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Opivion of the Court, per DAVIES, J.
boundary. It was not stated in that case whether the river was navigable or not, but it seems to have been decided upon the authority of Hale, that fresh water rivers, of what kind soever, do of common right belong to the owners of the soil adjacent, each taking unto the filum aquae on their side. In the case of The State v. Gilmanton (9 N. H., 461), the court, after adverting to the rules laid down in the case last referred to, says: “But in relation to grants bounding on ponds, lakes or other large bodies of standing fresh water, that principle does not apply, but the grant extends only to the water's edge.”
Judge DAGGETT, in the case of Chapman v. Kimball (9 Conn., 38), states the common law, as I understand it to be, when he says, the doctrine of the common law is that the right to the soil, of the proprietors of land on navigable rivers, extends only to high water mark; all below is publici juris, in the king, in England. That is the law in Connecticut. A distinction, he adds, is always maintained between rivers navigable and those not navigable; of the former the public alone has the right; of the latter individuals may
and generally do own the same right as over other real estate. When a river, of this latter description, passes between two individuals, bounded respectively on the river, they own the soil respectively to the center of the river; when bounded on a navigable river, they own the soil respectively to high water mark and no farther. Hayes v. Bowman (1 Rand., 417, Virg. Rep.) decided that where land is bounded upon a stream not navigable, the conveyance carries with it the title to the middle of the stream. And the same doctrine is affirmed in Mead v. Haynes (3 Rand., 33). An act of the legislature of that State, passed in 1792 (ch. 86, $ 6), prohibits the granting of the bed of any stream navigable, and used in commerce. In Gavit v. Chambers (3 Ohio, 495), the Supreme Court of that State held that the rules of the common law and common sense were, that he who owns the lands upon
both banks of a river owns the entire river, subject only to the easement of navigation, and he who owns land upon one bank only, owns to the middle of the river, subject to the same easement, citing as authority the cases from this State, and the one in
Opinion of the Court, per Davies, J.
2 Conn., already adverted to. The same rule was held applicable to a stream not navigable (Benner v. Plattee, 6 Ohio, 504), and the doctrine was reaffirmed in Land v. Ricketts (11 Ohio, 311), and also in Walker v. Board of Public Works (16 Ohio, 540). These cases in Ohio make no discrimination as to rivers affected by the flow and ebb of the tide, but, in fact, hold that there is no difference in the ownership of the bed of the river, between navigable and unnavigable rivers. In Angell on Water Courses, the case of Cox v. The State (3 Black., 193) is cited as authority for the doctrine that navigable streams or rivers, in the common law sense, are those only in which the tide ebbs and flows. A careful examination of that case will show that it does not warrant such a construction. In the opinion of the court, it is said that it had been contended that the owner of the banks of the river is, by the common law, the owner of the river, and has a right to occupy and use it, in any manner he pleases, for his own benefit. In support of this position, the court was referred to Hale's treatise, De Jure Varis, and to the case of The People v. Platt (supra). The court say: “We have carefully examined these authorities, and think they do not establish the principle contended for. The case against Platt is not, as to matter of fact, in point. In that case the river had been surveyed and sold as land; there was no reservation or deduction of the bed of the stream; the whole was computed as land, and sold as so many acres; the lines of the survey crossed the river, and the government patent covered the whole survey, including the river. The stream, in every sense of the word, was private property, not only in proprietary and ownership, but also in use, not a · common passage for the public."
It will be seen that the Supreme Court of Indiana take the same views of this Case of Platt that have been already stated in this opinion; and they are now again dwelt upon, as this case has mainly given rise, and been the authority referred to in nearly all the cases, for the position, that navigable streams or rivers are only such as have the flow and ebb of the tide. The Supreme Court of Indiana then proceed to discuss the
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Opinion of the Court, per DAVIES, J.
rules of the common law as laid down by Hale in his treatise, and then say: “The doctrines of the civil law were more uniform, and the rights of all riparian proprietors were the same, as it respected the ownership of navigable streams. There was no difference made between those navigable streams where the tide did not ebb and flow, and those where it did. The exclusive right of the owner of the bank extended only to high water mark; and the bank below high water 'mark, and the whole bed of the stream, belonged exclusively to the public, and no obstruction or diversion of the water was permitted. The principles of the common law have been recognized in eight or ten of the States, but in several others the principles of the civil law, to a very considerable extent, have been adopted. In this State, neither the principles of the common or civil law have as yet received any judicial sanction.”
These are all the cases referred to by Angell on Water Courses, as authority for the statement that this rule of the common law, namely, that rivers are navigable only when the tide ebbs and flows therein, has been recognized as law in the States of New York, Massachusetts, Connecticut, Maine, Maryland, Virginia, Ohio, and Indiana. It was especially disclaimed in the latter case, the only one cited by him, Cocc v. The State (supra). The learned commentator on American law (3 Kent, 548, in a note), says this subject was learnedly discussed in the case of Middleton v. Pritchard (3 Scam., 510), where it was justly held, that at common law the title of the riparian proprietor, bounded by a navigable stream, extended only to high water mark; and in streams not navigable, the right of the riparian proprietor extended to the middle thread of the current. That arms of the sea, and streams where the tide ebbs and flows, are by the common law deemed navigable; and streams above tide water, though navigable in fact, are not deemed navigable in law. It was further declared in this case, that the Mississippi river was not a navigable stream at common law, and the title of the riparian proprietor extended to the middle thread of the stream, including islands, &c. The same question, as to the rights of the riparian owner in the Mississippi, was, it is said, very
Opinion of the Court, per DAVIES, J.
learnedly discussed in Morgan v. Reading (3 Sm. & Marsh., 336), and the same doctrine and law declared; that the common law, and not the civil law, governed the case, and the magnitude of the river did not affect it; that the Mississippi river above the ebb and flow of the tide was not navigable in the sense of the common law, and the right of the riparian owner went to the middle of the river, subject, of course, to a right of passage in the public. Chancellor KENT says: “These decisions in the courts of Illinois and Mississippi are highly creditable to their learning and firmness, and it is consoling to meet with such frank and manly support of the binding force of the common law, on which American jurisprudence essentially rests."
It is appropriate here to consider the cases in this country, where the common law rule, as understood by many judges, has been repudiated, and the rule of the civil law recognized as more appropriate to the condition of this country. A leading and well considered case is that of Carson v. Blazee (2 Binney, 475). In that case, the question was whether a patent bounded by the Susquehanna river conveyed to the grantee the title to the center or the thread of the stream. Chief Justice TILGHMAN, in his charge to the jury, said, the common law principle is, in fact, that the owners of the banks have no right to the water of navigable rivers. Now, the Susquehanna is a navigable river, and therefore the owners of its banks have no such right. It is said, however, that some of the cases assert that by navigable rivers are meant rivers in which there is a flow and reflow of the tide. This definition may be very proper in England, where there is no river of considerable importance as to navigation, which has not a flow of the tide, but it would be highly unreasonable when applied to our large rivers, such as the Ohio, Allegany, Delaware, Schuylkill, or Susquehanna and its branches. On a motion for a new trial on the ground of misdirection, YEATES, J., in delivering the opinion of the court, said, the qualities of fresh or salt water cannot, among us, determine whether a river shall be deemed navigable or not. Neither can the flux or reflux of the tides ascertain its character.
Opinion of the Court, per DAVIES, J.
Pursuing such a rule would, in the first case, render the Delaware an unnavigable stream throughout the confines of the State, and in the second, would confine its navigable quality to its several courses south from Trenton. · The property of the land covered by the waters of the Susquehanna, remains in the commonwealth as other ungranted lands.
This doctrine underwent a very elaborate discussion in the case of Shrunk v. The Schuylkill Navigation Company (14 Serg. & Rawle, 71), and the unanimous opinion of the Supreme Court was, that the rivers of Pennsylvania are not subject to the common law rule, that all fresh water rivers in which the tide does not ebb and flow, belong to the owners of the soil adjacent, so that the owners of one side have of common right the property of the soil, and consequently the right of fishing usque ad filum medium aquae, and the owners of the other side the rights of soil and fishing ad filum aquae on the other side, and that he who owns both sides is the owner of the whole river, and has the exclusive right of fishing according to the extent of his shores. Chief Justice TilguMAN very justly said, the great rivers of America are so different from those of England, that in the opinion of many, the same definition of a navigable river cannot properly be applied to both, and that court held the English distinction, that the character of navigability depended upon the quality of the water, fresh or salt, to be wholly inapplicable to the principal rivers of that State. That the only test was, whether the river was or not actually navigable. (See also Bird v. Smith, 8 Watts, 434; Union Canal Company v. Landis, 9 Watts, 228.) In Cates v. Wadlington (1 McCord), the Circuit Court of South Carolina held, after stating the rule of the common law, that in England no river is considered navigable except when the tide ebbs and flows, that that rule would not do in that State, where their rivers are navigable several hundred miles above the flowing of the tide. The Supreme Court of South Carolina have held that what is a “navigable” river in that State, does not depend upon the rule of the common law; but that waters which are sufficient in fact to afford a common passage for people in vessels, are to