Hagan v. Campbell , 8 Port. 9 ( 1838 )

COLLIER, C. J.

— In order to a solution of the questions of law arising upon the record, we will inquire—

First — What was the true eastern boundary of the land embraced in the grant made by the British government?

Second — What was the additional extent of the confirmatory grant made by the Spanish authorities ?

First — The record contains no copy of the British grant, and ^ascertain its terms, we must refer .to that made by the Spanish authorities, in which it is recited. From that, it appears that the land was situated in the then district of Mobile, “on the west side of the river Mobile.”

The rights of riparian proprietors are diverse, depending upon the fact, whether their land is bounded by a river, where the tide ebbs and flows; or whether it lies along a stream above tide water. In the former case, the right of the owner to the soil, according to the common law, extends but to high-water mark—(3 Kent’s Com. 344, and Angell on Tide Waters, 68.) The shore below the common tide belongs to the public, though by grant, it may become the property of the citizen—(3 Ib. 347.) But in Arnold vs. Mundy, (1 Halsted’s R. 1,) it was determined, that a grant of land lying upon navigable water, reached only to high-water when the tide was at its flow, and to low-water mark when it had receded, thus diurnally changing the extent of the owner’s right. And in Handley’s lessee vs. Anthony, (5 Wheat. R. 374,) the court considered that the cession by Virginia to the United States, of all her right to the territory “situate, lying and being to the north-west of the river of Ohio,” was a relinquishment of title to the land lying above low-water mark on the north-western bank of that stream, and the case would not be varied, “ if, instead of an annual and somewhat irregular rising- and falling of the river, it was a daily and almost regular ebbing and flowing of the tide.” The rule, that a country bounded by a river would extend to low-water mark, “ has (say the court) been established by the common consent of mankind. It is founded on common convenience.” Whether the rule recognised in that case would have have been considered applicable to a grant made by the public to an individual, the opinion does not inform us— but we suppose that it would not.

It is, however, unnecessary to enquire, what has been the course of judicial decision in the United States upon this subject; for the grant of seventeen hundred and sixty-seven, must be expounded with a reference to the English common law, as applied in Great Britain and her dependencies. And that system of jurisprudence, according to all authority, does not allow the riparian owner, under a gran,t from government, of lands bounded on tide water, to go beyond ordinary high water mark—(Storer vs. Freeman, 6 Mass. R. 438; Cortelyou vs. Van Brundt, 2 Johns. R. 357.) The rule which determines this to be the extent of the grantee’s interest, is founded upon the principle, that such grants are construed most favorably for the sovereign; and derives force from the consideration, that public grants are made by a trustee for the public, and no alienation should be presumed, that was not clearly expressed.

Though the proprietor or his assigne®? under the British grant, acquired no title to the soil lying between high and low-water mark, yet they were entitled to all accessions made to their land, either by the retreating of the river from its former limits, or by the slow and secret deposit of sand or other substances, so as to leave the soil theretofore inundated, uncovered by water—(Angell on Tide Waters, 68; 3 Kent’s Com 344, et post.)

In New Orleans vs. the United States, (10 Peters’ R. 717,) “ the question is” said to be “ well settled at common law, that the person whose land is bounded by a stream of water which changes its course gradually by alluvial formations, shall still hold by the same boundary, including the accumulated soil. No other rule can be applied on just principles. Every proprietor whose land is thus bounded, is subject to loss by the same means which may add to his territory; and as he is without remedy for his loss in this way, he cannot be held accountable for . his gain.” The beds of navigable streams, as well as the sea, belong to the public. And if by the instantaneous casting up of sand or other substances, the water is thrown back and an addition made to the land, the sovereign may claim the accession, upon the ground that it was but a part of the bed of the river or sea, of which he was the proprietor. But if the increase was occasioned by a process so slow and secret, as renders it impossible to discover how much is added in each moment of time, it belongs to the proprietor of the land to which the addition is made —(Angell on Tide Waters, 68; 3 Kent's Com. 345; and the King vs. Lord Yarborough, 3 Barn. & Cress. R. 91.) The civil law, from which the common law on this subject is copied, says, “what the river adds by alluvion to your estate, becomes yours by the law of nations. Alluvion is a latent increase. That seems to be added by alluvion, which is so added by degrees that you cannot know how much in each moment of time — (Angell on Tide Waters, 69.) And to the same effect is the very learned and elaborate argument of Mr. Livingston, (and the cases therein cited,) in regard to the Balture at New Orleans—(2 Am. Law Journal, 326, 330.)

Without extending to greater length our enquiries upon this branch of the case, we think it is sufficiently shown that the British grant only conveyed to its grantee a title to the land above high-water mark, with a right to the gradual accessions by alluvion, &c.—(Bullock vs. Wilson, 2 Porters' R. 436; see a note by the Reporter, 6 Cowen’s R. 536, 541, et post; and 10 Peters’ R. 662.)

Second — The Spanish grant, after stating the boundaries of the land conveyed by the British government to William Richardson, and that it lies on the west side of the river Mobile, and is “ terminated by the bank of said river on the east side”- — shows a deficit in the number of acres proposed to be granted, and continues, “ Nevertheless it must always be understood, in order that it may never operate to the prejudice of the party interested, that the said two hundred and sixty-three English acres are equal to three hundred and ten arpents, seventy-seven and one-eighth perches aforesaid; and also that the distance described in said plat or plan of survey between the river and the limits (east) of the tract, and which was left at the time unsurveyed, it being then impassable, has since been rendered useful by the owners having ditched and drained the same, and which they are to receive in compensation for the above-mentioned error, with the reserve, however, of leaving a free passage on the bank of the river, and without altering the figure of the tract on the other side,’5 &c. Here is a clear grant of all the soil lying between the tract first granted and the river, designated upon the plat or plan of survey accompanying the Spanish grant. Where the term “ river” is used as a boundary, either high or low-water mark must always be intended, and not some middle point. The land embraced by the British grant is “ terminated by the bank of said river (Mobile) on the east side,” — by the “east side,5’ we are to understand the eastern boundary of the tract, and not the eastern margin of the river. It is, then, clear, beyond controversy, that the grant of seventeen hundred and sixty-seven, extended to the river, which, as already shewn, was high-water mark.

The grant of eighteen hundred and seven, reaches not only to the eastern limits of the first grant, but embraces “ the distance in the plat marked out as being from the river to the limits east of the land, and left unsurveyed at that period, (1767) &c. and which they (John Forbes & Co.) are to receive in compensation for the above-mentioned error,” &c. Here, again, “ the limits east of the land,” mean the eastern boundary of the British grant— “the river” evidently refers to some point below high-water ; for if high-water mark were intended, there would have been nothing additional granted, as the first grant extended thus far.

If all the soil lying east of the British grant and the channel of the river, had been expressly granted, there then could have been no controversy as to the extent of the claim of Forbes & Co. And is not their title as clearly made out by the proof, as it would then have been? The marsh lying between the land covered by the grant of seventeen hundred and sixty-seven and the river, is described in a plat or plan of survey accompanying, and made part of the grant of eighteen hundred and seven, and together with the land embraced by the former grant, is all conveyed to the grantees. This marsh either then was, or had been subject to inundation by the flowing of the tide, and by the manner in which it is described in the plat, must have been at least a part of it below high-water mark in eighteen hundred and seven. Here, then, the Spanish government, in terms not at all dubious, have granted the soil between the original trad and the river. The original tract, we have seen, had for its boundary on the east, high-water mark. What distance, then, could have been described in the plat or plan of survey, but the land lying between high-water and the channel of the river ? Besides, the copy of the survey accompanying the record, indicates as clearly as possible that the intervening space was marsh or flat land, partially inundated, and that it extended to the stream, even when the tide had receded.

The north and south lines, running from west to east, are plainly traced on the plat, and continued without any deflection, from the point at which they strike high-water mark, act'oss the marsh to the channel of the river. Here is a conclusive indication of what land was embraced by the survey. A copy of the plat, or plan of survey, we have seen, is made part of the grant; so that the grant of eighteen hundred and seven must be regarded as quite as explicit an indication o'f the eastern limits of the tract, as if it had in toiidem verbis, transferred to John Forbes & Co. all the land lying between the north and south lines, extended east to the channel of the river. This single view is decisive of the case, as presented by the record; but least it may appear upon another trial, that the plan of survey now before us, is not a correct copy of the original, it will be proper to consider the case in reference to such a contingency.

Even if the original plat or plan of survey should not discover a continuation of the northern and southern lines of the original tract, drawn east to the margin of the channel of the river; yet, inasmuch as it designates the marsh lying between high and low-water, and the grant of eighteen hundred and seven relinquishes to John Forbes & Co. the part of the marsh lying east of the land embraced by the British grant, “ in compensation” for a deficiency between the land intended to be thereby granted, and that received by the original grantees, — these lines must be run without deflection from high-water mark to their eastern termination. How else could all the land east of the British grant and west of the river be embraced ? There is certainly no warrant for maintaining, that less than all, was relinquished to the grantees in eighteen hundred and seven. If these lines should diverge, then they would embrace a larger quantity of land than lies east of the tract, but if they should converge, then the quantity would be less. So that the only way in which the Spanish grant can operate according to its terms, is for these lines to continue an unvarying course to their termination.

That it is competent for a grant to refer to a plat or plan of survey, in order to ascertain the locality and lines of the land, is a proposition, which it is supposed no one will dispute. In Jackson ex dem. Livingston vs. Freer, (17 Johns. R. 29,) it appeared that a large tract of land was granted by the commissioners of the land office — it was described by its exterior lines alone, and a survey directed to be made by the surveyor general — and patents were to be issued for the several lots according to the return and map of such survey. The survey and return was made, and patents issued describing the several lots by reference to the map of the survey on file in the office of the Secretary of State. It was held, that the patents were to be understood as referring not only to the map on file, but also to the field book of the actual survey.

And it fe well settled, that where a line is described as running towards one of the cardinal points, it must run directly in that course, unless it is controlled by some object. Thus, in Brandt. ex dem. Walton vs. Ogden, (1 Johns. R. 156,) it was determined, that “ the term northerly in a grant, where there is no object to direct its inclination to the east or to the west, must be construed to mean north, and there being no object to control, it must be a due north line.”—(See also Jackson ex dem. Woodworth vs. Lindsay, 3 Johns. R. 86; Jackson ex dem. Clark vs. Reeves, 3 Caine's R. 293.) As “ the distance in the plat marked out as being from the river to the limits east of the land,” cannot be included by allowing the north and south lines to converge, and as divergent lines are not authorised, the grant of eighteen hundred and seven, must be construed as directing an extension of these lines to the river, -without variation of course.

It is not essential to the plaintiffs title, to show that all the marsh was drained previous to eighteen hundred and seven, or that it had been reclaimed since that period. It is true, that all this is described in the Spanish grant, as having been rendered useful by the owners having ditched and drained the same, and which they are to receive in compensation for the deficit in the quantity intended to be conveyed by the British grant. That the Spanish authorities believed that the marsh, or the greater part of it, lying between the river on the east,’ and the original tract On the west, had been drained, we think probable, from the terms employed. Yet an ignorance of fact, in this particular, can not be held to control the plain language of the grant, and limit its operation to so much of the land as was actually drained; — most certainly not in a controversy with a mere occupant, who relies upon no title subsequently acquired'Vrom the authorities of Spain. The plat or plan of survey does not trace any ditch as having been cut through the marsh; and the river being declared to be the eastern boundary of the land covered by the grant, there is no authority for stopping at any point between the channel and high water mark.

The reservation of a free passage on the bank of the river, did not prevent the freehold in all lands described in the plat or plan of survey from vesting in the grantees — -the title vested charged with the servitude. The free passage was subject to be changed by the grantees, or their assignees, as the river might gradually recede from its limits, so as to continue it along the bank. Nor can the fact of a road running along the bank of a navigable river, be held to limit a grant having the river for its boundary, so as to exclude its proprietor from riparian rights; and in this case there cannot be the slightest pretence for such an idea. The freehold in the land over which the road run, did not continue in the Spanish government; — that was transferred by the grant, while its use only was to be enjoyed by the public—(Cortelyou vs. Van Brundt, 2 Johns. R. 351.) And the title to all the soil lying between the original tract and the river, having passed by virtue of the grant of eighteen hundred and seven, to John Forbes & Co., and of course to his assignees, they immediately became entitled to the right to alluvial formations, in the same manner as other riparian proprietors are, on navigable streams.

But even supposing that the Spanish grant only conveyed the title, to what was known as high-water mark, at the time it was made, the plaintiffs then would have been entitled, as riparian proprietors, to every increase of land by alluvion. And if accretion is made impracticable, without the authority . of government, by the labor of some third person excluding the water from its former limits, — shall such third person, who was himself a trespasser, derive a profit — or shall not he who lias been deprived of an increase of soil by natural causes, enjoy what art has reclaimed ? We merely propound this inquiry — the view we have taken of the case does not render its solution necessary. We need not consider whether, if the present were a controversy for land made by alluvion, the north and south lines should not take the nearest course from high-water mart to the river. And it is alike profitless to inquire whether one who does not own the adjoining land, may erect a wharf or other improvement for the benefit of commerce, between high and low-water mark, since it is clear that no part of such erections can be rested upon land of a third person, nor can such third person be excluded the use of the water, or denied other riparian rights.

The grant o'f eighteen hundred and seven, speaks its own meaning, with so much distinctness, as to relieve us from an examination of the doctrine in regard to the construction of public grants. The rule, that where there is any doubt, the construction is made most favorably for the public, is not denied, but its application is limited — it applies only in cases of real doubt—(See Charles River Bridge vs. Warren Bridge, et al. 11 Peters' R. 544—in which the learning on the subject is exhausted.)

Our conclusions, upon an examination of the plaintiffs title, are—

1. That the British grant transfers the title to high-water mark only.

2. That the Spanish grant confirmed the former, and in addition, granted all the land lying east of the original tract, to the channel of the river.

3. In order to embrace all the intervening soil, the north and south lines of the original tract must run without variation of course from high-water mark to the margin of the channel.

4. Either grant conferred upon its grantees, or their assignees, the right to any gradual increase of soil by the receding of the river.

The judge of the Circuit court was of opinion, and so instructed the jury, that the grant of eighteen hundred and seven, only transferred the title to high-water mark on the east; unless the marsh had been reclaimed previously, or subsequently, by John Forbes & Co. or those claiming under them. The i nstructions, we have shown, cannot be sustained — the grant ascertains its own limits on the east, which is not liable to he varied by showing a portion of the marsh, or even all of it, unreclaimed in eighteen hundred and seven, or at any time since.

The judgment of the Circuit court must consequently he reversed, and the cause remanded.

GOLDTHWAITE, J. not sitting — having been of counsel.