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spective of the question of its correctness. In computing the number of acres in a survey of lands upon a river, the stream at low-water mark is regarded in Ohio as the boundary for this purpose, and no account is made of the land between low-water mark and the thread of the stream.1

§ 71. Same-The Ohio River.-In Ohio and Illinois a grant of land bordering upon the Ohio River carries title at least to low-water mark. The original grant by the State of Virginia only conveyed the territory on the northern bank of the Ohio River to low-water mark. By the compact of 1792 between Virginia and Kentucky a concurrent jurisdiction over this river is accorded to Ohio and Kentucky. In Indiana, it is held that, as the State of Virginia, when proprietor of the lands on both sides of the Ohio River, ceded to the United States its right to the territory north-west of this river, whereby the ordinary low-water mark on the northern bank became the boundary of the granted territory, grants by the United States, or its grantees, of lands in Indiana situated on the river, extend the owner's title only to ordinary lowwater mark; and that the southern counties of Indiana are bounded by the same line, although the courts of such counties have concurrent jurisdiction with those of Kentucky over the river. The State of West Virginia has jurisdiction of a criminal

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1 Lamb v. Rickets, 11 Ohio, 311.

2 Blanchard v. Porter, 11 Ohio, 138; Booth v. Hubbard, 8 Ohio St. 243, Ensminger v. People, 47 Ill. 384.

311 Ohio, 142; ante, § 62. See remarks of Woodward, J., in McManus v. Carmichael, 3 Iowa, 1, 36, 50, 54.

4 See Handly v. Anthony, 5 Wheat. 374; Indiana v. Kentucky, 136 U. S. 479; Conway v. Taylor, 1 Black, 603; Com. v. Garner, 3 Gratt. 624, 655; Ravenswood v. Flemings, 22 W. Va.

52.

5 Stinson v. Butler, 4 Blackf. 285; Cowden v. Kerr, 6 id. 280; Gentile v. State, 29 Ind. 409; Martin v. Evansville, 32 Ind. 85; Sherlock v. Bainbridge, 32 Ind. 85; 41 Ind. 35, 41; Bainbridge v. Sherlock, 29 Ind. 364; Com. v. Pidge, 5 Ind. 13; Sherlock v. Alling, 44 id. 184; Memphis, etc. Co. v. Pikey,

142 id. 304; Henderson Bridge Co. v. Henderson, 90 Ky. 498.

6 Welsh v. State, 126 Ind. 71; Carlisle v. State, 32 id. 55; McFall v. Com., 2 Met. (Ky.) 394; Church v. Chambers, 3 Dana, 279; Garner's Case, 3 Gratt. 655. Cases in Indiana are: Cox v. State, 3 Black f. 193; Madison v. Hildreth, 2 Ind. 274; Sherlock v. Bainbridge, 41 id. 35; Ross v. Faust, 54 id. 471; Ridgway v. Ludlow, 58 id. 248; Edwards v. Ogle, 76 id. 302; Dawson v. James, 64 id. 162; Sphung v. Moore, 120 id. 352; Moore v. Auge, 125 id. 562. In the last case the Wabash river is referred to as "a navigable stream, the bed of which has neither been surveyed nor sold." This is due to local statutes. State v. Wabash Paper Co., 21 Ind. App. 167.

offense committed on a vessel moored within low-water mark to the bank of this river within the boundaries of Ohio opposite,' but private titles extend only to low-water mark.2

§ 72. Same-Iowa.-In Iowa the opinion of Woodward, J., in McManus v. Carmichael,' is among the leading American authorities upon this subject. The question in that case was whether the plaintiff, being the owner of an island in the Mississippi River under a patent from the United States, could 'maintain an action of trespass against the defendant for taking sand from a sand-bar at the upper end of the island between high and low-water mark and beyond the meanders of the government survey. It was held, upon a full review of the earlier authorities, that, although the ebb and flow of the tide was the common-law test of navigability, yet the term "navigable" embraced not only the idea of capacity for navigation but also that of publicity; that the test of the navigability of the Mississippi River is ascertained by use or by public acts or declarations; that the repeated declarations that this river is a public highway were to be construed in a broad sense as placing the Mississippi upon the same ground with a river navigable at common law; that by the laws, regulations, and practice of the general land office, the beds of navigable rivers were excepted from the surveys, the rivers were meandered, the lines run, and the monuments set, upon the margin of the bank, the area of the lands was computed and the lands sold with reference to the plats and field-notes of the surveys thus made, and islands were often surveyed and sold separately; and that, as the common law limited the riparian owner's title to the high-water mark in the case of waters technically navigable, all the arguments in favor of an absolutely public water and bed to low-water mark applied equally to the space between high and low-water mark. In Iowa the meander lines are not lines of boundary, and the title of the riparian proprietors on navigable streams extends only to high-water mark."

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While such proprietors have the right to erect wharves, piers, and landing places beyond that line, if the navigation is not thereby impaired, this is merely an incident to the riparian. ownership and not the subject of independent sale.1 The soil of a navigable river below high-water mark is the property of the State, and not of the United States; and if, by act of Congress, a navigable river is declared non-navigable, this does not extend the title of riparian owners to the center of the stream or entitle such an owner to the possession of land below highwater mark which a railway company has begun to occupy while the river was yet navigable in contemplation of law.3

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§ 73. Same-Missouri.- In Missouri the early case of Mullanphy v. Daggett was decided according to the Spanish law, and it was held that the grants from the Spanish government of land upon the Mississippi River conveyed title to the water's edge. In Benson v. Morrow, it was held, following the decision of the Supreme Court of the United States in Railroad Co. v. Schurmeir, that, the Missouri River, being treated in the acts of Congress as a navigable stream and public highway, the proprietors of lands on its banks, whose titles are derived from the United States, own only to the water's edge; and that islands in the river, which remain unsold, still belong to the United States. Under the act of Congress of June 7, 1836, ceding to this State the "Platte Purchase," the

1; Haight v. Keokuk, 4 Iowa, 199, 212; Grant v. Davenport, 18 Iowa, 179, 185; Tomlin v. Dubuque R. Co., 32 Iowa, 106; Houghton v. C. D. & M. R. Co., 47 Iowa, 370; Barney v. Keokuk, 94 U. S. 324; Renwick v. D. & N. W. R. Co., 49 Iowa, 664, 669; Moffett v. Brewer, 2 G. Greene, 348.

1 Musser v. Hershey, 42 Iowa, 356. 2 Renwick v. D. & N. W. R. Co., 49 Iowa, 664, 669; Martin v. Waddell, 16 Peters, 367; Pollard v. Hagan, 3 How. 212; Den v. Jersey City, 15 id. 426; Barney v. Keokuk, 94 U. S. 324; Pere Marquette Boom Co. v. Adams, 44 Mich. 403.

3 Wood v. C., R. L. & P. R. Co., 60 Iowa, 456.

44 Mo. 343.

561 Mo. 345. See, also, Myers v. St. Louis, 8 Mo. App. 266; St. Louis v. Myers, 113 U. S. 566; Primm v. Walker, 38 Mo. 94, 99; Smith v. St. Louis, 21 Mo. 36, 41; Shelton v. Maupin, 16 Mo. 124; Smith v. Public Schools, 30 Mo. 301; Le Beau v. Gaven, 37 Mo. 556; Naylor v. Cox, 114 Mo. 232; Cooley v. Golden, 117 Mo. 33; Hahn v. Dawson, 134 Mo. 581; Moore v. Farmer (Mo.), 56 S. W. Rep. 493; Jones v. Soulard, 24 How. (U. S.) 41: The Schools v. Risley, 10 Wall. 91; 40 Mo. 365.

67 Wall 272; post, § 77.

western boundary of the State is in the centre of the channel of the Missouri River.1

874. Same-Alabama.-In Alabama the common-law rule is rejected. In Bullock v. Wilson,3 the court, referring to the early acts of Congress, which declared that all navigable rivers within the territory of the United States south of the State of Tennessee "shall be deemed to be and remain public highways," said: "According to the laws and practice of the United States government, relating to the surveys and sale of the public domain, the Coosa, as well as other similar watercourses, is virtually excepted from all private grants. The lines of the survey stop at the margin of the river, by which means fractions (as in the case before us) are created; and the purchasers of such are only charged for the true quantity of land, the bed of the river being excluded. In respect to grants of lands bounded by watercourses, where there is no statute regulation on the subject, or express exception in the grant, intricate and highly interesting questions may arise as to the extent of the proprietor's right on the margin. In such cases the character of the water, whether the sea, a navigable river where the tide ebbs and flows, a fresh-water navigable stream, or one not navigable, is material to be considered in determining the extent of the grant."

1St. Joseph R. Co. v. Devereux, 41 Fed. Rep. 14. See Sun M. Ins. Co. v. Miss. V. Transp. Co., 17 id. 919.

2 Bullock v. Wilson, 2 Porter, 436; Hagan v. Campbell, 8 id. 9; Lewen v. Smith, 7 id. 428; Mobile v. Eslava, 9id. 577; 16 Peters (U. S.), 234; Magee v. Hallett, 22 Ala. 699; Stein v. Ashby, 24 Ala. 521; 30 Ala. 363; Ellis v. Carey, 30 Ala. 725; Rhodes v. Otis, 33 Ala. 578; Peters v. New Orleans R. Co., 56 Ala. 528; Williams v. Glover, 66 Ala. 189; Walker v. Allen, 72 Ala. 456; Webb v. Demopolis, 95 Ala. 116. See Lane v. Jones, 79 Ala. 156 (wharf lien).

32 Porter, 436, 445, 448.

42 Stats. at Large, 235; 3 id. 492. The court further said: "It is very obvious, however, that with us the question does not depend on the

The character of the smaller

tide, or fresh water; that if the river has been expressly recognized as a public highway by the Federal and State governments: or even if it be of sufficient width and depth, and suited to the ordinary purposes of navigation, and the government has not expressly granted any part of the bed, or computed it in the quantity granted, which implies an exception, as in the case of navigable water, the stream is thereby constituted a public highway, and no individual can assert any private right of soil in the bed beyond the lowwater mark. His claim could have no better foundation than that in the case of the oyster-bed planted in the tide water, both places being alike reserved for public use."

fresh streams, which are capable of passage or of floatage at certain seasons, is held to be a question of fact.1 If they have not been declared public highways by the legislature, or excluded from the surveys by the government surveyors, and are not valuable for public transportation and travel, they are presumed to be not public highways, but exclusively private property.2

§ 75. Same-Michigan-Wisconsin.-In Michigan it was held in the early case of La Plaisance Bay Harbor Co. v. Monroe, that meandered streams were not included in the original survey, and that the beds of navigable streams are public and belong to the State. But the doctrine of the common law is now the rule in that State, with respect both to platted city lots," other lands bordering on rivers and streams," and unsurveyed islands' and unnavigable lakes. The same rules prevail in Wisconsin. But the title of the riparian pro

1 Rhodes v. Otis, 33 Ala. 578.

2 Ellis v. Carey, 30 Ala. 725; Rhodes v. Otis, 33 Ala. 578; Peters v. New Orleans R. Co., 56 Ala. 528; Olive v. State, 86 Ala. 88; Morrison v. Coleman, 87 Ala. 655.

7 Harding v. Minneapolis N. Ry. Co., 84 Fed. Rep. 287; Steinbuchel v. Lane, 59 Kansas, 7; Butler v. Grand Rapids & I. R. Co., 85 Mich. 246; post, § 166. When an island is especially granted, there is a filum aquæ in both channels

3 Walk. Ch. 155, 168. See Bigelow on either side of it. West v. Fox v. Shaw, 65 Mich. 341.

4 Lorman v. Benson, 8 Mich. 18; Rice v. Ruddiman, 10 Mich. 125; Moore v. Sanborne, 2 Mich. 519; Norris v. Hill, 1 Mich. 202; Ryan v. Brown, 18 Mich. 196; Clark v. Campau, 19 Mich. 325; Watson v. Peters, 26 Mich. 508; Bay City Gas Light Co. v. Industrial Works, 28 Mich. 182; Grand Rapids B. Co. v. Jarvis, 30 Mich. 308; Thunder Bay B. Co. v. Speechly, 31 Mich. 336; Maxwell v. Bay City Bridge Co., 41 Mich. 453, 466; Backus v. Detroit, 49 Mich. 110; Lincoln v. Davis, 53 Mich. 375; Jones v. Lee, 77 Mich. 35; Turner v. Holland, 65 Mich. 453.

5 Watson v. Peters, 26 Mich. 508; Fletcher v. Thunder Bay River Boom Co., 51 Mich. 277.

"Ibid.; Webber v. Pere Marquette Boom Co., 62 Mich. 626; Grand Rapids v. Powers, 89 Mich. 94.

River P. Co., 82 Wis. 647; Warren v. Westbrook M. Co., 86 Maine, 32. The rule as to islands is the same by the common and civil law. Kaskaskia Commons v. McClure, 167 Ill. 23.

8 Grand Rapids Ice & Coal Co. v. South G. R. Ice & Coal Co., 102 Mich. 227.

9 Jones v. Pettibone, 2 Wis. 308; Stevens Point Boom Co. v. Reilly, 44 Wis. 295; 46 Wis. 237; Cohn v. Wausau Boom Co., 47 Wis. 314; Walker v. Shepardson, 4 Wis. 486; 2 id. 384: Kimball v. Kenosha, 4 Wis. 321; Mariner v. Schulte, 13 Wis. 692; Cobb v. Smith, 16 Wis. 661; Arnold v. Elmore, 17 Wis. 509; Wood v. Hustis, 17 Wis. 417; Yates v. Judd, 18 Wis. 118; Gove v. White, 20 Wis. 425; Wisconsin River Impr. Co. v. Lyons, 30 Wis. 61; Arimond v. Green Bay Co., 31 Wis. 316; Wright v. Day, 33 Wis. 260;

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