McManus v. Carmichael

3 Iowa 1

Opinion

Woodward, J.

Footnotes

•

(1)

This is the first case which has arisen in the territory, or state, of Iowa, raising the question of riparian rights on the Mississippi river; and the question whether that river is a navigable stream, in the broad sense, or only in a limited one; and whether its shores or bed, or both, belong to individuals, or to the public ? The cause might be disposed of briefly, but it calls for a somewhat free and full examination, on account of its interest and importance ; on account of the fullness with which it has been presented by counsel, arraying tbe autborities from all the states upon all sides of the questions involved; and on account of the state of the authorities; in which much has been erroneously taken for granted — a bearing given to pre viously decided cases, which they would not warrant — and unsupported inferences drawn from fair decisions.

We are of the opinion that the plaintiff cannot maintain his action. And in expressing our views, we will consider the following three propositions: First. Although the ebb and flow of the tide was, at common law, the most usual test of navigability, yet it was not necessarily the only one. Second. However the truth may be upon the above proposition, that test is not applicable to the Mississippi river. Third. The common law consequences of navigability, attach to the legal navigability of the Mississippi.

First. Although the ebb and flow of the tide was, at com- I mon law, the most usual test of navigability, yet it was not j necessarily the only one. The term navigable embraces' within itself, not merely the idea that the waters could be navigated in fact, but also the idea of publicity, so that saying waters were public, was equivalent, in legal sense, to saying they were navigable. Yet the navigability in fact, , was the leading idea, and was the ground of their publicity. ! But on the other hand, there are in England and in this country, many arms of the sea, which, though not navigable in fact, are so legally. It is worthy of attention, that the ^ ebb and flow of the tide does not, in reality, make the wa- ; ters navigable, nor has it, in the essence of the thing, anything to do with it. The fact that certain rivers were accessible, and could be navigated by vessels of considerable bur-., den, always constituted the substance of the thing. But, as j in England, the tide waters, particularly the seas, were by fax the most important; and as all of .the rivers of that coun-' try, navigable in fact, were, affected to a greater or less ex-, tent, by the tide; and as the high and important admiralty • jurisdiction was always governed by this criterion, the ebb , and flow of the tide became the usual test. The nature of the admiralty, relating as it did, to the high seas, where the; king’s authority had sole sway, and to the arms of the sea*; gave prominence to the tidal ebb and flow, in legal thought., But there is nothing in nature, or reason, to constitute this: ■ the only criterion. Blanchard v. Porter, 11 O. 143; 12 How. 454.

! In the treatise on the law of waters, by Woolrych, 40 (margin), he divides rivers into public and private. He ¡ says: “ A public navigable river frequently owes its title to : be considered as such, from time immemorial; by reason of its having been an ancient stream ; but very many acts of Parliament have been passed, to constitute those navigable rivers, which were not so before. Waters flowing inland, where the public have been used, to exercise a free right of passage, from time whereof the memory of man is not to the contrary, or by virtue of legislative enactments, are public navigable rivers. This is the most unfailing test to apply, in order to ascertain a common right; others have been attempted, and frequently without success.” Thus he negatives the idea that none are navigable but where the tide flows. And then he proceeds to show, that all waters are not navigable (in the legal sense) where the tide does flow; and he cites the case of The Mayor of Lynn v. Turner, Cowp. 86, in which it was contended, that a river which flows and reflows, and is an arm of the sea, is, prima facie, common to all; and therefore “ it, was urged that an action on the case could not be sustained against the corporation of Lynn, for the non-repair of a certain creek, because the tide of the sea had been accustomed to flow and reflow therein; consequently, it was said, this non-feasance was punishable by indictment only, because the water must be deemed public. But this argument was treated by the court as a fallacy; for they denied that the flowing or reflowing of the tide constituted a navigable stream; there being many places where the tide flows, which are not navigable; and the place in' question might be a creek in the private estate of the corporation.” The language of Lord Mansfield, in that case, is emphatic: “How does it appear that this is a navigable river ? The flowing and reflowing of the tide-does not make it so,.”

In Miles v. Rose, 5 Taunt. 706, Gibbs, C. J., says that the . flpwing of the tide, though not absolutely inconsistent with a right of private property in a creek, is strong primet facie i evidence of its being a public navigable river; and Heath, J., expresses the same opinion. And in Rex v. Montague, 4 B. & C., 598, in 1825, Bayley, J., says: “ The strength of this prima facie evidence must depend upon the situation and nature of the channel. If it is a broad and deep chan-i nel, calculated for the purposes of commerce, it would be; natural to conclude that it has been a public navigation •- but if it is a petty stream, navigable only at certain periods ■ of the tide, and then only for a very short time, and by very small boats, it is difficult to suppose that it ever has been a public navigable channel.” And Holroyd and Little-dale, Justices, concur: 10 E. C. L. 414. And 'Woolrych,j again, makes the following conclusion: “ The circumstance,; therefore, of the flow and reflow of the tide, is one of the' strongest in support of a public right; but so far from being; conclusive, we have mentioned a case in which such a tesf has been found to be fallible. Public user, for the purposes of commerce, is, consequently, the most convincing evidenced of the existence of a navigable river,” &c. It seems clear,' then, that even taking the doctrine of the English books,! whilst the flow of the tide became, and was spoken of as the usual test, yet it was not this which constituted a stream navigable, nor was it the only test; and that sometimes even this failed. See Hale’s De Jure Maris, in 6 Cow. 539.

The soil under navigable streams belonged to the king, as parens patriae, for the same reason that the waters did; that is, as a trust for the public use and benefit, although he might.grant private rights in either the soil or the waters. This right, however, has not existed since Magna Charta. Woolrych, chap. 1 and 2: Angell on Tide Waters, 19, 67; Hale, De Jure Maris, in 6 Cowen, 539; Chapman v. Kimball 9 Conn. 38, citing Harg. Law Tracts, 12, 13, 17, 32; Constable’s Cases, 5 Rep. 107; Hall v. Herbert, 3 T. R. 253; Com. Dig. tit. Navigation A. B.; The King v. Smith, Doug. 441. These authorities are cited by the court in 9 Conn, to support the proposition, that riparian proprietors, bounded on a navigable river, own the soil respectively to high-water mark, and no further. The plaintiff does not controvert this proposition. He does not claim that the common law rule applies to this river. On the contrary, he claims it does not. And it is neóessary for him to thus hold, for if that rule is applied, it carries the riparian proprietor, Cook, usque filum aquce; and this would take the plaintiff’s whole island from him. The question of the applicability of that rule, however, lies in our path, and must be determined. It is the main question in the case. But we cannot take the law upon the plaintiff’s admission, and therefore must examine it.

Second. However the truth may be upon the first proposition, the flow and reflow of the tide is not applicable to the Mississippi, as a test of its navigability. And third: The common law consequences of navigability, attach to the legal navigability of the Mississippi river. The arguments and authorities upon these two propositions, being in a great measure identical, they must be considered together.

| The thought has been before suggested, that as a real and jvirtual test, the tide is a merely arbitrary one, and is not 'supported by reason; since many waters where the tide t flows are not in fact navigable, and many where it does not flow, are so. It is navigability in fact, which forms the foundation for navigability in law; and from the fact follows the appropriation to public use, and hence its publicity and legal navigability. It is true, that this legality attaches to some waters which do not possess the requisite quality in fact, but this arises from their relation to1 the high seas, and to admiralty, and from the difficulty of making an hundred exceptions. It is impossible to bring the mind to an approval, when we attempt to apply to the rivers of this country, stretching up to three thousand miles of extent — flowing through or between numerous independent states — and bearing a commerce which competes with that of the oceans « — a test which might be applicable to an island not so large as some two of our states; and to streams whose utmost length was less than three hundred miles, and whose outlet and fountain, at the same time, could be within the same state jurisdiction. In England, or in Great Britain, the chief rivers are the Severn, Thames, Kent, Humber, and Mersey; the latter of which is about fifty, and the first: about three hundred miles in length, and of this (the Sev-' ern) about one hundred miles consists of the Bristol channel. The world renowned Thames, has the diminutive proportions, of two hundred miles. And of even these lengths, not the] whole is navigable. Thus, it will be seen, that these chief; rivers of good old England, range in extent with our Con- j necticut, Merrimac, Hudson, Allegany, Monongahela, Cedar,' Iowa, and Des-Moines, and bear a proportion of one to twenty, when compared with the greater rivers of this con-¡ tinent. '

One of the counsel says he called in vain, in another cause, to learn whether the common law prevails here, and how it came. "We will not discuss this question; but it is presumed that some system of law has place here, outside of the statutes, for they assume it. There are but two civilized systems, the civil and the common law. If the civil rules, then are these streams navigable and public, without further discussion. And if we, like the people of these states, generally, have brought the common law with us; then, too, we, like them, have brought such parts of it as are adapted to our institutions and circumstances; and we ask with confidence, whether the rules and tests which are applicable enough to the rivulets of England, shall be taken to measure those waters, whose flow is through the climates and zones of the earth ?

The real test of navigability here, is ascertained by use, or t by public act or declaration. We will inquire what these have been in the case of the Mississippi river. By the Spanish treaty of 1795, this river was to remain free to the subjects and citizens of the two powers, and not to others, without special cohvention. 8 U. S. St. at Large, 140. The act to enable the people of the territory of Orleans, to form a constitution and state government, 20th February, 1811, § 3, provides, that the river Mississippi, and navigable rivers and waters loading into the same, or into the gulf of Mexico, shall be common highways, and forever free, &c. 2 lb. 642. Tbe same is again declared in tbe act admitting tbe state of Louisiana into the Union, April 8, 1812 (2 lb. 703); in tbe act constituting tbe state of Mississippi, March 1, 1807 (2 lb. 349); in tbe act establishing tbe Missouri territory (2 lb. 747); and in tbe act authorizing a convention to constitute tbe state of Missouri, March 6, 1820 (2 lb. 546). We then come to tbe ordinance for tbe government of tbe northwest territory (Code of Iowa, 494), and to tbe acts relating to tbe survey and sale of tbe lands (act of May 18, 1796, 1 U. S. St. at Large, 466, 468) — the latter of which declares, that tbe navigable rivers of tbe territory shall be and remain public highways; and.- we arrive at tbe ordinances establishing tbe territories, and admitting tbe states of Illinois, Iowa, Wisconsin, and Minnesota. These are tbe declarations of tbe government of tbe United States. And these several laws, ordinances, and constitutions do, not only with tbe authority of law, but also with tbe force of compacts between- tbe United States and tbe several states, declare and constitute tbe Mississippi river a public highway, in tbe highest and broadest intendment possible.

Tbe acts of the United. States consist in tbe laws and practice relating to tbe survey and sale of tbe public lands. See tbe above act of May 18, 1796, &c.; also tbe laws establishing tbe general land office, and tbe regulations of that office. By these, it is well known* that tbe whole bed of navigable rivers is excepted from tbe surveys; tbe rivers are meandered, tbe lines are run, and monuments set upon the margin of the bank. Tbe amount thus made, is computed, and tbe land sold as of such quantity, and with reference to tbe plats and field notes of tbe surveys thus made. By tbe uniform practice, tbe islands in tbe rivers do not pass by grants upon tbe mainland, but are oftentimes surveyed and sold separately, and subsequently. This was tbe case with regard to tbe islands no,w in question before us.

Tbe plaintiff doef not contest tbe idea that this river is navigable in som^jpense, but bolds that it is not so in tbe common law sense) or.tbat it is not accompanied by tbe common law consequences. He claims that tbe riparian pro prietor owns to low water, and that the bed of the river below that, is in the public. The defendant, on the other hand, holds that .the proprietor owns to high-water mark only; or, in other words, to the margin of the bank, which is the same thing, in such cases. We shall hereafter have occasion to ask, by what authority or reason, we can, upon rule, throw away both the old lines — the high-water and the medium filum — and take the low-water. Some criticism has passed upon the application of the terms “high-water mark and low-water mark,” to rivers above the tide. Its perfect correctness is not claimed; but it is sufficiently true, and is more expressive, than any known substitute.

In approaching the cases, it is to be observed, that those states which have no navigable waters other than those where the tide flows, or whose rivers are but small, and their effectual navigability is limited, or nearly so, to the tidal waters, have held more nearly to the usual common law test, and have applied the consequences as inferred at common law; whilst those states which have less relation to the salt waters, or whose rivers are larger, and depend less upon the tide waters for their navigability in fact, have been inclined to depart from the old rule.' And those cases which hold tide water to be the criterion, also treat the soil of rivers above the ebb and flow of the tide, as private, notwithstanding it is considered subject to the public right of navigation, when the stream is navigable in fact.

The courts in the states of Maine, New Hampshire, Connecticut, New York, Maryland, Ohio, Illinois and. Mississippi, have adopted the common law rule, with more or less directness and fullness. The cases are very fully collected by the counsel, and we have seen and examined nearly all of them. In the most of those from the northeastern states, the subject is discussed very little; but they simply assume the common law rule as the one to decide by, and look no farther. It is conceived that there is no case in the New England states, which requires comment. In New York, the subject has received a good deal of attention in the cases of Varick v. Smith, 5 Paige, 137; Same v. Same, 9 Ib. 547; Ex parte Jennings, 6 Cowen, 537, in a note to which is published a part of L. Hale’s Treat. De Jure Maris ; Canal Com, v. The People, 5 Wend. 447; People v. Canal Com., 13 Ib. 358; Canal Appr's v. The People, 17 Ib. 571; Hewlett v. Pearsall, 20 Ib. 111; Pearsall v. Post, 22 Ib. 425; Canal Com. v. Kempshall, 26 Ib. 404; Gould v. Hudson R. R. R. Co., 2 Seld. 522.

The cases in Pennsylvania, have been cited in the books,, on both sides» of this question; but it is conceived that there has been a misapprehension of them, in citing them in favor of the old rule. Thus, the American editors of Smith’s Leading -Cases, in their note to 2d vol. 193, say, that “ so far as the tide ebbs and flows, the ownership of the soil to low-water mark, is in the proprietor of the adjoining bank,” and cite several Pennsylvania cases, among which aré Hart v. Hill, 1 Whart. 124; and Ball v. Slack, 2 Ib. 508. In that state, the courts have recognized the right of several fisheries, as arising from ancient custom and from statute; but they have held no doctrine of a right to low water, any farther than as rdlating to and connected with, such fishing. Thus Hart v. Hill was for a direct interruption of the right of a several fishery, and the court say, “ and first, a fishery is in the river, and is not the space between high and low water, though the use of that space may be necessarjr in the use of it, and may be included in the term fishery.” It is true that they use general language, which implies more than this, but it is to be taken in reference to the case before them.

In Ball v. Slack, 2 Whart. 508, the reporter’s abstract says: “ It seems that the owners on the Delaware and Schuylkill, have a right to the land between high and low water, subject,” &c. It may be doubted whether even this, is warranted by the opinion, but admitting that it is, the law there is distinctly settled to the contrary, in Carson v. Blazer, 2 Binn. 475, and in Shunk v. Schuyl. Nav. Co., 14 S. & R. 71. Many inaccurate expressions have been used in the cases in that state, relating to fisheries, which have led to confusion, but the subject is much cleared in the two cases above cited. And both Pennsylvania and Connecticut recognize a right, either from statutes or local common law, to build wharves, &c., for commercial purposes. The case of Chapman v. Kimball, 9 Conn. 38, announces the rule to be, that owners on navigable rivers own to high-water mark. They say: “ The usage of the owners of land to high-water mark, to wharf out against their own land, has never been disputed. This is our common law.” Time will not permit the examination of the remainder of the cases cited in the above note, but it is conceived, with deference, that they do not show such a rule to be established — at least outside of their own state.

The case of Mullanphy v. Daggett, 4 Mo. 343, is not to be cited in this class, for it stands upon the express ground, that the Spanish government granted to the water. And Browne v. Kennedy, 5 Har. & John. 195, is hardly to be ranked here, for the basis of it is the king’s grant to the lord-proprietor; which the court considered as carrying the right to the shore, and which the proprietor .afterward granted away. In.the above cases, from the most of the foregoing states, the consideration arising from the common law rule, and those connected with it, to which we have before alluded, seem to have carried the minds of. the courts, as of course, for there was nothing in their circumstances to awaken the question of the applicability of the old rule. And, besides, the earlier of them set the rule down, before the development of the western country had shown the vast public importance of our greater rivers, as amounting to inland seas. It is also worthy of attention, that these same cases hold, that the rule does not extend to larger bodies of fresh and standing waters, namely, the lakes which are within the limits of New Hampshire. They carry the adjacent owner’s right to the water, but not ad medium. See The State v. Gilmanton, 9 N. H. 463; Canal Comrs. v. The People, 5 Wend. 447 ; and Hale’s Treat, in 6 Cow. 545, is cited.

But when we approach those states which, while they border upon the great western rivers, have still been held more or less by tbe common law rule, we are compelled to give very considerate attention. Tbis has been tbe case with Obio. Tbe case of Blanchard v. Collins et al., 11 Ohio, 138 (old series), in 1841, if regarded as one of tbe first settling tbis question, is certainly not a fully considered one. Tbe common law rule is at once recognized. There is not a word'in relation to tbe character of tbat river, the Ohio — ■ nothing in relation to tbe ordinance of 1787, and its meaning and effect — and nothing concerning tbe laws and practice in respect to tbe survey and sale of tbe public lands. It stands chiefly on tbe two cases in New York. The People v. Platt, 17 Johns. 195, and Hooker v. Cummings, 20 Ib. 90; and its own case, Gavitt v. Chambers, 1-4, Ohio, 643. It also relies, partly, upon tbe cases of Cooper v. Smith, 9 S. & R. 26, and Shunk v. Schuylkill Nav. Co., 14 Ib. 74, which it claims to teach, tbat the riparian proprietor owns to tbe water, but not ad medium ftlum; and thus neither following tbe common law, nor wholly abrogating it, We conceive tbat tbe court gave these two cases a meaning which they do not inculcate. They will be examined hereafter.

All tbe cases in Obio may be influenced by tbe consideration, tbat by tbe cession of Virginia to tbe United States, by tbe compact of 1792, between tbat state and Kentucky, tbe latter owns tbe river to tbe water’s edge on tbe Ohio side, and Obio owns tbe soil down to tbe water, but no part of tbe water, although slie bas a concurrent civil jurisdiction with Kentucky. Handley's Lessee v. Anthony, 5 Wheat. 374. In tbis case — Blanchard v. Porter — tbe court considers tbe Ohio a navigable river, but not in tbe technical sense; and say, tbat “ grants of land bounded on rivers, or upon tbe margins of the-same, above tide water, carry tbe exclusive right of tbe grantee to low-water mark; or as some of tbe authorities say, to the centre of tbe stream. None of our rivers in tbe western country, are navigable in tbe technical acceptation of tbe term. They fall within tbe second class. Tbe distinction was originally made, in order to define tbe jurisdiction of tbe admiralty courts.” Here we find it recognized, that the admiralty had much to do with the creation of the old rule; and what is the inference, when we learn that our admiralty jurisdiction extends over these very rivers. Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 454.

The case of Walker & Fulton v. Board of Public. Works, 16 Ohio, 540 (old series), in 1847, is one of mandamus, under a statute, to inquire into the right to damages of proprietors on rivers, in which the state had authorized improvements. It related to the Great Miami, which had been declared navigable by statute. The court held justly, that such statutory declaration, could not take away the prior rights of riparian owners. They touch very briefly these rights “ in the streams within our borders, which are in fact navigable,” and say, that the question is not new in that state, having been repeatedly before that court, and that the rule is, that the riparian proprietor owns to the eentre, or the “ entire river,” if he owns land on both banks. This manifestly is restricted to the streams strictly within their borders. Otherwise, it contradicts the other decisions. And this leaves out the Ohio and the Wabash. Stinson v. Butler, 4 Black. 285, considers the English rule as to high-water mark, as applicable to waters which ebb and flow, and curtly holds, that grants by the United States of lands on the Indiana side of the Ohio, extend to low water, and seems to infer it from the fact that the state boundary goes there; and this is the only reason intimated. If the state boundary had gone to the centre, would the grant have reached it? If this is the argument, it conflicts with almost all on the same side of the general question.

The case of Middleton v. Pritchard, 3 Scam. 510, goes further,, and is one of the strongest of the western cases. It was trespass for cutting trees. The plaintiff bought of the United States the fractional southeast quarter of S. 13, T. 5, N. R. 10, W,, of 3 P. M., in Illinois, containing 32.74 acres. In front of it, in the river, within his lines if extended, is an island, probably containing nearly the same quantity, separated from the main land by a slough or bayou, which was covered by water only a smaller part of tbe year, and tbe remainder of the time is uncovered, and grass grows there. There is a distinct bank and shore on the margin of this fractional section, and the survey was along the bank, the island not having been surveyed. The court held, that the plaintiff, by his purchase, took the island, but it is not clear whether they considered him as going to low water only, or to the middle of the river. The dissenting opinion of Wilson, C. J., rather indicates the latter, and there is no reasoning which negatives it, whilst the reasoning upon the common law rule, if carried out, would take the plaintiff to the. centre. There are two points, upon which the court departs from the mass of cases; first, it applies to the grant of' the government, the rule of private grantors, namely, that the grant is to be taken most strongly against the grantor; and then assuming that it is a grant, bounded by the river, they apply the other rule, that it extends to the centre, unless expressly negatived. Second: it rejects the surveys, field notes, &c., as constituting any part of the description or limitation, and say these are only for computation, and to arrive at the price. Now, we conceive, that the rule of -a grant being construed most strongly against the grantor, does not apply to public grants; but that the government, being but a trustee for the public, its grants are to be construed strictly. Varick v. Smith, 9 Paige, 547; Canal Comm'rs v. People, 5 Wend. 444, 460, 464; Same v. Same, 17 Wend. 574, note, 612; La Plaisance Bay v. Monroe., Watkins’ Ch. 155; Charles R. Bridge v. Warren, 11 Pet. 544; Stonebridge Canal v. Wheeley, 2 Barn. & Add. 792. And we had supposed that the grants of land by the United States, in their patents, had relation to the surveys, plats, and field notes. Jackson v. Freer, 17 Johns. 28; La Plaisance Bay v. Monroe, Walk. Ch. 155; Chinoweth v. Les. of Haskell, 3 Pet, 96; McIver v. Walker, 4 Wheat. 447; Pearsall v. Post, 20 Wend. 116; Rowan's Ex'rs v. Portland, 8 B. Mon. 232; 17 M. 207; 9 Watts, 117; 2 Cart. 278; 7 Johns. 222.

But the chie ustice, Wilson, differed from the concluí ■■sion of the majority of the court in. the above case. He dissented from the application of the above rule to public grants; and we think his opinion more harmonious in its course of thought, with the train of legal reasoning generally. It would be gratifying to quote a larger portion of his remarks, but a few brief passages must suffice. He objects a want of authority in the agents of the government to sell, thus: “ The land authorized to be sold,” he says, “ and the mode of selling it, are prescribed by law, and all sales in violation of that are void.” “ These surveys and plats are the guides of the land officers in making their sales; they have no authority to sell a single acre that has not been surveyed. Every tract of land liable to sale, is specifically described,” &c. “Itfollows, therefore, as a necessary consequence, that islands, as well as other lands, that have not been surveyed and platted-as the law requires, cannot be sold. It has no description known to the law.” And he argues that neither the government nor purchasers, understand or intend that-islands pass by a sale of lands on the nearest shore. '

Morgan & Harrisson v. Reading, 3 Sm. &-M. 366-395, in 1844. This case was very completely argued, and we cannot say but that it was deliberately considered. It takes the English rule as the test, and applies it in the legitimate, logical consequences, and gives the riparian proprietor ad medium jilum aguce of the Mississippi river.

If we were called upon to illustrate the impropriety of applying the English rule to this and other great rivers, we would cite the above case from Mississippi, and that of Mullanphy v. Daggett, 4 Mo. 343.

It is impossible to define beforehand, all the fair uses to which the navigators of these publie rivers may have occasion to appropriate their shores. But let us take these two cases as examples. The above case from Mississippi shows, that the plaintiff was the owner of a certain' lot in the city of Yicksburg, which lot the court held to extend to the middle of the river. The defendants were “ citizens of Ohio, and regular flat boat traders.” They landed their boat op posite the city, at the shore, and opposite the plaintiff’s lot, and used the shore to tie the boat to, and land their goods upon, They remained there some time, and plaintiff charged them a rent of one dollar a day, which they refused to pay. The court held them liable. Now, is not this repulsive to all our ideas of the objects, uses, and appropriations of this great river? If it is said that they remained a long time (four months), let it be remembered that this is not the point of the case, and that it does not change the argument. If there is any weight in that fact, the answer is, that the landing should be placed under the authority of the city, and let that regulate such matters, and then the matter would fall under a different train of reasoning. The case of Mullanphy v. Daggett, 4 Mo. 343, w.as decided upon the Spanish lawg and,the king’s special grant. But let us look at it in the light of that of Morgan et al v. Beading. The defendants hauled up their steamboat, for repairs, on the shore of the river. They remained there some six weeks, and erected a temporary blacksmith’s shop, for the purposes of their work. What can be conceived of, as a more legitimate use of the shore of a great navigable river ? It is said that they might go to some town or city, which has docks or ways, or other facilities for such purposes. Suppose the accident to occur far from, such a place, and the operation to be impracticable, and then how many such places are there on our waters t The very question is, are they compelled to do go? Such arguments assume the practicableness of such a course; they take for granted the practical convenience — a matter which is generally desirable in such cases, for convenience and interest commonly lead to that course, when practicable. Are these rivers public and free to run your boat or vessel, and not public and free to stop when you are disabled? A restricted construction of the rights of navigation in these waters, reducing them to a petty sufferance, is greatly to be deprecated.

Before coming to the case where the common law rule'is get aside directly, it seems desirable to look a little more closely at two or three of those in which the old rule is adhered to, for in them we can readily perceive, that the adoption of the former rule was for a time doubtful; that it is to a limited extent only, that it is followed; and that the same courts would have probably decided differently, had they been adjudicating upon our rivers.

It is important -to remember, that in very few of the cases in the northeastern states, has the question been opened up at all considerably; but in nearly all of the older ones, the wheels run into the old ruts, as a matter of course, rather than from a deliberate choice of ways, in the same manner that they generally do, unless something arises to start the attention anew. They first drew a line of distinction between streams and standing water, and refused the application to lakes or other large bodies of like waters, thus making a criterion about as important, in view of the real nature of the case, as the ebb and flow of the tide, or the saltness of the water. Thus, in New Hampshire and New York, the rule was withheld from the small lakes in their interiors, as well as from the larger ones on their borders. But, how-ever it may have begun, the rule having been settled, and rights of property having grown up under it, and there being in this case, no strong reaspn for a change, it still and very properly remains. In The Canal Commissioners v. The People, 5 Wend. 423, Chancellor Walworth says: “The principle itself does not appear to be sufficiently broad to embrace our large fresh water, lakes or inland seas, which are wholly unprovided for by the common law of England.’'’ “It is not necessary to express an opinion,” he says, “ whether this principle can be properly applied to spine part of those streams which are navigable from the sea, by large ships and vessels, far above the influence of the tides, as that question can never arise in this state, We have no such rivers.” Surely, such an .expression leaves u$, who have such rivers, free to discuss the -question anew, and. without feeling constrained by those decisions. Again, hp says: “The rivers in England aboye tide, in point of fact, are not navigable, except for small craft; reasons, therefore, east in that island, for the common law rule, which have no existence in this country. It is contrary to fact, to assert that our immense fresh water rivers are not navigable; and it is matter of just exultation, as well as benefit, to the country, that in the United States we have rivers which above tide, are navigable to a greater extent than would be the circumnavigation of the United Kingdom of Great Britain and Ireland. It is therefore preposterous to contend, that the limited doctrines of the common law are applicable to the Mississippi, Ohio, Susquehanna, Niagara, and St. Lawrence. If applicable, the owners of land on these streams have a right to go to the centre of the rivers, and Grand Island, in the Niagara, with 18,000 acres, would belong to the owners of the shore.”

The same case -was again before the Court of Errors, under the name of The Canal Appraisers v. The People, 17 Wend. 571. In an abstract of the conclusions to which the senators delivering opinions arrived, Chancellor Walworth’s sixth proposition, is, that it is conceded that the common law rule does not apply to large navigable lakes, nor to rivers constituting the boundaries between that and other states. The third proposition of Senator Beardsley, is that the common law rule, which authorizes the owners of the shores of rivers in which the tide does not ebb and flow, to hold ad filurn aquae, is not applicable to the condition of that state (New York), in respect to its large navigable rivers, in which no tide ebbs or flows; that from the acts of the government of New York, as well before as since the Revolution, in asserting the title of the public to islands and the beds of rivers, after granting the lands upon the shores of navigable rivers in which the tide does not ebb or flow, a strong presumption is raised that the common law, in this respect, has never been adopted there. The first proposition of Senator Tracy (president of the Senate), is, that the great fresh water streams of this country are not subject to the principle of individual appropriation, allowed by the common law of England; and his third is, that the reason of the rule, assigning the proprietorship of the bed of a river to the owners of the adjacent shores, wholly fails in refer ence to the large navigable rivers of this country. And fourth, that the long continued practice of granting islands in rivers, subsequent to patents covering the adjacent shores, contradicts the assumed application of the common law rule of riparian ownership, as applied to the great rivers of that state. The chancellor, who is in favor of applying the common law rule as far as practicable, says, in his opinion: “ Considered in this light, is there any possible objection to the common law rulé, even in regard to our largest rivers, which are wholly within this state, and above tide water? A different rule must probably prevail as to our large navigable lakes,'* which are mere inland seas, although there is neither ebb nor reflux of the tide; and also as to those lakes and streams which form the natural boundaries between us and a foreign nation.” In this case, the surveyor-general of the state gave testimony, and in reference to it, and in allusion to the description in the grant, the chancellor makes a remark pertinent to the present surveys -and sales. He says, the patent itself contains. only the number of the lot, but that the survey and field notes in his office, contain a particular description of the boundaries; that where such lots are situated on the banks of navigable rivers, they are bounded on the banks of such rivers or streams, and run thence along the bank of such stream. This is a clear indication of the intention of the grantors, that the patent should not include any part of the alveus (or bed) of the stream, or of the islands therein. It is therefore a limited grant, and it cannot be extended to the thread of the stream, nor include any island therein, even on common law principles, especially when we take into consideration, that by a law of the state, the patentee was entitled to only a certain number of acres.” Senator' Beardsley also, in his opinion, comments on the practice of the state in granting the islands separately 'from the main land, although the grants were in the terms bounded on the bank, and thence down along said river,” which at common law would have extended the grants to the thread of the stream; and considers this as an evidence that the common law rule of. fresh water rivers, had not been regarded as applying to the Mohawk, the river under consideration. On page 616, he says: “Here allow me to inquire, what good reason can be urged in favor of applying these principles to our large American rivers, and thus keeping up a distinction in name, where in reason and good sense, none should exist. Why, for instance, should proprietors of land on the Mississippi, where the tide ebbs and flows, be restricted to the bank of the river, and that part only be called navigable; and those proprietors of lands immediately above the flow of the tide, be suffered to go to the eentre of the stream, when the river in point of fact, is actually navigable for thousands of miles above tidewater. Yet such are the absurdities of the common law, when applied to our large rivers. In England, this rule is very proper in reference to small rivers, and is calculated to prevent litigation, &c. But in respect to our large rivers, there does not appear to be any propriety in the rule; and if in England and in this country, it is essential to the public interest, to declare that arms of the sea, bays and rivers where the tide flows, belong to the state or nation, it is equally important that the same rule should prevail in respect to our large rivers, where the tide does not flow.” In the same case, Canal Appraisers v. People, 19 NEend. 621, President Tracy says: “It is impossible for me to believe it reasonable or right, that the great fresh water streams of this country ever were or should be subject to those narrow principles of individual appropriation, which might fitly enough apply to the comparatively insignificant water courses which are found in England; and even in that part of the European continent where the civil law originated.” “ It is utterly incredible that when they (the colonists) surveyed the magnificent rivers, which a bountiful providence has provided, they could imagine that gifts, which from their very nature and extent were capable, not only of being enjoyed by all,' but of supplying the wants of all, should by a misapplication of a principle utterly unsuited to the subject to which it was applied, be made the exclusive property of a few; in short, that because the common law had assigned the ownership of a petty streamlet in England to its riparian proprietors, therefore, unlooked for by themselves, the first settlers on the banks of the magnificent rivers of this country, had acquired an exclusive right to the broad channels through which those rivers flowed." He then adverts to the practice of the state in granting islands separately from, and subsequently to, the grant of the main land, as negativing the idea that the bed is private, and concludes thus: “ Ought we, then, in the face of this long continued practice, and unconstrained by any direct authority, either legislative or judicial, to close our eyes to the condition of things which surround us — the expanse of this continent — the copiousness of its waters — -the improvements, intelligence and wants of this age? On such a subject as this, even admitting the facts to be obscure or equivocal, and the law to be unsettled, is it' wise for us to disregard the dictates of enlightened reason,, the suggestions of public policy, and the irresistible progres-, sion of liberal principles, resulting from the physical and intellectual advancement of mankind; and turning backward, to resort to the circumscribed views of a less enlightened; age, for a narrow, insular, and inadequate rule, by which to* measure the flow of our jurisprudence?”

Had these jurists been hearing the cause at bar, they could not have expressed sentiments more pertinent.” Their thoughts we adopt, and make them our own, and we quote them freely, rather than merely express the views as of ourselves, that it may be seen that other judges, in other parts, and of more learning and ability, have entertained them, and therefore they are not novelties; and also that it may appear that the old common law rule has but a weak hold on the country, and is by no means dominant, but that $11 things combine for the rejection of its confining influence.

In accordance with this general and strong tendency, several states have refused to apply the narrow rule to their large waters. As earjy’as 1810, the Supreme Court of Pennsylvania, in the case of Carson v. Blazer, 2 Binn. 475; took the lead. The case came up upon exceptions taken to a charge to a jury by Chief Justice Tilghman, concerning a right of fishing. He said: “ The several acts of assembly declaring these rivers to be highways, and regulating the fisheries in them, are incompatible with the common law right. But the common law principle concerning rivers, even if extended to America, would not apply to such a river as the Susquehannah, which is a mile wide, and runs several hundred miles, through a rich country, and which is navigable, and is actually navigated by large boats. If such a river had existed in England, no such law would have ever been applied to it. Their streams, in which the tide does not ebb and flow, are small.” It appears from the opinion of Brackenbedge, J., that the grants sometimes extended to the water, and called for it, and even where they did so, they were held not to go to the middle of the stream; nor did they go to the water, unless the grant was explicit.

This case was followed by Skunk v. Schuylkill Nav. Co., 14 S. & R. 71, in 1826; Bird v. Smith, 8 Watts, 484; Union Canal Co. v. Landis, 9 Watts, 228, in 1840; all of which recognize the same doctrine. There does not seem to have been advanced in Pennsylvania, a claim to the centre of these large rivers, nor even to the shore. Two of the above cases, arise on claims to the exclusive right to fish with seines in the pools made or kept in order by individuals, founded upon a supposed ancient usage. But the claim of such a right was rejected.

North Carolina, also, in 1828, set aside the common law . rule, as inapplicable. And the only thing which gives the riparian owner, in that state, a right down to the water, is the express declaration of their ancient acts of 1715 (or 1765) and 1777, relating to surveys and sales; and their otherwise total exemption from the common law private rights, stands upon the ground that they are declared to be highways, as the acts and laws of the United States have declared other rivers. Tennessee follows the decision in North Carolina, as subject to the same acts of assembly.

In the case of Cates v. Wadlington, 1 McCord, 583 (356 top), in 1822, the Supreme Court of South Carolina, by Nott, J., says, “ But that rule (the common law) will not do in this state, where onr rivers are navigable several hundred miles above the flowing of the tide." And they say this in close connection with the assertion, that there is no legislative act declaring which, or whether any, of their rivers are to be considered as public or navigable, so that the subject was free from any kind of constraint, except the common law rule.

The subject received more- elaborate attention in The Mayor, &c., of Mobile v. Eslava, 9 Porter, 578, in 1840, than in nearly any of the other causes; and it is here viewed with more reference to the ordinances and laws of the United States, which are scarcely alluded to in any one of the foregoing cases, but without which, we conceive it impossible to reach the merits of the question. The common law rule alone seems to have absorbed the attention, in the consideration of the cases, whilst the treaties, ordinances and laws of the United States, have been overlooked or passed by in silence.

The United States provided that the navigable waters within the state of Alabama, should forever remain public highways, free to the citizens of said state and of the United States, &c., in like manner as in the ordinances relating to all the other new states. The court, in the above' cause, arrive at the following conclusions:

1. The navigable waters within the state have been dedicated to the use of the citizens of the United States, so that it is not competent for Congress to grant a right of property in the same.

2. The navigable -waters extend not only to low water, but embrace all the soil that is within the limits of high-water mark.

8. By the acts of Congress regulating the survey and disposal of the public lands, the federal government has renounced the title to the navigable waters and the soil covered by them.

4. That, as the original states are entitled to the right of property in the navigable waters within their territory, so Alabama, being admitted into the Union on an equal foot ing with the original states, is, of. consequence, entitled to the s|me property in her navigable waters, and the soil under them.

5. By the admission of Alabama info the Union, without á reservation of the right of property in the navigable waters, the state succeeded to all the right of the United States, except so far as it was reserved by the federal constitution, in some of its grants, or its retention was necessary to enable the federal government to exercise its delegate powers.

In the opinion of the court, they hold the following language : “ The several acts of Congress regulating the survey of the public lands, all provide for the surveys which border on navigable streams, to be'so made.as not to include within their lines any part of the shore. 1st Yol. Land Laws (ed. 1838) 50, 96,104,191.” And again; “We find it'is also enacted, in the territorial ordinance, and the laws regulating the survey and sale of lands in Mississippi and Alabama, that the navigable waters shall be and remain public highways. Here were express avowals by Congress, that they should not be surveyed and sold, but should be withdrawn from commerce.” “It is then considered clear, that the navigable waters of this state have been dedicated to the common úse of the people of the United States; but perhaps it may be considered as questionable, what extent of soil is embraced by the dedication. We .think it must be so much ground as is covered with the water, not only at low, but at high tide. The government surveys extend thus far, and the shore is regarded rather as a part of the water, than as land. It is believed that there is no instance in which the United States, after having sold the land to high water, has afterwards asserted a right to dispose of the space between that and low-water mark.” The land in question in the above cause, is adjacent to the city of Mobile, in the Mobile river. That the tide flows there, we infer, but this fact is barely alluded to incidentally. It does not form the ground for any of the reasoning of the court, nor the turning point for any of its conclusions. The whole case, with all the views of the court, is as appropriate to the Mississippi river, along the borders of Iowa, as to tbe Mobile in Alabama. Here alone, and for tbe first time, bas tbe proper force been given to tbe repeated dedications of navigable waters to tbe public of tbe United-States. And it seems utterly inconsistent with these acts of dedication, and with tbe laws, to give' tbe public only a qualified, partial, restricted use — a mere easement over tbe waters. See 16 Pet. 235-247; Polland's Lessee v. Files, 2 How. 592.

Tbe case of La Plaisance Bay Harbor Co. v. City of Monroe, in Michigan, Walker’s Cb. 155-168, in 1843, bolds tbe same doctrine. Tbe language of tbe court is: “ The complainants do not own either tbe bed or tbe banks of tbe river below tbe point of obstruction. Tbe bed of tbe stream is public property, and belongs to tbe state. Tbis is tbe case with all meandered streams, no part of them being included in tbe original survey; and tbe common law doctrine of usque ad filum aquae, is not applicable to them. Tbe public owns tbe bed of tbis class of rivers, and is not limited in its right Jp an easement, or right of way only. So with regard to our 'large lakes, or such parts of them, ás lie within tbe limits of tbe state.”

Probably all of tbe cases from tbe state courts upon tbis subject, have been referred to by tbe counsel, whose industry bas opened tbe cause-to a free examination; and all of a leading character, so far as we have been able to obtain them, have been examined. It is now necessary to see bow far tbe matter bas been discussed or settled by tbe federal courts.

Tyler v. Wilkinson, 4 Mason, 397—400, related to tbe Pawtucket river, a small river flowing in part of its course between Massachusetts and Rhode Island; but tbe controversy was between individuals. Judge Story, without any discussion, assumes tbe application of the common law rule to that part of it which was above the tide water.

.Bowman's Devisees and Burnly v. Wathen et cd., 2 McLean, 376, is cited on both sides of the question, but we think it a strong authority against tbe application of tbe common law rule. Judge McLean says: “We apprehend that tbe common law doctrine as to the navigableness of streams, can have no application in this country; and that the fact of navigableness does in no respect depend upon the ebb or flow of the tide. On navigable streams, the riparian right, we suppose, cannot generally extend beyond high-water mark.” The doubt as to the application of this case, as an authority, arises on the next passage, in which he says, “ But in the present case, this inquiry is not important. It is enough to know that the riparian right on the Ohio river extends to the water,” and that “ the proprietor has the right of fishing, of ferry, and every other right which is properly appurtenant to the soil.” The doubt is, whether the learned judge means this latter as a projrosition holding true of the Ohio generally, or of grants standing, as the one before him did. He may have intended it of'the Ohio generally, upon the strength of the cases before cited from that state; but strong against this construction, is the assertion that the proprietor has the right of fishing! Now, no one has ever gone so far as to claim a several fishery in that, or any other of the great western rivers; and the Ohio cases, as well as Handly's Lessee v. Anthony, 5 Wheat. 374, negative such a right; for they hold that as the state of Ohio extends to low-water mark only, of consequence no grant by, or in, the state, can extend farther; and the right of a several fishery implies, ex necessitate, a title or right usque filum aquce, There is a view which'renders Judge McLean’s remarks entirely harmonious; that is, considering his last remark as made in reference to the right or title before him. Eor, directly,-in connection with the foregoing thought, he proceeds thus: “ In coming to this conclusion, we have deemed it unnecessary to look particularly into the laws of Yirginia, under which the title in question was derived,” &c. “ The title of Isaac Bowman (one of the complainants) was derived from the state of Yirginia, not only before Indiana was known as a territory, -but before the organization of the Northwestern Territory. His rights, whatever they were, can have been in no respect affected by the direct act of the territorial government, or of the state government which succeeded it.” On page 377, in the statement of facts, is the following, which forms the basis of the case. The complainants claim under Isaac Bowman. “ Bowman was attached to the regiment commanded by George Rogers Clark, and to whom the state of Yirginia granted 150,000 acres of land, lying northwest of the river Ohio. In the cession of lands to the United States, north of the Ohio river, by the state of Yirginia, this tract was reserved.” Now it is difficult to apply Justice McLean’s remarks to aught but this title and this state of things; and so viewing it, the case remains as one against the application of the common law rule even to the Ohio river. And if it is not to be so regarded, the case is still one against such application to any other of the great streams. The case of Handly’s Lessee v. Anthony, 5 Wheat. 376, teaches nothing on the question before us. It was ejectment in the federal court in Kentucky, for land claimed by the plaintiff under a grant from the state of Kentucky, and which the defendant claimed under a grant from the United States, as being a part of Indiana. It was a piece of land near or on the Indiana shore, which was an island when>the water was at a full or middling flow, but was left connected with the Indiana shore at low water. Chief Justice Marshall said: “ The title depends upon the question whether the lands lie in the state of Kentucky, or in the state of Indiana,” and the court held, that the state of Kentucky extended to low-water mark only, on the western or northwestern side of the Ohio. This was by virtue of the cession from Yirginia to the United States.

The cases of The City of Cincinnati v. White, 6 Pet. 432 ; Barclay v. Howell’s Lessee, 6 Pet. 499; The City of New Orleans v. United States, 10 Pet. 662, which have been cited) afford us no specific assistance. But time will not permit us to examine them.

The case of Pollard’s Lessee v. Hagan, 3 How. 213, however, does contribute to our views, in that it holds that, “the shores of navigable waters, and the soils under them, were not granted by the constitution of the United States, but were reserved to the states respectively; and the new states have the same rights, sovereignty and jurisdiction over this subject, as the original states.” And McKinley, J., in delivering the opinion of the court, says, page 229: “ Then to Alabama belong the navigable waters and the soils under them, in controversy in this case, subject to the rights surrendered by the constitution to the United States.” And again, page 280: “ To give to the United States the right to transfer to a citizen, the title to the shores and the soils under the navigable waters, would be placing in their hands a weapon, which might be «wielded greatly to the injury of state sovereignty, and deprive the state of the power to exercise a numerous and important class of police powers.” The above cause is re-examined and affirmed in Goodtitle v. Kibbe, 9 How. 471, where it is again held, that the title to the soil below high-water mark, in navigable waters, is in the state.

The case of Howard, v. Ingersoll et al., 18 How. 381, does not bear upon the present question. The plaintiff’s land had “ for its eastern boundary the state of Georgia,” as the bill of exceptions reads, And Wayne, J., in the opinion, says, “ The point for decision is one of boundary between the states of .Georgia and Alabama.” It related to the river Chattahoochee, which is believed not to be navigable in any sense in that part. At least, the question of its navigability-does not enter into the case at all.

,We desire to add a passage from the opinion of Chief Justice, Taney, in the case of the Propeller Genesee Chief v. Fitzhugh, 12 How. 448, in 1851, in which case was considered the question of the extension of the admiralty jurisdiction of the United States to navigable waters, other'than the tide waters. “Now there is nothing,” he.says, “in the ebb and flow of the tide, that makes the waters peculiarly suitable for admiralty jurisdiction, nor anything in the absence of a tide, that renders it unfit. If it is a public navigable water, on which commerce is carried on between different states or nations, the. reason for the jurisdiction is precisely the same; and if a distinction is made on that account, it is merely arbitrary, without any foundation in rea son; and, indeed, would seem to be inconsistent with it. In England, the writers and courts always speak of the jurisdiction as confined to tide water. And this definition, in England, was a- sound and reasonable one, because there was no navigable stream in the country, beyond the ebb and flow of the tide, nor any place where a port could be established to carry on trade with a foreign nation, and.where vessels could enter or depart with cargoes. In England, therefore, tide water and navigable water, are synonymous terms, and tide water, with a few small and unimportant exceptions, meant nothing more than public rivers, as contra-distinguished from private ones; and they took the ebb and flow of the tide as the test, because it was a convenient one, and more 'easily determined the character of the river. At the time of the adoption' of our constitution, the English definition was equally proper here. In the old thirteen states, the far greater part of the navigable waters are tide waters, &c. * * * * The courts of the United States,, therefore, naturally adopted the English mode of defining a public river, and consequently the boundary of admiralty jurisdiction. They measured it by tide water. And that definition, having found its way into our courts, became, after a time, a familiar mode of describing a public river, and was. repeated as cases occurred, without particularly examining ■whether it was as universally applicable in this country as in England. If there were no waters in the United States which are public, as contradistinguished from private, except where there is tide, then unquestionably, here as well as in England, tide water must be the ‘limit of admiralty power. And as the English definition was adopted in our courts, and constantly used in judicial proceedings, and forms of pleading, borrowed from England, the public character of the river was in process of time lost sight of, and the jurisdiction of the admiralty treated as if it were limited by the tide. The description of a public navigable river, was substituted in place of the thing intended to be described. And under the natural influence of precedents and established forms, a definition, originally correct, was adhered to and acted on, after it had ceased, from a change of circumstances, to be the true description of public waters.”

This large portion of attention has been given to the subject, from a conviction that the common' law rule is not applicable to the Mississippi river; and because the subject has not been discussed as it should be; the courts assuming the old rule, in many cases, sub silentio. By thus reviewing it, we trust that it has been made manifest that less weight is to be given to the old rule, than the mind would, at first, suppose, and that the way has been opening for its entire rejection from the noble waters of the west. It cannot be doubted, that by the common law, the riparian proprietor on navigable waters owned to highwater mark only. 2 ’Woolrych on W., 40-44; Angell on T. W., 22-24; Chapman v. Kimball, 9 Conn. 40, and authorities cited on 38.

What, now, is to carry us down to low water ? The plaintiff himself holds, that the common law rule is not applicable in its whole extent. And well he does so, for it would take away his island. But why shall we go to low water ? Is this common law ? and if it is not, what law is it ? It is apprehended that there is no such rule or principle, and that the instances where such a rule was adopted, were dependent on certain local circumstances. Chapman v. Kimball, 9 Conn. 38, stands upon a local common law or usage. The court announces the rule to be, that owners on navigable rivers own to high water, and no further; and that their local common law gave a right to build wharves, &c. In North Carolina and Tennessee, the statute makes this the line. Blanchard v. Collins, 11 O. 138, as well as the case in Indiana, was probably influenced by the fact, that that line was the bound of the state, as one of the cases intimates; and beyond question, Howard v. Ingersoll, 13 How. 381, was influenced by a similar fact; that is, by the line between Georgia and Alabama, which places the party’s bound on the top of the bank of the Chattahoochee.

One or two cases must be noticed, in order to show that they have not been overlooked. Emans v. Turnbull, 2 Johns. 313, is probably substantially answered by the doc trine in Gould v. Hudson River R. R. Co., 2 Seld. 522, which, holds that the riparian owner on the Hudson river, has no property in the shore between high and low water, entitling him to compensation when the state authorized the company to construct a road along the shore. And though the answer should not be deemed complete, still the former case could not be permitted to control the conclusion in the present one.

The case of Blundell v. Catterall, 5 B. & Ald. 268 (7 E. C. L. R. 91), cannot be passed in silence. It is a strange case, and much more, it is conceived, has been made of it than it warrants. All that was decided upon the question of the common law right, was clearly extra-judicial, and it sets up a doctrine which probably would not be listened to in this country; that is, that there is no common law right to bathe in the sea! The case is doubted and dissented from in many others, and an English writer, Hall, in his treatise on the rights of the crown, &c., finds much fault with it. The case finds that the lord of the manor, was the owner of the shore down to low water, and therefore it was, that the defendant had not the right to go over the shore with horses and carriages, and bathing machines, to the shore, for the purpose of bathing; and the judges in their several opinions, say that this is the only question, yet they go on to decide a much broader one, which was not involved. In its fullest extent, it does not help us to a conclusion on the present question. It would be extremely ungrateful to be obliged to determine a question of so much consequence as the one before us, upon the unreasoned, imperfect, and merely local views of some of the eastern cases, and upon what are no more than obita dicta. The only two cases relating to our large rivers, which seem to stand upon the common law rule, are Middleton v. Pritchard, 3 Scam. 510, and Morgan v. Reading, 3 S. & M. 366, which have the merit of carrying out the common law rule consistently, and not breaking it to pieces, and making a new one.

Although it should be that we have erred in the views taken of the foregoing cases, still we feel constrained to think, that in all that has been done in relation to this great river, it was intended to set it free from all trammels and technicalities, and to. make it a highway, and public, in a sense correspondent with the magnitude of the stream, and of the public interests therein. And all the reasoning which drives back the private owner from the middle of the stream, and demands an absolutely public water and. bed to low water, demands the same, precisely, up to high water. It is difficult in the extreme, to find the reasoning, if such there be, which departs from the common law rule as to the thread of the stream, and then stops at low water. The common law knows but two lines, the filum aquce, and high water. If the stream be navigable, the owner’s bound is the one; if not navigable, his bound is the other; and although there is some naked authority in favor of dividing betweeti them, there is none based upon legal rule or reasoning. By this review, it is perceived, that force and effect is 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 o the public lands; the declaration that these rivers shall forever remain highways, free to all citizens, &c. Aud 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 oases 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. But, under these views, and with a thought of how the terms “public highway” and “navigable,” are a hundred times used in relation to these rivers, how is it poa sible to clothe them with the narrow, straightening garments" of a technical-reasoning?

"When the Mississippi river was declared a public highway, in the solemn instruments before referred to, it was not in any technical sense, but in a high, broad, and free understanding ; and it was placed upon the same ground with a river navigable at common law. And as we cannot take the medium filum as our line, we think we are obeying the settled rules of law, in considering the stream as declared a navigable river in the legal sense, and as subject to the consequences which attach to such waters at common law. The conclusion, therefore, is that 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 even peculiar to himself, and not common. Nor does it ne'cessarily 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 wtere iuo ut alienum non lcedas, still holds; • and the powers of an action on the case, of indictment, and injunction, still remain.

The judgment of the District Court is reversed, and a writ oí procedendo will issue accordingly.

Stockton, X, not having heard the argument, took no part in. the decision, of this cause.