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of acres are thus held. The right has been uniformly asserted by the United States. It was so in the act of 20th April, 1818, for the sale of Fort Charlotte lands, which gave rise to the suits in Peters and Porter. 9 Porter; 16 Peters, 250 ; 6 Laws U. S. 346.
The act of May 26th, 1824, expressly grants land of this description, and the act of July, 1836, does the same.
All the title under these acts are now in controversy. It is said that the United States have little or no interest in this ques. tion; but their interest is of incalculable value. See Darley's Louisiana, as to the amount of overflowed lands.
The right has been judiciously recognised. In 16 Peters, 408, United States v. Fitzgerald, where there was a claim under the pre-emption laws. In the five different cases in which this very grant has been disputed. Pollard v. Kibbe, 14 Peters, 355, where the title of both parties was presented. So far as the plaintiff's title appears, it was identical with that now exhibited, with the only addition of the Spanish origin, which had been rejected by the board of commissioners. The defendant's title the
All the objections now urged to the plaintiff's title were then apparent on the record. Mobile v. Esclava, 16 Peters, 234; 9 Porter; Mobile v. Hallett, 16 Peters, 261; Mobile v. Emanuel, 1 Howard, 95; Pollard v. Files, 2 Howard, 592.
same as now.
Mr. Justice McKinley delivered the opinion of the Court.
This case comes before this Court upon a writ of error to the Supreme Court of Alabama.
An action of ejectment was brought by the plaintiffs against the defendants, in the Circuit Court of Mobile County, in said State ; and upon the trial, to support their action, “ the plaintiffs read in evidence a patent from the United States for the premises in question, and an act of Congress passed the 6th day of July, 1836, confirming to them the premises in the patent mentioned, together with an act of Congress passed the 20th of May, 1824.
The premises in question were admitted by the defendants to be comprehended within the patent; and there was likewise an admission by both parties that the land lay between Church street and North Boundary street, in the city of Mobile ; and there the plaintiffs rested their case.”
“The defendants, to maintain the issue on their part, introduced a witness to prove that the premises in question, between the years 1819 and 1823, were covered by water of the Mobile river at common high tide;" to which evidence the plaintiffs by their counsel objected ; but the Court overruled the objection, and permitted the evidence to go to the jury. “ It was also in proof, on the part of the defendant, that at the date of the Spanish grant to Panton, Leslie & Co., under which they claim, the waters of the Mobile bay, at high tide, flowed over what is now Water street, and over about one-third of the lot west of Water street, conveyed by the Spanish grant to Panton, Leslie & Co.; and that the waters continued to overflow Water street, and the premises sued for, during all the time up to 1822 or 1823; to all which admissions of evidence, on part of the defendants, the plaintiffs excepted.” “The Court charged the jury, that if they believed the premises sued for were below usual high water-mark, at the time Alabama was admitted into the Union, then the act of Congress, and the patent in pursuance thereof, could give the plaintiffs no title, whether the waters had receded by the labor of man only, or by alluvion ; to which the plaintiff's excepted. Whereupon a verdict and judgment were rendered in favor of the defendants, and which judgment was afterwards affirmed by the Supreme Court of the State.”
This question has been heretofore raised, before this Court, in cases from the same State, but they went off upon other points. As now presented, it is the only question necessary to the decision of the case before us, and must, therefore, be decided. And we now enter into its examination with a just sense of its great importance to all the States of the Union, and particularly to the new ones. Although this is the first time we have been called
upon to draw the line that separates the sovereignty and jurisdiction of the government of the Union, and the State governments, over the subject in controversy, many of the principles which enter into and form the elements of the question have been settled by previous, well considered, decisions of this Court, to which we shall have occasion to refer in the course of this investigation.
The counsel for the plaintiffs insisted, in argument, that the United States derived title to that part of Alabama, in which the land in controversy lies, from the King of Spain ; and that they succeeded to all his rights, powers, and jurisdiction, over the territory ceded, and therefore hold the land and soil, under navigable waters, according to the laws and usages of Spain; and by those laws and usages the rights of a subject to land derived from the crown could not extend beyond high water-mark, on navigable waters, without an express grant; and that all alluvion belonged to the crown, and might be granted by this king, together with all land between high water and the channel of such navigable waters; and by the compact between the United States and Alabama, on her admission into the Union, it was agreed, that the people of Alabama for ever disclaimed all right or title to the waste or unappropriated lands lying within the State, and that the same should remain at the sole disposal of the United States; and that all the navigable waters within the State should for ever remain public highways, and free to the citizens of that State and the United States, without any tax, duty, or impost, or toll therefor, imposed by that State. That by these articles of the compact, the land under the navigable waters, and the public domain above high water, were alike reserved to the United States, and alike subject to be sold by them; and to give any other construction to these compacts, would be to yield up to Alabama, and the other new States, all the public lands within their limits.
We think a proper examination of this subject will show, that the United States never held any municipal sovereignty, jurisdic. tion, or right of soil in and to the territory, of which Alabama or any of the new States were formed; except for temporary purposes, and to execute the trusts created by the acts of the Virgi. nia and Georgia legislatures, and the deeds of cession executed by them to the United States, and the trust created by the treaty with the French republic, of the 30th of April, 1803, ceding Louisiana.
All that part of Alabama which lies between the thirty-first and thirty-fifth degree of north latitude, was ceded by the State of Georgia to the United States, by deed bearing date the 24th day of April, 1802, which is substantially, in all its principles and stipulations, like the deed of cession executed by Virginia to the United States, on the 1st day of March, 1784, by which she ceded to the United States the territory northwest of the river Ohio. Both of these deeds of cession stipulated, that all the lands within the territory ceded, and not reserved or appropriated to other purposes, should be considered as a common fund for the use and benefit of all the United States, to be faithfully and bonâ fide disposed of for that purpose, and for no other use or purpose whatever. And the statute passed by Virginia, author. izing her delegates to execute this deed, and which is recited in it, authorizes them, in behalf of the State, by a proper deed to convey to the United States, for the benefit of said States, all the right, title, and claim, as well of soil as jurisdiction," upon con. dition that the territory so ceded shall be laid out and formed into States, containing a suitable extent of territory, not less than 100, nor more than 150 miles square, or as near thereto as circumstances will admit; and that the States so formed shall be republican States, and admitted members of the federal Union, having the same rights of sovereignty, freedom, and independence, as the other States." And the delegates conclude the deed thus: “ Now know ye, that we, the said Thomas Jefferson, Samuel Hardy, Arthur Lee, and James Monroe, by virtue of the power and authority committed to us by the act of the said general assembly of Virginia before recited, and in the name and for and on behalf of the said commonwealth, do by these presents convey, transfer, assign, and make over unto the United States in Con. gress assembled, for the benefit of said States, Virginia inclusive, all right, title, and claim, as well of soil as of jurisdiction, which the said commonwealth hath to the territory or tract of country within the limits of the Virginia charter, situate, lying, and being to the northwest of the river Ohio, to and for the uses and purposes, and on the conditions of the said recited act.”
And in the deed of cession by Georgia it is expressly stipulated, “That the territory thus ceded shall form a State, and be admitted as such into the Union as soon as it shall contain sixty thousand free inhabitants, or at an earlier period if Congress shall think it expedient, on the same conditions and restrictions, with the same privileges, and in the same manner, as is provided in the ordinance of Congress of the 13th day of July, 1787, for the government of the northwestern territory of the United States, which ordinance shall in all its parts extend to the territory contained in the present act of cession, that article only excepted which forbids slavery.” The manner in which the new States were to be admitted into the Union, according to the ordinance of 1787, as expressed therein, is as follows: "And whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted by its delegates into the Congress of the United States, on an equal footing with the original States in all respects whatever.” Thus it appears that the stipulations, , trusts, and conditions, are substantially the same in both of these deeds of cession; and the acts of Congress, and of the State leg. islatures in relation thereto, are founded in the same reasons of policy and interest, with this exception, however — the cession made by Virginia was before the adoption of the Constitution of the United States, and that of Georgia afterwards. Taking the legislative acts of the United States, and the States of Virginia and Georgia, and their deeds of cession to the United States, and giving to each, separately, and to all jointly, a fair interpretation, we must come to the conclusion that it was the intention of the parties to invest the United States with the eminent domain of