83 Tenn. 209 | Tenn. | 1885
delivered tbe opinion of the court.
Action commenced before a justice of the peace, “ for taking five loads of sand from the lands ’ of plaintiff,” and tried in the circuit court upon an agreed statement of facts. The trial judge rendered a judg
The defendant holds land, under a grant from the State of North Carolina, lying on both the French Broad and Tennessee or Holston Livers near their junction. The grant calls for the bank of the river at the point of junction of the two streams, thence up the south bank of the French Broad river with its meanders for the distance of half a mile, thence, after one or two calls, to the Tennessee or Holston river, thence up said river with its meanders to the beginning corner. Part of the sand was taken from the beds of,both rivers, in front of the land thus bounded, between low water mark and the center of the stream. Another part was taken from the bed of the French Broad river between the center of the stream and the low water mark of the north bank, being the bank of the stream opposite to that •called for by the defendant’s grant, and the judgment ■of the circuit court was for that part of the sand so taken. The plaintiff claims under a junior grant from the State of Tennessee, issued in 1870, for about 7,000 acres, which covers the bed and both banks of the French Broad and Tennessee rivers where the sand was taken, and in express terms grants to the plaintiff the exclusive privilege of taking from the bed of ■said streams, within the boundaries of the grant, sand, gravel, and other deposits found therein. The agreed facts show that both rivers, are navigable in a legal sense above and below the lands covered by the grants, and that the United States government has been for
Our courts, while adhering to the rule of the common law that the owners of th§ banks of streams not navigable in a legal sense take title to the center of the water, subject to the public easement for purposes of navigation, have adopted the civil law as to streams navigable in a legal sense, and held that the call in a grant for such a river, or for a point on its bank, and thence up or down with its meanders, carries title at most only to low water mark, the soil covered by the water, as well as the use of the •stream for the purpose of navigation, belonging to, and remaining in, the public: Elder v. Burrus, 6 Hum., 98; Martin v. Nance, 3 Head, 649; Stewart v. Clark, 2 Swan, 10; Posey v. James, 7 Lea, 98. Under these rulings, it is clear that the defendant has no title to the soil under the rivers called for by his grant below low water mark. And the only question raised by the agreed facts is whether the complainant’s grant gives him any better right. That grant not only covers the two rivers, but expressly undertakes to give the grantee the exclusive privilege of taking from the beds of those streams, within its boundaries, “sand, gravel and other deposits found therein.”
By the civil law, which we have adopted, the soil of a navigable stream covered by the water, as well as the use of the stream, belongs to the public. The title claimed by the plaintiff in this case to the
By the common law, the title to the soil under the waters, where the tide ebbs and flows, as well as the use of the waters, was vested in the sovereign for the public use: Hale de juremaris, chap. 3; Warren v. Matthews, 6 Mod., 73. The sovereign might, it seems, make grants of these waters, e. g., for the purpose of a fishery, subject to the use of the public for navigation: The Royal Fishery of the River Boyne, Davies’ Hep., 149. It is probable, as has been held by the Supreme Court of Mississippi, that the common law doctrine was borrowed from the law of nations, tidal waters being public highways for all nations, over which, consequently, the State only could hold title or exercise control: Steamboat Magnolia v. Marshall, 39 Miss., 109. The idea of the sovereign, as an individual, having any property right
This conclusion renders it unnecessary to determine whether the Legislature, under our Constitution, or upon general principles, could confer upon any individual or individuals a several and exclusive title to such property. “Navigable waters,” says Judge Cooley, “are for the use of all the citizens, and there cannot lawfully be any exclusive private appropriation of any portion of them”: Cooley Const. Lim., 736, citing a number of cases. The conclusion also renders it unnecessary to consider the. effect of the acts of Congress, making appropriations to improve the navigability of these streams, upon the right of the State to make
The judgment of the circuit court will be reversed, and a judgment rendered here in favor of the defendant against the plaintiff for the costs of the cause.