Mobile Transp. Co. v. City of Mobile

• Decision Date: 20 December 1900
• Citation: 128 Ala. 335,30 So. 645
• Parties: MOBILE TRANSP. CO. v. CITY OF MOBILE. [1]
• Court: Alabama Supreme Court

30 So. 645

128 Ala. 335

MOBILE TRANSP. CO. v. CITY OF MOBILE. ^[1]

Supreme Court of Alabama

December 20, 1900

Appeal from circuit court, Mobile county.

Ejectment by the city of Mobile against the Mobile Transportation Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Frederick G. Bromberg, for appellant.

Greg. L. & H. T. Smith, for appellee.

TYSON J.

The present case is an action of ejectment in Code form, by the city of Mobile, to recover of the appellant certain real estate described in the complaint, constituting the shore or part of Mobile river below high-water mark. The plaintiff's title was derived from the state of Alabama through and by the act of the legislature approved January 31, 1867, entitled "An act granting to the city of Mobile the riparian rights in the river front" (Acts 1866-67, p. 307), supplemented by the acts of February 18 1895, and of December 5, 1896; the later being amendatory of the former, and confirming and vesting all rights theretofore vested in any municipal corporation of Mobile in the city of Mobile. If the act of 1867 was operative, it is evident that the legal title to the shore of the river below high-water mark, as described in the act, under the rule of the common law, became vested in the city of Mobile. Though the property belonged to the United States before the admission of the state into the Union, by the compact under and by which Alabama became a state the title to all lands not reserved to the United States became the property of the state of Alabama; it being well settled that there was no reservation and could be none, in the shores and beds of navigable streams, since such reservation would conflict with the fundamental law of organization, under which new states are entitled to be on an equal footing with the original states, as well as with the constitution, restricting the municipal jurisdiction of the United States to the particular cases enumerated therein. Pollard v. Hagan, 3 How. 212, 11 L.Ed. 565; Escanaba & L. M. Transp. Co. v. City of Chicago, 107 U.S. 689, 2 S.Ct. 185, 27 L.Ed. 442; Huse v. Glover, 119 U.S. 546, 7 Sup.Ct. 313, 30 L.Ed. 487; Sands v. Improvement Co., 123 U.S. 296, 8 S.Ct. 113, 31 L.Ed. 149; Bridge Co. v. Hatch, 125 U.S. 9, 8 Sup.Ct. 811, 31 L.Ed. 629; Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331.

The chief important question is whether the act of 1867 is a valid law. The appellant insists that it is void because its title does not sufficiently describe the purpose of the body of the act. The constitution of 1865, under which this law was enacted, required that "each law should embrace but one subject which shall be described in the title." Section 2, art. 4, Const. 1865. The title is, "An act granting to the city of Mobile the riparian rights in the river front" (Acts 1866-67, p. 307), while the body grants the fee. The objection is that "riparian rights" could not comprehend the fee, but only easements therein, distinct from absolute ownership. The object of this provision of the constitution was to prevent surprise and fraud, in passing laws under misleading titles. It should not, therefore, be construed so as to defeat, by too technical an application, legislation not clearly within the evil aimed at. If the title of an act is single, and directs the mind to the subject of the law in a way calculated to direct the attention truly to the matter which is proposed to be legislated upon, the object of the provision is satisfied. In such case the generality of a title, not defining the particulars of the proposed legislation, would be more apt to excite general attention than otherwise, since the general words would give warning that everything within their limits might be affected, and thus draw the attention of the whole body of legislators, while narrower words would only interest those concerned with the matters specially named. It is therefore held that the generality of the title is no objection if it may comprehend the particulars of the body of the act, and that the act must be upheld if the subject may be comprehended in the title. Adler v. State, 55 Ala. 21; Ballentyne v. Wickersham, 75 Ala. 536; Quartlebaum v. State, 79 Ala. 1; Edwards v. Williamson, 70 Ala. 145; 23 Am. & Eng. Enc. Law (1st Ed.) 229-235. In this case the body of the act grants the fee in the locus in quo; the title, "riparian rights." The question is, may not "rights" comprehend absolute rights or property, to wit, a fee, and may not "riparian" be taken as a mere localizing term to "rights"? The first definition of the word "riparian" in the Century Dictionary is, "pertaining to or situated on the bank of a river." We think the fair and reasonable meaning of the title is to grant rights (property) which are riparian; that is, situated on or along the banks (ripa) of the river. No great precision and nicety of language is necessary in such case. It is sufficient if the common and ordinary mind would understand from the title the subject in reference to which a particular law is proposed. We therefore hold the act in question free from the objection interposed to it.

The next question is whether the patent from the United States in 1836 to the persons under whom defendant claimed, to the land adjoining the shore sued for, extended to low-water mark, and, if so, affected the previous title to the state to the land below high-water mark. We must decide both these questions in the negative. It is true, the first point was decided otherwise in the case of Webb v. City of Demopolis, 95 Ala. 126, 13 So. 289, 21 L. R. A. 62, and in one or two other cases relating to the shore line of streams above the ebb and flow of tide water. But these cases in no wise conflict with the common-law rule so often approved by this court and other jurisdictions,-that,

on streams where the tide ebbs and flows, grants of adjoining lands only extend to the ordinary high-tide line along the shore. The law is definitely settled as to this point, and it could hardly have been the purpose of the decision in Webb v. City of Demopolis to disturb this rule of property, supported by a vast array of authorities, without making reference to them. At common law the adjoining owner of the shore would, in the Case of Webb, have acquired title to the center of the stream; but the decision restricted the rule, on account of the actual navigability of the stream, to the line of low water. This cannot be a reason for enlarging the common-law rule as to tide-water shores, which restricted the rights of adjoining owners to the line of high tide. Mayor, etc., of Mobile v. Eslava, 9 Port. 577, 33 Am. Dec. 325; Id., 16 Pet. 240, 10 L.Ed. 948; Goodtitle v. Kibbe, 1 Ala. 403; Id., 9 How. 471, 13 L.Ed. 220; Kennedy v. Beebe, 8 Ala. 914; Pollard's Heirs v. Greit, 8 Ala. 941; Pollard v. Hagan, 3 How. 212, 11 L.Ed. 565; City of Hoboken v. Pennsylvania R. Co., 124 U.S. 688, 8 S.Ct. 643, 31 L.Ed. 543; Hallett v. Bebee, 13 How. 25, 14 L.Ed. 35; Shively v. Bowlby, supra; and the numerous authorities cited in brief of appellee's counsel.

But, if the first point was decided otherwise, it cannot affect this case, because the title of the United States to the shore in question, to the line of ordinary high tide, became vested in the state on and by its admission as a state, and could not be affected by any subsequent grant of the United States, if there had been such. Mayor, etc., of Mobile v. Eslava, supra; Pollard v. Hagan, supra; Goodtitle v. Kibbe, supra; Shively v. Bowlby, supra.

It is next insisted that the state could not grant the fee to the city of Mobile, and thereby devest itself of the trust under which the land was held. This court has decided that a deed by a trustee in violation of his trust nevertheless conveys the legal title, and is valid in a court of law. Robinson v. Pierce, 118 Ala. 273, 24 So. 984, 45 L. R. A. 66, 72 Am. St. Rep. 160. But the grant in this case was not in fraud of the trust. On the contrary, it was made for the purpose of making it effective for the public good. The shores of tide water in all the states are held in fee by the states, subject only to the reservation and stipulation that such streams should forever be and remain public highways, with the right in congress to regulate commerce thereon. Pollard v. Hagan, supra; Martin v. Waddell, 16 Pet. 410, 10 L.Ed. 997; 4 Notes U.S. Rep. 185 et seq., 412 et seq. And it cannot be doubted that the state may convey the fee in such shore, subject, of course, to the paramount rights of the United States respecting navigation, and particularly so when the conveyance is in furtherance of the public interests. St. Anthony Falls Water Power Co. v. Board of Water Com'rs, 168 U.S. 360, 18 S.Ct. 157, 42 L.Ed. 497; Packer v. Bird, 137 U.S. 671, 11 S.Ct. 210, 34 L.Ed. 819; Hagan v. Campbell, 8 Port. 25, 33 Am. Dec. 267; Williams v. Mayor, etc., 105 N.Y. 433, 11 N.E. 829; Langdon v. Mayor, etc., 93 N.Y. 129.

It is next insisted that the municipal corporation of Mobile was dissolved after the institution of this suit, and that the suit cannot be further entertained. The modern doctrine is that the identity of a municipal corporation is not changed by the repeal of its charter, and the substitution of a new municipal organization for substantially the same inhabitants and locality. When there is an alteration of name, it may be convenient and proper for the pleadings to trace the change but when the new organization bears the same name as the old, and the courts take judicial notice of the laws effecting the change, it is unnecessary to make any averment or obtain any order respecting the further prosecution of pending suits. Any authoritative appearance or step taken in the cause is the act of the new organization,...