By Mr. Chief Justice Saffold :
The action was trespass to try titles, and recover damages, instituted by the defendant in error, pursue ant to the statute, in lieu of the action of ejectment, &c. The land in dispute, as described in the declaration, is the south east fraction of section number seven, in township twenty one, of range two, east, containing one hundred and forty five acres, in the county of Shelby. The trial was had on the general issue. The matters assigned for errors grew out of a bill of exceptions taken on the trial by Bullock the defendant below, against whom a verdict and judgment were had for the premises; also, for damages.
The first point of exception is, that the Court sanctioned an amendment of. the declaration, made between. the time of ordering-a non-suit, and reinstating the cause, without due notice to the defendant below, and formal leave of the Court. The Court appears to have ruled that the leave was sufficiently implied by the order setting aside the non-suit, on the affidavit on which it was founded. •
As to this objection, it is sufficient to say, the allowance of amendments, is generally within the dis-[441] cretiou of the Court, and as tlie Circuit Court recog-nised tire authority for this amendment, the allowance of it is not subject to revision in error.-
It further appears, that after the cause was put to the jury, the plaintiff below offered as his only evidence of title, a receipt (purporting to be in duplicate) in the usual form under the cash system of disposing of the public lands, given by the receiver of public monies of the land district, to James Wilson of Bibb county, for the sum of one hundred and eighty one dollars and twenty five cents, expressing to be' in full for the fraction of land described in the declaration. To the introduction of which, as evidence'of title, the defendant objected, but the objection was-overruled.
In admitting- this receipt as evidence, the Court is also charged to have erred. The objection is understood to have been made with reference alone to the grade of interest or' title indicated by the paper, without questioning its genuineness; and this in the absence of any evidence of an adverse title. I consider it unnecessary to enter -into an elaborate investigation of the principles of law applicable to this point;, they are too well settled to require it. By the laws of the United States, the legal and bona fide holder'' of a receipt of this kind, is indefeasibly entitled to a-patent for the same. Nothing more is necessary oil his part to secure it. He already has a legal right — - the receipt and the law, imperatively command the issuance of the patentas the complete evidence of the title. Until it shall have issued, the receipt is the best evidence of the right which the case admits of. This is within the of the statute of 1812,a which recognises all certificates issued pursuant to any act of Congress, upon any warrant or [442] order of survey, or to any donation, or pre-emption claimants of lands, as vesting in the holders “ a full, complete and legal title,” so far as to enable them to maintain any action thereon; and constitutes the same evidence thereof in Courts of justice. -So far as there is any difference in the character of the evidence, or grade of title, a receipt of this kind is the more conclusive. But I do not consider receipts of this nature as requiring the aid of any statute. Upon the principles, of the Common Law, they must be regarded as evidence of a grade of title which at least confers the right of possession, and this alone is sufficient in this action. But it is more: it is nothing less than inchoate evidence of an absolute title. Various decisions of this and other Courts, (De la Croix vs. Chamberlain,a) sustain this principle in terms or by analogy. — (See Hallett vs. Eslava,b Lewis vs. Goquette,c Heirs of Rider vs. Innerarity.c) It was further objected by Bullock as defendant below, that the county surveyor was admitted as a witness for the plaintiff, and his evidence deemed competent by the Court, to ascertain the boundaries, of the land in question. He swore that by tracing various lines by the marked trees, he ascertained the north west corner of the fraction, which was not marked ;■ he then ran due south on both the sectional and township lines to the south west corner, which he ascertained by taking the bearings and distances; that, then he ran the south line to the south east corner, but found no marked corners. From this latter point, he ascertained, by setting his compass, and observations taken, that a line due north would strike the Coosa river below the mill: that he then retraced his line half a mile west, thence run due north half a mile, thence east to the river above the mill; arid that iri this way he ascertained the mill to be between [443] the north and south boundaries of the plaintiff1!s fraction, and that opposite and for some distance'above and below the mill, the fraction was bounded on the east by the river.
On this point it is considered sufficient to say, the character of the evidence was equal to any that the case would admit of, and was therefore competent.
Another feature in the case is, that Sawyer, under whom Bullock derived his title to the mill, had erected the same in the river, under the authority of an act of the General Assembly of the State; that this was a considerable time before Wilson became the purchaser of the fraction opposite; that the mill stood in the bed of the river; except that a little of the bank had been cut away, to make room for the north and south mud sills to be laid in it on a level with the bed of the river; that the west sill, or streamer being laid upon these sills, the current of the river ran around them, between them and the bank ; that the bluff of the river was nearly perpendicular, so as to confine the water, except in extraordinary freshets; that about five feet of the upper frame of the mill-house projected over the top of the bluff, but without touching it; and that the puncheons passing from the mill door down to the bluff, were about twelve feet long. This invasion upon the land, or use of the bluff, appears to be the true grievance complained of.
In this state of the evidence, the Court being requested to instruct the jury on the several points of law arising upon the facts, and having refused some and given others, the following additional questions •are presented for our consideration, as embracing all the remaining points of the case.
[444] I. Admitting Wilson’s title to the fraction bounded on the east by the Coosa river, what was the extent of his right or boundary on the margin of the river ; does he own-all the naked land to the water mark, whether high or low, as was the opinion of the 'Circuit Judge?
II. Was it erroneous to instruct the jury, that, if ■the mill was in any manner attached to the plaintiff’s bank, it was an appurtenant to the premises ; and included in his grant; also that the plaintiff was entitled to recover damages for the use of it ? These latter instructions were given.
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By Mr. Chief Justice Saffold :
The action was trespass to try titles, and recover damages, instituted by the defendant in error, pursue ant to the statute, in lieu of the action of ejectment, &c. The land in dispute, as described in the declaration, is the south east fraction of section number seven, in township twenty one, of range two, east, containing one hundred and forty five acres, in the county of Shelby. The trial was had on the general issue. The matters assigned for errors grew out of a bill of exceptions taken on the trial by Bullock the defendant below, against whom a verdict and judgment were had for the premises; also, for damages.
The first point of exception is, that the Court sanctioned an amendment of. the declaration, made between. the time of ordering-a non-suit, and reinstating the cause, without due notice to the defendant below, and formal leave of the Court. The Court appears to have ruled that the leave was sufficiently implied by the order setting aside the non-suit, on the affidavit on which it was founded. •
As to this objection, it is sufficient to say, the allowance of amendments, is generally within the dis-[441] cretiou of the Court, and as tlie Circuit Court recog-nised tire authority for this amendment, the allowance of it is not subject to revision in error.-
It further appears, that after the cause was put to the jury, the plaintiff below offered as his only evidence of title, a receipt (purporting to be in duplicate) in the usual form under the cash system of disposing of the public lands, given by the receiver of public monies of the land district, to James Wilson of Bibb county, for the sum of one hundred and eighty one dollars and twenty five cents, expressing to be' in full for the fraction of land described in the declaration. To the introduction of which, as evidence'of title, the defendant objected, but the objection was-overruled.
In admitting- this receipt as evidence, the Court is also charged to have erred. The objection is understood to have been made with reference alone to the grade of interest or' title indicated by the paper, without questioning its genuineness; and this in the absence of any evidence of an adverse title. I consider it unnecessary to enter -into an elaborate investigation of the principles of law applicable to this point;, they are too well settled to require it. By the laws of the United States, the legal and bona fide holder'' of a receipt of this kind, is indefeasibly entitled to a-patent for the same. Nothing more is necessary oil his part to secure it. He already has a legal right — - the receipt and the law, imperatively command the issuance of the patentas the complete evidence of the title. Until it shall have issued, the receipt is the best evidence of the right which the case admits of. This is within the of the statute of 1812,a which recognises all certificates issued pursuant to any act of Congress, upon any warrant or [442] order of survey, or to any donation, or pre-emption claimants of lands, as vesting in the holders “ a full, complete and legal title,” so far as to enable them to maintain any action thereon; and constitutes the same evidence thereof in Courts of justice. -So far as there is any difference in the character of the evidence, or grade of title, a receipt of this kind is the more conclusive. But I do not consider receipts of this nature as requiring the aid of any statute. Upon the principles, of the Common Law, they must be regarded as evidence of a grade of title which at least confers the right of possession, and this alone is sufficient in this action. But it is more: it is nothing less than inchoate evidence of an absolute title. Various decisions of this and other Courts, (De la Croix vs. Chamberlain,a) sustain this principle in terms or by analogy. — (See Hallett vs. Eslava,b Lewis vs. Goquette,c Heirs of Rider vs. Innerarity.c) It was further objected by Bullock as defendant below, that the county surveyor was admitted as a witness for the plaintiff, and his evidence deemed competent by the Court, to ascertain the boundaries, of the land in question. He swore that by tracing various lines by the marked trees, he ascertained the north west corner of the fraction, which was not marked ;■ he then ran due south on both the sectional and township lines to the south west corner, which he ascertained by taking the bearings and distances; that, then he ran the south line to the south east corner, but found no marked corners. From this latter point, he ascertained, by setting his compass, and observations taken, that a line due north would strike the Coosa river below the mill: that he then retraced his line half a mile west, thence run due north half a mile, thence east to the river above the mill; arid that iri this way he ascertained the mill to be between [443] the north and south boundaries of the plaintiff1!s fraction, and that opposite and for some distance'above and below the mill, the fraction was bounded on the east by the river.
On this point it is considered sufficient to say, the character of the evidence was equal to any that the case would admit of, and was therefore competent.
Another feature in the case is, that Sawyer, under whom Bullock derived his title to the mill, had erected the same in the river, under the authority of an act of the General Assembly of the State; that this was a considerable time before Wilson became the purchaser of the fraction opposite; that the mill stood in the bed of the river; except that a little of the bank had been cut away, to make room for the north and south mud sills to be laid in it on a level with the bed of the river; that the west sill, or streamer being laid upon these sills, the current of the river ran around them, between them and the bank ; that the bluff of the river was nearly perpendicular, so as to confine the water, except in extraordinary freshets; that about five feet of the upper frame of the mill-house projected over the top of the bluff, but without touching it; and that the puncheons passing from the mill door down to the bluff, were about twelve feet long. This invasion upon the land, or use of the bluff, appears to be the true grievance complained of.
In this state of the evidence, the Court being requested to instruct the jury on the several points of law arising upon the facts, and having refused some and given others, the following additional questions •are presented for our consideration, as embracing all the remaining points of the case.
[444] I. Admitting Wilson’s title to the fraction bounded on the east by the Coosa river, what was the extent of his right or boundary on the margin of the river ; does he own-all the naked land to the water mark, whether high or low, as was the opinion of the 'Circuit Judge?
II. Was it erroneous to instruct the jury, that, if ■the mill was in any manner attached to the plaintiff’s bank, it was an appurtenant to the premises ; and included in his grant; also that the plaintiff was entitled to recover damages for the use of it ? These latter instructions were given.
III. Was the Circuit Court correct in refusing instructions that the verdict should except the mill out of the land if the latter were found for the plaintiff, and not'the former also ?
• IV. Did the Court err in refusing instructions, that if the mill had been previously erected, abutting on the bank, under the authority of the State law, and this known to Wilson when he entered-the land; he entered subject to the nuisance, if any, and was remediless ?
1. The fact may be assumed, indeed does not appear to have been contested on the trial, that the Coosa river at the point in question, is a fresh water, navigable stream. Nor do T understand the principle to be contested, that by the existing laws of the government all such streams are recognised as common or public highways. The act of Congress of 1803, '■*‘ Regulating the grants of lands, and providing for-•the disposal of the lands of the United States, south ’■of the State of Tennessee,” declares, that “ all navigable rivers within the territories of the United States .south of the State of Tennessee, shall be deemed to be ,and rejnain public highways.” The subsequent [445] act of 1819, continued this provision under the State government, with the further stipulation, that all such waters shall remain free to the citizens of the State and of the United States, without any tax, duty, impost, or toll therefor, imposed by the State.a To these regulations, the people of the State, by their representatives, in Convention assembled, have given their assent and confirmation.b
The Legislature of the State has also declared that all water courses reported to be navigable, by the surveyor of the United States, employed in surveying lands in this State, shall be, and remain free and ’ open.c
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 water courses, 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 water courses, 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.
There has been much litigation, whether the right extends to the high, or low, or the ordinary water mark, or to the centre, (often called the thread) of the [446] river. Our chief concern at present, is with a navigable river, where the tide does not ebb and flow.
To the case of Jennings, ex parte,a the Reporter has appended a note, in which are collated most of .-the authorities on this subject. A brief notice of this, instead of the original cases, will suffice on the present occasion. It is there said to be settled by the Common law,b "that where a man's land abuts or adjoins to any river above tide water, he owns the river to the centre of the stream. That as long ago-as 1805, in Palmer vs. Mulligan,c it appearing that the defendant owned the shore- of the Hudson as low down as still water, this being above tide water, Thompson, Justice, and Kent, Chief Justice, applied to this case the doctrine, (which had been held by Lord Hale,) that his ownership extended to> the centre of that great river; and the latter then hinted at what has since been established, that if a State will bound a grantee upon a river not navigable, he shall hold to the centre, unless there be an ex-Repception of the river in the grant. In Adams vs. Pease,d the plaintiff owned a large farm- bounded east on Connecticut river, above the flowing- of the tide; but where-it was large and passable for flat bottomed boats of thirty tons burthen; and some times, vessels built above-had been floated down ; yet it was held, that a boundary, in terms, on the river carried the-plaintiff’s ownership of the river to its centre. The rule is there laid down by Swift, Chief Justice, that the adjoining proprietors have this right. The doctrine of this latter case appears to have been approved in its full extent by the Supreme Court of New-York, in Hooker vs. Cummings,e where it was applied to the Salmon river, which empties into 'Lake Ontario.Spencer, Chief Justice, in delivering the opinion of [447] the Court, said, “ If the soil on both sides be owned by an individual, he has the sole and exclusive right; hut if there be different proprietors on"each side, they own their respective sides-adfilum medium auquos. The Court then also approved what Kent, Chief Justice, said in Palmer vs. Mulligan, that the Hudson was private property down to still mater. They also show that cases holding the contrary in Pennsylvania, are founded on a repudiation of the Common Law. a
In the case of Arnold vs. Mundy,b the plaintiff’s land ran to, or was bounded on a river, where the tide did ebb and flow; and he, and those under whom he claimed, had staked off, and planted a bed of oysters, some of which the defendant had taken away ; for which the action was brought. On a motion for a non-suit, the Judge remarked, “ that a grant of land to a subject or citizen, bounded on a fresh mater stream, or river, where the tide neither ebbs or flows, extends to the middle of the channel of the river ; but that a grant hounded on a navigable river, or other water, where the tide does ebb or flow, extends to the edge of the water only, that is to say, (in the language of the opinion before us,) “ to high watermark, when the tide is high, and to low water mark, when the tide is low; but it extends no farther.” The plaintiff was there non-suited upon this distinction. On • a motion to set aside the non-suit, the Supreme Court, after full investigation, confirmed the distinction and refused the motion. The principle which is considered to have been established by that Court is, that “ a grant of land bounded upon a fresh water stream or river, where the tide neither ebbs or flows, extends ad filum aquos ; hut a grant bounded upon a navigable river extends to the edge of the water only.
[448] From the cases referred to, it will be observed, that those Courts, proceeding on the Common Law, regard the ebbing and flowing oí the water, or either, as the criterion, whether' the stream or river be navigable or not; they also shew that fresh water streams were not put On the footing of such. This principle is farther illustrated by the case of Storer vs. Freeman,a where Chief Justice Parsons, remarked, that “ by the Common Law of England, which our ancestors brought with them, claiming it as their birthright, the owner of land bounded on a fresh water river, owned the land to the centre of the channel of the river, as of common right; but if his land was bounded on the sea, or an arm of the sea, where the-tide ebbed and flowed, he could not by such boundary, hold - any land below the ordinary low water mark, for all the land below belonged of common right, to the King.”
It is very obvious, however, that, with us, the1 question does not depend on the tide, or fresli water; that if the river has been expressly recognised 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 gran-* ted, which implies an exception, as in 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. That this is the true character and proper view to be taken of the Coosa Fiver, has I think been sufficiently [449] shewn. Therefore on tilia -point tliero was no error in the instructions given below.
2. Tiro second point involves [lie same principle, so that the remarks made upon tiro firat are also applicable to this. It results from what has been said that Wilson coaid not sustain Iris title to a mill erected by himself in the bed of the river beyond low water mark. If be could not oilier wise, the circumstance of his having inserted the mudsills, or any other part of the house, or dam, into the bank, so as to attach the mill to his soil, would not improve-his title below the mark. Then it follows irresistibly that the fact of another having done the work can not extend his title. In either case the law could only re-cognise his title to so much of the building or works as came within his line; Therefore in this cas,e the plaintiff below could have had a right to recover only so much, of the mudsills, or other parts of the mill building, or appurtenances, as were actually situated within, his boundary, fixing it at the natural low water mark. Nor could ho recover these otherwise than as appurtenances to the land on which they rest,- and which mast pass with it in the restitution. Hence the conclusion, results, that the Circuit Court erred in the instructions, that if the mill was in any maimer attached to the plaintiff’s hank, it was an appurtenant, to his premises and included in his grant; also in ruling, that the plaintiff was entitled to recover damages for the use of it.
3. The third point is embraced and disposed of by the preceding views. It was unnecessary that the verdict should expressly except the mill.
4. The last point, involving the effect of the Legislative grant to Sawyer, under whom Bullock claims,was not intended to present any question as respects [450] its intrinsic validity in reference to tire public. Such an enquiry would have been irrelevant to the case. The question was whether, if the mill had been erected under the authority of the act, prior to the plaintiff’s purchase of the land, and he entered with a knowledge of this fact, he took subject to the nuisance, if any. On this point it is sufficient to say, the act can have no constitutional effect to deteriorate the value of the public domain, or any title or interest which an individual may at any time, either before or afterwards, have legally acquired in the same. To avoid a conflict of grants, the Legislature may be presumed to have intended no such effect. The legal view of the subject is conceived to be this,, that any one intending to avail himself of the privileges- contemplated by the act, must observe the maxim, sic utere tuo, ut alienum non Icedas; and if he proceed without securing the adjacent lands, he must take upon himself the responsibility of the act, to all persons to whom injury may accrue from it. So that -on this question the Court below was correct.
But on the second point, relating to the effect of attaching the mill house to the bank, the judgment below must be reversed and the cause remanded.