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
MR. JUSTICE BRADLEY, after stating the case, delivered the
opinion of the Court.
We agree with the court below that the dedication of the streets
of Keokuk was a dedication at common law, and not under the
statute, and that, in making this dedication, the original
proprietors of the tract reserved the title to the soil in the
street, particularly in Water Street, and that this title went with
the several lots fronting on the street, and extended to the
Mississippi River. Whether, under the laws of Iowa, it also
attached to the new ground formed by filling in upon the bed of the
river is not so clear. It appears to be the settled law of that
state that the title of the riparian proprietors on the banks of
the Mississippi extends only to ordinary high water mark, and that
the shore between high and low water mark, as well as the bed of
the river, belongs to the state. This is also the common law with
regard to navigable waters, although, in England, no waters are
deemed navigable except those in which the tide ebbs and flows. In
this country, as a general thing, all waters are deemed navigable
which are really so; and especially it is true with regard to the
Mississippi and its principal branches. The question as to the
extent of the riparian title was elaborately discussed in the case
of
McManus v. Carmichael, 3 Ia. 1. The above conclusion
was reached, and has always been adhered to in that state.
Haight v. City of Keokuk, 4 Ia. 199;
Tomlin v. Dubuque
Railroad Co., 32
id. 106.
The peculiar origin of the title to the "Half-breed Sac and Fox
reservation" in the peninsula lying between the Rivers Mississippi
and Des Moines did not take it out of the general rule. This was so
held in
Haight v. City of Keokuk, supra.
Page 94 U. S. 337
That case was nearly identical with the present as respects the
claim of the adjoining proprietor to the title of the land in Water
Street and on the river bank. Haight contested the right of the
city to control the wharf along said street, claiming, by virtue of
his fee simple title, the right to erect a private wharf and to
receive the emoluments thereof. His claim was overruled, and on the
question of title the court said:
"According to the case of
McManus v. Carmichael, then,
Haight owns the soil to high water only. But here is interposed the
argument that this land is not held under the United states by the
usual manner of grants -- that is, by patent, after a survey, and
described by section, town, and range. This is true, but yet it
will not affect the extent of the complainant's right. The grant to
the half-breeds was to them as persons and not as a political body.
The political jurisdiction remained in the United states. Had the
grant been to them as a political society, it would have been a
question of boundary between nations or states, and then the line
would have been the
medium filum aquae, as it is now
between Iowa and Illinois. . . . The grant was to them as
individuals -- as tenants in common -- and is to be construed as
any other grant or sale to individuals."
The court then goes on to refer to various cases to show that
the government cannot convey the land between high and low water on
the public or navigable rivers, but that this space belongs to the
state, citing
Mayor of Mobile v. Eslava, 9 Port. 578;
41 U. S. 16 Pet.
234;
Pollard's Lessee v.
Hagan, 3 How. 212.
It is generally conceded that the riparian title attaches to
subsequent accretions to the land effected by the gradual and
imperceptible operation of natural causes. But whether it attaches
to land reclaimed by artificial means from the bed of the river, or
to sudden accretions produced by unusual floods, is a question
which each state decides for itself. By the common law, as before
remarked, such additions to the land on navigable waters belong to
the crown; but as the only waters recognized in England as
navigable were tidewaters, the rule was often expressed as
applicable to tidewaters only, although the reason of the rule
would equally apply to navigable waters
Page 94 U. S. 338
above the flow of the tide, that reason being, that the public
authorities ought to have entire control of the great passageways
of commerce and navigation, to be exercised for the public
advantage and convenience. The confusion of navigable with
tidewater, found in the monuments of the common law, long prevailed
in this country, notwithstanding the broad differences existing
between the extent and topography of the British island and that of
the American continent. It had the influence for two generations of
excluding the admiralty jurisdiction from our great rivers and
inland seas, and under the like influence it laid the foundation in
many states of doctrines with regard to the ownership of the soil
in navigable waters above tidewater at variance with sound
principles of public policy. Whether, as rules of property, it
would now be safe to change these doctrines where they have been
applied, as before remarked, is for the several states themselves
to determine. If they 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. In our view of the
subject, the correct principles were laid down in
Martin v.
Waddell, 16 Pet. 367,
Pollard's
Lessee v. Hagan, 3 How. 212, and
Goodtitle
v. Kibbe, 9 How. 471. These cases related to
tidewater, it is true, but they enunciate principles which are
equally applicable to all navigable waters. And since this Court,
in the case of
The Genesee
Chief, 12
id. 443, has declared that the
Great Lakes and other navigable waters of the country, above as
well as below the flow of the tide, are in the strictest sense
entitled to the denomination of navigable waters and amenable to
the admiralty jurisdiction, there seems to be no sound reason for
adhering to the old rule as to the proprietorship of the beds and
shores of such waters. It properly belongs to the states by their
inherent sovereignty, and the United states has wisely abstained
from extending (if it could extend) its survey and grants beyond
the limits of high water. The cases in which this Court has seemed
to hold a contrary view depended, as most cases must depend, on the
local laws of the states in which the lands were situated. In Iowa,
as before stated, the more correct rule seems to have been adopted
after a most elaborate investigation of the subject.
Page 94 U. S. 339
The exhaustive examination of this question by the Supreme Court
of Iowa in 1856 in the case of
McManus v. Carmichael, 3
Ia. 1, really leaves nothing to be said. The precise point was
directly before the court -- namely whether the title of the
riparian proprietor extends below high water, in the Mississippi
River; and it was decided that it does not. This decision has been
followed by subsequent cases, especially the cases of
Haight v.
City of Keokuk, 4
id. 199; and
Tomlin v. Dubuque
Railroad Co., 32
id. 106.
But whatever may be the true rule on this vexed question, and
whether we rightly comprehend the Iowa decisions or not, we have no
doubt that the city authorities of Keokuk, representing the public,
had the right to widen and improve Water Street to any extent on
the river side, by filling in below high water, and building
wharves and levees for the public accommodation. By the charter of
the city, passed Dec. 13, 1848, it was provided:
"SEC. 14. That the city council shall have power . . . to
establish and constitute landing places, wharves, docks, and basins
in said city, at or on any of the city property, and fix the rates
of landing, wharfage, and dockage of all steamboats, boats, rafts,
and other watercrafts, and of all goods, wares, merchandise,
produce, and other articles that may be moored at, landed on, or
taken from any landing, wharf, dock, or basin belonging to said
city."
"SEC. 16. That the city council shall have power . . . to
license and establish ferries across the Mississippi River from
said city to the opposite shore, to fix the rates of the same. . .
."
"SEC. 22. The city council shall have exclusive power to
establish and regulate the grade of wharves, streets, and banks
along the Mississippi River, within the corporate limits of said
city."
And by a supplement, passed Jan. 22, 1853, it was provided:
"SEC. 7. The said City of Keokuk shall have the power to
establish and regulate wharf or wharves in said city, and more
particularly to use the whole of Water Street for said purpose. . .
."
Although it should be conceded that the title of the plaintiff
attached to the ground reclaimed and filled in by the city outside
of the original high water, it was a bare legal title, subject to
the public easement and use, not only for street purposes,
Page 94 U. S. 340
but for the purposes of wharves, landings, and levees. A street
bordering on the river, as this did, according to the plan of the
town adopted by the decree of partition, must be regarded as
intended to be used for the purposes of access to the river, and
the usual accommodations of navigation in such a connection. This
subject is discussed in Haight's case, where the court said:
"One further thought, presented by the petitioner, should be
noticed. It is that if this ground is dedicated to the public, it
is as a street only, and that if his rights are subject to the
public uses, they are so subject to the use of it only as a street
or highway, and not as a wharf, and that it is named and called a
street and not a wharf. He claims that the object of a street is
for passage, for traveling over, and not to land or deposit goods
upon. This is taking a very narrow and close view. The streets of a
town are fairly subject to many purposes to which a highway in the
country would not be. More regard should be paid to the object and
purpose than to the name. The ways of a town would be of
comparatively little use if the citizens and traders could not
deposit their goods in them temporarily, in their transit to the
storehouse, and so of other things, and so it is of the wharf. If
goods cannot be deposited upon it in preparation for shipping them,
or unladen upon it from boats and vessels, why is a town located
near the river upon land which, in other respects, is inconvenient,
and is expensive to grade, to bring into form and order, and to
keep in repair, instead of upon an even prairie, requiring no such
trouble and outlay?"
On the general question as to the rights of the public in a city
street, we cannot see any material difference in principle with
regard to the extent of those rights, whether the fee is in the
public or in the adjacent landowner, or in some third person. In
either case, the street is legally open and free for the public
passage, and for such other public uses as are necessary in a city,
and do not prevent its use as a thoroughfare, such as the laying of
water pipes, gas pipes, and the like, and, according to the laws of
Iowa (which must be taken to govern the case), it may be occupied
by those improved iron ways for public passage which modern skill
has devised, and which the advance of general improvement requires.
It cannot be
Page 94 U. S. 341
denied that horse railroads have contributed immensely to the
public convenience in furnishing a rapid, cheap, and convenient
means of communication between different parts of large towns and
have greatly promoted their increase and growth in wealth and
population. By the accommodation which they afford, the citizen can
reside miles from his shop or place of business. Though attended
with some inconveniences, they have greatly added to the efficiency
of the public thoroughfares and have more than doubled their
capacity for travel and transportation.
So other railways coming to cities add greatly to their
population and wealth, and furnish greatly increased facilities of
communication with other portions of the country.
In Iowa, by the act called the "Right of Way Act," found in the
Code of 1851, sec. 735, it is declared that:
"The county court may also grant licenses for the construction
of any canal or railroad, or any macadamized or plank road, or any
other improvement of a similar character, or any telegraph line, to
keep the same up for a period not exceeding fifty years, and to use
for this purpose any portion of the public highway or other
property, public or private, if necessary,
provided such
use shall not obstruct the highway."
Iowa Revision of 1860, p. 206.
By the construction given to this act by the supreme court of
the state, railroads, especially when located and constructed under
municipal regulation and control, are not regarded as obstructions
to a highway in the legal sense, nor as creating, when laid
thereon, any injury to the proprietors of the adjacent lands, for
which they are entitled to compensation. The cases referred to by
the circuit court (which are given below) abundantly demonstrate
this conclusion, and no elaborate discussion of the subject is
required from us.
See Milburn v. Cedar Rapids, 12 Ia. 249,
260;
Clinton v. Cedar Rapids & Mo. Railroad Co., 24
id. 455;
Tomlin v. Dubuque Railroad Co., 32
id. 106;
Chicago, Newton & S. W. Railroad
Co., 36
id. 299;
Cook v. City of Burlington,
id., 357;
Clinton v. Clinton & Lyon Railroad Co.,
37
id. 61;
Ingraham v. Chicago, Dubuque & Minn.
Railroad Co., 38
id. 669.
The cases cited, it is true, are generally those in which the
fee of the streets was in the cities respectively, as is
commonly
Page 94 U. S. 342
the case in Iowa. But in
Haight's Case, in 4 Ia., the
very street now in question was under consideration, and the
plaintiff had the same title as that of the plaintiff in the
present case, and the principles laid down in all the later cases
apply as well where the title of the soil is in the adjacent
proprietor as where it is in the city or a third party. And, as
before remarked, we can perceive no well founded difference in
principle between the one and the other as to the rights of the
public.
The circuit court is clearly correct, however, in holding that
the construction of a permanent freight depot in Water Street was
an unauthorized and improper occupation of that street. It was a
total obstruction of the passage, and this, as we have said, cannot
be created or allowed. It is subversive of and totally repugnant to
the dedication of the street, as well as to the rights of the
public.
We also concur in the view taken by the circuit court as to the
reasonableness of the erection of the packet depot in the place
where it is located. It is a necessary adjunct to the steamboat
landing, and the use of the wharf and levee for the purposes of
navigation, and does not occupy any portion of the original street.
It is a public use of the river bank, which is absolutely necessary
to the use of the river as a navigable water. The erection of
levees, wharves, and other accommodations on the very ground
appropriated to such purposes by the original plot of the town, or,
stronger still, on ground made and reclaimed from the bed of the
river adjoining the street thus appropriated, and in enlargement
thereof, is clearly within the powers of the city authorities as
laid down in the cases referred to.
Judgment affirmed.
MR. JUSTICE MILLER did not sit in the case, nor take any part in
deciding it.
