Doe ex dem. Kennedy v. Bebee , 8 Ala. 909 ( 1846 )

COLLIER, C. J.

We do not propose to inquire, whether the defendants, as the proprietors of the eastern lots upon the site of Fort Charlotte, are entitled to the soil that may be formed upon the contiguous shore in their front, either by natural causes or art. What we said on this subject in the Mayor, &c. of Mobile v. Eslava, 9 Porter’s Rep. 587, though it may be correct as a legal proposition, we should be inclined to treat as a mere obiter dictum, rather than an authoritative decision of a point which influenced the judgment of the court. In Abbot’s Ex’r v. Doe ex dem Kennedy, 5 Ala. Rep. 393, the record may have presented the question, so as to have made it a turning point in the cause, yet as the attention of the court was not called to the supposed distinction hetween a boundary by the shore, and by fixed metes and bounds, below high water mark, perhaps the case should not be considered a decisive authority in favor of the defendants.

The first question which invites our consideration is this, has the plaintiff shown such a title as authorizes him to recover the promises in question? By the act of Congress, approved on the 5th May, 1832, it is enacted as follows, viz: “Section 1. That Joshua Kennedy, of the city and county of Mobile, in the State of Alabama, be and he is hereby confirmed in his claim to a tract of land, containing twenty and twenty-eight hundredth arpens,situate in the south part of the city of Mobile, which said claim is designated as claim number ten,in abstract A, number two,of the reports made to the Secretary of the Treasuiy on the 29th of February, 1828, by the commissioners appointed under the act of Congress of the 3d March, 1827, entitled ‘an act supplementary to the several acts providing for the adjustment of land claims in the State of Alabama.’ Section 2. That the Commissioner of the General Land office be, and he is hereby authorized and required, on a survey of the above mentioned tract of land by the surveyor of the lands of the United States in the State of Alabama, to issue a patent for the same to the said Joshua Kennedy, or his legal representatives, or to any person legally claiming under him or them. Provided however, that the confirmation of this claim, and the patent provided to be issued, shall not be held to interfere with any part of said tract, which may have been disposed of by the United States, previous to the passage of this act; and this act shall be held to be no more than a relinquishment of whatever title the United States may now have to such tract.” [8 vol. U. S. Laws, 554.]

We will not stop to inquire whether the claim described in the report, so far identifies the land, as to enable one to say from an inspection of the concession to McVoy, and the survey, &c. accompanying it, that the act above cited was intended to embrace this concession: for if the confirmation, without reference to its application to the premises sought to be recovered, be inoperative, then the plaintiff will have failed to make out his case. This conclusion results from the inability of the Spanish authorities to grant the lands within the present limits of this State south of latitude thirty-one, after the cession of Spain to France by the treaty of St. Ildefonso, Such grants, whether inchoate or perfect, were null and void, unless they were embraced by the stipulations of the treaty of February, 1819, between Spain and the United States, or received vitality from the legislation of Congress. [See Abbot’s Ex’r v. Doe ex dem. Kennedy, supra, and cases there cited.]

The extent of the confirmation we are considering is declared in most unequivocal terms by the proviso to the second section of the act, viz: that it “shall not be held to interfere with any part of said tract, which may have been disposed of by the United States previous to the passage of this act; and this act shall be held to be no more than a relinquishment of whatever title the United States may now have to such tract of land.” If then, the United States had no interest in the premises in question, when the confirmatory act was passed, in consequence of a previous disposition of it, or any other cause, that act does not impart a title to the assignee oftheMcYoy claim. This is a pro position which seems to us to be a consequence resulting so-obviously from the language of the proviso, as to be sufficiently illustrated by its statement.

In Pollard’s Lesse v. Hogan, et al. 3 How. Rep. 212, the power o.f Congress to grant the shore of the navigable waters in this State, was presented for adjudication, and elaborately discussed and decided. It was there held that the stipulation contained in the act of Congress of 1819, for the admission of Alabama into the Union, which provides, “that all navigable waters within the said State, shall forever remain public highways, free to the citizens of said State, and of the United States, without any tax, duty, impost or toll therefor, imposed by said State,” conveys no more power over the navigable waters of Alabama, to the government of the United States, than it possesses over the navigable waters of other States, under the provisions of the constitution. It leaves to the State the same right which the original States possess over the navigable waters within their respective limits. Again, say the court, the shores of the navigable waters and the soil over which the tide flows, were not granted by the constitution to the United States, but were reserved to the States respectively; and the rights,sovereignty and jurisdiction of the new States over this subject, is co-extensive with that enjoyed by the original members of the confederacy. And as a sequence from these and other propositions, which were maintained by the court, it was determined, that the right of the United States to the public lands, and the power of Congress to make all needful rules and regulations for the sale and disposition thereof, conferred no power to grant land in this State, which was below high water mark when Alabama was admitted into the Union.

Is it not perfectly clear from the case last cited, that the United States, if they were ever entitled to the right of soil in the shores of our navigable waters, in the language of the proviso, “disposed” of it long previous to 1832? To permit the act of Congress to operate as a confirmation, would be to tolerate an interference with the admitted rights of this State, and instead of being a relinquishment of the title which the United States then had, it would be a divestiture of interest which they had yielded up to the local government; and this too, while the act most explicitly disavows any such purpose. The act then, cannot be regarded as either a primary or secondary grant, or conveyance, so as to pass, or confirm a title ; for the reason, as we have seen, that the grantor, or relessor, had nothing to grant or release.

This view is not opposed to Hallett and Walker, et al. v. Doe ex dem. Hunt, et al. 7 Ala. Rep. 882; for there the grant in question was recognized as valid, independent of the legislation of Congress, although it extended below high water mark. Whether unqualified confirmations of in valid grants of the shore, can be permitted to operate consistently with the case cited from 3d Howard, is a question which we need not consider. It is difficult to educe a harmonious system, even from the decisions of the federal judiciary, in respect to private land claims in the States acquired from France and Spain. The only safe course is to consider no question as concluded merely because it was directly presented by the record, unless it was considered by the Court. In our own adjudications, in cases of this character, we have followed precedent where it could be found; where this has been silent, we have been guided by legal analogies, assisted by such powers of reasoning as we could command. This anomalous litigation, under the influence of the statute of limitations, and other causes, must be drawing to a close, and we think the security of individual rights renders it proper that we should do homage to the maxim stare decisis, even at the expense of some inconsistency in decision, rather than unsettle the law to any great extent, with the intention of establishing more uniformity.

We have but to declare the result to be, an affirmance of the judgment of the Circuit Court.