8 Mo. App. 266 | Mo. Ct. App. | 1880
delivered the opinion of the court.
The petition alleges that defendant, as a municipal corporation created under the laws of Missouri, had charge of the duty of improving the streets and wharves of the city of St. Louis; that plaintiff, for the purpose of carrying on his steam saw-mill business, had acquired, and, at the time of the grievances complained of, owned a leasehold.
Défendant states in its answer that it is a municipal corporation, created in 1822, and that its western boundary has always been the Mississippi River; that the dike is a continuation of Bryan Street towards the eastern boundary •of the city, and entirely within the city limits ; that by .an act approved March 3, 1851, concerning swamp lands in St. Louis County, the State granted to defendant all lands owned by the State, not reserved for public purposes, within the city limits; and that the United States, by act of June 12, 1866, granted to defendant, in fee-simple, all the right and title of the United States to all wharves and public thoroughfares within the city ; and that, by the city charter of 1870, defendant was authorized to construct all needful improvements in the harbor, comprising the bed, channels, bayous, bars, and islands of the river from the Missouri to the Meramec, to deflect the currents of the river, and régulate and repair public wharves and docks; that at the time of the alleged injuries the public wharf was, and had long been, established and opened in front of these premises, and included the -landing in question north and south, and east as far as the Bryan Street dike extends ; that Bryan Street, before the date named by plaintiff, was a duly established public street, extending over seven hundred feet into the river and to the east line of the wharf; that before the alleged grievances Bryan Street was constructed only to the water’s edge, and that defendant, being so authorized to do, for the purpose of completing Bryan Street and of deflecting the dangerous current, constructed the street so far as it had been lawfully established; and that this is the dike complained of.
The replication denies all allegations of new matter. There was a verdict and judgment for plaintiff for $35,000.
On the trial, plaintiff introduced evidence tending to prove the allegations of his petition. That he had, before
As a riparian proprietor, plaintiff owned the land to the water’s edge. Under the acts of the Congress and the system of surveys adopted by the United States, the Mississippi River is a navigable stream. Benson v. Morrow, 61 Mo. 351. The question of the ownership of the soil under it and other great navigable streams of the United States is one that has been differently settled in different States. Some States hold that the riparian proprietor owns usque ad filum aquae; other States hold that he owns only to the water’s edge. The question of the ownership of the soil under the water is one which each State is at liberty to determine for itself; and if it chooses to concede the right of the riparian owner to the centre of the stream, it is not for others to raise objection, as is said by the Supreme Court of the United States in Barney v. Keokuk, 94 U. S. 324. In Missouri, the riparian proprietor owns only to the water’s edge. Benson v. Morrow, supra. This can make little difference in the present case — or, we conceive, in any case. The right to use the stream as a public highway is not involved. That right exists in the public, wherever the title terminates.
“Whether the title of the owner of such a lot extends beyond the dry land or not, he is certainly entitled to the rights of a riparian proprietor whose land is bounded by a navigable stream; and, among those rights, one is access to the navigable part of the river from the front of his lot — the right to make a landing, wharf, or pier, subject to such general rules and regulations as the Legislature may see fit to impose for the protection of the rights of the pub-
Undoubtedly, at common law, both in England and America, and under the common law and civil law doctrines as modified after the system of surveys established after the acquisition of the North-West Territory, every person owning on the banks of the Mississippi has a right that it should flow ubi eurrere solebat. Bealey v. Shaw, 6 East,
And this right was the property of the plaintiff. “ It is a right,” says the Supreme Court of the United States, in Yates v. Milwaukee (supra), “ of which, when once vested, the owner can only be deprived in accordance with established law ; and, if necessary that it be taken for the public good, upon just compensation.” “Such riparian rights,” says Judge McLean in Bowman v. Wathen, 2 McLean, 376, “ frequently constitute the chief value of river property, and to deprive an owner of them without compensation is to despoil him of a most valuable property.”
That the destruction of the riparian right qf plaintiff was such a taking of pi'ivate property as to come'within the limitation on the exercise of the right of eminent domain contained in the State Constitution is clear, we think, both on reason and authority. On this point we may refer to most of the cases cited above, and also to Pumpelly v. Green Bay Company, 13 Wall. 166 ; Eaton v. Boston, etc., Railroad Company, 51 N. H. 504 (where the leading cases on the question as to what constitutes a taking of property, within the meaning of- the constitutional limitation, are most exhaustively considered and carefully classified), and Commissioners v. Kempshall, 26 Wend. 404.
It is urged that it is the settled doctrine in this State that a municipal corporation, in the absence of negligence,
The owner of land through which a stream of water flows has no property in the water, though he has a legal right to the use of the water; and this is property of which he cannot be deprived without just compensation, without his consent. At a time when the Constitution of New York contained no provision against taking private property for public purposes without compensation, Chancellor Kent
When it is settled that riparian rights are property, — and of this there seems to be no doubt, — the question as to the right to take them without compensation is at an end.
We are referred to the Northern Transportation Company v. Chicago, a case recently decided by the Supreme Court of the United States, and not yet reported. But that case does not seem to overrule Yates v. Milwaukee and the other cases cited above. The case was one of obstruction to a street by the city, by building a coffer-dam. The court decides that this was not a public nuisance, because authorized by law. The inconvenience was temporary. If the owner had been permanently deprived of the use of the street, the case would have been different. In that case, under the ruling of our Supreme Court in Lackland v. North
There is nothing in the defence that the river was diverted to make a new wharf-line. The charter of the city in force at the time (art. 8, sect. 1) provides that “whenever the city shall provide, by ordinance, for establishing * * * or altering any *' * * wharf, * * * and it becomes necessary for that purpose to take private property, just compensation shall-be paid to the owner.”
We think that the judgment of the Circuit Court should be affirmed. It is so ordered.