4 Ill. 510 | Ill. | 1842
Lead Opinion
delivered the opinion of the Court:
Trespass for cutting and carrying away timber. The title was admitted to be in the plaintiff to the east half of fractional section thirteen, township five, north of the base line, and range ten west of the third principal meridian. The defendants admitted the cutting and carrying away the timber from an island, or peninsula of land in front of the above premises, and separated from it by a slough; but deny that the locus in quo is included in, and part of, the above fractional half section; and this is the only question for the determination of this Court.
The Court below refused instructions asked by the plaintiff, and gave instructions for the defendants, and also refused the plaintiff a new trial.
The eastern boundary line of the east half fractional section above mentioned, extends to the bluff" bank of the Mississippi, below this island or peninsula, and at that point there is a bearing tree. There is no bearing tree to be found, where the other lines of said section reach the river.
The island or peninsula is separated from the main land by a slough, formed by a gradual slope from each side, through which the water of the river runs two or three months in the year. The main land is overflowed in high water. In low water the slough is dry, except some pools of standing water; and is filled with driftwood. The timber on the island and main land approaches within two or three rods of each other; part of the bed of the slough produces grass. The island and slough have not changed for the last thirty years. They are not marked or mapped upon the plat of the government surveys. But it appears the surveyor of the government traced the courses and distances along the margin of the slough, next the main land, in order to estimate the quantity of land in the fraction; and which estimate did not include the locus in quo. But the plats in the land office, and Surveyor General’s office, have no line marking these courses and distances as a boundary. They are taken from the field notes of meandering, in the Surveyor General’s office. The plaintiff claims to be bounded by the river, and as riparian proprietor, entitled to extend ad medium Jilum aquae. The grant is to be taken most strongly against the grantor. Where the Government has not reserved any right or interest that might pass by the grant, nor done any act showing an intention of reservation, such as platting or surveying, we must construe its grant most favorably for the grantee, and that it intended all that might pass by it. What will pass then by a grant bounded by a stream of water ? At the common law, this depended upon the character of the stream, or water. If it were a navigable stream, or water, the riparian proprietor extended only to high water mark.
But to understand more fully the application of these principles to riparian ownership, it is necessary to advert to the distinction at common law, between streams navigable de facto, and those deemed to be so in law.
At common law, only arms of the sea, and streams where the tide ebbs and flows, are deemed navigable.
Shall these common law principles be applied to such streams as the Mississippi, Ohio, Wabash, and Illinois? It is true there were no such navigable rivers above tide water in England, where these principles were first laid down, and applied to their waters ; and several of the States have repudiated these doctrines as inapplicable to the large inland navigable streams of this country.
The United States have not repealed the common law as to the interpretation of their own grants, nor explained what interpretation or limitation should be given to, or imposed upon the terms of the ordinary conveyances which they use, except in a few special instances ;
If the riparian owner cannot extend into the river, he must be bounded by high water mark, leaving as a public common, all the space between that and low water mark. This would destroy the great value of river front lands, by excluding the proprietor from its exclusive use in keeping wood-yards, erecting private wharves, or buildings, which are. of greater or less value, according to their location and the depth of water. We would not, however, wish to be understood as limiting the rights of navigators, to the bare privilege of floating upon the water, in the use of the public easement ; but understand it to include the right to land, and fasten to the shore, as the exigencies of the navigation may require; and this is a burthen upon the owner of the land which he must bear as part of the public easement.
It is denied that this land is bounded upon the river. We think there can be no question on that point; the fact appears so clear. There is no line upon the maps or plats, nor any direction in the field notes, nor any other visible monument to define and designate the southern boundary of the tract.
All alluvions belong to the riparian proprietor, both by the common and civil law.
We are therefore of opinion that the Court misdirected the jury, and that a new trial ought to be granted.
The judgment is reversed with costs and the cause remanded, with directions to award a venire de novo.
5 Cowen 518, and note ; 3 Kent’s Com. 427, and authorities cited in both.
6 Cowen 537, chap. 3 of note ; 3 Kent’s Com. 427.
6 Cowen 539, note, chap. 3; 3 Kent’s Com. 430; 3 Ohio 496; 5 Wend. 463.
6 Cowen 537, note, chap. 1.
6 Cowen 540, chap. 4; 5 Wend. 443, 463,
6 Cowen'537,note.
4 Pick. 268 ; 5 Harris & Johns. 195; 7 Mass. 495; 3 Ohio Rep. 495; 5 Wend. 423.
3 Kent’s Com. 427, &c.; 6 Cowen 537, note; 6 Wend. 444.
3 Kent’s Com. 432.
3 Kent’s Com. 430.
3 Binn. 476; 3 Porter 440; 1 McCord 580; 14 Serg. & Rawle 71; 3 Dev. 30; 3 Dev. 59.
6 Cowen 518; 3 Caines 319; 3 Conn. 481; 30 Johns. 91; 17 Johns. 309,195; 1 Halstead, N. J., 1; 6 Mass. 438; 13 Wend. 355 ; 4 Pick. 368; 5 Harris & Johns. 195; 7 Mass. 495; 3 Ohio 495; 5 Wend. 433; 3 Greenl. 369, 474; 13 Maine 301; 1 Rand. 417; 3 Rand. 33; 6 Martin 19.
See Public Land Laws, part 1, pp. 54, 56, 98,107, 187,195, 316, 310, 365, making certain streams not navigable, common to the proprietors on each bank.
4 Peters’ Cond. R. 691; Lessee of Blanchard ®. Porter Collins et al., MS. Opin. Sup. Ct. Ohio.
U. S. Land Laws, part 3, 758, No.730; Ibid, part 1, p. 130, 6 3; p. 379, chap. 398, § 1.
13 Wend. 355 ; 3 Kent’s Com. 425; Civil Code Louisiana, Art. 443-6. So in Spain and France. See Kent's Com. Uli Supra.
U. S. Land Laws, part 1, p. 120, § 2.
Cooper’s Just. 74; 6 Co wen 518, note, and authorities there referred to.
Concurrence Opinion
delivered the following separate opinion:
I concur in the decision of this case, and in the general principles laid down by the Court, but I cannot concur in the conclusions drawn from them. A grant of land upon a river, extends the title of the grantee to the middle of the same, if the grantor has authority to extend it so far, unless limited to another boundary by express terms. This is a general principle of the common law applicable to private conveyances, which are construed most strongly against the grantor. But there are exceptions to this rule. It does not apply to boundaries of States, or countries, nor in England, to grants made by the crown, and in this country, I think, the rule must be so far modified as not to allow a patent from the Government to land on the margin of one of our rivers, to include the islands between the shore and the middle of the stream. This opinion is founded upon a consideration of the power of the agents of the Government, who sell the public lands, and the intention of the Government, as to the extent of those sales, in reference to islands.
If an island is not surveyed and platted, or otherwise marked upon the surveyor’s map, it is said that it will pass to the purchaser of the land on the margin of the river opposite to it, if it lies between such land and the middle of the river. The first objection to such an interpretation of a sale of land upon a river, by the agents of the Government, is a want of authority in them to give it so extensive an operation. The land authorized to be sold, and the mode of selling it, is prescribed by law, and all sales in violation of that, are void. Among the regulations prescribed by law, as indispensable preliminaries to a valid sale of any part of the public lands, are, that the lands shall be surveyed and platted; and these surveys and plats are the guides of the land officers in making their sales. They have no authority to sell a single acre that has not been surveyed. Every tract of land liable to sale, is specifically described by range, township, and section, &c., on the plats of the surveyor, and in the patents from the United States; and the officers have no authority to sell any other land. It follows, therefore, as a necessary consequence, that islands, as well as other lands, that have not been surveyed and platted as the law requires, cannot be sold. It has no description known to the law. And as such lands or islands cannot be sold directly, by numbers, as other lands are, it is clear to my mind, that they cannot pass as incident to the sale of other land. That cannot be effected indirectly, and by intendment of law, which the law expressly forbids.
Another reason against a purchaser from the Government of land on the margin of a river, acquiring title to islands between his land and the thread of the stream, is that neither the Government, nor purchasers understand or intend, that islands in a river pass by a sale of the land on the nearest shore. It is part of the history of the country, as it is of the law of the land, that the public lands are surveyed at different times; and the land on one side of a river may be sold, before that on the other side, or any of the islands in it are surveyed, and under these circumstances, all the islands between the middle of the river and the shore, adjoining the land sold, would go to the purchasers of such land, according to the rule insisted upon by the Court. Such would also be the consequence of a sale of the lands on both sides of a river before the islands are surveyed. That no such consequences were intended by the Government, is apparent from its public acts. The public lands are sold from time to time, as the exigencies of the Government, or the wants of the people require ; and frequently the islands (many of which are of great value,) remain unsurveyed until after the lands on each side of the river have been sold. They have then been surveyed and sold without any claim of title by the owners of the lands on either side of the river.
This unquestioned claim of title to unsurveyed islands by the Government, notwithstanding the previous transfer of the lands on the opposite sides of the river, coupled with the constant practice of surveying and selling them without reference to the sale of adjoining lands, should, in my opinion, be regarded as fixing the construction of a government patent for lands lying on a river, so as to exclude the opposite islands, whether surveyed or unsurveyed.
It is by implication, that a grant or patent of land upon a river, includes the islands to the middle of the same; but the patent itself cannot be so interpreted, because its terms do not describe the land as bounded by the river; and a reference to the plat will not show an unsurveyed island to be included, because such are not marked upon the map.
From the consideration that the terms of the patent will not justify such a construction as to include unsurveyed islands, taken in connection with the want of authority on the part of the officers making the sale, to sell any land except such as lias been surveyed, platted, and advertised, &c., according to law, and considering also the long continued practice of the Government to survey and sell the islands in our rivers, from time to time, without its authority being ever questioned by the prior purchasers of the land upon their margins, I am constrained to dissent from so much of the opinion of the Court, as gives to a purchaser of public land upon a liver, the unsurveyed islands in the same, between such land and the middle of the stream. These islands are not necessary to the full enjoyment of the advantages of a river situation, as the water, the land upon its margin, and that covered with water to its centre, are; and the legal implication that would carry the boundary of a grant of land upon a river to its centre, cannot be deduced from the terms of a patent; but on the contrary, such implication is rebutted by the intention of the parties, as evinced by the long continued practice on one side, and an equally long acquiescense of the other.
Judgment reversed.