The Wash. Ice Co. v. Shortall

• Decision Date: 10 November 1881
• Citation: The Wash. Ice Co. v. Shortall, 101 Ill. 46, 1881 WL 10685, 40 Am.Rep. 196 (Ill. 1881)
• Parties: THE WASHINGTON ICE COMPANYv.JOHN G. SHORTALL.
• Court: Illinois Supreme Court

101 Ill. 46

1881 WL 10685 (Ill.)

40 Am.Rep. 196

THE WASHINGTON ICE COMPANY

v.JOHN G. SHORTALL.

Supreme Court of Illinois.

Filed at Ottawa Nov. 10, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.

Mr. FRANCIS H. KALES, for the appellant:

1. To take ice from a fresh water river, navigable de facto, without the consent of the riparian owner, is not, where there is a right of access, an act of trespass. 3 Kent's Com. *427, 439; Lyon v. Fishmongers' Co.L. R. 1 App. Ca. H. L. 683; Marshall v. Peters, 12 How. Pr. 218; Myer v. Whitaker, 55 Id. 376; State v. Pottmeyer, 30 Ind. 287; State v. Pottmeyer, 33 Id. 402; De Jur. Mar. part 1, chap. 3; Barney v. Keokuk, 94 U. S. 324.

2. Water in a running stream is not the property of any man. 3 Kent's Com. 427, and cases cited above.

3. That part of the common law which distinguishes salt from fresh water rivers, where both are navigable, has always been quite inapplicable to our condition, and in no sense can it be said to have been adopted as part of our law. The Daniel Ball, 10 Wall. 557; The Montello, 11 Wall. 411; Barney v. Keokuk, 94 U. S. 324; Chicago v. McGinn, 51 Ill. 266. 4. The mis-survey and plat returned to the government office, showing that a stream is apparently not navigable, when in point of fact it is navigable, will not be allowed as authority for a conveyance to a private party of a river which is actually navigable.

5. If the river be navigable, nothing passes below the low water, and that rule is applied by the Supreme Court of the United States to fresh water rivers navigable de facto. Railroad Co. v. Schurmier, 7 Wall. 272; Yates v. Milwaukee, 10 Id. 497; Barney v. Keokuk, 94 U. S. 324.

6. Meander lines are not boundary lines. Railroad Co. v. Schurmier, supra; Middleton v. Pritchard, 3 Scam. 522.

7. The court erred in instructing the jury as to the measure of damages. It should have given defendant's instruction, that in no case was the plaintiff entitled to recover more than nominal damages.

Mr. JOSEPH WRIGHT, for the appellee:

By the common law only arms of the sea, and streams where the tide ebbs and flows, are regarded navigable. The stream above the tide, although it may be navigable in fact, belongs to the riparian proprietors on each side of it, ad filum aquæ, and the only right the public has therein is a right of easement for the purpose of navigation. City of Chicago v. McGinn, 51 Ill. 266; Ensminger v. The People ex rel. City of Cairo, 47 Id. 384.

By the common law, which prevails in this State, it is well settled that grants of land bounded on rivers or upon their margins, above tide water, carry to the grantee the exclusive right and title to the centre of the stream, unless the terms of the grant clearly denote the intention to stop at the edge of the river. Braxon et al. v. Bressler, 64 Ill. 488; Canal Trustees v. Havens, 11 Id. 554; The City of Chicago v. Laflin et al. 49 Id. 172; The Chicago and Pacific R. R. Co. v. Stein, 75 Id. 41; Middleton v. Pritchard, 3 Scam. 510; Houck v. Yates, 82 Ill. 179.

And when the riparian proprietor has the title to land on both sides of the stream, he is the owner of the whole of the bed thereof, subject to the public right of navigation. Angell on Water Courses, (7th ed.) p. 14, sec. 10; Olson v. Merrill, 42 Wis. 203.

The same rule adopted by our courts prevails in other States. Brown v. Chadbourne, 31 Maine, 9; Lorman v. Benson, 8 Mich. 18; Adams v. Pease, 2 Conn. 481; Stover v. Freeman, 6 Mass. 439; Marnier v. Shulte, 13 Wis. 692; Claremont v. Carleton, 2 N. H. 369; Commissioners v. Withers, 29 Miss. 29; Gavit v. Chambers, 3 Ohio, 495; The State v. Pottmeyer, 33 Ind. 402; Morgan v. Livingston, 6 Martin, (La.) 216; Barry v. Snyder, 3 Bush, (Ky.) 266.

As to the rights of riparian proprietors to the use of the flowing water, to fish therein, etc., counsel cited Agawam Canal Co. v. Edwards, 36 Conn. 476; Angell on Water Courses, (7th ed.) 70, 73; Hart v. Hill, 1 Whart. 138; Coolidge v. Williams, 4 Mass. 140; Beckman v. Kramer, 43 Ill. 447.

That a riparian proprietor owns the soil of the stream, subject to the public easement, the same as in the case of an ordinary highway, see Cook v. Green, 11 Price, 736; Sir John Lade v. Shepherd, 2 Str. 1004; Stevens v. Whistler, 11 East, 51; Makepeace v. Worden, 1 N. H. 16; Babcock v. Lamb et al. 1 Cow. 238.

That such proprietor is entitled to all accretions and alluvions, counsel cited the following authorities: Angell on Water Courses, (7th ed.) 68; Ingraham v. Wilkinson, 7 Pick. 268; Berry v. Snyder, 3 Bush, 266; Lovingston v. County of St. Clair, 64 Ill. 56; Adams v. Frotheringham, 3 Mass. 363; Ex parte Jennings, 6 Cow. 518; Deerfield v. Arms, 17 Pick. 41; Middleton v. Pritchard, 3 Scam. 510.

The principle governing accretions is applicable to the addition of ice formed over the bed of the stream. That ice is a commodity and property, see State v. Pottmeyer, 33 Ind. 402; Myer v. Whittaker, 55 How. Pr. R. 376; Mill River Woolen Mill Co. v. Smith, 34 Conn. 462.

As to the measure of damages, counsel cited Illinois and St. Louis R. R. and Coal Co. v. Ogle, 92 Ill. 53; McLean Coal Co. v. Lennon, 91 Id. 561; Illinois and St. Louis R. R. and Coal Co. v. Ogle, 82 Ill. 627; McLean Coal Co. v. Long, 81 Ill. 359; Robertson v. Jones, 71 Ill. 405.

As to appellee's right to maintain trespass quare clausum fregit, the court is referred to Cox v. Glue, 5 C. B. 533; Smith v. Royston, 8 M. & W. 381; Wilcox v. Kinzie, 3 Scam. 218.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action of trespass quare clausum fregit, brought in the circuit court of Cook county by Shortall, against the Washington Ice Company, for cutting, removing and appropriating, in January and February, 1879, a quantity of ice which had formed over the bed of the Calumet river, within the limits of plaintiff's land, in Cook county. Defendant pleaded the general issue, and liberum tenementum. A verdict and judgment were rendered in favor of plaintiff for $562.40, which judgment, on appeal to the Appellate Court for the First District, was affirmed, and defendant appealed to this court.

On the trial, the patent from the United States to Lafrombois and Decant was introduced in evidence, showing that there was no restriction or reservation by the government, and that the locus in quo was embraced in the 125 31/100 acres the patent conveyed. Under this patent plaintiff derived title.

From the evidence it appears that the call of 125 31/100 acres contained in the patent required that the bed of the river should be included to make that quantity; that the Calumet river, extending from Lake Michigan westward past the plaintiff's premises, where it is between 165 and 200 feet wide, is in fact a navigable river; that the defendant company owned ice-houses on its own property on the next lot east of plaintiff's, and that in operating on the ice it did not go on the plaintiff's land, save as it entered upon the ice; that it first gathered the ice in front of its own land from the river, and then commenced to take the ice opposite the plaintiff's premises.

The court, at plaintiff's request, instructed the jury that the plaintiff was the owner of the whole bed of the river flowing through his premises; that when the water became congealed, the ice attaching to the soil constituted a part thereof, and belonged to the owner of the bed of the stream, and that he could maintain trespass for the wrongful entry and taking the ice; and that the measure of damages, in case of a finding for plaintiff, would be the value of the ice as soon as it existed as a chattel--that is, as soon as it had been scraped, plowed, sawed, cut and severed, and ready for removal. Defendant excepted to the giving of such instruction, and asked the court to instruct the jury that a riparian owner on the banks of a river, navigable in fact, has no property in the ice formed in the midst of the stream, where he has done nothing to pond or separate it; but that any person might, as against such riparian owner, where he could gain access without passing over the shore or banks of the owner, enter upon the ice and remove the same, without cause of action or damage to such riparian owner, and that if such access as above stated had been gained, then at most, plaintiff could recover but nominal damages, even if the action of trespass be sustained,--which was refused, and defendant excepted. The giving and refusing of instructions is assigned as error.

It may be well to inquire, first, whether plaintiff, as riparian proprietor on both sides of the Calumet river, is the owner of the bed of the stream within the limits of his land. By the common law, only arms of the sea, and streams where the tide ebbs and flows, are regarded navigable. The stream above the tide, although it may be navigable in fact, belongs to the riparian proprietors on each side of it to its centre, and the only right the public has therein is an easement for the purpose of navigation. Chancellor Kent, in his Commentaries, declares it as settled that grants of land bounded on rivers or upon their margins, above tide water, carry the exclusive right and title of the grantee to the centre of the stream, subject to the easement of navigation, unless the terms of the grant clearly denote the intention to stop at the edge or margin of the river. If the same person be the owner on both sides of the river, he owns the whole river to the extent of the length of his lands upon it. 3 Comm. 427, 428, Marg. And this title to the middle of the stream includes the water, the bed, and all islands. 2 Hilliard on Real Prop. 92; Angell on Water Courses, sec. 5.

This rule of the common law has been adopted in this State, and is here the settled doctrine. It was so held in Middleton v. Pritchard, 3 Scam. 510, and Houck v. Yates, 82 Ill. 179, with...