Gibson v. Kelly

15 Mont. 417 | Mont. | 1895

De Witt, J.

— This case presents a proposition which is wholly new in this state, and one which, for a century past, has commanded the interest and learning of the ablest of the ■United States and state courts. The question is simply stated: If one’s land be bounded by a navigable river, does his title extend ad filum medium aquae, or to the low-water mark, or to the high-water mark? The legal literature upon this subject in this country is rich in research, reasoning, and learning. In fact the matter has been so extensively treated that at this late day, when a new state is called upon to fix the rule, there is nothing left to say upon the subject, either new or original; and the labors of a court are perhaps nothing more than to select from the three rules which have heretofore been adopted in different jurisdictions that which may be deemed to be the one which, under all the circumstances, should obtain in this state.

Under thecommon law navigable water was that which ebbed and flowed with the tides of the ocean. Upon navigable water the abutting land-owner had title to high-water mark. Upon non-navigable streams the abutting land-owner had title ad filum medium aquas. In some of the original thirteen states which lay along the seashore, and where streams navigable in fact were generally those in which the tide ebbed and flowed, the common-law rule was adopted. But when, early in this century, the great tide of emigration began to flow westward and follow the mighty watercourses of the continent, it soon became apparent that the common-law rule could not be applied to the great rivers navigable in fact, and one of which alone is in fact navigable above tide water for a distance which would several times girdle the ancient home of the common law. The common law was therefore modified, and the rule is now established by the overwhelming weight of American authority that a stream navigable in fact is navigable in law. For the history of the development, up to the year 1856, of this American rule, we refer to that profoundly learned treatise found in McManus v. Carmichael, 3 Iowa, 1, in which case the supreme court of Iowa, with the aid of able counsel, exhausted the whole subject.

With the adoption of this rule the doctrine that the riparian owner’s title to the land bounded by a river nontidal, although navigable in fact, runs ad filum, was also generally repudiated.

But at this point the courts of different states have followed different paths. One group of states holds that the abutting title goes to high-water mark, and the other group holds that it extends to low-water mark. On this line the battle of decisions has waged since a period long prior to the time when the waters of our state were made the servants of commerce. Argument, history, reasoning, and politics have been called to the aid of the advocates of the two doctrines. (See the interesting collection of cases in the briefs of counsel in this case.)

As we, among the last commonwealths of the union, approach a solution of this question, it would be interesting, but in view of what has been done by scores of able courts before us, it would probably not be instructive or important, to make an excursion through this field, where the footprints of our remote predecessors have long ago been beaten into plain paths by those who are even now to us ancient explorers.

But in selecting into which one of these paths we shall turn the course of jurisprudence of this state it would, were it not for a matter which we will mention below, be appropriate that we briefly state our reasons why we deem one rule rather than the other to be justified or demanded by our history, circumstances, geography, and topography, and by the fact that the common law, so far as the same is applicable and of a general nature, is adopted and in force in this state, until repealed by legislative authority.

We have concluded, after a review of the decisions of other states upon this subject, that, upon reason and authority, and in view of all the circumstances of this state, we are fully justified in holding that the boundary of land bordering upon a navigable river should, whenever another intent is not expressed, be held to extend to the ordinary low-water mark. We refrain from an elaborate presentation of our grounds for this holding, for the reasons suggested above, and also for the reason that the rule thus announced by decision will become, in a few months, the rule by statute.

This state is just about to enter upon a fully developed code era. The legislative assembly has just adopted a code of civil procedure, a civil code, a penal code, and a political code, prepared by commissioners during the labors of several years past. The law adopting the civil code was approved by the governor February 19, 1895. This code is to take effect and become the law on July 1, 1895. This subject of land being bounded by a navigable river is settled for the future by the Civil Code. The code commission and the legislature had before them the legal literature and learning to which we have above referred, and as a result they have adopted the rule of the low-water mark. Section 772 of the Civil Code is [as follows: “Except where the grant under which the land is held indicates a different intent, the owner of the land, when it borders upon a navigable lake or stream, takes to the edge of the lake or stream at low-water mark; when it borders upon any other water, the owner takes to the middle of the lake or stream.”

This rule will be the law on the first day of July, 1895. We are also of opinion, as above stated, that it is the wisest and most expedient rule. We are thus, by the view which we take of the reason and authority for the rule of the low-water mark, enabled to leave the law in this important matter so that it will suffer no change by the adoption of the Civil Code. We, therefore, for the reasons given, shall follow the decisions of those courts which hold that the title of one owning land bounded simply by a navigable river extends to the ordinary low-water mark.

Another matter, perhaps, should be noticed: Defendant claims in his argument that ejectment is not the proper remedy. He asserts that he has rights as a navigator or a fisherman upon the strip of land between the high-water and low-water mark, and that, having such rights, he cannot be ejected from that strip of land. It is true that while the abutting owner owns to the low-water mark on navigable rivers, still the public have certain rights of navigation and fishery upon the river and upon the strip in question. But no such case as that is made in the pleadings. Defendant does not claim any right whatever to be upon this strip of land for the purposes of navigation or fishery. His defense is clearly made upon the issue that plaintiff has no title whatever to the strip, and therefore he cannot recover possession of the same. Upon this issue we have to hold against the defendant. By the pleadings it appears that defendant had excluded plaintiff from the possession of the ground, and is in possession himself, generally, if it may be so expressed, and that he is not there claiming rights as a navigator or fisherman. The rights of navigation or of fishing are not at all involved in these pleadings. Therefore, the plaintiff owning this strip of land, subject only to the public use of navigation and fishing, which are not here concerned, and defendant having no claim or color or pretence of title or right of possession, it is difficult to see why ejectment would not lie.

It was said in Rice v. Rodman, 10 Mich. 130, by Martin, C. J., in a concurring opinion as follows: “I think the rights of riparian proprietors upon our interior lakes .... are the same as those of proprietors upon navigable streams. They have the right to construct buildings, wharves, and other improvements in front of their lands, so long as the public servitude is not thereby impaired; they are a part of the realty to which they attach and pass with it. Certainly no one can occupy for his individual purposes the water-front of such riparian proprietor, and the attempt of any person to do so would be trespass.” (See, also, Berry v. Snyder, 3 Bush, 266; Hannaford v. St. Paul etc. Co., 43 Minn. 104; Ball v. Slack, 2 Whart. 508.)

We are therefore of the opinion that the demurrer to the answer was properly sustained, and the judgment for the plaintiff is accordingly affirmed.

Affirmed.

Hunt, J., concurs.