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title, but that nevertheless, the soil between high and low-water mark of “Dragon” river was not thereby granted. The acknowledged Indian proprietors of Middletown, in Connecticut, granted by deed, in 1762, a tract of land, within certain described limits. It was held to be questionable whether a portion of the river Connecticut, and of that part of it which is an arm of the sea, was included within the boundaries mentioned in the Indian deed ; but if it was included, the soil of the river was not conveyed.
The next question is, whether the new states of the Union, or those which have been admitted since the revolution, stand upon the same footing as the original states; or whether the sovereign right of property in the tide waters within the jurisdictional limits of a new state, is transferred to the state government, or remains in the general government. The question was raised in the City of Mobile v. Eslava,' which came up to the supreme court of the United States from a writ of error to the supreme court of the state of Alabama, but the case went off in the first mentioned court upon another point. The supreme court of Alabama did not give a construction of the act of Congress, of 1824, under wbich the plaintiff claimed; but considered the
'East Haven v. Hemingway, 7 Conn. R. 186. ? Middletown v. Brace, 8 Conn. R. 222. • City of Mobile v. Eslava, 16 Peters (U. S.) R. 247.
respective rights and powers of the federal and state governments arising under the federal constitution, and the compact entered into on the admission of the state of Alabama into the Union. They considered the power of the Spanish monarch over the soil and navigable waters when the territory was under his dominion; and examined the doctrine of the common law as applicable to the subject; and by a course of reasoning thus directed, they decided, that the act of Congress, of 1824, was void, as Congress had no power to grant the property in dispute. They say
-“ The original states possessing this interest in the waters within their jurisdictional limits, the new states cannot stand upon an equal footing with them, as members of the Union, if the United States still retain over their navigable waters any other right than is necessary to the exercise of its constitutional powers; and they declared their opinion to be: First, That the navigable waters within the state of Alabama have been dedicated to the use of the citizens of the United States, so that it is not competent for Congress to grant a right of property in the same. Second, The · navigable waters extend, not only to low water, but embrace all the soil that is within the limits of high-water mark. Third, By the acts of Congress, regulating the survey and disposal of the public lands, the federal government has renounced the title to the navigable waters, and the soil covered by them.
Fourth, The original states, in virtue of their royal charters, are entitled to the navigable waters within their territory, while the public are only entitled to an easement, to be provided for under that provision of the constitution which authorizes Congress to reg. ulate commerce, &c. Alabama is admitted into the Union on an equal footing with the original states; and, of consequence, is entitled to the right of property in the tide waters within its limits. Fifth, By the admission of Alabama into the Union, without a reservation of the right of property in the navigable waters, the state succeeded to all the right of the United States, except so far as it was reserved by the federal constitution in some of its grants, or its retention was necessary to enable Congress to exercise its delegated powers.
Though the case went off in the supreme court of the United States upon another point, it was admitted by Mr. J. Catron, in the opinion he delivered, as certain, that the original states, acquired by the revolution the rights of soil and of sovereignty. But he added — “If it be true, that Alabama was admitted on an equal footing in regard to the rights of soil with the original states, she can hold the high lands with the land covered by navigable waters; and so can nine other States equally hold, to the utter destruction of all claim to the lands heretofore indisputably recognized as belonging to the United States, as being a common fund of the Union.” The clause inserted in the constitution of Alabama, said the learned judge, reserving the rights of property to the United States, as a compact with them, embraces lands under water as emphatically as those not covered by water. But, said he, if no stipulation had been made, saving the interest of the United States, they would have just as much right to their private property as an individual had to his. She held, in fact, as a cor
The question was raised in two other cases in the supreme court of the United States, from the state
poration holds, an individual title. Nor did Congress cede their claim to the public domain by stipulating, that the navigable rivers should be highways. That such waters are common for the purposes of navigation and commerce, in the widest sense, is free from doubt; and that Alabama has jurisdiction and power of them, the same as the original states, is equally clear. Yet it does not follow, that the fee of the shores, banks, and soil under water, was in the state of Alabama. The United States, as owner, could do no act to obstruct the free public use of the waters, more than a private owner of the soil, under water, could obstruct the navigation. The learned judge compared the case to that of an individual owner in fee of the bottom of a navigable river, who can cultivate and take out the shell-fish, or the minerals from the bed ; nor, said he, could it be doubted the United States may pursue beds of silver, tin, lead, or copper, under the bottom of a bay, the river Mississippi, or a great lake ; although they could not impede in any degree their navigation. So might the lessees, or assignees of the United States do the same. The importance of the question in this case appears from the following extract we make from the opinion of Mr. J. Catron.—“The Delta of Mississippi, the greater part of East Florida, much of Alabama, and also of the state of Mississippi, have lands covered slightly with the flow of high water. Those lands are subject to be redeemed by embankments; they amount to some millions of acres; many of them are of the best rice, indigo, and even sugar and cotton lands on this continent. Immense bodies of land are flowed by the great lakes, and subject to be redeemed ; and yet more, many parts of the shores of the great river Mississippi, from the mouth of the Missouri, to the ocean, are annually flowed by a tide of its own; and the lands are redeemed by levees from the water until the vessels on the surface of the river float above redeemed plantations that have been submerged for months every year; and that was submerged in 1819, when it is supposed the United States, by implication, ceded all the flowed lands within her limits to Alabama. Embankments to exclude water are almost as common on the Mississippi river, and in the delta of country embraced by its mouths, as are fences in other parts of the country to protect the crops from animals; and it is not in the
of Alabama, but they also went off upon other points. At length, however, it was expressly determined by the supreme court of the United States, at the January term, 1845,- that the power of Congress over navigation, and its power to make all needful rules and regulations for the sale and disposition of the public lands, conferred no power to grant land in Alabama which was below usual high-water mark, at the time Alabama was admitted into the Union. That the shores of navigable waters, and the soil under them, were not granted by the constitution to the United States, but were reserved to the states respectively; and that the new states have the same rights, sovereignty and jurisdiction over the subject as the original states. Upon the admission of Alabama into the Union, the right of eminent domain, which had been temporarily held by the United States, passed to the state. The stipulation con
reach of probability, or of belief, that Congress, by an an oversight, surrendered all flowed lands to the states in which they lie; or, that it was intended to cede to the new states the right to prohibit the construction of forts and defences, by the United States, on the public lands below high-water mark. I imagine it never occurred to any one, that a purchase of the soil from the state of Louisiana was necessary before works within the flow of tide-water could be constructed for the defence of the mouths of the Mississippi river. The idea is new; and the consequence leading to such a consequence, startling."
City of Mobile v. Hallett, 16 Peters (U. S.) R. 261 ; Pollard's Lessee v. Files, 2 How. (U.S.) R. 591.
? Pollard's Lessee v. Hagan, 3 How. (U. S.) R. 212. See App.