County of St. Clair v. Lovingston

Mr. Justice S WAYNE delivered the opinion of the court.

We shall assume, for the pui’poses of this opinion, that all the title which could be passed by Congi’ess and the State was and is vested in the plaintiff in error.

It is not denied, on the other hand, that a valid title to the surveys 579 and 786 is vested in those under whom the defendant in. error holds.

Two questions ai’e thus presented for our determination :

One is, whether the river-line was the’original west boundary of the surveys, or either of them ?

Tiie othex’, if this inquii’y be answered in the affirmative, is, to whom the accretion belongs ?

The fii’st is a mixed question of law and fact. The second is a question of law.

Before entex’ing upon the examination of the first of these questions, it may be well to advex't to a few of the leading authorities apposite to this phase of the case.

It is a universal rule that course and distance yield to natural and ascertained objects.

* A call for a natural object, as a river, a spring, or even a marked line, will control both course and distance.

† Artificial and natural objects called for, have the same effect.

‡ In a case of doubtful construction, the claim of the party in actual possession ought to be maintained, especially where it has been upheld by the decision of the State tribuuals.

§ In Bruce v. Taylor, ǁ a patent called “ to begin on the Ohio *63 River, and then for certain courses and distances, without any corners or marked lines, to the mouth of the Kennikek, and then certain courses and distances, without any courses or marked lines, to a stake in the Ohio River.” If the river was the boundary, the land in controversy was within the patent. If the courses and distances prevailed, the patent did not affect it. The court said: “ It is our opinion that the river is the boundary.” It was added: “ Two of the calls are on the river. There are no intermediate marked lines or corners. The general description is, ‘ to lie on the Ohio.’ These facts alone would not leave room for any other construction of the patent.” This case is very instructive, and contains much additional argument in support of the view expressed.

Cockrell v. McQuinn * is to the same effect. In the latter case the court said: “None will pretend that the legal construction of a patent is not a matter proper for the decision of the court whose province it is to decide all questions of law.” - In Bruce v. Morgan, † - the rule laid down in Bruce v. Taylor was affirmed.

Where a survey and pateut show a river to be one of the boundaries of the tract, it is a legal deduction that there is no vacant land left for appropriation between the river and the river boundary of such tract.

‡ Where a deed calls for a corner standing on the bank of a creek, “ thence down said creek with the meanders thereof,” the boundary is low-water mark.

§ Where a deed calls for an object on the bank of a stream, “thence south, thence east, thence north to the bank of the stream, and with the course of the bank to the place of beginning,” the stream at low-water mark is the boundary.

ǁ Where the line around the land was described as “ running to a stake at the river, thence on the river N. 6° 40' 23 perches, thence N. 39° 50' W. 33 perches, thence N. 20° 20', *64 35 perches and 8 links to a stake by the river,” it was held that this description made the river a boundary.

* Where premises above tide-water are described as bounded by a monument standing on the bauk of the river, and a course is given as running from it down the river as it winds and turns to another monument, the grantee takes usque filium aquce, unless the river be expressly excluded from the grant by the terms of the deed.

† The eastern line of the city of St. Louis, as it was incorporated in 1807, is as follows: “ From the Sugar Loaf east to the Mississippi, from thence by the Mississippi to the place first mentioned.” This court held that the call made the city a riparian proprietor upon the river.

‡ It was said in this connection that “many authorities resting on adjudged cases have been adduced to us in the printed argument, presented by the counsel for the defendant in error, to show that, from the days of Sir Matthew Hale to the present time, all grants of land bounded on fresh-water rivers, where the expressions designating the water-line are general, confer proprietorship on the grantee to the middle of the stream, and entitle him to the accretions. We think this, as a general rule, too well settled, as part of the English and American law of real property, to be open to discussion.”

It may be considered a canon in American jurisprudence, that where the calls in a conveyance of land, are for two corners at, in, or on a stream or its bank, and there is an intermediate line extending from one such corner to the other, the stream is the boundary, unless there is something which excludes the operation of this rule by showing that the intention of the parties was otherwise. Whether in the present case the limit of the laud was low-water, or the middle thread of the river, is a question which does not *65 arise, and to which we have given no consideration. The point was considered by this court in Railroad v. Schurmier * Survey 579 is the elder one. Its calls are: “ Beginning on the bank of the Mississippi River, opposite to St. Louis, from which the lower window of the United States storehouse in St. Louis bears N. 70¾ W.; thence S. 5 west 160 poles to a point in the river from which a sycamore 20 inches in diameter bears S. 85 E. 250 links, thence S. 85 E. 130 poles (at 30 poles a slash) to a point; thence N. 15 W. 170 poles to a forked elm on the bank of Cahokia Creek; thence N. 85 "W. 70 poles to the beginning.”

It will be observed that the beginning corner is on the bank of the river; The second corner is a point in the river. The line between them is a straight one. Where the course as described would have fixed the line does not appear.

There was an obvious benefit in having the entire front of the land extend to the water’s edge. There was no previous survey or ownership by another to prevent this from being done. No sensible reason can be imagined for having the two corners on the river, and the intermediate line deflect from it. Under the circumstances we cannot doubt that the river was intended to be made, and was made, the west line of the survey. . In the light of the facts such is our construction of the calls of the survey, and we give them that effect.

The calls of survey No. 786, as respects this subject, are: “ Thence N. 85° W. 174 poles, to a post on the bank of the Mississippi River, from which . . . ;

thence N.

5° E. up the Mississippi River and binding therewith (passing the southwesterly corner of Nicholas Jarrot’s survey, No. 579, claim No. 99, at 6 poles), 551 poles and 10 links, to a post northwesterly corner of Nicholas Jarrot’s survey, No. —, claim No. 100, from which a sycamore 36 inches diameter bears S. 21° W. 29 links; thence S. 85° E. with the upper line of the last-mentioned survey 88 poles to the beginning.”

Here the calls as to the river are more explicit than in *66 survey No. 579. The language “ up the Mississippi River and binding thereon,” leaves no room for doubt. Discussion is unnecessary. It could not make the result clearer. The river must be held to have been the west boundary of this survey also.

In reaching these views we pervert no principle of law or justice. Our conclusions are sustained by authority and reason.

This brings us to the consideration of the second question.

It is insisted by the learned counsel for the plaintiff in error that the accretion was caused wholly by obstructions placed in the river above, and that hence the rules upon the subject of alluvion do not apply. If the fact be so, the consequence does not follow. There is no warrant for the proposition. The proximate cause was the deposits made by the water. The law looks no further. Whether the flow of the water was natural or affected by artificial means is immaterial.

* The law in cases of alluvion is well settled.

In the Institutes of Justinian it is said: “ Moreover, the alluvial soil added by a river to your land becomes yours by the law of nations. Alluvion is an imperceptible increase, and that is added by alluvion which is added so gradually that no one can perceive how much is added at any one moment of time.”

† The surveys here in question were not within the category of the agri limitati of the civil law. The latter were lands belonging to the state by right of conquest and granted or sold in plats. The increase by alluvion, in such cases did not belong to the owner of the adjoining plat.

‡ The Code Napoleon declares:

“Accumulations and increase of mud formed successively and imperceptibly on the soil bordering on a river or other *67 stream is denominated ‘ alluvion.’ Alluvion is for the benefit of the proprietor of the shore, whether in respect of a river, a navigable stream, or one admitting floats or not; on the condition, in the first place, of leaving a landing-place or towing path conformably to regulations.”

* Such was the law of France before the Code Napoleon was adopted.

† And such was the law of Spain.

‡ Blaekstone thus lays down the rule of the common law:

“ And as to lands gained from the sea, either by alluvion, by the washing up of land and earth, so as in time to make terra firma, or by dereliction, as when the' sea shrinks below the usual water-marks; in these cases the law is held to be that if the gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining. For de minimis non curat lex;

and besides, these owners being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is, therefore, a reciprocal consideration for such possible charge or loss. But if the alluvion be sudden or considerable, in this case it belongs to the king; for, as the king is lord of the sea, and so owner of the soil while it is covered with water, it is but reasonable he should have the soil when the water has left it dry.”

§ Blaekstone takes his definition from Bracton, lib. 2, chap. 2. Bracton was a judge in the reign of Henry III, and the greatest authority of his time. Hale, in his De Jure Maris, says Bracton followed the civil law. Hale himself shows the great antiquity of the rule in the English law.

ǁ Chancellor Kent, the American commentator, recognizes the rule as it is laid down by the English authorities referred to ¶ *68 By the American Revolution the people of each State, in their sovereign character, acquired the absolute right to all their navigable waters and the soil under them.

* The shores of navigable waters, and.the soil under them were not granted by the Constitution to the United States, but were reserved to the States respectively. And new States have the same rights of sovereignty and jurisdiction over this subject as the original ones.

† The question here under consideration is not a new one in this court. In New Orleans v. The United States, ‡ it was said: “ The question is well settled at common law that the person whose land is bounded by a stream of water which changes its course gradually by alluvial formations, shall still hold the same boundary, including the accumulated soil. No other rule can be applied on just principles. Every proprietor whose land is thus bounded is subject to loss bj' the same means which may add to his territory, and as he is without remedy for his loss in this way he cannot be held accountable for his gain.”

To the same effect are Saulet v. Shepherd, § and Schools v. Risley.

ǁ In the light of the authorities alluvion may be defined as an addition to riparian land, gradually and imperceptibly made by the water to which the land is contiguous. It is different from reliction, and is the opposite of avulsion. The test as to what is gradual and imperceptible in the sense of the rule is, that though the witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on. Whether it is the effect of natural or artificial causes makes no difference. The result as to the ownership in either case is the same. The riparian right to future alluvion is a vested right. It is an inherent and essential attribute of the original property.

*69 The title to the increment rests in the law of nature. It is the same with that of the owner of a tree to its fruits, and of the owner of flocks and herds to their natural increase. The right is a natural, not a civil one. The maxim “qui sentit onus debet sentiré comniodum ” lies at its foundation. The owner takes the chances of injury and of benefit arising from the situation of the property. If there be a gradual loss, he must bear it; if a gradual gain, it is his. The principle applies alike to streams that do, and to those that do not overflow their banks, and where dykes and other der fences are, and where they are not, necessary to keep the water within its proper limits.

* In England the rule which is applied to gradual accretions on the shores of fresh waters is applied also to such accretions on the shores of the sea.

† We may well hold that the adjudications of this court to which we have referred are decisive of the case before us. They are binding upon us as authority. We are of the opinion that the United States never had any title to the premises in controversy, and that nothing passed by the several acts of Congress and of the legislature of Illinois, relied upon by the plaintiff in error.

Judgments affirmed.

* Preston’s Heirs v. Bowmar, 6 Wheaton, 580 .

† Newsom v. Pryor’s Lessee, 7 Id. 7.

‡ Barclay and others v. Howell’s Lessee, 6 Peters, 499 ; Baxter v. Evett’a Lessee, 7 Monroe, 333.

§ Preston’s Heirs v. Bowmar, supra.

ǁ 2 J. J. Marshall, 160.

* 4 Monroe, 62.

† 1 B. Monroe, 26.

‡ Churchill v. Grundy, 5 Dana, 100 .

§ McCullock’s Lessee v. Aten, 2 Ohio, 309; see, also, Handly’s Lessee v. Anthony, 5 Wheaton, 380 .

ǁ Lamb v. Rickets, 11 Ohio, 311.

* Rix v. Johnson, 5 New Hampshire, 520.

† Luce v. Carley, 24 Wendell, 451 .

‡ Jones v. Soulard, 24 Howard, 44 ; see, also, Schurmeier v. St. Paul and Pacific Railroad, 10 Minnesota, 830, and Shelton et al.

v. Maupin, 16 Missouri, 124.

* 7 Wallace, 287.

* Halsey v. McCormick, 18 New York, 147; 3 Washburne on Real Property, 58, 353*.

† Lib. II, Tit. I, § 20.

‡ D. XLI, 1, 16; Sanders’s Institutes, 177; see, also, Morgan v. Livingston, 6 Martin’s Louisiana, 251.

* Book II, of Property, &c., § 556.

† 4 Nouveau Dictionnaire de Brillon, 278; Morgan v. Livingston et al., 6 Martin, 243 .

‡ Partid, iii, tit. xxviii, Law 26.

§ 2 Commentaries, 262; see, also, Woolwich’s Law of Waters, 34; and Shultes’s Aquatic Rights, 116.

ǁ De Jure Maris, 1st pt., ch. 6; see, also, The King v. Lord Yarborough, 1 Dow & Clark, Appeal Cases, 287.

¶ 3 Commentaries, 428.

* Martin v. Waddell, 16 Peters, 367 ; Russel v. The Jersey Co., 15 Howard, 426 .

† Pollard’s Lessee v. Hagan et al., 3 Howard, 212 ; Pollard v. Kibbe, 9 Id. 471; Hallett v. Bute, 13 Id. 25; Withers v. Buckley, 20 Id. 84.

‡ 10 Peters, 662 .

§ 4 Wallace, 502.

ǁ 10 Id. 110.

* 3 Washburne on Real Property, 58, *452; Municipality No 2 v. Orleans Cotton Press, 18 Louisiana Rep. 122.

† The King v. Lord Yarborough, 3 Dow & Clark’s Appeal Cases, 178.