"It will be observed that no particular method of amending the petition is pointed out; that no specified steps are essential as a prerequisite to the allowance of such amendments. The whole matter was largely discretionary with the court, and there was no such abuse of discretion as calls for interference." Knoth v. Barclay, 8 Colo. 300, 302, 6 Pac. 924.

Such statutes are rightly accorded a liberal, as distinguished from a restrictive, interpretation, and are almost uniformly held to be as applicable to the correction of errors and omissions in the statement of jurisdictional facts as to the correction of other defects. Linhart v. Buiff, 11 Cal. 280; Coolman v. Fleming, 82 Ind. 117, 121; Mitchell v. Mo. Pac. Ry. Co., 82 Mo. 106; McLellan v. Crofton, 6 Greenl. (Me.) 307, 328; Continental Ins. Co. v. Rhoads, 119 U. S. 237, 7 Sup. Ct. 193, 30 L. Ed. 380; Halsted v. Buster, 119 U. S. 341, 7 Sup. Ct. 276, 30 L. Ed. 462; Bowden v. Burnham, 59 Fed. 752, 8 C. C. A. 248; Carnegie, Phipps & Co. v. Hulbert, 70 Fed. 209, 16 C. C. A. 498; Whalen v. Gordon, 95 Fed. 305, 37 C. C. A. 70; In re Plymouth Cordage Co., 135 Fed. 1000, 68 C. C. A. 434. And this is the settled rule. of decision in the courts of Colorado. Archibald v. Thompson, 2 Colo. 388; Lebanon Mining Co. v. Consolidated Co., 6 Colo. 371; Jordan v. Greig, 33 Colo. 360, 378, 80 Pac. 1045; Southwestern Land Company v. Hickory Jackson Ditch Company, 18 Colo. 489, 33 Pac. 275. In the last case the court disposed of a contention similar to that now under consideration by saying:

"The petition originally filed was defective in not averring that the amount of damages, if any, to the residue of respondent's property, and the value of the strip of land sought to be taken, were within the jurisdiction of the county court; and counsel for respondent insist that, the jurisdictional averment being insufficient, the court had no power to grant leave to amend. With this we cannot agree. The defect might have been cured by amendment, if the petition had been attacked by demurrer. By section 50 of the Code of Civil Procedure, a want of jurisdiction of 'the subject-matter of the action' is made a ground of demurrer. Section 74 provides that, if a demurrer is sustained, 'the unsuccessful party shall plead over or amend, upon such terms as shall be just.' The motion to dismiss in this case upon the grounds stated was the equivalent of a demurrer, and we can perceive no reason why the amendment might not be made upon proper terms as well as upon demurrer."

A complaint which is defective, but amendable, cannot be regarded as entirely void (Archibald v. Thompson, 2 Colo. 388, 391); nor can a summons be so regarded merely because it is issued upon such a complaint. It is of no importance that a copy of the original complaint was attached to the summons as served upon the respondents, because they were bound to take notice of the statute relating to amendments, and, if they chose to act on the assumption either that the plaintiff would not seek an amendment or that the court would not permit one, they did so at their peril. Granger v. Judge, 44 Mich. 384, 6 N. W. 848; Griffin v. McGavin, 117 Mich. 372, 75 N. W. 1061, 72 Am. St. Rep. 564. Nor was the power of the court to allow the amendment affected in any wise by their failure to appear, because the personal service of the summons brought them under the jurisdiction of the court for all purposes of the proceeding as fully as a voluntary appearance could have done. Langmaid v. Puffer, 7 Gray (Mass.) 378, 382; Bond v. Howell, 11 Paige (N. Y.) 233; Sidway v. Marshall, 83 Ill. 438; Chicago, etc., Co. v. Johnston, 89 Ind. 88; Yonge v. Broxson, 23

Ala. 684; Phelps v. Smith, 16 W. Va. 522. That jurisdiction was not lost by the amendment. It was not the institution of a new proceeding, and created no occasion for the issuance of a new summons or like process. Bond v. Howell, supra; Healy v. Aultman & Co., 6 Neb. 349; Schuyler Nat'l Bank v. Bollong, 28 Neb. 684, 692, 45 N. W. 164; Haynes v. Rice, 33 Tex. 167; St. Louis v. Gleason, 15 Mo. App. 25, 29; Phelps v. Smith, supra; 1 Enc. Pl. & Pr. 494; 19 Id. 573. The insistence to the contrary is rested upon the theory that the amendment could only operate prospectively, and therefore that all that was done prior thereto was void. But this theory is a mistaken one, as is well shown in Bowden v. Burnham, supra, where it was said by Judge Caldwell, in speaking for this court:

"The objection to the jurisdiction of the court is grounded on the fact that the original petition did not disclose that the assignors of the claims which the plaintiffs sued on as assignees were citizens of states other than Kansas, and the further fact that, rejecting those claims, the amount claimed by the plaintiffs was less than $2,000. But the court very properly granted the plaintiff's leave to amend their complaint (section 954, Rev, St. U. S. [U. S. Comp. St. 1901, p. 696]), and it was amended. Nevertheless, the plaintiff in error asserts that as the complaint, at the time the attachment was issued, did not contain the necessary jurisdictional averments, every step taken in the cause prior to the amendment was void, and that the amendment of the complaint could not impart vitality or validity to anything done before the amendment was made. This contention is wholly untenable. It is everyday practice to allow amendments of the character of those made in this case, and when they are made they have relation to the date of the filing of the complaint or the issuing of the writ or process amended. When a complaint is amended, it stands as though it had originally read as amended. The court in fact had jurisdiction of the cause from the beginning, but the complaint did not contain the requisite averments to show it. In other words, the amendment did not create or confer the jurisdiction; it only brought on the record a proper averment of a fact showing its existence from the commencement of the suit."

To the same effect are Miller v. Cook, 135 Ill. 190, 203, 25 N. E. 756, 10 L. R. A. 292; Norris v. Ile, 152 Ill. 190, 203, 204, 38 N. E. 762, 43 Am. St. Rep. 233; Towns of Windham and Chaplin v. Litchfield, 22 Conn. 226, 232; Hoyt v. Smith, 28 Conn. 466, 471; Hurd v. Everett, 1 Paige (N. Y.) 124; Heath v. Whidden, 29 Me. 108; Brockaway v. Thomas, 32 Ark. 311; 1 Enc. Pl. & Pr. 621.

Much reliance is placed upon Car Coupler Co. v. League, 25 Colo. 129, 54 Pac. 642, in which there is some language which may possibly seem to be in conflict with what we have said respecting the correction. of errors and omissions in jurisdictional allegations; but as the language there employed was in the nature of a concession not required by the facts of that case, as no reference was made therein to the earlier decision in Southwestern Land Company v. Hickory Jackson Ditch Company, supra, and as general remarks or concessions not necessary at the time are not regarded as overturning or qualifying earlier rulings necessary to the decision of the cases then in hand, we think the language relied upon cannot reasonably be accepted as intended to overturn or qualify the earlier decision.

Whether there was an abuse of discretion in the allowance of the amendment, without some prior notice to the respondents of the application therefor, is not now open to consideration, because at most

that would only be an error in the exercise of a lawful jurisdiction, and would not render the judgment void so as to open it to collateral attack. Tilton v. Cofield, 93 U. S. 163, 167, 23 L. Ed. 858.

As the Circuit Court rightly held that the judgment in the condemnation proceeding was not void, its judgment is affirmed.

DECKER v. PACIFIC COAST S. S. CO.

(Circuit Court of Appeals, Ninth Circuit.

No. 1,564.

October 19, 1908.)

1. NAVIGABLE WATERS (§ 43*)-RIGHTS OF OWNER OF SHORE LANDS IN ALASKA-WHARVES.

An owner of lands in Alaska which border on tidal waters has no title to the soil below high-water mark, and cannot enjoin the maintenance of a wharf or other structure in aid of navigation thereon, unless it prevents his own free access to the navigable waters.

[Ed. Note. For other cases, see Navigable Waters, Dec. Dig. § 43.*] 2. NAVIGABLE WATERS (§ 43*)-EQUITABLE OWNER OF SHORE LANDS-CONVEYANCE OF LITTORAL RIGHTS.

An equitable owner or claimant of government lands in Alaska on the seashore may convey his littoral rights to an individual or corporation, to enable such grantee to erect and maintain a wharf for the benefit of commerce and navigation.

[Ed. Note. For other cases, see Navigable Waters, Cent. Dig. §§ 256, 257; Dec. Dig. § 43.*]

Appeal from the District Court of the United States for Division No. 1 of the District of Alaska.

This is an action brought by appellant against the Pacific Coast Steamship Company and John Johnston in the United States District Court for the District of Alaska, First Division, to abate a private nuisance, to wit, the erection and maintenance of buildings and a wharf between certain property and deep water in the town of Juneau, Alaska, described as block L, which premises, it is alleged in the complaint, abut on the waters of Gastineaux Channel at mean high tide, and against which premises the tide regularly ebbs and flows twice in 24 hours. In this property appellant is equally interested with said Johnston, who refused to join as plaintiff in the action and who was accordingly made defendant. It is alleged in the complaint that by the erection and maintenance of the buildings and wharf by the defendant corporation the plaintiff has been and will continue to be deprived of her right and prevented from wharfing out or maintaining a wharf in front of her premises, and prevented from access to deep water from her abutting premises. The prayer is that the buildings and wharf be declared to be a private nuisance and that the same be abated, and for damages in the sum of $1,000. Default was entered against defendant Johnston, who failed to appear.

The answer of appellee admitted the allegations of the complaint as to appellee's corporate existence, appellant's part ownership of the premises described in the complaint, and that the premises "abut on the waters of Gastineaux Channel at mean high tide, and against which premises the tide regularly ebbs and flows twice in 24 hours," but denies all the other material allegations of the bill. For an affirmative defense the answer alleges that on February 20, 1897, appellant, as one of the owners of blocks K and L in the town of Juneau, Alaska, joined in a deed of conveyance to the People's Wharf Company of "all littoral and appurtenant rights by them owned, or any littoral or appurtenant rights that might thereafter exist, in and to the shore of Gastineaux Channel between ordinary line of high tide and deep water For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

in the town of Juneau, Alaska, except the warehouse and building occupied by the said E. O. Decker and J. M. Decker"; that on April 1, 1898, the premises and rights under said deed were acquired through mesne conveyances by the Pacific Coast Company, a corporation, in good faith, for a valuable consideration, and without notice of any claim whatsoever of the appellant or her grantors; that valuable improvements, considerably in excess of $30,000, had been erected on the premises by the Pacific Coast Company and its predecessors in interest, and that the Pacific Coast Company had maintained open, notorious and exclusive possession of the premises ever since such purchase; that appellant and her predecessors in interest ought to be estopped from asserting any right, title, or interest in or to said premises; that appellee is the lessee of the premises, and therefore not the real party in interest; that appellee has not erected said wharf, nor the Union Iron Works, nor any structure upon the said premises, and does not claim the ownership of the same, but merely claims the possession of the same under its lease from the Pacific Coast Company; that the Pacific Coast Steamship Company is not the real party in interest, and there is, therefore, a defect of parties defendant. Appellant's reply denied the execution or recording of any deed conveying any littoral or appurtenant rights to the shore of Gastineaux Channel by herself and the other parties named in the answer as grantors, denied the corporate existence of the People's Wharf Company and all other material allegations of the answer, and alleged that "on February 20, 1887, the said real property mentioned in the answer was, and up to the 5th day of October, 1898, remained exclusively the property of the United States of America, and was not owned by private persons or subject to private ownership"; that complainant knew nothing of business and had depended on hired counsel, none of whom had, until the past year, informed her of her rights; and that previous to that she had at almost all times since her majority been a housewife.

*

*

The case was tried before the court, and upon the evidence taken the court found as facts that the entry of the town site of Juneau was made by the receiver and register of the land office at Sitka, Alaska, on the 13th day of October, 1893; that thereafter, to wit, on the 4th day of September, 1897, a United States patent was duly issued by the President of the United States to Thomas R. Lyons, as trustee, for the use and benefit of the occupants of said town site of Juneau; that blocks K and L were a portion of said Juneau town site, and said blocks or parcels of land abut on the mean high tide land of Gastineaux Channel, an arm of the Pacific Ocean; that on and prior to the 20th day of February, 1897, one E. O. Decker and J. M. Decker were the owners of, in possession of, and entitled to the possession, as against all parties save the United States, in which the legal title then stood, of blocks K and L of the town of Juneau, in the district of Alaska, and while said E. O. Decker and said J. M. Decker were the owners of said blocks, and on the 20th day of February, 1897, said E. O. Decker and J. M. Decker and Lizzie Decker, the then wife of said E. O. Decker, who is the same person as the appellant herein, Elizabeth Decker, did by due and proper deed of conveyance quitclaim and convey to the People's Wharf Company, a corporation, all of their littoral and riparian rights immediately abutting on said blocks K and L, except a small warehouse situate on said tide land, and which is not in controversy in this action, and further by said conveyance quitclaimed by proper conveyance to the said People's Wharf Company all the littoral rights which they or either of them might acquire to the said tide lands of Gastineaux Channel abutting on said blocks K and L, and thereafter by mesne conveyances the Pacific Coast Company, a corporation, acquired all the right, title, and interest of the said People's Wharf Company in and to all the littoral and riparian rights immediately in front of and abutting upon said blocks K and L, and that said Pacific Coast Company was then and had been the owner of and in possession, by its lessee, the Pacific Coast Steamship Company, and entitled to the possession, as against all persons save its lessee and the United States, of all said premises at the time of the commencement of this action; that since the 20th day of February, 1897, and before appellant obtained title by decree of distribution to the said lots, or any portion thereof, the said People's Wharf Company and their successors in interest had erected upon said tide lands

valuable improvements in the shape of shops, stores, wharves, and docks, at a great expense, aggregating the approximate sum of $18,000; that all of such properties, except the warehouse, and all of the littoral and riparian rights and tide lands in controversy, had been in the actual, notorious, and exclusive possession of the Pacific Coast Company and its grantors since the 20th day of February, 1897; that the appellee, the Pacific Coast Steamship Company, was the lessee of the Pacific Coast Company, and was not the real party in interest, and had not erected any wharves or any structures upon said premises, and did not claim the ownership of the same, but merely claimed the possession of the same under its lease from the Pacific Coast Company. Upon these findings the court dismissed the bill.

E. M. Barnes, for appellant.

Shackleford & Lyons (Geo. W. Towle, of counsel), for appellee. Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW, Circuit Judge (after stating the facts as above). In the recent case of Columbia Canning Company v. Hampton, 161 Fed. 64, this court had occasion to consider the claim of right asserted by the locator of land in Alaska which bordered on navigable or tidal waters to occupy the shore between high tide and low tide abutting upon his upland location as a basis for the purpose of carrying on the fishing business in connection with a fish trap extending out into the navigable waters of Lynn Canal. The court held that the littoral right attached to plaintiff's homestead location entitled him to free access to the navigable waters of Lynn Canal, but not to build upon the shore or erect any structure reaching out into deep water, so as to obstruct navigation. In support of this rule the court cited Gould on Waters (3d Ed.) par. 149, Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 35 L. Ed. 428, and Shively v. Bowlby, 152 U. S. 1, 58, 14 Sup. Ct. 548, 38 L. Ed. 331, and said:

"It follows, from these authorities, that while the owner or locator of lands in Alaska which border upon navigable or tidal waters has, under the general law, the right of access to such waters for the purpose of navigation, he can acquire no right or title to the soil below high-water mark, and he can have, therefore, no right of possession upon which he can base an action against an intruder whom he charges with interfering with and obstructing him in the erection and use of a structure upon the shore below such highwater mark."

The court said further:

"He may have, however, a right of action against an intruder who places obstacles on the shore that prevent him from having access to the navigable waters."

This is the general rule, and is designed to keep navigable waters free and open to the public for commerce and navigation, and at the same time permit the littoral owner and those engaged in commerce and navigation to have access to navigable waters; but it cannot be ascertained from the allegations of the complaint in this case, nor does it appear in evidence, in what manner the maintenance of the buildings and wharf by the appellee in front of appellant's premises prevents her from having access to the navigable waters of Gastineaux Channel. The presumption is that such access would be facilitated, rather than obstructed, by the maintenance of a wharf and other suit