for Ft. Brady, and directed to so note them (the lands released) in their tractbooks and plats. It seems probable that the Commissioner, in writing his letter of June 9, 1853, was laboring under the misapprehension that the lands he was writing about lay in the Ft. Brady Reservation. Otherwise there is such a conflict in his statements as to render them without value as evidence of contemporaneous construction.

The Chandler tract was therefore open to the location of the scrip, and had been adequately surveyed. The location of the scrip was permissible, and the patent was and is valid.

We come, then, to the question which is of more general interest to the United States, and the one which constitutes the direct object of the bill, and this is whether the ownership of the mainland carries with it the title to the islands lying between it and the thread of the stream. At this point it seems proper to note an aspect of the case which otherwise it might be thought we had overlooked. It will be seen from what follows that we are of the opinion that the United States has neither the legal or equitable title in the bed of the stream or in these islands, and consequently has not such an interest in the land as is required to support a bill to remove a cloud upon a title. In short, we think the title is in the state of Michigan, if the state has not yielded it to the riparian owner. But this defense, if it be one, has not been raised or discussed by counsel, who have preferred to ignore it. And, as there is a colorable case for the presentation of the merits of the principal question, we have concluded to examine and decide it. But the principles upon which our decision must rest were long since settled, and it seems to us singular that the Department of the Interior requires any fresh judicial declaration of them. The relevant propositions established by the decisions of the Supreme Court of the United States, as we understand them to be, are:

(1) The original states which united under the Constitution owned. the land submerged by the navigable waters within their respective boundaries in right of their sovereignty.

(2) This ownership was not surrendered by their union, and remained unaffected thereby except to the extent that they might be affected by the exercise of the power delegated to the United States to regulate commerce between the states and between the states and foreign countries.

(3) Upon the acquisition of territory by the United States, such new territory was held, the terra firma as well as the submerged lands, in trust for the several new states which should thereafter. be formed of such territory, subject, however, to the right retained by the United. States on parting with it to sell the land for revenue, and this doubtless included lands in islands as well as elsewhere, which the United States should regard as valuable and claim for itself.

(4) This trust was executed by the United States, and the ownership of the submerged lands relinquished when any state thus formed should be admitted into the Union, for upon such admission the new state was entitled to the same rights of sovereignty and be upon an equal footing "in all respects" with the original states. And this was one of the express conditions of the deed of cession executed March 1, 1784, by the

state of Virginia to the United States, of the Northwest Territory, out of which the state of Michigan was formed.

(5) In the case of the state of Michigan, the condition was performed by the act of Congress of June 16, 1836, by which it was admitted with its northern and eastern boundaries on the international boundary, the new state to be "on an equal footing with the original states in all respects whatever." And thereupon the title to the lands submerged by the navigable waters of the state was transferred to the state. But the title to the mainland and of such islands as it should claim was as in other cases expressly reserved to the United States by the act of admission, to be sold for the benefit of all the states.

(6) The title to unsurveyed and unclaimed islands in submerging waters is of the same character with that of the bed of the stream or other navigable waters.

(7) The ownership by the state of lands submerged by navigable waters is in all the states, and equally in them all, subject to such control by the United States as is necessary to the exercise of the power to regulate commerce. To this extent only is the complete title impaired.

(8) The United States has therefore in its several departments, legislative, executive, and judicial, recognized the right of the state in which such submerged lands and unclaimed islands are situated to make such disposition of them as it pleased.

(9) The state of Michigan, as have other states, has relinquished them to the riparian owner.

The leading case of Pollard's Lessee v. Hagan, 3 How. 212, 11 L. Ed. 565, presented nearly all of these questions, and the general principles there discussed and adjudged have ever since been accepted and applied. In that case the plaintiff sought to recover in ejectment lands which had been patented to him by the United States, and which at the date of the patent laid below high-water mark in the Mobile river at the city of Mobile. If the United States had any title, its grantee could recover upon it. And so the case presented the very questions which are presented upon this branch of the case before us. It was held that the plaintiff could not recover, because the United States had no title to convey. The whole subject was fully and ably discussed by Mr. Justice McKinley, in the opinion of the court. The subsequent decisions involving it are too numerous to be separately canvassed. It was examined afresh by Mr. Justice Gray in Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331. The doctrines of the case of Pollard's Lessee v. Hagan were confirmed on all the questions involved in the present case. The only criticism made was of so much of the opinion in the earlier case as implied that Congress had not the power while Alabama was a territory, and had not yet been admitted as a state, to dispose of the land below high-water mark. This was obiter in Pollard's Lessee v. Hagan, for the grant in that case was made after Alabama became a state. As we infer, this criticism was founded upon the theory that, as the United States held the title to the land during the territorial status, Congress had the power to disappoint the expectation by diverting it to another purpose, whatever might be thought of the propriety of its action. But no such question arises here. We pass

by the numerous cases which have followed the cases of Pollard's Lessee v. Hagan, and Shively v. Bowlby, until we come to the recent case of Whitaker v. McBride, 197 U. S. 513, 25 Sup. Ct. 530, 49 L. Ed. 857. A special reason for citing this case exists in the facts that it arose in Nebraska, where the local law in regard to the title to land between high-water mark and the thread of rivers is the same as that of Michigan, and the case involved the title to an island in the river between those lines. In the opinion of the court, delivered by Mr. Justice Brewer, the opinion of Mr. Justice Bradley in Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 35 L. Ed. 428, was cited as authority for the doctrine that "the grants of the government for lands bounded on streams and other waters, without any reservation or restriction in terms, are to be construed, as to their effect, according to the law of the state in which the lands lie." Then, as to the circumstance that the lands in suit were an unsurveyed island of some 20 or more acres, the learned justice pointed out that the omission to include the island in the general survey of that locality was evidence that it was not claimed by the government, and referred to the case of the Grand Rapids & Indiana Railroad Company v. Butler, 159 U. S. 87, 15 Sup. Ct. 991, 40 L. Ed. 85, which was also a case involving an island, for authority, said:

"Upon these surveys (of 1831 and 1837) the adjacent land and the islands (not the island of that suit) were sold and patented to private parties. In 1855 a parcel of ground in the river was, under instructions from the Surveyor General, surveyed and marked 'Island No. 5,' and for that island a patent was issued to the railroad company. We held that the patent to the riparian owner, issued before the date of the last survey, conveyed to him the title to the island."

The case of Grand Rapids & Indiana Railroad Company v. Butler was one in which the question of the title to the fundus or bed of navigable rivers in Michigan was directly involved, as well as that of islands in such rivers which remained derelict, so far as the claims of the United States were concerned, by their omission from the original surveys of the locality. There are numerous decisions of the Supreme Court of the United States in which dependent questions were involved. But there are none which run counter to the general doctrines we have stated. Perhaps the most serious difficulties have been encountered in cases which involved the circumstances, or the extent and manner, of the exercise of the power of Congress to regulate commerce. Of such was the case of Scranton v. Wheeler, which came before this court and again before the Supreme Court. 6 C. C. A. 585, 57 Fed. 80.; Id., 163 U. S. 703, 16 Sup. Ct. 1206, 41 L. Ed. 318.

In Michigan the state has never claimed such islands. Differing in this regard from some of the other states, that state has relinquished them to the adjacent proprietors. In the early case of La Plaisance Bay Harbor Co. v. City of Monroe, Walk. Ch. 155, Chancellor Manning held that the complainant, which had erected wharves, piers, and warehouses on the banks and in the waters of a bay which was a part of Lake Erie, under charter from the state, had no title to the bed of the lake on the front of the land occupied by it. In his opinion he linked in his statement of the rule the bed of the rivers in the state. But

that was obiter. The complainants were not the owners of any land on the banks of the River Raisin, the diversion of which river was the matter complained of. Whether the decision paid a due regard to the rights of the complainant as a riparian owner on the bay in the circumstances of that case is not now material. The case was authority for the contention that the riparian owner on the shore of the Great Lakes had no title to the bed of the adjacent waters. But in the case of Lorman v. Benson, 8 Mich. 18, 77 Am. Dec. 435, the question was presented to the Supreme Court of the state in regard to the riparian owners' title to the bed of the Detroit river. The action was for obstructing the plaintiff's right to get the ice on the river; and one of the questions reserved by the trial judge for the opinion of the Supreme Court was, "Have riparian proprietors on the Detroit river a right of property in the soil under the water, or in the ice, or the exclusive right of taking the same in front of the premises to the middle of the stream?" The answer of the court is thus stated in the headnote by the reporter, Cooley, afterwards a distinguished member of the court: "The common-law principle that the soil under such tideless public rivers is in the owner of the adjacent bank prevails in this state, and is applicable to the Detroit river." The case in Walker's Chancery Reports was cited in the briefs, but is not mentioned in the opinion. The former chancellor, Manning, had become a member of the Supreme Court and concurred in the opinion. This decision has been followed in the later cases decided by that court. Rice v. Ruddiman, 10 Mich. 125; Ryan v. Brown, 18 Mich. 196, 100 Am. Dec. 154; Bay City Gas Light Co. v. Industrial Works, 28 Mich. 182; Turner v. Holland, 65 Mich. 453, 33 N. W. 283; Grand Rapids v. Powers, 89 Mich. 94, 50 N. W. 661, 14 L. R. A. 498, 28 Am. St. Rep. 276. And later on the same rule has been recognized by the Supreme Court of Michigan in People v. Silberwood, 110 Mich. 103, 67 N. W. 1087, 32 L. R. A. 694, in regard to rivers. But in this later case the court drew a distinction between the land in the bed of rivers and that in the bed of the Great Lakes, and in regard to the latter reverted to the rule in La Plaisance Bay Harbor Co. v. City of Monroe, supra.

In behalf of the complainant it is contended that there is a difference between the land in the bed of the inland rivers of a state and those on its boundary, especially where the boundary is an international boundary; but no substantial ground for such a distinction has been suggested, nor can we find any. The Michigan rule has been applied indiscriminately to the inland waters of the state and those on its international border. Lorman v. Benson and Backus v. Detroit, 49 Mich. 110, 13 N. W. 380, 43 Am. Rep. 447 related to the Detroit river, and Ryan v. Brown related to the St. Mary's river.

The brief of counsel for the appellant discloses that upon a search in the early archives of the government it appears that the St. Mary's river was sometimes, indeed often, called a "strait," and it is likened by counsel to the Bosphorus and other like great connecting waters. Much industry is shown to have been given to this endeavor, and the object is to show that the St. Mary's river ought to be classed with the Great Lakes upon the distinction taken by the Supreme Court of Michigan in People v. Silberwood, 110 Mich. 103, 67 N. W. 1087, 32 L. R. A. 694,

between rivers and lakes. We have preferred to call the stream a river, not only because it seems the more proper appellation, but also because it has in recent times been so called. But it is a small matter to differ about. It is the same stream, by whatever name called, as was the subject of the decision in Ryan v. Brown, and it has a much smaller title to be called a strait than has the Detroit river, which has a much more even current and carries several times the volume of water, and which was the subject of decisions in two, at least, of the Michigan cases. The complainant says that it needs these islands in order to fulfill its treaty with Great Britain that the Great Lakes and connecting waters should forever remain free and open to the commerce of the contracting parties. But it is not stated that these islands are a menace to the commerce of Great Britain, or that that country has made any complaint or requirement about them. But aside from this, the United States did not, by the treaty, stipulate to make improvements in these waters. It stipulated that it would interpose no obstacle to their navigation in the commerce of the other country. It might have left them all in their natural state without any violation of the treaty. A great number of cases are cited in the brief of appellee from the states where the Michigan rule prevails, and where the river is on the border line between states, and there are a number of cases from such states in the reports of the Supreme Court of the United States where the rule has been applied without regard to the fact that the river was a state boundary.

Again, it is said that the United States needs these islands for its convenience in its commerce on the river. But for what particular purpose of that sort is not stated. No action has been taken by Congress for the construction of any works or the removal of any obstructions at this place which would be affected by the existence of the islands. If the Congress shall at any time require them in order to properly regulate commerce, which in view of their location would seem a rather remote probability, the defendant will not be ousted of its title, but it will become subject to an easement for a public use which may more or less impair its value. But that was a liability to which it was exposed when it acquired the title.

Thus far we have considered this question on its strictly legal aspects. The elements of equity in the attack on the Chandler patent are scant. His application was made May 17, 1881. The Land Office had it under advisement until December 15, 1883, when it granted the patent. It does not appear that the particular objection now made was presented to the Commissioner. But the matter of the reservations in the locality, including the land applied for, must have been under his observation, and the issuance of the patent is at least prima facie evidence that no valid objection to its issuance was deemed to exist. The Land Office then had, and has continued to have in its possession, the same data for raising the question of the validity of the patent that are made the basis for the contention now made. Upon the faith of the grant, the patentee and his grantee have made permanent improvements upon the land costing from $135,000 to $150,000. Following the ancient common-law maxim, "nullum tempus occurrit regi," it has been settled as the rule here that the United States is not affected in respect to its