the fact that Orrin W. Rice, the original owner of a peninsular fronting on the waters of the bay of Duluth, known as "Rice's Point," in platting his land into lots, blocks, and streets, extended the plat for a distance of several blocks beyond the shore line out into the shallow water: Gilbert v. Eldridge, 47 Minn. 210; Bradshaw v. Duluth Imp. Mill Co., 52 Minn. 59.

Rice did not, however, plat out to the line of navigability, and hence an unplatted space was left between the outermost blocks and the navigable waters. It is this unplatted space which is the subject of the present controversy.

After platting the land Rice conveyed the original shore block (85) to the grantors of defendants Emerson and Eldridge, and conveyed to the grantors of plaintiff all the water blocks in front of block 85, including those fronting on the unplatted space referred to. Years afterward Rice's heirs conveyed the unplatted space to the defendant Howe.

Plaintiff claims the right to occupy this unplatted space by virtue of his ownership of the outermost blocks fronting on it, his contention being that the plat clearly shows on its face that it was intended that these blocks should permanently enjoy access to the water; in short, that they should be the "shore blocks," and that, 260 as such, the riparian rights usually appurtenant to the shore land should attach to them.

Defendants Emerson and Eldridge claim the right to the unplatted space as appurtenant to their ownership of the original shore block, their theory being that the riparian rights originally incident to the shore land were curtailed by the plat only as to the land covered by the platted blocks, thus leaving still incident to the original shore block the unplatted space out to the point of navigability.

Defendant Howe bases his claim upon the deed from Rice's heirs, upon the theory that, where a riparian owner extends the plat of his land out into the adjacent shallow water, he still retains, after selling all his platted water blocks, the right to improve, as against his grantees, all that lies beyond the boundaries of the plat out to the line of navigability.

It is the settled doctrine of this court that the right of the riparian proprietor upon navigable waters to reclaim, improve, and occupy submerged lands out to the line of navigability may be separated from the shore line, and transferred to and enjoyed by persons having no interest in the original

shore. We have also held, with reference to this very property, that platting the land into separate and distinct parcels or blocks, out into the shallow water beyond, in front of the shore block, clearly indicated an intention to disassociate the two, and hence that the grantee of the shore block would acquire no interest in the water blocks in front of it. This is conclusive against the claim of defendants Emerson and Eldridge, for if the platting in that way indicated an intention that the grantee of the original shore block should have no right in the water, or the land under the water, included in the platted blocks in front of it, it with equal or even greater force negatived any intention that he should have any rights in the water or land under it outside of the intervening platted blocks, which he could not, under the circumstances, use as incident to the original shore block. In brief, the intention is clearly indicated that the rights of the grantee of that block were to be limited by the boundary lines as indicated on the plat.

We have never before had occasion to directly pass upon the exact question at issue between plaintiff and defendant Howe; but we 261 think that an application of the principles announced in our former decisions necessarily leads to its determination in favor of the contention of the plaintiff.

The principle on which all our decisions on the subject have proceeded is that the question is one of intention, as indicated by the plat, with reference to which all the conveyances were made. This plat, as we think, clearly implies that the outermost platted blocks should be and remain the riparian or shore blocks, and, as such, have all the riparian rights in and to the water, and the land under the water, in front of them, which any riparian or shore estate has. This would be the impression which would be inevitably produced on the mind upon a mere inspection of the plat.

Where a party conveys a parcel of land bounded by water it will never be presumed that he reserves to himself proprietary rights in front of the land conveyed. The intention to do so must clearly appear from the conveyance; and the mere fact that the boundary of the lot conveyed is indicated by a line on the plat will not limit the grant to the lines on the plat, or operate to reserve to the grantor proprietary rights in front of the lot: Watson v. Peters, 26 Mich. 508. Had the blocks conveyed to plaintiff been original shore blocks (with no block platted out in the water in front of

them), or had Rice, before conveying these outermost water blocks, reclaimed and filled them up, there could have been no question but that the grantees would have acquired all the riparian rights in the water, and land under water in front of them, usually appurtenant to shore land.

But the platting of these water blocks, and conveying them with reference to the plat, manifestly contemplated reclaiming them and filling them in, or otherwise improving them for use; and we cannot see what difference it makes whether this had been done before Rice conveyed or was only in contemplation. It seems to us that the plat contemplates upon its face, as clearly as words could express it, that the exterior line of these outermost blocks was to be treated as the shore line, and that the rights usually appurtenant to a riparian estate would attach to those blocks. All the supposed legal objections to this view are more speculative and specious than practical or sound.

262 On the appeal of defendants Emerson and Eldridge, that part of the judgment appealed from is affirmed, and on the appeal of plaintiff that part of the judgment appealed from is reversed, and the cause remanded, with directions to the court below to render judgment in favor of plaintiff.

RIPARIAN RIGHTS-CONVEYANCES-WATERS AS BOUNDARIES-TIDE FLATS or Water Lors.-The right to reclaim, improve, and occupy submerged lands out to the point of navigability, although incident to the riparian estate, may be separated therefrom, and be transferred to and enjoyed by persons having no interest in the original riparian estate. So improvements may be severed from the uplands, and be held by other persons having no interest in the original tract: See monographic note to Miller v. Mendenhall, 19 Am. St. Rep. 233, discussing the rights of landowners in navigable waters fronting their lands, and in the lands under such waters. The ri parian owner in making a conveyance may reserve the land under water, but, if the owner of a city lot conveys it with the waters of a navigable stream as a boundary, he will not be presumed to have reserved to himself property rights in front of the land conveyed, which he may grant to others for private occupation, or which he may so use himself as to cut off his grantee from the privileges and conveniences which appertain to the shores of navigable waters. On the contrary, the general presumption is, that the purchaser's title extends as far as the grantor owns: See monographio notes to Allen v. Weber, 27 Am. St. Rep. 57, discussing waters as boundary lines, and Miller v. Mendenhall, 19 Am. St. Rep. 233. The owner of tide flats or water lots may convey them without the uplands, or he may convey the upland without the flats: See note to Miller v. Mendenhall, 19 Am. St. Rep. 234.

BEAUCHAINE v. MCKINNON.

[55 MINNESOTA, 318.]

JUDGMENT-OFFICIAL BOND-EVIDENCE-SURETIES.-A judgment recovered against the principal upon an official bond, for official misconduct, is prima facie evidence against the sureties in an action against them on the bond

ACTION against the sureties on a sheriff's bond, conditioned for the faithful performance of his duties. The plaintiff, Beauchaine, had recovered a judgment against the sheriff for wrongfully levying certain writs of attachments on the property of a stranger to the proceedings. Plaintiff then sued the sureties, after an execution on his judgment had been returned unsatisfied, and on the trial offered in evidence the judgment-roll in his action against the sheriff, together with the writ of execution and return thereon. This evidence was admitted. Plaintiff obtained judgment, and defendants appealed from an order refusing to set aside the verdict and to grant a new trial.

A. A. Miller and Martin O'Brien, for the appellants.

Edward George, for the respondent.

320 COLLINS, J. The real questions involved in this appeal are whether in an action brought against sureties in an official bond, given by a sheriff, and conditioned for the faithful performance of the duties of his office (Gen. Stats. 1878, c. 8, sec. 193), a judgment which has been rendered 321 against such sheriff for official misconduct is admissible in evidence, and also, if it be admissible, to what extent are the sureties bound. A great number of decisions have been cited upon the subject, and there is much diversity of opinion as to the effect of such a judgment. In some of the states it is held that it is of no value as against sureties, and hence inadmissible in evidence in an action brought to enforce a liability upon the bond: Pico v. Webster, 14 Cal. 203; 73 Am. Dec. 647; Lucas v. Governor, 6 Ala. 826; Governor v. Shelby, 2 Black f. 26; Carmichael v. Governor, 3 How. (Miss.) 236. It is well argued in these cases that such a judgment is res inter alios acta, and therefore of no effect in an action against sureties. In a very large number of states it has been determined that such a judgment is prima facie evidence in an action brought against and involving the liability of sureties upon an official bond. It was so declared in Massachusetts

in 1845, the learned Chief Justice Shaw preparing the opinion (City of Lowell v. Parker, 10 Met. 309; 43 Am. Dec. 436), although in later cases the court departed from this doctrine, as will be seen upon an examination of the authorities hereinafter cited. That these judgments are at least presumptive evidence as against sureties upon an official bond has been held in Stephens v. Shafer, 48 Wis. 54; 33 Am. Rep. 793; Norris v. Mersereau, 74 Mich. 687; Graves v. Bulkley, 25 Kan. 249; 37 Am. Rep. 249; Fay v. Edmiston, 25 Kan. 439; Charles v. Haskins, 14 Iowa, 472; 83 Am. Dec. 378; Mullen v. Scott, 9 La. Ann. 174; Miller v. Rhoades, 20 Ohio St. 494; Taylor v. Johnson, 17 Ga. 521; Carr v. Meade, 77 Va. 142; De Greiff v. Wilson, 30 N. J. Eq. 435. We gather from Thomas v. Hubbell, 15 N. Y. 405, 69 Am. Dec. 619, 35 N. Y. 121, that this rule also prevails in New York.

A variety of reasons have been given in support of this rule, and many of them were referred to and commented upon in Stephens v. Shafer, 48 Wis. 54; 33 Am. Rep. 793. We need not state them.

There is also a very respectable array of authorities which fully sustain the doctrine that, where a judgment is recovered against an officer for official misconduct, and against which sureties upon his bond have covenanted, it is absolutely conclusive on the sureties, in the absence of fraud or collusion, both as to the official misconduct and the extent of the damages. Among these cases may be 322 noted Masser v. Strickland, 17 Serg. & R. 354; 17 Am. Dec. 668; McMicken v. Commonwealth, 58 Pa. St. 213; Chamberlain v. Godfrey, 36 Vt. 380; 84 Am. Dec. 690; Tracy v. Goodwin, 5 Allen, 409; Dennie v. Smith, 129 Mass. 143-both these Massachusetts cases are subsequent to City of Lowell v. Parker, 10 Met. 309; 43 Am. Dec. 436.

While the authorities are wide apart upon the question it is evident that the decided weight is in favor of the doctrine that a judgment against the principal upon an official bond is prima facie evidence against the sureties. By this rule the right is reserved to such sureties to interpose any defense they may have, and to be fully heard on the merits.

After a full examination of the authorities, in deference to the great weight in this direction, and believing that convenience and public policy require and will be promoted by its approval, we accept and adopt the prima facie doctrine. We admit that the rule first mentioned herein, declaring