Mobile Transportation Co. v. City of Mobile, 128 Ala. 335

128 Ala. 335 | Ala. | 1900

TYSON, J.

The present case is an action of ejectment in Code form, by the City of Mobile, to recover of the appellant certain real estate described in the complaint, constituting the shore of part of Mobile River below high Avater mark.

The plaintiff’s title was derived from the State of Alabama through and by an act of the legislature, approved January 31st, 1867, entitled “An act granting to the city of Mobile the riparian rights of the river front,” supplemented by the acts of 18th February, 1895, and of December 5th, 1896, the latter being amendatory of the former and confirming and .vesting; all •rights theretofore vested in any municipal corporation of Mobile in the City of Mobile.

If the act of 1867 Avas operative, it is evident that the legal title to the shore of the river, below high water ¡mark, as described in the act, under the rule of the common law, became A'ested in the city of. Mobile. Though the property belonged to the United States, before, the admission of the State .in the Union, .by the compact under and by which Alabama became a State, the title to all lands not reserved to the United States became the property of the State of Alabama. It being well settled there was no reservation, and could be none, in the shores and beds of navigable streams, since such reservation would conflict Avitli the fundamental law of organization under which new States are entitled to be on an equal footing with the original States, as Avell as Avith the constitution restricting the municipal jurisdiction of the United States to the particular cases enumerated therein. — Pollard v. Hagan, 3 How. 212; Escanaba v. Chicago, 107 U. S. 689; Huse v. Glover, 119 U. S. 546; Sands v. Improvement Co., 123 U. S. 296; Willamette Bridge Co. v. Hatch, 125 U. S. 9; Shively v. Bowlby, 152 U. S. 1.

Tlie chief important question is, whether the act of 1867 is a valid law. The appellant insists that it is void because its title does not sufficiently describe the purpose of the body- of the act. The constitution of 1865, under which this law was enacted, required that “each law should embrace but one subject which shall be-described in the title.” — Art. IV, § 2, Const., 1865. The title is “An act granting to the city of Mobile the riparian rights in the river front;” while the body grants the fee. The -objection is, that “riparian lights” could not comprehend the fee, but only easements therein, distinct from - absolute ownership. The object of this provision of the constitution, was to prevent surprise and fraud, in passing laws under misleading titles. It should not, therefore, be construed so as to defeat, by too technical an application, legislation not clearly within the evil aimed at. If the title of an act is -single and directs the mind to the subject of the law in a way calculated to direct the attention truly to the matter which is proposed to be legislated- upon, the -object of the provision is satisfied. In- such case, the generality of a title, not defining the particulars of the proposed legislation, would be more apt to excite general attention t-lian otherwise, since the general words would give warning that everything within their limits might be. affected and thus draw the attention of the whole body of legislators, while narrower words would only interest those concerned' with the matters specially named. It is, therefore, held that the generality of the title is no objection if it may comprehend the particulars of the body of the act, and that the act must be upheld if the subject may be comprehended in the title. — Adler v. State, 55 Ala. 21; Ballentine v. Wickersham, 75 Ala. 536; Quartlebamm v. State, 79 Ala. 1; Edwards v. Williams, 70 Ala. 145; 23 Ency. Law (1st ed.), 229-235.

In this case, the body of the act grants the fee in the locas in quo; the title, “riparian rights.” The question is, may not the “rights” comprehend absolute rights or proxKuty, to-wit, a fee; and may not “riparian” be taken as ahuere localizing term to ^rights?” The first definition of tlie word riparian in tlie Century Dictionary is, “pertaining to or situated on the hank of a river.” We think the fair and reasonable meaning of the title is to grant rights (property) which are riparian, that is, situated on or along the bank (ripa) of the river. No great precision and nicety of language is necessary in such case. It is sufficient if the common and ordinary mind would understand from the title the subject in reference to which a particular law is proposed. We, therefore, hold the act in question free from the objection interposed to it.

The next question is, whether the patent from the United States in 1836 to the persons under whom defendant claimed, to the land adjoining the shore sued for, extended to low water mark, and if so, affected the previous title to the State to the land below high water mark. We must decide both of these questions in the negative. It is true, the first point was decided otherwise in the case of Webb v. Demopolis, 95 Ala. 126, and in one or two other cases, relating to the shore line of streams above the ebb and flow of tide water. But these cases in no wise conflict with the common law rule so often approved by this court and other jurisdictions that on streams where the tide ebbs and flows grants of adjoining lands only extends to the ordinary high tide line along the shore. The law is definitely settled as to this point, and it could hardly have been the purpose of the decision in Webb v. Demopolis to disturb this rule of property supported by a vast array of authorities without making reference to them. At common law, the adjoining owner of the shore would, in the case of Webb, have acquired title to the center of the stream, but the decision restricted the rule on account of the actual navigability of the stream to the line of low water. This cannot be a reason for enlarging the common law rule as to tide-water shores which restricted the rights of adjoining owners to the line of high tide. — Mobile v. Eslava, 9 Port. 577; s. c. 16 Peters, 240; Goodtitle v. Kibbe, 1 Ala. 403; s. c. 9 How. 471; Kennedy v. Beebe, 8 Ala. 914; Pollard v. Greit, 8 Ala. 941; Pollard v. Hagan, 3 How. 212; Hoboken v. Pa. R. R. Co., 124 U. S. 688; Hallett v. Beebe, 13 How. 25; Shively v. Bowlby, supra, and the numerous authorities cited in brief of appellee’s counsel.

But if the first point was decided otherwise, it cannot affect this case, because the title of the United States to the shore in question, to the line of ordinary high tide, became vested in the State on and by its admission as a State and could not be affected by any subsequent grant of the United States, if there had been such. — Mobile v. Eslava, supra; Pollard v. Hagan, supra; Goodtitle v. Kibbe, supra; Shively v. Bowlby, supra.

It is next insisted that the State could not grant the fee to the city of Mobile, and thereby divest itself of the trust under which the land was held. This court has decided that a deed by a trustee in violation of his trust nevertheless conveys the legal title and is valid in a court of law. — Robinson v. Pierce, 118 Ala. 273. But the grant in this case was not in fraud of the trust. On the contrary, it was made for the purpose of making it effective for the public good. The shores of tidewater in all the States are held in fee by the States subject only to the reservation and stipulation that such streams should forever be. and remain public highways with the light in Congress to regulate commerce thereon. Pollard v. Hagan, supra; Martin v. Waddell, 16 Pet. 410; 4 Notes to U. S. Rep. 185 et seq. and 412 et seq. And it cannot be doubted that the State may convey the fee in such shore, subject, of course, to the paramount rights of the United States respecting navigation, and particularly so when the conveyance is in furtherance of the public interests. — St. Anthony Falls Co. v. Commissioners, 168 U. S. 360; Packer v. Bird, 37 U. S. 671; Hagan v. Campbell, 8 Port. 25; Williams v. Mayor, 105 N. Y. 433; Langdon v. Mayor, 93 N. Y. 129.

It is next insisted that the municpal corporation of Mobile was dissolved after the institution of this suit and that the suit cannot be. further entertained. The modern doctrine is, that the identity of a municipal corporation is not (‘hanged by the repeal of its charter and the substitution of a new municipal organization for substantially the same inhabitants and locality. When there is an alteration of a name, it may be convenient and proper for the pleadings to trace the change; but when the new organization bears the same name as the old, and the courts take judicial notice of the laws effecting the change, it is unnecessary to make any averment or obtain any order respecting the further prosecution of pending suits. Any authoritative appearance or step taken in the cause is the act of the new organization, which comes in, not by revivor, as in the case of representatives on the death of natural persons, but as the same party’ metamorphosed only in the external habilaments of organization and powers wrought by the new enactment. — 1 Dillon on Mun. Corp., § 172 and notes; Mobile v. Watson, 116 U. S. 289; Broughton v. Pensacola, 93 U. S. 270; Milner v. Pensacola, 17 Fed. Cases, 407; Girard v. Philadelphia, 7 Wall. 1.

It is manifest from a reading of the act of February 11, 1879 (Acts, 1878-9, p. 381), that only such property as was possessed by the-city of Mobile that was subject to the payment of its debts passed by the terms of the act to the commissioners as trustees for the bondholders. This property was trust property, and, therefore, was not subject to the debts of the city and was not affected by the act.

It is further insisted that ejectment will not lie for the recovery of the premises. There is nothing in this contention. No matter what the trust may be, the trustee or holder of the legal title may recover the possession from one who ousts him or claims to hold adversely. He may do this even against a cestui que trust. Without this right, he might be unable to perform his duties. And it is of no consequence that the land or a portion of it is servient to the right of the flow of water over it or of navigation thereon. — Newell on Ejectment, Chap. 2, §§ 20, 21, 22; Hoboken v. Penn. R. R. Co., 124 U. S. 658; Barney v. Keokuk, 94 U. S. 324; Hardin v. Jordan, 140 U. S. 371; Mobile v. Eslava, supra.

The defendant offered evidence of adverse possession of the lands in controversy since the grant to the cl fcy of Mobile in 1867, which was rejected. There was no error in this, since there can be no limitation against a municipal corporation as to property held for the public. — Dillon on Mun. Corp., § 675; Webb v. Demopolis, 95 Ala. 116; Olive v. State, 86 Ala. 94; Miller v. State, 38 Ala. 604. The presumption is that 'the property is public, and, indeed, the words of the grant make it such in this case. The wrong or error of collecting tax on public property on the same principle can create no estoppel against the assertion of the legal title, if it could have any effect on the light of such property. Hawkins v. Ross, 100 Ala. 463; McLeod v. Bishop, 110 Ala. 640; Goodman v. Winter, 64 Ala. 410. The plaintiff showed by the evidence introduced a valid legal title to the land sued for, unaffected by limitation or an estoppel of any character.

The defendant offered no evidence of title or possession which could have any operation to defeat the plaintiff’s right of recovery. The supposed Spanish grant to so operate was never complete, and besides there was no ' proof of such a grant. The grant in 1836 by the United States cannot be construed to cover the land below high water marie along the shore, and; if it could, would be ineffective, because the title was divested out of the United States and vested in the State of Alabama on the admission of the State, into the Union. The case of Goodtitle v. Kibbe, supra, is decisive of this point against the appellant. The title vested in the United States on the acquirement of the territory from France, and passed irrevocably to the State on its admission and could not -be affected by any subsequent act' of the United States. — Pollard v. Hagan, supra. The possession by the defendant after the grant to the city in 1867, coulfl not be adverse, so as to put in operation the statute of limitations, so as to entitle the defendant to compensation for improvements. And as the plaintiff’s declaration was good, and its paper title perfect, and no evidence was admitted -or rejected which could legitimately affect the plaintiff’s rights to recover the shore land sued for below the high tide, there could be no error prejudicial to the appellant.

The defendant, however, insists that its. third charge limiting the plaintiff’s rights to recover the lands “covered by the description in the complaint” which is not now below high water mark should have been given. The argument is, that the description in the complaint takes the western line far inland, that is, west of the high water line. We. do not find this is a fact. The description distinctly limits the western line, .southwardly “along the high water mark,” which ivould necessarily limit the line to the high tide. Besides, the charge limits the recovery to the present high tide line, which might be different from what it was when the grant was made or the suit commenced. There was no error, therefoi'e, in the refusal of this charge.

Nor 'was there any error in the court’s allowing public statutes and grants to be read in evidence, when they constituted the title papers of the party. They constitute facts in the case and are evidence in the strictest sense which must go to the jury. It is the proper practice to read them to the. jury, as was done in Mobile v. Eslava. It is always allowable to prove any fact which the court knows judicially. And certainly no injury can possibly result where it is permitted to be done.

The authority of the attorney to bring the suit and represent the plaintiff was sufficiently shown.— Williams v. Johnson, 21 L. R. A. 848 and note; Tullock v. Cunningham, 1 Cow. 256; Pixley v. Butts, 2 Cow. 421; Denton v. Noyes, 5 Am. Dec. 237.

After the rendition of the judgment the defendant made a motion to retax the costs in respect to fees of certain witnesses subpoenaed by the plaintiff. This motion was denied and its refusal is here insisted upon as error. It may he conceded for tlxe purposes of this appeal that the court committed an error in refusing to retax the costs, and yet this will not work a reversal of the judgment. The error, if committed, in nowise involves any ruling of the court upon the trial, but was subsequent to the rendition of the judgment and cannot be said to have induced its rendition or to have otherwise infected it. We must, therefore, decline to consider it further. — M. J. & K. C. R. R. Co. v. Owen, 27 So. Rep. 612.

We have noit deemed it necessary to notice in detail the many assignments of error since the principles announced by us involve the-adjudication of all of them against the-appellant. There is no error in the record, and the judgment is affirmed.