Day v. Day

CocHRAN, J., delivered the opinion of this Court. The first objection presented by the appellant to the issue of a patent on the certificate of survey in this case, is founded on the Act of 1862, chapter 129, which expressly prohibits the issue of any patent of land covered by navigable waters. The survey was made under a common warrant, issued from the Land Office on the 3rd of February 1836, and the certificate thereof, returned on the 2nd of February 1837, states that nine and a half of the ten acres described, are covered by navigable water at high tides. The proceedings of the appellee to acquire a title from the State, appear to have been suspended from that time until 1857, when, the composition money was paid, and the caveat of the appellant filed; the appeal to this Court having been taken on the 9th of August 1860, from an order overruling the caveat, passed hy the Commissioner of the Land Office on the 18th of November 1859.

The proceedings up to and including the appeal, thus appear to have been taken before the Act of 1862 was passed; and the appellee therefore insists, that this case should be excepted from its operation and effect. The disposition of the appeal, in our opinion, depends on the determination of that question. We find nothing in the evidence tending in any degree to qualify or contradict the description of the land contained in the certificate of survey, and although no question was raised as to whether the terms of the Act would embrace land ⁵³⁷ described, as “covered by navigable water at high tides,” yet a brief notice of that point would seem to be appropriate. The Common Law distinction between navigable waters, and rivers or streams not navigable, is founded on the difference of the rights to which they are respectively subject; the entire property of the former being vested in the public, while the latter belong to riparian proprietors, although in some cases subject to a qualified public use.

Rivers or streams within the ebb and flow of tide, to high water mark, belong to the public, and in that sense are navigable waters; all the land below high water mark, being as much a part of the jus publicum, as the stream itself. The owners of adjacent ground had no exclusive right to such lands, nor could any exclusive right to their use be acquired, otherwise than by an express grant from the State. The Act of 1862 was intended to vest these owners of contiguous lands with rights and privileges not recognized by the Common Law, and to that end, the 1st section declares, — that the proprietor of land bounding on any of the navigable waters of the State, should be entitled to all accretions thereto by the recession of water, whether before or thereafter formed or made, by natural causes or otherwise. The 2nd section goes further, and not only vests such owners with the exclusive privilege of extending improvements from their lands into the waters in front thereof, but declares that these rights and privileges shall pass to the successive owners of such lands, as incident to their respective estates.

Looking then to the general purpose disclosed by these affirmative provisions, it is clear that the clause in the 3rd section prohibiting the issue of any patent of land covered by navigable water should be so construed, as to apply to all lands below high water mark, or in terms still more comprehensive, to embrace any lands, to which the rights and privileges conferred ⁵³⁸ by tbis Act could attach. This construction, assuming that the Act applies to the present case, would seem to establish the right of the appellant to claim the land in question as an accretion to “Snipe Island',” for the testimony of Brown, Woods, Ashur and Hawkins, most of them witnesses examined on behalf of the appellee, proves, beyond question, that the land described in the certificate of survey, is an alluvial formation,