Howard v. Ingersoll , 17 Ala. 780 ( 1850 )

DARGAN, C. J.

The principal, if not the only question in this case, is whether the mill, for the overflowing of which the suit is brought, is situated within the limits of the State of Alabama? If it is, the plaintiff has shown title to the land on which the mill is erected, and the suit is properly brought in the courts of this State. If, however, the mill is not situated within the limits of this State, then no suit can be brought in our courts to recover damages for the injury done to it, whether the plaintiff has title to the land or not; for the action is local in its character and can be brought only in the State in which the property is situated. The law is well settled that all actions or suits to recover land, or to recover damages for injuries done to land, or real property, must be brought in the courts of the country in which the land is situated. — See Story’s Confl. of Laws, ^ 554, and the cases there cited.

We must then ascertain whether the land on which the mill is erected lies within this State, or whether it is within the State of Georgia. For this purpose we must first look to the articles of cession between the State of Georgia and the United States, entered into on the 24th day^of April 1802, by which Georgia ceded to the United States the territory that now forms that portion of the States of Alabama and Mississippi, north of the 31st degree, north latitude. From these articles or deed of cession we must ascertain the line that separates the jurisdiction of the State of Alabama from the State of Georgia, and then, looking at the evidence contained in the bill of exceptions, we can solve the question whether the mill is located within the limits of this State. The first article of the compact or deed of cession is in the following language: “the State of Georgia cedes to the United Stales all the right, title, and claim, which the said State has to the jurisdiction and soil of the lands, situated within the boundaries of the United States, south of the State of Tennessee, and west of a line beginning on the western bank of the Chattahoochie river, where the same crosses the boundary line between the United States and Spain, running thence up said river Chatta.hoochie, and along the western bank thereof, to the great bend next above the place, where a certain creek or river called the Uchee, (being the first considerable stream on the western side above the Ousseta and Corveta towns) émpties into the said Chattahoochie river; thence in a direct line to Nickajack on the Tennessee river, &c.” The linethus described forms the eastern boundary of the State of Alabama, and the western boundary of the State of Georgia. It begins on the western bank of the Chattahoochie river, where the same crosses the then boundary line between the United Stales and Spain, and runs up said river and along the bank thereof. From this language we must determine the precise point that separates the two jurisdictions, the one from the other. The term bank of a river, to my mind, does not convey a definite and determinate idea of a fixed point of locality. For instance, when the water is low, should we say of one near its edge that he is standing on the bank of the river, the expression would not be inaccurate; if the water should afterwards rise and he should again be seen standing near its edge, we might, with equal propriety, say he is standing on the bank, although there might be a considerable distance between the two places, the one on which he is standing and that on which he had stood. Tn the case of Morgan v. Livingston et al. 6 Martin La. Rep. 19; Judge Martin defined the bank of a river thus: “it is that space which the water covers, when the river is highest at any season of the year;” of course he must haVe meant that space upon the rising ground above low water, but covered by high water, for he then proceeds to say that the river consists of three things, the water, the bed, and the banks, and he could not haye intended to include in the definition of the term bank, the bed of the river. The bank of a river may be said to be that space of rising ground above low water mark, which is usually covered by ordinary high water. We cannot conceive of any other definition more accurate than this; for the rising ground above low water cannot with any propriety be said to be the bed of the river, and therefore it must be the bank. We then see that the term bank of a river is an imperfect, or rather an indefinite guide, when we seek by it to fix upon a precise point of locality; for the bank of a river extends, or may extend, over a considerable space; in this respect, therefore, the term is indefinite and indeterminate. We know that the precise line that divides the two jurisdictions must be fixed on the bank of the river, but this bank extends from usual low water to usual high water mark.

In all compacts or treaties between States or Nations, the intention of the parties must be our guide in determining any question in reference to them. If that intention is clear and plain there is no room for comment, nor necessity for construction, for the intention of the parties being clear, the rule by which the court is to judge is clear. But if the terms or expressions used by the contracting parlies are vague or indefinite, or if they are susceptible of a mor.e or less extended signification, we must then look to the nature of the things to which these terms relate, and presume the intention of the parties to be in accordance with reason. This is one of the rules laid down by Vattel, for the construction of treaties, (see pages 263, 264,) and it may be added. that if such a construction can be given to such indefinite expressions as will serve the convenience of both the contracting parties, without injury to either, this is the rule w.e should adopt, for it would be but reasonable to presume that.such was the intention of the parties. Let us apply the rule of construction to the compact between the United- States and the" State of Georgia. No benefit could have been anticipated by the State of Georgia in reserving to herself the narrow strip of land between high and low water mark on the west side of the Chattahoochie, nor do we see that any could result from such reservation; but, on the contrary, inconvenience both to Georgia and to Alabama, must arise, if this strip of land is retained by Georgia within her limits. -She must then take cognizance of and punish all offences committed within that space, although done by our own citizens. This would be a matter of inconvenience to both States, and possibly might become a source of jealousy and complaint. No good could result to either State from it, but inconvenience to both. We should presume that these things were present to the minds of the contracting parties, and that they did not intend by the use of this term to fix upon a line inconvenient to both, when the same term is not only sufficient, but as well designates a line of convenience, as it could be made to designate one of inconvenience and injury. We think it clear that if the case is doubtful, we should hold the line to be at that point, which would promote the convenience of both States, and prevent the unkind or unfriendly feeling, that might grow out of, or be engendered by the exercise, of jurisdiction, on the part of Georgia, over this strip of land on the west side of the Chattahoochie, which at some places must be wider.than at others, and the precise limit of which, not unfrequently, if might be difficult, if not impracticable to ascertain. Low water mark is then the line that convenience designates, and the terms used by the contracting parties are as well calculated to induce us to believe that they intended this point as the line, as any other that can be embraced within the legitimate meaning of the term bank.

In the case of Handy’s Lessees v. Anthony, 5 Wheat. 374, the question was, to ascertain the line between the State of Virginia and the territory she had ceded to the United States. The words of the deed or grant were, “all her territory north west of the river Ohio.” The word river was used to designate the lirie, and the Supreme Court held that low water mark was the line of eparation. Now if it be true, as held by the Supreme Court of Louisiana, and, indeed, by many civil law writers, that the term raer includes the water, the bed over which it passes, and also the banks within which it is contained when the river is full, then the term bank, in the absence of other words denoting a different intent, would mean the same thing that the term river would signify, and in this view the case in Wheaton would be directly in point and conclusive of the question. But Judge Marshall, who delivered the opinion, did note that the word river, and not bank, was used; hence it is supposed, that if the term bank had been used instead of the term river, the court would not have held low water mark to be the line. But I think all must admit that the river is inseparably connected with the bank, even if the bank be not included within the legitimate meaning of the-term river; and being thus connected, the bank begins where the water touches the land, and we can therefore keep within the legitimate meaning of the term bank, and fix the line at low water mark. Under this view all the argument of convenience, which seems to have influenced the court in the case refered to, would apply with the same force in the case before us, that it did in the case of Handy’s Lessees v. Anthony. I do not think it necessary to examine the numerous decisions, with which our books abound, and to many of which we have been refered, for they are in reference to the rights of individual owners of the land adjaceht to the river. It may, however, be safely said, that when a private grant is bounded by the bank or a running stream, in which the tide does not ebb and flow, no well considered case can be found, that limits the grant short of low water mark, unless there be other words or express sions used in the deed, showing that the parties did not intend that the grant should extend to low water mark. In the case of Child v. Starr, 4 Hill, 369, Chancellor Walworth said, “the shore of tide water is that portion of land alternately covered by water and left bare by the flux and reflux of the tide. Properly speaking, therefore, a river, in which the tide does not ebb and flow, has no shore; it has ripam, but not Vittus. The term shores, however, when applied to such a river, means the river’s banks above low water mark, or rather those portions of the banks of the river which touch the margin or edges of the water of the stream. A grant, therefore, that is bounded by the shore of a fresh water river, conveys the land to the water’s edge, at low water.” In the case of Hatch v. Dwight et al., 17 Mass. 289, Parker, C. J. said, “Without doubt, by our law, the owner of land extending to the bank of a river will own to the middle of the river, if it be not navigable, and public property; but the owner may sell the land without the privilege of the stream, as he will, if he bounds bis grant by the bank.” Now I admit, that if .the grant be limited to the bank of the river, the land covered by the water will not pass by it, that is, the bed of the river will not be granted; but we consider it well settled, that if land be granted on a running stream, not navigable, and in which the tide does not ebb and flow’, and the words used to designate the boundary be the river, or the bank of the river, then the grant will extend to the middle of the stream, unless there be some other expression used, or some other circumstance, showing that the parties did not intend that the grant should extend ad Jilum, aquae. This, we think, is the result of all the cases upon this subject — see them collected in Angelí on Water Courses, p. 6 to 11. We have refered to the cases of private grants, for the purpose of showing-that there is nothing in them that would forbid the idea that, by the term han!c, as used in the articles of cession between the State of Georgia and the United States, any point short of low water mark was intended as the western boundary of the State of Georgia. We may therefore lawfully hold that low water mark on the west side of the Chattahoochie is the line that separates the jurisdiction of the State of Alabama from the Slate of Georgia. This is the line, we believe, that was intended to be established as the western limit of the State of Georgia by the compact between that State and the United States. Looking, then, to the evidence, which shows the locality of the mill, it is clear that it is situated within the limits of this State; for although there are high bluffs on each side of the river where the mill is situated, and the mill is east of the bluff on the Alabama side, yet it is west of the ordinary low water mark, and the land on which it is erected is covered only by high water. We therefore come to the conclusion, that the plaintiff has shown title to the land on which the mill is erected, and, as it is situated within the limits of this State, the plaintiff may sue here for an injury done to it.

We do not think it necessary to examine the question, whether the plaintiff, by virtue of his title to low water mark, can claim the usual water privileges. He was in the quiet possession or use of the water, and had erected a dam into the stream, by means of which a portion of th.e water was diverted to his mill, but it united again with- the river above the defendant’s dam. We could not, therefore, presume this use of the water tortious, unless the defendant had shown some adverse right to the water in himself at the point where it was used by the plaintiff. If it were admitted that the plaintiff was not entitled to the water privileges, a stranger or one having no right to the water at this point could not be permitted to disturb him in the use of it, but the party entitled to the water privileges at this point of the river could alone question the plaintiff’s right to use the water. The defendant, it is true, introduced a deed from the corporate authorities of the city of Columbus, by which certain lots were conveyed to him. This deed purports to grant the land across the river, to high water mark on the west side of the Chattahoochie, but, under the view we have taken, the western boundary of this grant must be low water, and not high water mark. But we cannot discover from this deed, nor from anything stated in the bill of exceptions, that the defendant claims the land where the mill is situated, or the water at the point where it is used by the plaintiff. If this deed does cover the bed of the river where the plaintiff uses the water, it is not shown by the bill of exceptions. We must, therefore, consider the defendant as a stranger, without right to .the water at the point where it is used by the plaintiff, and, consequently, he could not make up an issue with one who was in the possession or use of the water, nor contest his right to its use.

After the best examination we are able to give this case, we are satisfied that there is no error in the ruling of.the court, and the judgment must be affirmed.