Abbot's ex'r v. Doe ex dem. Kennedy, 5 Ala. 393

Abbot's ex'r v. Doe ex dem. Kennedy

5 Ala. 393

Ala.

1843

Check Treatment

COLLIER, C. J.

The act of Congress of 1818, authorised the President of the United States, whenever, in his opinion, it was consistent with the public interest, to cause the ground whereon Fort Charlotte at Mobile stood, to be surveyed, and laid off into lots, with suitable streets, &c.; and when thus surveyed to sell the lоts at public sale. The defendant, in right of his testator, deduced a title to several of these lots, under the purchasers at the govеrnment sale, and claims the premises in question as a riparian proprietor. That the property sought to be recovered was below high water mark at the time the Fort Charlotte lots were sold, is not disputed: and the quesions are. 1. What right did those under whom the defendаnt’s testator claimed, acquire to the shore in virtue of their purchases of the contiguous land?' 2. Did the *395concession to McBoy, the act of Congress of 1832, and the patent ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍issued thereunder, invest the plaintiff with a paramount title?

The grantee of land from the government lying along navigable water acquires a right of soil to high-water mark. It is a well settled principle of the common law, that a person whose land is bounded by a stream of water which changes its course gradually by alluvial formations, shall still hold by the same boundary, including the aсcumulated soil. [New Orleans v. The United States, 10 Peters Rep. 717; Hagan & Campbell v. Cleaveland, 8 Porter’s Rep. 9, and cases there cited.] Angeli, in his treatise on Tide Wаters, argues to prove that it is allowable to make embankments on, or reclaim the shore, and appropriate it to рrivate purposes where the public are not incommoded. But admits that the common, which is founded on the civil law, recognizes thе State as the legal proprietor of the shore, in trust for the public, and entitled to judge whether artificial improvements will be prоmotive of the common right of enjoyment; and consequently may abate an intrusion as a public nuisance, or a purpresture: [pages 125, 133, 143.] The inference from the law, as we have stated it, is, that accretions ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍from natural causes become the soil of thе riparian proprietor, that his limits extend, or dimmish, according as the water may recede or trench upon his land. The State only claims a property in the shore, as the representative of the public, for purposes entirely conservative of the usufruct therein, and never destructive of it. This being the case, it would seem necessarily to follow, that the sovereign power can makе no disposition of the shore, by grant, or otherwise, prejudicial to the rights of those for whom it is holden in trust. This question was considered quite at length in the The Mayor, &c. of Mobile v. Eslava, [9 Porter’s Rep. 577,] in which it was held, that although it was competent for the King of Spain, in the exercisе of his unlimited powers, to grant the shore of the navigable waters in his American possessions, yet Congress was prevented, by the stipulatiоns with Alabama, from exercising such a power, since its admission into the Union.

At the time of the sale of the Fort Charlotts lots, the concеssion to McBoy was wholly inoperative, and would not have authoris-ed a recovery in an action of ejectment. [De La Croix v. Chamberlain, 12 Wheat. Rep. 599.] In fact, being subsequent in date to the treaty of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍St. Ildefonso, and not embraced by the stipulations

*396of the treaty of February, 1819, it was null and void, according to repeated decisions of the Supreme Court of the United States; [Foster & Elam v. Neilson, 2 Peters Rep. 254; Garcia v. Lee, 12 Peters Rep. 511; Keene v. Whitaker, et al. 14 Peters Rep. 170. See also Innerarity v. Byrne, 8 Porter’s Rep. 176; Pollard’s heirs v. Kibbe, 9 Porter’s Rep. 712; Doe, ex dem.; Pollard’s heirs v. Files, 3 Ala. Rep. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍N. S. 47; U. States v. Percheman, 7 Peters Rep. 51.] There can be no question, that the concession adduced by the plaintiff as a link in the title sought to be established, might be recognised by the United States; yet, it is conceivеd that no confirmation made subsequent to the sale of the Fort Charlotte lots would overreach and divest the riparian rights which the purchasers of them acquired. By granting the land to the shore, the government impliedly stipulated with the purchaser, that the shore should be his boundary, subject only to such changes as might be made, by the encroachment or recession of the water. The act of 1832 is merely confirmatory of the claim acquired from McBoy, and declares, “ that the confirmation of this claim, and the patent provided tо be issued shall not be held to interfere with any part of said tract, which may have been disposed of by the United States previous to thе passage of this act, and this act shall be held to be no more than a relinquishment of whatever title the United States may now have tо such tract of land.” This statute is set out in extenso in the patent, and the conveyance is made with a reservation of the paramount title of adverse claimants. This being the case, no question can arise as to the conclusiveness of the patent in a court of law; and the inquiry is, whether the purchasers of the Fort Charlotte lots, in virtue of a riparian proprietorship, became entitled to thе premises in controversy. From what we have already said, it results, that no subsequent grant by the government can operate to divest the defendant’s right to alluvion, or change his boundary by interposing another proprietor ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the soil between his land and the water. The terms of the act cited, forbid the idea that such an interference was contemplated.

The conclusions we have stated aрpear to us to be so fully supported by authority, that we have not thought it necessary to sustain them by an extended argument. Foster and Elam v. Neilson, re-affirmed as it is by the cases cited from 12 and 14 Peters, is not at all shaken by the elaborate argument contained *397in the seрarate opinion of Mr. Justice Baldwin, in Pollard’s heirs v. Kibbe, [14 Peters.] The view there taken, indicates the most laborious research, but in our judgment is exceedingly ill-timed. It seems to us with all deference, that it would have been quite as well if the learned Judge had contented himself with dissenting in Garcia v. Lee. The judgment in that case gave to the American interpretation of the treaty of 1819, a judicial sanction, irreversiblе, save only by the other departments of the government. Whether the construction of Spain was not the true one, or whether it was nоt demanded by that integrity which should characterize negotiations between independent nations, is an inquiry which the judiciary could not now еntertain without an inexcusable disregard of the maxim stare decisis. A departure from the course of decision as now established is also forbidden by thе consideration that it would probably unsettle titles to an incalculable extent; while many would be deprived of their rights by the operation of the statute of limitations.

The result is, that the judgment of the circuit court is reversed, and the cause remanded.