Mobile Transp. Co. v. City of Mobile

• Decision Date: 21 November 1907
• Citation: 44 So. 976,153 Ala. 409
• Parties: MOBILE TRANSP. CO. v. CITY OF MOBILE ET AL.
• Court: Alabama Supreme Court

44 So. 976

153 Ala. 409

MOBILE TRANSP. CO. v. CITY OF MOBILE ET AL.

Supreme Court of Alabama

November 21, 1907

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Action by the Mobile Transportation Company against the city of Mobile and others to enjoin interference with riparian rights. From a decree dismissing the bill for want of equity plaintiff appeals. Reversed and rendered.

Frederick G. Bromberg and Eugene H. Lewis, for appellant.

Gregory L. & H. T. Smith, for appellees.

TYSON C.J.

In this case the appellant filed a bill to enjoin the enforcing of an exclusive possession of the shore of the Mobile river in front of its land under a writ of possession duly issued on a judgment in ejectment. The bill was dismissed on motion for want of equity, and this appeal is to reverse that decree.

No decree was entered upon the demurrer which was interposed to the bill, and therefore on this hearing we have only to deal with the question of error vel non in the decree as to the motion. Of course, the very frame of the bill admits the effective assertion at law of the legal title of the city of Mobile, and the bill could not have equity if it contained merely legal objections to the validity of that title. To be sustained it must show that the appellant has rights in equity in the locus in quo which are consistent with the legal title being in the city of Mobile, and which are jeopardized by the assertion of the legal title in the manner threatened and indicated in the bill. The bill avers that the appellant is the riparian owner along the west bank of Mobile river, and that it and its predecessors in title have held owned, and occupied this property for a great many years, and that under its right as a riparian owner to pass and repass over the shore from its land to the navigable waters of the river, as well as under and by long usage and immemorial custom, and its predecessors in title, to make the waterway available, had constructed ways and built wharves and piers in front of its land bordering on the river within the limits of the city of Mobile, and that it is so using its privileges of access to said water and occupying its said improvements as occasion demands, and that the appellee is about to fence off the shore and deprive it of any access whatever to the river across the shore, and of the use and possession of its said improvements. So the question is whether the appellant has the right to use the shore to obtain access to navigation and to dock out to deep water to make the river available, notwithstanding the recovery in ejectment. This, in the language of the court in Kane v. N.Y. E. R. R. Co., 125 N.Y. 185, 26 N.E. 278, 11 L. R. A. 640, is difficult of solution.

We will dispose first of the question of res judicata. There is nothing inconsistent in the existence of a legal title in a trustee, for government regulation and superintendence, and at the same time a possession and user under such qualification by the beneficiaries of the trust. Mayor of N. O. v. United States, 10 Pet. (U. S.) 662, 9 L.Ed. 573. Nothing is more common in private transactions than the vesting of the legal title to property in a trustee, with the proviso that he will allow a cestui que trust to have designated rights and privileges in and to the property. The ownership by the state of the shores and beds of navigable streams is a trust of a most solemn character for the public, including riparian owners. Such riparian owners are cestuis que trust under the trust, and they have a special property right, independent of the general public, the enjoyment of which in no wise conflicts with the lawful and proper exercise of legal ownership of the bed and shore of the river in the state, or its substituted trustee. The constitution of a trustee clothed with the legal title in such cases is for the preservation of such rights of the riparian owners and of the general public, and in no wise conflicts with the full use and enjoyment of all the privileges given by the trust. It is thus clear that the mere recovery in ejectment against the appellant of the locus in quo, and the influence of the decision of the case of Turner v. Mobile, 135 Ala. 77, 33 So. 132, which was to enjoin the prosecution of an ejectment, in no wise conflict with the maintenance of this suit. These cases relate only to the assertion at law of the legal title of the trustee. This case relates to the equitable rights of the appellant, which it is claimed the trustee cannot violate with impunity, though possessed of the legal title.

The next question brings up the rights of a riparian owner under the alleged circumstances of this case. As a preliminary point, we desire to observe that we adopt as applicable to this case the position of this court taken in Webb v. Demopolis, 95 Ala. 134, 13 So. 289, 21 L. R. A. 62, in reference to laches and limitations operating against the title of the state to the bed, including the shore of a navigable stream. In that case it was held that laches and limitations could not bar the title of the city to its streets; and so here, upon much stronger grounds, the possession and use of the shore of Mobile river adjacent to the land of the appellant, and particularly when the possession was of a character entirely consistent with the duties of the trustee and the coexistent rights of the riparian owner, could never ripen into a legal title against the trustee in this case. But, if such possession could ripen into a legal title, the presumption must be that it did not do so, because the trustee recovered against it at law, showing the continued existence of the relation of trustee and cestui que trust between the parties. The motion to dismiss admits the allegation of the bill that the city of Mobile, as trustee for the public in general, and riparian owners in particular, recovered on such trust title the premises in question. The trustee is, therefore, estopped to deny the relation.

The question, then, is: Does the bill show equitable rights in the appellant which should be protected? The argument is very much pressed that the rights of riparian owners on navigable tidal waters and navigable nontidal waters differ, and...