the bond in suit. Opin. ion by RYAN, C. J.-Rounsavel v. Wolfe.

INSURANCE LAWS-CONSTRUCTION OF.-I. It is not the duty of the commissioners of insurance to prosecute insurance companies or their agents for pen

alties incurred by them under sec. 1974, Rev. Stats. 2. Said sec. 1974 provides that no corporation doing insurance business in this State, against which a final judgment shall have been recorded in any court of this State, shall, after sixty days from the rendition of such judgment, and whilst the same remains unpaid, issue any new policy; and ch. 171 of 1879 requires the commissioner of insurance to revoke the authority of any foreign insurance company to do business in this State, upon its persistent violation of any law regulating such corporation. Held, that where, after judgment against a foreign insurance company in a lower court, it has in good faith taken an appeal and given the required undertaking for payment of the judgment if affirmed, it is under no obligation to pay the judgment pending the appeal, and the statutes cited do not apply. Opinion by COLE, C. J.-State v. Spooner.

CONVERSION-MEASURE OF DAMAGES.-1. In actions for the tortious taking or conversion of goods, or for breach of contract to deliver goods, unless plaintiff has been deprived of some special use of the property, anticipated by the wrong-doer, or is entitled to exemplary damages, the general measure of damages is the value of the chattels at the time and place of the wrongful taking or conversion, or at which delivery was due, with interest to the time of trial. 2. In case of a wrongful taking or conversion, if defendant has sold the goods, plaintiff may, at his election, recover the amount for which they were sold, with interest from the sale to the trial. 3. If the chattels wrongfully taken or converted are still in defendant's possession at the time of trial, plaintiff may, at his election, recover their present value at the place of the taking or conversion and in the form in which they were when taken or converted. 4. These rules do not apply to cases in which damages are regulated by special statutes. Opinion by TAYLOR, J.-Ingram v. Rankin.

RIPARIAN OWNERS-OBSTRUCTIONS-REMEDY.-1. A riparian owner on navigable water, in this State (whether or not the owner of the soil under the water) may construct in front of his land. in shoal water, proper wharves, piers and booms, in aid of navigation, at his peril of obstructing it, far enough to reach actually navigable water; but this right is subordinate to the public use of the water, and may be regulated or prohibited by law. 2. Ch. 45, P. & L. Laws of 1871, amended by ch. 256 of 1873, grants to defendant the exclusive right of constructing booms for holding, storing and assorting logs, etc., for a certain distance up and down the Wisconsin river; but, while it authorizes defendant's works in aid of the boom to extend, in the water, up and down the river, fronting its own lands and those of other riparian owners, excluding all other booms, within the limits specifled, it does not attempt to authorize the use by defendant of any part of the bank of the river owned by others; and this could not be done for a private use, nor for a public use without just compensation. 5. The chief navigable value of the Wisconsin river being for the floating of logs to market, booms like that authorized by the statute being necessary for that use, and the statute giving an equal right in the use of defendant's works to all the world, defendant is held to be a quasi public corporation, and its franchises to be granted for a public use; and the prohibition of other riparian owners on the same river, within the specified limits from constructing booms therein (a prohibition implied from the exclusive grant to defendant) is a valid exercise of the paramount public right. 4. If defendant's works have been so constructed as to impede the general navigation of the river, in violation of its franchises, a suit in equity by a private person (for an

injunction, etc.) is not the proper remedy; and if defendant has so used its works in handling rafts or logs as to give a private right of action, the action must be at law for damages. Opinion by RYAN, C. J.-Cohn v. Wausau Boom Co.

SUPREME COURT OF ILLINOIS.

[Filed at Ottawa, October, 1879.]

MECHANIC'S LIEN- CONTRACT BETWEEN (W NER AND CONTRACTOR PAYMENT TO BE MADE IN LAND-STATEMENT OF OWNER TO SUB-CONTRACTOR.-Appellees filed a bill to enforce a mechanic's lienas sub-contractor for the furnishing of lumber and materials and doing the wood work of the building against the principal contractor and the owners. A decree was entered establishing the lien, from which the defendants appealed. It appeared in evidence that a written contract was entered into between the owner of the premises and the principal contractor for the building of the house, the payments to be made at certain stages of the work, and part of the same to be in land instead of money. The main question for decision in the case is whether the owner at the time the lien notices were served upon him owed the contractor anything on the contract, and if so, whether land or money. It appears that appellees requested Welch (the owner) to inform them of the terms of the contract between him and the contractor, he simply saying to them that he would see them paid. Appellees never heard about a payment for the work in land until after the work was done. DICKEY, J., says: "It is contended by appellees that Welch (the owner) abandoned the provision in his contract, in regard to part payment in Iowa land and availed himself of the privilege of paying in money instead, and, therefore, can not resist the payment of the contract price in money. But in the view we take of the law it is not necessary to discuss the correctness of that position. The statute contains no provision which requires the owner or the original contractor to reveal to a sub-contractor the terms of the contract between the owner and the original contractor. And yet the rights of a sub-contractor to a lien depends upon that contract. It may not be the duty of the owner to inform the sub-contractor of the terms of the original contract, but when called upon by the sub-contractor to do so, he is not at liberty to mislead him as to the correctness of that contract, in so far as it may bear upon the rights of the sub-contractor. The appellees, from the conduct and conversation, had a right to expect payment in money and not in land. The statement of the owner gave them to understand that such was to be the mode of payment, and that a sufficient sum remained unpaid to the original con-tractor to cover this claim. As between the parties to the original contract a different rule may prevail, but in view of the evidence the owner shall not be heard to say in answer to the claim of the sub-contractor that he does not owe the contractor, or that he owes him land and not money. He is now estopped to deny that upon the faith of which appellees acted.' Affirmed. Welch v. Sherer.