dominion of the Land Department as part of the public domain, but the Land Department has rather recognized the fact that such lands were not omitted from the original survey. If appellants' contention is correct, then in 1903, at the time of the survey of Gordon's island, not only Gordon's island, but all of the lands involved in this controversy, constituted dry land omitted from the original survey. Hence, it would be rather an anomalous proceeding to survey and meander the irregular tract known as Gordon's island, if as a matter of fact the tract so surveyed and meandered in reality was located in the interior of a larger unsurveyed tract.

(5) Appellants next contend that the United States government never parted with the title to the land in controversy, and consequently that the same constitutes part of the public domain. The question of the rights of riparian owners under patents or grants from the United States has frequently been considered by the Supreme Court of the United States. A review of the various decisions upon this question would serve no useful purpose, still, as said by Mr. Justice McReynolds (Producers' Oil Co. v. Hanzen, 238 U. S. 325, 59 L. ed. 1330, 35 Sup. Ct. Rep. 755), these decisions "unquestionably support the familiar rule that, in general, meanders are not to be treated as boundaries." See Hardin v. Jordan, 140 U. S. 371, 372, 35 L. ed. 428, 430, 11 Sup. Ct. Rep. 808, 838; Mitchell v. Smale, 140 U. S. 406, 35 L. ed. 442, 11 Sup. Ct. Rep. 819, 840; Kean v. Calumet Canal & Improv. Co. 190 U. S. 452, 47 L. ed. 1134, 23 Sup. Ct. Rep. 651.

They also establish the principle that the question "whether the patentee of the United States to land bounded on a non-navigable lake belonging to the United States takes title to the adjoining submerged land is determined by the law of the state where the land lies." Hardin v. Shedd, 190 U. S. 508, 519, 47 L. ed. 1156, 1157, 23 Sup. Ct. Rep. 685; Whitaker v. McBride, 197 U. S. 510, 512, 49 L. ed. 857, 860, 25 Sup. Ct. Rep. 530.

"The rules of law, as established by the numerous decisions of the Supreme Court on that subject," said Trieber, District Judge (United States v. Wilson, 214 Fed. 630, 638), "may be epitomized as follows: If there were no mistakes made in the survey, and a permanent body of non-navigable water was properly meandered, the ownership of the meandered tract is controlled by the laws of the state in which the

lands are situated, and if they hold that such an owner is entitled to claim ownership to the center of the lake, the national courts will follow that rule. If, on the other hand, the surveyors were mistaken or acted fraudulently, and there was at the time of the survey a large tract of land beyond the meander lines, uncovered by permanent bodies of water (exceptional dry seasons, of course, excepted), purchasers of the fractional tracts bounded by the meander lines are not entitled to the land not included in the survey, the meander lines constituting, in that case, boundaries."

The next question which necessarily presents itself for our consideration, therefore, is, What title, if any, does a patentee or grantee of realty abutting upon a non-navigable lake acquire to the bed of the lake, under the law of this state? There is no express constitutional or statutory declaration upon the subject, hence, we are required to ascertain and apply the rules of the common law. Sections 4328-4331, Compiled Laws; Reeves & Co. v. Russell, 28 N. D. 265, L.R.A.1915D, 1149, 148 N. W. 654. See also McKennon v. Winn, 22 L.R.A. 501, and note (1 Okla. 327, 33 Pac. 582).

"The disposal of the present case, therefore, seems to us to require, further, only an answer to the single question, 'What is the common law in regard to the title of fresh-water lakes and ponds? And on this subject we think there can be but very little difference of opinion." Hardin v. Jordan, 140 U. S. 371, 388, 35 L. ed. 428, 435, 11 Sup. Ct. Rep. 808, 838.

The common-law rules as approved by the United States Supreme Court in Hardin v. Jordan, supra, are stated in Cyc. (40 Cyc. 636638), as follows: "Land underlying the water of an inland non-navigable lake is the subject of private ownership, and title thereto may be acquired by adverse possession. Where several owners front on the lake, they own the bed of the lake in severalty, their title extending to the center; and the boundary lines of each abutting tract are to be fixed by extending, from the meander line on each side of the tract, lines converging to a point in the center of the lake. But the owner of lands bounding on large navigable lakes and 'great ponds' takes title only to low-water mark."

"The owner of land fronting on a lake or pond is entitled to any land added to his frontage by accretion, or by the recession and withdrawal

of the waters, provided that the process in either case, whether of accretion or reliction, was gradual and imperceptible, and that his land was not originally separated from the water's edge by the intervening property of any other person."

The rules announced in Cyc. are in harmony with our statutory enactments regarding the ownership of the bed of non-navigable streams (Section 5476, Comp. Laws. See also § 5473, Comp. Laws, and Heald v. Yumisko, 7 N. D. 422, 75 N. W. 806), and have the support of the overwhelming weight of authority. See Gouverneur v. National Ice Co. 18 L.R.A. 695, and extended note (134 N. Y. 355, 30 Am. St. Rep. 669, 31 N. E. 865); Olson v. Huntamer, 6 S. D. 364, 61 N. W. 479; Flisrand v. Madson, 35 S. D. 457, 152 N. W. 796; Knudsen v. Osmanson, 10 Utah, 124, 37 Pac. 350; Little v. Williams, 88 Ark. 37, 113 S. W. 340; Lamprey v. State, 52 Minn. 181, 18 L.R.A. 670, 38 Am. St. Rep. 541, 53 N. W. 1139; Lamprey v. Mead, 54 Minn. 290, 40 Am. St. Rep. 328, 55 N. W. 1132; Shell v. Matteson, 81 Minn. 38, 83 N. W. 491; Sherwin v. Bitzer, 97 Minn. 252, 106 N. W. 1046: Tucker v. Mortensen, 126 Minn. 214, 148 N. W. 60; Conneaut Ice Co. v. Quigley, 225 Pa. 605, 74 Atl. 648; Hardin v. Jordan, 140 U. S. 371, 35 L. ed. 428, 11 Sup. Ct. Rep. 808, 838; Grand Rapids Ice & Coal Co. v. South Grand Rapids Ice & Coal Co. 102 Mich. 227, 25 L.R.A. 815, 47 Am. St. Rep. 516, 60 N. W. 681; Lembeck v. Nye, 47 Ohio St. 336, 8 L.R.A. 578, 21 Am. St. Rep. 828, 24 N. E. 686; Farnham, Waters, § 58a.

(6) The trial court adjudged the abutting owners (the respondents) to be the owners of the lands in controversy, but, owing to the fact that the center or centers of the lake had not been determined, the court did not fix the exact amount, or define the boundaries, of the particular tracts belonging to each owner, but left this question open for future determination. The trial court, however, did determine the issues in the action, and adjudged the abutting owners to be the owners of the land in controversy by virtue of their riparian rights. The owners do not complain of the judgment, but appellants assert that the trial court should have determined the exact quantity, and defined the boundaries, of the particular tracts belonging to the various owners. It is difficult to understand why appellants should complain. They have no interest in these lands, and are not concerned with the subdivision thereof.

(7) Appellants assert that there is collusion between the plaintiff and the various abutting owners named as defendants. This assertion is based upon the ground that there is in effect no contest between these parties, and that they were represented by the same attorneys. The contention is untenable. So far as the issues litigated in this action are concerned, the interests of the various abutting owners were identical.

The judgment appealed from is affirmed.

FRED W. FITCH v. HENRY ENGELHARDT.

(157 N. W. 1038.)

Plaintiff owned land mortgaged to the American Mortgage & Investment Company of St. Paul, Minnesota. Soon after taking it the mortgage had been assigned to Engelhardt. For four years the interest coupons had been collected by the mortgage company for said assignee. In May, 1912, upon maturity of the mortgage, upon receipt from the company of notice to pay interest and principal, plaintiff paid the company the amount of the mortgage and last instalment of interest. The company then failed without remitting said payment to defendant, holder of the mortgage, and without delivering to plaintiff the mortgage securities or a satisfaction of them. Plaintiff brings this action to quiet title and cancel the mortgage as paid. The issue of fact is whether the proof establishes authority in the mortgage company from Engelhardt to collect said interest and principal. Held:

1. Authority in an agent and the fact of agency to receive payment of a mortgage for the holder thereof may be shown by other proof than that of the possession of the securities. And such authority may be established though Note.-Authority to collect a security not in possession of the person collecting may be established by showing general agency, express, apparent, or ostensible authority to collect, and also facts to raise an estoppel. For authority in accord with this proposition, see notes in 23 L.R.A.(N.S.) 414; L.R.A.1916B, 860; and 16 Am. St. Rep. 493, on the effect of fact that agent does not have possession of securities upon the question of his authority to receive payment thereof.

the mortgage securities were not in the possession of the collecting agent or exacted by the mortgagor on or prior to payment.

2. Agency and authority in the mortgage company as the agent of Engelhardt to collect the amount due on said mortgage is sufficiently established by the proof.

3. Prior holdings upon proof of agency and authority to collect are distinguished and held not controlling under the facts.

Opinion filed May 1, 1916.

Appeal from a judgment of the District Court of Ward County, Leighton, J.

Affirmed.

Henry Moen (McDowell & Fosseen, of counsel), for appellant.

The mortgage company was not an ostensible agent. An agent has only such authority as the principal actually or ostensibly confers upon him. Code 1913, § 6324; Mechem, Agency, § 744, p. 528.

Ostensible agency is one by estoppel, and should be restricted to cases where the agency is not real, but apparent. Harris v. San Diego Fluen Co. 87 Cal. 526, 25 Pac. 758; Hollinshead v. John Stuart & Co. (Hollinshead v. Globe Invest. Co.) 8 N. D. 35, 42 L.R.A. 659, 77 N. W. 89; Mechem, Agency, $$ 934-945; Stolzman v. Wyman, 8 N. D. 108, 77 N. W. 285; Dwight v. Lenz, 75 Minn. 78, 77 N. W. 546; Trowbridge v. Ross, 105 Mich. 598, 63 N. W. 534.

Agency will never be presumed, and where it is claimed and relied upon, and is disputed, the burden of proof is upon him who affirms its existence, and the proof must be clear and convincing. Corey v. Hunter, 10 N. D. 5, 84 N. W. 570; Busch v. Wilcox, 82 Mich. 336, 21 Am. St. Rep. 563, 47 N. W. 328; Farrington v. South Boston R. Co. 150 Mass. 406, 5 L.R.A. 849, 15 Am. St. Rep. 222, 23 N. E. 109; Moore v. Skyles, 33 Mont. 135, 3 L.R.A. (N.S.) 136, 114 Am. St. Rep. 801, 82 Pac. 799; Trubel v. Sandberg, 29 N. D. 378, 150 N. W. 928. Francis J. Murphy, for respondent.

Faber was the general agent of the defendant, and, as such, had full authority to collect, receive, and receipt payment, and his acts are bind