Mobile Docks Co. v. City of Mobile

• Decision Date: 06 February 1906
• Citation: 146 Ala. 198,40 So. 205
• Parties: MOBILE DOCKS CO. v. CITY OF MOBILE. OLLINGER & BRUCE DRY DOCK CO. v. CITY OF MOBILE. BANCROFT v. CITY OF MOBILE. CLEVELAND v. CITY OF MOBILE. CLARK v. CITY OF MOBILE. LAVRETTA v. CITY OF MOBILE.
• Court: Alabama Supreme Court

40 So. 205

146 Ala. 198

MOBILE DOCKS CO. v. CITY OF MOBILE.

OLLINGER & BRUCE DRY DOCK CO. v. CITY OF MOBILE.

BANCROFT v. CITY OF MOBILE.

CLEVELAND v. CITY OF MOBILE.

CLARK v. CITY OF MOBILE.

LAVRETTA v. CITY OF MOBILE.

Supreme Court of Alabama

February 6, 1906

Appeal from Circuit Court, Mobile County; Samuel B. Brown, Judge.

"To be officially reported."

Actions by the city of Mobile against the Mobile Docks Company, the Ollinger & Bruce Dry Dock Company, Catherine O. Bancroft Margaret Cleveland, Richard H. Clark, and Constantine L Lavretta. The city recovered judgment in each action, and the defendants severally appealed. Reversed.

Tyson J., dissenting.

E. L Russell, B. B. Boone, and J. G. Hamilton, for appellant Mobile Docks Co. L. H.

& E. W. Faith, for appellants Ollinger & Bruce Dry Dock Co., Catherine O. Bancroft, and Margaret Cleveland and others. R. H. & N. R. Clark, for appellants Richard H. Clark and C. L. Lavretta. Gregory L. & H. T. Smith, for appellee.

DOWDELL J.

These suits are statutory actions in the nature of ejectment, brought by the city of Mobile to recover possession of the land particularly described in the several complaints; the same being the shore and the soil under the water of the Mobile river extending to the channel line of the river, or, in other words, land lying between the channel line and high-water mark of the Mobile river. In each of the said causes the general issue of not guilty was pleaded, and on this issue the cause was tried.

It was not and is not denied, but, on the contrary, admitted, that originally the title to the land sued for was in the state of Alabama and held by the state in trust for the public good, under the compact by which the state of Alabama was admitted as a state into the Union. The alleged title of the city of Mobile, and upon which it bases its claim and right to a recovery of the land in question, is based upon an act of the Legislature of the state of Alabama by and under which it is asserted that the said land was granted by the state to the city of Mobile. The rule of law is elementary, and is nowhere more plainly established than by the adjudications of this court, that in actions of ejectment the plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of the title of his adversary, and, until the plaintiff has made a prima facie case by showing title sufficient upon which to base a right of recovery, the defendant is not required to offer evidence of his title.

The first question that is presented for our consideration is whether the act of the Legislature on which the city of Mobile bases its title and right of recovery is a valid act. The act, the validity of which is assailed on constitutional grounds, was approved January 31, 1867 (Acts 1866-67, p. 307), and which we here set out in full, including the title to said act. The title reads as follows: "An act granting to the city of Mobile the riparian rights to the river front." The body of the act is as follows:

"Section 1. Be it enacted by the Senate and House of Representatives of the state of Alabama in General Assembly convened that the shore and the soil under Mobile river, situated within the boundary line of the city of Mobile, as defined and set forth in sec. 2 of 'An act to incorporate the city of Mobile,' approved February 2, 1866, be and the same is hereby granted and delivered to the city of Mobile.

"Sec. 2. Be it further enacted that the mayor, aldermen, and common council of the city of Mobile be, and are hereby created and declared trustees to hold, possess, direct and control and manage the shore and soil herein granted in such manner as they may deem best for the public good.

"Approved Jan. 31, 1867."

The contention is that the act in question is void because offensive to and violative of section 2, art. 4, of the Constitution of 1865, which was of force at the date of said enactment and which provided that "each law shall embrace but one subject which shall be described in the title." In entering upon the consideration and discussion of this question, we fully recognize the rule of construction that an act of the Legislature should not be declared unconstitutional by the courts unless relieved of all doubt as to its unconstitutionality, and that, whenever a doubt does exist, it should be resolved in favor of the validity of the enactment. In the case of the City of Mobile v. L. & N. R. R. Co., 124 Ala. 132, 26 So. 902, the above provision of the Constitution of 1865 was declared to be mandatory, and it was there decided that the act of the Legislature there under consideration, which contained in its body a subject not described in the title, was void.

The vital and material question here is whether the subject contained in the body of the act in question is described in the title. The subject of the grant to the city of Mobile, described in the title of the act, is "riparian rights in the river front." The subject of the grant to the city of Mobile, contained in the body of the act, is "the shore and soil under Mobile river, situated within the boundary lines of the city of Mobile." It is admitted that the Mobile river, within the boundary limits of the city of Mobile, is a tidal stream, and the land in question is covered and washed by tide water. Moreover, of this the court would take judicial notice. "Riparian" is defined in the Century Dictionary as from the Latin word "riparius," of or belonging to the bank of a river, in turn derived from "ripa," a bank, and defined thus: "Pertaining to or situated on the bank of a river." In the Standard Dictionary a "riparian proprietor" is defined as "one who owns land bounded by a stream or other water." In Webster's International Dictionary of 1905, p. 1244, the word "riparian" is defined: "Of or pertaining to the bank of a river, as riparian rights." In the Encyclopedia Americana of 1904, vol. 13, we find: "Riparian rights are those of one who owns the land bounding upon a water course." Such are some of the definitions of "riparian" given by the lexicographers.

In Gough v. Bell, 22 N. J. Law, 441, 464, a riparian owner is said to mean, in its common-law sense, the owner of the

"ripa," or bank of streams not navigable, though it is frequently used in the books to indicate the owner of the land adjoining the shore of tide water above the ordinary flow of the tide. In Bardwell v. Ames, 22 Pick. (Mass.) 333, 355, a riparian owner is said to mean an owner of land bounded generally on a stream of water, and, as such, having the qualified property in the soil to the thread of the stream. In Potomac Steamboat Co. v. Upper Potomac Steamboat Co., 109 U.S. 672, 3 S.Ct. 445, 27 L.Ed. 1070, it was said: "A riparian proprietor is one whose land is bounded by a navigable stream, and among the rights he is entitled to as such are access to the navigable part of the river from the front of his lot, the right to make a landing, wharf, or pier for his own use, or for the use of the public, subject to such general rules and regulations as the Legislature may impose." In Commonwealth v. City of Roxbury, 9 Gray (Mass.) 451, 521, it is said: "The words 'riparian proprietor' have been heedlessly extended from rivers and streams to the shores of the sea. If it is necessary to express it by a single adjective, the term 'littoral proprietor,' as used by the Supreme Court of the United States in the City of Boston v. Lecraw, 58 U.S. (17 How.) 426, 432, 15 L.Ed. 118, is more accurate." In Potomac Steamboat Co., supra, it was said: "A riparian right is the result of that full dominion which every one has over his own land, by which he is authorized to keep all others from coming upon it except upon his own terms. It is defined as the right of the owner of lands upon tide water to maintain his adjacency to it, and to profit by this advantage and otherwise as a right in the riparian owner to preserve and improve the connection of his property with the navigable water. The rights which a riparian proprietor has, with respect to the water, are entirely derived from his possession of the land abutting thereon." (Italics ours.) In Yates v. Milwaukee, 10 Wall. 497, 19 L.Ed. 984, it was said: "The riparian rights of persons owning land fronting on navigable waters are defined to be access to the navigable river in front of his lot, the right to make a landing, wharf, or pier for his own use or the use of the public, subject to the general rules imposed by the Legislature for the rights of the public." In McCarthy v. Murphy, 96 N.W. 531, 119 Wis. 159, 100 Am. St. Rep. 876, it was said: "Riparian rights are not common to the citizens at large, but exist as incidents to the right of the soil itself adjacent to the water. In such ownership they have their origin. They may and do exist, although the fee in the bed of the river or lake be in the state." (Italics ours.) In Diedrich v. N.W. U. Ry. Co., 42 Wis. 248, 262, 24 Am. Rep. 386, it was said: "Riparian rights proper are held to rest upon the title to the bank of the water, and not upon the title to the soil under the water; riparian rights proper being the same, whether the riparian owner owns the soil under the water or not." And again, on page 264 of 42 Wis. (24 Am. Rep. 386), same case, it was said: "The rule that riparian rights rest upon the title to the banks, and not to the bed of the water, is also discussed in the same opinion of Cole, J., in which it enters into the judgment of the court more distinctly than it does in this case, and need not be noticed here at length. We take it to rest on sound principle, and to be affirmed or implied in a great majority of adjudged cases involving the point. It is distinctly recognized in Chapman v....