Lovingston v. the County of St. Clair.

• Decision Date: 30 June 1872
• Citation: 64 Ill. 56,16 Am.Rep. 516,1872 WL 8261
• Parties: JOHN B. LOVINGSTON et al.v.THE COUNTY OF ST. CLAIR.
• Court: Illinois Supreme Court

64 Ill. 56

1872 WL 8261 (Ill.)

16 Am.Rep. 516

JOHN B. LOVINGSTON et al.

v.THE COUNTY OF ST. CLAIR.

Supreme Court of Illinois.

June Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of St. Clair county; the Hon. JOSEPH GILLESPIE, Judge, presiding.

This was an action of ejectment, commenced by the county of St. Clair against John B. Lovingston and the Wiggins Ferry Company, in the St. Clair circuit court, on the 26th day of August, 1870, for the recovery of a tract of land, bounded on the north by the southern line of the first ferry division of the city of East St. Louis, as laid out in the plat of the first ferry division; on the east by the west line of survey No. 579; on the west by the low water mark of the Mississippi river, and on the south by the south line of said survey No. 579 extended to low water mark of the Mississippi river.

The declaration had four counts. The first claimed an estate in fee simple; the second, an undivided three-fourths in fee; the third, the perpetual possession; and the fourth, the undivided three-fourths in perpetual possession.

Appellants pleaded the general issue. The cause was tried by a jury at the October term, 1871. The jury found defendants guilty, and that the plaintiffs were entitled to an estate in fee simple in the premises described.

The plaintiff below claimed title to the land under the act of Congress of July 15th, 1870, granting and donating swamp and overflowed lands of the United States.

The court overruled defendants' motion for a new trial, and rendered judgment on the verdict of the jury for the plaintiff below, from which the defendants appealed.

Mr. WM. H. UNDERWOOD, and Messrs. DAVIS & THOMAS, for the appellants.

Messrs. G. & G. A. KŒRNER, and Mr. LOUIS HOUCK, for the appellee.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

If the land of the riparian proprietor was bounded by the Mississippi, his right to the possession and enjoyment of the alluvion is not affected, whether the stream be navigable or not. By the common law, alluvion is the addition made to land by the washing of the sea, a navigable river or other stream, whenever the increase is so gradual that it can not be perceived in any one moment of time.

The navigability of the stream, as the term is used at common law, has no applicability to this case. If commerce had been obstructed, or the public easement interrupted, or a question was to arise as to the ownership of the bed of the stream, then the inquiry as to whether the stream was navigable or not, in the sense of the common law, might be pertinent. No such question is presented. On this branch of the case, the only question is, have the United States, or the State, or the riparian owner, the right to the accretion?

If the river is the boundary, the alluvion, as fast as it forms, becomes the property of the owner of the adjacent land to which it is attached. On a great public highway, like the Mississippi, floating an immense commerce, and bearing it to every part of the globe, purchasers must have obtained lands for the beneficial use of the river as well as for the land. Can it be presumed that the United States would make grants of lands bordering upon this river, with its turbulent current, and subject to constant change in its banks by alluvion upon the one side and avulsion upon the other, and then claim all accretion formed by the gradual deposition of sand and soil, and deprive the grantee of his river front? If he should lose his entire grant by the washing of the river, he muse bear the loss, and he should be permitted to enjoy any gain which the ever-varying channel may bring to him. If a great government were to undertake, under such circumstances, to dispossess its grantee of his river front, the attempt would be akin to fraud, and it would lose the respect to which beneficent laws and the protection of the citizen would entitle it.

We then assume that the act of Congress of 1796, (1 Stat. 468, sec. 9,) which declares all navigable rivers in a certain district, public highways, has no bearing upon the questions to be considered. The riparian owner has a right to the alluvion, whether the stream be navigable or unnavigable.

Blackstone says (2d book, 262,) as to lands gained from the sea by alluvion, where the gain is by little and little, by small and imperceptible degrees, it shall go to the owners of the land adjoining. “For de minimis non curat lex; and, besides, these owners being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is therefore a reciprocal condition for such charge or loss.”

The same reasoning applies, with all its force, to the lands abutting upon the Mississippi river.

In Middleton v. Pritchard, 3 Scam. 510, this court said: All alluvions belong to the riparian proprietor, both by the common and civil law.

In the case of The King v. Lord Yarborough, 3 Barn. & Cress. 91, land gained from the sea by alluvion or projection of extraneous matter, whereby the sea was excluded and prevented from overflowing it, was adjudged to be parcel of the demesne lands of the adjacent manor.

This question has been discussed with profound research and great ability by the courts in Louisiana, as to the accretions upon this same river, and the law clearly announced.

In Municipality No. 2 v. Orleans Cotton Press, 18 Louisiana, 122, it was declared that the right to future alluvial formations was a right inherent in the property, an essential attribute of it, the result of natural law, in consequence of the local situation of the land; that cities as well as individuals had the right to acquire it, pere alluvionis, as riparian proprietor; and that the right was founded in justice, both on account of the risks to which the land was exposed, and the burden of protecting the estate. The court further assimilated the right to the right of the owner of lands to the fruits of a tree growing thereon, and said: “Such an attempt to transfer from the owner of the land to the city the future increase by alluvion, would be as legally absurd as if the legislature had declared that, after the incorporation of the city, the fruits of all the orange trees within its limits should belong thereafter to the city, and not to the owners of the orchards and gardens.”

The same principle was declared in Banks v. Ogden, 2 Wal. U. S. 57, as applicable to Lake Michigan.

See also, The Mayor, etc., of New Orleans v. The United States, 10 Peters, 662; Jones v. Soulard, 24 Howe, U. S. 41.

The same doctrine is fully declared in a recent case: Warren v. Chambers, 25 Ark. 120.

To determine the title to the accretion, we must ascertain the locality of the land of the adjacent owner. We need not enter upon a discussion of the laws of Congress and of the State, by virtue of which the county claims title, if the land previously granted by the United States was bounded by the river, and the accretion is attached to it.

Hilgard, the surveyor, testified that the accretion was all west of the Condaire tract. The only portion of the field notes we desire to call attention to is the following: “To a post on the westerly side of the river L'Abbe, or Cahokia Creek, thence down the said river or creek, with the different courses thereof,” and, “thence N. 85 deg. W. 174 poles to a post on the bank of the Mississippi river, from which thence N. 5 deg. 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. ____, claim No. 100.” This survey was made in 1815. From the copy of the plat of it, from the custodian of the United States surveys, it will be seen that the line along Cahokia Creek meanders with the stream, which was sinuous, and hence the call in the notes, “down the said creek with the different courses thereof.”

A further examination of the plat will show...