COUNTY OF ST. CLAIR v. LOVINGSTON

Mr. Gustavus Koerner, for the plaintiff in error:

The history of these hundred acre tracts, often called militia tracts, should be stated by the reporter as part of the case. They are facts, which go to constitute the case, and are an important part of it.

So far back as June 20th, 1788, in a resolve of the old Congress of the United States, a report was made to Congress, and approved by it, for confirming the rights of old French settlers in Illinois.

The Congress under the present constitution in 1791 — re-enacting the resolve of June 20th, 1788 — provided in the sixth section that the governor of the Territory should be authorized to make a grant of land, " not exceeding one hundred acres, to each person who hath not obtained any donation," c., and who has done militia duty, "the said land to be laid out in such form and place as the said governor shall direct."

Section eight provided that the governor should lay out the said lands agreeably to the act of Congress of June 20th, 1788, an act which provided that they shall be located within certain parallelograms. These parallelograms of one hundred acres each were, of course, defined plats of ground. They made what the Roman law calls agri limitati.^fn_

Independently of which, it is plain that a grant is not carried to the centre of the stream, but stops at the bank, if the grantor describe the land as beginning on the bank of a river; or as coming only to a post or point on the shore; and carries a boundary, not by the stream, but by a straight line between points on its bank. This confines and limits everything to the lines described.

Now, alluvion is an accretion of a tract of land, bounded by a river, the owner of which is not limited by a certain measure. It does not apply to the ager limitatus. Moreover alluvion must be not only gradual and imperceptible, but be also by natural causes.^fn† The causes here were not natural causes, but artificial ones.

The common law as to rivers not navigable has adopted the civil law.

We have heretofore referred to the history of those claims; now let us make the application.

The region of country from the mouth of Wood River, a little below Alton, to the mouth of Kaskaskia River, between the bluffs on the east and the Mississippi River on the west, is generally known as the American Bottom. It is about ninety miles long, and averages five miles in width.

At the time of the resolve of Congress, June 20th, 1788, no American resided there. The principal settlements were at the Kaskaskies, Prairie des Rochers, and Cahokia, the latter opposite Carondelet, and a little below St. Louis, though there were others, such as Fort Chartres, Prairie du Pont, and Cantine, the latter extending nearest to Wood River. Now, these donations, one hundred acres, were limited to exactly the quantity fixed by the law. It would have been most unjust to give one militia man one hundred acres, and to another, by possible accretion, one thousand acres.

It is to be presumed that the surveyors, under the direction of the governor of the Northwest Territory, carried out the directions of the law; that is, that they laid out said reservations in parallelograms. This being done, there was no possibility of making the river the boundary, except where, as in this case, as the maps show, accidentally the river-bank was quite straight and fell on the western line of the parallelogram, though it was not so straight but what one of the points of the survey was fixed in the river.

Now in the field-notes of survey 579, the tract in question, there is not a word said about meandering with the river, but all goes on points and lines clearly given. The field notes of the Coudaire tract are equally definite, and more significant; for while the eastern boundary, beginning on the Cahokia Creek, is made to run " thence down the said creek with its different courses," quite a different language is adopted as to the west boundary. It comes to a point on the bank of the Mississippi, but there is not a word said, as before, about going up the said river with " its different courses." The language is "up the Mississippi, and binding therewith."

The west line of the Coudaire survey seems in fact to be identical with the west line of the three militia claims.

Both these land donations, militia claims and Coudaire settlement rights, were each a well-defined, measured tract of land.

Coudaire, whose right was younger than that under the militia claims, took nothing of these militia claims nor anything but the fractions east, between the lines of the militia claims and the meanders of the Cahokia Creek; the lower part on Diagram No. 3, and which is shaded. The title of the defendants to the land in question ultimately rests solely on the militia claims; the Coudaire grant being utterly void as to them.

There was no advantage of the river front when these locations were made. The country was hardly settled. St. Louis was a little village. The important point was Carondelet, on the Missouri side, six miles below. Canoes, and now and then a keel-boat, were the only craft on the river. No wharfage, no woodyards were thought of.

We have thus far argued the case strictly within the case in Middleton v. Pritchard,^fn_ and other decisions of the Supreme Court of Illinois, which are to the effect that all grants bounded upon a river not navigable (to which class they decide the Mississippi River to belong), as to riparian rights, entitle the grantee to claim to the centre thread of the river and all the islands lying between the main land and the centre thread of the current.

The doctrine that no rivers are navigable, except wherein ebb and tide flows, said to be the common-law doctrine, but denied even in England, is repudiated by many decisions in the State courts.^fn†

In this court decisions have been made which strongly favor the view that the navigability of the river does depend on navigation in fact, and not on the supposed English definition.

If then the Mississippi is a navigable river, as to riparian rights, the accretions belong to the sovereign, and Congress had an undoubted right to grant them to the county of St. Clair.

Mr. W.H. Underwood, contra:

Every position taken by the opposing counsel is so well answered in the opinion of Thornton, J., delivering the unanimous judgment of the court below, and every position which we would desire to enforce is so well there presented, that we do little but offer to this court his ideas in his own language.

If the land of the riparian proprietor was bounded by the Mississippi River, his right to the possession and enjoyment of the alluvion is not affected, whether the stream be navigable or not. By the common law, alluvion is the addition made to land by the washing of the sea, a navigable river, or other stream, whenever the increase is so gradual that it cannot be perceived in any one moment of time. The navigability of the stream, as the term is used at common law, has no applicability whatever to this case. If commerce had been obstructed, or the public easement interrupted, or a question was to arise as to the ownership of the bed of the stream, then the inquiry as to whether the stream was navigable or not, in the sense of the common law, might be pertinent. No such question is presented. On this branch of the case the only question is: Have the United States, or has the State, or the riparian owner, the right to the accretion?

If the river is the boundary, the alluvion, as fast as it forms, becomes the property of the owner of the adjacent land to which it is attached. On a great public highway like the Mississippi, supporting an immense commerce and bearing it to every part of the globe, purchasers must have obtained lands for the beneficial use of the river as well as for the land. Can it be presumed that the United States would make grants of lands bordering upon this river, with its turbulent current, and subject to constant change in its banks by alluvion upon the one side and avulsions upon the other, and then claim all accretion formed by the gradual deposition of sand and soil, and deprive the grantee of his river front? If he should lose his entire grant by the washing of the river he must bear the loss, and he should be permitted to enjoy any gain which the ever-varying channel may bring to him. If a great government were to undertake under such circumstances to dispossess its grantee of his river front, the attempt would be akin to fraud, and it would lose the respect to which beneficent laws and the protection of the citizen would entitle it.

Sir William Blackstone says^fn_ as to lands gained from the sea by alluvion, where the gain is 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."

The same reasoning applies, with all its force, to the lands abutting upon the Mississippi River.

This question has been discussed with profound research and great ability by the courts in Louisiana, as to accretions upon this same river, and the law clearly announced. In Municipality No. 2 v. Orleans Cotton Press,^fn† it was declared that the right to future alluvial formations was a right inherent in the property, an essential attribute of it, the result of natural law, in consequence of the local situation of the land; that cities, as well as individuals, had the right to acquire it, jure alluvionis, as riparian proprietor; and that the right was founded in justice, both on account of the risks to which the land was exposed and the burden of protecting the estate. The court further assimilated the right to the right of the owner of land to the fruits of a tree growing thereon.

The same principle was declared by this court in Banks v. Ogden.^fn‡

The only portion of the field-notes to which we desire to call attention is the following:

"`To a post on the westerly side of the Cahokia Creek, thence down the creek with the different courses thereof,' and `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 bounding 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.'"

This survey was made in 1815. From the copy of the plat of it, from the custodian of the United States surveys, it will be seen that the line along Cahokia Creek meanders with the stream, which was sinuous, and hence the call in the notes, "down the said creek, with the different courses thereof." A further examination of the plat will show that though the line from "a post on the bank of the Mississippi River to a post northwesterly corner of Nicholas Jarrot's survey, claim No. 100," is a straight line, the river-bank as indicated by the plat was also straight in 1815. The Coudaire survey embraces three militia claims which had been surveyed before, and which were confirmed to Jarrot.

One of the Jarrot surveys begins on the bank of the Mississippi, and thence to a point in the river, c.

Concede that the Jarrot survey did not make the river the boundary by specific call, yet its beginning was on the bank of the river opposite St. Louis, and thence it followed the river to a point on it. It is, then, evident that at this time there was no land between the western line of the Jarrot survey and the river. All the plats introduced in evidence show that the river-bank was straight, and the point in the river must have been made for the purpose of obtaining the bearing of the witness tree, a sycamore 250 links from the point. It is manifest that the river was the boundary, and whether the grant was bounded by the river or on the river can make no difference as to the question involved. The grant may be so limited as not to carry it to the middle of the river, and yet not exclude the right to the alluvion.

The counsel for the county argue that a grant is not carried to the centre of a stream, but stops at the bank, if the grantor describes the line as upon the margin, or at the edge or shore, and that these terms become monuments, and that they indicate an intention to stop at the edge or margin of the river. This may be good law, and not affect the rights of the defendants. They do not claim the bed of the stream, and the river does not run over the land in dispute at ordinary stages of water. Their claim, if established, does not obstruct the river, or interfere with its free navigation and use by the public.

But the Coudaire survey not only covers the Jarrot surveys, but extends beyond them. It not only takes any fractions between the Jarrot surveys and Cahokia Creek — the parts at the bottom of Diagram No. 3, and shaded — but the land, if any, between their western line and the river. The Coudaire survey ran up the river, binding it, and passed the southwesterly corner of the Jarrot survey, No. 579, at six poles. Language could not make it more plain, that the western line was bounded by the river; and the plats confirm this view.

The only construction to be given to these grants is, that the United States had conveyed the land to the bank of the Mississippi. It follows that the grantees were riparian proprietors, and are the owners of the alluvial formations attached to their lands.

Unless such construction be given and adhered to rigidly, almost endless litigation must ensue from the frequent changes in the current of the Mississippi and the continual deposits upon one or the other of its banks; the value of land upon its borders would depreciate, and the prosperity of its beautiful towns and cities would be seriously impaired.

Opposing counsel say that at the time the locations were made there was no advantage of river-front, no wharfage, and no wood-yards. This may be true, but even at this early period the grantees must have realized the vast importance of the Mississippi to them, and to all the people of the States bordering upon it, in the grand future soon to be unfolded. They must have seen the necessity, and accepted the grants, for the purpose of securing an approach to the river.

Before 1819 a ferry was established across the river, near to the land in dispute, and has been since in constant operation. Before 1850 a city had sprung up on the Missouri side of the river, and a prosperous village was growing on the Illinois shore. Before 1852 a charter for a railroad had been granted by the State, which resulted in the construction of a road from Terre Haute, in the State of Indiana, to Illinoistown. Prior to the grant made by the United States in 1870, a number of railroad tracks had been constructed upon the ground formed by accretion, and an elevator erected, and dykes for the use of wagons, and a large expenditure of money made by the ferry company for the preservation of the banks recently made. These are matters of known public history.

It needed no prophetic eye to foresee, prior to the year 1850, these grand improvements which bring the products of an empire to the Father of Waters. Their absolute necessity, and consequent construction, as an outlet for our immense produce had been known for more than a quarter of a century before their completion. Their usefulness would be greatly crippled and the public thereby seriously suffer if ready access to the river was denied.

It would be a strained construction to hold that, in making these grants, the United States reserved all accretions, and thus to deprive these proprietors of ferry privileges and the beneficial enjoyment of the river.

It is further contended that the lands are not accretions, as they were made by artificial and not natural means.

Concede, what is not clear, that the dykes, to some extent, caused the accretions. They were not constructed for such purpose; and the defendants had nothing to do with their erection.

The fact that the labor of other persons changed the current of the river, and caused the deposit of alluvion upon the land of the defendants, cannot deprive them of a right to the newly made soil.

If portions of soil were added to real estate already possessed by gradual deposition, through the operation of natural causes, or by slow and imperceptible accretion, the owner of the land to which the addition has been made has a perfect title to the addition. Upon no principle of reason or justice should he be deprived of accretions forced upon him by the labor of another, without his consent or connivance, and thus cut off from the benefits of his original proprietorship. If neither the State nor any other individual can divert the water from him, artificial structures, which cause deposits between the old and new bank, should not divest him of the use of the water. Otherwise ferry and wharf privileges might be utterly destroyed, and towns and cities, built with sole reference to the use and enjoyment of the river, might be entirely separated from it.

In Godfrey v. The City of Alton,^fn_ the public landing had been enlarged and extended into the river, both by natural and artificial means, and this court held that the accretions attached to and formed a part of the landing.

In New Orleans v. The United States,^fn† the quay had been enlarged by levees constructed by the city, to prevent the inundation of the water, and the court held that this did not impair the rights of the city to the quay.

In Jones v. Soulard,^fn‡ the intervening channel between the island and the Missouri shore had been filled up in consequence of dykes constructed by the city, and the riparian owner succeeded.

In the case at bar the accretions have not been sudden, but gradual, as we gather from the testimony. The city of St. Louis, to preserve its harbor and to prevent the channel from leaving the Missouri shore, threw rocks into the river, and the coal-dykes were made to afford access to boats engaged in carrying across the river. The ferry company protected such accretions by an expenditure of labor and money.

The accretions are partly the result of natural causes and partly of structures and work erected and performed for the good of the public. The defendants should not thereby lose their frontage on the river, and be debarred of valuable rights heretofore enjoyed. This would be a grievous wrong, for which there would be no adequate redress.