death, a legal presumption is raised that the will was destroyed by him with the intention of revoking it. In the recent case of Collyer v. Collyer, 110 N. Y. 486, 6 Am. St. Rep. 405, the rule is stated that when a will previously executed cannot be found after the death of the testator, there is a strong presumption that it was revoked by destruction by the testator, and this presumption stands in the place of positive proof: See also 1 Redfield on Wills, 329; 1 Williams on Executors, 157, and cases cited; 2 Am. Lead. Cas., 5th ed., 510; Foster's Appeal, 87 Pa. St. 67; 30 Am. Rep. 340; Minkler v. Minkler, 14 Vt. 125; Betts v. Jackson, 6 Wend. 181; Minor v. Guthrie, 4 S. W. Rep. 179 (Ct. of App. Ky., May 3, 1887); Hatch v. Sigman, 1 Demarest, 519; 1 Jarman on Wills, 5th Am. ed., 290, and cases cited; Wargent v. Hollings, 4 Hagg. Ecc. 245; Lillie v. Lillie, 3 Hagg. Ecc. 184.

Such a presumption of revocation may be overcome by circumstantial or other proof to the contrary. It may be rebutted by showing that the testator had no opportunity to revoke, and that his will was destroyed after his death. And for this purpose, declarations of the testator to various members of his family down to a few days before his death, expressive of his satisfaction at having settled his affairs, and intimating that his will was left with his attorney, have been held to have been properly admitted: Whitely v. King, 17 Com. B., N. S., 756; Keen v. Keen, L. R. 3 Pro. & D. 105; In re Johnson's Will, 40 Conn. 587.

But while the declarations of the testator may be used to weaken the presumption that he has destroyed his will with the intention of revoking it, his declarations may also be received as evidence to strengthen and fortify the presumption that he has destroyed his will with such intention. Whether it be the making of a will or the destroying of one, the competency of the testator's declarations as evidence is alike in each case, and for the same reasons admissible: Collagan v. Burns, 57 Me. 465. In Keen v. Keen, L. R. 3 Pro. & D. 105, in order to rebut the presumption of revocation arising from a will which was in a testator's possession not being found after his death, evidence was produced of declarations by the testator showing an intention to adhere to the will. The court held that evidence of declarations of an intention not to adhere to the will, produced by the opponents of the will, was admissible to contradict the evidence of adherence, whatever might be the form of words in which such intention was ex

pressed; and therefore that a declaration by the testator that he had burned his will was admissible, not as evidence of the fact of destruction, but as evidence of intention. Sir J. Hannen, in his opinion in the case, says: "I think there can be no doubt that while on the one hand evidence of statements made by a testator subsequent to the execution of a will, that he intends to act in conformity with the disposition contained in the will, is clearly admissible, it necessarily follows that other statements made by the testator, to a contrary effect, must also be admissible. The admissibility of such evidence cannot depend on the form of words in which the intention is expressed. Therefore a statement by a testator that he has altered his mind as to the disposition of his property, and that he has therefore destroyed his will, although it may not be evidence of the fact of destruction of the will, is evidence of intention from which the fact of destruction may be inferred, there being other circumstances leading to the same conclusion."

In Lawyer v. Smith, 8 Mich. 412, 77 Am. Dec. 460, after the death of the testatrix a will twenty-five years old was discovered, which was either torn or worn in several pieces. Whether the injury to the instrument was done by the testatrix or by some other person, and if by her, whether accidentally or intentionally, and for the purpose of revoking the will, were held to be questions of fact for the jury; and to aid them in determining these questions, and not as separate and independent evidence of a revocation, the declarations of the testatrix, made after the date of the will, that she had destroyed it, were held to be competent evidence.

In Patterson v. Hickey, 32 Ga. 156, it was decided that where the question is revocavit vel non, parol evidence as to the acts and declarations of the testator is admissible, although made at any time between the making of the will and the death of the testator.

A will is said to be ambulatory until the testator dies. Until his death the instrument has no force or effect, and until then he has the power to cancel or revoke it. If from being clothed with this power the presumption arises after his death that he destroyed his will, that presumption will be aided by his declarations as expressive of his feelings and intention. In Weeks v. McBeth, 14 Ala. 474, it was held that the declarations of the testator were admissible to strengthen the presumption of revocation, and to show that the will was destroyed

by the testator animo revocandi. And it was there stated as the invariable rule in the courts of England to admit the declarations of the testator, either to strengthen or to repel the presumption of revocation arising from the non-production of the will after the death of the testator, or to explain the act of destroying or canceling it.

The case of Smiley v. Gambill, 2 Head, 164, was a contest upon the will of Margaret Stewart. The testatrix burned a paper which she believed was her will, and died in that belief. This was proved by her uniform declarations, and by her acts in disposing by deeds of some of the same property named in the will, and in applications made to write another will for her, on the ground that she had destroyed the first. Caruthers, J., in delivering the opinion of the court, said that if the jury believed, as a matter of fact, that Mrs. Stewart burned a paper which she thought was her will, although it was not, with the intention of revoking by its destruction, and honestly believed that she had done it, and continued in that belief, without any subsequent recognition or even knowledge: of its existence, the paper propounded would not be her will. As testimony bearing on this question, her declarations alone might not be sufficient, but they were competent, and it would be for the jury to determine whether they, together with other facts proved, made out the fact of burning, or intention to do so, by the act done.

The strongly expressed conclusion of the court in Reel v. Reel, 1 Hawks, 248, 9 Am. Dec. 632, is in accord with citations already made. "To reject the declarations of the only person having a vested interest, and who was interested to declare the truth, whose fiat gave existence to the will, and whose fiat could destroy, and in doing the one or the other could interfere with the rights of no one, involves almost an absurdity; and they are received, not upon the ground of their being a part of the res gestæ, for whether they accompany an act or not, whether made long before or long after making the will, is entirely immaterial as to their competency. Those circumstances only go to their weight or credit with the tribunal which is to try the fact." See also Collagan v. Burns, 57 Me. 465; Tynan v. Paschal, 27 Tex. 286; 84 Am. Dec. 619; Youndt v. Youndt, 3 Grant Caз. 140.

It is not necessary to refer to the numerous other authorities which we have examined, and which bear directly upon this branch of the case. No claim is made that a will may

be revoked by the mere declarations of the testator, or otherwise than in the modes prescribed by the statute. But where a legal presumption is raised, upon the decease of the testator, that he destroyed his last will and testament in the statutory mode, with the intention of revoking it, it is obvious that while the declarations of the testator may be admitted as evidence towards rebutting the presumption of such destruction and revocation before his death, they may, with equally good reason, be received as evidence to support and strengthen that presumption.

It is urged in behalf of the defendant in error that the charge to the jury was erroneous and misleading. At the trial, the defendant excepted generally to the whole charge given by the court to the jury, without pointing out specifi cally the part or proposition of the charge excepted to, or the grounds of his exception. Of such an exception a reviewing court is not bound to take notice: Adams v. State, 25 Ohio St. 584; Adams v. State, 29 Ohio St. 412; Berry v. State, 31 Ohio St. 219; 27 Am. Rep. 506; Everett v. Sumner, 32 Ohio St. 562; Powers v. Hazelton etc. R'y Co., 33 Ohio St. 429; Western Ins. Co. v. Tobin, 32 Ohio St. 77. But in the case at bar, upon an examination of the charge to the jury, we discover no error calling for a reversal of the judgment of the court of common pleas. The judgment of the circuit court should be reversed, and that of the court of common pleas affirmed.

WILLS, LOST OR DESTROYED-PROOF. -The mere absence of a will, which is proved to have been executed by the testator, raises a presumption that it was revoked by him; and this presumption can only be rebutted by the strongest proof to the contrary. The declarations of the testator are admissible as evidence for this purpose: Note to Tynan v. Paschal, 84 Am. Deo. 628-631; compare also Kitchens v. Kitchens, 39 Ga. 168; 99 Am. Dec. 453; Burge v. Hamilton, 72 Ga. 568; Matter of Page, 118 Ill. 576; 50 Am. Rep. $95, and nota.

LEMBECK V. NYE.

[47 OHIO STATE, 336.]

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WATERS-OWNERSHIP IN NON-NAVIGABLE LAKES-DEDICATION. — A nonnavigable inland lake is subject to private ownership; and the owner thereof cannot be deemed to have dedicated it to the uses of boating, hunting, and fishing, simply because he interposed no objection to such use by his neighbors, adjoining proprietors, or strangers. Other circumstances must clearly and satisfactorily appear manifesting an intent on his part to so dedicate it. WATERS-DEDICATION OF NON-NAVIGABLE LAKE. The use of a non-navi. gable inland lake by the public for the purposes of boating, hunting, and fishing, without the knowledge of the owner, will not establish a dedication of any kind against him, no matter how long continued such use may be. WATERS-CONVEYANCE OF NON-NAVIGABLE LAKE. Where the owner of land surrounding a non-navigable inland lake, longer than it is broad, conveys a portion of the land bordering on the lake by a deed which describes the lake as one of the boundaries, the title of the purchaser extends to the center of the lake.

WATERS - DEED OF LAND ALONG NON-NAVIGABLE LAKE.

owner of land surrounding a non-navigable lake conveys a portion thereof by deed describing the margin of the lake as one of the boun daries, the title of the purchaser extends to low-water mark only. WATERS DEED OF LAND ALONG NON-NAVIGABLE LAKE - Where the owner of land surrounded by a non-navigable inland lake conveys a portion of the land by deed describing it by metes and bounds, without reference to the lake, the title of the purchaser only extends to the lines mentioned in the deed.

WATERS - RIPARIAN RIGHTS IN NON-NAVIGABLE LAKE.

The public has

no right without prescription, as against the owner, to fish in and boat upon the waters of a non-navigable inland lake; nor have adjoining owners, without title in the lake, and without prescription, the right to engage in the business of letting for hire boats and fishing-tackle to such portions of the public as may resort to such lake to boat and fish for their pleasure and recreation. WATERS RIPARIAN RIGHTS IN NON-NAVIGABLE LAKE. - A riparian owner, by virtue of his ownership to the edge of the water of a non-navigable lake, has access to and the right to use the water thereof for domestic and agricultural purposes. EQUITABLE RELIEF AGAINST TRESPASS. - Equity may be at once resorted to for appropriate relief when numerous acts of trespass are being committed and their continuance threatened under claim of right, and when the injury arising from each act is trifling, and the damages recoverable therefor inadequate as compared with the expense necessary to prosecute separate actions at law therefor.

Henderson and Kline, and Harrison, Olds, and Henderson, for the plantiff in error.

Boynton, Hale, and Horr, for the defendants in error.