44 So. 976 | Ala. | 1907
— In this case the appellant filed a bill to enjoin the enforcing of an exclusive possession of the shore of the Mobile river in front of its land under a writ of possession duly issued on a judgment in ejectment. The bill was dismissed on motion for want of equity, and this appeal is to reverse that decree.
No decree was entered upon the demurrer which was interposed to the bill, and therefore on this hearing we have only to deal Avith the question of error vel non in the decree as to the motion. Of course, the very frame of the bill admits the effective assertion at laAv of the legal title of the city of Mobile, and the bill could not have equity if it contained merely legal objections to the validity of that title. To be sustained it must shoAV that the appellant has rights in equity in the locus in quo which are consistent with the legal title being in the city of Mobile, and Avhich are jeopardized by the assertion of the legal title in the manner threatened and indicated in the bill. The bill avers that the appellant is the riparian OAvner along the Avest bank of Mobile river, and that it and its predecessors in title have held, OAvned, and occupied this property for a great many years, and that under its right as a riparian owner to pass and repass over the shore from its land to the navigable Avaters of the river, as Avell as under and by long usage and immemorial custom, and its predecessors in title, to make the AvaterAvay aváilable, had constructed ways and built Avharves and piers in front of its land bordering on the river Avithin the limits of the city of Mobile, and that it is so using its privileges of access to said water and occupying its said improvements as occasion, demands, and- that the appellee is about to fence off the shore and deprive it of any access whatever
We will dispose first of the question of res judicata. There is nothing inconsistent in the existence of a legal title in a trustee, for government regulation and superintendence, and at the same time a possession and user under such qualification by the beneficiaries of the trust. —Mayor of N. O. v. United States, 10 Pet. (U. S.) 662, 9 L. Ed. 573. Nothing is more common in private transactions than the vesting of the legal title to property in a trustee, with the proviso that he will allow a cestui que trust to have designated rights and privileges in and to. the property. The ownership by the state of the shores and beds of navigable streams is a trust of a most solemn character for the public, including riparian owners. Such riparian owners are cestuis que trust under the trust, and they have a special property right, independent of the general public, the enjoyment of which in no Avise conflicts Avith the laAvful and proper exercise of legal OAvnership of the bed and shore of the river in the state, or its substituted trustee. The constitution of a trustee clothed with the legal title in such cases is for the .preservation of such rights of the riparian OAArners and of the general public, and in no Avise conflicts with the full use and enjoyment of all the privileges given by the trust. It is thus clear that the mere recovery in ejectment against the appellant of the locus in quo, and the influence of the decision of the case of Turner v. Mobile, 135 Ala. 77, 33 South. 132, Avhich Avas
The next question brings up the rights of a riparian owner under the alleged circumstances of this case. As a preliminary point, we desire to observe that we adopt as applicable to this case the position of this court taken in Webb v. Demopolis, 95 Ala. 134, 13 South. 289, 21. L. R. A. 62, in reference to laches and limitations operating against the title of the state to the bed, including the shore of a navigable stream. In that case it was held that laches and limitations could not bar the title of the city to its streets; and so here, upon much stronger grounds, the possession and use of the shore of Mobile river adjacent to the land of the appellant, and particularly Avhen the possession Avas of a character entirely consistent with the duties of the trustee and the co-existent rights of the riparian OAvner, could never ripen into a legal title against the trustee in this case. But, if such possession could ripen into a legal title, the presumption must be that it did not do so, because the trustee recovered against it at law, shoAving the continued existence of the relation of trustee and cestui que trust betAveen the parties. The motion to dismiss admits the allegation of the bill that the city of Mobile, as trustee for the public in general, and riparian OAvners in particular, recovered on such trust title the premises in question. The trustee is, therefore, estopped to deny the relation.
The question, then, is: Does the bill sIioav equitable rights in the appellant AAdiieh should be protected? The argument is very much pressed that the rights of riparian OAvners on navigable tidal Avaters and navigable
The shore and bed of a navigable stream being strictly trust property, servient to the uses of the navigation, they are as inalienable and as incapable of being severed
It is insisted by the appellee that the particulars and extent of appellants’ improvements Avere not sufficiently
We do not deem it necessary to discuss further the equitable right of the appellant to resist the ouster from its riparian rights proposed under the writ of ejectment. The question is discussed very fully and the authorities cited in Shively v. Bowlby, supra; Miller v. Mendenhall, 18 A. S. Rep. 226. We particularly approve of the reasoning of the Supreme Court of New York in Kane v. N. Y. E. R. R. Co., 125 N. Y. 184, 185, 26 N. E. 278, 11 L. R. A. 640.
We do not deem it necessary to go into the question of appellant’s legal title, arising from the alleged fact that it is a riparian owner on a nontidal stream. If such is the fact, against our judicial knowledge to the contrary on the trial of the ejectment suit, it will be open to the appellant to make the proof on a proper occasion. — 4 Wigmore on Evidence, § 2567; People v. Mayes, 113 Cal. 618, 45 Pac. 860. Whether it is available in this case in aid of the equitable defense, OAving to the nonconclusive effect of a judgment in ejectment, it is unnecessary noAv to decide. We rest the decision on equities alone. We think the court erred in dismissing the bill, and accordingly the decree, of the lower court is reversed, and a decree Avill be here entered overruling the motion.
Reversed and rendered.