THE LAW OF ALLUVION.
ARGUMENT
or
* '
WILLIAM CURTIS NOYKS,
i
! REFORE THE
.Sujrfinc €mt of í\¡t Uwïiû States,
t
in' the case ok
BATES, Pi.AiXTiFK IN ERROR,
I m.
: (
; THE ILLINOIS CENTRAL RAILROAD COMPANY',
I ^
i Defendants in Error,
I
I
I IX BEHALF OF THE DEFENDANTS,
I '
I WITH
I Au Appendix coiitaiuiug the Opinluii of the Court.
REPORTED BY
ELBRIDGE T. GERRY,
Coiinsellor-at^Law*
Ntui-ljlorli ;
YVM. C. BRYANT A CO., PRINTERS, 41 NASSAU STREET, CORNER OP LIBERTY,
1 8G2.
ARGUAIENT
OF
WILLIAM CURTIS NOYES,
rkforr the
Siiprcine Court of tíje àliùtetï States,
in the case op
BATES, Plaintiff in Error,
VS.
THE ILLINOIS CENTRAL RAILROAD COAIPANY^
Defendants in Error,
IN BEHALF OF THE DEFENDANTS,
An Appendix containing tlie Opinion of the Court.
REPORTED BÏ
ELBRIDGE T. GERRY,
Counsellor-'aNLaw.
Neu)-13ork ;
WM. C. BRYANT & CO., PRINTERS, 41 NASSAU STREET, CORNER OF LIBERTY.
1 8 6 2.
*
Johns E 1 k: ■' omv. lA-
ii'ÚV
hjn 2U lauH
ARGUMENT.
Mk, Notes said :—
May U please the Court ;—If the rules of practice which
have so long prevailed in this Court, and which were so plainly
announced some ten days ago, in tlie opinion delivered by
Mr. Justice Swayne, in the case of Jones v. Johnson, had been
properly observed in the preparation of the bill of exceptions
in this case, much of the time and labor required in its argu¬
ment and determination would have been saved. It would not
have been stuffed with all the evidence, as it now is ; and theie
would have been nothing ^ determine but the principles in¬
volved from the facts, as they would then have appeared in a
condensed statement.
I allude to this by way of apology for the examinatiou I
shall have to give to one of the main points to be presented ;
and which, by an understanding between the learned counsex
associated with me for the defendants and myself, has been
confided to me. I do not mean, however, to go over the evi¬
dence apart from the statement contained in the plaintiff's brief,
and which, in all essential details, is substantially correct. I
allude particularly to the question of title involved, and to the
question whether the sand-bar in dispute belonged to the north
fractional section of number ten, or not.
Prior to the year 1820, the Chicago river emptied its waters
into Lake Michigan, somewhere near where it now dis¬
charges itself ; and the evidence is clear that, for a long period
4
of j-cars, it also discharged itself over a large portion of what
is now called the sand-bar, in varions places along its entire
length. This bar extended in front of its nominal mouth, at
times, easterly, for a mile or more—sometimes for half a
mile—sometimes for a quarter, and so on. And the reason of
this change is apparent, as well from the natural course of the
river itself, as from the varying, vascillating character of the
stream, and the dirt and other materials held in solution. The
sand-bar was continually forming at its month, and then gradu¬
ally elongating itself it would continue for a while—always
parallel to the shore of the lake, the principal point of
discharge proceeding easterly with the formation of tlie bar.
It would then gradually proceed to form across the mouth of
the river itself, wherever it might then be ; and again, when
broken by the current and flow of the water, would as gradn-
alh' recede. So that, constantly during this period, the mouth
of the river was receding from north to south, and then back
again, returning to the north ; forming a new mouth there, and
then again proceeding south, washing away tiie old bar and
forming a new one as it advanced.
I care not whether this new mouth was aided by artificial
causes or no. It is evident, that when this sand-bar had
formed across the mouth of the river, wherever it might then
be, the waters would inevitably force their way, especially in
seasons of flood, across the bar, in its weakest part, as that was
the shortest distance to the lake. In short, the sand-bar, in its
entire length, was swept away repeatedly, within short periods
of years, by the river, and its site, at various points, occupied
as the mouth of the river, and then a new sand-bar formed
upon the ground occupied by the old one. Thus the river
filled up its own mouth repeatedly, and as repeatedly opened
the old one.
5
There is a striking instance of asimilar occurrence in the case
of the Yellow Kiver, in China ; which within the present cen¬
tury has filled up its month by a gradual deposit of matter
washed down in its usual flow, so that the river has flowed
backward into a lake, seeking and finding a new channel in
which to discharge itself, and abandoning its former mouth.
The first question presented is, where was the actual mouth of
the river at the time of the survey in 1821 : and the other is,
what was the actual mouth of the river—was it whore it
flowed into the lake at a particular time, or was it all over
that portion of the bed of the lake which at various times was
occupied by the sand-bar, and by the waters of the river, alter,
nately ? I shall consider the second question at a later stage of
my argument.
And I submit with confidence, that the mouth, at the time of
the survey in 1821, was where the river actually discharged itself
into the lake at the time—being just where it is now, between
the piers. And, if necessary, I shall contend that it was over the
whole space, below the surface of the sandbar, over which, at in¬
tervals more or less extended in duration, it discharged itself—
not merely extending northward to fractional Section ten, but
southward the entire length of the bar. For the purpose of pre¬
senting my views on this subject, I turn to the points submitted
by me to the Court, the first of which is :
The sand bar did not form any portion of the north fraction
of Section ten, when it was surveyed in 1821 ; nor was it em¬
braced in the survey. That is clear, and undisputed by the
other side. The only mode by which it was attached to that
section was by accretion, subsequent to the survey ; but I shall
consider this matter more at large hereafter.
This is proved by the map, survey, and quantity of land
given, being only 102tVö- acres ; and by the courses and dis¬
tances. If the channel which thus formed the principal mouth
6
of the liver, was one partially caused by artificial means, still it
was treated as the mouth, or as one mouth, for the purposes of
the survey ; and thus the sand-bar, which was then detached
from the nortli fraction, was excluded from being any part of
that section.
Was it at that time actually detached from the section ? I
think it was. At all events, it was sent to the jury as a ques¬
tion for them to determine, and they have found it was, and
their finding is conclusive. The question, as matter of fact, is
one of intention—whether the surveyor meant to, and did, in¬
clude this sand-bar—whether the pre emptor intended to, and
did, enter it as a part of the section—and whether the Govern¬
ment intended to grant it as a part of that section. I concede
that where there is a boundary on a river, the line must be car¬
ried to the river itself, irrespective of courses and distances ;
but what was the river here ? Where did it terminate ?
I say, then, it is clear, and seems to be admitted, that no such
actual intention existed anywhere. But it is claimed that it
passed as incidental or appurtenant to the section, although de¬
tached from it by the intervening river when the survey was
made ; because the bar, though formed again, removed and re¬
formed several times between the time of the survey and the
entiw and grant, was in existence when the entry and grant
were made. There must have have been, during intervals of
years, an entire change ; the river at times sweeping over the
whole bar, and then returning again to its former channel.
To this there are several answers. Nothing passes as
incident or appurtenant to a thing granted, unless it is also
within the legally presumed intention of the grantor and
grantee that it shall be conveyed. This legal presumption is
only indulged when there is nothing on the foce of the grant,
or in the condition of the thingj or in the situation of the parties
7
to contradict it. Here tliere are many facts plainly contrary to
the very existence of such an intention.
First, the survey and plat themselves, upon which the entry
was made—the plat especially—showing that the river then
ran straight into the lake, and treating the sand-bar as not in
existence. And your Honors will remember that even in the
year 1S36, when private cupidity sought to obtain the owner¬
ship of this land, it was surveyed by the parties who sought to
pre-empt it, without the authority of the Government ; yet the
latter rejected the survey, returned the money, and treated the
alleged land as not existing. So that the Government never
regarded it as land within any of the pre-emption laws, but as
the bed of the lake or the mouth of the river.
The fluctuating condition of the mouth of the river, thence¬
forward, until the entry in May, 1831, shows conclusively that
the sandbar could never have been considered as a part of the
section.
Then this extraordinary fact, the building of the piers upon
and over the sand-bar, by the Government, commencing in
1833, ill the channel, and at the mouth whicli its bed occupied
at the time of the survey in 1821—thus flxing the mouth at
that time as definite and established—and this while the entry
was void and unconfirmed ; the Government thus treating the
lands as its own, and unaffected by the existence of any adverse
interests or rights whatever. The entry must have been known
to the public authorities—such is the legal presumption—and
yet it was treated as null, as is shown by the Government re¬
turning the money paid by the floating pre-emptor, by the
appropriations made for the purpose of deepening the channel,
and by the erection of piers, as proposed in the report of the
commission for improving the harbor of Chicago.
Next, the Act of Congress of July, 1836, (5 U. 8. Stat, at Z.,
73,) authorizing patents to issue for this section and others which
8
had been illegally entered, must be construed as only author¬
izing the patents to be issued for the sections as originally sur¬
veyed, and according to the surveys and plats designating them.
1 submit that this is a fundamental principle of construction,
and especially as applied to this Act, It is said to the Govern¬
ment, " we have entered these lands illegall}', and we now ask
you to legalize the entry the Government replies, " we are
willing to do so, so ñir as the survey and plat extend, and no
farther," and the entry was legalized to that extent only.
If it be the rule that the Act legalizes the entry as of the
time it was made—and I concede, for certain purposes and to
promote justice, that sucli is the rule—still this can be only
upon the principle of the doctrine of relation, " that where
there are divers acts concurrent to make a conveyance, estate,
or thing, the original act shall be preferred ; and to this the
other acts shall have relation." This principle was adopted by
this Court in Landes v. Brant (10 Hoxc. U. 8. IÎ., 272), and
was repeated and enforced from the Bench the other day, in
the case of Jones v. Johnson {218. Opinion of Justice 8wayne.)
But this doctrine is the creature of the Courts. It is only
applied to avoid injustice and wrong, and to prevent injury to
the interest conveyed, by the happening of intervening events.
It is never applied to produce injustice and wrong, as to divest
an estate or interest (4 ILent Comm., 454 ; Thompson v. Leach,
2 Vcntris, 200 ; Lathrop v. Ferguson, 22 Wend., 116, 120.)
If this doctrine can be applied here, then tlie building of the
piers by the Government became illegal ; and it became illegal
as of 1831, when the entry was made. It was conceded, how¬
ever, on the trial of this cause, that the rights of the Govern¬
ment could not be aifected by any application of the principle
of relation. IIow, then, can it bo that the rights of individuals
are affected by it 2 If it can be applied, it must cover all inter¬
mediate rights and interests ; and then the laud forming the
d
foundations of the piers, and also the bed of the river, became,
under the Act of Congress, the property of the pre-emptor.
This cannot he. Tlie rule is satisfied when it legalizes the
entry as of the time it was made ; giving the pre-emptor the
land actually entered according to the original survey and plat,
which was manifestly all he intended to secure by the entry.
I proceed to a further poposition. The Chicago Kiver, at
the time the survey and plat were made, and thenceforward to
the time of the entry and issuing of the patent, had its mouth,
for all the purposes of ascertaining tlie boundary of fractional
section ten, substantially where the piers were placed in 1833,
and have since continued ; and the pre-emptor was not entitled
to extend his boundary southward beyond the north pier.
It will facilitate the understanding of this part of tlie case to
refer to the testimony of some of the witnesses—to that of Hul)-
hard {Record^ jyage \;\\o is the plaintiff's first witness ; of
Captain Ilnguinin {page 102), who went there in a vessel early^
in the summer of 1821, and sailed up the river ; and of General
Wehh, who went there in the same year [page 132), as an officer
of the garrison, and continued there until the autumn of 1822.
The substance of their testimony is embodied in the argument
of the learned counsel for the plaintiffs {at pages 20, 21), as fol¬
lows :
The sand-bar " was no part of the north fraction, the defend¬
ants alleged—1st. Because the mouth of the Chicago Eiver is
represented in the field notes, and in the plat of the survey of
1821, as being at a point east of, and in a line with, Fort Dear¬
born. 2d. Because it was shown by the testimony of Hiram
Huguinin {Record^ p. 161), and of Jas. Watson Webb (/J., p^
169, éíc.), that about the middle of July, or later (the Govern¬
ment survey having been made in June, 1821), and in the
spring of 1822, the river discharged its waters into the lake at
a point nearly opposite Fort Dearborn, and about where the
mouth of the river is represented on the official plat of the sur-
10
vey. lu reply to this objection, it was shown by the plaintiff
that the plat makes the lake on the east, and the Chicago River
on the south, down to its month, the boundaries of the north
fraction of section 10 ; that the difference between the fact in
nature—"
That is, the fact at the time of the survey.
" —And the representation of it on the map was merely one
of locality and degree—"
It was not one of locality and degree at that time, but of an
existing fact.
" —And not one of boundary ; that the natural boundaries
of the lake and the river, as they existed in nature, controlled
the locality of the mouth of the river—'•
Not as they existed then, but as they existed after, when the
river had been filled up.
''—And the quantity of area, as represented on the map,
just as they do in the analagous case of meandered lines. It
was also shown by the testimony of Jas. Watson Webb, the de¬
fendants' own witness, that the Chicago Eiver, in the years
1821 and 1822, had two mouths."
Then all this portion of the lake and sand-bar was mouth—
fluctuating, it is true—but all was mouth over which tiie
water of tiiis river flowed.
—" The one nearly opposite the fort, upon which the defend¬
ant relied, only about 50 or 60 feet wide, and IS inches deep,
and the other about half a mile further south : that both these
mouths discliarged water into the lake until the winter of
1821-2, when the upper one became closed, until a flood, in
the spring of 1822, opened it again, and deepened it so much
that the lower mouth became closed. That the only instances
11
proved by the defendant in •which the Chicago Kiver dis¬
charged its waters into the lake at an opening across the sand¬
bar, and nearly east of Fort Dearborn, were exceptional cases,
viz. : 1st, in 1821 and 1822 ; 2cl, in 1829 ; and 3d, in 1884."
They occurred about the same period of annual revolution—
seven, eight, or ten years.
"That in all these instances, these openings or mouths were
cut either artificially by the officers of the Government, or nat¬
urally^ ly extraordinary floods in the riverT
That is, the river stopped up below, and was opened
wherever tlie greatest amount of force was exercised by the
water.
" That in every instance except the last (and that has been
accomplished only by annual dredging), when these artificial
or extraordinary natural causes ceased to operate, these open¬
ings or mouths near the fort closed up again by the operation
of natural causes, and the river returned to its old and natural
mouth opposite Madison street."
Of course. But it did not remain there. It forced its way
out again at its most northern mouth, just where it now is, thus
perpetuating its old channel or mouth.
—" And that, with the exceptions mentioned, the latter was
its ordinary and natural mouth from the year 1817 down to
1834."
That is, it was the mouth -where the greatest amount of water
discharged itself into the lake, but not the only one.
Now, upon these facts I assume, that that is the channel or
bed of a river, in which the water is accustomed to flow at any
time, even in seasons of flood ; although it may be only at dis¬
tant intervals, and although the river may have another channel
2
12
or bed in wliicli it usually liows. The mouths of the river Xile,
in Egypt, are all mouths of discharge when the stream is full
from the waters wliich flow into it from the mountain torrents;
and they are none the less mouths in the dry season, when one
alone discharges all the waters of that bountiful stream.
Let nie refer to some authorities in support of this rule, and
first, as to what constitutes the river itself. Now, the bank of
a river, is that which contains the river in its utmost height ;
" ripa aidem deßnitur id quod fluinen continet." The Spanish
definition of the bank by E-ibera is, that it is that space which
the water covers when the river is highest in any season of the
year. {21artin, J., in 2£organ v. Livingston, 6 La. R., 0. S.,
228.) And when it changes its bed or course, the old Civil
Law rule was, that the ancient bed belonged to the adjacent pro¬
prietor ; as will be seen by the title " De Alccoß in the Digest
{Saiidads Justinian, 188, ßooli LI., Title J., Laxo 23), where
it is said :
"If a river, entirely forsaking its natural channel, begins to
flow in another direction, the old bed of the river belongs to
those who possess the lands adjoining its banks, in proportion to
the extent that their respective estates adjoin the banks. The
new bed follows the condition of the river; that is, it becomes
]niblic ; and if after some time the river returns to its former
channel, the new bed again becomes the property of those who
possess the lands contiguous to its banks."
This establishes the proposition that the portion of the earth
over which the river is accustomed to flow, in the ordinary
seasons of the year, is the bed of the river. Now, Sandars, in
his commentary on this passage, says :
" It might happen that the soil over which the river flowed
was known to have belonged to a different person, and not to
the owners of the adjacent banks. If the river changed its
13
cliaonel and left the soil dry, to whom was the recovered land
to belong 1 could its original owner claim it 1 or was the pre¬
sumption of law so fixed in favorem of the owners of the ad¬
jacent banks that nothing was admitted to rebut it? Gains
says, that strict law was against the original owner, but adds,
vix est ut id obtineat (D. 12, 1. 7, 5), equity would liardly allow
such strictness to prevail in all cases."
In other word, it is a rule founded on the natural law of
things, and is stated by the authority referred to, as a principle
of the " Jus Gentium J
I have printed, as an appendix to my points, some Scotch
cases. They are extracts from reports which I do not find in
the Congressional Law Library. In Scotland, where the rivers
are deep and the vallej's fertile, and, consequentlj', the soil
very valuable, these principles have been elaborately considered
and determined. The case of Menzies v. Earl of Eroadalhane,
(4 Shaw, 783, 7iew ed.,p. 791 / S. C. 4 Shaw and Eunlap, No.
474,) decided in July, 1826, by the Court of Session, held :
" A proprietor on the hanks of a river is entitled to erect a
bulwark on his own ground for the protection of his own prop¬
erty, although it is alleged that it will he productive of dam¬
age to an heritor on the opposite bank, by causing the river in
floods to overflow his land."
This decision was reversed by the House of Lord two years
after (3 Wilson and Shaw, 235), wliere the Court was of
opinion—
" That, as the embankment was made entirely on the prop¬
erty of the Earl, and under cultivation, it was not relevant {i. e.
material) to allege that damage would be sustained thereby
during floods by Menzies."
It was also found, in this case, that although the river Tay
14
had formerl}' flowed in the old channel, it had deserted that
course which was now the property of the Earl, and under cul¬
tivation. The head note in the case, as last cited, is—
" Held, that an heritor was not entitled to erect a bulwark or
any other opus manufactum on the bank of the river Tay,
wiiicli might have the effect of diverting the stream of the
river, in time of flood, from its accustomed course, and throw¬
ing the same upon the lands of an opposite proprietor, although
it was alleged that the bulwark was intended to protect the
heritor's land from the flood."
I refer more particularly to what the Lord Chancellor {Lord
Lyndhurst) said in giving judgment :
''Ihe old course of the flood stream being along certain
lands, it is not competent for the proprietoi'S of those lands to
obstruct that old course, by a sort of new water way, to the
prejudice of the proprietor of the other side."
"Would the pre-emption in this case have had aright to obstruct
the upper channel, although it was only occasionally used ?
"Would the Court hold that he was right if he had really done
so ? I think not.
The Lord Chancellor proceeds :
u s * -If j(; jg .^]gQ deal- that an inferior heritor cannot do
that which will cause the water to stagnate, to the prejudice of
the superior ; that is acknowledged to be clear law. But it is
said that applies only to the alveus of the course. But it does
not appear to me that there is any solid ground for the distinc¬
tion. The ordinary course of the river is that ivhich it tahes in
ordinary times ; there is also a flood channel ; L am not talking
of that which it takes in extraordinary or accidental floods, hut
ihe ordinary course of the river in the different seasons of the
year imist, 1 apprehend, le subject to the same gorincipleC
15
In other words you may not stop up the old channel of the
river, even though you own the adjacent land and there be
another outlet—you must leave that channel for extraordinary
emergencies. Eemarking that tlie Eoman Law i-equired secu¬
rity from the party before he could build an embankment, he
quotes Erskinês Institutes of the Law of Scotland, where he
says, " though the river threatens to change its channel and to
encroach upon your land, you cannot protect yourself to the
prejudice of the opposite proprietor;" and after citing cases
from the Digest holding this rule, he remarks :
" It is true that passages may be found in the Digest appear¬
ing to have a contrary tendency, but I think they may all be
reconciled ; or, consider the subject in this light, that these
passages to which I am now alluding, have reference to acci¬
dental and extraordinary casualties from the flood suddenly
bursting forth, and they go to this, that in such a case the par¬
ties may, even to the prejudice of their neighbors, for the sake
of self-preservation, guard themselves against the consequences ;
perhaps in this way the different passages in the Digest may be
reconciled."
Lord ErsTcine in his Lnstitutes {Booh LL, Title L, § 5,) states
the same principle :
" If the river, deserting its first channel, shall form to itself
a new one, the new channel, because it must necessarily follow
the condition of the river, becomes public ; and the old one,
which, for the same reason, ceasetli to be public, becomes the
property of those to whom the adjacent grounds on each side
belong." {Citing Just, Cod., § 23.)
These rules seem to be universal, for in LLamiltords " Medayu
(,r Ouide," which is a commentary on the JMusselman Laws,
translated by order of the Governor General and Council of
Bengal, in 1791, it is said {Vol. lY, at page 136):
16
"Lands through which the Euphrates, or Tigris, or any simi¬
lar river formerly ran, must not be cultivated, if it be possible
that the river may again run over them ; as the people whose
lands lie adjacent to the river in its former course, have an in¬
terest in desiring that the river may not be prevented from re¬
turning to it . If, however, tiie lands be not likely to be again
overflowed, they are tlien held to be Avaste, provided they do
not adjoin to any cultivated spot, because such lands are not
the property of any one, for the superiority of water repels all
other superiority ; but as soon as the land appears ahove the
water, it becomes subject to the Imam," (or sovereign.)
So too in the Frcderiouin Code ( Yol. 1. page ISO, ^ 48.)
" AVheii a rÍA"er shall at once leave its old channel, and form
to itself a new channel, the channel left shall not he divided
among the proprietors of the neighboring lands, but it shall be¬
long to our Royalties, Avhether lands Itave certain limits or be
bounded only by the river."
There is a law of the Partidas, only contrary to this doctrine
as to the ownership of the abandoned alveus, but agreeing in
other respects. {Title XX YIII, Laio 6 L ; 1 Moreau c6 Carle-
tools Edition of 1820, y;. 348.)
" Rivers sometimes take new courses, abandoning their for¬
mer beds and leaving them dry. And as disputes may arise
about the right of property to the ground thus left, we say it
will belong to the owners of the adjoining lands, in proportion
to the extent of their estates upon the banks. And the oioners
of the lands through udiich the river malees its new bed, xoill
lose thegorojoerty in the soil it covers¡ tchich ivill now be of the
same nature as the former bed, and will, lihe the river itself,
vest in the PuhlicT
And Law 32 provides for a temporary overfloAving :
" Lands are sometimes covered with Avater by the inundation
17
of rivers, and remain so covered for many days ; and though
the owner during that time loses possession of them, he never¬
theless preserves his right to the property ; for as soon as the
waters retire to their former channel and leave the land un-
covered, he will enjoy them as before."
And the same principle is stated in ^Yh^t¿s Kew Recopila¬
ción ( Vol. I., p. 90.)
The author of Colquohouii'x Civil Law {paqe 48, 982)
speaking of alvel muiatio says :
" If a river forsake its natural channel and gain a new one
upon the land of another, the old channel is divided between
the banks, in the same manner as an island rising in a public
river, if those lands were not icithin certain hounds and limits ;
and the new channel is now made as public as the river. For
tiiough the river shall afterwards return to its old course, yet in
strictness the new channel shall also be divided among the
owners of the adjacent grounds, as the old one was; hut in
equity and reason it ought to he restored to the owner. It is a
question, but without reason, whether, if the course of a ilver
which is the boundary of an empire be changed, the limits of
the adjacent territory are not also changed."
I say, then, it is clear from the evidence, that at the time of
the survey and plat, and from thence to the time of the entry,
the river was at times accustomed to discharge its waters at
the place where the piers were subsequently located by the
Government ; that vessels entered the river and departed from
it there, and that it was known and used as the river's mouth,
or as one of its months. Even if it became such in part by
artificial means, it can make no difference. It was in fact
used as, and was such, and was so recognized by the surveyor;
and it is quite apparent that the natural effect of the waters of
the lake operating against the current of the river, would even¬
tually stop up the lateral or lake shore channel, and that the
IS
river would force a direct passage for itself, where it ran out in
1821, and hut for the piers, this process would be repeated
every few years. And further : not only was there such a na¬
tural channel or month of the river, but before the ¡Dassage of
the Act of Congress legalizing the entry, the Government had
adopted that as the river's mouth, and tahen means to deepen
and improve it; making appropriations for that purpose by
several Acts. A veiy lai'ge sum has been expended there by
the Government in this way, commencing in 1833, when the
first appropriation was made. (4 TJ. 8. Stat, at Large., 645, 703,
754; 5 /A, 67.) I have only cited these down to 1836; there
are also subsequent Acts.
Xow, when this was done, the Government was the absolute
owner of the north fractional section, and of the bed of the river,
and of the sand-bar, in whatever form it existed ; and by the erec¬
tion of the piers, the bar was absolutely' severed from all con¬
nection with the section, if any ever existed, and it was located
on the south side of the river, as the sovereign ])Ower then de¬
termined that the river should be and remain. The work of
erecting the piers was done, and the channel of the river thus
ado})ted with the knowledge and the presumed approbation of
the pre-emptor. If the land was his, he could have prevented
it, unless compensation was made ; but he acquiesced, and is
therefore estopped to deny that the Government had title ; for
it entered as owner, made large expenditures, and he made no
objection. If his claim derives any support from the doctrine
of relation, he would then be estopped by relation, as he would
in that event be deemed vested with a title from the time of
the 'entry, and bound to protest against any invasion of his
rights. Then if we are to arrive at the intention of the pre-
emptor from his conduct after knowledge of these facts, at the
time they took place, his acquiescence in the acts of the Gov¬
ernment fixing this channel unalterably, and making large ex-
19
penditures in doing it, has a much larger significance than that
of operating as a mere dedication of the channel of the river
to the Public. I am not now going to discuss the doctrine of
equitable estoppel, but I contend that the eiiect of this long
continued acquiescence reaches not only to the title to the
ground covered by the piers and river-bed, but to the title to
the entire sand-bar ; and does not merely justify the erection of
the piers, but is a plain admission that he was not entitled to
any land south of them.
This, then, was the condition of things before the legalizing Act
was passed, and when on the 13th of June, 1836, the pre-emptor
applied for and received the certificate of the Register of the
Land Office, which includes and describes the fractional section
as originally surveyed, as containing 102,Vo acres, as "all that
part of fractional section number ten of the aforesaid township,
which lies north of the Chicago riverP {Record, p. 13.) ISTow,
here, the counsel for the plaintiff says, that as at the time of the
entry, in 1831, the sand-bar was a continuation of the land on the
north, the natural monuments—the river and lake—governing,
and that the pre-emptor's title includes all the land lying be¬
tween Lake Michigan on the east, the Chicago river on the
south and west, down to the ordinary and natural mouth of
that river—wherever it was. That I deny, for when the sur¬
vey was made, the mouth of the river was fixed, so as not to
include the land in question, and the certificate was taken
bounded hy the Chicago river—not by the mouth of the river,
but by the river itself, as it then was, being just as it existed
when the survey was made : and 1 submit, with confidence,
that the certificate, by its very terms, cuts off that portion (if
there were any) which lay south of the river ; the river refer¬
red to being that which had been thus adopted and improved
by the Government in a particular channel. The other chan¬
nel had been abandoned for upwards of three years. If this be
3
20
not so, tlieii tlie Government innst be lield to Lave sold tbe
piers and all tbe improvements, and tbe sand-bar south of the
piers also. In other words, it sold all its property there, and
the public improvements ; and abandoned the care of them,
and its sovereigntj-, and all its duties to the Public, in preserv¬
ing the harbor, to obscure private individuals.
And yet this part^', taking under the certificate which con¬
stitutes all his title, after a thorough investigation of the whole
matter and with full knowledge of all the facts, claims that it
should read, " All that part of fractional section number ten of
the aforesaid township which lies north of the Ciiicago liver,
at the time of the greatest extent of that river south !" I submit
that no such interpolation is admissible, and that he is restricted
by the terms of the certificate to the river, as then established.
So the patent was obtained on the 0th of March, 1837, by
precisely tbe same description, by reference to the certificate,
confirming so much of tbe section as was granted to him, to the
north side of the Chicago river, limiting it to 102jYo acres,
" according to tbe official plat and the survey of the lands,
Ac." The words " Which lies north of the Chicago river"
are omitted from tbe patent ; why, I know not ; perhaps they
were looked upon with apprehension, but the effect is the
same. This was another adoption by the pre-emptor of tbe
river, as improved and fixed by the Government, as the south
boundary of the section, and an exclusion from the description
of all the land south of the river as it then ran.
Tiie result then is, that by the actual location of the river wlien
the survey and plat were made, and by its being improved and
deepened in the same place when the certificate of entry and
patent were issued, and thus only known as the river, and the
description only applying to the river as thus located and
known, the lands granted were confined to the north side of
21
the river or pier, and the pre-emptor took no title to the prem¬
ises in dispute.
It is no answer to this to say, that the sand-bar was an¬
nexed to the section after the entiy, and upon the principles of
the law of alluvion became a part of it ; since such annexation
was temporary in its character, liable to be and often was de¬
stroyed bj^ the veiy causes which produced it ; and since the
Government, to whom the whole of it belonged, actually severed
its connection, and made a permanent channel or mouth of the
river long before the certificate of entry and the patent were
given ; and all this with the knowledge and implied assent of
the pre-emptor, who knew that the southern boundary on the
river, when the survey was made, gave him no part of the
sand-bar.
Now, as the plaintiff must recover upon the strength of his
own title only, it is not very material whether the defendants
have the title to the premises in dispute or not ; but we con¬
fidently submit that they have such title, upon principle well
established, and repeatedly recognized and settled in this Court.
I shall not, however, elaborate this point.
The south fraction of section ten is bounded on the east in
its entire length by the lake (it should have been by the river,
if the plaintiff's claim is just) for about half a mile in length,
until it reaches the mouth of the river—the same river on its
opposite bank, which was made the boundary of the north
fractional section ; the surveyor adopting the river, as it then
discharged itself into the lake as the boundary between the
two fractional sections, and of course taking no notice of the
sand-bar. The river as it then existed, being a well-known and
in some degree a permanent object, and its locality established,
must control in ascertaining what lands were included in the
survey, and must take precedence of anything else in the de¬
scription seemingly repugnant. But there is no repugnancy.
22
The courses and distances all harmonize with this view, and
leave the boundaries of each fractional section clear and plain.
Let me call your attention to the autliorities which settle the
doctrine that the question is one of intention, deducible chiefly
from tlie survey and plat; and that known and visible objects
as they existed at the time of the survey are to control. In Shipp
V. 31iner''s Heirs (2 Wheat., 316), it was held that an error in a
description of the entry is not fatal, if it do not mislead a subse¬
quent purchaser. And the Court there say :
" It is a general rule, that when all the calls of an entry can¬
not be complied with, because some are vague or repugnant,
the latter may be rejected or controlled by the material calls
which are consistent and certain. Courses and distances yield
to known, visible and definite objects ; but they do not yield
unless to calls more material and certain."
I refer more particularly to the case of Mclver v. Walker (4
Hheat. 445-7), whei-e the Court say :
"If there is nothing in a patent to control the call for course
and distance, the land must be bounded by the courses and dis¬
tances of the patent according to the magnetic meridian. But
it is a general principle, that the courses and distances must
yield to the natural objects called for in the patent. * * *
All lands are supposed to be actually surveyed and the inten¬
tion of the grantor is to convey the land according to the survey ¡
consequentl}', distances must be lengthened or shortened and
courses varied so as to conform to the natural objects called
for."
In that case there was no call in the boundary as contained
in the patent for a watercourse, but there was one laid down
in the plat, and it was claimed that the watercourse was not
included in the patent and did not pass by it. But the Court
held :
23
" If a patent refer to a plat annexed, and if in that plat a
watercourse is laid down as running through the land, the tract
must be so surveyed as to include the watercourse, and so con¬
form as near as may be to the plat ; although the lines tlius
run do not correspond with the courses and distances men¬
tioned in the patent ; and although neither the certificate of
survey nor the patent calls for the watercourse."
Now apply that rule to this case. Our eastern boundary
was the lake, and we are entitled to go to the lake either by
treating the sand-bar as the lake, or to the shore in front of the
bar. Apply it to the plaintiff's case. He is entitled to go to
the river's mouth as it then ran, and he cannot go to the river's
mouth if it stop running and make a new passage elsewliere.
Then both these grants harmonize ; oui's is bounded by the lake
itself, theirs by the river as it then ran.
Hanäley's Lessees v. Anthony (5 liVieat. 371) is another
analogous case. There it was held that the boundary of the
State of Kentucky extended only to low water-mark on the
western or northwestern side of the Ohio River, and did not
include a peninsula or island on the western or northwestern
bank separated from the main land by a channel or bayou
which was filled with water only when the river rose above its
banks and was at other times dry. And the Court tliere said :
" Where a river is the boundary between two States or na¬
tions, if the original property is in neither, and there be no
convention respecting it, each holds to the middle of the stream.
But when, as in this case, one plat is the original proprietor
and grants the territory on one side only, it retains the river
within its own domain and the newly created State extends to
the river only, and the low water-mark is the boundary."
In Preston's Heirs v. Boorman (6 Wheat., 580), it is said ;
2á
" It is a iiniversal rule that courses and distances yield to
natural and ascertained objects. But where these objects are
wanting, and the cause and distance cannot be reconciled, there
is no universal rule that obliges us to prefer the one to the
other. Cases may exist in which the one or tlie other may be
preferred according to circumstances."
So in Davis v. liainsfonl (17 Mass. D. 210), the distance
was held to have controlled everything, because the evidence
showed it could not have been mistaken, being only one foot
six inches.
And in Croghaii's Lessee v. Nehon (8 How. U. S. H., 193),
it is still more plainly said :
" It is a well settled rule of construction, tliat where there are
calls in an entry subsequent to each other, those which are in¬
consistent with tlie main intention of the locator, manifested by
the words of the entry, shall be rejected, to give eflect to the
entry. For example : distance shall prevail over course, when
it appears by other calls in tlie entry, the course has been
mistaken."
In other words, palpable mistakes in the entry shall be
rejected. So it was held in Atkinsoii's Lessee v. Omnming
(9 LLoiv. V. S. II., 479, 483), that ambiguities raised in an in¬
strument as to its subject matter, by extrinsic evidence, may
be I'epelled by like evidence ; and parts of a boundary which
are plainly erroneous may be rejected.
Again, in Barclay et al. v. ILoweWs Lessee (J Deters^ 8. G.
R., 498), it is said that artificial or natural boundaries called
for, control a call for course and distance. In this case, the call
for the river was overruled by the call for a street—the call for
the river being inconsistent with the other boundaries or calls.
25
Wülard, in Iiis work on Real Projierty (p. 20), says :
"Hence, if a grant of land be made as along the river, or by
the river, or upon the margin of the river, or to the banks of
the river, or along a highway, or to a highway, such grant car¬
ries the premises in the one case to the centre of the river, and
in the other to the centre of the highway." {Citing Walton v.
Tefft, li Wend., 216/ Canal Commissioners v. The People, o
Wtnd., 443 / The Same v. Kempshall, 26 Td., 404 / Child v.
Starr, 4 Hill, 369, 373 ; Varich v. Smith, 9 Paige, 547 / Ex
parte Jennings, 6 Coxoen, 518 / 5 Co. Rep., 106,)
He adds {Id, 405) :—
" It is competent for the parties, by the terms of the grant,
in the one case to exclude the river, and in the other to exclude
the highway ; but unless they are in terms or by necessary im¬
plication excluded, the grantee will take to the centre of the
stream, and to the centre of the highway on the other.
{Citing Luce v. Carley, 24 Wend., 451 ; Jackson v. Hathaway,
15 Johns. R., 454 / Povaston v. Payne, 2 Smithis Lead. Cases
hy Hare c6 Wallace, 192-3/ Angelí on Wcdercourses, 21 to 41.)
* * Where there is a known and well ascertained place of
beginning, in the description in a deed, that must govern, and
the grant be restricted within the boundaries given. And the
place of beginning cannot be varied by the incidental mention
of it in a subsequent patent. {Jackson v. Wilkinson, 17 Johns.,
146 / Same v. Wendell, 3 Wend., 142 / S. C. affirmed, 8
Wend., 183.) * * ^ What is most material, and most cer¬
tain, in the description of the property granted, has a controlling
influence. Thus, a river, a known stream, a spring, or even a
marked tree, controls both course and distance. Course and
distance must be varied, and distance lengthened or shortened,
so as to conform to the natural or ascertained objects or bounds
called for by the grants."
And he cites a variety of cases in support of this last prin-
26
ciple {Jackson v. Camp, 1 Cowen H., 605/ Doe v. Thompson,
5 Id,, 371/ Jackson v. Frost, Id., 31:6/ Same v. Ives, 9 Tí?.,
66; / lÍCTií/í'?? r. People, S Wend., 183,) which I have not now
time to examine.
The result of the argument of the learned counsel on the op¬
posite side is, that by the terms of the grant we are excluded
from the lake ; and if his views are correct, then we are to bo
cut off from all the benefit we have derived, and might here¬
after derive, from holding property in, and from our relations
to, so great a city as Chicago now is, and is destined to become.
Again; if, at the time of the srirvey and plat, the river had
permanently changed its bed, without the intention, so to speak,
of returning to it, and without any necessity so to do in times
of flood or otherwise ; then the eastern boundary of the south
fractional section, being the lake, would extend to and embrace
the sand bar once forming the eastern bank of the river, and
then forming the shore of the lake. I will ask the Court to
note here the case of Doe dem Madison x. Hildreth (2 Porter
{Indiana) P. 271) cited and referred to by the learned counsel
on the opposite side. There the defendant claimed the posses¬
sion of property bounded on the south by the Ohio Eiver, and
insisted that his title embraced all the land lying between the
section on the north by which his land was bounded and the.
river. And the Court held that he was entitled to go to the
I'iver, and that it constituted his southern boundary.
But further : If from natural causes, induced by floods or by
the washing away of the sand bar by the action of the waters
of the lake or otherwise, the river returned to its old bed in
front of the south fractional section ; then the ground npon
which the sand bar had been, was still a part of the lake itself,
and belonged to neither fractional section ; and this, although
it might be submerged occasionally and at intervals of
27
years. That is the result of my previous argument, and I re¬
fer to the authorities and to the Scotch cases previously quoted
in support of it. In that event, the sand bar and the ground
which it occupied, belonged to the Government, and could be
granted by it. But it did not grant it to the pre-emptor, and
shewed a manifest intention not to do so, by the survey and
plat which bounded him north of the sand bar and by the inter¬
vening river ; and by the certificate of entry and patent made
after the river had been restored by the Government to the bed
which it occupied at the time of the survey, which also bounded
him in a similar manner, and all which excluded him from the
sand bar by express words.
A point is made by the learned counsel, that the question
whether the land in controversy was within the boundary
claimed by the pre-emptor, was properly submitted to the
jury. The question raised by him is not whether or no the
charge of the Judge was erroneous ; but it is claimed to have
been ambiguous, and the argument is, "that the opinion of the
Court on this important point, was given in such a way as to
be obscure and doubtful, and liable to be misunderstood, and
was misunderstood by the jury, to the prejudice of the plain¬
tiff's title at its very source." The obscurity being alleged to
consist in not distinguishing between the " natural and or¬
dinary mouth," and the " exceptional mouth or mouths."
Now, in answer to this, I refer your Honors to the instruc¬
tions sought by the counsel for the plaintiff and defendants
respectively, to be given to the jury. By the plaintiff the re¬
quest to charge was, {Record, page 292.)
" Ilobert A. Kenzie, by his pre-emptive entry of 7th May,
1831, and the patent of the United States, dated March 7,1837,
acquired title to all that lot or north fraction of'section 10,
town 39, N. range 14 east of the 3d principal meridian,
bounded as follows : North by sec. 3, west by sec. 9, south by
4
28
the Chicago River to its mouth, and east by Lake Michigan ;
and if the jury believe from the evidence adduced that the
tongue of land known as tiie " sand bar," was, at the time of
Kinzie's entry, 7th May, 1831, a part or continuation of the
main land on tiie north, then the natural monuments of the
river and lake govern tiie rights of the purchaser, and Kinzie's
title would include all the laud lying between Lake Michigan
on the east, the Chicago River on the west down to the ordin¬
ary and natural mouth of said river."
Thus, he is asked to instruct the jury that the river extended
down in front of the defendants' land—the southern fractional
section ten—its entire or actual length ; and that all the land
between that section and the lake belonged to the plaintiff.
Clearly to this they were not entitled. The defendants' request
to charge, I read as introductory to the charge itself. {Record,
■p. 295.)
" That if they believe from the testimony, that at the time of
the survey of the fractional section upon which the sand-bar
(so called), at the mouth of the Chicago River, was situated,
the waters of said river discharged themselves into the lake,
where the south pier now is, and at the point which in the Gov¬
ernment survey, and iqion the plat by which the land was sold,
is designated as the mouth of the Chicago River—and that the
said sand-bar was south of that point, and of the then mouth of
the river—then it could be no part of the north fraction of sec¬
tion ten, and did not pass to the grantors of the plaintiff, unless
it further appeai-s, to the satisfaction of the jury, that the sand¬
bar had been both gradually and unperceptibly washed away,
and ill like manner re-formed by the action of the waters of the
lake, after said survey, and before it became the property by
pre-emption of the grantors of said plaintiff."
That was refused, and the proposition ivas put by the Judge,
in a qualified way, that if the plaintiff had shown title to the
sand bar in Kinzie and his grantees, it devolved upon the de-
29
fendants to sliow tlie title to be gone, if tliey relied simply upon
its submersion by the lake. To that I cannot give my assent,
but as the case now stands this is not material. On page 310
of the Hecord, after stating the evidence fairly, the Judge says :
" Under this state of facts, the substantial truth of which is
not denied, the laud of Kinzie, covered by his entry and pur¬
chase, would be the tract within the following boundaries, as
they existed at the time of the entry (there being no question
made but that tiie Government plats, by which sales were
made, show that the whole land north of the river, and south of
the north line of the fraction, were sold as one parcel): the
north line and west line of fractional section 10, according to
the public survey, and the Chicago Kiver and Lake Michigan
as they then existed,"—
AYell, that is putting the question to the jury, whether the
river then ran out into the lake at the place where the piers
were subsequently erected. The learned Judge proceeds :
—" fliat is, it would include all tlie dry, firm land that was at
that time between the west line of the section and the lake, and
the iiortii line of the section and the river. The river, tiie lake,
and the two lines of the fractional section 10 constituted the
boundaries. AYhether the land in controversy was within these
boundaries is a fact to be found by the jury, depending upon
the evidence before them."
So that he adopted the proposition of the plaintiff, annexed to
it the qualification of the defendant as to time, and left it to
the jury to say where was the mouth of the river at that time.
If it was where the piers were, the question as to whether the
river had another mouth was entirely unimportant. So far
from there being anything ambiguous in the charge, growing
out of the difference between an artificial and a natural chan-
30
nel, I submit it is quite the reverse. This, if the Court please,
is all I have to say on this subject, and I will proceed with
another branch of the case. I must apologize for the time I
may have to occupy, although perhaps there is none needed ;
for in settling the rights of parties, justice is more important
than time.
I think I may most wisely begin the consideration of the
other question by calling the attention of your Honors.to the
great principles sought to be drawn in conflict in this case by
the counsel for the plaintiffs—principles which have been con¬
sidered as settled for ages. It is well to see where wc are to be
led by following the propositions of the learned gentleman, and
what revolutionary results will be attained by following him.
I have gone over his printed argument with considerable care,
and think I understand the changes which he seeks to establish.
And he asks these changes to be made by this Court in favor
of whom ? Wh}'-, in behalf of a party who, knowing all the
the facts, bought up this wreck of a title, floating on the black
sea of litigation, against an unfortunate railroad corporation!
I do not mean to reflect upon the plaintiff, but he seeks here to
obtain an advantage, and to extort a large sum of money, by
exciting the fears of—what his counsel regards as—a large and
wealtliy corporation. It is no part of my duty to impute im¬
proper motives to the plaintiff, but the encouragement of such
claims not only tends to overturn well settled principles, but is
prolific of litigation in its worst forms; proving, as an old Ger¬
man lawyer once said, " lites spirae spirant^ sed nunquam ex¬
pirante It is these and similar cases of a speculative charac¬
ter which bring more business into the Courts than they can
well and conveniently dispose of, and which lead to practices
which unfortunately have not been omitted in the conduct of
this case—what, I may not mention more particularly in this
presence.
31
Now then, what are the principles sought to be overturned ?
They consist, first, of an exception to that part of the charge
which instructs the jury that a graut of land bounded on a great
body of water, like Lake Michigan, extends only to low-water
mark, or to the water-line for the time being, and not to deep,
navigable water ; and then the argument of the plaintiff's coun¬
sel irompage 56 to 65 is devoted to sustaining this doctrine,
and to overthrowing the old rule. My brother Joy has cited
the cases showing the fallacy of this position, and that the de¬
cisions are uniformly against it, and I will not recapitulate
them. During the present term, tliis Court held in Dut-
ton, et al., t. Strong, et al., that the general principle applied
as well to the great lakes as to the Ocean itself, and Mr. Justice
Clifford, in delivering the opinion, said :
" Our ancestors, when they immigrated here, undoubtedly
brought the common law with them as part of their inherit¬
ance ; but they soon found it indispensible in order to secure
these conveniences, to sanction the appropriation of the soil
between high and low water mark to the accomplishment of
these objects. Different States adopted different regulations
upon the subject; and, in some, the right of the riparian
owner rests upon immemorial local usage. No reason is per¬
ceived why the same general principle should not be applicable
to the lakes, although those waters are not affected by tiie ebb
and flow of the tide; and, consequently, the terms 'high and
low water mark' are net strictly applicable. But the lakes are
not navigable, in any proper sense, at least in certain places,
for a considerable distance from the margin of the water.
Wherever the water of the shore, so to speak, is too shoal to be
navigable, there is the same necessity for such erections as in
the bays and arms of the sea ; and where that necessity exists,
it is difficult to see any reason for denying to the adjacent
owner the right to supply it ; but the right must be understood
as terminating at the point of navigability, where the necessity
for such erection ordinarily ceases."
33
I cannot expect that this or any other established rule of law,
will thus easily he overturned. It may, indeed, be necessary
for the sustentation of the plaiutiö''s case that it should be ; and,
however hopeless the effort, the attempt shows the courage with
which it is made.
The learned counsel for tiie plaintiff concedes our rule of
accretion and decretion as applied to water-courses, including
rivers and lesser streams, with, as he calls them, "flexible
channels," as well settled, commencing with the Itoman civil
law (Brief^pages 57, 70); but in anotiier p)art (pages 72-3) he
contends that if the situs can be identified in a case of decre¬
tion, the title is not lost, even in rivers which have permanently
overflowed their banks ; and even that the land newly over¬
flowed need not be reclaimed within the time allowed by the
Statutes of limitation.
Then he condemns Blaclestone as having fallen into an error
in applying the rule to water-basins, "not having," as he says,
(page 73) shown the necessary discrimination.'''' The denounced
passage from Blaclestone 1 beg leave to read (3 Bl. Com.., 262) ;
" As to lands gained from the sea, either by alluvion,'bj the
washing up of sand and earth, so as in time to make terra
firma ; or by dereliction, as when the sea shrinks back below
the usual water-mark ; in these cases the law is held to be, that
if this gain be by little and little, by small and imperceptible
degrees, it shall go to the owner of the land adjoining. Tor de
minimis non curat lex : and, besides, these owners, being often
losers by the breaking in of the sea, or at charges to keep it
ont, this possible gain, is, therefore, a reciprocal consideration
for such possible charge or loss. But if the alluvion or dere¬
liction be sudden or considerable, in this case it belongs to the
king ; for as the king is lord of the sea, and so owner of the soil
while it is covered with water, it is but reasonable he should
have the soil when the water has left it diy. So that the quan¬
tity of ground gained, and the time during which it is gaining,
are what make it either the king's or the subject's property."
33
Then he points out the " necessary discrimination," which he
says the English commentator and the Roman lawyers have
not drawn ; namely, greater width, greater inflexibility of their
water beds, and hence, he says, the accretions must be, in
water basins, small and insensible, not producing a correspond¬
ing change on the opposite side, or elsewhere, and the lake
having, in truth, but one bank or side ; consequentl}', only two
parties can be interested in the changes—the Public and the
riparian owner ; whereas in water courses tliere are three : two
riparian proi>rietors and the Public. All which I might properly
deny, for wherever there is an accretion there must somewhere
have been a deci'etion, though it may be difflcult to fix the
locality-, and so there are the same parties interested.
Tiien he says {cit fage 76) that :
" Under the Feudal System, the sovereigns of modern Europe
generally claimed as private propertj", and as a branch of their
revenues, the shores of all navigable waters without distinction,
that is, the belt of land land lying between high and low water
marks, and accordingly, either expressly or impliedly, restricted
their ripaiian grants to high water mark. Under this rule, all
•accretions and décrétions, gradual or sudden, belonged to the
king. Under this uniform restriction, also, the natural differ¬
ences between water-courses and water-basins were overlooked.
When the rigor of the Feudal System began to relax, the prin¬
ciples which had grown up in the Roman law in reference to
water-courses alone were gradually applied to both without
distinction."
Now this seems to proceed upon the supposition that in all
tiie countries of Europe and Asia governed by the rules of the
Civil Law, there were no water-basins. The counsel has over¬
looked the fact that the Caspian Sea is one, the Sea of Azof is
another, the Euxine a third, and even the Mediterranean—the
wx
great inland sea of all Europe—falls under the same category,
for as the poet has long ago said :
" There shrinks no ebb in that tidelesa eea."
Then he apologizes for his assault upon principles so vener¬
able for their auticpiity and universal adoption, and "hopes to
be pardouj^d for venturing to do so," but claims that the " spirit
of an enlarged jîj^ilosophj-," which extended the admiralty juris¬
diction to the lakes, in the case of the Genessee Chief v. Fitz-
Jixigh (12 How. TJ. S. i?., 4i3), warrants the adoption of a new
rule ; foi'getting that that enlarged philosophy which has pre¬
vailed everywhere with, and is indeed a part of, the common
law, applied, for the purposes of admiralty jurisdiction, the
same rule to the lakes that for ages had been applied to the sea,
because they loere great inland seas. True, the reason of the
rule was questioned by Grotins, probably by reason of the
condition and laws of his own countiw, Holland, but even ho
concedes, in eftect, that it has been long and firmly established.
And your Honors have held, in the case of Moore v. Am.
Transß. Co. (2T How. TJ. S. 12., 1,) which arose in reference to
tiie terms of an xVct of Congress limiting certain liabilities of
transportation con)i)anies as carriers, that the words " inland
navigation" did not apply to the great lakes. In other words,
that they are inland seas, and therefore are to be governed by
the same rules which apply to tlie Ocean itself.
At pages 17-8 of his argument the counsel proceeds in de¬
tail to assail the settled doctrine which he admits has prevailed
from the earliest ages, " that if the loss be gradual and imper¬
ceptible, the soil, including the situs, is lost." I ask then, whether
the argument does not apply as well to the Ocean itself, as to
the great seas around Great Britain ? The argument then is
elaborate, that there is no practical difference in the efiect pro¬
duced by a sudden or a gradual cause ; and hence there should
35
bo lio diífoi'oiice in tlie rulo of law. If that he so, then it
slnnikl not be applied to rivers—to "streams with flexible
channels."
Thon he urges, that the law as to title to personal property,
dift'ers from that as to real, a distinction not known to the Eo-
man Law ; and hence, he says, (j?. 93) :
—" The ]rrobablo sourse of the misapplication to sltus^ or real
estate, as a measure of the continuance of its title—of the rule
as to the perceptible or imperceptible change of surface—a rule
which, fi'om its nature, and the distinctions of the common law,
can be directly applied only to (jucstions of title to soil, as per¬
sonal property."
Thus, then, he seeks to overthrow the rule of this Court, laid
down in Xtto Orleans v. The TOniteJ States, (10 Peters, S. V.
P., TIT,) cited by my learned associate, which adojiis the Civil
Law rule, and applies it to the Mississippi River. For if the
reason be sound which prevents the application of the principle
to lakes, the principle is equally inapplicable to the C>cean, and
the old rule must be wholly abandoned.
He claims, then, that by decretion or denudation, the title is
not lost in any case, although it be gradual and imperceptible,
if the -^Itus be capable of identification ; and then he attempts
to establish this by a citation of authorities—Continental, Eng¬
lish, and Annu'ican.
Jud(;e Xelsox.—What do you mean by identification of the
situs ? Is it following the line of the water i That is, if the
water encroaches on the land that the title cannot be lost if the
land can be identified t
JMi:. XovEs.—I do not feel at liberty to answer for my learned
opponent what he means by an identification of slftis, but iny
own view of his argument is, that if yon can identify the
36
boundaries of the place where the washing away has occurred,
the title to the land is not lost in any case, although the ground
has been submerged by the lake to any conceivable depth. Of
course, if this be so, then Tribonian and his associates, the
wise and renowned framers of the Corpus. Juris Civilis the
theoiy upon which they proceeded are blotted out. The coun-
sel quotes Puffendorf, whose views are indefinite ; he quotes
Yattel, who is clearly with us ; and even the Partidas, also
referred to, only holds in cases of inundation that the right to
the property' is preserved to the owner. He also quotes Lord
Hale to whom my learned associate has devoted himself and
shown that he is really with us, and he winds up by citing the
Pennsylvania case of The Commomcealth v. Shaw (14 Serg. &
Rawle, 109,) where it is said that a rock which was overfiowed
at high water by means of permanent artificial erections in the
Schuylkill, made under State authority, was still the property of
its former proprietor ; a position the contrary of which it is not
at all necessary for us to maintain.
Justice Geiee.—In Pennsylvania the r\ÚQ has always been
so held in the State Courts, owing to the exceptional laws pre¬
vailing there. I cannot say that I have entirely assented to the
doctrine.
Me. Hoyks.—The case in Hew Yorh cited by the learned
counsel, of The Chainplain and St. Lawrence P. P. Co. v. Yal-
entine (19 Barb. S. C. P., 484), is somewhat relied upon ; and as
the construction of our State Courts may not be familiar to all
your Honors, it may be well for me to state that it was a deci¬
sion made at Special Term by a single judge, aud never came
under review iu any of our highest State tribunals. Besides,
oil examination it will be found not to conflict with the general
rule.
ZI
What further, then, in reference to the English decisions,
does this attempt to change the fixed rules of law seek to over¬
throw ? It must overturn the case of The King v. Lord Yar-
horough (3 Ld. Cress., 91 ; S. C. in House of Lords, 2 Bligh.
N. 8., 147, and 1 Dow. & Clarh, 176 ; Ä 6'., suh nom., Gifford
V. Ld. Yarhorough, 5 Bing. R., 163,) where it is decided in
efiect, that in cases of alternate accretion and decretion, the
riparian proprietors have moveable freeholds, that is, moving
into the river with the soil as it is imperceptibly formed, and
then again receding, when by attrition it is worn away. Tiie
facts were as follows : Lord Yaiioorowjh owned lands immedi¬
ately adjoining the sea, and to prevent the encroachment of
which upon his lands, he built sea-walls on two sides. The ooze,
mud, and soil from the sea were gradually deposited outside of
and against these walls, until by the accretion some four hun¬
dred and fifty acres of land were made in a short time, which
the Crown claimed against him. But the Court of King's
Bench held, and the decision was afiirmed in the House of
Lords—the land being formed by tlie gradual and imperceptible
action of tlie sea—that he, and not the Crown, was entitled
to it.
So, Ln Re The Bull and Selig Railway (5 Mees. & Wels.,
827.) There the surface of the grounds of a riparian proprietor
was gradually wasiied awa}'' by the action of the waters of the
river Humber, which is an arm of the sea, and the railway
company took for their road the situs of a portion of the land
so washed away, which, however, was uncovered by tho river
at low water ; and the question was, whether the Crown or the
riparian proprietor was entitled to the damages for the taking
of the land. The boundaries admitted of no dispute, yet
the Court of Exchequer refused to hear the Solicitor General
in reply, in support of the title of the Ci'own. Let me refer to
tlie argument for the riparian proprietor in that case, for a mo¬
ment ; I do it in order to show that the propositions of the
learned counsel opposed are substantial]j a reproduction and
elaboration of the argument of the counsel tliere, having for
their purpose the same end—the destruction of the old rule.
Sir Fredeviclc Pollock saj's {patje 330) :
"There is no doubt that the gradual accretion of the land
upon the sea belongs to the subject, according to the decision
in Reia v. Lord Parhorough ; but there is nothing in that case
to show that any correlative right exists in the Crown as against
the subject. The same law does not apply to the Crown and
to a subject; because the Crown is the trustee for the Public
of all its lands, and can have no rights opposed to those of an
individual proprietor. In contemplation of law, all subjects
hold their land by grant from the Crown : when, therefore, the
Crown has granted to a subject land marked out by precise
limits, that is, by the then existing boundary of high-water
mark, can it be said that the Crown is entitled, on public
grounds, afterwards to resume any part of the land so granted ?
As between the Crown and a subject, there can be no distinc¬
tion in principle, between a sudden and an imperceptible over¬
flowing of the land. As between subject and subject, it is
otherwise, for the prevention of litigation and the settlement of
their mutual rights. Therefore, if a river, which is tiie bound-
arjr between two estates, gradually changes its course, the land
also changes its ownership accordingly: ljut tliere is no reason
for suck a rule as to the encroachment of the sea ; as long as
the sulject can, hg metes and hounds, make out his title to the
land originally granted, there is no interest, puhlio or private,
which requires that it shall he resumed hy the Crown."
Then after citing the very dicta relied on by the ]flaintiff's
counsel in the present case, he says : " There is nothing to point
to any difference between a gradual and a sudden inundation."
39
Lord Ahinger then remarks :
" ïlie Crown represents the Public : the Public have rights
of passage over navigable rivers. Suppose tlie river Humber
were to change its course bj gradual accretion, so that the
north bank came to where the south bank now is, according to
your argument tlie subject would gain the old bed by accretion,
but the Crown would gain nothing by the recession—therefore
the Public would lose their riglit of passage."
Baron Alderson says :
" Lord Hale, in his remarks on the Ahhot of llamsefs case,
seems to suppose the riglit recij)rocal, and that the loss goes to
the partj" to whom the benefit would go."
iSir FredericTe proceeds :
" The Crown does not lose anything, but only has a little
further to go to its domain. Tlie right of the Crown merely is
the boundary."
The Solicitor General, about to reply was stopped, and I read
what Lord AMnger said, to show that after the lapse of ages,
principles well settled ai'e not permitted to be discussed as res
integra.
" This case appears to me to be free from difficulty. If the
Crown cannot adduce the authority of many decided cases in
support of its claim, it is because in principle no doubt could
be entertained upon it. It is admitted, that as between subject
and subject, the law as to gradual accretion is settled by the
case of Bex v. Lord Yarhorough. The jirinciple there estab¬
lished is not peculiar to this country, but obtains, also, in others,
and is founded on the necessity which exists for some such rule
of law, for the permanent protection and adjustment of prop¬
erty."
Now all these cases must be overturned, as well as those I
have cited, if the argument of the counsel is to prevail.
40
If it please the Court, I shall devote the residue of the argu¬
ment which I propose to submit to your Honors, to a somewhat
rapid consideration of the law of accretions—to whom they
belong; and, as a consequent and correlative doctrine, to the
law of décrétions, to show how long fixed and established the
rule which governs them has been ; and then to consider
whether there are any exceptions to the rule, and what they
are.
My principal proposition is, that the charge of the Judge,
that if tlie jury should " find from the evidence, that the bar "
(upon the supposition that the plaintiff had had a title to it
through the pre-emption) "was washed away gradually and im¬
perceptibly by the waters of the lake, and that what was the
sand-bar became the bed of the open lake, and so continued for
a series of years, that the owner of it did not resist the action of
the water, but permitted it to remain, for seven years or more,
an open roadstead * then that the title to that portion of
the same bar, so washed awaj'', and so covered with water, had
become vested in the Public ; and that the plaintiff could not
j-ecover such portion in this action," was correct. The Judge
in (his case spoke of seven years as the period of limitation, be¬
cause that is the time fixed by statute in the State of Illinois,
vdiere the land in controversy is situated.
I cannot better express my views on this point, than by
by adopting the terse language of my able and learned associate
(Mr. Joy) :
" All th'e cases and books state that accretion and decretion
by action of water are governed by exactly the same rules—the
one is exactly the reverse of the other. What is gradually
worn away from land the owner loses. What is gradually taken
from the water by accretion to land, the Public, which is the
owner of the bed of navigable waters, loses."
41
So tliat accretion and decretion are correlative, it being a
necessary consequence tliat where, on the one side of a stream
or lake, there is a decretion, somewhere on the other, there
must be an accretion and the converse, in all cases.
I say, then, it is well settled as a general rule, that gradual
and imperceptible additions to the land domain are the gain of
the proprietor. It is conceded that this is the law De alluvione
of the Digest {Lib. II, Title /, laio 20.)
" Moreover, the alluvial soil added by a river to your land
becomes yours by the law of nalm-e {jtire geniimn). Alluvion
is an imperceptible increase, and that is added by alluvion,
which is added so gradually that no one can perceive how ranch
is added at any one moment of time."
There was in the Civil Law one exception to this rule, wliich
was in the case of agri liinitati, and that was scarcely an ex¬
ception. It was where lands lying along a river, were
granted or sold in plats, and the bonndajy lines fixed by tiie
State were deemed not to extend to the river. Tliese agri were
chiefi}-grants made to soldiers, of conquered lands, and the State,
limited the boundaries, so as not to carry the lands to the river
in such a manner as to confer the right of a riparian proprietor.
An analogous rule is well settled in our own Courts, that if the
boundaries of a grant do not extend to the bank or centre of the
stream, the grantee is not a riparian owner, so as to be clothed
with his rights. This is the reason of the Roman Law :—
" That the particles deposited by alluvion were considered
public, as forming a portion of the current of the stream, the
waters of which were public ; and when these particles were
deposited by the side of a plat granted or sold by the State,
they were not allowed to enlarge the plat of which the State
had already determined the proper size."
42
Upon this subject I refer to Sandai's^ Justinian^ (p^ge 186)
as being better than Coojieds—having an accurate coranientary
—and being the one now chiefly used in England by the Coun¬
cil for Legal Education of all students called to the Bar.
lie says :
" If these plots were enlarged by alluvion the increase did
not become fiie property of tlie owner of the plot."
I refer also for this doctrine and its adoption in England to
Colquohoun s Civil Law (Yol. II, § 981) where this Civil Law
rule is stated as follows :
" The last species of natural accessions is insula hi iltmiine
nata; alluvia vis ßuminis, ov avidsio et álveo mutatio. The
word alluvia implies a gradual increment : it differs from
andsio, which is a violent separation of a piece of ground
by the force of a river and its annexation to the property
of another and neighboring estate, in which case it belongs
to the previous owner until by length of time atid without any
measures taken to prevent it they cleave together and become
firmly united."
The rule given by Blackstone, already referred to, is substan¬
tially the same.
It was under this law of accretion, as your Honors will re¬
member, that the Emperor Napoleon claimed the Kingdom of
Holland ; forgetting that at the time of the alleged accretion
the adjacent countries did not belong to him. " The Rhine,"
said he, "is mine, and the land through which it flows. Hol¬
land is an alluvial country, formed wholly by the deposits of
the Rhine, as the Delta of Egypt is by that of the Nile ; there¬
fore Holland is a natural accession to the kingdoms subject to
my rule and belongs to me." Quite as good as many of his
other arguments for the acquisition of territory.
As I have already said, the effect of admitting the innova-
43
tioDS now so stoutly contended for on the other side, will he to
overthrow all these Civil Law doctrines wliich at an early period
were incorporated into the Common Law of England, certainly
as early as Bracton who was a Justiciarius as early as the reign
of Henry III (A. D. 1270) and who copied Law 20 verlatim.
{Bract07i,Lih. 2 Cap, 2.) It was well said by Chief Justice
Best in Lord YarhorougKs case; (I Doio <È Ciarle,, 187.)
" Bracton, the great authority of his time represents it as the
law of the land in the time of Henry III, * * * and LLale
himself in his History of the Common Laxo says the system
was considerably improved in the time of Bracton, and much
was, no doubt, borrowed from the Civil Law."
Your Honors will find the same rule has always prevailed in
Scotland. Lord Stair i\^ \\m Institutes. {Vol.2, lñl\ Booh LL,
§ 35) says ;
"Appropriation by alluvion is admitted in all nations, îov
thereby the adjectioii of another's ground insensibly and nn-
perceivably by the running of the river, becomes a part of the
ground to which he is adjected ; because it is uncertain from
whose ground such small and unperceivable particles are car¬
ried by the water, and thereby also the frequent questions that
would arise between the proprietors upon the opposite banks of
rivers are prevented."
And he gives a beautiful and apt illustration of the applica¬
tion of the rule when he says :
" And though the adjection may be perceivable and consider¬
able in a tract of time, it maketh no difference, if at no par¬
ticular instant the adjection be considerable; as the motion of
the palm of a horologe is insensible at the instant, though it be
perceivable when put together in less than the quarter of an
hour."
6
a
ErsTiine {Booh II, Title 1, § 14) lias precisely the same doc¬
trine. I need not advert to it at large. I have shown before
that these principles were adopted in this Court some years ago,
in the case of Eeio Orleans vs. The United States (10 Peters S.
G. P., 817.) Justice McLean delivering the opinion of the
Conrt, said :
" The question is well settled at Common Law, that the per¬
son whose land is bounded by a stream of water, which changes
its course gradually bj^ alluvial formations, shall hold by the
same boundary, including the accumulated soil. î7o other rule
can be applied on just principles. Every proprietor whose
land is thus bounded, is subject to loss, by the same means
which ma}' add to his boundary ; and as he is without remedy
for his loss in this way, he cannot be accountable for his
gain.-'
And here I beg to call the attention of the Conrt, without
going over it minutely, to the case of Morgan v. Livingston (6
Martin \La P.] 245-51), to which I have already alluded.
There Mr. Livingston, the defendant, exerted all his learning
and ability in a case involving many millions of dollars to over¬
throw this well established doctrine. Neither that extraordin¬
ary stimulus, nor his zeal as a party, and as a prominent and in¬
fluential member of the bar, could secure his success. lie was
defeated. That was the first attempt—this, may it please the
Court, is the second ! It remains to be seen whether this must
not share a like fate.
In this case. Judge Martin, after referring to the doctrine of
tlie case of Attms, says:
"The banks of the river, opposite to the trapezium, passing
to the vendee cum onere, must have passed cum commode / for it
is according to natural law that the advantage of every thing
should belong to him who has its burden. ' Secundum naturam
est commoda ctijusgue cum segui quem seguuntur in commodoi'
45
* * * It is true the vendor had retained the land behind
the trapezium, and might, in the event of the road and trap¬
ezium being carried away by the water, become liable to suffer
as riparius ; hut, as appears by the law of Attius, when the
field of Titius and the road which separated Attius' field from
the river were carried away, Attius became entitled to any
increase or loss that would then attend any contiguity of the
river."
I do not mean to reconsider the case of Attius, because my
colleague (ilu. Jot) has exhausted the subject in his brief.
The report of it is tliis: {Pandects, Lib. 41, Art. 2, § 28.)
" Attius had a farm adjoining a public highway ; beyond the
road was a river and a field of Lucius Titius. The river had a
current. By degrees, little by little, first of all it abraded the
field wliicli lay between the river and tlie public road, and then
wore away tlie road itself. Afterwards again, little by little, it
retired, and by alluvion returned to its ancient bed. It was
decided as follows : When the river had worn away the field
and the public road, that field (so worn away) became the prop¬
erty of him who owned the farm on the opposite side of the
river; that afterwards, when by little and little, the river
retired back to its former channel, it took the field away from
him whose property it had become, and gave it to him whose
farm adjoined tlie highway, since (or because) his farm had
been next to the river. Tiiat which had been public had been
gained by no one, yet it was decided that the higliway consti¬
tuted no objection why the field which had been formed by
alluvion opposite Attius' farm beyond the highway, should not
be the property of Attius, for the way itself was a part of the
farm."
In that case by the gradual advance of the water, the free¬
hold of Titius was washed away, and that constituted Attius a
riparian owner, and, when the water retired, he being such
riparian owner, became entitled to the land which had been
the field of Titius.
46
I now call yonr Honors' attention to the doctrine of acquies¬
cence, upon which, in some degree, a case like that of Attius'
depends, and which is a necessary element in the rule, although
it is anticipating the order of my argument somewhat. The
well settled rule is, tliat a riparian owner, whether his land is
bounded by the waters of a navigable river, or a lake, or the
sea, is entitled, when gradual changes are effected by the ac¬
tion of the water, to retain his water boundary ; and that he
acquires absolute proprietary rights to increment made to his
original domain by alluvion or otherwise, «5 against the Public.,
as well as against other riparian proprietors. Such being his
rights as against the public, the public have corresponding
rights as against him ; and where the water gains upon the
land b}^ a gradual and imperceptible advance, the Public b.eing
the owner of the bed of the waters, becomes also the owner of
the land thus newly covered with water—whether such waters
are the waters of a navigable river, of a navigable lake, or of
the sea. Undoubtedly the riparian proprietor may, in order to
protect his land against the encroaching waters, erect a defence
in the shape of a wall or pier. If he does not do so, he is in
law regarded as acquiescing in the change which is in progress.
This is well settled in some recent Scotch cases, to which I now
invite yonr attention. The Duke of Gordon v. Duff {Morris-
mi's Dictionary of Decisions, 12773 / Elchics, Title, 11: 3
Broicids Synopsis, 1976) decided in 1735, n-as a case where—
" A small stripe coming off from the main body of a river,
about a mile above where it enters the sea, did gradually in¬
crease until it became a branch of the river, upwards of sixty
feet over ; as this branch was daily encroaching upon the
neighboring ground, the proprietor was advised to build a bul¬
wark thirty feet into the channel, to throw that branch of the
river into its former channel, or at least to confine it within
bounds. This was opposed by the heritor whose lands lay on
the opposite side of the river, for whom it was admitted that a
47
proprietor may, muñiré ripam, face up and defend his banks
from the encroachments of the water ; but he cannot alter its
course, to throw it upon his neighbor s ground. Answered, be¬
twixt the branch in question and the main body of the river,
there is three-quarters of a mile of waste ground, and the bul¬
wark can have no other eflect than to lemove the channel a
little nearer the main river, as the branch in question did run a
few years before. The Lords found that the proprietor, for de¬
fence of his grounds, had a right to build the bulwark, project¬
ing into the channel of the river not exceeding thirty feet, upon
his giving bond, with a cautioner acted in the books of session,
to indemnify the party from all damages which shall arise to
his land on the opposite side of tlie river, by occasion of build¬
ing the said bulwark, at any time within ten years after com¬
pleting of the same."
So, in The Town of Nairn and Brodie^ Lord Lyon, No. 1
[Morrison^s Die. of Decis., 12770, Vols. 29, 30. Fol. Die.,
Vol. 274), decided in 1738, the facts were —
" The river of Nairn, which runs into the sea through the
property of the town of Nairn, and at the mouth of which the
town had a stell {i. e., pool in which to set nets for salmon)
fisheiw, having upon a sudden speat {i. e. flood) changed its
course and made a new channel for itself through the lands of
Lord Lyon, the point came to be tried before the Lords, whether
the town had a right to bring back the river to its former chan¬
nel. It was argued that a public river having of itself changed
its course, it cannot be brought back by any party pretending
prejudice by the change, because such river is not the private
property of any person. In answer the case was figured of a
harbor deserted by a river ; but then a harbor is private prop¬
erty, and he who has a right to the end has a right to the
means."
Lord Flchies, one of the Lords of Session, says of this in his
notes {ILorr. Diet. Appendix, Part //., Vol. 40 of series, p.
367):—
4S
"'Jhe Lords did not lay their difficulties here where the law¬
yers put it, that the water of Nairn had continued in its present
cliannel all tlie last summer and this. But their difficulty was,
whether it being a flamenpiMioum, and having changed its
cliannel, thoiigli it had been but for a month, n-hether any pri¬
vate party could bring it back, since by the change the new
channel becameyia'¿s ywWfci. However, the Lords found that
the town and tlie heritors had right opere manufacto to bring
back the river to its former channel, being within their own
ground. But there was a great diversit}' of opinions, and some
thought the last words superfluous, and that if they could at all
bring it back, they might do it, ojyere manufacto^ though not
within their own grounds."
Then the case of Farquaharson v. Farqualiarson {Morrison
12779 ; Sujplt. 5, 6S9; Elohies, 5; dO 2Iorr. Eict., p.
367 ; S. C., 3 Eroiai's Synopsis of Decisions of Court of Ses¬
sions, p. 1977) in June, 171:7, where,
" It was found lawful to one to build a fence by the side of a
river to prevent damage to his ground by the overflow of the
water, though thereby a damage would happen to his neighbor
by throwing the whole overflow upon the opposite side ; but it
was found not lawful to use any operation in the alveus2
This case is commented upon bj'' the Lord Chancellor {in
Wihon c6 Shaio, 242), where it is said that the bulwark was to
prevent the river from changing its course, and was built on
old foundations. Lord Elchies, in his commentary on the case
(as first above referred to) says :
" The Lords found he can lawfully build upon his own ground
upon the side of the water, to save his own grounds. The next
question was, whether Invercauld could dig a channel for the
river Dee, in a place where the channel formerly I'au, but now
became Auchindyne's property alluvione, though of little value,
being all chingle, (?. e., gravel or channel,) and that in order to
save his own ground, at least on finding a caution (/. e., bond or
49
security) for damages? And the Lords unanimously found
that he could not touch Aucliindyne's property to save his own
ground. Arniston and Justice Clerk differed from the first
O
vote."
In the report in Morrison, it is said :
"The prejudice lay mostly in this, that the old alveus being
now more filled up than it was before, a part of the river had
diverted from its course, which, when sent back again, would
occasion a greater overflow. But the point the judgment was
chiefly put upon was, that though he might have restored the
river to its channel de rccenti, he conld not do it -post tanturn
tempus. What length of time is for that sufficient, must in the
nature of the thing be arhitrii.''^
Another case is Memlos v. Deans and Town, of Aberdeen
{Morris Diet. 12187, vols. 29 and SO; Elchies, Title II., 8; 3
BrowAs Synopsis, 1977), where—
" The river Dee had been gradually encroaching about seventy
years on Bitfodels, notwithstanding several attempts made by
bulwarks to keep it off ; so that now it divided in two graines
or branches, whereof the greatest runs on what was his undis¬
puted property ; and there is an island betwixt them that is
still his property ; and he was now making a new bnlwark to
turn the whole river from his grounds to the north side of the
island : which was suspended by Deans, Master of Mortifica¬
tions {i. e., charities) in Aberdeen, to whom the ground on the
north side belongs ; and after a proof led, the Lords found that
he could not alter the course of the river by building in alveo
fluminis, so as to prejudge the town."
Lord Elehies says :
"The Lords found that Pitfodels cannot opiere manufaoto
alter the course of the river. Here the river has been encroach¬
ing gradually on Pitfodels upwards of ten years, for it is so long
since the first bulwark is proved to have been built to hold it
50
off. I was in the outer house and knew not wliether the judg¬
ment was unanimous. My opinion was that he could not alter
it by building it in alteo ßuminis, so as to prejudge the town,
which it would very probably have done, but tlien I tliought
that on finding caution do damno infecta as in the case. Lord
Braco v. Bidke of Gordon, he might.—22d jSTovcmber adhered,
{i. e., affirmed.")
So, if the riparian owner do not prevent the intrusion of the
water upon his land within a certain time, he acquiesces in the
invasion, and in fact and law consents to it ; hence acquiescence
is one feature of the rule thus established. For this I refer also
to the Scotch case of Aijtoun v. Douglas {Morr. Diet., A'ppen-
diœ, Part J., Title " Property," jTo. 6), where a proprietor on
a stream, who was in the knowledge of certain operations being
carried on by an adjacent proprietor to extend and enlarge a
mill lead, and who did not object to them till some years after
they were completed, was found barred by acquiescence
from objecting to them.
In the report it is thus stated :
" Where a stream was the boundary between tiie opposite
pi-oprietors, aci'oss which there was a dam-dyke, and the tenant
of the one raised the dyke, and made two water-cuts to supply
a bleachfield, and returned the water into the stream below
the dyke, opposite to the lands of the other proprietor who siqy-
plied turfs to the tenant to raise the dyhe, and he acquiesced in
the operations from 1787 to 1795, held barred by homologation
and acquiescence from insisting on having matters restored to
their original position."
This is in substance the same doctrine which applies in cases
of conflicting boundaries between adjacent proprietors of lands,
if one fixes and the other docs not object to the boundary, he is
deemed to have agreed upon and acquiesced in it ; and is in
51
eflFect the same as my first proposition, that the river at the
time of the issuing of the patent, and the location of the piers,
was treated by all parties as the boundary, and that thereby
the sand-bar was in legal efiect, detached from the north frac¬
tion of section ten.
Another case exactly in point is, ILarquis of Tweeddale v.
Jverr, decided in 1S22, in Scotland (1 Shaw, 397 ; JShew Ed.,
373). There, a river which bounded two estates, " gradually
and imperceptibly," and within forty years, sliifted its course,
whereby three acres formerly on the one side came to be on the
other. Held, that as the river formed the boundary, and the
change was acquiesced in, seeing it might have been prevented
by embankment, the three acres belonged to the estate to which
they were formerly opposite. There, three acres capable of
identification had belonged to one man, the situs remained un¬
changed, capable of exact identification, and the course of the
river only gradually changed. It was a manifest application of
the law Attius, for a majority of their lordships in the Court
of Session were of opinion—
" Tiiat this was not a case of alluvio, but of alvei mutatio ;
that as the river was the boundary, so any change in its course
must be held to be consented to by the parties, as they were
entitled to restrain it by embankments."
I have already called the attention of the Court to the law
Jje Alveo {Ante, ygage 12.) Its opposite is the law Be Inun-
datione {Justin : Dig. Law, 24), as follows :
" The case is quite different if any of this land is completely
inundated ; for the inundation does not alter the nature of the
land, and, therefore, when the waters have receded, the land is
undisputably the property of the former owner."
Both of which are adopted and acted on in Louisiana. {Mor-.
7
52
gan v. Livingston, 6 Martin O. S., 89.) So, I have shown their
perpetual existence and adoption in Scotland, and the case last
cited is a practical application of them and of the law of At-
tins, within forty years, by a Court in a country whei'e the
Civil Law is administered in almost its original purity, and where,
until witliin a still more recent period, there was no trial by
jury. In this connection I may here refer to Chardon {Traite
du Droit d'Alluvion), a French law treatise, cited by the coun¬
sel for the plaintiff at the close of his brief, and which I did
not see until yesterday. Judging from the hasty examination
I have given it, it is a treatise on the subject of alluvion,
mainly to oppose the rule as established b^' the Code Napoleon,
framed principally from the Civil Law. It quotes the law At-
tius, and admits its existence in the Civil and French codes, and
attempts to explain it away. As specimens of his dissatisfaction
with the rules assailed, I refer to that in regard to islands. {Ed,
1830, y?. 251, § 151.)
* * * "This rule of law should not obtain among us. The
new island, like the riparian increment, should not be denied to
the usufructuary. I have already so stated, and no one will
doubtless contest the point, that these two kinds of increment
have the same natural cause, and are attached by the same sort
of title to the river bed. The one, as well as tlie other, is not
a new bed, but a part of the old ; for it should also be observed
that Ulpian, from whose writings this extract has been taken,
takes care to remark that it is Pegasus who has expressed this
opinion ; that he only indirectly sanctions it, and that the sole
motive entertained by him for its justification is but a fallacy.
The circumstance that a thread of water separates the incre¬
ment is of no importance, because it does not prevent the giving
of the proprietory right to it to him to whom the river bed be¬
longs : and then he is not the owner of this bed u-ho has the
O 3
power to allow the use of it to the usufructuary. This latter
represents the owner for the time being without exception or
53
reserve, while as to the former he has the right as well to the
additions to the subject as to the subject itself."
While he quarrels with the rule in regard to decretion, he
admits in these words (§ 99) :
* * * " Tiiis soil, of which you have taken possession, is
that of which the M'aters have for several years been deprived ;
they have only destroyed the surface of it, but when they receded
the bed reappeared, and we are entitled to resume what our
ancestoi-s owned ; Article 552 of the Code civil declares that
the ownership of the soil carries the ownership of it above and
below, so that Petrus will find his answer also in the civil Code ;
assuredly he would have no equity ; but by the 556 and 557
articles, which he would apply in aid of law 38 ' de acq. rer.
domf he would be unanswerableP
He questions the reason of the rule, but states that by the
provisions of the Civil Code, the argument would be rendered
" unanswerable." Now the rule of the Code Napoleon {Title I.,
chap. 2, § 556) is :
" The accumulations and increase of mud formed successively
and imperceptibly on the soil bordering on a id ver or other
stream, is denominated ' alluvion.'
" Alluvion is for the benefit of the proprietor of the shore,
whether in respect of a river, a navigable stream, or one admit¬
ting floats or not."
And again (at § 596) :
"The usufructuary is entitled to the enjoyment of the aug¬
mentation accruing by alluvion to the object of his usufruct."
I have also cited on my points the Concordance of St. Joseph
( Vol. 1, p. 50, §§ 556, 559) with other authorities showing that
this is, as the Justinian Code says, " the law of Nature," and has
6é
found a general recognition among all nations. It is only ne-
cessaiy for me to refer to. them. {Code of Austria, id., p. 52, §
512 ; 19, § 359. Of Spain and Mexico—Schmidts Laws of
Spain and Mexico, p. 49 / 1 Moreau, and Carletoi'Cs Partidas,
■p. 346 / Code of Bavaria, 1 St. JosepBs Con. p. 50, §§ 12, 13.
Of Prussia, 1 Frederician Code, {Elinbtirgh ed. of 1731,) p.
477, Booh II., Tit. 5, Art. 7, §§ 39 to 45.
The opinion of Chardon, then, can he of hut little value,
since he arrays himself against the legislation and jurispru¬
dence of ages.
The reason of the rule should receive some considera¬
tion, for on that point it has been assailed by the learned
counsel, who says " that the traditional doctrine, the juridi¬
cal fallacy for which the defendant contends, has gone un¬
challenged by any except a few bold and original thinkers
and urges the adoption of his own theory " as a new conquest in
the domain of reason." Xow, I maintain that it is not neces¬
sary, when a rule has been so well and satisfactorily established
for centuries, that those who seek to enforce it should be able
to give a reason altogether satisfactory to the judicial—much
less to every doubting mind. It is and it must be regarded as
a fixed rule of law, and as such cannot be questioned. I I'efer
for an illustration of this to The Queen v. Musson (S Ellis <&
BlachT}., 900,) where an attempt was made by the Crown to rate
lands below low water mark belonging to the grantee, as in a
parish, although they belonged to a private individual, upon the
authority of Haids Dejure maris. The Court of Queen's Bench,
held that they did not fall within the rule, all lauds below low
water mark being at common not rateable, and Lord Campbell,
in his opinion, says :
" I am sorry to act on what may seem a subtlety, but we are
bound by law. It is clear that the soil is prima facie in the
Crown, though it may be proved to be in a subject. And so
55
the spot prima facie Qxiva parochial, though it maybe shown
to be in a parish. The burden of proof lies on those wlio allege
it to be in a parish, and Lord Hale, in the passage quoted, shows
how it may be proved.''
Now there are various otlier reasons, more or less potent,
suggested in the books. Lord líale spoke of it as the " per¬
quisite of the land," Then there is " the possible gain in each
case, being the reciprocal consideration for such possible loss or
change." (2 Bl. Comm., 262.) Indeed as Chief Justice Best
said, in Lord YarborougKs case, " the land so gained is a com¬
pensation for the expense of an embankment and for losses
which frequently happen from inundation," and this was con¬
curred in by all the eleven judges wlio heard the argument in
the House of Lords, by the Lord Chancellor (Lord Lyndhurst)
and by Lord Eldon, who still shed the lustre of Iiis judicial re¬
nown over that gi'cat tribunal, and who, after a judicial experi¬
ence of more than a quarter of a century, in concurring in the
judgment, said (1 Bow cfi Clarh, 176) :
"I Iiave had occasion to look into this subject before, and
from the opinion which I then formed, as well as from what I
have heard of the present case, I fully concur in the opinion
which has been just delivered."
As was said by Lord Abinger in The Hall and Selhy Bail-
way Case (5 3Lees & IVels., 332) :
" If the Crown cannot advance the authority of many de¬
cided cases in support of its claim, it is because in principle no
doubt can be entertained upon it. It is admitted that as be¬
tween subject and subject the law as to gradual accretion is
settled by Lord Yarboroughls case. The principle thus estab¬
lished is not peculiar to this country, but obtains also in others,
and is founded on the necessity which exists for some such rule
of law, for the permanent protection and adjustment of prop¬
erty."
56
The better reason, perhaps, is, that it is a positive rule of law
and safest and best under all circunistances, because the most
just. In this Court the rule is, that the party shall not be sub¬
ject to palpable loss without tlie corresponding right to palp¬
able gain.
In Denisart, {Title Alluvion,Vol 1, f>. 74,) it is said
that—
" Some of the civil law writers allude to it as a sort of acces¬
sion. The land thus acquired is not considered as new land
but as a part of the old, which becomes possessed of the same
qualities and belongs to the same master."
The same reason is given in 2Iorgan v. Livingston before
cited.
There is, in other words, a necessity for a rule ; the wisdom
of ages has adopted that deemed the safest and best ; a rule
founded upon principles of equality, and it ought not to be
disturbed, even if there be some defect in the reasoning upon
which it is based. That there is, is denied. Tiie wit of man
has not been able to find a better rule.
I wish to call your Honor's attention to the cases of The
Attorney General v. Chambers, and The Same v. Dees, (5
Jurist 22. S., 745 ; S. C. 4 De Gex t6 Jones, 55,) which my
brother Jot referred to as deciding that the rule was not
changed, although the accretions were produced by artificial
causes, provided they were not expressly designed to produce
that effect ; and which, for want of time, he did not consider at
length. These cases show, also, tliat at the present day in
England the old rule is adhered to with unyielding tenacity,
and that the cases I have before cited are not exceptional.
They came before the Court of Chancery in England in 1859,
and the Lord Chancellor delivered the opinion. I will read the
statement of the case :
57
" These causes arose upon informations filed hy the Attorney
General for the purpose of establishing the rights of the Crown
upon the sea shore in certain parishes in the county of Carmar-
tlien. They were originally heard before Sir J. Eomilly, M.
R., who directed certain issues to be tried, by wliich the Crown
had established a right to the sea shore ; but the question then
ai'ose as to what was tlie true boundary of the sea shore, it being
contended by tlie defendants Lewis and Rees, that the limit of
that the Crown's right was the line of high-water mark of ordi¬
nary neap tides. This question was argued before Lord Cran-
worth when Lord Chancellor, assisted by Maule, J., and Al-
derson, B., who held that the landward boundary of the sea¬
shore, or littus maris, around England and Wales, was the line
of the medium high tide between spring and neap tides. (18
Jur., 779 ; 8. C., 4 De G. Mao. cß G., 206.) The causes came
on to be heard upon further directions, and the new question
was raised as to whether the rule of law as to the right of the
Crown to land gained from the sea is applicable to a case where
the accretion was not the result of mere natural causes, but, as
was contended, of artificial causes."
These accretions were, in part, the result of the deposit
of the slag and refuse of a furnace used in making iron, along
the sea shore. And it was held " that the title to alluvium
arising- from artificial causes does not differ, as to the rights of
land owners, from the title to alluvium arising from natural
causes, where the artificial causes arise from a fair use of the
land adjoining the sea shore, and not from acts done with a
view to the acquisition of the sea shore." The Zorif Chancellor
directed issues to be tried for the purpose of ascertaining
whether, and how, the natural line of high-water in front of
the defendants' lands, had been varied, and to what extent ;
and, also, whether the variation, if any, in the natural line of
high-water, had been slow, gradual, and imperceptible, or
otherwise, and whether there were any marks or bounds by
which the natural line of high-water could be ascertained and
S8
laid down ; thereby im])Iylng, that if the boundaries could be
ascertained, there might be a different rule as to the title to
the land formed by alluvion.
He says {iMge TIS) :
" If there is no clear line of demarcation between the main
land and the sea shore, by the gradual encroachment or reces¬
sion of the tide, all trace of distinction between them will be
Completel}' obliterated, and there will be full scope for the rule
of alluvion to operate. But suppose that the separation between
the main land and tiie sea shore is distinct ; as suppose that tiie
land owner put up a wall to prevent the encroachment of the
sea upon him, and the effect of the wall is to produce a gradual
and insensible accretion, which cannot be perceived from day
to day, but, at the end of some long period, is distinctly to be
seen, ought this to become the property of the land owner?"
Precisely the case of Lord Yarhorough.
Then he quotes Lord Taiderden as himself suggesting a
similar doubt in that case, and directs the matter to be sent
back, to ascertain whether the boundaries could be fixed.
It is very remarkable that Lord Yarhorough''s case, as affirm¬
ed in the LLouse of Lords, was not cited by the counsel or the
Court, and seems to have been entirely overlooked. I ask the
attention of this Court again to the report of that case as it was
presented in 1828 (1 Dow. <X' Clark, 178), and it does not admit
of a doubt that the rule was then firmly established, precisely
as we now maintain it.
Chief Justice Best says {page 185) :
" The question which has been proposed for the opinion of
the Judges is, whether a tract of land of TOO acres, which has
59
been gained gradually, insensibly, and imperceptibly by allu¬
vion from the sea, belongs to the Crown, or to the proprietor of
the adjoining lands 1 There is no local custom on the subject,
but the Judges are unanimously of opinion, that, by the general
custom of the realm, lands gained gradually and imperceptibly
from the sea, by alluvion or projection, belong to the owner of
the adjoining demesne lands, and not to the Crown."
Thus giving the riparian owners the 450 acres. And this
was one of the points on which the judgment of the Kings
Bench was sought to be reversed :
" Because it appears by this record, that the land referred to
and described therein, was and is land gained from the sea by
alluvion, which, by the law of England, belongs of common
right, by virtue of his prerogative, to the King."
The express point decided ! And then, as has been shown,
the cause was heard before the eleven Judges, all of whom,
with the Lord Chancellor and Lord Eldon, held that " lands
formed slowly, gradually, and imperceptibly, by alluvion on the
sea shore, belong by general immemorial custom to the owner
of the adjoining lands, and not to the Crown." So that the
point upon which a doubt was expressed in the opinion in the
Jiifist, is precisely the same as that which had been unani¬
mously adopted in the House of Lords by the assembled
Judiciary of England, more than thirty years before, as being
beyond all question.
I call attention to a case not before presented to your notice
—Scratton v. Brown (4 Barn, cfe Cress., 485 -, S. C. & Bow. cÈ
Ryl; 536)—decided in 1825. Perhaps I can best bring it to
the attention of the Court by reading the head note. There
was a grant, among otlier things, of an oyster laying, fishery,
&c., which " extended from the south at low-water mark to the
north at high-water mark, and from certain sea-grounds on the
8
60
east to other sea grounds on the west," and an action was
brought to recover damages for taking stones away from the
gromids.
" It appeared that since the date of the deed the sea had im¬
perceptibly and gradually encroached upon the land, and con¬
sequently that the high and low water marks had varied in the
same degree. It was held that by the deed the right of soil in
in that portion of land which from time to to time lay between
high and low water mark passed to the grantee."
So that the fi'eehold kept continually changing from time to
time witii the shore, and the argument was that there could be
no such thing as a moveable freehold, and hence the grantee
was not entitled to the laud. But the Court held that the ac¬
cretion being imperceptible, it continued to pass as incident to
that which belonged to the grantee, and that consequently the
land between high and low water mark constituted a part of
the sea-grounds, and the accretion passed under the deed.
I have called the attention of the Court to the consideration
of this subject of accretion somewhat cursorily, not deeming
myself at libertj'- to elaborate the point, after the very careful
and able examination of it by my learned associate. And
having thus presented my views of these important and in¬
teresting questions, I submit their determination to the large
experience and learning of this national tribunal ; not doubting
that the principles which have come down to us with the ap¬
probation of centuries—the results of their aggregate wisdom,
" quod semper, quod libique, quod ad omnihus"—will continue
to receive also its enlightened national recognition ; and that
however able the efforts to overthrow thorn, it will be said, in
the words of an old writer, "Whatever is first, is true; what¬
ever is later, is adulterate."
APPENDIX.
George C. Bates,
PlíF. in Error,
vs.
The Illinois Central Railroad Com¬
pany.
Defts. in Error.
In Error to the Circuit
Court of the United
States for the North¬
ern District of Illi¬
nois.
Mr. Justice Catron delivered the opinion of the Court.
This cause comes here by writ of error to the Circuit Court
of the United States for the Northern District of Illinois. Tlie
Railroad Company is sued in ejectment by Kinzie's representa¬
tives, for land lying under water at the city of Chicago ; the
end of the road running into Lake Michigan. The controversy
depends on the following charge of the Court to the jury :
"By the Act of Congress of July 1st, 1836, entries of the
character of Kinzie's were confirmed, and patents were to be
issued therefor, as in other cases. A patent accordingly issued
to Kinzie on the 9 th of March, 1837. There can be no reason-
ble doubt, I think, that this title, thus perfected, related hack to
63
the entry of Kinzie in May, 1831, and the law gave it effect
from that date precisely as if it had been made in the proper
land office.
"The land had been surveyed in 1821 ; and on the plat of the
Government surve}', the north fraction of section ten is repre¬
sented as having the Chicago river on the south, and Lake
Michigan on the east. The river is represented as flowing out
in nearly a straight line into the lahe. The fact seems to be,
that from 1816 to 1821 the river, instead of flowing out as rep¬
resented on the survey, just before it entered the lake, made a
sharp curve to tlie south, and thereby formed a sand bar or spit
of land between it and the lake, which has given rise to this
controversy. This sand bar has existed in 1821, but it is not
noticed in the plat of the survey. In 1821, the river seems to
liave run into the lake, according to the plat ; but it is said this
was in consequence of an artificial channel cut through the
sand bar. This cliannel was stopped up in the winter of 1821-
2, but was opened again in the spring of 1822 by a freshet, and
water continued to flow out there in the summer of 1822 ; but
during 1821 and 1822 more or less water passed from what had
been the mouth prior to 1821. After 1822, the direct channel
was stopped up; and, witii an occasional exception, caused by
the act of man or by a freshet, the river flowed into the lake
up to 1833 in its original and natural bed. In 1833 and in 1834
the Government constructed piers across the sand bar, and the
river from that time has flowed through those piers ; the old
channel south of the pier liaving ceased to bear the waters to
the lake, because the soutli pier was run across it, as well as
across the sand bar. In the construction of the piers, the Gov¬
ernment of the United States did not purchase or condemn the
land, but Kinzie seems to have acquiesced in the act, and,
indeed, as already stated, it was not till 1836 that Kinzie's title
was conflrmed."
An exception was taken to the concluding part of the charge,
which is as follows :
" Under this state of facts, the substantial truth of which is
6±
not denied, the land of Kinzie, covered by Iiis entry and par¬
esse, would be the tract within the following boundaries, as
they existed at the time of the entry, (there being no question
made, but that tlie Government plats, by which sales Avere
made, show that the whole land north of the river, and south
of the north line of the fraction, was sold as one parcel,) and
are the north line and west line of fractional section ten, accord¬
ing to the public survey, and the Chicago river and lake
Michigan, as they existed ; that is, it would include all the dry
firm laud there was at that time between the Avest line of the
section and the lake, and the north line of the section and the
river. The river, the lake, and tlie tAvo lines of the fi'actional
section ten constituted the boundaries. Whether the land in
controversy Avas within these boundaries, is a fact to be found
by the juiy, depending upon the evidence before them."
The fiicts as recited were not disputed ; nor is any exception
taken to the statement made, preceding tlie Court's conclusion
on the laAV and facts of the case.
The land trespassed on and sued for, as described in the
plaintifi''s declaration, lies south of the south pier, is now cov¬
ered with water, and a part of the bottom of the lake ; on
Avhich land the end of the railroad is located. It was formerly
overlaid Avith the sand bar, which was swept away by the
current the piers created. It is situated outside of fractional
section ten, as its boundary was described by the Judge to the
juiy. And this raises the question, by Avhat rule is the public
survey to which the patent refers for identity to be construed ?
The laud granted is 102//ñ- acres, lying north of the Chicago
riA'er, bounded by it on the south, and by the lake on the east.
The mouth of the river being found, establishes tlie southeast
corner of the tract. The plat of the survey, and a call for the
mouth of the river in the field notes, show that the survey made
in 1821 recognised the entrance of the river into the lake
65
through tbe sand-bar in an almost direct line easterly ; disre¬
garding the channel west of the sand-bar, where the river most
usually flowed before the piers were erected. It is immaterial
where the most usual mouth of the river was in 1821 ; or
whether this northern mouth was occasional, or the flow of the
water only temporary at particular times, aud this flow pro¬
duced to some extent by artiflcial means—by a cut through the
bar—leaving the water to wash out an enlarged channel
in seasons of freshets. The Public bad the option to declare
the true mouth of the river, for the purposes of a survey and
sale of the public land. And the Court below properly left it
to tlie jury to flnd, whether land on which the railroad lies is
within the boundary of the tract surveyed and granted. Ac¬
cording to the Judge's construction of the plat and calls, and
the patent bounded on the survej^, tlie jury was bound to find
for the defendants, and therefore this ruling was conclusive of
the controversy.
In regard to the matter so much and so ably discussed in
the argument here, as to the rights of proprietors on the lake
shore, where their fronts were swept away by currents ; and to
what extent they still owned the lands covered with water, un¬
doubtedly theirs before the decrease took place, we do not feel
ourselves called on to decide ; because this plaintiff was not the
owner of the land sued for before the decrease occurred, and
could have no proprietory rights in the bottom of the lake.
Before a proprietor can set up his claim to accretions and the
like, he must first show that he owns the shore ; and if he fail
flrst to establish his ownership, judicial inquiry respecting his
rights in or under the waters adjoining, are abstractions and
useless.
It is ordered that the judgment of the Circuit Court be
affirmed.