County of St Clair v. Lovingston

• Decision Date: 01 October 1874
• Citation: 90 U.S. 46,23 Wall. 46,23 L.Ed. 59
• Parties: COUNTY OF ST. CLAIR v. LOVINGSTON
• Court: U.S. Supreme Court

90 U.S. 46

23 L.Ed. 59

23 Wall. 46

COUNTY OF ST. CLAIR v. LOVINGSTON.

October Term, 1874

ERROR to the Supreme Court of Illinois.

The county of St. Clair, Illinois, brought ejectment against Lovingston, for a piece of land within its own boundaries, situated on the east bank of the river Mississippi (as its east bank now runs), opposite to St. Louis. The land was confessedly 'made land;' that is to say, it was land formed by accretion or alluvion, in the general sense of that word; though whether it was land made by accretion or alluvion in the technical or legal sense of the word was a point in dispute between the parties in the case. The bank of the river had confessedly, in some way, been greatly changed, and, in this part, added to. The tract in dispute is indicated on the diagram upon the next page, by the deeply shaded or most dark part of it; the part at the bottom of the diagram and on the left hand side of it.

The case was thus:

Before the year 1815, and in pursuance of an early formed intention by the government, to give a piece of land to soldiers in the old French settlements in Illinois, a survey was made in the public lands for one Nicholas Jarrot, of one hundred acres, which was either on or near to the Mississippi River, as it then ran; though whether, in all its parts, on the river or only beginning on its bank and leaving a strip or pieces of land between the tract and the river—edges more or less ragged—was one point in the case.

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The field-notes and a plot of the tract, as given in proof, were thus:

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'Beginning on the bank of the Mississippi River, opposite St. Louis, from which the lower window of the United States storehouse in St. Louis bears N. 70 3/4 W.; thence S. 5 W. 160 poles to a point in the river from which a sycamore 20 inches diameter bears S. 85 E. 250 links; thence S. 85 E. 130 poles (at 30 poles a slash) to a point; thence N. 15 W. 170 poles to a forked elm on the bank of Cahokia Creek; thence N. 85 W. 70 poles to the beginning.'

At the time of this survey the west line of the tract, if not in all its course on the river, was confessedly in all its course near to the river; the general course of the river-bank in 1814, just before the survey, being indicated on the Diagram No. 1 by the words 'River-bank in 1814;' and the tract, the field-notes of whose survey are above given, being marked on that diagram as 'No. 579, N. Jarrot.'

To the north of this tract of one hundred acres to Jarrot were two other tracts, each of one hundred acres. They are numbered on the Diagram No. 1, the one 624 and the other 766, and their general position is thus shown. Jarrot, in virtue of a transfer from some other Franch settler, claimed also this latter tract, No. 766.

At a later date, that is to say in 1815, a certain Pierre Coudaire got a survey which covered the whole of the three abovementioned tracts, and some irregular edges on the east between them and the Cahokia Creek, as also a small strip bending round and going to the south of the southernmost of the three tracts, or tract No. 579. What this survey embraced on the west that is to say, on the river side—not embraced by the surveys of the others, or, more especially, and so far as that extent of line was concerned, not embraced by the west line of tract No. 579—and whether it embraced anything at all—in other words, whether it brought the title any more upon or to the river than the old surveys—was one of the questions of the case. The field-notes of Coudaire's survey, which a drawing, Diagram No. 3, thus illustrates, called for a post in the northwesterly line of survey

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636 as the point of beginning; thence south 38°50' west with said line 17 poles to a post; thence south 51°10' east with another line of said survey 134 poles, to a post on the west side of Cahokia Creek; 'thence down the said creek with its different courses;' thence by courses and distances described to a post. The field-notes then continued:

'Thence 85° W. 174 poles to a post on the bank of the Mississippi River, from which¹—thence N. 5° E., up the Mississippi River and binding therewith (passing the southwesterly corner of Nicholas Jarrot's survey No. 579, claim No. 99, at 6 poles) 551 poles and 10 links to a post, northwesterly corner of Nicholas Jarrot's survey, No. 766, claim No. 100, from which a sycamore 36 inches diameter bears S. 21° W. 29 links; thence S. 85° E. with the upper line of the last-mentioned survey 88 poles to the beginning.'

The right of Jarrot was confirmed at an earlier date than that of Coudaire. Coudaire's survey bore the number 786.

Several old maps were introduced which seemed to show plainly enough that at the time when the surveys were made the river-bank, in this part of it, ran in what might fairly be called a straight line. Oral testimony in the record proved also that it did so.

We have already said that after the surveys were made the east bank of the river greatly advanced. But what caused this change in position was not quite obvious.

About the time when the new land began perceptibly to form, certain coal-dykes for the accommodation of the public were built above the point where the land in controversy was. The United States also made some improvements to throw the channel of the river more towards the city of St. Louis, that is to say, away from the side where these tracts were, and the city itself put certain large rocks on one edge of the river to preserve its own harbor. How far, exclusively of natural causes, all this had formed the new land was not clear. The evidence showed, however, that the defendants had nothing to do with the making of any of these artificial works, and it was not clear that in a river like the Mississippi the new land might not have been made without them, and by natural causes alone.

The fact that the additions were a making was perceptible at certain intervals, though the additions were too gradual to strike the eye as they were in the actual process of formation.

In this state of things, and a considerable addition having now been made, Congress, on the 15th of July, 1870, passed an act in these words:²

'That the title of the United States to all lots, out-lots, tracts, pieces, parcels, and strips of land in St. Clair County, State of Illinois, lying and situate outside of the United States surveys as noted in the field-notes of the United States surveyors, and on the Mississippi River near surveys 766, 624, and 579, . . . &c., be, and the same is hereby, confirmed and granted to said St. Clair County, in said State.'

The plaintiff, St. Clair County, claimed under the above-quoted acts, and under certain other acts of legislation, Federal and State, not necessary to be quoted.³ Its positions were:

1st. That the west boundary of the earlier and the later survey was the same; that this west boundary was a line originally established irrespective of the river line; that accordingly the lands included by the surveys never extended to the river, and that the new-made land, even if it were 'accretion,' or 'alluvion,' never belonged to the owner of tracts surveyed, as riparian owner, but was unconveyed land belonging to the United States, which by its above-quoted act of Congress, it had granted to the plaintiff, St. Clair County.

2d. That if what is above said as to the western line of the tracts as surveyed was not true, and if the tracts did originally extend to the river, yet that the made land was not 'accretion' or 'alluvion' in a legal sense, since the making had been brought about by artificial means; that therefore the new land belonged to the United States as sovereign.

3d. That even if neither of these two propositions were true, yet that the surveys were specifically brought to the river and were limited to one hundred acres each, and hence that they could not embrace an addition as large as or larger than themselves.

4th. That, independently of all other positions, the Mississippi in the sense of the American law—where 'navigability' meant navigability in fact—was a 'navigable river,' as respected riparian rights, and that accretions on it belonged to the sovereign.

The position of the defendant, Lovingston, who held under the two surveys, 579 and 786 (a valid title to which was admitted to be in him, or in those under whom he claimed), was, that those surveys were both (or certainly the last one) bounded originally by the river, and that whether the additions were caused wholly by natural causes or whether in part by the artificial structures, as causes causative, the new land fell within the technical and legal idea of accretion or alluvion, and so belonged to him as riparian owner; and that it made no difference, even if by the terms of the survey or grant the title came originally but to the river, or whether the river was a 'navigable' one or not.

Of this opinion was the Supreme Court of Illinois, where the case finally came, and where judgment was given for the defendant. The case was now here on error from that judgment.

Mr. Gustavus Koerner, for the plaintiff in error:

The history of these hundred acre tracts, often called militia tracts, should be stated by the reporter as part of the case. They are facts, which go to constitute the case, and are an important part of it.

So far back as June 20th, 1788, in a resolve of the old Congress of the United States,⁴ a report was made to Congress, and approved by it, for confirming the rights of old French settlers in Illinois.

The Congress under the present constitution in 1791⁵ re-enacting the resolve of June 20th, 1788—provided in the sixth section that the governor of the Territory should be authorized to make a grant of land, 'not exceeding one hundred...