Barney v. Keokuk,
94 U.S. 324 (1876)

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U.S. Supreme Court

Barney v. Keokuk, 94 U.S. 324 (1876)

Barney v. Keokuk

94 U.S. 324


1. In order that the passageways of commerce and navigation might be subject to public authority and control, the title to the land under water and to the shore below ordinary high water mark, in navigable rivers and arms of the sea, was, by the common law, vested in the sovereign for the public use and benefit.

2. In England, tidewaters only were regarded as navigable. Hence the rule as to property was often expressed as applicable to them only, although the reason of it would make it apply to all navigable waters.

3. The form, instead of the substance, of the rule has been adopted in many of the states of this country, and in them the public title to the beds and shores of navigable streams is confined to tidewater.

4. From the same cause, the admiralty jurisdiction of the United states was for a long period restricted to tidewater.

5.. Since the decision of this Court in The Geneses Chief, in 1851, 12 How. 443, declaring all the great lakes and rivers of the country navigable that are really such, there is no longer any reason for thus restricting the title of the state except as a change in that respect might interfere with vested rights and established rules of property.

6. In Iowa, the true rule has been adopted, and it is held that the bed of the Mississippi River and its banks to high water mark belong to the state, and that the title of the riparian proprietor extends only to that line.

7. This rule applies as well where the land was granted to bound upon the river generally (as in the case of the Half-breed Sac and Fox reservation), as where it was granted according to surveys run along the bank by a meandering line. Hence it applies in the City of Keokuk, which is on that reservation.

8. The public authorities therefore have the right in Iowa to build wharves and levees on the bank of the Mississippi below high water, and make other improvements thereon necessary to navigation or public passage by railways or otherwise without the consent of the adjacent proprietor and without making him compensation.

9. Although no permanent obstruction like a depot building can be erected on the streets of a town, it is held in Iowa that they may, by public authority,

Page 94 U. S. 325

be occupied by railway tracks without the consent of the adjacent proprietor and without compensation, whether the fee of the streets be in him (as in the City of Keokuk) or in a third person.

10. There is no substantial difference between streets in which the legal title is in private individuals and those in which it is in the public, as to the rights of the public therein.

This was an action of ejectment brought by the plaintiff against the City of Keokuk and several railroad companies and a steam packet company, to recover the possession of certain premises occupied by them with railroad tracks, buildings, and sheds on the bank of the Mississippi River in the city aforesaid. The plaintiff in his petition described the premises as follows:

"All the land lying and being in front of lots 5 and 6, in block 3, in the City of Keokuk, Lee County, Iowa, and extending from the front line of said lots to the Mississippi River the full width of said lots."

The petitioner states that he is the owner in fee simple of the premises, subject only to the right of the public to use that part of them embraced within the limits of Water Street as a public highway, and is entitled to possession as against the defendants, that the City of Keokuk claims to be the proprietor, and the other defendants occupy as its tenants.

The city, by its answer, admitting that the plaintiff is owner of lots 5 and 6, in block 3, states, in substance, that all the land in front of them down to the Mississippi River was in 1840 dedicated to public use as a street and levee, and as such has been used and improved ever since under the possession and control of the city, by virtue of its charter and has, at its expense, been extended out about two hundred and fifty feet by depositing earth and stone in the river in order to make the wharf and levee more convenient, safe, and useful. Other defenses were interposed, which it is not necessary to specify.

The other defendants claim under authority of the city.

The cause was tried by the court, and a special finding of the facts and the law was made.

From these findings, it appears that the City of Keokuk is situated upon a tract of land lying between the Mississippi and

Page 94 U. S. 326

the Des Moines Rivers, in Lee County, Iowa, known as the "Half-breed Sac and Fox reservation," which, by treaty with the Sac and Fox tribes of Aug. 4, 1824, 7 Stat. 229, was granted to the half-breeds of those tribes, to be by them held in the same manner as other Indian titles are held. The fee, with power of alienation, was subsequently vested in them. Numerous parties became interested in the tract by purchase, and a town was laid out and lots sold as early as 1837, but no regular town plat, having the requisites of the town plat law of 1839, seems to have been filed or recorded in the recorder's office of the county. One Galland, who seems to have been a part owner, made out such a plat, and filed it, but there is no proof that he had authority for his acts from the other proprietors. In 1840, suit for a partition of the tract was commenced, and regular proceedings were had resulting, in October, 1841, in a final decree of partition, made according to the report of commissioners and embodying a plat or map of the Town of Keokuk. Said lots 5 and 6, in block 3, are exhibited on this map and were drawn by the parties under whom the plaintiff claims title. In its findings of fact, the court sets forth portions of the decree, and, amongst other things, the following:

"In describing each of said shares, the commissioners appointed by the court say, among other things: 'The lots upon Water Street include all the land in front of them to the Mississippi River.'"

"And, after describing all the shares, they say:"

" In describing the boundary of the town lots situated on Water Street in the Towns of Keokuk and Nashville, we have made them to include all the land in front of them to the Mississippi River, by which we mean in front of them, facing the river, parallel with the streets running from Fourteenth Street to Water Street."

"And in describing the plat of Keokuk, the commissioners' report, among other things, says:"

" Plat of Keokuk, in the County of Lee, Territory of Iowa, upon the half-breed tract, the outlines of which were designated and marked by Jenefer T. Spring in his survey as town reservation, . . . Water Street is of unequal and irregular width at the points where the dotted lines pass across the same."

" The street is of the width in feet as is represented by the figures set on said lines. . . . Water Street extends the whole front on river side of the town, or from the intersection of Orleans Street with the

Page 94 U. S. 327

Mississippi River, down the right bank of the river, with the meanders thereof, to the intersection of Cedar Street with the Mississippi River."

The Galland map was produced on the trial, also a fragment of another map, which bears date August, 1840, found in the recorder's office. By these as well as the map embodied in the decree, the space between the front of the lots and the river is designated as Water Street, and appears to have been, at that time, about one hundred feet wide.

As to the occupation of Water Street in front of the plaintiff's lots, and its extension on the river side, the court found:

"The City of Keokuk has, since the year 1865, caused the space originally covered by water on the river side of Water Street, in front of said lots, to be filled in with earth and stone for a space of over two hundred feet beyond the original water line to ordinary high water mark, and about three hundred and fifty-two feet to low water mark, said filling having been done by said city. That part of the space between the front of said lots and the river at ordinary high water mark is occupied as follows:"

"1. By the freight house or depot of the defendant, the Keokuk and Des Moines Railway Company, . . . a permanent and substantial frame building. It has been standing a good many years, . . . is used for storing freight by said railroad company, is two hundred and three feet long and twenty feet wide, and one story high, and covers the whole of the front of said lots 5 and 6, block 3."

"2. By the railroad tracks used by the defendants, the Keokuk and Des Moines Railway Company, the Mississippi Valley and Western Railway Company (now St. Louis, Keokuk, and Northwestern Railway Company), the Toledo, Peoria, & Warsaw Railway Company, and the Toledo, Wabash, and Western Railway Company. Altogether, there are ten railroad tracks between the front of said lots and high water mark."

"3. By the building known as the Keokuk Northern Line Packet depot, . . . a permanent and substantial building, one hundred feet long and fifty feet wide, formed of substantial timbers and about fourteen or fifteen feet high. It was built by said packet company for its own use in carrying on its business as a common carrier by steamboats on the Mississippi River, and is used by it in connection with its transportation business for the temporary storage of freight

Page 94 U. S. 328

carried or to be carried by said company, and also for the business offices of said company at Keokuk. Said building has five large doors through which teams are driven in delivering or receiving freight, and which doors are closed at night. The building is one and a half stories high, with office rooms on second floor, and the ground floor is of heavy two-inch lumber laid on sills about two feet apart."

The map shows that this building stands on the newly made ground below original high water.

The court further found:

"That none of the defendants so occupying said ground, nor the city, has caused any condemnation, nor asked or obtained the permission of plaintiff, nor paid him any damages in compensation for the use of said ground. But they all and severally hold the same under the license or permission of the City of Keokuk only."

As conclusions of law under the foregoing facts, the court found:

"1. There was no completed statutory dedication of Water Street under the town plat act of 1839 prior to the decree of partition, for the reason, among others, that all of the proprietors, i.e., the half-breed owners and their grantees, did not join in making a plat, or in selling lots according to the Galland or other plat. What was done prior to the decree was at most a common law dedication by those who platted or recognized the plat, and it was therefore competent for the decree of partition to provide, as it did, 'that the lots on Water Street should include all the land in front of the lots to the Mississippi River.'"

This leaves the fee of the land constituting Water Street in the plaintiff, subject to the rights of the public.

"2. The additional ground made by filling in Water Street outside of the original water line partakes of the same character as the original street. The fee of the newly made ground in front of the plaintiff's lots is in the plaintiff, but it is subject to the same public uses as the original street."

"3. Under the law of Iowa, as construed by the supreme court of the state, railroad companies, certainly, with the assent of the municipal authorities, have the right to lay down their tracks in the streets of a city, whether they were dedicated under the statute or as at common law -- that is, whether the fee is in the city or in the adjoining proprietor. "

Page 94 U. S. 329

"4. This, however, does not give the railway company, even with the assent of the municipality, the right to erect a permanent and substantial depot building in the street."

"5. In view of the location and situation of Water Street and the presumed intention of the dedication thereof to the public, and guided by the view of the supreme court of the state in this regard in Haight v. City of Keokuk, and the power of the city as to wharves, and the use of Water Street for that purpose, given to the City of Keokuk by the act of the legislature of 1853, Water Street may be used for levee and wharf purposes under municipal management and control."

"The building erected by the packet company under the contract with the city, of March 28, 1870, for the purposes therein mentioned, for the receipt and temporary shelter and storage of goods, &c., subject to municipal control, is a reasonable use of Water Street as a wharf or levee as incidental to the requirements of navigation and shipping, and does not infringe the plaintiff's rights."

The provisions of the charter of the City of Keokuk, which bear upon the case, are set out in the opinion of the Court.

There was a judgment for the defendants, and the plaintiff sued out this writ of error.

Page 94 U. S. 336

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