5 Ala. 393 | Ala. | 1843
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 lots at public sale. The defendant, in right of his testator, deduced a title to several of these lots, under the purchasers at the government 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 defendant’s testator claimed, acquire to the shore in virtue of their purchases of the contiguous land?' 2. Did the
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 accumulated 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 Waters, argues to prove that it is allowable to make embankments on, or reclaim the shore, and appropriate it to private purposes where the public are not incommoded. But admits that the common, which is founded on the civil law, recognizes the State as the legal proprietor of the shore, in trust for the public, and entitled to judge whether artificial improvements will be promotive 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 the 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 make 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 exercise of his unlimited powers, to grant the shore of the navigable waters in his American possessions, yet Congress was prevented, by the stipulations 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 concession 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
The conclusions we have stated appear 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
The result is, that the judgment of the circuit court is reversed, and the cause remanded.