Mayor of Mobile v. Eslava

delivered the opinion of the Court.

This -case comes beforé this Court on a writ of error to the Supreme Court of Alabama.

The plaintiffs brought an action to recover certain lots in the city of Mobile, bounded east by Commerce street, south by Church street, on the west by Water street, and extending on the east side of Commerce street to the channel of the river. They claim title under the act of Congress of the 26th.May, 1824; and the Circuit Court of the state, in which the action was first brought, decided against .their title. That decision wa^s removed to the Supreme Court of the state by writ of error, where the. judgment of the Circuit Court was affirmed. Under the twenty-fifth section of the judiciary act' of 1789, the case is brought before this Court.

The first section of the above act declares, “ That all the right and claim of the United States to the lots known "as the Hospital and Bakehouse lots, containing about three-fourths of an acre of

TW defendant’s title was aéquired by purchase from 'the United States* at a- public sale, in 1820. This sale was-made under the act of Congress of the 20th April, 1818, which gave power to the President to sell the ground on which Fort Charlotte, at Mobile, stood. The ground was required to be laid off into lots, with suitable streets and avenues, conforming; as neat as practicable, to the plan of the city.- Ten sqqarés and parts of squares were surveyed "and divided into lots, streets, &c. By the original plan of the city, a street-known as Water-street, was run on the. margin of the Mobile river, and this street,-by ; the said- survey, was extended over-a part of.-the site of Fort Charlotte- along the margin of the river'.- No lots were sold-'east of this street. Lots 1, 11, 12, and 13, in square 1, lie immediately . west of Water street, and are bounded by it. The iotsin dispute lie 'east of Water street, and directly opposite- the lots above numbered.

In 1822,-Water street and the property now in dispute, were between high and low water mark. . -The corporation of the city, in .1823, expended four hundred dollars infilling up Water street; and by the- improvement confined the water at high tide to the eastern side of Water street.

It was proved on the t-ial, that in .order to reclaim one of the lots in square 2, east of Water street, the owner , had to fill up seven feet; and that he could not pass along Water street at that time except with the aid of logs and other timbers. Another witness stated that he - purchased the lot west of the lots in dispute, and that he had to fill up his lot before it could be occupied. And.other evidence was given by defendant conducing' to prove that the eastern line of the lots, at the date of the sale, was

And to show improvements on the lots in dispute before-1824, the defendant read'from the book of the corporation, the, following entry, dated, in 1823: “Charles S. Matthews having improved his lot -by filling it up, and a stagnant pond being occasioned thereby at the end of Church street, &c.” In 1824,- about one-half, of the space between Water - street' and Commerce street,was" subject to be covered by water at the ordinary tides: Water street- was- not opened as low as Church street until .1824. It appeared that' the defendant and those under whom he claims, had paid taxes on the property to the corporation. That in 1824 or 1-825, the defendant was required to pay for side walks around his lots, upon the assessment of the corporation; and in 1833, he was required by the mayor of the city.; to fill up two places upon one of the lots with earth or shells. About this time, the. lot was advertised-for sale, as the -property of-Matthews, the defendant’s tenant, for taxes due the corporation; which were afterwards paid, with the costs of advertising, &c. -

. Upon these facts, the. Circuit' Judge charged the-jury, “ That,, if ,the lots-specified'in the patents 10, 11, 12, &c;, were proved to Rave-been bounded by high-water'mark at the time purchased, .theh- they-came within the terms of ‘ lOtsknown under .the. Spanish government as water lots,’ as'used in-the act of Congress; and if proved that the lots claimed were east > of 'Wafer street, and ip front of the .lo.ts covered by the patents,, and, that they had been, improved before the passage of the act of 1824, they were vested in the proprietors and occupants-of the lots held under the patents; and .this, although Water street did intervene between the lots ■claimed and. those held under-the patents,” And the Court further charged’the jury, that “if the proof showed the property >

The plaintiffs’ counsel requested the judge to charge the jury, “ that if they believed the facts were proved as contended for by them, that the plaintiffs were entitled to a verdict 11 their favour; which.the judge refused to do.”

In their opinion, the Supreme Court of Alabama do not give a construction of the act of 1824, under which the plaintiffs? right is asserted; but consider the respective rights and powers of the federal and state governments arising under the federal Constitution, and the compact entered into on the admission of the state of Alabama into the Union. The power of the Spanish monarch over the soil and navigable waters, when the territory was under his dominion, is also considered and illustrated; and the doctrines of the common law as applicable to the subject are examined : and by this course of reasoning, the Court, among other conclusions, decide that the act of 1824 is void, as Congress had no poAirer to grant the property in dispute.

, The result .of this investigation was. the affirmance of the judgment of the Circuit Court. And so far as regards the question before us, it is immaterial by what process of reasoning the

Both parties set up a right under the act of 1824. It is the foundation of the plaintiffs’ title; and the defendant relies upon it as sanctioning his claim. Now, no construction of this act can •favour the hostile pretensions of both parties; and if the true construction of it shall give no title to the plaintiffs, this controversy is at an end. And in this view it is unnecessary to inquire into the constitutionality of the act.

. The defendant insists that his right, is sanctioned by the second section of the above act, which provides, “ that all the right and claim of the United States to so many of the lots of ground east of Water street, and between Church street and North Boundary street, now known as water lots, as are situated between the channel of the river and the front of the lots known, under the Spanish government, as water lots, in the said city of Mobile, whereon improvements have been made, be,, and the same are hereby, vested in the several proprietors and occupants of each of the lots heretofore fronting on' the river Mobile, except in cases where such proprietor or occupant has alienated his right to any such lot now, designated as a water lot, &c.”

Tfiis Court gave some consideration to the construction of this section in the case of Pollard’s heirs v. Kibbé, 14 Peters, 353; and there was a diversity of opinion among the judges on the subject. It must be admitted that the section was loosely drawn, and its meaning may be somewhat involved in doubt.

Some doubt has been expressed whether the improvements required were to have beerr made on the front or water lot. But we think they must be made on the latter. The right relinquished by the United States was to the water lots lying “east of Water street,” “ and between Church street and North Boundary street, now known as water lots, as are situated between the channel of the river and the front of the lots known under the Spanish government as water, lots, in the said city of Mobile, whereon improvements have been made.” Now it will be observed that all the words between the words “water lots” first used in the

In his charge to the jury, the judge laid down these conditions in clear terms; and instructed the jury, if the facts brought the defendant within them, that they should find against the plaintiffs. The jury did so find, and this inconclusive as to the facts of the case: and the only inquiry remains, whether by any possible construction of the act, in view of these facts, any right under it can be asserted by the plaintiffs.

A statute so badly drawn as to vest a right to the same property in hostile claimants, vf ould -in itself be a nullity. Exceptionable and involved as the language of this statute may he, it is not obnoxious to this objection.

The first section, under which alone cam the plaintiffs pretend to have any colour of right, excepts from its provisions “ lots sold or confirmed to individuals, either by. that or any former act, and to which an equitable title exists in favour of any individual under that or any other act.” This exception embraces the right of the defendant, as found by- the jury; and shows that however obscure some points of the act may be, its provisions are consistent.

As this is decisive of- the cáse, it is unnecessary to notice the instruction prayed for by the plaintiffs in the. Circuit Court; and which the Court refused to give. It was asked in affirmance, generally, of the plaintiffs’ right..

The judgment of the Supreme Court of Alabama, which affirms the judgment of the Circuit Court of that state, is affirmed.

• This -is a writ of error prosecuted to reverse the decision of the Supreme Court of Alabama, in an action corresponding to an ejectment. The first • question is, has this Court jurisdiction

Second. He insistéd that the city was estopped to set up a claim under, the act of Congress; because the defendant had improved the lot, and been recognised as owner by the corporation,in various-ways.

The plaintiffs having read the act. of Congress as a grant, and proved the defendant in possession, asked the Court to instruct the jury, that if they believed the facts were proved, as contended for by them, they were entitled to a verdict; which instruction the Court refused: and a verdict was rendered for the defendant, and judgment given in the Circuit Court for him, to which a writ of error was prosecuted to the Supreme Court. One error assigned is, t‘That the charge of the Circuit Judge denies that the United States had power to grant the premises in question.”' On this assignment, there was a joinder — that there was no error.

The plaintiffs’ title is set out in the record;- and upon this title and upon the last assignment of error, is the opinion of the Supreme Court of Alabama exclusively founded. The opinion is before us, and maintains that the act of 1824 is void; as did a most laboured argument here, on the part of the defendant in error. To meet, the opinion, this cause was. avowedly brought into this Court, by the corporation' of the city of Mobile; it is conclusive in the State Courts against the title of the city, and that of its alienees, to a vast amount of property Held under the act of 1824 and I think it is our duty to meet the question; if we do not, the decision will remain the law of Alabama. The whole title of both sides are set forth in the record; and it was quite proper in the- Supreme Courfof Alabáma-to commence with the. examination of the plaintiffs’ first; and if found void, to declare

The charge of the Circuit Court on. any other point was not noticed; nor do I see how, in another case, the corporation can more prominently present the question on the validity of the act of Congress, so as to bring it before this Court for'final decision. First, or last, this is not to be avoided.

That the whole case is before this Court, will be seen-by reference to Borland v. Ross, 1 Peters, 664. There'both sides derived title under an act of Congress. The defendant’s claim was rejected on a construction given to the plaintiff’s patent and entry. It recognised the case of Mathews v. Zane, 4 Cranch, 382 , as having settled the doctrine that where both sides claim under acts of Congress, and come to this Court under-.'the twenty-fifth section Of the judiciary act¿ for their construction, the Court proceeds on the whole case; and for either side.. The Court say— “ The third article of the Constitution, when considered in 'connection with the statute, will give it a more extensive construction than it might otherwise receive. It' is supposed that the act (1789, s. 25) intends to give this Court power of rendering uniform the construction of the laws of the United States,,and the-decision of rights and titles- claimed under those laws.” This decision was made in 1808.

The case of Borland v. Ross, was this:

Borland claimed by a patent, dated October, 1830, founded on an entiy of 1807.

The defendant claimed under a patent dated, in 1819.

The State Court adjudged the younger patent the better title; it was coupled with the entry — giving the title date from 1807. This Court say — “ By the Constitution, the -judicial power shall extend to all cases arising under the Constitution or laws, of the • United States, and treaties made, or to be made, under their -authority : and whére the construction of a statute of the United States is drawn in' question, and the decision is against the right, or title set up under it, the decision may be re-examined, arid reversed or affirmed, by. this Court. . The Court held, that as both parties claimed under the act of Congress, the cáse of Mathews v. Zane governs.

A pre-emption claimant took old Fort Dearborne, at Chicago. Hegot-¿-certificate from the register of the land-office ; on this he sued in the State Circuit Court in Illinois. A special verdict set out all the facts. The defendant was a military officer in the fort. The United States resisted the claim, because it was insisted the fort was appropriated land. On the special verdict, and on. the broad facts referred to the Court by the jury; the Circuit Court gave judgment for the defendant. A writ of error was prosecuted to the Supreme Court of Illinois. That Court gave judgment for the plaintiff. Then the United States, in the name of Wilcox, prosecuted a writ of error to this Court-under the twenty-fifth section of the judiciary act.

We examined the cause'precisely as the Supreme Court .of. Illinois had done; that is, on the entire record presented by the special verdict.

On what ground the Court below had founded its judgment, we only knew by its opinion produced to us. We reversed the judgment, and rendered one for the' defendant. We declared the entry on which the plaintiff founded his action void, on a construction of the acts*of Congress governing the case; following, to some extent, Martin v. Hunter, 1 Wheat. 305 , 355.

In this case the Supreme Court of Alabama declared the grant of the plaintiff void, because.the land, as they supposed, had .vested previously in the state. Had the bill of exceptions been turned into a special verdict, and there would not be a shade of difference in the cases. On this point there was no doubt entertained in Pollard’s heirs v. Kibbé, 14 Peters, 53.

With this explanation' we will proceed to the merits; and first inquire, whether the claim of the defendant can be sustained under his title from the purchasers of the Fort Charlotte property. By the act of April, 1818, (Land Laws, 756,) the President was authorized to cause Fort Charlotte to be abandoned, and the land on which it-stood to be surveyed and laid off into lots, with. suitable streets and avenues, conforming as near as might be to the original plan of the city of Mobile; and on the survey being completed, a- plot thereof was to be returned to the Secretary of the Treasury,' and another to be fur

The lots were laid off, as also the streets. Water street was located next the bay, and the lots nearest ,the water fronted that, street on the west; the lots were neither surveyed nor sold east of Water street. High tide flowed up to the street, and in -part covered it; but east of it there was a wide flat, covered from a' foot to eighteen inches deep, when the tide was in; but when out, free from water to the channel of the Mobile river. This flat was easily reclaimed by embankments, and filling up; and was obviously the ground on which a great, part of the city would soon be located. Reclaiming lands from the water through that section of country, is the common practice, and was deemed a matter of course in this instance. The purchasers of the Fort Charlotte lots west of Water street, foreseeing the value of the property east of it, seized on the flooded la.hds on the assumption that they were entitled to go ,to {he channel of the river, as riparian'owners of the front on the shore; and on this assumption, sold to Matthews, the property in dispute, lying east of Water street. -The.flat has since been filled up, and’ there are several streets east of Water street. It is^manifest the United States only sold, the lots laid off, (for each"of which'a patent was issued;) reserving the land next the’'channel of the river: in regard to which, the Supreme Court of Alabama say: “the defendant does not rely upon his riparian proprietorship, as entitling him to the land east of Water street; nor, indeed, could he insist on it with success, as the Fort Charlotte lots were. not bounded by the river, but had other fixed metes and bounds.” Nor was it possible that- the lands seized upon- and sold to Matthews, could follow as an incident to the patent, for two additional reasons: -First, had the purchase been to the river, or bay of Mobile, in terms, the boundary would have been limited to high-water mark. Such is the rule, (as I think,) beyond controversy, in regard to all our territory acquired from Spain. So the Supreme. Court of Alabama held in Hagner v. Campbell, 8 Porter’s Rep. 24. So it has held in other cases: It is the .established law of property in that state. Second, Water street was reserved next the bay, and, being public property,'all the inci

2, Did he derive title by force of the act of 1824 ? The Court below held that the act was inoperative, for want of power in "Congress to pass title to the lands between Water street and the channel of the river; and the corporation of the city of Mobile, being the plaintiff, could not recover (as actor) for want of title. That the United States acquired the title to lands flowed by tides, by the treaty with Spain, is, of course, admitted. That they had power to grant, up to the adoption of the Constitution of -Alabama, in 1819, is also admitted in the opinion under revie\tf. That the Spanish king could grant lands under tide-water, is free from doubt, and the United States acquired by cession all his powers over the vacant soil. But the lands flowed by the tides are claimed for the state of Alabama as-a part of her sovereign rights.

To comprehend the nature of the claim some laws and facts must be .stated. When the Alabama territory, in 1819, proposed to form a state government, Congress passed an act (ch. 171) to authorize the formation of a state constitution ; and proposed several conditions for the .adoption . of the convention, which were adopted as part of. the constitution; and amongst others,- it was agreed with the United States, “That the people of Alabama forever disclaim all right and -title to the waste or unappropriated -lands lying within the state; and that the same shall remain at the .sole disposition of the United States.” .

The constitution of Alabama was presented to Congress for recognition; and on the 14th of December, 1819, it was resolved, “ That the state of Alabama shall be one, and is hereby declared to be one of the United States of America, and admitted into the Union on an equal footing with the original- states, in all respects whatever.” By the acceptance of the conditions on part of the United States, it is considered clear, says the Supreme Court, of Alabama, “ That the navigable waters of this state have been dedicated to the common use of the people of the United States but perhaps it may be considered as questionable what extent of soil is embraced by the dedication. We think it must be so much ground as is covered with water, not only at low but at high. tide.”

The Court then proceeds further to declare, “That the act of 1824 vested no title in the corporation of Mobile; for the reason that the state of Alabama was admitted into the Union on the footing of the original states. That the original states by their colonial charters had the right of property, in bays and arms of the sea; this they retained, and it can only be interfered with by the federal government, under the right to regulate commerce, so far as to preserve a free navigation. The United States then' may be said to claim for the public an easement for the transportation of merchandise, &c., in the navigable waters of the original states; while the right of property remains in the states.”

“ The original states possessing this interest in the waters with-, in their jurisdictional limits, the new states cannot stand upon an equal footing with them as members of the Union, if the United States still retain over their navigable waters any other right than is necessary to the exercise of its constitutional powers. To recapitulate, we are of opinion: First, That the navigable waters within this state have been dedicated to the use of the citizens of the United States, so that it is not competent for Congress to grant a right of -property in the same. Second, The navigable waters extend not only to low water, but embrace all the soil that is within the limits of high-water mark! Third, By the acts of Congress

That the original states acquired by theRevolution the entire rights of soil, and of sovereignty is most certain. And if it be true that Alabama was admitted on an equal footing in regard to the rights of- soil with the original-states, she can hold the high lands equally with the land covered by navigable waters; 'and so can nine other states equally h'old, to the utter destruction of all claim to the lands heretofore indisputably recognised as belonging to-the United States, as being a common fund of the Union.

The clause inserted into the constitution of Alabama, reserving the rights of property to the United'Statés, as-a compact with them, embraces lands under water as emphatically as those not covered with water ? But if no stipulation saving the interest of the United States had been -made, they would have had just as much right to their private property as an individual had to his.. They hold, as a corporation, an individual title.

The Constitution of the United States provides, “that the Congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property belong

Neither did Congress cede it by stipulating that the navigable rivers should be highways. That such waters are common for the purposes of navigation and commerce, in the widest sense, is free from doubt; that Alabama has jurisdiction and power over them, the same as the. original states have over their navigable waters, is equally clear. Yet it does not follow that the fee of the shores, banks, and soils under water, is in the state , of Alabama. The United States,-as owner, can do no act to obstruct the free public use of the waters, more than a private owner of the soil under water could obstruct the navigation. The individual owner in fee of the bottom of a navigable river, can cultivate and take out the shell fish or the minerals from the bed; nor can it be doubted that the United States may pursue, veins of silver, tin, lead, or copper, under the bottom of a bay, the river Mississippi, or a great lake; although they could not impede in any degree their navigation. So may the assignees or lessees of the United. States do the same. Nor can it be otherwise in regard to the occupation of the lands between high and low water mark. The" Delta of Mississippi,xthe greater part of East Florida, much of Alabama, and also of the state of Mississippi',, have, iands covered slightly with the flow of high-water. These lands are subject to be redeemed by embankments; they amount to some millions, of acres ;■ many of them are of the best rice, indigo, and even sugar and cotton lands on this continent. Immense bodies of • land are flowed by the great lakes, and subject,to-be.redeemed; and yet more, many parts of the shores of the great river Mississippi, from the mouth of the Missouri to the-ocean, are annually flowed by a tide of its own ; and the-lands are redeemed by levees from the water until the vessels on the surface of the river float above redeemed plantations .that have been submerged for months every year; and that were submerged in 1819, when it is supposed the United States, by implication, ceded all the flawed lands within her limits to Alabama. Embankments to exclude the water are almost as common on the banks

The Supreme Court of Alabama also holds that by the several acts of Congress, regulating the survey of the public lands, it is provided that those which border on navigable waters shall not include within their lines any part of the shore: and, therefore, the federal government has-renounced the title to the navigable waters, and the soil covered by them.

The United States have surveyed the shores of the tide-waters, great lakes, and certainly the banks of the great rivers to a wide extent. From the first, shores and banks of rivers have been the' boundaries of fractional sections ; large quantities of land have been sold and are now in the market, within the high-water mark; many even on the Alabama river. On the Mississippi, most of the fractions are partially, overflowed. Towns and villages on the banks of the river are partly within the high-water mark, resting on- patents from the United States; or on confirmed French and Spanish claims. ■ Scarcely any are exempt, from this supposed infirmity, of title when situated on tide-water' or on the larger rivers, and this is especially so in regard to the towns on the Mississippi, within the range of country 'sold out by the

If Congress had no power to grant; the act of 1836 is void and' our decision wrong, as was that of the Supreme Court of Alabama in the same case; for they held the previous act of 1824 was a valid grant. Many of the flowed lands must have private owners. The old states are in' the constant habit of granting them; in some they- are supposed to be of almost equal value with all the high lands: so it was confidently asserted in the argument of the cause of Martin v. Waddell, in regard to New Jersey. The great oyster banks are certainly worth many millions of dollars in that state, and are fast becoming private property. If the

Nor has Alabama a better founded or more plausible claim to the lands between high and low'water mark, on the ground that she was admitted' into the Union on an equal footing with the original' states. What was the condition of these states —the old thirteen — when they entered the Union ?- In Massachusetts — including what is now Üaine — all' the right of soil to lands, so far as the sea ebbed and flowed, by the colonial charter, (to the extent of one hundred rods,) was hi the owners Of the shores; and although the charter was annulled, the right was maintained as the common law of the state at the. Revolution. The law and decision are found in Angel on Tide-water, 108; and in Dane’s Abr. 694, 698.

So iti New York, lands were' held under tide-water, especially about the city, by individual titles. Mayor, &c., v. Scott, 1 Caines’ Rep. 543 .

So .it was in west New Jersey — and to a great extent in Pennsylvania and Maryland. The authorities will be found in Martin v. Waddell, decided at this term. It was only in those states where the royal charters had been surrendered or forfeited to “the crown, and in which no grants to flowed lands had been made, , (if any such there were,) that they devolved on the state as a consequence of the Revolution, That mud-flats were then held in private' property in every state of the Union can hardly be. doubted. • If one was in this condition,.it is enough for our purpose. In Massachusetts they were all thus held. If Alabama came in “ on the same footing” with Massachusetts; then all the .mud-flats may be held in .private property also in Alabama.

The stipulation in the ordinance of 1787, and which is repeated in the resolution admitting Alabama; guarantying to the new state equal rights with the old, referred to the political rights and sovereign capacities left to the old states, unimpared by the Constitution of the United States; and which were confirmed to them by that instrument. Whilst territories, the people inhabiting the

The first section vests in the mayor and aldermen all the lands between high-water mark(and the channel of the river, in front of the city, that lié below North Boundary street and above Church street. From which general grant are excepted by the second section lots on which improvements had been made lying east of Water street and fronting the water "lots, during the Spanish government, lying west of' Water street. The improved property was by the act vested in the proprietor or occupant of the lot fronting and opposite on the-west of the street; or in the purchaser of the new lot from the owner of the old one.

That the improvement must have been on ther eastern and new water lot, is, to my mind, plain from the reading of the act; so it has been held by the Courts of Alabama, as appears by the case

The Circuit Court charged the jury.(amongst other charges) “that, if the lot specified in the patents 10, 11, 12, &c., were proved to have been bounded by high-water mark at the time of the purchase ; then they came within the terms' of lots known under the Spanish government- aé water lots, as used, in the act of Congress;” and if it was proved that the 'lot claimed was east of Water street, and in front of the lots covered by the patents, and that had been improved before the passage of the act, it was vested in the proprietors and occupants of the lots held under ,the patents; and this, although Water street did intervene between the lots claimed and those held under the patents. The charge is deemed correct. The Objection that the lands* in front of the Fort Charlotte lots did not pass by the act. of 1824, has nothing in it. The first and second sections, refer to the same premises.; the first covers all the lands between high-water mark and the channel, of the river, and lying between Church street to North Boundary streets: of this there can be no doubt; and the exceptions in the second section apply to every part of the grant, made by the first. On these grounds the judgment should be affirmed.