Appt., V. while possibly justifying the imposition on MOBILE TRANSPORTATION COMPANY, such owner of the whole cost of the service pipe, can no more justify the imposition of the whole or any arbitrary part of the cost of the water main, than would the power to compel sewer connections justify the impo SAME. (— Ala. - 40 So. 205.) sition of the cost of the sewer in the street Statute-title-riparian rights. otherwise than upon lands benefited in proportion to, and not in excess of, benefits. In my judgment the imposition on the lands of plaintiff in error of a fixed amount of the cost of laying the water pipe cannot be supported upon the grounds relied on in the court below, but falls within the principle settled in this state, which makes invalid such an arbitrary assessment not based upon or limited to benefits conferred. There are decisions of courts of repute inconsistent with the doctrines declared and enforced in this state. Under those decisions, assessments, for the cost of improvements in the roadbed of streets, such as pavements, water pipes, sewers, etc., which arbitrarily impose the whole cost on abutting land, without reference to benefits, have been supported. The contrary doctrine has been so long and uniformily enunciated and applied in this state that I do not think it open for discussion. The judgment of the Supreme Court affirming this assessment must be reversed, and the assessment must be vacated and set aside. ALABAMA SUPREME COURT. MOBILE DOCKS COMPANY, Appt., V. CITY OF MOBILE. 1. A grant of the shore and soil under a river is not covered by a title of an act purporting to grant "riparian rights in the river front." Judicial notice-character of stream. 2. The court takes judicial notice that the Mobile river within the boundary limits of the city of Mobile is a tidal stream. State grant-vesting trust title. 3. A statute vesting absolute title in a city to land "heretofore" held by it in trust or otherwise has no effect upon a title claimed under an unconstitutional statute. (Tyson, J., dissents.) (February 6, 1906.) APPEALS by defendants from a judgment The facts are stated in the opinion. The title to the act of January 31, 1867, does not describe the subject of it, and the act is unconstitutional. Ex parte Pollard, 40 Ala. 77; Weaver v. Lapsley, 43 Ala. 224; Walker v. State, 49 Ala. 329. Messrs. E. L. Russell, B. B. Boone, and J. G. Hamilton for appellant Mobile Docks OLLINGER & BRUCE DRY DOCK COM- Company. V. CATHERINE O. BANCROFT, Appt. V. SAME. MARGARET CLEVELAND, Appt., V. RICHARD H. CLARK, Appt., V. SAME. C. LAWRENCE LAVRETTA, Appt., V. Case Note. Although the chief importance of the above case is in overruling Mobile Transp. Co. v. Mobile, 128 Ala. 335, 64 L.R.A. 333, 86 Am. St. Rep. 143, 30 So. 645, and thereby restoring temporarily to Messrs. L. H. Faith and E. W. Faith for appellants Ollinger & Bruce Dry Dock Company, Catherine O. Bancroft, and Margaret Cleveland, and others. Messrs. R. H. Clark and N. R. Clark for appellants Richard H. Clark and C. L. Lavretta. Messrs. Gregory L. Smith and H. T. Smith, for appellee: The policy of granting the shore and soil under the navigable rivers within the corporate limits to the several cities is of almost universal prevalence. Furman v. New York, 5 Sandf. 35; Morris v. United States, 174 U. S. 196, 43 L. ed. 946, 19 Sup. Ct. Rep. 649; United States v. Mission Rock Co. 189 U. S. 391, 47 L. ed 865, 23 Sup. Ct. Rep. 606; Illinois C. R. Co. v. Illinois, 146 U. S. 387, 36 L. ed. 1018, 13 the riparian owners rights along the river front in Mobile, yet the case constitutes a valuable addition to the law respecting grants of tide lands in holding that such lands will not pass by a grant of riparian Sup. Ct. Rep. 110; Oakland v. Oakland This case is ruled by Mobile Transp. Co. v. nature of ejectment, brought by the city of Mobile to recover possession of the land particularly described in the several complaints; the same being the shore and the soil under the water of the Mobile river extending to the channel line of the river, or in other words, land lying between the channel line and high-water mark of the Mobile river. In each of the said causes the general issue of not guilty was pleaded, and on this issue the cause was tried. It was not and is not denied, but, on the contrary, admitted, that originally the title The rule so established should be adhered to the land sued for was in the state of Alato. Snider v. Burks, 84 Ala. 57, 4 So. 225; Morton v. New Orleans & S. R. Co. 79 Ala. 616; Windham v. Chetwynd, 1 Burr. 419; Herstein v. Walker, 85 Ala. 37, 4 So. 262; American Mortg. Co. v. Boyd, 92 Ala. 139, 9 So. 166; Goodwin v. Sims, 86 Ala. 102, 11 Am. St. Rep. 21, 5 So. 587. bama and held by the state in trust for the public good, under the compact by which the state of Alabama was admitted as a state into the Union. The alleged title of the city of Mobile, and upon which it bases its claim and right to a recovery of the land in question, is based upon an act of the legislature of the state of Alabama by and under which it is asserted that the said land Dowdell, J., delivered the opinion of the was granted by the state to the city of Mo court: bile. The rule of law is elementary, and is nowhere more plainly established than by alute title, which may be separated from the upland so as to cut off the riparian rights of the owner of such land. Shepard's Point Land Co. v. Atlantic Hotel, 132 N. C. 517, 61 L. R. A. 937, 44 S. E. 39. But in Hastings v. Grimshaw, 153 Mass. 497, 12 L.R.A. 617, 27 N. E. 521, it was held that a statute giving the right to construct and maintain wharves to the channel of a certain river These suits are statutory actions in the rights. Although riparian rights are species of property distinct from the soil under the water, and may be separated, not only from such soil but from the upland (Farnham, Waters, p. 2194), this seems to be the first case which has distinctly declared the rule to be that a grant of such rights will not carry the tide land. The decision, however, is the logical conclusion from the modern rule, which has been es-operated as a legislative grant of the right tablished in England, contrary, it seems, to the earlier one, that the fore shore is prima facie in the Crown, and must be expressly mentioned to pass by a Crown grant to a private owner. Roberts v. Baumgarten, 19 Jones & S. 482; Kimball v. Macpherson, 46 Cal. 105. to the soil as far as the channel. The latter decision, however, is in accordance with the Massachusetts policy to vest a certain amount of the tide lands in the abutting property owners. A similar rule of construction obtained in grants between individuals. Thus, a deed which, after reciting that the grantor is the owner in fee of certain riparian property, quitclaims to the grantee "the right to build and use a dock upon the front" of the premises, conveys only the right to use the land for the purpose mentioned, and does not convey the fee. Munro v. Meech, 94 Mich. 596, 54 N. W. 290. Under this rule, tide land will not pass by a conveyance which does not expressly include it merely because its possession might be advantageous to the grantee for purposes connected with the grant. Farnham, Waters, p. 225. Therefore a general clause following the description in a grant from the state, "of the islands, rivers, creeks, minerals, and of other heredita- But a conveyance of ferry ways consisting ments," does not operace, as against the of permanent structures of wood and stone state, to convey lands under water not will include the land under, and used with, within the boundaries of the grant. Peo-them. Gerrish v. Gary, 120 Mass. 132. ple v. Page, 39 App. Div. 110, 56 N. Y. The conveyance may, however, be in such Supp. 834, Affirmed in 58 N. Y. Supp. 239. form as to indicate an intention to pass the Although there seems to be no prior deci- soil, and then the intention will be given sion to the effect that a grant of riparian effect. So, a conveyance by an owner of rights will not pass the land under the land under water about a specified island, water, it has been decided that a mere grant of the water rights and water privileges, of a right to erect wharves will not carry hereditaments, and appurtenances, passes title beyond the land actually appropriated. the land under water, where there are no Morris Canal & Bkg. Co. v. Central R. Co. water rights except under his patent, and 16 N. J. Eq. 419; Walsh v. New York Float-no water privileges except by filling to ing Dry Dock Co, 77 N. Y. 448. change the land under water to upland. Beach v. New York, 45 How. Pr. 357. And also that a grant "for the purpose of making wharves" does not convey an abso the adjudications of this court, that in ac-, of the act in question is described in the tions of ejectment the plaintiff must recov- title. The subject of the grant to the city er, if at all, upon the strength of his own title, and not upon the weakness of the title of his adversary; and, until the plaintiff has made a prima facie case by showing title sufficient upon which to base a right of recovery, the defendant is not required to of fer evidence of his title. The first question that is presented for our consideration is whether the act of the legislature on which the city of Mobile bases its title and right of recovery is a valid act. The act, the validity of which is assailed on constitutional grounds, was approved January 31, 1867 (Acts 1866-67, p. 307), and which we here set out in full, including the title to said act. The title reads as follows: "An Act Granting to the City of Mobile the Riparian Rights to the River Front." The body of the act is as follows: "Sec. 1. Be it enacted by the senate and house of representatives of the state of Alabama in general assembly convened that the shore and the soil under Mobile river, situated within the boundary line of the city of Mobile, as defined and set forth in § 2 of 'An Act to Incorporate the City of Mobile,' approved February 2, 1866, be and the same is hereby granted and delivered to the city of Mobile. "Sec. 2. Be it further enacted that the mayor, aldermen, and common council of the city of Mobile be and are hereby created and declared trustees to hold, possess, direct, and control and manage the shore and soil herein granted in such manner as they may deem best for the public good. "Approved Jan. 31, 1867." The contention is that the act in question is void because offensive to and violative of § 2, art. 4, of the Constitution of 1865, which was of force at the date of said enactment, and which provided that "each law shall embrace but one subject, which shall be described in the title." In entering upon the consideration and discussion of this question, we fully recognize the rule of construction that an act of the legislature should not be declared unconstitutional by the courts, unless relieved of all doubt as to its unconstitutionality; and that, whenever a doubt does exist, it should be resolved in favor of the validity of the enactment. In the case of Mobile v. Louisville & N. R. Co. 124 Ala. 132, 26 So. 902, the above provision of the Constitution of 1865 was declared to be mandatory, and it was there decided that the act of the legislature there under consideration, which contained in its body a subject not described in the title, was void. The vital and material question here is whether the subject contained in the body of Mobile, described in the title of the act, is "riparian rights in the river front." The subject of the grant to the city of Mobile, contained in the body of the act, is "the shore and soil under Mobile river, situated within the boundary lines of the city of Mobile." It is admitted that the Mobile river, within the boundary limits of the city of Mobile, is a tidal stream, and the land in question is covered and washed by tide water. Moreover, of this the court would take judicial notice. "Riparian" is defined in the Century Dictionary as from the Latin word riparius, of or belonging to the bank of a river, in turn derived from ripa, a bank, and defined thus: "Pertaining to or situated on the bank of a river." Standard Dictionary a "riparian proprietor" is defined as "one who owns land bounded by a stream or other water." In Webster's International Dictionary of 1905, p. 1244, the word "riparian" is defined: "Of or pertaining to the bank of a river, as riparian rights." In the Encyclopedia Americana of 1904, vol. 13, we find: "Riparian rights are those of one who owns the land bounding upon a water course.' Such are some of the definitions of "riparian" given by the lexicographers. In the In Gough v. Bell, 22 N. J. L. 441, 464, a riparian owner is said to mean, in its common-law sense, the owner of the ripa, or bank of stream not navigable, though it is frequently used in the books to indicate the owner of the land adjoining the shore of tide water above the ordinary flow of the tide. In Bardwell v. Ames, 22 Pick. 333, 355, a riparian owner is said to mean an owner of land bounded generally on a stream of water, and, as such, having the qualified property in the soil to the thread of the stream. In Potomac S. B. Co. v. Upper Potomac S. B. Co. 109 U. S. 672, 27 L. ed. 1070, 3 Sup. Ct. Rep. 445, 4 Sup. Ct. Rep. 15, it was said: "A riparian proprietor . . is one 'whose land is bounded by a navigable stream,' and among the rights he is entitled to as such are 'access to the navigable part of the river from the front of his lot, the right to make a landing, wharf, or pier for his own use, or for the use of the public, subject to such general rules and regulations as the legislature may impose.' " In Com. v. Roxbury, 9 Gray, 451, 521, it is said: "The words 'riparian proprietor' have been heedlessly extended from rivers and streams to the shores of the sea. If it is necessary to express it by a single adjective the term 'littoral proprietor,' as used by the Supreme Court of the United States in Boston v. Lecraw, 17 How. 426, 432, 15 L. With respect to the ownership of the foundation of riparian rights properly so called, because the word 'riparian' is relative to the bank, and not the bed of the stream; and the connection, when it exists, of property on the bank with prop ed. 118, 121, is more accurate." In Potomac | and very able case in the English House of S. B. Co. v. Upper Potomac S. B. Co. supra, | Lords of Lyon v. Fishmongers' Co. L. R. 1 it was said: A "riparian right is the result App. Cas. 662, which is a direct and most of that full dominion which everyone has satisfactory authority in support of the rule over his own land, by which he is author- under consideration," ized to keep all others from coming upon In Lyon v. Fishmongers' Co. supra, on it except upon his own terms.'" It is de- pages 682, 683, it was said by Lord Selfined as the right of the owner of lands borne: "But the rights of a riparian proupon tide water to maintain his adjacency prietor, so far as they relate to any natural to it, and to profit by this advantage and stream, exist jure naturæ, because his land otherwise as a right in the riparian owner has, by nature, the advantage of being to preserve and improve the connection of washed by the stream; and, if the facts of his property with the navigable water. nature constitute the foundation of the "The rights which a riparian proprietor right I am unable to see why the law should has, with respect to the water, are entirely not recognize and follow the course of naderived from his possession of the land abut-ture in every part of the same stream. ting on the river." (Italics ours.) In Yates v. Milwaukee, 10 Wall. 497, 19 L. ed. 984, it bed of the river, this cannot be the natural was said: The riparian rights of persons owning land fronting on navigable waters are defined to be access to the navigable river in front of his lot, the right to make a landing, wharf, or pier for his own use or the use of the public, subject to the gen-erty in the bed of the stream depends, not eral rules imposed by the legislature for upon nature, but on grant or presumption the rights of the public. In McCarthy v. of law. The title to the soil conMurphy, 119 Wis. 159, 100 Am. St. Rep. stituting the bed of a river does not carry 876, 96 N. W. 531, it was said: "Ripar- with it any exclusive right of property in ian rights are not common to the citizens the running water of the stream, which can at large, but exist as incidents to the right only be appropriated by severance, and of the soil itself adjacent to the water. which may be lawfully so appropriated by In such ownership they have their origin. everyone having a right of access to it. It They may and do exist, although the fee is, of course, necessary for the existence of in the bed of the river or lake be in a riparian right that the land should be in the state." (Italics ours.) In Diedrich v. contact with the flow of the stream; but Northwestern Union R. Co. 42 Wis. 248, 262, lateral contact is as good, jure naturæ, as 24 Am. Rep. 399, it was said: "Riparian vertical. . . It is true that the bank rights proper are held to rest upon title to of a tidal river, of which the fore shore is the bank of the water, and not upon title left bare at low water, is not always in conto the soil under the water; riparian rights tact with the flow of the stream, but it is in proper being the same, whether the ripa- such contact for a great part of every day in rian owner owns the soil under the water or the ordinary and regular course of nature, not." And again, on page 264 of 42 Wis. which is an amply sufficient foundation for a 24 Am. Rep. 407, same case, it was said: natural riparian right." In Stevens Point "The rule that riparian rights rest upon Boom Co. v. Reilly, 44 Wis. 295, it was the title to the bank, and not to the bed of said (on page 305): "Such being the rithe water, is also discussed in the same parian right of the appellants, they may opinion of Cole, J., in which it enters into lawfully, until prohibited by statute, conthe judgment of the court more directly struct, in front of their land, proper booms than it does in this case, and need not be to aid in floating logs, so as not to violate noticed here at any length. We take it to any public law or obstruct the navigation rest on sound principle, and to be affirmed of the river by any method in which it may or implied in a great majority of adjudged be used, or infringe upon the rights of cases involving the point. It is distinctly other riparian owners. Although this right recognized in Chapman v. Oshkosh & M. appertains properly to their riparian title, River R. Co. 33 Wis. 629. The authority of and not to their title to the soil under the the latter case was assailed at the bar in water," etc. (Italics ours.) In Gould on Delaplaine v. Chicago & N. W. R. Co. 42 Waters, 3d ed. § 148, p. 298, it is said: "All Wis. 214, 24 Am. Rep. 386. The criticism, riparian rights depend upon the ownership however, failed to disclose to us any error in of the land which is contiguous to and the principles of the decision, or in the rea- touches upon the water; and in the case soning of the opinion. We think it amply of tide waters, at common law, upon the sustained by the authorities cited in it, and ownership of the land above and adjoining fully supported, if need were, by the later the edge of the water at ordinary high water mark. They attach to the land, and | Benson, 8 Mich. 18, 77 Am. Dec. 435. It an express mention in the deed that they will be seen from the above authorities that are sold with it is surplusage." In Farn- there can exist no doubt that the word ham on Waters, vol. 1, p. 548, it is said: "shore" has a well-defined legal meaning. So "Ownership of the dry land is a necessary we have from lexicographers, law text incident to the erection of a wharf, because writers, and the adjudications of the courts, attachment to the land above high-water what is understood and meant by the terms mark is absolutely necessary, and the only "riparian rights" and "shore." one having a right to make such attachment is the owner of the land." "The ownership of land under water is not the foundation of riparian rights properly so called, because the word 'riparian' is relative to the bank, and not to the bed of the water. Riparian rights depend upon the ownership of land which is contiguous to, and touches upon, the water, and lateral contact is as good as vertical." 24 Am. & Eng. Enc. of Law, 2d ed. pp. 980, 981, and notes. From the foregoing authorities it is quite clear that the words "riparian rights" have a well-defined legal meaning, and riparian rights in the nature of an easement have their origin in, and are dependent upon, the ownership of the upland, contiguous to and attingent on the water, and attach to and are appurtenant to the upland, and not to the soil under the water. A "shore is defined to be land on the margin of the sea, or a lake, or river; that space of land which is alternately covered and left dry by the rising and falling of the tide; the space between high and low water mark. It is synonymous with beach." Elliott v. Stewart, 15 Or. 259, 14 Pac. 416, 417. By the common law, a shore of the sea and, of course, all arms of the sea, is the land between the ordinary high and low water marks; the land over which the daily tide ebbs and flows. United States v. Pacheco, 2 Wall. 587, 590, 17 L. ed. 865, 866. In the case of Mobile v. Eslava, 9 Port. (Ala.) 597, 33 Am. Dec. 325, it was said by this court: "The shore of the sea, and its arms, is that space of land which is alternately covered and left dry by the rising and falling of the tide. In other words, that space of land which is between high and low water marks." To the same effect as to the definition and meaning of the word "shore," we cite the following cases: Shively v. Bowlby, 152 U. S. 1, 38 L. ed. 331, 14 Sup. Ct. Rep. 548; Andrus v. Knott, 12 Or. 501, 8 Pac. 763; Dana v. Jackson Street Wharf Co. 31 Cal. 118, 89 Am. Dec. 164; Mather v. Chapman, 40 Conn. 382, 16 Am. Rep. 46; Littlefield v. Littlefield, 28 Me. 180; Montgomery v. Reed, 69 Me. 510; Gerrish v. Union Wharf, 26 Me. 384, 46 Am. Dec. 568; Sullivan Timber Co. v. Mobile, 110 Fed. 186; State, Morris Canal & Bkg. Co., Prosecutors, v. Brown, 27 N. J. L. 13: Doane v. Willeut, 5 Gray, 328, 66 Am. Dec. 369; Gough v. Bell, 23 N. J. L. 624; Lorman v. The "shore" and soil under the water and "riparian rights" are entirely distinct and separate subjects, and neither includes the other. They are as separate and distinct as "timber rights" conveyed in a deed are from the fee in the soil on which the timber stands, or a "right of way" granted in a deed from the fee in the soil over which the "right of way" is granted. Suppose the state of Alabama had owned the fee in the uplands along the river front within the incorporated limits of the city of Mobile; would a grant by the state to the city of Mobile of the "riparian rights" along the river front have passed the fee in the uplands? There can be but one answer to this question, and that is, the fee would not pass by such grant, and for the reason that the two subjects are wholly separate and distinct. If this be true in such a case, could it be said that the title of an act, which described the subject of the grant as "riparian rights," would give any notice of an intention in the body of the act to grant the absolute fee in the soil of the upland? We think not. The words of a statute, if nothing appears to the contrary, should be so construed and understood as to give them their popular signification. Favers v. Glass, 22 Ala. 621, 58 Am. Dec. 272; Wetumpka v. Winter, 29 Ala. 660. Primarily that is, in the absence of anything in the context to the contrary-common or popular words are to be understood in a popular sense, common-law words according to their sense in the common law, and technical words pertaining to any science, art, or trade in a technical sense. Lewis's Sutherland, Stat. Constr. § 389. And in the same work (§ 390): "As a general rule the words of a statute are to be taken in their ordinary and popular sense, unless it plainly appears from the context or otherwise that they were used in a different sense." These are cardinal rules of construction supported alike by reason and authority. The subject "described" in the title of the act in question is "riparian rights" to the river front. We have seen that the words "riparian rights" have a common-law sense or meaning and in construing the statute must be so taken, and when so taken must be referred to the upland contiguous to and bordering upon the water, and not to the "shore" and soil under the water. In arriving at the intention and meaning |