Middleton v. Pritchard
| Citation | 1842 WL 3804,4 Ill. 510,3 Scam. 510,38 Am.Dec. 112 |
| Parties | Thomas Middleton, appellant,v.Charles Pritchard et al., appellees. |
| Decision Date | 31 December 1842 |
| Court | Supreme Court of Illinois |
A grant is to be taken most strongly against the grantor. a
Where the government makes a grant, and does not reserve any right or interest that could pass by the grant, and does no act showing an intention to make such reservation, the grant must be intended to include all that might pass by it.
At common law, the title of a riparian proprietor of land, bounded by a navigable stream, extends only to high water mark. If the land is bounded by a stream not navigable, the rights of the riparian owner extends to the middle thread of the current. In this case, the water, and the soil under it, to the center of the current, are exclusively in the riparian owner.
At common law, only arms of the sea, and streams where the tide ebbs and flows, are deemed navigable. Streams above tide water, although navigable, in fact, at all times, or in freshets, are not deemed navigable in law.
All grants bounded upon a river not navigable, by the common law, entitle the grantee to all islands lying between the main land and the center thread of the current: b and grants by the government are to be construed according to the common law, unless the government has done some act to qualify or exclude that construction.
The Mississippi river is not a navigable stream at common law, and the title of a riparian proprietor, whose lands are bounded by it, extends to the middle thread of the stream, and includes islands which are separated from the main land by sloughs; but it seems that navigators are not limited to the bare privilege of floating upon the water, but they have the right to land and fasten their boats or vessels to the shore, as the exigencies of navigation may require; and this is a burthen upon the owner of the lands, which he must bear as part of the public easement. c
This was an action of trespass quare clausum fregit, instituted in the Madison Circuit Court, by Middleton against Pritchard and Hafford, for the recovery of damages which the plaintiff had sustained by the cutting of trees on land which he claimed to be in his possession. The cause was heard before the Hon. Sidney Breese and a jury, at the September term, 1841, when the following bills of exceptions were taken, which show the facts in the case:
“Be it remembered, that on the trial of the above entitled case, the plaintiff showed title in one Robert Smith, to the east half of fractional section number thirteen, in township five north, range ten west of the third principal meridian, and a lease from said Robert Smith, of the land described in the declaration in this case, to the plaintiff, with leave to cut and carry away timber, wood, etc.
The cutting of trees by defendants, without license, upon the land so leased, at and before the time specified in said declaration, was admitted.
The land leased, upon which is the locus in quo, is a small island or peninsula, extending from the east half of fractional section thirteen, into the river, and would be embraced within the lines of the said half section, if the same were extended to the centre of the river, as appears from the survey returned to the office of the register of the land office in Edwardsville, which was exhibited, together with the certificate of the surveyor-general of the proper district, and copies of which are hereunto annexed. From themain land, said island or peninsula is separated by a small slough, through which the water flows at a high stage of the river, but during a common low stage of the river, the slough is dry, or occupied through a part of its length with standing water. The timber on the island approaches the timber on the main land, at an average of from two to three rods. The intermediate space is occupied by drift-wood, and during a part of its course, especially at the upper end, by grass. About the middle of the slough, sets in a drain from some neighboring marshes, at the mouth of which, in the slough, is usually, except in dry weather, a pool of standing water. The immediate channel of the slough, not occupied by timber, has no abrupt banks; but the land gradually descends from the higher parts of the island and main land. At a very high stage of the river, the whole island and neighboring bottom or main land is overflowed. There is a ridge or high bank or bench on the main land, which is distant from the immediate channel, through which the water passes at a high stage of the river, some twenty or twenty-five feet. This bank is covered with sward, and heavy timber grows over it, and between it and that part of the slough which is bare of timber. The water flows through the slough on an average of from two to three months in the year.
The bearing tree which limits the eastern line of section thirteen, is below the said island or peninsula, on the immediate high bank of the river; and is reached by the river when the river is at full banks. The other lines of section thirteen, have no bearing trees or tangible limits, so far as appeared on the river; if any such there were, they seem to have been washed away. The situation or condition of the slough has not changed materially within the last thirty years.
This was the substance of the evidence; and thereupon (the evidence on both sides being concluded), the plaintiff, by counsel, requested the court to instruct the jury as follows:
‘ Middleton v. Pritchard and Hafford.
The plaintiff, by his counsel, requests the court to instruct the
First. That the owner of land bounding upon a river, declared a public highway, owns to low-water mark.
Second. When land is granted, bounded by lines that terminate on a river declared a public highway, the grant is presumed to extend to low-water mark.
Third. That a small peninsula or island, separate from the main land on the Mississippi by a channel or slough, filled with grass and drift-wood, and through which the water passes only at a high stage of the river, is the property of the riparian owner, especially if the fraction owned by the riparian owner would, if extended so as to constitute a full division, according to the ordinary content of the government survey, include the said island or peninsula.
Fourth. That the survey of fractional section thirteen, the land in question, extends to the middle of the Mississippi river.
Fifth. That the riparian owner of land, on a river, is entitled to alluvium and accretions, by which his land is extended towards the middle channel of the river.
STRONG AND HALL, Attys.'
Which instructions the court severally refused; to which refusal, the said plaintiff, by his counsel, then and there excepted, and prayed that this, his bill of exceptions, might be sealed, which is done.
And, thereupon, the said defendants, by their counsel, requested the court to instruct the jury as follows, viz.:
‘ Middleton v. Pritchard and Hafford.
The court is asked to instruct the jury that the land of riparian owners on the Mississippi river, in the state of Illinois, extends only to ordinary high-water mark, unless expressly extended beyond it by the terms of the grant, or by the government surveys.
WM. MARTIN,
Att'y for Defts.'
Which instruction was given by the court, and which instruction so given, was then and there excepted to by the counsel for the plaintiff, who asked that this, his bill, might be sealed by the court, which is done.
And, thereupon, the court further instructed the jury as follows, to wit:
‘When lands are claimed by patent, or grant from the government of the United States, and purchased at the several land offices from the plats there filed, and which are bounded by the Mississippi river, the purchaser can not claim beyond the lines of the government survey, and must be controlled by lines and corners established and run by the government surveyors.
To which said instructions of the court so given, the said plaintiff, by his counsel, then and there excepted, and prayed that this, his bill of exceptions, might be sealed, which is done.
SIDNEY BREESE.' [L. S.]
And afterwards, to wit, on the return of the verdict in said case, the said plaintiff, by his counsel, moved the court for a new trial, for the following reasons:
First. The verdict was against law.
Second. The verdict was against evidence.
Third. The court erred in the instructions to the jury.
Which motion for a new trial the court then and there overruled; to which decision of the said court, overruling the motion for a new trial, the said plaintiff, by his counsel, then and there excepted, and prayed that this, his bill of exceptions, might be sealed, which is done.
SIDNEY BREESE.” [L. S.]
Township number five north of the base line, in range number ten west of the third principal meridian.
“The foregoing plats of townships and fractional townships, included between the third principal meridian and the middle of the Mississippi river, from the base line as far north as the north boundary of township No. five north of the base line, have been examined by me.
WM. RECTOR,
Surveyor of the lands of the United States in the Territories of Illinois and Missouri.
Oct. 26th, 1816.
I, Saml. H. Thompson, Register of the Land Office at Edwardsville, Illinois, do hereby certify, that the above plat of township No. 5, N. of range 10 W., is correctly copied from the plat of the said township on file in this office, as is also the letter from Wm. Rector, Esq., Surveyor, to John McKee, Esq., Register
S. H. THOMPSON.
Register of the Land Office.”
Township number five north, range ten west of the...
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