Leverich v. City of Mobile

• Decision Date: 19 November 1867
• Docket Number: 12.
• Citation: 110 F. 170
• Parties: LEVERICH et al. v. MAYOR, ETC., OF MOBILE et al.
• Court: U.S. District Court — Southern District of Alabama

110 F. 170

LEVERICH et al. v. MAYOR, ETC., OF MOBILE et al.

No. 12.

United States Circuit Court, S.D. Alabama.

November 19, 1867

George N. Stewart, John A. Campbell, Messrs. Hamilton, and Dargan &amp Taylor, for complainants.

C. F Moulton, City Atty., Smith & Herndon, and Boyles & Overall for defendants.

BUSTEED District Judge.

This cause comes before me upon a motion for a preliminary injunction to restrain the corporation of the city of Mobile from proceeding under an act of the legislature of the state approved the 31st of January, 1867, granting to the corporation of the city of Mobile the shore and soil of the river Mobile within its corporate limits, and appointing the corporation a trustee to administer them for the public good. The corporation were proceeding to declare all the existing wharves in the city to be free, and to discharge all persons from paying any wharfage dues, when this bill was filed. The object of this bill is to restrain the city from the invasion of the right to wharfage, as asserted in the bill. The motion has been debated with a fullness, an amplitude of argument and authority, that has not been exceeded in the conduct of any cause that has been heard before me. The cause is one of great gravity, and it is due to the importance of the questions, and to the magnitude of the public and private interests involved, that the court shall declare the reasons for the order of injunction that has been granted.

One of the marked features in the political institutions of the United States is the freedom of their rivers. This freedom has been declared in great fundamental compacts among the states, and by authority of these is imposed upon the rivers and navigable waters within the boundaries of all of the new states. In the ordinance for the government of the Northwestern Territory passed the 17th of July, 1787, before the adoption of the federal constitution, the first of these acts became the law of the United States. It was then ordained that 'the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same shall be common highways, and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other states that may be admitted into the confederacy, without any tax, impost or duty therefor. ' In the act passed the 3d of March, 1803, 'for regulating the grants of land and providing for the disposal of lands of the United States south of the state of Tennessee,' it was provided that 'all navigable rivers within the territory of the United States south of the state of Tennessee shall be deemed to be, and remain, public highways'; and in similar acts for the disposal of the public lands in the Louisiana territory and the territory of Florida, as well as those on the Pacific Coast, similar provisions were made; and, to place this dedication beyond the reach of cavil or contest, each one of the new states, including those on the Pacific Coast and the interior of the continent, at the time of its admission to the Union, has been required to adopt a provision similar to that mentioned in the ordinance of 1787, as a fundamental condition upon which their admission of the Union depended. In the ordinance adopted by the state of Alabama at the date of the adoption of the constitution, by which it became a state and was admitted as such into the Union, it disclaimed all title to 'the waste or unappropriated lands' lying within the state, and agreed 'that all navigable waters within the state forever remain public highways, free to the citizens of this state, and of the United States, without any tax, impost or toll therefor, imposed by the state.' A writer of celebrity has said, 'Here we behold the Magna Charta of the internal navigation of America which we enjoy, and have first enjoyed of all confederacies, ancient or modern.' The questions of the power to regulate these rivers, and in what department of the complicated American system of government the municipal sovereignty over them resides, have been the subject of much judicial discussion, but have been finally settled by authoritative decisions of the supreme court of the United States. Their opinions were all cited and critically analyzed in the argument on this motion. I shall proceed to state my own opinion upon them.

The case of Martin v. Waddell, 16 Pet. 367, 10 L.Ed. 997, contains the first answer to the questions by the supreme court of the United States. This case was decided in that court in 1842, in reference to the rivers in the state of New Jersey. The supreme court in that cause determined that the grant of the lands in New Jersey to the lords proprietors, though the terms were broad and comprehensive, did not convey to the lords proprietors the soils or rights to fishery in the rivers in that state; that the right to fishery was a public right, not impaired by the grant; and that the people of the state acquired at the Revolution the sovereignty to the navigable water courses which remained in it only in so far as surrendered in the constitution of the United States. What that right is was declared in the case of Smith v. Maryland, 18 How. 71, 15 L.Ed. 269. In that case the supreme court say:

'Whatever soil below low-water mark is the subject of exclusive propriety and ownership belongs to the state on whose proprietary border and within whose territory it lies, subject to any lawful grants of that soil by the state, or the sovereign power which governed it before the Declaration of Independence. But this soil is held by the state, not only subject to, but in some sense in trust for, the enjoyment of certain public rights, among which is the common liberty of taking fish,-- as well shell fish as floating fish. The state holds the propriety of this soil for the conservation of the public rights of fishery thereon, and may regulate the modes of that enjoyment so as to prevent the destruction of that fishery. In other words, it may forbid all such acts as would render the public right less valuable or destroy it altogether. This power results from the ownership of the soil, from the legislative jurisdiction of the state over it, and from its duty to preserve unimpaired those public uses for which the soil is held.'

The court in their opinion are careful to reserve their opinion upon the extent of the powers of the federal government, and of the rights of citizens of other states in the participation in this common right. These cases arose in states that were original parties to the federal constitution. The question as to the authority of the states that have since been formed of the public domain of the United States, and in which they were the proprietors of the lands and the soils of the navigable waters, was agitated in Alabama previously to the decision in Martin v. Waddell, above cited, and was decided upon in a number of cases which originated in the city of Mobile before 1839. These cases were cited in the argument and are reported. Mayor, etc., v. Eslava, 9 Port. 578, 33 Am.Dec. 325; Pollord's Heirs v. Files, 3 Ala. 47; Kemp v. Thorp, 3 Ala. 291; Abbot's Ex'r v. Kennedy, 5 Ala. 393; and other cases. These opinions claim for the state of Alabama that the soils under the rivers within the state are not subject to sale by the United States as 'waste and unappropriated land'; that whatever right of property exists remains in the state of Alabama. 'What is said by the court of a property in the shore passing to the state upon its admission to the Union cannot, when fairly interpreted, be understood to mean the absolute ownership, but merely the right of jurisdiction and control, subject to the paramount right which is repeatedly conceded, and which the United States may protect.' Kemp v. Thorp, 3 Ala. 291. This claim for Alabama was presented to the supreme court in a series of cases, upon the right of the city of Mobile to the land between 'high-water mark and the channel of the river,' under the first section of an act of congress 'granting certain lots of ground to the corporation of Mobile and to certain individuals of the city;' approved May 26, 1824. The cases of Mayor, etc., v. Eslava, Same v. Hallett, and Same v. Emanuel severally presented the question, but the supreme court preferred to sustain the validity of the defendant's title under the same act. Mayor, etc., v. Eslava, 16 Pet. 234, 10 L.Ed. 948; Same v. Hallett, 16 Pet. 264, 10 L.Ed. 958; Same v. Emanuel, 1 How. 95, 11 L.Ed. 60. The question was again presented in the case of Pollord's Lessee v. Hagan, 3 How. 212, 11 L.Ed. 565. The facts of the case were that in the year 1836 an act of congress (6 Stat. 680) was passed granting to the lessor of the plaintiff a parcel of land which was covered by the waters of the river between 1819 and 1823. The defendants claimed under a Spanish grant to Panton Leslie & Co., which was bounded by and extended into the river at its date. The circuit court of the state charged the jury 'that, if they believed the premises sued for were below the usual high-water mark at the time Alabama was admitted to the Union, then the act of congress and the patent in pursuance thereof could give the plaintiff no title, whether the waters had receded by the labor of man only, or by alluvion.' The supreme courts of the state and of the United States approved the judgment for the defendant upon this charge. The supreme court of the United States in their opinion say:

'This right of eminent domain over the shores and the soils under the navigable waters, for all municipal purposes, belongs to the states within their respective territorial jurisdictions, and they, and they only, have the right to exercise it. To give to the United States the

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