The question involved in this case upon the merits is, in
substance, whether the plaintiff is entitled to the alluvion caused
by the recession of the Mississippi River to the extent of many
hundred feet east of the point where it flowed in 1852 at the time
when the plaintiff's predecessor took title to the property by
virtue of a patent from the United States. The trial court held she
was, and the Supreme Court of the State of Missouri held she was
not. In the opinion of this Court, the case involves no federal
question, and it is dismissed on the ground of lack of
jurisdiction.
The plaintiff in error, being the plaintiff below, obtained
judgment in the state Circuit Court for the City of St. Louis for
the recovery of certain land described in the judgment. Upon appeal
to the Supreme Court of the State of Missouri, this judgment was
reversed, 151 Mo. 348, and the plaintiff has brought the case here
by writ of error.
The action was ejectment for land described in the petition,
which also set up a claim for the rents and profits. The answer of
the city denied all the allegations of the petition, set up adverse
possession for ten years, and acquiescence on the part of the
plaintiff in the possession and use of the premises by the city as
and for a public wharf. The property described in the
Page 185 U. S. 39
petition is situate in the City of St. Louis, and is bounded on
the east by the Mississippi River. The parties went to trial before
the court, a jury being waived, and after the evidence was in, the
issues were found in favor of the plaintiff, although she recovered
judgment for but a portion of the property described in her
petition, the portion for which she recovered being part of a
public wharf of the city running along the west line of the river,
and being ninety feet along the line of the wharf from north to
south, and running back its whole depth from the east line on the
river to its rear or western line.
The question involved in the case upon the merits is, in
substance, whether the plaintiff is entitled to the alluvion caused
by the recession of the Mississippi River to the extent of many
hundred feet east of the point where it flowed in 1852 at the time
when the plaintiff's predecessor took title to the property by
virtue of a patent from the United States called the "Labeaume
patent." The trial court held she was, and the supreme court held
she was not.
On the trial, the plaintiff offered in evidence as the source of
her title a patent from the United States to Labeaume dated in
1852. It was objected to as not tending to support the issues in
the case and as not showing plaintiff's grantor a riparian owner .
The objection was overruled and the patent received in evidence. It
recites the proceedings which preceded the issuing of the patent,
from which recitals it appears a concession was made of the land
described, by the lieutenant governor of the Spanish province of
Upper Louisiana, July 15, 1799, and a survey thereafter made, and
the proceedings confirmed in accordance with the acts of Congress
relating to lands in the province named, approved respectively
March 2, 1805, and March 3, 1807, and after some other recitals, a
description of the land conveyed is set forth which commences as
follows:
"Begin at a stake set on the right bank of the Mississippi River
between high and low water mark and on the extension line produced
eastwardly from Labeaume's southern ditch, the lower and most
eastern corner of this survey, and the upper and most northern
corner of the survey of Joseph Brazeau, numbered 3332,"
etc.
Page 185 U. S. 40
Then follow in the patent what amounts to several printed pages,
giving in detail the courses and distances of the outboundaries of
the land described in the patent, from the southeastern corner
along to the western limit, thence towards the north and thence
back towards the east until the description is brought to the
northeastern corner of the survey, which is also a corner of the
City of St. Louis, being the northern termination of the
northwestern boundary line thereof. This corner is marked "F" on
the plat accompanying the patent, and the description then proceeds
to give the eastern line of the grant parallel with the Mississippi
River, and commences that line in the following language:
"From the corner of 'F' down the right bank of the Mississippi
River, with the meanders thereof, between high and low water mark,
south nine degrees east,"
etc. The description then goes on with six or eight different
courses and distances, altering with the meanders of the river,
down "to the place of beginning."
It appears that the east boundary line of the land described in
this patent was, at the time of the execution of the patent, in
1852, several hundred feet west of the waters of the river, and at
the present time is about fifteen hundred feet west thereof.
Between those waters and the east line of the grant there was then
what is termed on the plat accompanying and referred to in the
patent a sand beach, which was, as stated, several hundred feet in
width, thus separating by that beach the east line of the grant
from the river.
MR. JUSTICE PECKHAM, after making the foregoing statement of
facts, delivered the opinion of the Court.
A motion was made in this case to dismiss the writ of error for
lack of jurisdiction, and a decision of the motion was reserved
Page 185 U. S. 41
until after an argument of the case upon the merits. The whole
case having been argued, it becomes necessary to dispose of the
motion to dismiss.
The motion is based upon the averment that there is no federal
question involved, and that, even if there were one, it was not
properly raised in the court below. We think that, for the reasons
now to be stated, the motion to dismiss must be granted.
In our judgment, there is no federal question arising by reason
of plaintiff's claim under the patent put in evidence by her as the
source of her title to the land in question. With reference to the
first clause of section 709 of the Revised Statutes, it appears
plainly that the validity of the patent has never been questioned.
Nor has the validity of any treaty or statute of or authority
exercised under the United States been drawn in question. It is a
pure question of the construction of the language used in the
patent, whether the land granted therein reached the waters of the
Mississippi River on the east, or whether, according to the courses
and distances contained in the patent, the eastern limit of the
land conveyed was some hundreds of feet west of the river. It was
really a question of fact as to how far east the measurements of
the courses and distances carried the boundary. There was no
contention made as to the authority of the government to convey the
land to the bank of the river where the water was actually flowing,
if it chose so to do. The decision did not touch the question as to
how far a grant by the government of land bounded by the waters of
a navigable stream, would carry the title, whether to high water or
low water, or out to the middle of the stream. If the grant from
the United States had been bounded by the waters of a navigable
river, and the right to make the grant to the extent claimed by the
grantee had been denied by a grantee under a state, the denial of
the validity of the authority exercised in making such grant might
bring the question of construction within the principle decided in
Packer v. Bird, 137 U. S. 661, and
Shively v. Bowlby, 152 U. S. 1. In
Packer v. Bird, it was a question how far a grant carried
the title to land bounded by the margin of the Sacramento River,
or, as stated by Mr. Justice Field, who delivered the opinion of
the Court in
Page 185 U. S. 42
that case,
"The question presented is whether the patent of the United
States, describing the eastern boundary of the land as commencing
at a point on the river, which was on the right and west bank, and
running southerly on its margin, embraces the island within it, or
whether, notwithstanding the terms of apparent limitation of the
eastern boundary to the margin of the river, the patent carries the
title of the plaintiff holding under it to the middle of the
stream. The contention of the plaintiff is that the land granted
and patented, being bounded on the river, extends to the middle of
the stream, and thus includes the island. It does not appear in the
record that the waters of the river at the point where the island
is situated are affected by the tides; but it is assumed that such
is not the case. The contention of the plaintiff proceeds upon that
assumption."
The opinion then proceeds with an examination of the question of
what was the common law upon the subject, and whether that law had
been adopted in the State of California where the land was. It was
stated that it was
"undoubtedly the rule of the common law that the title of owners
of land bordering on rivers above the ebb and flow of the tide
extends to the middle of the stream, but that, where the waters of
the river are affected by the tides, the title of such owners is
limited to ordinary high water mark. The title to land below that
mark in such cases is vested, in England in the Crown, and in this
country in the state within whose boundaries the waters lie,
private ownership of the soils under them being deemed inconsistent
with the interest of the public at large in their use for purposes
of commerce."
It was said there was much conflict of opinion in the western
states as to what the true doctrine was -- whether it was the
common law, which decided the question by the ebb and flow of the
tides, or the law of actual navigability of the river, and in the
case then before the Court, it accepted the view of the Supreme
Court of California in its opinion as expressing the law of that
state "that, the Sacramento River being navigable in fact, the
title of the plaintiff extends no farther than the edge of the
stream." It was in a case involving such facts that the remark was
made in the course of the opinion that the courts
Page 185 U. S. 43
of the United States would construe the grants of the general
government without reference to the rules of construction adopted
by the states for their grants, but that whatever incidents or
rights attached to the ownership of property conveyed by the
government would be determined by the states, subject to the
condition that their rules do not impair the efficacy of the grants
or the use and enjoyment of the property by the grantee. It was a
necessary case for the Court to adopt one or the other of these two
conflicting rules for the construction of the grants of the general
government, and in making its decision as to the proper
construction in such cases, the Court held that the question of
construction became one of a federal nature.
Shively v. Bowlby, 152 U. S. 1, was
much the same case, the controversy being as to the extent of the
grant of the United States government of land bounded by the
Columbia River in the State of Oregon. The question was as to how
far such a grant extended (the actual limitations of the
boundaries, by the language used, not being disputed), whether, in
legal effect it granted lands under the water of the river, and the
question was held to be a federal one. In both cases, it was
decided that a grant by the federal government of land within a
state, bounded by a navigable river, did not extend so far as to
convey land below ordinary high water, and beyond that point, the
right of a grantee was governed by the law of the state, and the
decisions of those courts were therefore in each instance
affirmed.
In this case, no such question arises. It is not the case of
granting lands bounded by the waters of a navigable river, and a
claim made to an island in the river in one case and to the lands
under water in the other, where the validity of the authority
exercised, to the extent claimed, was drawn in question, and the
right to convey the land denied. Here, no question is made as to
the authority of the government to convey the land to the water's
edge if it chose to do so. The validity of its conveyance under the
authority of the acts of Congress referred to in the patent was not
in any way controverted or drawn in question by defendant, but it
was simply maintained that making correct measurements and
construing the language of the grant
Page 185 U. S. 44
in the usual and ordinary way applicable to such instruments
(not at all a federal question), the courses and distances set
forth in the patent and its general description of the land
conveyed did not, as matter of fact, bring the eastern boundary to
the waters of the river. The issue thus made was not one of
"validity," but one of fact as to where, by the language of the
grant, was its eastern boundary line. Where such a question alone
is involved, there is not drawn in question the validity of a
treaty or statute of or an authority exercised under the United
States, and there is in fact no question of a federal nature
decided. As was remarked in
Cook County v. Calumet &c. Dock
Company, 138 U. S. 635,
138 U. S.
653:
"The validity of a statute is not drawn in question every time
rights claimed under such statute are controverted, nor is the
validity of an authority every time an act done by such authority
is disputed. The validity of the authority here was not primarily
denied, and the denial made the subject of direct inquiry.
United States v. Lynch, 137 U. S. 280;
Baltimore
& Potomac Railroad v. Hopkins, 130 U. S.
210."
In the first of these two cases cited, it was held that to
enable this Court to entertain jurisdiction under a writ of error
upon the ground that the validity of an authority exercised under
the United States was drawn in question, the validity of such
authority must have been denied directly, and not incidentally. In
the case before us, there was no denial of the validity of the
grant, directly or incidentally. In the
Hopkins case,
supra, it was held that the validity of a statute is drawn in
question when the power to enact it is fairly open to denial and is
denied, but not otherwise.
In
Blackburn v. Portland Gold Mining Company,
175 U. S. 571, MR.
JUSTICE SHIRAS, in delivering the opinion of the Court dismissing a
writ of error, refers to several cases which we think are relevant
here. In
Borgmeyer v. Idler, 159 U.
S. 408, it was held that the matter in controversy,
being money received by one of the parties as an award under a
treaty of the United States with a foreign power providing for the
submission of claims against that power to arbitration, did not in
any way draw in question the validity or construction of the
treaty.
Page 185 U. S. 45
Here, there is no question made of the validity of the authority
exercised, but only a question of how far in fact it was
exercised.
In
Gillis v. Stinchfield, 159 U.
S. 658, the dispute arose concerning the ownership of a
mining claim. In the course of the opinion in the
Blackburn case, referring to the
Gillis case, it
was said:
"It is true that this Court put its judgment on the ground that
the judgment of the state supreme court was based upon an estoppel,
deemed by that court to operate against the plaintiff in error upon
general principles of law, irrespective of any federal question.
Still the case is authority for the proposition that controversies
in respect to titles derived under the mining laws of the United
States may be legitimately determined in the state courts, and that
to enable this Court to review the judgment in such a case, it must
appear not only that the application of a federal statute was
involved, but that the controversy was determined by a construction
put upon the statute adverse to the contention of one of the
parties."
Here, there was no construction put upon any statute, nor upon
any authority exercised, but only a construction upon the language
used in the patent, admitting the validity of all statutes, and
also the validity of any authority actually exercised, and the only
and simple question decided was that the language used in the
patent, assuming its validity, bounded the land conveyed under it
not by the river on the east, but by a line which was separated
from the waters of the river by a sand beach several hundred feet
in width.
The
Blackburn case was followed by
Shoshone Mining
Company v. Rutter, 177 U. S. 505,
which reaffirmed the doctrine.
We conclude that no federal question arises upon the
construction of the language of the patent given it by the state
court under the first clause of section 709 of the Revised
Statutes.
Nor was any federal question raised under the third clause of
that section. Under that clause, no title, etc., or authority
exercised under the United States was specially set up and claimed
by the plaintiff, and there was no decision against any title,
etc., specially set up or claimed by the plaintiff. There was no
decision of any federal question whatever. We do not
Page 185 U. S. 46
hold it was necessary to plead the claim in order to show it was
specially set up, but it must have been so referred to and
mentioned as to show that it was present in the minds of the
parties claiming the right, or must have been in some way presented
to the court.
Oxley Stave Co. v. Butler County,
166 U. S. 648;
Green Bay &c. Co. v. Patten Co., 172 U. S.
58;
Columbia Water Power Co. v. Columbia
Railway, 172 U. S. 475;
Dewey v. Des Moines, 173 U. S. 193,
173 U. S. 199.
And the decision that the grant did not extend to the river bank
was not a denial of any authority claimed, but was only a decision
that the grant did not in fact extend to the river, or in other
words that the authority was not exercised. It was mere
interpretation of the authority really exercised, and not any
denial of authority.
The plaintiff also claims that she obtained title to the land in
question, if not under the patent, then by virtue of the provisions
of the Act of Congress, approved June 6, 1874, 18 Stat. 62, the
first section of which is set forth in the margin.
*
It does not appear in the record that any such claim was made in
the trial court or upon appeal in the supreme court of the state.
There was no denial of the validity of that act by the decision in
question, and when the plaintiff introduced the patent in evidence,
there certainly was no claim thereby specially set up under the act
of Congress. This claim does not seem ever to have been thought of
until the case reached this Court. At any rate, the record does not
show that it was pleaded, proved, referred to, mentioned, or in any
manner set
Page 185 U. S. 47
up or claimed. The act does not, in any event, touch the point,
as it refers to those cases in which no patents had been given, and
does not cover the case where one had been issued and received in
entire fulfillment of the obligations of the government. As in our
opinion the case involves no federal question, the motion to
dismiss will be granted on the ground of lack of jurisdiction.
Dismissed.
* Chap. 223. An Act Obviating the Necessity of Issuing Patents
for Certain Private Land Claims in the Missouri, and for Other
Purposes.
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That all
of the right, title, and interest of the United States in and to
all of the lands in the State of Missouri which have at any time
heretofore been confirmed to any person or persons by any act of
Congress, or by any officer or officers, or board or boards of
commissioners, acting under and by authority of any act of
Congress, shall be, and the same are hereby, granted, released, and
relinquished by the United States in fee simple to the respective
owners of the equitable titles thereto, and to their respective
heirs and assigns forever, as fully and as completely, in every
respect whatever, as could be done by patents issued therefor
according to law."
