Jones v. Soulard. private ownership on water-courses, when these are navigable in law, or arms of the sea, is high-water mark; and such rivers as the Ohio and Mississippi are of the same nature and dignity at law, above tide-water, as ordinary rivers below the flow of the tide. It will not be denied, that when land is bounded by a tidewater river, the limit of private property is the mark to which high tide ascends. This is the point to which the sea flows, and, whether on the seashore or in the arms of the sea, it divides the King's or the State's domain from that of the individual. The second branch of this first general proposition is more debatable. The plaintiff in error will argue it as follows: Arms of the sea or rivers, as far as the tide ebbs and flows, are navigable waters in England; and no waters are navigable in that country except tide-waters. Above the ebb and flow of the tide, no river of England is navigable at all. In inquiring into the definition of navigable streams in that country, therefore, it was found that they were correctly described to be those in which the tide ebbed and flowed. But navigability is the principal thing; the flowing of the tide is a mere incident. When, therefore, we find that there are navigable waters in America, or elsewhere, not flowed by the tide, we seek other definitions of navigable water, the flowing of the tide being no longer a test. Whatever be the new definition, we attach to navigable waters here the same consequences, properties, and incidents, that the jurists of England attached to navigable waters in that country. In other words, we treat our Western inland rivers in the same manner, and claim for them and the land bordering on them the same legal consequences, that are predicable of arms of the sea, properly so called, in England. Upon the soundness of these positions the argument for plaintiff in error wholly depends. That no rivers in Eugland are navigable above tide-water is well settled. It is so declared in 12 How., 454, Genesce Chief v. Fitzhugh et al. The words of the court are: "In England, undoubtedly, the writers upon the subject, and the decisions Jones v. Soulard. in its courts of admiralty, always speak of the jurisdiction as confined to tide-water; and this definition, in England, was a sound and reasonable one, because there was no navigable stream in the country beyond the ebb and flow of the tide. *** In England, therefore, tide-water and navigable water are synonymous terms." It is unnecessary to go beyond this. It will be taken for granted in all the residue of this argument, that this proposi tion is established beyond challenge. In the same decision it was declared in the most solemn and emphatic manner that such a definition was inapplicable. to the rivers and lakes of America, and that these were public navigable waters. (P. 454.) This being settled, it is difficult to resist the conclusion that they have all the properties of public navigable waters, such as the sea, and its arms which are flowed by the tide; which last is declared to be an immaterial circumstance, and by no means an essential feature of navigability. (Id. ibid.) If this be conceded, the case of the defendant in error is at an end, for one of the properties of arms of the sca is not to be the subject of private ownership below high-water mark. Arms of the sea do not belong to the owners of the adjacent soil; and when a man owns land bounded on a river flowed by the tide, his land is limited by the mark of high water, and does not go to the medium filum aquæ. This view of the subject is supported by the following most respectable authorities, viz: Pennsylvania-7 Barr., Naylor v. Ingersoll; 1 Penn. Rep., Tennessee-6 Humphrey, 358, Elder v. Burrows. Michigan-1 Walker Ch., 155. Alabama-2 Porter, 436, Bullock v. Wilson. But the plaintiff in error is free to confess that in some of the other States of the Union, perhaps in a majority of them, a Jones v. Soulard. contrary doctrine has been laid down, and that the decisions of the State of Missouri, and of the Supreme Court of the United States, may be cited in opposition to the views which it is the duty of the plaintiff in error to enforce. It is imagined that peculiar stress will be laid upon those cases to be found in the Missouri Reports which conflict with the doctrine contended for by the plaintiff in error. But it is believed that but little weight is due to these Missouri decisions, for in all of them the matter seems to have passed without serious dispute or discussion. There is no evidence that the matter was argued at the hearing, and it is almost certain that the points now made were not presented to the court on those occasions. If they were, they received no attention. Under these circumstances, it is submitted that this court should consider itself free to consider the case as of the first impression, so far as the decisions of the Supreme Court of Missouri are concerned. As to the decision of this court in the case of Howard v. Ingersoll, 13 How., 416-422, the point covered by this dictum was not necessarily decided, and so what fell from the court on that occasion was obiter dictum. If the decisions of the Supreme Court of Missouri be not regarded as binding, and those of this court be not considered applicable to the matter in hand, there can be no occasion to notice those cases which may be quoted from other States, no matter what degree of appositeness may be claimed for them. [The argument of the counsel upon the second point, viz: that the State of Missouri, upon her admission into the Union in 1820, became entitled to this navigable water, under the decision of this court in the case of Pollard's Lessee v. Hagan, in 3 Howard, 212, is omitted.] Mr. Garett, the counsel for the defendant in error, submitted the following propositions, viz: 1. The documents read in evidence by the plaintiff below are conclusive in favor of the plaintiff against any one not having a better title under the United States to the premises in controversy. Jones v. Soulard. 2. The land within the assignment and survey 404 is, as a proposition of fact, admitted to be in T. 45, R. 7 E., in St. Louis county, and to be within the reservation for the schools by the second section of the act of 13th June, 1812; provided, that the eastern boundary of the town of St. Louis, as then incorporated, was the middle of the main channel of the Mississippi river. But is the middle of this channel that eastern. boundary, as a proposition of law? 3. If it was within this reservation, the title passed to the school corporation by the several acts and documents read in evidence by plaintiff, whether, upon the admission of Missouri as a State, the proprietary right to the premises in controversy was continued in the United States, or transferred to the State of Missouri. Upon the first proposition, it is not intended to do more than refer to the case of Kissell v. the Schools, 18 Howard's Rep., 19, where this matter was carefully considered, and where the very pre-emption of Duncan, which is set up as one of the defences in this action, was pronounced to be a nullity. The examination of the second proposition brings up the inquiry, whether the eastern boundary of the town of St. Louis, as it stood incorporated at the date of the act of 13th June, 1812, was the middle of the main channel of the Mississippi river; and whether the out-boundary, run by the surveyor general in 1840, had for its eastern boundary the middle of the main channel of the Mississippi river. The words used in each case are substantially the same. But inasmuch as the out-boundary directed to be run by the first section of the act quoted was to be the "out-boundary line of the town," and was to be run so as "to include the out-lots, common field lots, and commons," it follows that this out-boundary line must contain at least all the land embraced within the town, or the out-lots, or common field lots, or commons of the town, besides such other pieces or tracts of land as might be included within this continuous out-boundary, though not belonging strictly to any of these.denominations. Coming, then, to the description of the town, as it stood incorporated in 1812, we find that the calls are: "thence due east Jones v. Soulard. to the Mississippi; from thence by the Mississippi to the place first mentioned." This is the description of an incorporated town which is bounded on the east by the Mississippi river. That this description is, in every legal sense, equivalent to a call for the middle of the main channel of the stream, is one of those propositions which, to use the language of Judge Cowen, in his learned note to Ex parte Jennings, 6 Cowen's Rep., 518-—543, "no lawyer will hazard his reputation by controverting." In the same note, he remarks that "the only question which can generally arise between the citizens and the State as to the ownership of rivers above the tide is, whether the former be the owner of the soil adjacent, within the meaning of Hale." (P. 543.) In the case at bar there can be no question of this kind, for (see 18 How., 19) the schools are the owners of all the unappropriated land, within a survey of which-whether we adopt the description of the town of St. Louis, as it stood incorporated in June, 1812, or of the out-boundary of the town, "run so as to include the out-lots, common lots, and commons"-we find the Mississippi river designated as the eastern boundary. The only inquiry is, does this boundary carry us to the middle of the stream? In Judge Cowen's opinion, it requires a hardy man to dispute this, and certainly the weight of authority on this subject is overwhelming. At the trial in the Circuit Court the following points were made and argued for the defendant in that court, now plaintiff in error, viz: 1. That the town of St. Louis, as the same stood incorporated on the 13th June, 1812, did not extend to the middle of the main channel of the Mississippi river as its eastern boundary, but only to high-water mark on the right bank of that stream. 2. Even if it did so extend, yet, at most, the land in controversy was only reserved for the support of schools, not actually granted for that purpose; and, upon the admission of the State of Missouri into the Union in 1820, it became the property of the State. |