Thomas Middleton, appellant, v. Charles Pritchard et al., appellees, 3 Scam. 510

Scates, Justice, delivered the opinion of the Court: Trespass for cutting and carrying away timber. The title was admitted to be in the plaintiff to the east half of fractional

section thirteen, township five, north of the base line, and range ten west of the third principal meridian. The defendants admitted the cutting and carrying away the timber from an island, or peninsula of land in front of the above premises, and separated from it by a slough; but deny that the locus in quo is included in, and part of, the above fractional half section; and this is the only question for the determination of this Court. The Court below refused instructions asked by the plaintiff, and gave instructions for the defendants, and also refused the plaintiff a new trial. The eastern boundary line of the east half fractional

section above mentioned, extends to the bluff" bank of the Mississippi, below this island or peninsula, and at that point there is a bearing tree. There is no bearing tree to be found, where the other lines of said

section reach the river. The island or peninsula is separated from the main land by a slough, formed by a gradual slope from each side, through which the water of the river runs two or three months in the year. The main land is overflowed in high water. In low water the slough is dry, except some pools of standing water; and is filled with driftwood. The timber on the island and main land approaches within two or three rods of each other; part of the bed of the slough produces grass. The island and slough have not changed for the last thirty years.

They are not marked or mapped upon the plat of the government surveys. But it appears the surveyor of the government traced the courses and distances along the margin of the slough, next the main land, in order to estimate the quantity of land in the fraction; and which estimate did not include the locus in quo. But the plats in the land office, and Surveyor General’s office, have no line marking these courses and distances as a boundary. They are taken from the field notes of meandering, in the Surveyor General’s office.

The plaintiff claims to be bounded by the river, and as riparian proprietor, entitled to extend ad medium Jilum aquae. The grant is to be taken most strongly against the grantor. Where the Government has not reserved any right or interest that might pass by the grant, nor done any act showing an intention of reservation, such as platting or surveying, we must construe its grant most favorably for the grantee, and that it intended all that might pass by it. What will pass then by a grant bounded by a stream of water ? At the common law, this depended upon the character of the stream, or water.

If it were a navigable stream, or water, the riparian proprietor extended only to high water mark. If it were a stream not navigable, the rights of the riparian owner extended to the centre thread of the current. In the former case, the King or the Government is owner of the water, and the soil covered by it, for purposes of navigation, public and common to all for navigating or fishing, unless the King had this latter right exclusively; and the soil between low and high water mark, is a public common, for like purposes and uses.

In the latter case, the water, and the soil under it, to the centre of the current, as we'll as the right to fish there, are exclusively in the riparian owner. But to understand more fully the application of these principles to riparian ownership, it is necessary to advert to the distinction at common law, between streams navigable de facto, and those deemed to be so in law. At common law, only arms of the sea, and streams where the tide ebbs and flows, are deemed navigable. Streams above tide water, although navigable in fact at all times, or in freshets, were not deemed navigable in law.

To these, riparian proprietors bounded on or by the river, could acquire exclusive ownership in the soil, water and fishery, to the middle thread of the current ; subject, however, to the public easement of navigation. And this latter Chancellor Kent says, bears a perfect resemblance to public highways. The consequence of this doctrine is, that all grants bounded upon a river not navigable by the common law, entitle the grantee to all islands lying between the main land and the centre thread of the current.

And we feel bound so to construe grants by the Government, according to the principles of the common law, unless the Government has done some act to qualify or exclude the right. The maps, plats, and field notes of the governmental surveys, by reference, become a part of the evidences of title, to enable the grantee to identify his boundary and lands. So where islands are marked, mapped, platted, or surveyed ; or where lines are distinctly drawn on the plat, as bounding the front on rivers, lakes, or other waters; these distinct acts of the grantor, must explain, qualify, control, or determine the

interpretation, construction, and extent of the grant. Shall these common law principles be applied to such streams as the Mississippi, Ohio, Wabash, and Illinois? It is true there were no such navigable rivers above tide water in England, where these principles were first laid down, and applied to their waters ; and several of the States have repudiated these doctrines as inapplicable to the large inland navigable streams of this country. And many of the States, having similar streams, have adopted them. The United States have not repealed the common law as to the

interpretation of their own grants, nor explained what

interpretation or limitation should be given to, or imposed upon the terms of the ordinary conveyances which they use, except in a few special instances ; but these are left to the principles of law, and rules adopted by each local government, where the land may lie. We have adopted the common law, and must, therefore, apply its principles to the

interpretation of their grant. The United States have applied them to grants upon the Ohio river, extending the riparian ownership to low water mark, the boundary of jurisdiction, as well as the United States’ ownership of the land. The Government itself, through its agents, has recognised and applied the same principles. If the riparian owner cannot extend into the river, he must be bounded by high water mark, leaving as a public common, all the space between that and low water mark.

This would destroy the great value of river front lands, by excluding the proprietor from its exclusive use in keeping wood-yards, erecting private wharves, or buildings, which are. of greater or less value, according to their location and the depth of water.

We would not, however, wish to be understood as limiting the rights of navigators, to the bare privilege of floating upon the water, in the use of the public easement ; but understand it to include the right to land, and fasten to the shore, as the exigencies of the navigation may require; and this is a burthen upon the owner of the land which he must bear as part of the public easement. It is denied that this land is bounded upon the river. We think there can be no question on that point; the fact appears so clear.

There is no line upon the maps or plats, nor any direction in the field notes, nor any other visible monument to define and designate the southern boundary of the tract. It is true, the field notes of the meandering of the front of this tract, speak of it as the southerly boundary. But as I before remarked, the meandering is for the purpose of ascertaining the quantity of land. Should it be incorrect, still it would not entitle the party to a re-survey and new estimate. It is sold more or less. If there be more, the purchaser gets it; if it be less, he loses it. This, therefore, cannot control.

Many of the cases on this question of river boundary are much stronger for the plaintiff than the one before us. All alluvions belong to the riparian proprietor, both by the common and civil law. The same holds as to losses, by gradual washing away. But where a sudden change is made in the course of the river, so as to cut off a portion of one man’s land, he still retains the right and title to it. We are therefore of opinion that the Court misdirected the jury, and that a new trial ought to be granted.

The judgment is reversed with costs and the cause remanded, with directions to award a venire de novo. 5 Cowen 518, and note ; 3 Kent’s Com. 427, and authorities cited in both. 6 Cowen 537, chap. 3 of note ; 3 Kent’s Com. 427. 6 Cowen 539, note, chap. 3; 3 Kent’s Com. 430; 3 Ohio 496; 5 Wend. 463. 6 Cowen 537, note, chap. 1. 6 Cowen 540, chap. 4; 5 Wend. 443, 463, 6 Cowen'537,note. 4 Pick. 268 ; 5 Harris & Johns. 195; 7 Mass. 495; 3 Ohio Rep. 495; 5 Wend. 423. 3 Kent’s Com. 427, &c.; 6 Cowen 537, note; 6 Wend. 444. 3 Kent’s Com. 432. 3 Kent’s Com. 430. 3 Binn. 476; 3 Porter 440; 1 McCord 580; 14 Serg. & Rawle 71; 3 Dev. 30; 3 Dev. 59. 6 Cowen 518; 3 Caines 319; 3 Conn. 481; 30 Johns. 91; 17 Johns. 309,195; 1 Halstead, N.

J., 1; 6 Mass. 438; 13 Wend. 355 ; 4 Pick. 368; 5 Harris & Johns. 195; 7 Mass. 495; 3 Ohio 495; 5 Wend. 433; 3 Greenl. 369, 474; 13 Maine 301; 1 Rand. 417; 3 Rand. 33; 6 Martin 19. See Public Land Laws,

part 1, pp. 54, 56, 98,107, 187,195, 316, 310, 365, making certain streams not navigable, common to the proprietors on each bank. 4 Peters’ Cond. R. 691; Lessee of Blanchard ®. Porter Collins et al., MS. Opin. Sup. Ct. Ohio. U. S. Land Laws,

part 3, 758, No.730; Ibid,

part 1, p. 130, 6 3; p. 379, chap. 398, § 1. 13 Wend. 355 ; 3 Kent’s Com. 425; Civil Code Louisiana, Art. 443-6. So in Spain and France. See Kent's Com. Uli Supra. 14 Mass. 151. U. S. Land Laws,

part 1, p. 120, § 2. Cooper’s Just. 74; 6 Co wen 518, note, and authorities there referred to.