Jones v. Soulard , 65 U.S. 41 ( 1860 )

Mr. Justice CATRON

delivered the opinion of the court.

Soulard sued Jones to recover the northern part of a United States survey of land laid'off for the St. Louis schools. The part sued for fronts the Mississippi, and includes a sand-bar, formerly covered with water when the channel of the river was filled to a navigable stage. The land is included in the survey approved June 15th, 1843, designating the school lands; and the controversy would be governed beyond dispute by the principles declared in the case of Kissell v. St. Louis Public Schools, (18 How.,) had this been fast land in 1812, when the grant to the schools was made. But it is insisted that the title to this accretion within the Mississippi river did not pass by the act of 1812, and remained in the United States till the State of Missouri became one of the States of the Union, in 1820, when the title vested in the State as a sovereign right to land lying below ordinary high-water mark. And furthermore, that if the State did not take by force of her sovereign right, she acquired a good title to the land known as Duncan’s island by the act of Congress to reclaim swamp lands. These claims the State conveyed by a statute to the city of St. Louis, and that corporation conveyed them to Jones, the plaintiff in error.

Soulard claims under the corporation of the St. Louis schools. The school survey No. 404 contains 78 9G-100ths acres, including the land in controversy.

The town of St. Louis was incorporated in 1809 by the Common. Pleas Court of St. Louis county, in conformity to an act of the Territorial Legislature passed in 1808, and the only contested question in the. cause is, whether the eastern lino of the corporation extends to the middle thread of the Mississippi river, .or is limited to the bank of the channel. The calls for boundary in the charter are, “beginning at Antoine Roy’s mill on the bank of the Mississippi; thence running sixty arpens west; thence south on said line of sixty arpons in the rear, until the same comes to the Barrieu Donoyer; thence due south until it comes to the Sugar-loaf; thence due east to the Mississippi; from thence by the Mississippi, to the place first mentioned.”

The expression used in designating boundary, on the closing line in the charter is as apt to confer riparian rights on the proprietor of the tract of seventy-nine acres as the call could well he, unless the last'call had been for the middlemf the river.

Many authorities resting on adjudged cases have been adduced to us in the printed argument presented by the counsel of the defendant in error, to show that from the days of Sir Matthew Hale to the present time all grants of land bounded by fresh-water rivers, where the expressions designating the water-line are general, confer the proprietorship on the grantee to the middle thread of the stream, and.entitle him to the accretions.

We think this as a general rule too well settled, as part of the American and English law of real property, to be open to discussion; and the inquiry here is, whether the rule, applies to so great and public a water-course as the Mississippi is, at the city of St. Louis? The land grant to which the accretion attached has nothing peculiar in it to form'an exemption from the rule; it is an irregular piece of land, of seventy-nine acres, found vacant by the surveyor general, and surveyed by him as a-school lot, in conformity to the act of 1812.

The doctrine, that on rivers where the tide ebbs and flows, grants of laud are bounded by ordinary high-water mark, has no application in this case; nor does the size of the river alter the rule. To hold that it did, would be a dangerous tampering with riparian rights, involving litigation concerning the size of rivers as matter of fact, rather than proceeding on established principles of law.

1. We are of the opinion that the city charter of St. Louis, of 1809, extends to the eastern boundary of the.State of Missouri, in' the middle of the river Mississippi. Dovaston v. Payne, 2 Smith’s Leading Cases, 225.

2. That Duncan’s entry set up in defence in the court below is void, as this court held in the case of Kissell v. the St. Louis Schools, 18 How.

3. That the school corporation held the land in dispute, with power to sell and convey the same in fee to the defendant in error, Soulard, in execution of their trust."

It is ordered that the-judgment of the Circuit Court be affirmed.