1. Where a survey begins "on the bank of a river" and is carried
thence "to a point in the river," the river bank being straight and
running according to this line, the tract surveyed is bounded by
the river. It is
even more plainly so when it begins at a post "on the bank of
the river, thence north 5 degrees east up the river and binding
therewith."
2. Alluvion means an addition to riparian land, gradually and
imperceptibly made, through causes either natural or artificial, by
the water to which the land is contiguous.
3. The test of what is gradual and imperceptible is that, though
the witnesses may see from time to time that progress has been
made, they could not perceive it while the process was going
on.
4. It matters not whether the addition be on streams which do
overflow their banks or those that do not. In each case, it is
alluvion.
The County of St. Clair, Illinois, brought ejectment against
Lovingston, for a piece of land within its own boundaries, situated
on the east bank of the River Mississippi (as its east bank now
runs), opposite to St. Louis. The land was confessedly "made land"
-- that is to say, it was land formed by accretion or alluvion, in
the general sense of that word, though whether it was land made by
accretion or alluvion in the technical or legal sense of the word
was a point in dispute between the parties in the case. The bank of
the river had confessedly, in some way, been greatly changed, and
in this part added to. The tract in dispute is indicated on the
diagram upon the next page, by the deeply shaded or most dark part
of it; the part at the bottom of the diagram and on the left hand
side of it.
The case was thus:
Before the year 1815, and in pursuance of an early formed
intention by the government to give a piece of land to soldiers in
the old French settlements in Illinois, a survey was made in the
public lands for one Nicholas Jarrot, of one hundred acres, which
was either on or near to the Mississippi River, as it then ran,
though whether, in all its parts, on
Page 90 U. S. 47
the river or only beginning on its bank and leaving a strip or
pieces of land between the tract and the river -- edges more or
less ragged -- was one point in the case.
image:a
Page 90 U. S. 48
The field notes and a plot of the tract, as given in proof, were
thus:
image:b
"Beginning
on the bank of the Mississippi River,
opposite St. Louis, from which the lower window of the United
States storehouse in St. Louis bears N. 70 3/4 W.; thence S. 5 W.
160 poles to a point in the river from which a sycamore 20 inches
diameter bears S. 85 E. 250 links; thence S. 85 E. 130 poles (at 30
poles a slash) to a point; thence N. 15 W. 170 poles to a forked
elm on the bank of Cahokia Creek; thence N. 85 W. 70 poles to the
beginning."
At the time of this survey, the west line of the tract, if not
in all its course on the river, was confessedly in all its course
near to the river, the general course of the river bank in 1814,
just before the survey, being indicated on the Diagram No. 1 by the
words "River-bank in 1814," and the tract, the field notes of whose
survey are above given, being marked on that diagram as "No. 579,
N. Jarrot."
To the north of this tract of one hundred acres to Jarrot were
two other tracts, each of one hundred acres. They are numbered on
the Diagram No. 1, the one 624 and the other 766, and their general
position is thus shown. Jarrot, in virtue of a transfer from some
other French settler, claimed also this latter tract, No. 766.
At a later date -- that is to say in 1815 -- a certain Pierre
Coudaire got a survey which covered the whole of the three
Page 90 U. S. 49
abovementioned tracts, and some irregular edges on the east
between them and the Cahokia Creek, as also a small strip bending
round and going to the south of the southernmost of the three
tracts, or tract No. 579. What this survey embraced on the west --
that is to say, on the river side -- not embraced by the surveys of
the others, or, more especially, and so far as that extent of line
was concerned, not embraced by the west line of tract No. 579 --
and whether it embraced anything at all -- in other words, whether
it brought the title any more upon or to the river than the old
surveys -- was one of the questions of the case. The field notes of
Coudaire's survey, which a drawing, Diagram No. 3, thus
illustrates, called for a post in the northwesterly line of
survey
image:c
636 as the point of beginning; thence south 38�50' west
with said line 17 poles to a post; thence south 51�10' east
with another line of said survey 134 poles, to a post on the west
side of Cahokia Creek; "
thence down the said creek with its
different courses;" thence by courses and distances described
to a post. The field notes then continued:
"Thence 85� W. 174 poles to a post
on the bank of the
Mississippi River, from which [
Footnote 1] -- thence N. 5� E., up the Mississippi
River and binding therewith (passing the southwesterly corner of
Nicholas Jarrot's survey No. 579, claim No. 99, at 6 poles),
Page 90 U. S. 50
551 poles and 10 links to a post, northwesterly corner of
Nicholas Jarrot's survey, No. 766, claim No. 100, from which a
sycamore 36 inches diameter bears S. 21� W. 29 links; thence
S. 85� E. with the upper line of the last-mentioned survey
88 poles to the beginning."
The right of Jarrot was confirmed at an earlier date than that
of Coudaire. Coudaire's survey bore the number 786.
Several old maps were introduced which seemed to show plainly
enough that at the time when the surveys were made, the river bank,
in this part of it, ran in what might fairly be called a straight
line. Oral testimony in the record proved also that it did so.
We have already said that after the surveys were made, the east
bank of the river greatly advanced. But what caused this change in
position was not quite obvious.
About the time when the new land began perceptibly to form,
certain coal dykes for the accommodation of the public were built
above the point where the land in controversy was. The United
States also made some improvements to throw the channel of the
river more towards the City of St. Louis -- that is to say away
from the side where these tracts were, and the city itself put
certain large rocks on one edge of the river to preserve its own
harbor. How far, exclusively of natural causes, all this had formed
the new land was not clear. The evidence showed, however, that the
defendants had nothing to do with the making of any of these
artificial works, and it was not clear that in a river like the
Mississippi the new land might not have been made without them, and
by natural causes alone.
The fact that the additions were a making was perceptible at
certain intervals, though the additions were too gradual to strike
the eye as they were in the actual process of formation.
In this state of things, and a considerable addition having now
been made, Congress, on the 15th of July, 1870, passed an act in
these words: [
Footnote 2]
Page 90 U. S. 51
"That the title of the United States to all lots, out-lots,
tracts, pieces, parcels, and strips of land in St. Clair County,
State of Illinois, lying and situate outside of the United States
surveys as noted in the field notes of the United States surveyors,
and on the Mississippi River near surveys 766, 624, and 579, . . .
&c., be, and the same is hereby, confirmed and granted to said
St. Clair County, in said state."
The plaintiff, St. Clair County, claimed under the above-quoted
acts, and under certain other acts of legislation, federal and
state, not necessary to be quoted. [
Footnote 3] Its positions were:
1st. That the west boundary of the earlier and the later survey
was the same; that this west boundary was a line originally
established irrespective of the river line; that accordingly the
lands included by the surveys never extended to the river, and that
the new-made land, even if it were "accretion," or "alluvion,"
never belonged to the owner of tracts surveyed, as riparian owner,
but was unconveyed land belonging to the United States, which by
its above-quoted act of Congress it had granted to the plaintiff,
St. Clair County.
2d. That if what is above said as to the western line of the
tracts as surveyed was not true, and if the tracts did originally
extend to the river, yet that the made land was not "accretion" or
"alluvion" in a legal sense, since the making had been brought
about by artificial means; that therefore the new land belonged to
the United States as sovereign.
3d. That even if neither of these two propositions were true,
yet that the surveys were specifically brought to the river and
were limited to one hundred acres each, and hence that they could
not embrace an addition as large as or larger than themselves.
4th. That independently of all other positions, the
Mississippi
Page 90 U. S. 52
in the sense of the American law -- where "navigability" meant
navigability in fact -- was a "navigable river," as respected
riparian rights, and that accretions on it belonged to the
sovereign.
The position of the defendant, Lovingston, who held under the
two surveys, 579 and 786 (a valid title to which was admitted to be
in him, or in those under whom he claimed), was that those surveys
were both (or certainly the last one) bounded originally by the
river, and that whether the additions were caused wholly by natural
causes or whether in part by the artificial structures, as causes
causative, the new land fell within the technical and legal idea of
accretion or alluvion, and so belonged to him as riparian owner,
and that it made no difference, even if by the terms of the survey
or grant the title came originally but to the river, or whether the
river was a "navigable" one or not.
Of this opinion was the Supreme Court of Illinois, where the
case finally came, and where judgment was given for the defendant.
The case was now here on error from that judgment.
Page 90 U. S. 62
MR. JUSTICE SWAYNE delivered the opinion of the Court.
We shall assume for the purposes of this opinion that all the
title which could be passed by Congress and the state was and is
vested in the plaintiff in error.
It is not denied, on the other hand, that a valid title to the
surveys 579 and 786 is vested in those under whom the defendant in
error holds.
Two questions are thus presented for our determination:
One is whether the river line was the original west boundary of
the surveys, or either of them?
The other, if this inquiry be answered in the affirmative, is to
whom the accretion belongs?
The first is a mixed question of law and fact. The second is a
question of law.
Before entering upon the examination of the first of these
questions, it may be well to advert to a few of the leading
authorities apposite to this phase of the case.
It is a universal rule that course and distance yield to natural
and ascertained objects. [
Footnote
4] A call for a natural object, as a river, a spring, or even a
marked line, will control both course and distance. [
Footnote 5]
Artificial and natural objects called for, have the same effect.
[
Footnote 6]
In a case of doubtful construction, the claim of the party in
actual possession ought to be maintained, especially where it has
been upheld by the decision of the state tribunals. [
Footnote 7]
In
Bruce v. Taylor, [
Footnote 8] a patent called
"to begin on the Ohio
Page 90 U. S. 63
River, and then for certain courses and distances, without any
corners or marked lines, to the mouth of the Kennikek, and then
certain courses and distances, without any courses or marked lines,
to a stake in the Ohio River."
If the river was the boundary, the land in controversy was
within the patent. If the courses and distances prevailed, the
patent did not affect it. The court said: "It is our opinion that
the river is the boundary." It was added:
"Two of the calls are on the river. There are no intermediate
marked lines or corners. The general description is, 'to lie on the
Ohio.' These facts alone would not leave room for any other
construction of the patent."
This case is very instructive, and contains much additional
argument in support of the view expressed.
Cockrell v.
McQuinn, [
Footnote 9] is
to the same effect. In the latter case, the court said:
"None will pretend that the legal construction of a patent is
not a matter proper for the decision of the court whose province it
is to decide all questions of law."
In
Bruce v. Morgan, [
Footnote 10] the rule laid down in
Bruce v.
Taytor was affirmed.
Where a survey and patent show a river to be one of the
boundaries of the tract, it is a legal deduction that there is no
vacant land left for appropriation between the river and the river
boundary of such tract. [
Footnote 11]
Where a deed calls for a corner standing on the bank of a creek,
"thence down said creek with the meanders thereof," the boundary is
low water mark. [
Footnote
12]
Where a deed calls for an object on the bank of a stream,
"thence south, thence east, thence north to the bank of the stream,
and with the course of the bank to the place of beginning," the
stream at low-water mark is the boundary. [
Footnote 13]
Where the line around the land was described as
"running to a stake at the river, thence on the river N.
6�40' 23 perches, thence N. 39�50' W. 33 perches,
thence N. 20�20',
Page 90 U. S. 64
35 perches and 8 links to a stake by the river,"
it was held that this description made the river a boundary.
[
Footnote 14]
Where premises above tidewater are described as bounded by a
monument standing on the bank of the river, and a course is given
as running from it down the river as it winds and turns to another
monument, the grantee takes
usque filium aquae unless the
river be expressly excluded from the grant by the terms of the
deed. [
Footnote 15]
The eastern line of the City of St. Louis, as it was
incorporated in 1807, is as follows: "from the Sugar Loaf east to
the Mississippi, from thence by the Mississippi to the place first
mentioned." This Court held that the call made the city a riparian
proprietor upon the river. [
Footnote 16] It was said in this connection that
"many authorities resting on adjudged cases have been adduced to
us in the printed argument, presented by the counsel for the
defendant in error, to show that, from the days of Sir Matthew Hale
to the present time, all grants of land bounded on fresh water
rivers, where the expressions designating the water line are
general, confer proprietorship on the grantee to the middle of the
stream, and entitle him to the accretions. We think this, as a
general rule, too well settled, as part of the English and American
law of real property, to be open to discussion."
It may be considered a canon in American jurisprudence that
where the calls in a conveyance of land are for two corners at, in,
or on a stream or its bank, and there is an intermediate line
extending from one such corner to the other, the stream is the
boundary unless there is something which excludes the operation of
this rule by showing that the intention of the parties was
otherwise. Whether in the present case the limit of the land was
low water or the middle thread of the river is a question which
does not
Page 90 U. S. 65
arise, and to which we have given no consideration. The point
was considered by this Court in
Railroad v. Schurmier.
[
Footnote 17]
Survey 579 is the elder one. Its calls are:
"Beginning on the
bank of the Mississippi River,
opposite to St. Louis, from which the lower window of the United
States storehouse in St. Louis bears N. 70 3/4 W.; thence S. 5 west
160 poles to a
point in the river from which a sycamore 20
inches in diameter bears S. 85 E. 250 links, thence S. 85 E. 130
poles (at 30 poles a slash) to a point; thence N. 15 W. 170 poles
to a forked elm on the bank of Cahokia Creek; thence N. 85 W. 70
poles to the beginning."
It will be observed that the beginning corner is on the bank of
the river. The second corner is a point in the river. The line
between them is a straight one. Where the course as described would
have fixed the line does not appear.
There was an obvious benefit in having the entire front of the
land extend to the water's edge. There was no previous survey or
ownership by another to prevent this from being done. No sensible
reason can be imagined for having the two corners on the river, and
the intermediate line deflect from it. Under the circumstances, we
cannot doubt that the river was intended to be made, and was made,
the west line of the survey. In the light of the facts, such is our
construction of the calls of the survey, and we give them that
effect.
The calls of survey No. 786 as respects this subject are:
"Thence N. 85� W. 174 poles, to a post on the bank of the
Mississippi River, from which . . . ; thence N. 5� E. up the
Mississippi River and binding therewith (passing the southwesterly
corner of Nicholas Jarrot's survey, No. 579, claim No. 99, at 6
poles), 551 poles and 10 links, to a post northwesterly corner of
Nicholas Jarrot's survey, No. ___, claim No. 100, from which a
sycamore 36 inches diameter bears S. 21� W. 29 links; thence
S. 85� E. with the upper line of the last-mentioned survey
88 poles to the beginning."
Here the calls as to the river are more explicit than in
Page 90 U. S. 66
survey No. 579. The language "up the Mississippi River and
binding thereon," leaves no room for doubt. Discussion is
unnecessary. It could not make the result clearer. The river must
be held to have been the west boundary of this survey also.
In reaching these views, we pervert no principle of law or
justice. Our conclusions are sustained by authority and reason.
This brings us to the consideration of the second question.
It is insisted by the learned counsel for the plaintiff in error
that the accretion was caused wholly by obstructions placed in the
river above, and that hence the rules upon the subject of alluvion
do not apply. If the fact be so, the consequence does not follow.
There is no warrant for the proposition. The proximate cause was
the deposits made by the water. The law looks no further. Whether
the flow of the water was natural or affected by artificial means
is immaterial. [
Footnote
18]
The law in cases of alluvion is well settled.
In the Institutes of Justinian it is said:
"Moreover, the alluvial soil added by a river to your land
becomes yours by the law of nations. Alluvion is an imperceptible
increase, and that is added by alluvion which is added so gradually
that no one can perceive how much is added at anyone moment of
time. [
Footnote 19]"
The surveys here in question were not within the category of the
agri limitati of the civil law. The latter were lands
belonging to the state by right of conquest and granted or sold in
plats. The increase by alluvion in such cases did not belong to the
owner of the adjoining plat. [
Footnote 20]
The Code Napoleon declares:
"Accumulations and increase of mud formed successively and
imperceptibly on the soil bordering on a river or other
Page 90 U. S. 67
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 admitting floats or not; on the condition,
in the first place, of leaving a landing place or towing path
conformably to regulations. [
Footnote 21]"
Such was the law of France before the Code Napoleon was adopted.
[
Footnote 22]
And such was the law of Spain. [
Footnote 23]
Blackstone thus lays down the rule of the common law:
"And as to lands gained from the sea, either by alluvion, by the
washing up of land and earth, so as in time to make terra firma, or
by dereliction, as when the sea shrinks below the usual
water-marks; in these cases the law is held to be that if the gain
be by little and little, by small and imperceptible degrees, it
shall go to the owner of the land adjoining. For
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 out, this possible
gain is therefore a reciprocal consideration for such possible
charge or loss. But if the alluvion 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
dry. [
Footnote 24]"
Blackstone takes his definition from Bracton, lib. 2, chap. 2.
Bracton was a judge in the reign of Henry III, and the greatest
authority of his time. Hale, in his
De Jure Maris, says
Bracton followed the civil law. Hale himself shows the great
antiquity of the rule in the English law. [
Footnote 25]
Chancellor Kent, the American commentator, recognizes the rule
as it is laid down by the English authorities referred to.
[
Footnote 26]
Page 90 U. S. 68
By the American Revolution, the people of each state, in their
sovereign character, acquired the absolute right to all their
navigable waters and the soil under them. [
Footnote 27] The shores of navigable waters and
the soil under them were not granted by the Constitution to the
United States, but were reserved to the states respectively. And
new states have the same rights of sovereignty and jurisdiction
over this subject as the original ones. [
Footnote 28]
The question here under consideration is not a new one in this
Court. In
New Orleans v. United States, [
Footnote 29] it was said:
"The question is well settled at common law that the person
whose land is bounded by a stream of water which changes its course
gradually by alluvial formations shall still hold the same
boundary, including the accumulated soil. No other rule can be
applied on just principles. Every proprietor whose land is thus
bounded is subject to loss by the same means which may add to his
territory, and as he is without remedy for his loss in this way he
cannot be held accountable for his gain."
To the same effect are
Saulet v. Shepherd, [
Footnote 30] and
Schools v.
Risley. [
Footnote
31]
In the light of the authorities, alluvion may be defined as an
addition to riparian land, gradually and imperceptibly made by the
water to which the land is contiguous. It is different from
reliction, and is the opposite of avulsion. The test as to what is
gradual and imperceptible in the sense of the rule is that though
the witnesses may see from time to time that progress has been
made, they could not perceive it while the process was going on.
Whether it is the effect of natural or artificial causes makes no
difference. The result as to the ownership in either case is the
same. The riparian right to future alluvion is a vested right. It
is an inherent and essential attribute of the original
property.
Page 90 U. S. 69
The title to the increment rests in the law of nature. It is the
same with that of the owner of a tree to its fruits, and of the
owner of flocks and herds to their natural increase. The right is a
natural, not a civil one. The maxim
"qui sentit onus debet
sentire commodum" lies at its foundation. The owner takes the
chances of injury and of benefit arising from the situation of the
property. If there be a gradual loss, he must bear it; if a gradual
gain, it is his. The principle applies alike to streams that do and
to those that do not overflow their banks, and where dykes and
other defenses are and where they are not necessary to keep the
water within its proper limits. [
Footnote 32]
In England, the rule which is applied to gradual accretions on
the shores of fresh waters is applied also to such accretions on
the shores of the sea. [
Footnote
33]
We may well hold that the adjudications of this Court to which
we have referred are decisive of the case before us. They are
binding upon us as authority. We are of the opinion that the United
States never had any title to the premises in controversy, and that
nothing passed by the several acts of Congress and of the
Legislature of Illinois, relied upon by the plaintiff in error.
Judgments affirmed.
[
Footnote 1]
There was a considerable blank here, in which no doubt the
bearing of some object was meant to be inserted; though it never
was in fact inserted -- REP.
[
Footnote 2]
Chapter 301, 16 Stat. at Large 364.
[
Footnote 3]
Act of February 18th, 1871, chapter 58, 16 Stat. at Large 416;
act of September 28th, 1850, chapter 84, 9
id. 519; also
under the Acts of the Legislature of Illinois of the 22d of June,
1852; of the 12th of February, 1853; of March 4th, 1854; of
February 18th, 1859; and of March 11th, 1869.
[
Footnote 4]
Preston's Heirs v.
Bowmar, 6 Wheat. 580.
[
Footnote 5]
Newsom v. Pryor's
Lessee, 7 Wheat. 7.
[
Footnote 6]
Barclay v. Howell's
Lessee, 6 Pet. 499;
Baxter v. Evett's
Lessee, 7 Mon. 333.
[
Footnote 7]
Preston's Heirs v. Bowmar, supra.
[
Footnote 8]
2 J.J.Marshall 160.
[
Footnote 9]
4 Monroe 62.
[
Footnote 10]
1 B.Monroe 26.
[
Footnote 11]
Churchill v. Grundy, 5 Dana 100.
[
Footnote 12]
McCullock's Lessee v. Aten, 2 Ohio 309;
See also Handly's Lessee v.
Anthony, 5 Wheat. 380.
[
Footnote 13]
Lamb v. Rickets, 11 Ohio 311.
[
Footnote 14]
Rix v. Johnson, 5 N.H. 520.
[
Footnote 15]
Luce v. Carley, 24 Wendell, 451.
[
Footnote 16]
Jones v.
Soulard, 24 How. 44;
see also Schurmeier v. St.
Paul & Pacific Railroad, 10 Minn. 830, and
Shelton v.
Maupin, 16 Mo. 124.
[
Footnote 17]
74 U. S. 7
Wall. 287.
[
Footnote 18]
Helsey v. McCormick, 18 N.Y. 147; 3 Washburne on Real
Property 58, 358*.
[
Footnote 19]
Lib. II, Tit. I, § 20.
[
Footnote 20]
D. XLI, 1, 16; Sanders' Institutes 177;
see also Morgan v.
Livingston, 6 Martin's Louisiana 251.
[
Footnote 21]
Book II, of Property &c., § 556.
[
Footnote 22]
4 Nouveau Dictionnaire de Brillon 278;
Morgan v.
Livingston, 6 Martin 243.
[
Footnote 23]
Partid. iii, tit. xxviii, Law 26.
[
Footnote 24]
2 Commentaries 262;
see also Woolwich's Law of Waters
34, and Shultes's Aquatic Rights 116.
[
Footnote 25]
De Jure Maris, 1st pt, ch. 6;
see also The King v.
Lord Yarborough, 1 Dow & Clark, Appeal Cases 287.
[
Footnote 26]
3 Commentaries 428.
[
Footnote 27]
Martin v.
Waddell, 16 Peters 367;
Russel v.
Jersey Co., 15 How. 426.
[
Footnote 28]
Pollard's Lessee v.
Hagan, 3 How. 212;
Pollard v.
Kibbe, 9 How. 471;
Hallett v.
Bute, 13 How. 25;
Withers v.
Buckley, 20 How. 84.
[
Footnote 29]
35 U. S. 10 Pet.
662.
[
Footnote 30]
71 U. S. 4 Wall.
502.
[
Footnote 31]
77 U. S. 10
Wall. 110.
[
Footnote 32]
3 Washburne on Real Property 58, *452;
Municipality No. 2 v.
Orleans Cotton Press, 18 La.Rep. 122.
[
Footnote 33]
The King v. Lord Yarborough, 3 Dow & Clark's Appeal
Cases 178.
