Page images

was held that the meandered lines, which are run for the purpose of determining the quantity of land in the fraction, are not boundary lines; and that islands which have not been surveyed, platted, or marked upon the government surveyor's map, pass as incident to a grant of the river banks. Wilson, C. J., dissented upon the ground that the agents of the government, in selling the public lands, could not legally dispose of lands which had not previously been surveyed and platted; and that the rule adopted by the majority of the court was contrary to the policy and practice of the government in which the purchasers had acquiesced. The decision of the majority has since been followed in this State, where the river-beds are the property of the owners of the adjoining lands, where the plats in the United States land office show the river as a boundary, and there is no visible government monument.1 A grant from the United States of land upon the Mississippi River extends to the thread of the current.2 The riparian owner has also, by the law of this State, an exclusive right, as against the public, to the river banks to low-water mark.3 The fee in the streets of cities and towns in this State is vested in the corporation; and, under this rule, where a bridge over a stream forms part of a street, the fee in the portion of the river beneath the bridge is held to be in the corporation, which may devote it, if the navigation is preserved, to such uses as, in the judgment of its authorities, will be most advantageous for the public.4

[ocr errors][merged small]

§ 70. In Ohio the owners of lands situated upon the banks of its navigable streams own the river-beds, subject to the public right of navigation.1 In Gavit v. Chambers2 it was held that the ordinance of 17873 reserved to the public only the use of such streams for the purpose of passage; that the United States had manifested no intention of reserving any interest in the bed, banks, or waters of navigable fresh rivers; that there was nothing in the trust vested in Congress, or in the manner in which that trust had been executed, to warrant the establishment of any other principle than that afforded by the common law, and that the taking of stones, soil, and fish would lead to innumerable controversies, if this property had been treated by the United States as unappropriated territory. In the recent case of June v. Purcell,4 it was held that the common-law doctrine, having been regarded for many years as a rule of property in this State, should not be rejected, irrespective 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.6

§ 71. In Ohio and Illinois a grant of land bordering upon the Ohio River carries title at least to low-water mark.6 The original grant by the State of Virginia only conveyed the territory on the northern bank of the Ohio River to lowwater 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

1 Gavit v. Chambers, 8 Ohio, 490; ville Canal Co., 5 Id. 410; Hopkins

Bonner r. Platter, 8 Ohio, 504; Lamb t<. Kent, 0 Id. 13.

v. Rickets, 11 Ohio, 811; Blanchard 1 8 Ohio, 496.

P. Porter, Id. 138; Walker r. Board of 3 Ante, § OS.

Public Works, 10 Ohio, 640; Hickok 4 June v. Purcell, 36 Ohio St. 896;

v. Hine, 23 Ohio St. 623; Niehaus v. State v. Shannon, Id. 423.

Shepherd, 26 Ohio St. 40; Sloan v. s Lamb v. Rickets, 11 Ohio, 311.

Biemiller, 34 Ohio St. 492, 512; June 6 Blanchard v. Porter, 11 Ohio,

v. Purcell, 30 Ohio St. 390. See, also, 138; Booth v. Hubbard, 8 Ohio St.

McCullock v. Aten, 2 Ohio, 307; Cow- 243; Ensminger ». People, 47 III. 384.

per ?•. Hall, 5 Id. 320; Hour v. Zanes- '[bid.p. 142. See remarks of WoodState 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 lowwater mark on the northern bank became the boundary of the granted territory,i grants by the United States, or its grantees, of lands in Indiana situated on the river, extend the owner's title only to ordinary low-water mark;2 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.8 The ownership of the beds of navigable streams in Indiana is not clearly settled.4

§ 72. In Iowa the opinion of Woodward, J., in McManus v. Carmichael,6 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

ward, J., in McManus v. Carmichael, 3 Iowa, 1, 36, 50, 54.

i See Handly v. Anthony, 5 Wheat. 374; Conway v. Taylor, 1 Black, 603; Commonwealth v. Garner, 3 Gratt. 624, 655.

8 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. 304; Commissioners v. l'idge, 5 Ind. 13; Sherlock v. Alling, 44 Ind. 184.

■ Sherlock v. Alling, 44 Ind. 184 .

Carlisle t>. State, 32 Ind. 55; McFall
i>. Commonwealth, 2 Met. (Ky.) 394;
Church V. Chambers, 3 Dana, 279;
Garner's Case, 3 Gratt. 655.

4 See Ibid.; Cox v. State, 3 Blackf. 193; Madison v. Hildreth, 2 Ind. 274; Sherlock v. Bainbridge, 41 Ind. 35; Ross v. Faust, 54 Ind. 471; Ridgway v. Ludlow, 58 Ind. 248; Edwards v. Ogle, 76 Ind. 302; Dawson v. James, 64 Ind. 162. In the last case the Wabash River is referred to as "a navigable stream, the bed of which has neither been surveyed nor sold."

5 3 Iowa, 1.

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 riven 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 conclusion the learned judge said: "By this review it is perceived that force and effect are to be given to various facts, circumstances, and considerations which are scarcely alluded to in some of the cases, and which have no place at all in the older and Eastern cases; such are the treaties, compacts, ordinances, and constitutions, the laws relative to the survey and sale of the public lands, the declaration that these rivers shall forever remain highways, free to all citizens, etc. And we find that the fact of the government selling islands separate from, and independent of, the mainland, had its weight at an early stage of the argument, in Pennsylvania, and even in New York. The fact, also, that the Mississippi River is the boundary between numerous independent States is of great importance, as we have found the cases recognizing the idea that, where a river is the boundary between nations and States, the common-law rule does not apply. All these, and such considerations, formed absolutely no part of the older cases, and enter much less into some of the later ones, than they should.... The conclusion, therefore, is that the plaintiff has not a title to the land between high and low water, so as to enable him to maintain this action for taking the sand. This opinion need not preclude the idea that the adjacent owner may have some rights between high and low water which are peculiar to himself and not common. Nor does it necessarily determine the question of the right to make wharves or structures for the convenience of navigation and commerce, and other questions of a similar nature. Nor are municipal powers affected, nor does it imply an unbounded license, on the other side, for every one to do what he pleases, even to the detriment of the owner, nor for an unlimited occupation of the shore. The maxim, sic utere tuo ut alienum non laedas, still holds; and the powers of an action on the case, of indictment and injunction still remain." In Iowa the meander lines are not lines of boundary,1 and the title of the riparian proprietors on navigable streams extends only to ordinary high-water mark.2 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.3 The soil of a navigable river below highwater mark is the property of the State, and not of the United States.4

§ 73. In Missouri the early case of Mullanply v. Daggett6 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 the recent case of Benson v. Morrow,6 it was held, following

[ocr errors][ocr errors]
« ՆախորդըՇարունակել »