Packer v. Bird

• Decision Date: 19 January 1891
• Citation: 11 S.Ct. 210,34 L.Ed. 819,137 U.S. 661
• Parties: PACKER v. BIRD et al
• Court: U.S. Supreme Court

137 U.S. 661

11 S.Ct. 210

34 L.Ed. 819

PACKER v. BIRD et al.

January 19, 1891.

This is an action for the possession of an island, embracing about 80 acres of land, in the river Sacramento, within the county of Colusa, in the state of California. The plaintiff alleges ownership of the premises in 1867, and their continued ownership afterwards, the entry of the defendants thereon in January, 1883, without right or title, and their continued unlawful possession thereof ever since, to his damage of $200. The answer of the defendants is a general denial of the allegations of the complaint. The issues were tried by the court without the intervention of a jury, by stipulation of the parties. The court found for the defendants, and directed judgment in their favor. A motion for a new trial was denied, and on appeal to the supreme court of the state the judgment and the order refusing a new trial were both affirmed. To review that judgment the case is brought to this court. The river Sacrament to is navigable from its mouth or outlet to a point above the premiss in controversy. Indeed it is one of the great rivers of the state, and is navigable over 250 miles. The muniments of title introduced by the plaintiff consisted of a patent of the United States issued in December, 1857, to Francis Larkin and others, for a tract of land in the county of Colusa known as the 'Rancho of Larkin's Children;' a decree partitioning the land among the patentees, and intermediate conveyances from one of them of the plaintiff. In June, 1857, a survey of the land covered by the patent was made by the proper officers of the United States pursuant to a decree of the district court of the United States for the northern district of California, rendered in January, 1856, confirming an imperfect Mexican grant of the tract, and ascertaining and determining its location. That decree describes the land as follows: 'Commencing at the northerly boundary line of said rancho, at a point on the Sacramento river, just two leagues northerly from the rancheria called 'Lojot,' and running southerly on the margin of said river to a point which is five leagues south of the place of beginning; thence west two leagues; thence north in a parallel line with said river, and two leagues therefrom, five leagues; and thence east two leagues to the place of beginning, and so as to contain the area of ten square leagues within said lines.' The survey, which is incorporated in the patent, describes the eastern boundary line of the tract as commencing at a certain oak post 'on the right bank of the Sacramento river,' and thence 'traversing the right bank of the Sacramento river down stream' certain courses and distances. Among other things, and court found that from 1853 to 1858, and both prior and subsequent thereto, the waters of the Sacramento river divided into two streams at the upper or northerly end of the island in controversy; that one of the streams flowed through a channel extending around the easterly side of the island, and the other through a channel extending around the westerly side; that during this period both of the channels were plain and well defined, and had high banks, and the waters of the river flowed, and still continue to flow, through both of them at all seasons of the year; that the two channels and streams of water reunited at the lower or southerly end of the island, and that each of the channels and streams constituted a part of the Sacramento river, which was navigable, 'both in fact and by statute;' that, during the greater portion of each year, the channel on the westerly side of the land in dispute was navigable, and was during the perid m entioned actually navigated; but that the usual and most direct route for steamers was along the channel running east of the island.

W. C. Beecher, for plaintiff in error.

[Argument of Counsel from pages 664-666 intentionally omitted]

FIELD, J.

The question presented is whether the patent of the United States, describing the eastern boundary of the land as commencing at a point on the river, which was on the right and west bank, and running southerly on its margin, embraces the island within it, or whether, notwithstanding the terms of apparent limitation of the eastern boundary to the margin of the river, the patent carries the title of the plaintiff holding under it to the middle of the stream. The contention of the plaintiff is that the land granted and patented, being bounded on the river, extends to the middle of the stream, and thus includes the island. It does not appear in the record that the waters of the river at the point where the island is situated are affected by the tides; but it is assumed that such is not the case. The contention of the plaintiff proceeds upon that assumption. It is undoubtedly the rule of the common law that the title of owners of land bordering on rivers above the ebb and flow of the tide extends to the middle of the stream, but that, where the waters of the river are affected by the tides, the title of such owners is limited to ordinary high-water mark. The title to land below that mark in such cases is vested in England in the crown, and in this country in the state within whose boundaries the waters lie, private ownership of the soils under them being deemed inconsistent with the interest of the public at large in their use for purposes of commerce. In England, this limitation of the right of the riparian owner is confined to such navigable rivers as are affected by the tides, because there the ebb and flow of the tide constitute the usual test of the navigability of the streams. No rivers there, at least none of any considerable extent, are navigable in fact, which are not subject to the tides. In this country the situation is wholly different. Some of our rivers are navigable for many hundreds of miles above the limits of tidewater, and by vessels larger than any which sailed on the seas when the common-lawrule rule was established. A different test must, therefore, be sought to determine the navigability of our rivers, with the consequent rights both to the public and the riparian owner, and such test is found in their navigable capacity. Those rivers are regarded as public navigable rivers in law which are navigable in fact. And, as said in the case of the The Daniel Ball, 10 Wall. 557, 563: 'They are navigable in fact when they are used, or are susceptible of being 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.' The same reasons, therefore, exist in this country for the exclusion of the right to private ownership over the soil under navigable waters, when they are susceptible of being used as highways of commerce in the ordinary modes of trade and travel on water, as when their navigability is determined by the tidal test. It is, indeed, the susceptibility to use as highways of commerce which gives sanction to the public right of control over navigation upon them, and consequently to the exclusion of private ownership, either of the waters or the soils under them. The commonlaw doctrine on this subject prevailing in England is held in some of the states, but in a large number has been considered as inapplicable to the navigable waters of the country, or even...