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Bacon v. Texas, 163 U. S. 216, 41 L. ed. The volumes of state papers are evidence 135, 16 Sup. Ct. Rep. 1023; Lehigh Water to establish a chain of title to land. Co. v. Easton, 121 U. S. 388, 30 L. ed. 1059, 7 Sup. Ct. Rep. 916; New Orleans Waterworks Co. v. Louisiana Sugar Ref. Co. 125 U. S. 18, 31 L. ed. 607, 8 Sup. Ct. Rep. 741; Central Land Co. v. Laidley, 159 U. S. 103, 40 L. ed. 91, 16 Sup. Ct. Rep. 80.

The settled judicial construction of the Alabama act of January 31, 1867, and of the statute of limitations of that state, so far as rights were acquired thereunder by the plaintiff in error, is as much a part of the statute as the act itself; and the change of decision complained of in this proceeding is the same in its effect on the rights of plaintiff in error as a repeal or amendment by legislative enactment.

Douglass v. Pike County, 101 U. S. 677, 25 L. ed. 968; Ohio Life Ins. & Trust Co. v. Debolt, 16 How. 416, 14 L. ed. 997.

Proceedings under such statute, which, if taken before the adoption of U. S. Const. Amend. 14, would not have violated the Constitution, taken after the adoption, violate the Constitution if prohibited by the amendment.

Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U. S. 254, 35 L. ed. 1004, 12 Sup. Ct. Rep. 173.

This court is not bound to follow the construction of state statutes by state courts, where the question before it is the alleged impairment of a contract.

McCullough v. Virginia, 172 U. S. 109, 43 L. ed. 384, 19 Sup. Ct. Rep. 134; Douglas v. Kentucky, 168 U. S. 488, 42 L. ed. 553, 18 Sup. Ct. Rep. 199; Orr v. Gilman, 183 U. S. 278, 46 L. ed. 196, 22 Sup. Ct. Rep. 213; Hoboken v. Pennsylvania R. Co. 124 U. S. 656, 31 L. ed. 543, 8 Sup. Ct. Rep. 643; Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96, 43 L. ed. 909, 19 Sup. Ct. Rep 609.

A decision of a state court affecting riparian rights, which is opposed to the entire course of previous decisions in that state, will be disregarded by this court.

Hardin v. Jordan, 140 U. S. 371, 35 L. ed. 428, 11 Sup. Ct. Rep. 808, 838.

This court can look into the title, in arriving at the conclusion as to whether the Federal Constitution has been violated or not.

Martin v. Hunter, 1 Wheat. 357, 4 L. ed. 110; Smith v. Maryland, 6 Cranch, 291, 3 L. ed. 227.

Under the 8th article of the treaty between the United States and Spain, of February 22, 1819 (8 Stat. at L. 252), the title to lands which had been granted by the King of Spain was confirmed by force of the instrument itself.

United States v. Percheman, 7 Pet. 81, 8 L. ed. 615.

This article does not avoid surveys made after January 24, 1818, to locate grants before that time, although such grants contained no description of the place where they were to be located.

United States v. Domingo Acosta, 1 How. 24. 11 L. ed. 33.

Watkins v. Holman, 16 Pet. 55, 10 L. ed. 885; Hall v. Doe ex dem. Root, 19 Ala. 386; Stewart v. Trenier, 49 Ala. 492, 55 Ala. 458; Doe ex dem. Pollard v. Greit, 8 Ala. 932.

When the state was admitted into the Union, it agreed to treat the navigable waters of the state as its property; never to claim absolute ownership of them, but merely to assert the right of jurisdiction and control over them.

Kemp ex dem. Pollard v. Thorp, 3 Ala. 294; Mobile v. Eslava, 9 Port. (Ala.) 577, 33 Am. Dec. 325; Stearns v. Minnesota, 179 U. S. 223, 45 L. ed. 162, 21 Sup. Ct. Rep. 73.

The state only claims property in the shore as the representative of the public, for purposes entirely conservative of the usufruct therein, never destructive of it. This being the case it would seem necessarily to follow that the sovereign power can make no disposition of the shore, by grant or otherwise, prejudicial to the rights of those for whom it holds it in trust.

Abbott v. Doe ex dem. Kennedy, 5 Ala. 395; Mobile v. Moog, 53 Ala. 561; People ex rel. Loomis v. Canal Appraisers, 33 N. Y. 500; Arnold v. Mundy, 6 N. J. L. 1, 10 Am. Dec. 356.

The state does not hold land under navigable water in fee.

Stockton v. Baltimore & N. Y. R. Co. 1 Inters. Com. Rep. 411, 32 Fed. 20; Scranton v. Wheeler, 179 U. S. 141, 45 L. ed. 126, 21 Sup. Ct. Rep. 48; Illinois C. R. Co. v. Illinois, 146 U. S. 387, 452, 36 L. ed. 1018, 1042, 13 Sup. Ct. Rep. 110, 184 U. S. 77, 46 L. ed. 440, 22 Sup. Ct. Rep. 306.

Messrs. Frederick G. Bromberg and William B. Putney filed a brief for plaintiff in error in opposition to the motion to dismiss.

Mr. Harry T. Smith argued the cause, and, with Mr. Gregory L. Smith, filed a brief for defendant in error:

The report of Commissioner Crawford established that the commissioner made the report, but it did not establish the truth of any fact stated in the report, nor did the report set forth the existence of such a grant.

Watkins v. Holman, 16 Pet. 25, 10 L. ed. 873.

Such an alleged grant does not in any manner or to any extent strengthen the title of the patentee.

Goodtitle v. Kibbe, 9 How. 478, 13 L. ed. 223; Shively v. Bowlby, 152 U. S. 28, 38 L. ed. 341, 14 Sup. Ct. Rep. 548.

The alleged title of plaintiff in error is founded upon the report of the commissioner and act of Congress confirmatory thereof, and not upon any Spanish grant.

Doe ex dem. Chastang, v. Dill, 19 Ala. 421; Hall v. Doe ex dem. Root, 19 Ala. 378; Menard v. Massey, 8 How. 308, 12 L. ed. 1091; Chastang v. Armstrong, 20 Ala. 609.

A confirmation act passed by Congress in 1836 does not reach back to the original concession, and exclude grants of the same land made in the intermediate time, either by Congress itself, or a board of commissioners

or the district court acting under its au- | Am. Dec. 325; Goodtitle v. Kibbe, 1 Ala thority.

Les Bois v. Bramell, 4 How. 449, 11 L. ed. 1051.

The treaty of 1819 with Spain confirms by its own language all grants of Spain theretofore made of lands in the territory which confessedly belonged to Spain, that is, east of the Perdido river. As to lands west of that river, the treaty does not operate, for the United States has always resisted Spain's claim, and the treaty itself declares that Spain's claim was not valid.

Garcia v. Lee, 12 Pet. 511, 9 L. ed. 1176; Pollard v. Files, 2 How. 602, 11 L. ed. 395.

When a party has a complete title under the Spanish grant, no confirmation by the United States can add any strength to the title.

Doe ex dem. Barbarie v. Eslava, 9 How. 445, 13 L. ed. 209.

Perfect titles made by Spain before January 24, 1818, are intrinsically valid and exempt from the provision of the treaty between Spain and the United States ceding Florida; and they need no sanction from the legislature or judicial departments of this country.

United States v. Wiggins, 14 Pet. 350, 10 L. ed. 489.

The shores and beds of all navigable streams within the limits of the state became the property of the state by virtue of the act of its admission into the Union.

Pollard v. Hagan, 3 How. 212, 11 L. ed. 565; Goodtitle v. Kibbe, 9 How. 471, 13 L. ed. 220; Doe ex dem. Hallett v. Beebe, 13 How. 25, 14 L. ed. 35; Hoboken v. Pennsylvania R. Co. 124 U. S. 688, 31 L. ed. 551, 8 Sup. Ct. Rep. 643; Shively v. Bowlby, 152 U. S. 55, 38 L. ed. 351, 14 Sup. Ct. Rep. 548; St. Anthony Falls Water Power Co. v. St. Paul Water Comrs. 168 U. S. 357, 42 L. ed. 500, 18 Sup. Ct. Rep. 157.

The supreme court of Alabama may take judicial knowledge of the fact that the tide ebbs and flows in the Mobile river throughout the city front.

12 Am. & Eng. Enc. Law, p. 169; Walker v. Allen, 72 Ala. 456; Metzger v. Post, 44 N. J. L. 77, 43 Am. Rep. 341; Cash v. Clark County Auditor, 7 Ind. 227.

The Federal court will not construe a grant bounded by a navigable stream as conferring any title below high-water mark, although the state may allow riparian rights

below this.

403; Kennedy v. Beebe, 8 Ala. 914; Doe e dem. Pollard v. Greit, 8 Ala. 941; People v. Morrill, 26 Cal. 357; More v. Massini, 37 Cal. 432; Wright v. Seymour, 69 Cal. 122, 10 Pac. 323; Long Beach Land & Water Co. v. Richardson, 70 Cal. 209, 11 Pac. 695; Kimball v. Macpherson, 46 Cal. 108; East Haven v. Hemingway, 7 Conn. 202; Simons v. French, 25 Conn. 352; Middletown v. Sage, 8 Conn. 221; Chapman v. Kimball, 9 Conn. 40, 21 Am. Dec. 707; State v. Sargent & Co. 45 Conn. 373; Sullivan v. Moreno, 19 Fla. 219; Rivas v. Solary, 18 Fla. 126; Day v. Day, 22 Md. 537; Garitee v. Baltimore, 53 Md. 432; Martin v. O'Brien, 34 Miss. 22; Gough v. Bell, 21 N. J. L. 157, 23 N. J. L. 624; State, Roberts, Prosecutor, v. Jersey City, 25 N. J. L. 525; Stevens v. Paterson & N. R. Co. 34 N. J. L. 532, 3 Am. Rep. 269; Wheeler v. Spinola, 54 N. Y. 385; East Hampton v. Kirk, 68 N. Y. 460; Gould v. Hudson River R. Co. 6 N. Y. 522; People v. Tibbetts, 19 N. Y. 523; Roberts v. Baumgarten, 110 N. Y. 380, 18 N. E. 96; Bowlby v. Shively, 22 Or. 410, 30 Pac. 154; Parker v. Taylor, 7 Or. 445; Bailey v. Burges, 11 R. J. 331; Aborn v. Smith, 12 R. I. 373; Brown v. Goddard, 13 R. I. 76; Galveston v. Menard, 23 Tex. 349; Eisenback v. Hatfield, 2 Wash. 236, 26 Pac. 539; Harbor Line Comrs. v. State, 2 Wash. 531, 27 Pac. 550; Morse v. O'Connell, 7 Wash. 117, 34 Pac. 426; Allen v. Forrest, 8 Wash. 702, 24 L. R. A. 606, 36 Pac. 971.

Webb v. Demopolis, 95 Ala. 125, 21 L. R. A. 62, 13 So. 289, is clearly distinguishable on the ground that there the land in question was upon a navigable river above the ebb and flow of the tide.

Howard v. Ingersoll, 17 Ala. 790.

To restrict the owner to high-water mark wherever there is such and the river is actually navigable is the logical rule and that which is approved by the Supreme Court of the United States.

Barney v. Keokuk, 94 U. S. 324, 24 L. ed. 224; Packer v. Bird, 137 U. S. 671, 34 L. ed. 821, 11 Sup. Ct. Rep. 210.

*Mr. Justice Brown delivered the opin-[482] ion of the court:

1. Motion was made to dismiss this writ

of error for the want of a Federal question, but in view of the fact that defendant's title depends upon a Spanish grant claimed to have been perfected under the treaty of Packer v. Bird, 137 U. S. 669, 34 L. ed. 1819 between the United States and the 820, 11 Sup. Ct. Rep. 210; Shively v. Bowl-King of Spain (8 Stat. at L. 252), and a by, 152 U. S. 43, 38 L. ed. 347, 14 Sup. Ct. Rep. 548.

The modification of the common law has been a restriction, and not an extension, of the right of the riparian owner.

patent of the United States dated December 28, 1836, in alleged confirmation of such claim, we do not see how such motion can be sustained, unless upon the theory that the Federal questions so raised are frivolous and undeserving of further notice. We are

Packer v. Bird, 137 U. S. 666, 34 L. ed. 820, 11 Sup. Ct. Rep. 210; Wright v. Sey-of opinion that they cannot be so considered, mour, 69 Cal. 126, 10 Pac. 323. and the motion to dismiss must therefore be denied.

Following the common law, all the authorities, except in states controlled by statutes, agree that the riparian ownership on tide waters extends only to high-water mark.

Mobile v. Eslava, 9 Port. (Ala.) 577, 33

There are fifty-eight assignments of error, none of which require separate consideration, since all turn upon the respective titles of the parties to the land in question.

As the plaintiff in an action of ejectment is gress to grant a right of property in the bound to recover upon the strength of his same, and that the navigable waters extendown title, we shall first consider the several ed, not only to low water, but embraced all objections made to the title of the city. the soil within the limits of high-water 2. That the state of Alabama, when ad-mark. This case was also affirmed by this mitted into the Union, became entitled to court (16 Pet. 234, 10 L. ed. 948), though the soil under the navigable waters, below the case as here presented did not turn upon high-water mark within the limits of the the rights of the state to land beneath its state, not previously granted, was so conclu- navigable waters below high-water mark. sively settled by this court in Pollard v. Hugan, 3 How. 212, 11 L. ed. 565, as to need no further consideration. This was also an action of ejectment for lands below highwater mark in the city of Mobile. The plain-bile river were the eastern boundary of the tiffs insisted that, by the compact between the United States and Alabama, on her admission into the Union, it was agreed that the people of Alabama forever disclaimed all right or title to the waste or unappropriated lands lying within the state, that the same should remain at the sole disposal of the United States, and that all the navigable waters within the state should forever remain public highways; and hence, that the lands under the navigable waters, and the public domain above high water, were alike reserved to the United States, and alike subject to be sold by them; and that to give any other construction to these compacts [483] would be to yield up to Alabama, and the other new states, all the public land within their limits. This court, however, held that, when Alabama was admitted into the Union, on an equal footing with the original states, she succeeded to all the rights of sovereignty, jurisdiction, and eminent domain which Georgia possessed at the time she ceded the territory of Alabama to the United States, and that nothing remained to the latter, according to the terms of the agreement, but the public lands. In summing up its conclusions the court held: "First, the shores of navigable waters, and the soils under them, were not granted by the ConstituIn Boulo v. New Orleans, N. & T. R. Co. tion to the United States, but were reserved 55 Ala. 480, decided in 1875, it was also to the states respectively. Secondly, the held that the title to the shore of all tidenew states have the same rights, sovereign-water streams resides in the state, for the ty, and jurisdiction over this subject as the original states. Thirdly, the right of the benefit of the public, and its use by the pubUnited States to the public lands, and the lie for the purpose of commerce was not power of Congress to make all needful rules and regulations for the sale and disposition thereof, conferred no power to grant to the plaintiffs the land in controversy in this

This was also declared to be the doctrine of the supreme court of Alabama as late as 1853, when in Magee v. Doe ex dem. Hallett, 22 Ala. 699, it was held that, if the Mo- [484] grants in question, the lines could not, under the decisions of that court, as well as those of the Supreme Court of the United States, extend beyond high-water mark at that time, citing Pollard v. Hagan, 3 Ala. 291, Affirmed, as above stated, in 3 How. 212, 11 L. ed. 565; Abbot v. Doe ex dem. Kennedy, 5 Ala. 393, and Goodtitle v. Kibbe, 9 How. 471, 13 L. ed. 220. This last case was little more than an affirmance of Pollard v. Hagan.

case."

The supreme court of Alabama having approved a charge to the jury that "if they believed the premises sued for were below the usual high-water mark, at the time Alabama was admitted into the Union, then the act of Congress" (passed in July, 1836, confirming the title of the plaintiff), "and the patent in pursuance thereof, could give the plaintiffs no title," its judgment was affirmed. The opinion of the court was pro

nounced in 1844.

Prior to this time, however, and in 1839, the supreme court of Alabama in the case of Mobile v. Eslava, 9 Port. (Ala.) 577, 33 Am. Dec. 325, had also held that the navigable waters within that state, having been dedicated to the use of the citizens of the United States, it was not competent for Con

On January 31, 1867, the general assembly of Alabama passed "An Act Granting the City of Mobile the Riparian Rights in the River Front," the first section of which enacted that "the shore and the soil under Mobile river, situated within the boundary lines 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 they are hereby created and declared trustees to hold, possess, direct, control, and manage the shore and soil herein granted, in such manner as they may deem best for the public good."

only permissible, but in accordance with the trust annexed to the title. The place in controversy was a slip beneath two wharves, but whether it was covered at high tide by the water of the river was a fact about which the evidence conflicted, though the court inclined to the opinion that land had been formed which was not usually covered by water at high tide. It was held the title was in the state.

In Williams v. Glover, 66 Ala. 189, part of the land in controversy was an island in Some 12 acres of the the Tennessee river. tract lay between high and low water marks, and was covered with water in high foods. The court held that the ownership of the plaintiff extended to the margin *of [485] the water at its ordinary stage, and hence embraced the land between high and low water marks. As the Tennessee river is not a tidal stream, but empties into the Mississippi far to the north of Alabama, the court in using the words "between high and low

water marks" must have had reference to
the difference between the river at floods
and at its ordinary stage. No reference was
made to the prior authorities respecting tide
waters.

property, supported by a vast array of authorities, without making reference to them."

title of the riparian proprietor extended to low-water mark, but, said the court, "these cases in nowise conflict with the commonlaw rule, so often approved by this court and other jurisdictions, that on streams where In Demopolis v. Webb, 87 Ala. 659, 6 So. the tide ebbs and flows, grants of adjoining 408, the case did not turn upon the owner lands only extend to the ordinary high-tide ship of land below high-water mark, al- line along the shore. The law is definitely though the court, in delivering the opinion, settled as to this point, and it could hardly said: "Under our decisions, when a person have been the purpose of the decision in owns lands on a navigable river his owner-Webb v. Demopolis to disturb this rule of ship is held to extend so far as to embrace the land between high and low water marks," citing Williams v. Glover, 66 Ala. 189, which, as before stated, related to land But we are of opinion that there is no upon an island in the Tennessee river, and conflict between the cases in Alabama, inasnot upon a tidal stream. The land in ques- much as the cases which hold that the tion was in the city of Demopolis, on the rights of the riparian proprietor extend only Tombigbee river, a navigable stream empty- to high-water mark are cases arising upon ing into the Bay of Mobile, and at this point navigable tide waters, where the rise and apparently far above the tidal effect. In fall are of daily occurrence, and not usually the same case afterwards before the court subject to much variation in height. In reon its merits (Webb v. Demopolis, 95 Ala. gard to this class of cases the rule laid down 116, 21 L. R. A. 62, 13 So. 289), the court by the supreme court of Alabama in Mobile held that whether a grant of the United v. Eslava, 9 Port. (Ala.) 577, 33 Am. Dec. States to land lying on a navigable stream within the limits of a state extends to high or to low water mark, or to the middle thread of the stream, was not a Federal, but a local, question, citing Barney v. Keokuk, 94 U. S. 324, 24 L. ed. 224; Packer v. Bird, 137 U. S. 661, 34 L. ed. 819, 11 Sup. Ct. Rep. 210; St. Louis v. Rutz, 138 U. S. 226, 34 L. ed. 941, 11 Sup. Ct. Rep. 337; Hardin v. Jordan, 140 U. S. 371, 35 L. ed. 428, 11 Sup. Ct. Rep. 808, 835, and Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U. S. 255, 35 L. ed. 1004, 12 Sup. Ct. Rep. 173, and also held that "the rule which this state has adopted and declared through this court is that a grant by the United States to land bordering on a navigable river in cludes the shore or bank of such river, and extends to the water line thereof at low water." In none of the above cases cited from our reports were the lands situated within tide waters.

325, that private ownership extends only to high-water mark, has been consistently adhered to ever since, and notably so in Doe ex dem. Kennedy v. Beebe, 8 Ala. 909, 914; Doc ex dem. Pollard v. Greit, 8 Ala. 930, 941; Magee v. Doe ex dem. Hallett, 22 Ala. 699, 719; Abbot v. Kennedy, 5 Ala. 393; Boulo v. New Orleans, M. & T. R. Co. 55 Ala. 480; while, upon the other hand, in the cases which hold that private ownership[487] extends to low-water mark (Bullock v. Wilson, 2 Port. (Ala.) 436; Williams v. Glover, 66 Ala. 189; Demopolis v. Webb, 87 Ala. 659, 6 So. 408, and Webb' v. Demopolis, 95 Ala. 116, 21 L. R. A. 62, 13 So. 289), the lands were situated upon a navigable river far above the tidal influence, and high and low water marks were determined, not by the action of the tides, but by the actual rise and fall of the river at different season's of the year. With regard to this latter class of cases there is a great conflict of auRelying upon these cases from the su- thority in the state courts, some holding preme court of Alabama, the transporta that the rights of the riparian proprietor tion company attack the constitutionality of are bounded by high-water mark, others by the act of January 31, 1867, conveying to low-water mark, and still others by the the city of Mobile the shore and soil under thread of the stream. Some of these cases [486] Mobileriver, 'because the act impairs *vested are mentioned in the opinion of Mr. Justice rights, because riparian rights are proper- Bradley, in Hardin v. Jordan, 140 U. S. 371, ty, and because the rule in Alabama is that 382, 35 L. ed. 428, 433, 11 Sup. Ct. Rep. 808, a grant by the United States of lands bor-838, and a large number of them are redering on a navigable river includes the viewed in part 1, chap. 3, of Gould on Washore or bank of such river, and extends to ters, where nearly all the cases seem to be the water line at low water." In this connection the company insists that the decisions above cited constitute a rule of prop erty in the nature of a contract with the owners of land adjacent to the Mobile river, which have been impaired by the construction given to the act of January 31, 1867; but, as we have already noticed, none of the cases related to tidal streams.

In its opinion in this case the supreme court of Alabama seems to admit that in Webb v. Demopolis, and one or two other cases relating to the shore line of streams above the ebb and flow of tide waters. the defendant was correct in supposing that the

collected.

But even if it were conceded that there

had been a change of opinion in Alabama with respect to riparian rights upon tide waters, such change by no means raises a case under the contract clause of the Constitution. The status of real estate within a particular jurisdiction is not so much one of contract as of policy, which may be changed at any time by the legislature, provided no vested rights are disturbed. Of course, if riparian proprietors have acquired the title to the property below high-water mark by a grant or prior possession, good

against the state, they could only be dispos-evidence of an actual grant; but a further, sessed by proceedings in eminent domain. and even more serious, objection to the docThe act of 1867 declared no more than that ument, is that it contains no other descripthe rights possessed by the state in the shore tion of the land granted than that it was and soil under Mobile river were granted to 600 arpents in area, and was situated on the the city. We see nothing objectionable in Mobile river, but that no survey of the land this act. What the state held it held as existed. trustee for the public, and it had a right to devolve this trust upon the city of Mobile. What it had not it could not grant, and the rights of the riparian proprietors were neither enlarged nor restricted by the act. If subsequent cases have given any construction at all to that act, of which there seems to be some doubt, such construction would not present a Federal question, and if the supreme court of Alabama. had changed its views with respect to the limit of private [488]ownership *upon tide waters, its decision in that regard cannot be reviewed by this court. Central Land Co. v. Laidley, 159 U. S. 103, 40 L. ed. 91, 16 Sup. Ct. Rep. 80; Hunford v. Davies, 163 U. S. 273, 41 L. ed. 157, 16 Sup. Ct. Rep. 1051. Upon the whole, we are of opinion that there is no defect upon the face of the title of the city of which the transportation company was entitled to avail itself.

3. We are next to consider whether the defendant has a vested right in these lands which could not be taken from it without compensation or proceedings in eminent domain.

*Apparently in confirmation of this claim, [490] defendant also offered in evidence a patent of the United States, dated December 28, 1836, wherein it was recited that this claim had been confirmed by acts of Congress passed in 1819 and 1822 [3 Stat. at L. 707, chap. 128], and that it had been surveyed. Referring to these acts of Congress, we find that both contain a proviso that the confirmations and grants provided to be made by the acts "shall amount only to a relinquishment forever, on the part of the United States, of all right and title whatever to the lots of land so confirmed and granted." Had this patent been issued before the admission of Alabama into the Union, it would be difficult to see why it did not convey a perfect title; but it was fully settled by this court with respect to these titles, in Pollard v. Hagan, 3 How. 212, 11 L. ed. 565; Goodtitle v. Kibbe, 9 How. 471, 13 L. ed. 220, and Doe ex dem. Hallett v. Beebe, 13 How. 25, 14 L. ed. 35, that, inasmuch as all lands below high-water mark had passed to the state of Alabama upon her admission into the Union in 1819, there was nothing left upon which a subsequent patent of the United States could operate.

By the eighth article of the treaty be tween the United States and Spain of Feb. ruary 22, 1819 (8 Stat. at L. 252), "all the grants of land made before the 24th of January, 1818, by Ilis Catholic Majesty, or by his lawful authorities, in the said territories ceded by His Majesty to the United States, shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion of His Catholic Majesty." In support of this alleged grant from the King of Spain, defendant offered in evidence volume 3 of the American State Papers, enti- to convey its interest in these lands to the In connection with the power of the state tled "Documents, legislative and executive, city, as it attempted to do by the act of of the Congress of the United States in rela- 1867, much reliance is placed by the transtion to the public lands, from the first session of the First Congress to the first ses-C. R. Co. v. Illinois, 146 U. S. 387, 36 L. ed. portation company upon the case of Illinois sion of the Twenty-third Congress,-March 1018, 13 Sup. Ct. Rep. 110. This case, how4, 1789, to June 15, 1834." That part of it ever,is inapplicable for two reasons: First, relating to the claim of Regis Bernoudy of it turns upon the power of the state to conthe land in question is printed in the mar- vey its right to the soil beneath the naviga[489]gin. The difficulty with this report is ble waters of the state, and, of course, below that it contains no grant, but merely a sup- low-water mark, not to a municipal corpoposition of the claimant that a grant once ration "created and declared trustees to existed, and had been lost by time or acci- hold, possess, direct, control, and manage dent. It is needless to say that this is no the shore and soil herein granted in such Register of claims to land in the district east, Where situated, Mobile river. of Pearl river, in Louisiana, founded on pri- Quantity claimed, area in arpens, 600. vate conveyances, which have passed through Cultivation and inhabitation, from 1809 to 1813. the office of the commandant, but founded, as the claimant supposes, on grants lost by (Page 31.) time or accident.

There are other defenses presented by the record in this case, such as that of estoppel, by reason of improvements made upon this land with the acquiescence of the city, license to build a wharf, and payment of taxes; the unconstitutionality of the act of 1867, because the title of the act does not describe its subject; want of power in the state to convey its title to *the city, and the[491] statute of limitations. These, however, are all of a local nature, and present no Federal question.

[blocks in formation]

(Signed)

William Crawford,
Commissioner.

Remarks. Though the original grants upon which the preceding claims are founded have been lost, yet it is conceived that the claims to such lands, not exceeding a reasonable quanti

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