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Court of Minnesota, a decision which was affirmed in the Supreme Court of the United States. It was here held that while there appears to be no law requiring watercourses to be meandered, yet, as the acts of Congress require the contents of each sub-division to be returned to the surveyor general, and a plat of the land surveyed to be made by him, the meander lines are necessarily employed, not as boundaries of the tract, but as a means of denning the sinuosities of the river banks and of ascertaining the quantity of land in the fraction which is subject to sale and is to be paid for by the purchaser; and that the watercourse, and not the meander bine, is the boundary. Clifford, J., considered that the better opinion was that proprietors of lauds bordering on navigable rivers, under titles derived from the United States, hold only to the stream because of the provision that such rivers shall be deemed to be and remain public highways; that Congress had substantially adopted the commonlaw rule with respect to unnavigable streams, and that in distinguishing between streams navigable and those not navigable, it intended to provide that the common-law rules of riparian ownership should apply to lands bordering on the latter, and to them oiily.i In a recent case in Indiana
Illinois Central Railroad Co., 1 Black, is in the public. The ownership of the
204. bed of such of the second class as arc
i See Stuart v. Clark, 2 Swan, 1; in what is known as the North West
Chicago Railroad Co. v. Stein, 75 Territory is in doubt. There is no
1ll. 41; Forsyth v. Smale, 7 Biss. such concurrence of judicial opinion
201. on the point as enables us to say, upon
v. Faust, 54 Ind. 471, 474, authority, who owns the bed of these
475; Rklgway v. Ludlow, 58 Ind. 248. rivers, and it is not necessary that we
In Rosa v. Faust, which related to the should decide the point in this case,
title to the bed of a meandered unnav- The ownership of the bed of the third
igable stream, Perkins, J., said; "We class is, prima fade, in the proprietors
have in the United States three classes of the opposite banks, each owning to
of rivers: one, in which the tide ebbs the thread of the stream.. .. The idea
and flows, and may be called salt- that the power was given a surveyor
water rivers; one, of fresh-water or his deputy, upon casual observa
rivers which are navigable for vessels tion, to determine the question of the
used in inter-state commerce; one, of navigability of rivers, and thereby
fresh-water rivers which are not navi- conclude vast public and private
for Teasels used in inter-state rights, is an absurdity." As to the obeommerce. The ownerahip of the bed jection that the surveyor had meanof the first class of rivers mentioned dered the banks of the stream and had. this view was adopted, although it was noticed that such a construction is in apparent conflict with the language of the statute.1
§ 79. Fresh-water lakes and ponds are bodies of standing water distinguishable from rivers chiefly by the fact that they have no current.2 Frequently, also, they are inaccessible from the sea or from a distance without trespassing upon private lands. The fact that there is a current from a higher to a lower level does not make that a river which would otherwise be a lake, nor does a lake lose its distinctive character because there is a current in it for a certain distance tending towards a river which forms its outlet.3 On the other hand, the fact that a river broadens into a pond-like sheet with a current does not deprive it of its character as a river.4 Where it is admitted or not denied that the water is not a lake t)r a pond, the material difference between which is in size, the only criterion by which to determine whether it is a river, is the existence of a current, and this question cannot be answered by ascertaining what appellations have been given to it.6
failed to survey its bed, and that the bed was not bought and paid for, and did not pass to the riparian owners, the learned judge said: "As to the fact, if it be so, that it was not paid for, we may observe that it is a fact of little importance. The Government was not selling her public lands for the purpose of making money. She did not sell them for their value. She was selling them for an almost nominal price, a dollar and a quarter an acre, — enough to cover the cost of survey and sale, possibly a little more. Her object was to induce the settlement in the country of a hardy, land-owning people. Her surveys of the whole were more or less inaccurate."
1 See Moffett v. Brewer, 1 G. Greene, 348, 358.
* Callis on Sewers, 82; Woolrych on Sewers, 81; ante, § 41. Callis (p. 82) defines a pool as "a mere
standing water, without any current at all"; but speaks of a pond as if it were always artificial and not natural. Doubtless it may have a broader meaning. In Waterman v. Johnson, 13 Pick. 261, 265, Shaw, C. J., said: "The word pond is indefinite. It may mean a natural pond, or an artificial pond raised for mill purposes, either permanent or temporary." As to the right to pass or to fish beyond the filum aquae of a lake, see Mackenzie v. Bankes, 3 App. Cas. 1324, and the authorities there cited; Scott v. Napier, 7 Macph. H. L. 35; Cochrane v. Minto, (i Paton, 139.
* Per Gilchrist, J, in State v. Gilmanton, 14 N. H. 467; 0 Ibid. 461.
4 Ibid.; Hassett v. Salisbury Manuf. Co., 43 N. H. 569.
s Ibid. See Rice v. Ruddiman, 10 Mich. 125,135, 136; Phinney v. Watts, 8 Gray, 269, 270.
§ 80. The early authorities lay down no definite rule respecting property in inland lakes and ponds otherwise than by limiting the property of the Crown to tide waters.i In Marshall v. Ulleswater Steam Navigation Co.,2 decided in 1863, Wightman, J.,. remarked that it was not necessary to determine in that case "whether the soil of lakes, like that of fresh-water rivers, prima facie belongs to the owners of the land or of the manors on either side ad medium filum aquae, or whether it belongs prima facie to the king in right of his prerogative "; and the case was decided upon another ground. The case of Bristow v. Cormican,3 before the House of Lords in 1878, was an action of trespass for taking fish in Lough Neagh, a fresh-water lake in Ireland, over the whole of which the plaintiff claimed a several fishery under a grant of a fishery and of islands in the lake from King Charles H. The fishery described in this grant did not clearly include the whole lake, and no evidence was introduced as to the title of the Crown to the soil and fishings of the lake. The issue was not whether a lake in which the tides of the sea had never flowed was a public navigable inland sea in which the right of fishing was common, but whether upon the royal grant, coupled with evidence of certain subsequent acts of possession in other parts of the lake, and in the absence of evidence of the extent of the Crown's ownership or possession at the time of the grant, the jury were properly directed to find for the plaintiffs, or whether the case should have been submitted to them on the evidence as to the plaintiffs' title and right to maintain the action. The Lord Chancellor 4 said: "The Crown has no de jure right to the soil or fisheries of a lough like Lough Neagh. Lough Neagh is, as your Lordships are aware, the longest inland lake in the United Kingdom, and one of the largest in
i See remarks of Gray, J., in 1 Vent. 122; Bell's Law of Scotland,
Paine v. Woods, 108 Mass. 100, 171.
169 (1871), citing Duke (ed. 1676) 83 Best & Smith, 732, 742, citing
5, 135; (ed. 1805) 8, 120; Marshall Hale, De Jure Maris, c. 1; Com. Dig.
c. Ulleswater Steam Navigation Co., Prerogative (D. 50).
8 B. & S. 732; Hunt on Boundaries '3 App. Cas. 641; s. c. Iv. R. 10
and Fences (2d ed.), 19; Greyes" C. L. 398, 412.
Case, Owen, 20; Pollenfen v. Crispin, 4 Lord Cairns, pp. 652, 653.
Europe. It is from fourteen to sixteen miles long, and from six to eight miles broad. It contains nearly 100,000 acres; but though it is so large, I am not aware of any rule which would, prima facie, connect the soil or fishings with the Crown, or disconnect them from the private ownership either of the riparian proprietors or other persons. Charles H., or some of his predecessors, may have become possessed of the lough and its fishings, either by grant, forfeiture, or otherwise; but it would be a legitimate and necessary subject of inquiry how and from whom, and subject to what conditions or qualifications, this possession or proprietorship was obtained." Lord Hatberley^referring to the difficulties attending the case, because of the lack of information as to the manner in which the Crown acquired title to the property and the extent of that title, said: "It is of very great importance in this case to have all the circumstances of the case before us, and to see how it was that the property became vested in the Crown, of which we have no history at all. Clearly no one has a right to say that it became vested in the Crown because it belonged to nobody else. This is an inland lake, and therefore it is not a portion of land belonging to the Crown by reason of its being on the shore of the sea, or a navigable strait or river." Lord Blackburn said:* "The property in the soil of the sea and of estuaries, and of rivers in which the tide ebbs and flows, is prima fade of common right vested in the Crown, but the property of dry land is not of common right in the Crown. It is clearly and uniformly laid down in our books, that where the soil is covered by the water, forming a river in which the tide does not flow, the soil does of common right belong to the owners of the adjoining land; and there is no case or book of authority to show that the Crown i6 of common right entitled to laud covered by water, where the water is not running water forming a river, but still water forming a lake." Referring to the decision in Marshall v. Ulleswater Steam Navigation Co., the learned judge further said: "This is the only case cited, and, as far as I can find, the only case which
exists, where there is even a suggestion that the Crown of common right is entitled to the soil of lakes. Neither the passage in Comyns, nor that in Hale De Jure Maris, cited by Mr. Justice Wightman, gives any countenance to such a doctrine. But it does appear that the learned judge did not think that the law as to land covered by still water was so clearly settled to be the same as the law as to land covered by running water, as to justify him in unnecessarily deciding that it was the same.... I own myself to be unable to see any reason why the law should not be the same, at least where the lake is so small, or the adjoining manor so large, that the whole lake is included in one property. Whether the rule that each adjoining proprietor, where there are several, is entitled usque ad medium filum aquae should apply to a lake, is a different question. It does not seem convenient that each proprietor of a few acres fronting on Lough Neagh should have a piece of the soil of the lough, many miles in lengtli, tacked on to his frontage. But no question arises in this case as to the rights of the riparian proprietors amongst themselves, for no title is made by either party through any one as riparian owner.... It is, however^ necessary to decide whether the Crown has of common right a prima facie title to the soil of a lake; I think it has not. I know of no authority for saying it has, and I see no reason why it should have it." 1
§ 81. Iu Bloomfield v. Johnston,2 the Exchequer Chamber in Ireland held that Lough Erne, an Irish fresh-water lake, which is forty-five miles in length, although navigable and commonly used by the public for travel and transportation, was not subject to a common of fishery in the public as of right. It appears, therefore, that by the law of England th» Crown and the public have no such rights in large fresh-water lakes as they possess in tide waters; that the soil and fishings in them are private property; and that, while the rule which extends the riparian owners' title usque ad filum aquae does not appear to have been applied to lakes, as to unnavigabla.