Banks v. Ogden

• Decision Date: 01 December 1864
• Citation: 2 Wall. 57,69 U.S. 57,17 L.Ed. 818
• Parties: BANKS v. OGDEN
• Court: U.S. Supreme Court

69 U.S. 57

17 L.Ed. 818

2 Wall. 57

BANKS v. OGDEN.

December Term, 1864

THIS was an ejectment brought to December Term, 1859, in the Circuit Court for the Northern District of Illinois, to recover a lot of ground, A A, formed by accretion on the western shore of Lake Michigan. The case was thus:

Kinzie, being owner in fee of a fractional section of land bounded on the east by the said lake, and lying immediately north of the original town of Chicago, made a subdivision of it in 1833, which he called Kinzie's addition, and deposited a plat of it in the office of the county recorder, where it was recorded in February, 1834: though not in accordance with certain statutes of Illinois, which, it was contended in the argument, give an effect to plats properly made, acknowledged, and recorded, that changes the rule of the common law regarding the streets on which the lots are sold.

The north and south street of the subdivision nearest the lake was called Sand Street; the east and west street nearest the north line of the fraction was named Superior Street. The waters of the lake limited Sand Street on the north by an oblique line extending from a point on its eastern side, about a hundred feet below, to a point on its western side about a hundred feet above Superior Street; as indicated on the diagram opposite. The northeastern block of the subdivision, numbered 54, was bounded, on its eastern side, in part by Sand Street and in part by the lake. Sand Street, therefore, terminated in a small triangular piece of land b, c, d, between the lake and Block 54. This triangle was less than thirty-three feet wide at its lower or southern end, and diminished to a point at its northern extremity. Upon this triangle, distinctly shown by the plat, new land was formed in 1844-'5—the date must be observed—by accretion; and extended eastwardly, in the direction of the dotted lines, more than two hundred feet. The question was, to whom did this new land belong?

In 1842, Kinzie had been declared a bankrupt under the bankrupt act of 1841, and his whole property passed of course by operation of law to his assignee.

Under this title the assignee claimed, subject to public use as a street, the eastern half of the triangle, and the newly-formed land as accretion. Acting upon this claim he sold, under petition and order of the District Court, made in 1857, part of the accretion, being the land in controversy, to one Sutherland, who conveyed to Banks, plaintiff in the ejectment. Of course this newly-formed land had not been included in the assignee's inventory of the bankrupt's effects.

On the other hand, Ogden, the defendant, deriving title by regular conveyance in 1833 from Kinzie, to that part of Block 54 to which the triangle was adjacent, conceived that the fee of the whole triangle, subject to the public use, passed to him with the land bounded by it. His theory was, that Sand Street, which was sixty-six feet wide below its meeting with the lake, continued sixty-six feet wide to its northern termination, and that the whole triangle being everywhere less than thirty-three feet wide, was west of the middle line of the street, and therefore belonged to him as owner of the adjoining land. As the legal result of these propositions he claimed the whole accretion, as formed upon land of which he held the fee.

It is necessary here to state that the bankrupt act, under which Banks, the plaintiff, claimed, enacts, by its eighth section, that 'no suit at law, or in equity, shall, in any case, be maintained by or against the assignee of the bankrupt, touching any property or rights of property of the bankrupt transferable to or vested in him, in any court whatever, unless the same be brought within two years of the declaration of bankruptcy, or after the cause of suit shall have first accrued.' At what date Ogden, the defendant, went into possession, did not appear. The bankrupt act (§ 10) also enacts that all proceedings in bankruptcy shall, if practicable, be brought to a close by the court within two years after a decree.

Upon this case the court below instructed the jury that the law was for the defendant; and, judgment having been so entered after verdict, the case was now before the court on error.

Mr. Fuller, for Ogden, defendant below and in error.

1. The first question is, whether or not Kinzie had any title remaining in him to any land east of Block 54, after making and recording the plat of Kinzie's addition, and the conveyance of 1833?

By making and recording the plat, Kinzie dedicated all the land which there then was in front of the block; and, so far as it sufficed to make a street, to public use, and as the land increased, by accretion or otherwise, the public was entitled to extend the street in a line with that part of it south of this block. 'Where a city is laid out with streets running to the water,' says a California case,¹ 'such streets should be held to continue on to the high water, if the city front is afterwards filled in, or the space enlarged by accretion or otherwise. Any other doctrine would be destructive of the interests of commercial communities.' The curved line on Kinzie's plat, showing the course of the lake opposite to the block, was not meant to declare its boundary in all time on that side. It meant simply to show that along that line was the then course of the water; that there was where the lake came, and to prevent purchasers from supposing that the street held good for its original width of sixty-six feet below or southward. If it was washed away after that it was the purchaser's loss. If it was extended by accretion, his gain. Had a street of full width been there, it would have carried the grant to the middle; but, before the middle was reached, the granted premises touched the waters of the lake; and the purchaser, like Kinzie himself had been, became riparian owner, and entitled to the privileges of such ownership,—one of which is that above stated, of having the whole road.

Independently of this he may rely on the common law principle of ad medium filum, or to the dividing line. The land in front of Block 54, at its widest part, did not suffice to make one-half the width of the street when the grant of the lot was made; and the conveyance of the block invested the purchaser with the fee, not only of the block itself, but of all the land to the water's edge. 'As between grantor and grantee,' says a recent and leading case in New York,² 'the conveyance of a lot bounded upon a street in a city, carries the land to the centre of the street. There is no difference in this respect between the streets of a city and country highways.' This case overrules all the preceding ones in New York which had been supposed to establish a different rule. There is, indeed, no doubt—notwithstanding several dicta and some decisions to the contrary—that the rule, in the broad and imperative way in which it is above asserted—is now rapidly becoming—has in fact become the rule of our courts. They are disposed to regard the matter not as one of intention or of construction at all, but as one of policy; and as in Paul v. Carver,³ to carry the grant to the middle line, in spite of words limiting it in the clearest way to the edge.⁴ And this is reason; for, whether the new ground arise from the abandonment of a former street, or from the creation of new soil by accretion, there is no reason for giving it to the old owner. In neither case did he ever expect to have it. In the first he has been paid for it in the price of the adjoining lots made of higher price by being on the street; in the latter he has parted, as he supposed, with every vestige of soil, and should not be allowed to block up and intercept light and view—in this case a view upon a noble lake, itself a matter of value to any residency—by building upon soil so accidentally and unexpectedly obtained, and so to injure persons who supposed, as he did, that they had acquired ownership to the water's edge. The purchaser is therefore a riparian owner, and is entitled, as such proprietor, to the accretions which have been formed in front of the block. 'The question,' says this court, in one case,⁵ 'is well settled at common law, that the person whose land is bounded by a stream of water, which changes its course gradually, by alluvial formations, shall still hold by the same boundary, including the accumulated soil. No other rule can be applied on just principles. Every proprietor whose land is thus bounded is subject to loss, by the same means which may add to his territory; and as he is without remedy for his loss in this way, he cannot be held accountable for his gain.' This rule was also tacitly recognized in Jones et al. v. Johnston;⁶ Johnston v. Jones et al.,⁷ here as applicable to accretions formed on Lake Michigan, and at almost the precise place where the accretions in question have been formed. The same rule has elsewhere been held applicable to the Detroit River.⁸ To the same effect is Seaman v. Smith.⁹

That this right to the accretion is not divested by the intervention of a public highway between the riparian estate and the water-course, was decided by the Supreme Court of Louisiana; a region where, from the nature of their soil, this whole subject of accretion and diminution is specially studied and most wisely settled in the well-considered case of Morgan v. Livingston.¹⁰ 'If there be a public road between a field and the river,' says that case, 'still that which is made by alluvion accrues to the field.' This case was decided in 1819. In 1841 the same question came before the same court in the case of Municipality v. The Orleans Cotton Press;¹¹ and the court cited the language used in the former case, with approval, as a correct statement of the law on this subject. It added further, 'that the intervention of a public road between the front tract and the river does not prevent accretion by alluvion, because the road and the levee...