The case of
City of Mobile v.
Hallett, 16 Pet. 261, examined and confirmed.
Under the exception contained in the Act of Congress of 1824, no
title passed to the City of Mobile where the land was in the
possession of a party claiming to hold it under a Spanish grant
which had been confirmed by the United States.
The facts in the case were these:
On 26 September, 1807, the Spanish governor of Florida granted
to John Forbes a tract of land immediately adjacent to what is now
the City of Mobile and indeed constituting a part of it. The grant
was founded upon and confirmatory of an older one issued to
Richardson in 1767, by the British government, then in possession
of the country. The land was upon the west side of the River
Mobile. In the document issued
Page 42 U. S. 96
by the surveyor general, it is said to be "bounded on the east
by said river," and in that issued by the intendant, to be
"terminated by the bank of said river on the east side;" in both,
there is a reservation of a "free passage on the bank of the
river."
On 2 March, 1819, Congress passed
"An act to enable the people of the Alabama territory to form a
Constitution and state government, and for the admission of such
state into the Union, on an equal footing with the original
states,"
by the sixth section of which it was enacted
"That the following propositions be and the same are hereby
offered to the convention of the said Territory of Alabama, when
formed, for their free acceptance or rejection, which, if accepted
by the convention, shall be obligatory upon the United States."
After enumerating many articles, the section concludes with
this:
"and that all navigable waters within the said state shall
forever remain public highways, free to the citizens of said state
and of the United States, without any tax, duty, impost, or toll,
therefor, imposed by the said state."
By the original plan of the town a street was laid off, called
Water Street, on the margin of the river, running nearly north and
south, which was afterwards filled up, and by the improvement the
water, at high tide, was confined to the eastern edge of the
street.
On 26 May, 1824, Congress passed "An act granting certain lots
of ground to the corporation of the City of Mobile, and to certain
individuals of said city," which is as follows:
"1. 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 land, in the City of Mobile, in the
State of Alabama, and also all the right and claim of the United
States to all the lots not sold or confirmed to individuals, either
by this or any former act, and to which no equitable title exists
in favor of any individual, under this or any former act, between
high watermark, and the channel of the river, and between Church
Street and North Boundary Street, in front of the said city, be and
the same are hereby vested in the Mayor and Aldermen of the said
City of Mobile, for the time being, and their successors in office,
for the sole use and benefit of the said city forever."
"2. That all the right and claim of the United States to so
Page 42 U. S. 97
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, or the Spanish
government has made a new grant or order of survey for the same
during the time at which they had the power to grant the same, in
which case the rights and claims of the United States shall be and
is hereby vested in the person to whom such alienation, grant, or
order of survey was made, or in his legal representative."
"Provided, that nothing in this act contained shall be construed
to affect the claim or claims, if any such there be, of any
individual or individuals, or of any body politic or
corporate."
7 vol. Laws of the United States, 318; 1 vol. Land Laws, ed.
1838, 398.
On 8 July, 1835, the Mayor and Aldermen of the City of Mobile
brought an action of trespass to try title against Emanuel and
Gaines in the state circuit court of Alabama, claiming several lots
bounded on the west by Water Street, and running eastward to the
channel of the river.
On the trial of the cause, the jury, under the instructions of
the court, found the defendants "not guilty" of the trespass. The
court charged the jury
"That if the place in controversy was, subsequent to the
admission of this state into the Union, below both high and low
water mark, then Congress had no right to grant it, and if
defendants were in possession, the plaintiffs could not oust them,
by virtue of the act of Congress."
"That the grant to Forbes extended to high water mark, and that
if the place claimed was between high water mark and the channel,
in front of the grant, and had been reclaimed by the defendants;
then the plaintiffs could not recover in virtue of the act of
Congress, and this, notwithstanding the reservation of the right of
way specified in the confirmation of the grant to Forbes. "
Page 42 U. S. 98
Upon this charge a bill of exceptions was founded, and the case
carried to the Supreme Court of the State of Alabama, where the
judgment of the court below was affirmed.
It is necessary to refer to the opinion of the Supreme Court of
the State of Alabama in order to understand the ground upon which
the dissentient opinion of MR. JUSTICE CATRON is placed.
The Supreme Court of Alabama did not decide the first point
raised in the bill of exceptions,
viz., "that Congress had
no right to grant the land to the City of Mobile." But being of
opinion that the grant to Forbes conveyed to him the intervening
space between high water mark and the channel of the river
(covering the property in dispute), and thus precluded the
plaintiffs from ever recovering it; and being moreover of opinion,
that a judgment ought not to be reversed for a misdirection of the
judge to the jury, if it appears that the party complaining could
not have been injured, that court waived all examination into the
correctness of the first point, and contented itself with affirming
the judgment of the court below.
MR. JUSTICE McLEAN delivered the opinion of the Court.
An action of trespass to try the title to a certain lot or piece
of ground in the City of Mobile, was commenced by the plaintiffs
against the defendants, in the circuit court of the state. Issue
being joined, a jury were empanelled, who rendered a verdict of not
guilty. As the right of the plaintiffs was asserted, exclusively,
under an act of Congress, and the decision being against that
right, the plaintiffs, having excepted to certain rulings of the
court on the trial, prosecuted this writ of error under the
twenty-fifth section of the Judiciary Act of 1789.
The bill of exceptions states that it was proved the defendants
were in possession of the premises described in the declaration, at
the time the suit was brought.
An act of Congress entitled "An act, granting certain lots of
ground to the corporation of the City of Mobile and to certain
Page 42 U. S. 99
individuals of said city," passed 20 May, 1824, was read; also
"A resolution of the Mayor and Aldermen of the City of Mobile,"
passed 23 April, 1834, in the following words:
"Resolved, that the map of the city as now shown to the board be
accepted and approved, and it is further resolved that the names of
the streets be the same as heretofore established."
It was also proved by the plaintiffs that the map referred to
was one published by Goodwin and Haise, a copperplate copy of which
was offered in evidence; a copy of such parts of said map as is
necessary to refer to is annexed [omitted].
It was also proved that there never had been a street in Mobile
known as North Boundary Street. And also that the premises in
question were situate, in May, 1824, between Church Street, south
of Adams Street, and below high water as well as low water mark and
the channel of the river. It was also proved that the premises were
north of St. Louis Street, as laid out in said map, and that in
1824, Water Street did not extend to St. Louis Street, and that at
that time buildings were few and scattered above St. Louis
Street.
The defendant offered in evidence a grant from the Spanish
government, and proved that they claimed title to the premises
under that grant.
The court charged the jury that if the place in controversy was,
subsequent to the admission of this state into the Union, below
both high and low water mark, then Congress had no right to grant
it; and if defendants were in possession, the plaintiffs could not
oust them, by virtue of the act of Congress. That the grant to
Forbes extended to high water mark, and that if the place claimed
was between high water mark and the channel, in front of the grant,
and had been reclaimed by the defendants, then the plaintiffs could
not recover in virtue of the act of Congress, and this,
notwithstanding the reservation of the right of way specified in
the confirmation of the grant to Forbes.
It appeared that on 9 January, 1767, the English government,
being then in possession of the country, had granted the land in
controversy to William Richardson, and that a grant of the same
land was made to John Forbes and Co., the assignees of Richardson
by the Spanish authority, 26 September, 1807. In the British grant
the land "was bounded east by the
Page 42 U. S. 100
River Mobile," and by the Spanish "by the bank of the river,"
"leaving a free passage on the bank," &c.
The case was removed by writ of error from the circuit court to
the supreme court of the state, in which judgment was affirmed.
The first section of the act of 1824, referred to in the bill of
exceptions, vests
"in the Mayor and Aldermen of the City of Mobile, for the time
being, and their successors in office, for the sole use and benefit
of the city, forever, all the right and claim of the United States
to all the lots not sold or confirmed to individuals, either by
that or any former act, and to which no equitable title exists in
favor of an individual under that or any other act, between high
water mark and the channel of the river, and between Church Street
and North Boundary Street, in front of the city."
And the second section of the act
"excepts from the operation of the law, cases where the Spanish
government had made a new grant or order of survey for the same,
during the time at which they had the power to grant the same; in
which case, the right and claim of the United States shall be and
is hereby vested in the person to whom such alienation, grant, or
order of survey, was made, or in his legal representative."
In principle this case is similar to that of
City of
Mobile v. Hallett, 16 Pet. 261. In that cause, the
Court said
"From the bill of exceptions, it appears, that the defendant was
in possession of the land in controversy under a Spanish grant,
which was confirmed by the United States, and that the land
extended to the Mobile River. It was then within the exception in
the act of 1824, and no right vested in the plaintiffs. We think,
therefore, that the instruction of the circuit court to this
effect, was right."
The same language is equally applicable to the case under
consideration. And it appears that the judgment of the circuit
court was affirmed by the Supreme Court of Alabama, on the ground
that "there was no vacant space between high and low water mark,
all having been sold and confirmed to Forbes," under his Spanish
grant.
The Spanish grant being an exception in the act, under which the
plaintiffs claim, the instruction of the circuit court in favor of
the defendant was correct. The judgment of the Supreme Court of
Alabama is affirmed.
Page 42 U. S. 101
MR. JUSTICE CATRON dissented.
The premises in controversy lie in front of the City of Mobile,
and are claimed by the corporation, by virtue of the Act of
Congress of May 20, 1824. They lie both below high and low water
mark.
The court charged the jury that, if the place in controversy was
subsequent to the admission of this state into the Union, below
both high and low water mark, then Congress had no right to grant
it, and if defendants were in possession, the plaintiffs could not
oust them, by virtue of the act of Congress.
That the grant to Forbes extended to high water mark, and that
if the place claimed was between high water mark, and the channel,
in front of the grant, and had been reclaimed by defendants; then
the plaintiffs could not recover in virtue of the act of Congress,
and this notwithstanding the reservation of the rights of way
specified in the confirmation of the grant to Forbes.
To all of which charge the counsel of the plaintiffs
excepted.
The jury found a general verdict of not guilty. As Alabama was
admitted into the Union December 14, 1819, the first instruction
was conclusive of the plaintiffs' title. On the admitted fact that
the land lay under the water in 1824, the court pronounced the act
of Congress void.
The second instruction depends on the fact "whether the
defendant had reclaimed the land in front of the grant of Forbes."
There is no evidence in the record that he had done so, and all the
evidence purports to have been set out.
A writ of error was prosecuted to the Supreme Court of Alabama.
That court simply affirmed the judgment of the circuit court, and
from that affirmance a writ of error was prosecuted to this Court,
by the corporation of the City of Mobile, under the twenty-fifth
section of the Judiciary Act.
One error assigned in the Supreme Court of Alabama was, "That
the charge of the circuit judge denies, that the United States had
right and power to grant the premises in question."
On the general affirmance, can this Court take jurisdiction and
reverse because the first instruction was erroneous. In the case of
the same plaintiffs against
Eslava, 16
Pet. 246, the majority of the Court held that the opinion of the
Supreme Court of Alabama certified as part of the record was no
part of it.
Page 42 U. S. 102
Speaking of the opinion, the Court said
"Their opinion constitutes no part of the record, and is not
properly a part of the case. We must look to the points raised by
the exceptions in the circuit court as the only questions for our
consideration and decision."
And so this Court held in even a stronger case,
Gordon
v. Longest, 16 Pet. 103, where there had been a
general affirmance of the judgment below, by the Supreme Court of
Kentucky.
In
Eslava's Case, I thought the opinion of the Supreme
Court of Alabama formed part of the record; in that case, as in
this, the opinion was found in the paper book; but a majority of
the Court ruled it out, as no part of the record, to which decision
I submit, of course.
Looking only to the points raised by the exceptions in the
circuit court, and we find it established with a plainness
admitting of no doubt, that Alabama claims to hold as her own, and
does actually hold, by force of her judicial decisions, all the
lands within the state, flowed by tidewater, and that this claim is
founded, on an implied cession of the lands under tidewater, by the
United States to Alabama, as a consequence of the sanction given by
Congress to the state constitution. The disastrous results of this
assumption on part of the state courts of Alabama, I endeavored to
point out (so far as pressure of circumstances would permit), in my
opinions in the cases of these plaintiffs against
Eslava
and
Hallet, 16 Pet.
41 U. S. 247
and
41 U. S.
263.
That the United States had the undoubted title before the
adoption of the Constitution of Alabama, has never been denied by
anyone, and that the state acquired title by that event has not
been proved, nor can it be, as I think; nor is it perceived how the
question can be avoided in the cause before us, unless we look
beyond the record. I therefore believe the judgment should be
reversed because there was error in the first instruction. For my
reasons I refer to the opinions in the cases of
Eslava and
Hallet. To these I will add, that it is impossible for
this Court to follow the decisions of the Supreme Court of Alabama,
without overruling the decision in
Pollard's
Heirs v. Kibbie, 14 Pet. 353. William Pollard
claimed a square of land below high water mark fronting the City of
Mobile. The claim was founded originally on a Spanish concession,
made in 1809. This
Page 42 U. S. 103
was merely void, as was held in
Foster
and Elam v. Neilson, 2 Pet. 254, and in
Garcia v. Lee,
12 Pet. 511. By the 2d sec. of the act of 1824, the land was
excepted from its operation and did not pass to the City of Mobile.
14 Pet.
39 U. S.
364-366. The title to the square claimed by Pollard
therefore remained in the United States until it was granted to his
heirs by a private act of Congress of 1836 and a patent founded on
the act dated in 1837. This Court maintained the title, and a
recovery was had on the act of 1836, and the patent from the
government.
If the act of 1824 is void because Congress had no power to
grant the lands below the flow of the tides, so is equally and as
certainly the act of 1836 and the patent founded on it.
Forbes owned the land, in front of the land granted to Pollard's
heirs: Forbes' grant extended to high water mark, was dated in
1802, and was undisputed. This Court held in effect that it was
bounded, and could not extend by implication beyond the high water
mark. So is the undoubted construction of grants for lands fronting
tidewaters. A grant of lands on each side of an arm of the sea and
embracing it does not pass the land under the water by general
words; there must be special words of grant showing plainly the
land covered with water, was intended to be granted; without such
explicit words of grant, the high lands only pass. Such is the
settled doctrine of this Court.
Martin v.
Waddel, 16 Pet. 367. Forbes therefore could not
claim as riparian owner the land granted on his front to Pollard;
to hold otherwise would overrule the decision of
Martin v.
Waddel.
In any aspect this controversy can be presented, it falls within
the decision of
Pollard v. Kibbie; that case must be
overruled if the doctrine of the courts of Alabama is
maintained.
Order
This cause came on to be heard on the transcript of the record
from the Supreme Court of the State of Alabama, and was argued by
counsel. On consideration whereof, it is now here ordered and
adjudged by this Court, that the judgment of the said supreme court
in this cause be and the same is hereby affirmed with costs.
