St. Louis, I. M. & S. Ry. Co. v. Ramsey

• Citation: 13 S.W. 931
• Parties: ST. LOUIS, I. M. & S. RY. CO. <I>v.</I> RAMSEY <I>et al.</I>
• Decision Date: 24 May 1890
• Court: Supreme Court of Arkansas

13 S.W. 931

ST. LOUIS, I. M. & S. RY. CO.

v. RAMSEY et al.

Supreme Court of Arkansas.

May 24, 1890.

Appeal from circuit court, Independence county; J. W. BUTLER, Judge.

Dodge & Johnson, for appellant. H. S. Coleman and J. C. Yancey, for appellees.

HUGHES, J.

Appellees, being the owners, as tenants in common by inheritance from an ancestor, who derived title under a patent from the United States government, of the north-west fractional part of section 21, township 13 N., range 6 W., on the bank of and bordering on White river, in Independence county, containing, according to the patent, 22.59 acres, the patent for which bears date 12th of December, 1823, brought suit against the railway company to recover the value of 3,658 car-loads of gravel, which the appellant took from a gravel bar which the appellees alleged in their complaint was lying immediately adjacent to and between the high bank and the water in the main channel of White river. They alleged that this bar had formed against the bank by long years of accretion, and that it is not now part of the main or ordinary channel of the river, but that it has become a part of their said tract of land by accretion, and lies immediately in front of the same, between the banks of said stream. The appellant answered, admitting the location, as described, of the tract of land, and the taking of the gravel from the bar, but denied that the gravel bar was a part of the tract of land owned by the plaintiff. The proof showed that the gravel bar was not a part of the N. W. fractional one-fourth of section 21, township 13 N., range 6 W., but that it laid "in the river bed, in front of the tract of land;" that 25 years ago the bed of White river ran where the gravel bar now is; that before that time the river ran along the edge of the bank; that the gravel bar had formed slowly for years; that it is not above the ordinary stage of high water, and is bare at low water, and that a rise in the river from 6 to 8 feet would cover it; that from 10 to 15 feet is an ordinary high-water rise, and would leave the gravel bar from 5 to eight feet under water; that no trees or soil grow on the bar; that the position is this: First, there is a high bank, then a second bottom, then a gravel bar, and then the water; that the second bottom is five or six feet higher than the bar; that any year, at some time, the water in the river rises from 15 to 22 feet; that in ordinary high water steam-boats can pass right on the gravel bar in controversy; that there is a snag between the gravel bar and the bank, in which minnows have often been caught; that the water often rises over this gravel bar in one night. The cause was submitted to a jury upon the evidence and instructions of the court, and there was a verdict for appellees, which, upon motion by appellant for a new trial, the court refused to disturb; whereupon appellant, having saved exceptions to the giving and refusing of instructions by the court, appealed.

The main question to be determined is how far the ownership of the appellees in the land between the banks of the river, in front of their tract, extends, by virtue of their ownership of the land upon the bank of the river, under the patent from the government of the United States. At common law, "as a general principle, the soil of ancient navigable rivers, where there is a flux and reflux of the sea, belongs to the crown, and that of other streams to the subject, — that is, to the owners of the adjacent grounds, to each respectively, as far as the middle of the stream." Wool. Waters, 44. The ebb and flow of the tide in a river was at common law the most usual test of its navigability, but was not a conclusive test. Id. 40. The soil under navigable streams, at common law, belonged to the king as parens patriæ, for the same reason that the waters did; that is, as a trust for the public use and benefit. Id. cc. 1, 2; Ang. Tide-Waters, 19-67; Hale, De Jure Mar. in 6 Cow. 539; Chapman v. Kimball, 9 Conn. 38. Many of the states of the United States have held to the common-law test of the navigability of rivers, and to the doctrine that only those rivers are navigable, in a legal sense, in which the tide ebbs and flows; and there has been much discussion and conflict of authority upon this question, a majority in number, perhaps, of the courts of last resort maintaining the common-law doctrine. But the more reasonable test, as we conceive of the navigability of a river, is its use as a navigable stream, or its capability of being used as such. The ebb and flow of the tide is merely an arbitrary test, since many waters where the tide flows are not in fact navigable, and many, especially on this continent, where it does not flow, are navigable. "It is navigability in fact that forms the foundation for navigability in law." McManus v. Carmichael, 3 Iowa, 1; The Genesee Chief v. Fitzhugh, 12 How. 443. While in England the ebb and flow of the tide is the most convenient, certain, and usual test of the navigability of rivers, as the tide in fact does ebb and flow in all the navigable rivers, it is wholly inapplicable in this country, where there are large fresh-water rivers, thousands of miles long, flowing almost across the entire continent, bearing upon their bosom the commerce of the outside world in part, as well as of the continent. The largest river in England, the Severn, is only about 300 miles, and the Thames is only about 200 miles, in length. If we apply the principle of the common law, that the soil under the navigable waters belongs to the sovereign for the benefit and use of the public, and are not governed by the common-law test of the navigability of streams, but by their navigability in fact, we are constrained to maintain that the true doctrine is that the beds of navigable rivers belong to the government, notwithstanding that the tide does not ebb and flow in them. In Pollard v. Hagan, 3 How. 213, it is held that "the shores of navigable waters and the soils under them were not granted by the constitution of the United States, but were reserved to the states, respectively; and the new...