Mobile Transportation Company v. City of Mobile

• Decision Date: 05 January 1903
• Docket Number: No. 62,62
• Citation: 23 S.Ct. 170,187 U.S. 479,47 L.Ed. 266
• Parties: MOBILE TRANSPORTATION COMPANY, Plff. in Err. , v. CITY OF MOBILE
• Court: U.S. Supreme Court

187 U.S. 479

23 S.Ct. 170

47 L.Ed. 266

MOBILE TRANSPORTATION COMPANY, Plff. in Err.,

v CITY OF MOBILE.

No. 62.

Argued November 3, 1902.

Decided January 5, 1903.

This was an action in ejectment brought in the state circuit court by the city of Mobile against the Mobile Transportation Company, to recover a portion of the shore and bed of the Mobile river in the city of Mobile, between high-water mark and the channel line or point of practical navigability.

In support of its title the city relied upon the following acts:

1. An act of Congress approved March 2, 1819, entitled 'An Act to Enable the People of the Alabama Territory to Form a Constitution and State Government, and for the Admission of Such State into the Union on an Equal Footing with the Original States.' 3 Stat. at L. 489, chap. 47.

2. An ordinance of the convention of Alabama adopted August 2, 1819, accepting the proposition offered by Congress. Ala. Code 1876, p. 68.

3. A resolution of Congress of December 14, 1819, declaring the admission of the state into the Union, with a Constitution which had been adopted by the state. 3 Stat. at L. 608.

4. An act of the general assembly of Alabama, approved January 31, 1867, entitled 'An Act Granting the City of Mobile the Riparian Rights in the River Front.' Acts of 1866-67, p. 307.

5. An act of the assembly, approved February 18, 1895, entitled 'An Act to fix the Right of the City of Mobile to Certain Real Estate.' Acts of 1894-95, p. 815.

6. An act approved December 5, 1896 (Acts 1896, p. 49), amending the last act.

Several acts respecting the incorporation of the city of Mobile, unnecessary to be considered, were also offered in evidence. It was admitted that defendant was in possession of the lands.

Defendant pleaded the statute of limitations, and offered in evidence certain 'documents, legislative and executive, of the Congress of the United States, in relation to the public lands, from the first session of the First Congress to the first session of the Twenty-third Congress,' and particularly that relating to the claim of one Regis Bernoudy, who claimed under a Spanish grant made March 3, 1792, to Joseph Munora, together with evidence of the report of the Land Commissioner in favor of his claim, and a patent of the United States dated December 28, 1836, to the assignees of Bernoudy, wherein it was recited that the claim of Bernoudy (entered as No. 11) was affirmed, had been surveyed, and was by such title granted unto his assignees. The defendant also offered an unbroken chain of deeds from these assignees to the transportation company, as well as proof of an adverse possession of the lands described in the complaint, under a color of right, for twenty years before bringing suit.

All this evidence was excluded by the circuit court, whose action in that particular was affirmed by the supreme court of the state. 128 Ala. 335, 30 So. 645.

Messrs. Frederic G. Bromberg, William B. Putney, and Eugene H. Lewis, for plaintiff in error.

Messrs. Harry T. Smith and Gregory L. Smith for defendant in error.

Mr. Justice Brown delivered the opinion of the court:

1. Motion was made to dismiss this writ of error for the want of a Federal question, but in view of the fact that defendant's title depends upon a Spanish grant claimed to have been perfected under the treaty of 1819 between the United States and the King of Spain (8 Stat. at L. 252), and a patent of the United States dated December 28, 1836, in alleged confirmation of such claim, we do not see how such motion can be sustained, unless upon the theory that the Federal questions so raised are frivolous and undeserving of further notice. We are of opinion that they cannot be so considered, and the motion to dismiss must therefore be denied.

There are fifty-eight assignments of error, none of which require separate consideration, since all turn upon the respective titles of the parties to the land in question. As the plaintiff in an action of ejectment is bound to recover upon the strength of his own title, we shall first consider the several objections made to the title of the city.

2. That the state of Alabama, when admitted into the Union, became entitled to the soil under the navigable waters, below high-water mark within the limits of the state, not previously granted, was so conclusively settled by this court in Pollard v. Hagan, 3 How. 212, 11 L. ed. 565, as to need no further consideration. This was also an action of ejectment for lands below high-water mark in the city of Mobile. The plaintiffs insisted that, by the compact between the United States and Alabama, on her admission into the Union, it was agreed that the people of Alabama forever disclaimed all right or title to the waste or unappropriated lands lying within the state, that the same should remain at the sole disposal of the United States; and that all the navigable waters within the state should forever remain public highways; and hence, that the lands under the navigable waters, and the public domain above high water, were alike reserved to the United States, and alike subject to be sold by them; and that to give any other construction to these compacts would be to yield up to Alabama and the other new states, all the public land within their limits. This court, however, held that, when Alabama was admitted into the Union, on an equal footing with the original states, she succeeded to all the rights of sovereignty, jurisdiction, and eminent domain which Georgia possessed at the time she ceded the territory of Alabama to the United States, and that nothing remained to the latter, according to the terms of the agreement, but the public lands. In summing up its conclusions the court held: 'First, the shores of navigable waters, and the soils under them, were not granted by the Constitution to the United States, but were reserved to the states respectively. Secondly, the new states have the same rights, sovereignty, and jurisdiction over this subject as the original states. Thirdly, the right of the United States to the public lands, and the power of Congress to make all needful rules and regulations for the sale and disposition thereof, conferred no power to grant to the plaintiffs the land in controversy in this case.'

The supreme court of Alabama having approved a charge to the jury that 'if they believed the premises sued for were below the usual high-water mark, at the time Alabama was admitted into the Union, then the act of Congress' (passed in July, 1836, confirming the title of the plaintiff), 'and the patent in pursuance thereof, could give the plaintiffs no title,' its judgment was affirmed. The opinion of the court was pronounced in 1844.

Prior to this time, however, and in 1839, the supreme court of Alabama in the case of Mobile v. Eslava, 9 Port. (Ala.) 577, 33 Am. Dec. 325, had also held that the navigable waters within that state, having been dedicated to the use of the citizens of the United States, it was not competent for Congress to grant a right of property in the same, and that the navigable waters extended, not only to low water, but embraced all the soil within the limits of high-water mark. This case was also affirmed by this court (16 Pet. 234, 10 L. ed. 948), though the case as here presented did not turn upon the rights of the state to land beneath its navigable waters below high-water mark.

This was also declared to be the doctrine of the supreme court of Alabama as late as 1853, when in Magee v. Doe ex dem. Hallett 22 Ala. 699, it was held that, if the Mobile river were the eastern boundary of the grants in question, the lines could not, under the decisions of that court, as well as those of the Supreme Court of the United States, extend beyond high-water mark at that time, citing Pollard v. Hagan, 3 Ala. 291, Affirmed, as above stated, in 3 How. 212, 11 L. ed. 565; Abbot v. Doe ex dem. Kennedy, 5 Ala. 393, and Goodtitle v. Kibbe, 9 How. 471, 13 L. ed. 220. This last case was little more than an affirmance of Pollard v. Hagan.

On January 31, 1867, the general assembly of Alabama passed 'An Act Granting the City of Mobile the Riparian Rights in the River Front,' the first section of which enacted that 'the shore and the soil under Mobile river, situated within the boundary lines of the city of Mobile, as defined and set forth in § 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 they are hereby created and declared trustees to hold, possess, direct, control, and manage the shore and soil herein granted, in such manner as they may deem best for the public good.'

In Boulo v. New Orleans, N. & T. R. Co. 55 Ala. 480, decided in 1875, it was also held that the title to the shore of all tidewater streams resides in the state, for the benefit of the public, and its use by the public for the purpose of commerce was not only permissible, but in accordance with the trust annexed to the title. The place in controversy was a slip beneath two wharves, but whether it was covered at high tide by the water of the river was a fact about which the evidence conflicted, though the court inclined to the opinion that land had been formed which was not usually covered by water at high tide. It was held the title was in the state.

In Williams v. Glover, 66 Ala. 189, part of the land in controversy was an island in the Tennessee river. Some 12 acres of the tract lay between high and low water marks, and was covered with water in high floods. The court held that the ownership of the plaintiff extended to the margin of the water at its ordinary stage, and hence embraced the land between high and low water marks. As the Tennessee river is not a tidal stream, but empties into the Mississippi far to the north of Alabama, the court in using the words 'between...