In this case, certain land formed by accretion on the Illinois
side of the Mississippi River in St. Clair County, Illinois, was
held to belong to the plaintiff as part of certain surveys in the
common fields of Prairie du Pont, in Illinois, and not to belong to
the City of St. Louis, Missouri, as an accretion to and part of an
island in that city called "Arsenal Island" or "Quarantine Island"
on the Missouri side of the river, which island was originally more
than a mile higher up the river than said surveys.
By the law of Illinois, the title of the plaintiff extended to
the middle of the main channel of the Mississippi River.
It is a rule of property in Illinois that the fee of the
riparian owner of lands in that state bordering on the Mississippi
River extends to the middle line of the main channel of the
river.
The terms of the deed which conveyed title to the plaintiff
construed as not limiting him to the line of low water mark on the
river.
The sudden and perceptible loss of land on the premises conveyed
to then plaintiff, which was visible in its progress, did not
deprive the grantor of the plaintiff of his fee in the submerged
land, nor change the boundaries of the surveys on the riverfront as
they existed when the land commenced to be washed away.
If the bed of a stream changes imperceptibly by the gradual
washing away of the banks, the line of the land bordering upon it
changes with it, but if the change is by reason of a freshet and
occurs suddenly, the line remains as it was originally.
If an island or dry land forms upon that part of the bed of a
river which is owned in fee by the riparian proprietor, the same is
his property.
The right of accretion to an island in the river cannot be so
extended lengthwise of the river as to exclude riparian proprietors
above or below such island from access to the river, as such
riparian proprietors.
The law of title by accretion can have no application to a
movable island, traveling for more than a mile and from one state
to another, for its progress is not imperceptible in a legal
sense.
Ejectment. The docket title to this case is
Benjamin Seeger
and the City of St. Louis against Edward Butz. The death of
Seeger was suggested by counsel on the 5th of January, 1891, and
thereupon, an order being entered that the
Page 138 U. S. 227
case proceed in the name of the surviving plaintiff, the cause
was on the same day submitted.
The case, as stated by the Court, was as follows:
This is an action of ejectment, commenced January 29, 1884, by
Edward Rutz against Benjamin Seeger in the Circuit Court of the
County of St. Clair, in the State of Illinois, to recover the
possession of certain land situated in said county, described in
the first count of the declaration as follows:
"Commencing the survey thereof at a point on the line between
surveys one hundred and forty-eight (148) and one hundred and
forty-nine, in the common fields of Prairie du Pont, from which the
southernmost corner of said survey number one hundred and
forty-eight at the bluffs, bears S., 33 1/2� E., (var. 6�), two
hundred and forty-nine and 25/100 (249.25) chains; thence north, 33
1/2� W., with said line of said surveys extended, to the center
thread of the Mississippi River; thence along the center thread of
said river to the line between survey one hundred and fifty-six
(156) and survey one hundred and fifty-seven (157) extended to said
center thread of said river, making the right-angle distance
between the said extended lines 34.60 chains; thence south, 33
1/2�E., along said last-mentioned extended line to a point in the
line between said surveys one hundred and fifty-six (156) and one
hundred and fifty-seven (157) of said common fields, from which the
most southern corner of said survey one hundred and fifty-six bears
south, 33 1/2� east, two hundred fifty-four chains distant; thence
along the meanders of the original bank of the Mississippi River,
as surveyed by the United States government in surveying said
common fields, to the point of beginning, with the
appurtenances."
Seeger put in a plea of the general issue, and the City of St.
Louis, a municipal corporation of Missouri, and the landlord of
Seeger, was made by an order of the court a codefendant with
Seeger, and was given the sole control and direction of the defense
of the suit, and it put in a plea of the general issue. Afterwards,
on the petition of the City of St. Louis and
Page 138 U. S. 228
of Seeger, the suit was removed into the Circuit Court of the
United States for the Southern District of Illinois, and that court
took jurisdiction of it. By a written stipulation filed, the case
was tried by the court without the intervention of a jury, and the
court, held by the district judge, made the following findings of
fact:
"1. That in the years 1849 and 1850, one Augustus A. Blumenthal
acquired, by deeds from the parties then in actual possession of
said premises as the owners thereof, the title in fee to surveys
numbered 149, 150, 151, 152, 153, 154, 155, and 156 of the common
fields of Prairie du Pont, in the County of St. Clair, in the State
of Illinois, and that Edward Rutz, the plaintiff in this suit,
acquired from said Blumenthal his said title to said land prior to
the commencement of this suit."
"2. That the map or plat made by G. F. Hilgard, County Surveyor
of St. Clair County, Illinois, produced in evidence, and marked
'Plaintiff's Exhibit B,' is a correct map and plat of the said
premises and the surveys and lines indicated thereon, which said
map is hereby included in and made a part of these findings, and to
which reference is made for greater certainty."
"3. That, as appears from the evidence and plats read and
produced in evidence, the said surveys numbered 149, 150, 151, 152,
155, are each one arpent (or about twelve rods) in width, and the
said surveys 153 and 154 are each two arpents (or about twenty-four
rods) in width, and that the said survey numbered 156 is three
arpents (or about thirty-six rods) in width, and that said several
surveys adjoin each other and lie side by side in the order the
same are respectively numbered -- survey 149 being upon the extreme
northerly, and survey 156 being upon the extreme southerly, side of
the entire tract -- and that each and all of said surveys extended
to and were bounded by the Mississippi River on the northwesterly
ends thereof, and extend southeasterly from the Mississippi River,
the average distance of about one thousand rods, to the hills or
bluffs on the Illinois side of said river."
"4. That said Blumenthal, under said deeds to him whereby he
acquired title to said surveys, in the year 1850 entered
Page 138 U. S. 229
upon and took the actual possession of said surveys, including,
as a part thereof, the accretions thereto formed on the riverfront
of said surveys embraced within the side lines of said surveys,
extended without deflection in a direct line across such accretions
northwesterly to the Mississippi River, and said Blumenthal so held
such possession of said premises, and paid all taxes thereon, each
year from January 23, 1850, to December 23, 1873, at which said
last-mentioned time said Blumenthal conveyed 500 acres off from the
northwestern end of said premises, by deed, to said Edward Rutz and
others, whose title the plaintiff acquired in fee on and prior to
the 7th day of March, 1883, and thereupon succeeded to said
Blumenthal's said title to and possession of said premises, and
that the said Blumenthal, from whom the plaintiff so derived such
title and possession as aforesaid, and the several owners of the
surveys and lands in the said Prairie du Pont common fields
adjoining said surveys 149 to 156, both on the northerly and
southerly sides thereof, have each, ever since the year 1850, up to
the present time, claimed, possessed, fenced, enclosed, used, and
occupied as a part of their said several surveys and lands,
respectively, that portion of the said accretions thereto embraced
within the side lines of their respective surveys extended without
deflection in direct lines northwesterly to said river, and that
ever since the year 1849 the several owners of said surveys have,
by common consent, recognized and acted upon such extension of the
side lines of their several surveys in a direct course across said
accretions to the river, as the true and proper boundary and
division lines between them, in respect to the accretions formed on
the riverfront of said surveys."
"5. That the premises described in the declaration and sued for
are located at the present time, and were at the commencement of
this suit, eastwardly of the center of the main channel of the
Mississippi River, and in the County of St. Clair, in the State of
Illinois."
"6. And the court further finds that, as appears from the
evidence and from the survey of said lands made by William L.
Deneen, as the County Surveyor of St. Clair County, Illinois,
Page 138 U. S. 230
on November 15, 1850, produced in evidence at that time, the dry
land of said surveys numbered 149 to 156, inclusive, extended
westwardly to the line indicated by the words 'River Bank, 1850, by
Deneen,' on the map marked 'Plaintiff's Exhibit B;' and that the
mainland of said surveys numbered 149 to 156, inclusive, in the
year 1850, extended westwardly over and across, and included about
sixty rods in width of, the lands described in the declaration,
to-wit, that portion of said lands lying between the river bank in
1850, as indicated by said Deneen's survey, and the line marked
'Old Surveyed River Bank, 1814,' as said lines are respectively
designated on said map, and that in the year 1863, the main and dry
lands of the surveys 149 to 156 extended about fifteen chains or
sixty rods further westward, and beyond the line of the river bank
so surveyed by said Deneen in 1850, and that the eastern bank of
the river in 1863 was about one-half a mile west of a certain
dwelling-house hereinafter mentioned, then standing on said survey
No. 151, and so continued until the year 1865."
"7. That the greater part of the so-called 'Arsenal Island,'
which now extends over and is embraced within the boundaries of the
lands described in the plaintiff's declaration, is located upon the
site of the dry lands of said surveys numbered 149 to 156,
inclusive, as the same existed from 1850 to 1865, and that the
residue thereof (being about one-eighth of the entire width of the
same) is located upon the bed of the Mississippi River as it then
existed, and easterly of the thread or middle line of said
river."
"8. That between the years 1865 and 1873, the riverfront of the
said surveys numbered 149 to 156 was washed away, so that, in July,
1873, the riverfront of said lands only extended to the line marked
'River Bank, 1873,' on said map, and that said river bank
thereafter continued to wash away and cave in until it reached the
line marked 'River Bank, 1884,' on said map."
"9. And the court further finds from the evidence that such
washing away of said river bank did not take place slowly and
imperceptibly, but, on the contrary, the caving in
Page 138 U. S. 231
and washing away of the same was rapid and perceptible in its
progress; that such washing away of said river bank occurred
principally at the spring rises or floods of high water in the
Mississippi River, which usually occurred in the spring of the
year; that such rises or floods varied in their duration, lasting
from four to eight weeks, before the waters of the river would
subside to its ordinary stage or level; that during each flood,
there was usually carried away a strip of land from off said river
bank from two hundred and fifty to three hundred feet in width,
which loss of land could be seen and perceived in its progress;
that as much as a city block would be cut off and washed away in a
day or two; that blocks or masses of earth from ten to fifteen feet
in width frequently caved off and fell into the river and were
carried away at one time; that in the spring of the year 1872, Mr.
Augustus A. Blumenthal, Jr., the occupant of the land at the time,
lived in the dwelling-house situated on said survey No. 151, and
the river had, since the year 1865, so encroached upon the land
that the house was then but about four or five hundred feet back
from the river bank and water's edge, as it then existed. When the
spring rise or flood occurred that year, the said Blumenthal became
alarmed for the safety of his house, and immediately commenced
taking said house down and removing the same further from the river
bank, and, in so doing, worked six or eight days in succession, at
the expiration of which time the bank had caved in and washed away
so rapidly that the bank and waters of the river had approached
within a few feet of the foundation of the house, and before the
waters subsided, carried away the greater portion of the foundation
of the house, and the flood which came in the spring of 1873
carried away the residue of said foundation, with at least 100 feet
more of the land, and that such caving in and washing away
continued until the building of the dyke at the point indicated on
said map, on the eastern side of the river, above the said lands,
which dyke was built by the United States government in the years
1876 to 1878."
"10. That the said washing away of the bank on the front of the
said surveys was caused by dykes built by the City of
Page 138 U. S. 232
St. Louis on the western side of the river at the points where
the same are indicated on said map, by causing the current of the
river to flow over to and against the eastern shore; that the
western bank of the river opposite the plaintiff's said land is
rocky, and there appears to have been no material change in that
bank since the first survey thereof by the United States
government."
"11. The court further finds that in 1853 there existed an
alluvial formation or body of land on the western side of the river
and near the Missouri shore, then called "Quarantine Island," which
in that year (1853) was surveyed by William H. Cozzens. The
location and boundaries of said island are indicated upon said map,
the same being shaded red and having written thereon the words and
figures, "
Quarantine Island,' also called `Arsenal Island,' as
surveyed in 1853." In 1858, the said island, in low water, extended
to and adjoined the mainland on the western or Missouri side of the
river. At some time between the years 1853 and 1863, the greater
portion of said Quarantine Island washed away, so as only to leave
remaining that portion thereof embraced within a second survey
thereof made by said Cozzens in January, 1863, the location and
boundaries of which are indicated upon said map by the words,
"survey No. 411 of St. Louis land, school lands, Arsenal Island,
surveyed in 1863," the letters and lines thereof being shaded green
upon said Exhibit B."
"12. Said Quarantine Island, since its survey in 1863, has been
called 'Arsenal Island,' and at the time of said surveys of said
island in 1853 and 1863, the same was situated on the west side of
the main channel of the Mississippi River and about a mile higher
up the river than the lands described in the declaration, and no
part of the same then extended down the river opposite said
plaintiff's said lands."
"13. On February 10, 1863, a part of the said island designated
as 'survey No. 411 of St. Louis School Lands,' containing 109 and
twenty-two hundredths acres, was assigned to the St. Louis public
schools in pursuance of the Act of Congress of June 13, 1812,
entitled 'An act making further provision for settling the claims
to land in the Territory of Missouri,'
Page 138 U. S. 233
2 U.S. Stat. 748, and of the supplementary Act of May 26, 1824,
4 Stat. 66, and the residue of said island, as so surveyed in 1863,
being nine and sixty-five hundredths acres on the northern end
thereof, appears to have been also assigned to said St. Louis
public schools on August 25, 1864, as indemnity for school lands
lost in section 16, T. 45 N., range 7 east, of the St. Louis
District, Missouri."
"14. By deed dated February 8, 1866, the St. Louis public
schools conveyed their right and title to said Quarantine or
Arsenal Island to the City of St. Louis, which lands are described
in such deed as situated 'in the County of St. Louis and State of
Missouri.' As early as the year 1850, the City of St. Louis
occupied said Quarantine or Arsenal Island for quarantine purposes,
and so continued to occupy the same until the year 1875, when the
said City of St. Louis leased said island to the defendant,
Benjamin Seeger, who, as such tenant, lived on and occupied the
said island up to the time of the commencement of this suit. During
the years 1861 to 1865, inclusive, the United States government
occupied a portion of said island for the purpose of a military
hospital and as a place for the burial of those dying at such
hospital. The dry land described in the declaration in this case
did not arise or form in the Mississippi River until about the year
1874, and subsequent thereto, the same having, after the year 1865
and prior to 1874, become in part submerged and washed away in the
manner stated in the 8th paragraph of these findings."
"15. The court further finds from the evidence that there is not
now, and was not at the time of the commencement of this suit, any
land whatever above the surface of the water in said river on the
site or within the boundaries of said Quarantine Island as so
surveyed in 1853, nor upon the site or within the boundaries of
said island as so surveyed in 1863, but that the same was
subsequently wholly washed away."
"16. The court further finds that in the floods in the
Mississippi River, before mentioned, large portions of the upper or
northern end of said island washed away; that in such
Page 138 U. S. 234
floods a bar formed each year below and joined to the foot of
the island, extending down the river for the distance of a quarter
of a mile or more; that when the water subsided after such a spring
flood, the surface of such bar appeared in sight above the surface
of the water, but nearly on a level with the water, for the greater
length of such bar; that, during the first summer after such bar
had formed, willows grew upon it, and the flood which occurred the
next succeeding spring deposited more sand and soil on the bar,
which was retained by he willows, and the bar so formed was thus
raised higher in each successive annual flood so long as it was
overflowed in high water, and this process was repeated at each
succeeding flood by the formation of another bar below that formed
by the preceding flood, which in turn was covered with a growth of
willows and raised higher by each succeeding flood until it ceased
to be overflowed."
"17. The court further finds that such bars were not formed by
accumulations of sand or soil washed up against the lower end of
the island, but by the deposits, in times of flood, of soil and
sediment upon the bed of the river below the island."
"18. And the court further finds that before the said island was
washed away, the main and navigable channel of the Mississippi
River was eastwardly of the island, but after the said bar was
formed lower down the river in front of the plaintiff's land, the
main and navigable channel of the river has been, and still is, on
the west side of the said bars or island, and that since the said
bars or island had so formed in the river in front of said surveys,
the boats navigating the river have not run between the bar or
island and the bank of the eastern or Illinois shore of the
river."
"19. The court further finds that in the years 1876 to 1878, the
United States government built a dyke from the eastern or Illinois
shore of the river to the bar or island, as it then existed, about
sixty rods northerly, or higher up the river than the north line of
the plaintiff's said land, and which said dyke is indicated on said
map by the line having the word 'Dyke' written beneath the same.
And that in the years 1878 to
Page 138 U. S. 235
1882, the United States government built a dam above said dyke
from a point near the head of said bar or island to the eastern or
Illinois shore, on the line designated 'Dam' on said map, and after
said dyke and dam were built, the flow of the water through the
channel or space occupied by water between the said bar or island
which had so formed in front of the river bank of plaintiff's land,
as it existed at that time, was thereby impeded, and the channel or
space gradually filled up, by deposits from the river, so that by
the year 1884, the same became dry land from the line in front of
the said surveys 149 to 156, marked 'River Bank, 1884,' out to the
western side of the said bar or island on the northwestern end of
said surveys, as indicated on said map, and that the same has since
continued to be, and is now, dry land except in extremely high
water, and that the lands described in the declaration embrace so
much thereof as lies westerly of the line marked on said map with
the words 'Old Surveyed River Bank, 1814,' and easterly of the
middle or thread of the main channel of the Mississippi River, and
between the extended lines of said surveys, as indicated on said
map marked 'Plaintiff's Exhibit B.'"
"20. The court further finds that the plaintiff is, and was on
and prior to the 1st day of January, A.D. 1884, and at the time of
the commencement of this suit, the owner in fee of said lands
described in the first count of the declaration, situated in the
County of St. Clair and State of Illinois, and that the defendants
are guilty of unlawfully withholding the possession thereof from
the plaintiff, in manner and form as alleged in the
declaration."
"21. And that the value of the said lands in controversy in this
suit exceeds sixteen thousand dollars."
On these findings, the court entered a judgment which found that
the defendants were guilty of unlawfully withholding from the
plaintiff the premises above described, and that the plaintiff at
the time alleged in the declaration, owned the lands in fee, and
adjudged that he recover the possession of them in fee from the
defendants according to the finding of the court. A motion for a
new trial was made and overruled. There is in the record a bill of
exceptions, which shows
Page 138 U. S. 236
that at the trial, the defendants moved the court to make the
findings of fact and declarations of law which are set forth in the
margin,
* but that the
court overruled such motion, and the
Page 138 U. S. 237
defendants excepted. The bill of exceptions states that no
declaration of law was given by the court except so far as the
Page 138 U. S. 238
same may be included in the findings which the court made, and
that the defendants excepted to the findings of fact made
Page 138 U. S. 239
by the court, and to the rendering of judgment for the
plaintiff, and to the overruling of the motion for a new trial.
Seeger and the City of St. Louis sued out a writ of error from this
Court to review the judgment. During the pendency of the writ of
error in this Court, Seeger has died, and the City of St. Louis is
the surviving plaintiff in error.
Page 138 U. S. 241
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
The general question involved in the case is whether the land in
dispute is a part of surveys 149 to 156, inclusive, in the common
fields of Prairie du Pont, with the accretion thereto, situate on
the Illinois side of the Mississippi River, in St. Clair County,
Illinois, and is owned by the plaintiff, or whether it is owned by
the surviving defendant, the City of St. Louis, as an accretion to,
and part of, an island in that city, called "Arsenal Island" or
"Quarantine Island," on the western or Missouri side of the
Mississippi River, which was originally an island more than a mile
higher up the river than the surveys in question.
The assignments of error made are that the circuit court erred
(1) in holding that the title and ownership of the plaintiff
extended to the middle of the main channel of the Mississippi
River, and embraced the premises in controversy, and (2) in
refusing to hold that the premises in controversy were an accretion
to Arsenal Island, and the property of the City of St. Louis.
We cannot review the action of the circuit court in finding the
facts which it did find and refusing to find the facts which it was
asked to find and did not find. We can only inquire whether the
facts found are sufficient to support the judgment. The
"defendants' refused declarations of law" do not appear to have
been based upon the facts found by the court, but upon the
defendants' proposed findings of fact, which were rejected by the
court. These "refused declarations of law" contained mixed
questions of law and fact, and where
Page 138 U. S. 242
such questions are submitted to the court in a trial without a
jury, this Court will not, on a writ of error, review such
questions any more than it will pure questions of fact.
The question as to whether the fee of the plaintiff, as a
riparian proprietor on the Mississippi River, extends to the middle
thread of the stream, or only to the water's edge is a question in
regard to a rule of property, which is governed by the local law of
Illinois.
Barney v. Keokuk, 94 U. S.
324,
94 U. S. 338;
St. Louis v. Myers, 113 U. S. 566;
Packer v. Bird, 137 U. S. 661. In
Barney v. Keokuk, it is said that if the states "choose to
resign to the riparian proprietor rights which properly belong to
them in their sovereign capacity, it is not for others to raise
objections."
The Supreme Court of Illinois has established and steadily
maintained as a rule of property that the fee of the riparian owner
of lands in Illinois bordering on the Mississippi River extends to
the middle line of the main channel of that river.
Middleton v.
Pritchard, 3 Scammon 510;
Braxon v. Bressler, 64 Ill.
488;
Houck v. Yates, 82 Ill. 179;
Cobb v.
Lavalle, 89 Ill. 331;
Lavalle v. Strobel, 89 Ill.
370;
Washington Ice Company v. Shortall, 101 Ill. 46;
Village of Brooklyn v. Smith, 104 Ill. 429, 438;
Trustees of Schools v. Schroll, 120 Ill. 509, 518-519;
Buttenuth v. St. Louis Bridge Company, 123 Ill. 535,
550.
The findings of fact by the court make no specific reference to
a deed dated December 23, 1873, from Augustus A. Blumenthal and
wife to the plaintiff and others, the substance of which is set
forth in the bill of exceptions, but state merely that Blumenthal
acquired by deeds the title in fee to surveys 149 to 156, and that
the plaintiff acquired from Blumenthal "his said title to said land
prior to the commencement of this suit." The defendant, however,
refers to the deed of December 23, 1873, and relies upon the fact
that the description of the premises contained in it describes the
line between surveys 148 and 149 as running north, 33 1/2� west,
142.51 chains, "to the present bank of the Mississippi River;"
thence along the extended line between surveys 148 and 149, north,
33 1/2�
Page 138 U. S. 243
west, "to low water mark of the Mississippi River;" and "thence
down to the extended line between surveys" 156 and 157. The
description further says:
"The tract hereby conveyed containing 500 acres, more or less,
together with all rights as riparian owner to the accretion or
sandbar lying northwestwardly, and between the extended lines of
said land herein described, situated in the County of St. Clair and
State of Illinois."
The deed also describes the property conveyed as "being the
northwestern part of surveys numbered" 149 to 156, both inclusive,
in the Prairie du Pont common fields. The contention of the
defendant is that this deed did not convey to the grantees the fee
of the bed of the river beyond low water mark. But we think this
contention is erroneous. In construing the deed, all the words of
the description must be given effect if possible. The property
conveyed is described as "the northwestern part of surveys"
numbered 149 to 156. This makes it impossible that the grantor
should retain the ownership of any part of the surveys northwest of
that which he conveyed to his grantees. Again, the description,
after saying "to low water market of the Mississippi River," does
not say "thence down low water mark to the extended line between
surveys" 156 and 157, but says only "thence down to the extended
line between surveys" 156 and 157. The word "down" properly means
"down the river." As was said in
County of
St. Clair v. Lovingston, 23 Wall. 46,
90 U. S. 64,
"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 another, 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."
Here, the next preceding call was a point at "low water mark of
the Mississippi River," and the next call was an intermediate line
"down to the extended line between surveys" 156 and 157, without
specifying whether it was down the river generally or down the line
of low water mark. This description made the river the boundary of
the surveys on their northwestern ends, although the termination of
the last preceding call was at low water mark of the river.
Page 138 U. S. 244
The river always had been the boundary of the surveys on their
northwestern ends, and there is nothing to show that the parties to
the deed intended to make anything but the river the boundary at
the northwestern end of what the deed conveyed.
It is plain that the fee of Blumenthal in the surveys extended
to the middle of the river, and the contention of the defendant is
that Blumenthal, instead of conveying by the deed all the land
which he owned on the northwestern end of the surveys, conveyed
only to low water mark. This would be repugnant to that clause of
the description which conveys "the northwestern part of surveys"
149 to 156. Then we have the description
"together with all rights as riparian owner to the accretion or
sandbar lying northwesterly, and between the extended lines of said
land herein described, situated in the County of St. Clair and
Illinois."
These words show that the grantor intended to convey all his
riparian rights appurtenant to the surveys, "between the extended
lines" of them, in the County of St. Clair, and it cannot be held,
consistently with the terms of the deed, that he intended to retain
to himself any interest in the fee of the bed of the river. The
accretion or sandbar mentioned in the deed evidently existed at its
date, and it was the nucleus of the bar which subsequently
developed into the land in dispute. If the boundary terminated at
low water mark on the margin of the river, it could not have
included all the rights of the grantor as riparian owner to the
accretion or sandbar lying northwestwardly in the river opposite
the surveys.
Piper v. Connelly, 108 Ill. 646.
The finding by the court that the plaintiff acquired from
Blumenthal, prior to the commencement of the suit, Blumenthal's
title to the premises in question, which title was one in fee to
such premises, acquired by him by deeds from the parties then in
the actual possession as owners thereof, amounts to a finding that
the accretion or sandbar mentioned in the deed of December 23,
1873, was the same sandbar which first appeared earlier in 1873,
and which by subsequent accretions developed into the land in
controversy. This finding
Page 138 U. S. 245
is conclusive to show that the land conveyed by Blumenthal was
not limited by the line of low water mark on the river. It does not
appear that Blumenthal or anyone claiming under him asserted any
interest in the land after the making of the deed.
Jefferis v.
East Omaha Land Company, 134 U. S. 178,
134 U. S.
197.
The next question concerns Arsenal Island. By findings of fact 6
to 9, the sudden and perceptible loss of land on the premises
conveyed to the plaintiff, which was visible in its progress, did
not deprive Blumenthal, as riparian proprietor, of his fee in the
submerged land, nor in any manner change the boundaries of the
surveys on the riverfront as they existed in 1865, when the land
commenced to be washed away.
It is contended by the defendant not only that the plaintiff
never had any title to the bed of the river, but that when the dry
land of which he was in possession was swept away by the river and
ceased to exist, his ownership of that land also ceased to exist.
It is laid down, however, by all the authorities that if the bed of
the stream changes imperceptibly by the gradual washing away of the
banks, the line of the land bordering upon it changes with it, but
that if the change is by reason of a freshet and occurs suddenly,
the line remains as it was originally. This principle is recognized
by the Supreme Court of Illinois in
Buttenuth v. St. Louis
Bridge Company, 123 Ill. 535, 546, in these words:
"The law as stated by law writers and in the adjudged cases
seems to be that where a river is declared to be the boundary
between states, although it may change imperceptibly from natural
causes, the river, as it runs, continues to be the boundary. But if
the river should suddenly change its course or desert the original
channel, the rule of law is the boundary remains in the middle of
the deserted riverbed."
It is laid down by all the authorities that if an island or dry
land forms upon that part of the bed of a river which is owned in
fee by the riparian proprietor, the same is the property of such
riparian proprietor. He retains the title to the land previously
owned by him, with the new deposits thereon.
Page 138 U. S. 246
It may be asked pertinently what has become of the riparian
rights of the plaintiff on the river if his title to the land in
dispute is not sustained? It appears by the findings that the
greater part of the so-called "Arsenal Island," which is now
embraced within the boundaries of the land sought to be recovered
by the plaintiff, is located upon the site of the dry land of
surveys 149 to 156 as the same existed from 1850 to 1865, and that
the residue thereof, being about one-eighth of the entire width of
the island, is located upon the bed of the Mississippi River as it
then existed, and eastwardly of the thread or middle line of the
river; that between 1865 and 1873, the riverfront of the surveys
was washed away to the extent mentioned in finding 8, and was
further washed away thereafter until 1884, and that such washing
away did not take place slowly and imperceptibly, but was rapid and
perceptible in its progress, and the particulars are given in
finding 9. The plaintiff was a riparian proprietor on the river. If
his title to the land in question is not sustained, he is no longer
such riparian proprietor, and is cut off from access to the river.
Among his rights as a riparian owner are access to the navigable
part of the river from the front of his land and the right to make
a landing, wharf, or pier for his own use or the use of the public.
Dutton v.
Strong, 1 Black 23;
Railroad
Company v. Schurmeir, 7 Wall. 272;
Yates v.
Milwaukee, 10 Wall. 497,
77 U. S.
504.
No act has been done or negligence committed by the plaintiff or
his grantor which occasioned any loss of the land or any transfer
of the title to it either to the State of Illinois or to the City
of St. Louis. Finding 10 shows that the washing away of the bank of
the surveys was caused by dykes built by the City of St. Louis on
the western side of the river which caused its current to flow to
and against the eastern shore. When land was formed again on the
place where the plaintiff's land had been washed away, it became
the property of the plaintiff, and, although the land thus newly
formed extended a short distance into the old bed of the river
beyond the former shore line, such additional formation belonged to
the plaintiff as a deposit on that part of the bed of the river
which was
Page 138 U. S. 247
owned by him in fee, and not to the State of Illinois or to any
third party; otherwise, the plaintiff would be cut off without his
fault from the riverfront and from his riparian rights.
When the United States government, from 1876 to 1878, as found
in finding 19, built the dyke from the eastern shore of the river
to the bar or island as it then existed above the north line of the
plaintiff's land, the result was that the space or channel of water
between the bar or island as it had formed in front of the river
bank of the plaintiff's land and the eastern bank of the river as
it existed when the cutting away of the plaintiff's land ceased was
filled up, so that by 1884 it had become dry land, and it has since
continued to be such on the front of the plaintiff's land out to
the western side of the island or land in question. The fact that
more land has thus been restored to the plaintiff than was cut away
cannot deprive him of his riparian right or of his access to the
river. The State of Illinois does not claim any part of such land,
but concedes to the riparian proprietor the bed of the river where
the land formed.
It is found by findings 17 and 18 that the bars which formed
below and were joined to the foot of Arsenal Island were not formed
by accumulations of soil washed up against its lower end, but by
the deposit, in times of flood, of soil and sediment on the bed of
the river below the island; that before the island was washed away,
the main and navigable channel of the river was eastwardly of the
island, but after the bar was formed lower down the river in front
of the plaintiff's land, the main and navigable channel of the
river was removed to the west side of the bar or island, and since
that time boats navigating the river have not run between the bar
or island and the eastern shore of the river. It therefore appears
that the dry land in question was formed on that part of the bed of
the river which was owned in fee by the plaintiff or his grantor as
the riparian owner, and that their rights were governed by the
established rules of law in force in Illinois. It is well settled
that the owner in fee of the bed of a river, or other submerged
land, is the owner of any bar, island, or dry land which
subsequently may be formed thereon.
Mulry v. Norton, 100
N.Y. 424.
Page 138 U. S. 248
It is shown by the findings of the court that the space which
was covered by water between the front of the plaintiff's dry land
and the bar or island when the latter first was formed has since
been so filled up by deposits from the river that by the year 1884,
it was all dry land on the riverfront of the plaintiff's land out
to the western side of the land in question, except in high water.
Therefore, when the bar or island formed in front of Blumenthal's
land, within the boundaries over which such land extended prior to
1865, the bar or island which was so formed continued to be the
land of Blumenthal, notwithstanding a part of it extended further
westward than the boundary of his dry land in 1865. It was formed
upon that part of the bed of the river which was owned in fee by
Blumenthal and the plaintiff, and continued in such ownership after
it became dry land.
The land described in the declaration is on the eastern side of
the Mississippi River, in the County of St. Clair and State of
Illinois. The land to which the City of St. Louis acquired title
was on the western side of the Mississippi River, more than a mile
higher up the river and situated in the City of St. Louis, in the
State of Missouri. The only possible claim of the City of St. Louis
to the land is based on the Act of June 13, 1812, 2 Stat. 748, and
on section 2 of the Act of May 26, 1824, 4 Stat. 66, and on section
2 of the Act of January 27, 1831, 4 Stat. 435. By the terms of
those acts, the village of St. Louis was authorized only to acquire
title to lands within said village, in the territory (or state) of
Missouri, and it obtained no right thereby to acquire title to land
in the State of Illinois.
The Enabling Act of April 18, 1818, 3 Stat. 429, § 2, under
which Illinois was organized as a state and admitted into the
union, made "the middle of the Mississippi River" the western
boundary of the state. The Enabling Act of March 6, 1820, 3 Stat.
545, § 2, under which Missouri was organized as a state and
admitted into the union, made the "middle of the main channel of
the Mississippi River" the eastern boundary of Missouri so far as
its boundary line was coterminous with the western boundary of
Illinois. It has been held by the Supreme Court of Illinois,
Buttenuth v. St. Louis Bridge Co.,
Page 138 U. S. 249
123 Ill. 535, that these two enabling acts are to be construed
as
in pari materia, and that the common boundary line
between Missouri and Illinois is the "middle of the main channel of
the Mississippi River." The "middle of the channel of the
Mississippi" has been constantly treated as the eastern boundary of
the State of Missouri.
Jones v.
Soulard, 24 How. 41;
The Schools
v. Risley, 10 Wall. 91.
It follows that an island in the Mississippi River, in its
course between Illinois and Missouri, must lie wholly in one of
those states or the other, because the main channel of the river
must run on one side or the other of such island. Arsenal Island,
to which the City of St. Louis acquired title, was on the Missouri
side of the river in 1863 and 1864, and wholly within that city.
The land described in the declaration was never in the City of St.
Louis or in the State of Missouri. This follows from the facts
stated in finding 18.
The title of the St. Louis public schools to the island is set
forth in finding 13, and was acquired in 1863 and 1864, under the
Cozzens survey of 1863, mentioned in finding 11. By finding 14, the
title of the St. Louis public schools in the island was conveyed,
in 1866 to the City of St. Louis by a deed which is stated in such
finding to have described it as situated "in the County of St.
Louis and State of Missouri." The land described in the
declaration, a mile lower down the river and situated in the State
of Illinois, on the other side of the river, is manifestly not the
land to which the City of St. Louis so acquired title. Dry land
which should again form on the site where Arsenal Island existed
when it was surveyed in 1863 would be the property of the City of
St. Louis.
Mulry v. Norton, 100 N.Y. 424. In such event,
could the city hold both tracts of land, a mile distant from each
other? Of course it could not.
The City of St. Louis, by virtue of its original title to the
island, is still the owner in fee of the submerged site where the
island existed before it was washed away. As its right, under the
acts referred to, to acquire land was limited to land situated
within the boundaries of the city, and on the west side of the
middle of the river, it cannot acquire indirectly and by
Page 138 U. S. 250
implication or construction of law land which it was not
authorized to acquire directly and in pursuance of law. Nor is the
land described in the declaration an accretion to the land in
Missouri which the City of St. Louis acquired, a mile higher up the
river, because the middle of the main channel of the river is the
eastern boundary of the State of Missouri, and the land described
in the declaration is east of the middle of the main channel of the
river. The title to land acquired by accretion is a title acquired
under the operation of the law of the state, which each state
determines for itself.
Barney v. Keokuk, 94 U. S.
324.
As the law of Illinois confers upon the owner of land in that
state which is bounded by or fronts on the Mississippi River the
title in fee to the bed of the river to the middle thereof or so
far as the boundary of the state extends, such riparian owner is
entitled to all islands in the river which are formed on the bed of
the river east of the middle of its width. That being so, it is
impossible for the owner of an island which is situated on the west
side of the middle of the river, and in the State of Missouri, to
extend his ownership by mere accretion to land situated in the
State of Illinois, the title in fee to which is vested by the law
of Illinois in the riparian owner of the land in that state.
We must not be understood as implying that if an island in the
Mississippi River remains stable in position, while the main
channel of the river changes from one side of the island to the
other, the title to the island would change because it might be at
one time on one side and at another time on the other side of the
boundary between two states.
The right of accretion to an island in the river cannot be so
extended lengthwise of the river as to exclude riparian proprietors
above or below such island from access to the river as such
riparian proprietors.
Mulry v. Norton, 100 N.Y. 424,
436-437. It appears from the map, Exhibit B, that the so-called
"Arsenal Island" extended as far down the river as is shown on that
map, which was made from surveys in 1873 and 1884, and if the
plaintiff thereby has lost such newly formed land, and been
deprived of access to the river in front
Page 138 U. S. 251
of his surveys, then all the riparian proprietors down the
river, as far as the bars have formed or may form hereafter in
front of their land, must lose their titles, and surrender them to
the City of St. Louis as a part of Arsenal Island. Such rapid
changes in these alluvial formations cannot transfer title from one
proprietor to another.
This Arsenal Island was the subject of the case of
Carrick
v. Lamar, 116 U. S. 423, and
in the opinion in that case is described as "a mere moving mass of
alluvial deposits." To such a movable island, traveling for more
than a mile, and from one state to another, the law of title by
accretion can have no application, for its progress is not
imperceptible in a legal sense. As it is found by finding 16 that
the bar formed at the foot of the island in the flood of a single
year extended down the river for the distance of a quarter of a
mile or more in front of the surveys in question, and such bar
subsequently appeared as a part of the so called "Arsenal Island,"
the question arises as to when the transfer of it passed, if it did
pass, from the plaintiff to the City of Louis. Whenever it
occurred, whether when the sediment first commenced to form a
deposit on that part of the bed of the river, or whether when it
formed a bar which, though still submerged, could be discerned by
soundings, or whether when it came so near to the surface that its
extent could be discerned by navigators, or whether when it arose
above the surface and became dry land, there must have been, in
order to maintain the contention of the defendant, an instantaneous
transfer of a quarter of a mile of land from the plaintiff to the
City of St. Louis at one and the same moment of time. Such a
transfer was not a title by accretion within the meaning of the law
on that subject.
Judgment affirmed.
*
"
Defendants' rejected findings of fact:"
"This is an action of ejectment instituted in the State Circuit
Court of St. Clair County, Illinois, on January 29, 1884, to
recover certain premises alleged to be in St. Clair County,
Illinois, and described as follows, to-wit: bounded east by the
meanders of the original bank of the Mississippi River, as surveyed
by the United States government, and established in United States
surveys 149 to 156, inclusive, of the common fields of Prairie du
Pont; bounded west by the center thread of the Mississippi River;
bounded north by the north line of survey 149 aforesaid, produced
westwardly to the center thread of the Mississippi River and south
by the south line of survey 156 aforesaid, produced westwardly to
the center thread of the Mississippi River."
"The action was originally commenced against Benjamin Seeger,
alleged to be in possession, and subsequently the City of St.
Louis, a municipal corporation existing under the laws of the State
of Missouri, claiming to be the owner of the premises occupied by
said Seeger and the landlord of said Seeger, was, on its motion,
made codefendant, and afterwards the cause, on the application of
said defendants, was duly removed into this court."
"At the trial of this cause before the court, a jury being
waived, it appeared that one Blumenthal, in 1849, took possession,
under deeds from Dushanan, Lacroix, and Pensoneau, of surveys 149
to 156, inclusive, of the common fields of Prairie du Pont, St.
Clair County, Illinois, and paid taxes thereon until 1873, when he
conveyed to the plaintiff and others, under whom the plaintiff now
claims. The deed from Blumenthal, on which the title and possession
of plaintiff now rest, describes the property as bounded
northwestwardly by low water mark of the Mississippi River."
"It appeared that Blumenthal, in 1849, took possession, under
his deeds, of the property mentioned therein, and that his actual
possession never extended further west than the easterly edge of
the Mississippi River, and that the plaintiff succeeded to the said
possession of Blumenthal prior to the commencement of this action.
It appeared that between 1814 and 1850, the Mississippi River in
front of the property receded in a westwardly direction, so that
surveys 149 to 156, inclusive, gained forty acres of ground, and
that from 1850 to the present time the river has encroached on the
premises so that the same have lost one hundred acres of ground,
the net loss being sixty acres of ground."
It appeared that an approved survey of Arsenal, then Quarantine,
island, was made by William H. Cozzens in 1853 under the
instructions of the United States Surveyor General. Also that said
island was assigned by the Secretary of the Interior to the St.
Louis public schools in 1863 and 1864. The first assignment bears
date February 10, 1863, and covers 109.92 acres of the island. The
second assignment is dated September 8, 1864, and conveys 9.65
acres. The two assignments embrace the entire island, which
contained 119.57 acres. Also that said island was sold and conveyed
by the public schools for the sum of $32,000 to the City of St.
Louis in 1866. Also that surveys of the island were made in 1853,
1863, 1881, and 1883, showing its location at these various
periods. Witnesses were produced who had known the island as early
as 1847. The island was originally in the City of St. Louis and
State of Missouri, opposite the arsenal and west of the main
channel of the river and of the center thread of the river. It has
moved south and westwardly. The change effected in the location of
the island since 1847 has been gradual in its character, and has
been caused by the action of the water of the river washing the
head of the island, and adding new ground to the foot thereof. The
City of St. Louis has been in possession of the island from 1850 to
the present time. The defendant Seeger occupies the island as the
tenant of the City of St. Louis. He cultivates the land and resides
thereon. Since 1847, Arsenal Island has always existed as an island
in the Mississippi River.
The island existing at the commencement of this action is the
same island that existed in 1847, except that its location had
changed as above stated, and it had become attached to the Illinois
shore in the manner hereinafter stated. At no time had the island
ceased to exist. Prior to 1874, the navigable channel of the
Mississippi River was between Arsenal Island and the Illinois
shore.
In 1874, boats commenced navigating between the island and the
Missouri shore. In or about the years 1878 to 1882, the United
States government caused to be constructed a stone dyke leading
from the head of the island to the Illinois shore, and subsequently
a dam south of the dyke, between the island and the Illinois shore.
The effect of these structures has been to stop the flow of water
at low water between the island and the Illinois shore, and, as a
necessary result, land has been created connecting the island with
the Illinois shore in front of the Prairie du Pont common fields.
During the yearly high stage of high water, the water flows between
the island and the Illinois shore, and at the date of the trial --
July 5, 1888 -- it was so flowing.
"
Defendants' refused declarations of law"
"1. The court declares the law to be that, under the facts in
this cause, the plaintiff has shown no title to the premises known
as 'Arsenal Island' at and prior to the commencement of this
action, and the judgment therefore must be for the defendants."
"2. The court declares the law to be that, under the facts in
this cause, the plaintiff has exhibited no title to the bed of the
Mississippi River beyond low water mark in front of surveys 149 to
156, inclusive, of the common fields of Prairie du Pont."
"3. The court declares the law to be that, under the facts in
this cause, Arsenal Island is not an accretion to plaintiff's land,
and the plaintiff has no claim to the ownership of said island, or
any part thereof, under the law of accretion."
"4. The court declares the law to be that the title to Arsenal
Island held by the City of St. Louis under the United States, and
the possession of said premises by said defendant, extending from
1850 to the present time, have not been divested by the movement of
the island in the Mississippi River."
"5. The court declares the law to be that the deed of Augustus
A. Blumenthal and wife to Edward Rutz and others introduced in
evidence did not convey title to the bed of the Mississippi River
beyond low water mark in front of surveys 149 to 156, inclusive, of
the common fields of Prairie du Pont, except to the accretion or
sandbar lying northwestwardly, and between the extended lines of
said surveys."
"6. The court declares the law to be that if the property known
as 'Arsenal Island' was granted by the United States to the public
schools of the City of St. Louis, and that at the time of such
grant, the same was an island in the Mississippi River situate in
the State of Missouri, then the ownership of accretions attaching
themselves to such island while said island remained in said state
is governed by the laws of the State of Missouri, and if said
island was situated entirely upstream, a mile or two miles north of
the northernmost point of land of the plaintiff fronting on the
Mississippi River, and if accretions thereupon formed at the lower
or downstream end of said island in said state until they reached a
point opposite to or in front of the riverfront of the plaintiff's
land, or between the extended lines of his surveys 149 to 156
described in the declaration, such accretions became and were the
property of the owner of the island shore to which they had become
attached, and the title of such owner is not divested by the fact
that the navigable channel of the Mississippi River changed its
course so as to run between said island and the eastern shore of
the State of Missouri, and the further fact that, by means of a
dyke and a dam run out from the east shore of the Mississippi River
(the Illinois shore), said island has become attached to the
Illinois shore, and the intervening space has been filled up by
deposits of mud, so that, except in high stages of water, there is
no water running between said island and the Illinois shore of said
river."
"7. The court declares the law to be that if the current of the
Mississippi River undermined the west shore or bank of the land of
the plaintiff or of his grantor, Blumenthal, fronting on the
Mississippi River, and that by reason thereof perceptible pieces of
the shores and banks of said land fell into the river and were
washed away, whereby the bed of the river was changed, thereby the
west boundary line of the land of the plaintiff or of his grantor
changed accordingly, and to correspond with the changes in the bed
and center thread of said river opposite said land."
"8. The court declares the law to be that the boundary line
between the states of Illinois and Missouri is the center thread of
the Mississippi River."
"9. The court declares the law to be that if accretions formed
and attached themselves to the downstream end of Arsenal Island, in
the State of Missouri, and thereafter other accretions attached
themselves to the first-mentioned accretions on the east side of
the island, toward the Illinois shore, the last-mentioned
accretions belong to the owner of the first accretions,
notwithstanding they extended eastwardly of the center thread of
the river."
"10. The court declares the law to be that if a sandbar extended
southwestwardly from the foot of Arsenal Island, in the State of
Missouri, and subsequently accretions attached themselves to the
east side of said sandbar, and extended eastwardly across the
center thread of the river into the State of Illinois, the owner of
the island was and is the owner of said sandbar and said
accretions."
"11. The court declares the law to be that if the current of the
Mississippi River gradually undermined the west shore or bank of
the land of the plaintiff or of his grantor, Blumenthal, fronting
on the Mississippi River, and that by reason thereof perceptible
pieces of the shores and banks of said land fell into the river and
were washed away, whereby the bed of the river was gradually
changed, thereby the western boundary line of the land of the
plaintiff or said grantor changed accordingly to correspond with
the changes in the bed and center thread of the river opposite said
land."
