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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.
$ 74. In Alabama the common-law rule is rejected. In Bullock v. Wilson, 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.” “It is very obvious, however, that with us the question does not depend on the tide, or fresh water; that if the river has been expressly recognized as a public highway by
17 Wall. 272; post, $ 77.
Ala. 363; Ellis v. Carey, 30 Ala. 725; ? Bullock r. Wilson, 2 Porter, 436; Rhodes v. Otis, 33 Ala. 578; Peters v. Hagan r. Campbell, 8 Porter, 9; Lew- New Orleans Railroad Co., 56 Ala. en v. Smith, 7 Porter, 428; Mobile 2. 528; Williams v. Glover, 66 Ala. 189. Eslava, 9 Porter, 577; 16 Peters (U. 3 2 Porter, 436, 445, 448. S.) 234; Magee v. Hallett, 22 Ala. 42 Statš. at Large, 235; 3 Ibid. 699; Stein v. Ashby, 24 Ala. 521 ; 30 492.
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 low-water 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.” The character of the smaller fresh streams, which are capable of passage or of floatage at certain seasons, is held to be a question of fact. 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 not public highways, but exclusively private property.2
$ 75. In Michigan it was held in the early case of La Plaisance Bay Harbor Co. v. Monroe,3 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, 4 with respect both to platted city lots 5 and other lands bordering on rivers and streams. The same rules prevail in Wisconsin. But the title of the riparian
? Rhodes v. Otis, 33 Ala. 578. 336 ; Maxwell v. Bay City Bridge Co.,
? Ellis v. Carey, 30 Ala. 725; Rhodes 41 Mich. 453, 466. v. Otis, 33 Ala, 578; Peters v. New 5 Watson v. Peters, 26 Mich. 508. Orleans Railroad Co., 56 Ala. 528. 6 Jones v. Pettibone, 2 Wis. 308; 3 Walk. Ch. 155, 168.
Stevens Point Boom Co. v. Reilly, 44 4 Lorman v. Benson, 8 Mich. 18; Wis. 295; 46 Wis. 237; Cohn v. Rice 0. Ruddiman, 10 Mich. 125; Wausau Boom Co., 47 Wis. 314; WalMoore v. Sanborne, 2 Mich. 519; Nor- ker v. Shepardson, 4 Wis. 486 ; 2 Id. ris v. Hill, 1 Mich. 202; Ryan v. 384; Kimball v. Kenosha, 4 Wis. 321 ; Brown, 18 Mich. 196; Clark v. Cam- Mariner v. Schulte, 13 Wis. 692; Cobb pau, 19 Mich. 325; Watson v. Peters, 0. Smith, 16 Wis. 661; Arnold v. El26 Mich. 508; Bay City Gas Light more, 17 Wis. 509; Wood v. Hustis, Co. v. Industrial Works, 28 Mich. 17 Wis. 417; Yates v. Judd, 18 Wis. 182; Grand Rapids Booming Co. v. 118; Gove v. White, 20 Wis. 425; Jarvis, 30 Mich. 308; Thunder Bay Wisconsin River Improvement Co. v. Booming Co. v. Speechly, 31 Mich. Lyons, 30 Wis. 61; Arimond v. Green
proprietor, extending usque ad filum aquae, is held in this State to be not only subject to the public right of navigation, but also to the right of the State to regulate the flow of the water and to do any act within the banks which the interests of commerce require.1
$ 76. According to all the decisions in those States in which the lands were originally surveyed under the laws of the United States, the lines run by the United States surveyors along the river banks are not lines of boundary, the owners of the adjacent lands taking at least to the water's edge, thus giving them the benefit of the river frontage, with the right of access 3 to the river, and the incidents of riparian proprietorship as to the use of the water. And when such owners once become riparian proprietors, they
Bay Co., 31 Wis. 316; Wright v. Day, son, 61 Mo. 345; Meyers v. St. Louis, 33 Wis. 260; Morse v. Home Ins. Co., 8 Mo. App. 266 ; Minto v. Delaney, 7 30 Wis. 496; Greene v. Nunnemacher, Oregon, 337 ; Moore v. Willamette 36 Wis. 50; Olson v. Merrill, 42 Wiş. Transportation Co., Ibid. 355, 356 ; 203; Delaphine v. Chicago Railway June v. Purcell, 36 Ohio St. 396, 407; Co., Ibid. 214; Diedrich v. North- Shoemaker v. Hatch, 13 Nev, 261 ; western Railway Co., Ibid. 248; Boor- Lammers v. Nissen, 4 Neb. 245, 250; man v. Sunnachs, Ibid. 233. The Con- St. Paul Railroad Co. v. First Division stitution of this State contains the Railroad Co., 26 Minn, 31 ; Wright v. usual provision that the Mississippi Day, 33 Wis. 260; Delaphine c. Chiand the navigable waters leading into cago Railway Co., 42 Wis. 214; Boorit shall be public highways; and the man v. Sunnachs, Ibid. 233; Jones v. Statutes provide that where mean- Pettibone, 2 Wis. 308; Elder v. Burdered rivers and streams are returned rus, 6 Humph. 358; McCullough v. as navigable by a United States sur Wall, 4 Rich. 68; Ingraham y. Threadveyor, they shall be deemed navigable. gill, 3 Dev. 59; Berry v. Snyder, 3 Const. Art. 9; Rev.Stats. (1858) p. 373. Bush, 266; Miller v. Hepburn, 8 Bush,
Wisconsin River Improvement Co. 326; Quicksilver Mining Co. v. Hicks, v. Lyons, 30 Wis. 61; Arimond v. 4 Sawyer, 688; Hills v. Houston, Id. Green Bay Co., 31 Wis. 316; Dela 195; Forsyth v. Smale, 7 Biss. 201; phine v. Chicago Railway Co., 42 Ross v. Faust, 54 Ind. 471, 475; TwoWis. 214; Boorman v. Sunnachs, 42 good v. Hoyt, 42 Mich. 609; Pere Wis. 233.
Marquette Boom Co. v. Adams, 44 " Railroad Co. v. Schurmeir, 7 Wall. Mich. 403. 272; 10 Minn. 82 ; Middleton v. Pritch- 3 Post, c. 5; Yates v. Milwaukee, ard, 3 Scammon, 422; Canal Trustees 10 Wall. 497 ; Dutton v. Strong, 1 v. Haven, 5 Gilman, 548; Gavit v. Black. 23; Railroad Co. v. Schurmeir, Chambers, 3 Ohio, 495; Wood v. 7 Wall. 272; 10 Minn. 82; Grant v. Appal, 63 Penn. St. 210; Kraut Davenport, 18 Iowa, 179; Rice v. Rudv. Crawford, 18 Iowa, 549; Boynton v. diman, 10 Mich. 125; Sherlock v. Miller, 22 Iowa, 579; Musser v. Her- Bainbridge, 41 Ind. 35. shey, 42 Iowa, 356; Morrow v. Ben- • Post, c. 6.
are entitled to the accretions, or newly-formed ground which may be left by the river after the survey and sale by the United States of the adjacent land, and which, if not their property, would separate them from the river. The tendency is to accept the decisions of the Supreme Court of the United States in Railroad Co. v. Schurmeir, and Barney v. Keokuk,3 in those States in which the rule extending the riparian owner's title to the centre of the stream had not been previously adopted. These decisions have been recently followed in Missouri, Minnesota, Oregon, Nevada, and Kansas. 8
$ 77. In Railroad Co. v. Schurmeir,9 the question was as to the title to an island in the Mississippi River, which at the time of the survey was a mere sandbar about ninety feet wide and one hundred and sixty feet long, separated from the mainland by a slough or channel twenty-eight feet wide. The island was submerged at high water (of which no notice was taken in making the survey), and the slough was insignificant in comparison with the main river. At the
Kraut v. Crawford, 18 Iowa, 549. 73; Swearingen v. The Lynx, 13 Mo. See Boynton v. Miller, 1 Stiles, 100; 519; Adams v. St. Louis, 32 Mo. 25; Minto v. Delaney, 7 Oregon, 337; Jones v. Soulard, 24 How. 41. Moore v. Willamette Transportation 5 Castner v. Steamboat Dr. FrankCo., Ibid. 355 ; Lammers v. Nissen, 4 lin, 1 Minn. 73, 78; Schurmeir v. St. Neb. 245; Shoemaker v. Hatch, 13 Nev. Paul Railroad Co., 10 Minn. 82, 102; 261 ; Banks v. Ogden, 2 Wall. 57; Rex S. c. 7 Wall. 272; Mankato v. Willard v. Yarborough, 3 B. & C. 91 ; Munici- 13 Minn. 13, 27; Brisbine v. St. Paul pality No. 2 v. Orleans Cotton Press, 18 Railroad Co., 23 Minn. 114, 129, 130; La. 122; Bristol v. Carroll County, St. Paul Railroad Co. v. First Division 95 I11. 84; Chicago Dock Co.v. Kinzie, Railroad Co., 26 Minn. 31. 93 III. 415; Middleton v. Pritchard, 3 6 Minto v. Delaney, 7 Oreg. 337; Scammon, 510; Lovingston v. County Moore v. Willamette Transportation of St. Clair, 64 Ill. 56; County of St. Co., Ibid. 355, 356 ; Weise v. Smith, 3 Clair r. Lovingston, 23 Wall. 46; Oreg. 445, 448; Felger v. Robinson, Stephenson v. Goff, 10 Rob. (La.) 99; Id. 455. Benson v. Morrow, 61 Mo, 345; Lamme 7 Shoemaker v. Hatch, 13 Nev. 261. r. Buse, 70 Mo. 463; Shelton v. Mau 8 Wood v. Fowler, 26 Kansas, 682. pin, 16 Mo. 124.
In Texas, see Rhodes v. Whitehead, 27 Wall. 272.
27 Texas, 304 ; Muller v. Landa, 31 3 94 U. S. 324.
Texas, 265; Phillips v. Ayres, 45 * Benson v. Morrow, 61 Mo. 345; Texas, 601. In Arkansas, Warren v. Lamme v. Buse, 70 Mo. 463; Meyers Chambers, 25 Ark. 120, 122. v. St. Louis, 8 Mo. App. 266; ante, $ 97 Wall. 272; 10 Minn. 82.
time of the action, the sandbar had been filled in and covered with valuable improvements, and the contest was between the owner of the adjoining fraction and a railroad company which claimed the bar under a new survey made by a United States surveyor, and a congressional grant of certain odd numbered sections. It was held that the sandbar was included in the first survey as part of the main land. In general, where the waters of a river are separated into two channels by an island or sandbar, the question whether such island or bar was included in the survey as part of the adjoining land, is one of fact, depending chiefly upon the relative size and permanence of the channels, the size of the island compared with the size of the stream, and the conformity or divergence of course between the meander line and the main channel. Mere rocks and shoals lying along the margin of navigable fresh rivers belong to riparian owners.2
$ 78. At common law, the owners of lands bordering upon unnavigable streams own to the thread of the stream in severalty and not in common. But the acts of Congress, 4 after declaring that “all navigable rivers, within the territory occupied by the public lands, shall remain and be deemed to be public highways,” provide that, “in all cases where the opposite banks of any streams not navigable belong to different persons, the stream and the bed thereof shall become common to both.” These provisions were construed in the case of Railroad Co. v. Schurmeir, before the Supreme
Shoemaker v. Hatch, 13 Nev. 261; tion Co., 7 Oreg. 355; Watson va Lammers v. Nissen, 4 Neb. 251; Gran- Peters, 26 Mich. 508. ger v. Swart, 1 Woolw. 90; Benson v. 3 See Moffett v. Brewer, 1 G. Greene, Morrow, 61 Mo. 345; Adams ». St. 348, 358; Ingraham v. Wilkinson, 4 Louis, 32 Mo. 25; Moore v. Willam- Pick. 268. ette Transportation Co., 7 Oreg. 355; 1 Stats. at Large, 468, § 9.; 2 Minto ». Delaney, Ibid. 337; St. Paul Ibid. 235, § 17; U. S. Rev. Stats. Railroad Co.v. First Division Railroad $ 2476. Co., 26 Minn. 31; Rock Island County • Schurmeir v. Railroad Co., 10 v. Sage, 88 Ill. 582; Berry v. Snyder, Minn. 82; Railroad Co. v. Schurmeir, 3 Bush, 266, and cases cited ; ante, 7 Wall. 272; approved in The Schools $ 73.
v. Risley, 10 Wall. 91, 110; Yates v. Moore v. Willamette Transporta Milwaukee, Ibid. 497, 504; Bates, v.