John Goodtitle, Ex Dem John Pollard, William Pollard, John Fowler and Harriet, His Wife, Late Harriet Pollard, Henry Ensign and Phebe, His Wife, Late Phebe Pollard, George Huggins and Louisa, His Wife, Late Louisa Pollard, Joseph Case and Eliza, His Wife, Late Eliza Pollard, Heirs and Legal Representatives of William Pollard, Deceased Plaintiff In Error v. Gaius Kibbe

• Decision Date: 01 January 1850
• Parties: JOHN GOODTITLE, EX DEM. JOHN POLLARD, WILLIAM POLLARD, JOHN FOWLER AND HARRIET, HIS WIFE, LATE HARRIET POLLARD, HENRY P. ENSIGN AND PHEBE, HIS WIFE, LATE PHEBE POLLARD, GEORGE HUGGINS AND LOUISA, HIS WIFE, LATE LOUISA POLLARD, JOSEPH CASE AND ELIZA, HIS WIFE, LATE ELIZA POLLARD, HEIRS AND LEGAL REPRESENTATIVES OF WILLIAM POLLARD, DECEASED, PLAINTIFF IN ERROR, v. GAIUS KIBBE
• Court: U.S. Supreme Court

50 U.S. 471

9 How. 471

13 L.Ed. 220

JOHN GOODTITLE, EX DEM. JOHN POLLARD, WILLIAM

POLLARD, JOHN FOWLER AND HARRIET, HIS WIFE, LATE

HARRIET POLLARD, HENRY P. ENSIGN AND PHEBE, HIS WIFE,

LATE PHEBE POLLARD, GEORGE HUGGINS AND LOUISA, HIS WIFE,

LATE LOUISA POLLARD, JOSEPH CASE AND ELIZA, HIS WIFE,

LATE ELIZA POLLARD, HEIRS AND LEGAL REPRESENTATIVES

OF WILLIAM POLLARD, DECEASED, PLAINTIFF IN ERROR,

v. GAIUS KIBBE.

January Term, 1850

THIS case was brought up from the Supreme Court of Alabama, by a writ of error issued under the twenty-fifth section of the Judiciary Act.

It involved the same principle decided by this court in the case of Pollard v. Hagan, reported in 3 Howard 212. It is not necessary, therefore, to set forth the facts and title any further than they are stated in the bill of exceptions which was taken to the opinion of the Circuit Court for Mobile County. The action of ejectment was brought by the lessee of Pollard's heirs in 1838, and was tried in 1845.

Bill of Exceptions.

On the trial of this cause the plaintiff produced the following grant:——

'To the Commandant.

'William Pollard, an inhabitant of this district, states to you with all respect, that whereas he has a mill situate on his place of abode, and frequently comes to this place with planks and property from his mill, therefore he wishes to have a situation favorable to the landing and safety thereof, and there being a vacant piece of ground at the edge of the water, between the canal called John Forbes's and the wharf of this place, he prays you to grant him said piece of ground at the edge of the water, the better to facilitate his business. A favor which he hopes to obtain from you.

'WILLIAM POLLARD.

December 11th, 1809.'

'MOBILE, December 12th, 1809.

'I grant to the petitioner the piece of ground which he asks for at the edge of the water, if it be vacant.

'CAYETANO PEREZ.'-

The plaintiff next read the act of Congress, passed 26th May, 1824, entitled 'An act granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals in said city,' and an act of Congress of 2d July, 1836, entitled 'An act for the relief of William Pollard's heirs,' and a patent of the United States in pursuance of the said act, for the lot in controversy, to the lessors of the plaintiff; the plaintiff further proved, that, in the year 1813 or 1814, some wreck and drift wood was removed from the place where the premises in question now are, by the hands of William Pollard, the grantee.

It was proved that in the year 1823, no one being then in possession, and the same being under water, Curtis Lewis, without any title, took possession of and filled up east of Water Street, and from it eighty feet east, and to the north of Government Street; that Lewis remained in possession about nine months, when he was ousted in the night by James Inerarity, one of the firm of Panton, Leslie, & Co., and of John Forbes & Co., its successor, claiming the land under the Spanish grant hereto attached, who improved the lot by the erection of a smith's shop. That shortly afterwards, Curtis Lewis recovered the possession under a forcible entry and detainer proceeding, and remained in possession for several years, during which he and Forbes & Co. were engaged in a lawsuit.

The whole matter was terminated by the purchase, in 1829, by Henry Hitchcock, of the title of Forbes & Co., of Curtis Lewis, and of the Mayor and Aldermen of Mobile. Henry Hitchcock remained in the possession of the property till 1835, when he sold to the defendant for $28,000.

The defendant produced the original Spanish grant and the English copy thereof, for the premises in dispute, with the certificate of confirmation, and produced the conveyances aforesaid, showing the title under which he claims.

He proved that Panton, Leslie, & Co., and Forbes & Co., have had possession of the lot specified in their grant from its date; that they fulfilled the conditions which are specified therein; that to the east of the present site of Water Street, they had a canal extending into the river, through which their boats came up; that there was an embankment on both sides of this canal, on which their goods were landed, and from which their shipments were made. The fillings up done by Lewis were done by sinking flat-boats in this canal.

The particular lots now sued for lie south of the canal and embankment aforesaid, and are between the king's old wharf and Forbes's canal; they lie to the east of Water Street, and fall within the lines laid down in the patent.

The particular land in this writ was never improved until Curtis Lewis made the fillings up. It was further in proof, that previous to 1819, then, and until filled up, the lots claimed by plaintiff were at ordinary high tides covered with water, and mainly so at all stages of water; that the ordinary high tide at that time, flowing from the east, reached to about the middle of what is now Water Street. That in the Spanish times the eastern part of the lots to the west of Water Street was subject to be covered by water at ordinary tides by a flow of water from the river. That what is Water Street at this time was a natural ridge, which was not usually overflowed except at high tides; but there was a depression to the north of the lot of defendant, across which it flowed around upon the eastern parts of the lots lying to the west of the lots sued for. This ridge was about fifteen feet wide; Water Street was laid out in 1820, and is sixty feet.

That no one had possession of the premises in question before 1826, except as before stated. The lines of the lot in the Spanish grant, being extended to the river, include the premises in dispute.

It was further in evidence that Mr. Pollard died in 1816.

TEST & PHILLIPS, for Plaintiff.

J. A. CAMPBELL,

STEWART & EASTON, for Defendant.

And upon this evidence the court gave the following instructions to the jury, to wit:——

'Plaintiff claims under a Spanish grant by Cayetano Perez, of date December 12, 1809, act of Congress confirming the same, July 2d, 1836, and a patent from the United States in pursuance thereof, dated March 15th, 1837.

'Defendant insists that plaintiff's title is not good, because the Spanish grant of itself is incomplete and invalid, and although it was confirmed by act of Congress in 1836, yet, the premises sued for being the shore of a navigable river, lying below high-water mark at the time the State of Alabama was admitted into the Union, Congress, at the time of the act of confirmation, had no control over the subject, and was powerless to add any thing or impart any vitality to the Spanish grant.

'The plaintiff replies and says, that, by the treaty of 1819 with Spain, Spanish grants of the character of that under which the plaintiff claims were recognized by the United States, who assumed the obligation that said grants should be satisfied and confirmed. This obligation the plaintiff contends is to be considered as a contract with the persons holding these grants; and no legislation of the United States, without the consent of such persons, can impair this obligation, or excuse the performance of the duties it clearly imposes.

'From this statement of the case, the first question that naturally presents itself is, What was the character of the interest the United States had in the premises in 1836, or had they any interest at that time in the soil?

'In March, 1819, Congress passed an act to enable the people of Alabama Territory to form a constitution and State government, and for the admission of such State into the Union on an equal footing with the original States. That act declares that all navigable waters within the said State shall for ever remain public highways, free to the citizens of said State and the United States. What is the footing on which the original States stand in regard to the shores of their navigable rivers, and the soil covered by them? That footing is certainly the perfect and absolute control of the shores of those rivers in the respective States, except so far as the United States government may find it necessary to use them in the legitimate exercise of its constitutional rights. For the purpose of enabling itself to do this, so far as Alabama is concerned, it has not thought proper to assert any rights of ownership in the shore, but has rather relinquished the idea of such ownership in itself, and recognized it in the State, by stipulating for a free use of said shores by the citizens of the United States.

'What has been said is based upon the assumption that, by the treaty with Spain, the United States acquired the same property in the shores of navigable rivers that Spain had, and that they had, by the act of 1819, transferred the rights acquired under the treaty to the State of Alabama, reserving only the easement of navigation to the citizens of the United States. The question then arises, Could the United States, in contravention of the obligation they had incurred under the Spanish treaty, ratify and confirm these Spanish grants?

'If Spain could have granted the shores of navigable rivers,...