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mous terms, and tidewater, with a few small and unimportant exceptions, meant nothing more than public rivers, as contradistinguished from private ones; and they took the ebb and flow of the tide as the test, because it was a convenient one, and more easily determined the character of the river. Hence the established doctrine in England that the admirality jurisdiction is confined to the ebb and flow of the tide. In other words, it is confined to public navigable waters.


“It is evident that a definition that would at this day limit public rivers in this country to tidewater rivers is utterly inadmissible. We have thousands of miles of public navigable water, including lakes and rivers in which there is no tide. And certainly there can be no reason for admiralty power over a public tidewater, which does not apply with equal force to any other public water used for commercial purposes and foreign trade. The lakes and the waters connecting them are undoubtedly public waters; and we think are within the grant of admiralty and maritime jurisdiction in the Constitution of the United States (p. 457)."

In Illinois Central Railroad v. Illinois, supra, the court, after referring to The Genesee Chief, observed (p. 436):

“When the reason of the limitation of admiralty jurisdiction in England was found inapplicable to the condition of navigable waters in this country, the limitation and all its incidents were discarded. So also, by the common law, the doctrine of the dominion over and ownership by the Crown of lands within the realm under tidewaters is not founded upon the existence of the tide over the lands, but upon the fact that the waters are navigable, tidewaters and navigable waters, as already said, being used as synonymous terms in England. The public being interested in the use of such waters, the possession by private individuals of lands under them could not be permitted except by license of the Crown, which could alone exercise such dominion over the waters as would insure freedom in their use so far as consistent with the public interest. The doctrine is founded upon the necessity of preserving to the public the use of navigable waters from private interruption and encroachment, a reason as applicable to navigable fresh waters as to waters moved by the tide. We hold, therefore, that the same doctrine as to the dominion and sovereignty over and ownership of lands under the navigable waters of the Great Lakes applies, which obtains at the common law as to the dominion and sovereignty over and ownership of lands under tidewaters on the borders of the sea, and that the lands are held by the same right in the one case as in the other, and subject to the same trusts and limitations."

In The Daniel Ball, supra, it was declared (p. 563):

“ Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of keing used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water."

In The Montello, supra, it was said (p. 441):

“ The capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river, rather than the extent and manrer of that use. If it be capable in its natural state of being used for purposes of commerce, no matter in what mode the commerce may be conducted, it is navigable in fact, and becomes in law a public river or highway.

“(P. 442:) It is not, however, as Chief Justice Shaw said (21 Pickering, 344): ‘Every small creek in which a fishing skiff or gunning canoe can be made to float at high water which is deemed navigable, but, in order to give it the character of a navigable stream, it must be generally and commonly useful for some purpose of trade or agriculture.""

Also in Harrison v. Fite (148 Fed., 781), a case involving the status of “Little River” in Arkansas, the Court of Appeals for the Eighth Circuit remarked (p. 784):

“Mere depth of water, without profitable utility, will not render a watercourse navigable in the legal sense, so as to subject it to public servitude, nor will the fact that it is sufficient for pleasure boating or to enable hunters or fishermen to float their skiffs or canoes. To be navigable a watercourse must have a useful capacity as a public highway of transportation”.

Citing Toledo Liberal Shooting Co. v. Erie Shooting Club (90 Fed., 680), and many causes from State courts.

Since it is the actual or potential usefulness of the waters for the purposes of public commerce which must determine whether or not they are publici juris, the conclusion seems inevitable that Mud Lake was not, in legal contemplation, a navigable body of water. Even assuming, what the facts presented will hardly justify, that it was uniformly deep enough to permit the safe and convenient passage over considerable distances of boats sufficiently large to be employed in a small way for the transportation of passengers and freight, the fact remains that, owing to the nature of the environment, there was never any occasion for such traffic to exist upon its waters. Its chief interest to society lay in its relation to physical conditions which prevented the development of the surrounding region, and the removal of which involved the destruction of the lake itself. The mind labors in difficulty to conceive the circumstances under which this lake or pond might ever have become of serious commercial value to the public.

The supreme court of Minnesota appears to have extended the definition of “navigable waters” to include lakes not adapted to commercial navigation and susceptible of no use by the public save for pleasure boating, bathing, skating, etc. (Lamprey v. State, 52 Minn., 181, 18 L. R. A., 670.) This view is not only at variance with the views generally adopted by the courts of the several States (see Harrison v. Fite, supra), but extends most obviously beyond the limit of the rule as laid down by the Federal Supreme Court in the decisions cited above. Without questioning the well-established proposition that it lies with each State to determine for herself the extent to which she will exercise her sovereign prerogative over navigable waters and the lands beneath them, or resign to the riparian proprietors or others the property and privileges which

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rightfully she might retain for the public, it must be held that the question whether waters are or are not navigable is in the first instance a Federal question, the authoritative and final answer to which can only be given by the Supreme Court of the United States, interpreting and applying the Federal Constitution. The basis of determination is the constitutional equality of States. The particular application of this principle consists in allowing to the nonoriginal States no more and no less than the rights which the original States had inherited from the Crown of England when the Federal Government was formed. Those rights in turn are measured by the rule of the common law as adapted to this country. Thus the rule is to be read and applied as though it were a part of the Constitution itself, and necessarily there can be but one rule. To admit a multiplicity of rules would be to violate the principle of equality under pretense of observing it, and to permit the various States to define the rule for themselves would be in effect to make them the arbiters of their respective prerogatives under the Constitution, and submit the property rights of the United States to State determination.

2. By the law of Minnesota a conveyance of land bounded on a nonnavigable lake carries title to the submerged land. Where the upland is held by several owners, the limits of their holdings are determined by lines drawn from the points where their side lines intersect the shore or meander line to the center of the lake. (Lamprey v. State, 52 Minn., 181; Hanson v. Rice, 88 ib., 273; Skell v. Matteson, 81 ib., 38; Sherwin v. Bitzer, 97 ib., 252.)

Since conveyances by the United States are in this regard to be interpreted according to the law of the State (Hardin v. Jordan, 140 U. S., 371; Mitchell v. Smale, ib., 406; Hardin v. Shedd, 190 U. S., 508; Kean v. Canal Co., ib., 452), patents for lots bounded upon Mud Lake (were it a subsisting body of water) would doubtless convey title to the land beneath the water. It is well settled that with certain important exceptions a meander line is not a boundary, and that where lots are patented according to a plat which exhibits them as bordering on a pond or nonnavigable lake the water will be taken as the true boundary, notwithstanding the field notes may show that a meander was run and adopted in determining the area of the lots. (See cases last cited.) These authorities, however, do not intimate that the Government is bereft of the right, en- . joyed by every private owner, to limit its conveyances to the upland if it sees fit to do so. On the contrary, it will be found upon examination that they, and others which might be cited if necessary, expressly recognize that right and apply the State law merely as a convenient rule for interpreting patents in common with other conveyances. I know of no act of Congress which requires the Land Department either to abstain from extending the public surveys over lands covered by nonnavigable waters or to dispose of such lands without compensation as mere appurtenances to the surrounding uplands. From my study of the subject I conclude that the practice of excluding such lands from the surveys by meander lines has been base entirely on convenience and that the department long supposed that patents for the upland lots according to the plats resulting from such surveys would be consistent with the retention by the Government of the lands beyond the meanders, as its conduct in afterwards surveying and attempting to dispose of them in not a few instances suffices to prove. In Kean v. Canal Co., supra, at page 459, the court said:

“ It would seem, to be sure, that the settled understanding of the Land Department has been that in cases like the present the meander line marked the limit of the grant.”

In the dissenting opinion, which deals with the matter quite exhaustively, it is said (p. 494):

* Without presently developing this subject further, I append in the margin a reference to acts of Congress, rules of the Land Department governing surveys, and reports of the executive officers charged with the survey and disposition of the public domain, which beyond peradventure show that from the very beginning of the Government up to the decision in Hardin v. Jordan, the general practice was to treat the land under nonnavigable waters as the property of the United States, and to survey and sell the same as part of the public domain.

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