Lovingston v. The County of St. Clair.

The ferry company protected such accretions by an expenditure of labor and money.

The accretions, then, are partly the result of natural causes and structures and work erected and performed for the good of the public. Appellants should not thereby lose their frontage on the river and be debarred of valuable rights heretofore enjoyed. This would be a grievous wrong, for which there would bo no adequate redress.

The judgment of the Circuit Court is reversed and the cause remanded.

Judgment reversed.

NOTE.--Upon appeal to the Supreme Court of the United States the foregoing judgment was affirmed, and the following opinion of the court was pronounced by Mr. Justice SWAYNE, after stating the facts:

Two questions are thus presented for our determination:

One is, whether the river line was the original west boundary of the surveys, or either of them?

The other, if this inquiry be answered in the affirmative, is, to whom the accretion belongs.

The first is a mixed question of law and fact. The second is a question of law.

Before entering upon the examination of the first of these questions, it may be well to advert to a few of the leading authorities apposite to this phase of the case. It is a universal rule that course and distance yield to natural and ascertained objects. Preston's Heirs v. Boumar, 6 Wheat. 580. A call for a natural object, as a river, a spring, or even a marked line, will control both course and distance. Newsom v. Prior's Lessee, 7 Wheat. 7. Artificial and natural objects called for, have the same effect. Barclay et al. v. Howell's Lessee, 6 Pet. 499; Baxter v. Evett's Lessee, 7 Monr. 333. In a case of doubtful construction, the claim of the party in actual possession ought to be maintained, especially where it has been upheld by the decision of the State tribunals. Preston's Heirs v. Bowmar, supra. A patent called "to begin on the Ohio river, and then for certain courses and distances, without any courses or marked lines to the mouth of the Kennikek, and then certain courses and distances, without any corners or marked lines, to a stake in the Ohio river." If the river was the boundary, the land in controversy was within the patent. If the courses and distances prevailed, the patent did not affect it. The court said: "It is our opinion that the river is the boundary." It was added: "two of the calls are on the river." There are no intermediate marked lines or corners. The general description is “to lie on the Ohio." These facts alone would not leave room for any other construction of the patent. Bruce v. Taylor, 2 J. J. Marsh. 160. This case is very instructive, and contains much additional argument in support of the view expressed. Cockrell v. McQuinn, 4 Monr. 62, is to the same effect. In the latter case the court said: "None will pretend that the legal construction of a patent is not a matter proper for the decision of tha yourt whose province it is to decide all questions of law." In Bruce v. Mor7an, 1 B. Monr. 26, the rule laid down in Bruce v. Taylor, supra, was re-affirmed. Where a survey and patent show a river to be one of the boundaries of the

Lovingston v. The County of St. Clair.

tract, it is a legal deduction that there is no vacant land left for appropriation between the river and the river boundary of such tract. Churchill v. Gundy, 5 Dana, 100. Where a deed calls for a corner standing on the bank of a creek. “thence down said creek with the meanders thereof," the boundary is lowwater mark. McCullock's Lessee v. Aten, 2 Ohio, 309. See, also, Handley's Lesses v. Anthony, 5 Wheat. 380. Where a deed calls for an object on the bank of a stream, "thence south, thence east, thence north to the bank of the stream, and with the course of the bank to the place of beginning," the stream at lowwater mark is the boundary. Lamb v. Rickets, 11 Ohio, 311. Where the line around the land was described as "running to a stake at the river, thence on the river N. 6 deg. 40 min. 23 perches, thence N. 39 deg. 50 min., W. 33 perches, thence N. 20 deg. 20 min. 35 perches and 8 links to a stake by the river," it was held that this description made the river a boundary. Rix v. Johnson, 5 N. H. 520.

Where premises above tide-water are described as bounded by a monument standing on the bank of the river, and a course is given as running from it down the river as it winds and turns to another monument, the grantee takes usque filum aquæ, unless the river be expressly excluded from the grant by the terms of the deed. Luce v. Carley, 24 Wend. 451.

The eastern line of the city of St. Louis, as was incorporated in 1807, is as follows: "From the Sugar Loaf east to the Mississippi, from thence by the Mississippi to the place first mentioned." This court held that the call made the city a riparian proprietor upon the river. It was said in this connection that " many authorities resting on adjudged cases have been adduced to us in the printed argument, presented by the counsel for the defendant in error, to show that, from the days of Sir Matthew Hale to the present time, all grants of land, bounded on fresh-water rivers, where the expressions designating the water line are general, confer proprietorship on the grantee to the middle of the stream, and entitle him to the accretions. We think this, as a general rule, too well settled, as part of the English and American law of real property, to be open to discussion." Jones v. Soulard, 24 How. 44. See, also, Schumier v. St. Paul, 10 Min. 830, and Shelton et al. v. Maupin, 16 Mo. 121.

It may be considered a canon in American jurisprudence, that where the calls in a conveyance of land are for two corners at, in, or on a stream or its bank, and there is an intermediate line extending from one such corner to the other, the stream is the boundary, unless there is something which excludes the operation of this rule by showing that the intention of the parties was otherwise. Whether in the present case the limit of the land was low water, or the middle thread of the river, is a question which does not arise, and to which we have given no consideration. The point was considered in Railroad v. Shumier, 7 Wall. 287.

Survey 579 is the elder one. Its calls are: Beginning on the bank of the Mississippi river opposite to St. Louis, from which the lower window in the U. S. storehouse in St. Louis bears N. 70% W.; thence S. 5 west, 160 poles to point in the river from which a sycamore 20 inches in diameter bears S. 85 E., 250 links; thence S. 85 E., 130 poles (at 30 poles a slash) to a point; thence N. 15 W. 170 poles to a forked elm on the bank of Cahokia creek; thence N. 85 W. 70 poles to the beginning." It will be observed that the beginning corner is on the bank of the river. The second corner is a point in the river. The line between them is a straight one. Where the course as described would have fixed the line does not appear. There was an obvious benefit in having the entire front of the land extended to the water's edge. There was no previous

Lovingston v. The County of St. Clair.

survey or ownership by another to prevent this from being done. No sensible reason can be imagined for having the two corners on the river, and the intermediate line deflect from it. Under the circumstances we cannot doubt that the river was intended to be made, and was made, the west line of the survey. In the light of the facts such is our construction of the calls of the survey, and we give them that effect.

The calls of survey No. 786, as respects this subject, are: "Thence N. 85 deg. W. 174 poles, to a post on the bank of the Mississippi river, from which, thence N. 5 deg. E., up the Mississippi river and binding therewith (passing the southwesterly corner of Nicholas Jarrot's survey, No. 579, claim No. 99, at 6 poles), 551 poles and 10 links, to a post north-westerly corner of Nicholas Jarrot's survey, No. —, claim No. 100, from which a sycamore 35 inches dia. bears S. 21 deg. W. 29 links; thence S. 85 deg. E. with the upper line of the last-mentioned survey 88 poles to the beginning."

Here the calls as to the river are more explicit than in survey No. 579.

The language, "up the Mississippi river and binding thereon," leaves no room for doubt. Discussion is unnecessary. It could not make the result clearer. The river must be held to have been the west boundary of this survey also. In reaching these views we pervert no principle of law or justice. Our conclusions are sustained by authority and reason.

This brings us to the consideration of the second question.

It is insisted by the learned counsel for the plaintiff in error that the accretion was caused wholly by obstructions placed in the river above, and that hence the rules upon the subject of alluvion do not apply. If the fact be so, the consequences do not follow. There is no warrant for the proposition. The proximate cause was the deposits made by the water. The law looks no further. Whether the flow of the water was natural, or effected by artificial means, is immaterial. Halsey v. McCormick, 18 N. Y. 150; 3 Washb. on Real Prop. 48.

The law in cases of alluvion is well settled. In the Institutes of Justinian it is said: "Moreover the alluvial soil added by a river to your land becomes yours by the law of nations. Alluvion is an imperceptible increase, and that is added by alluvion, which is added so gradually that no one can perceive how much is added at any one moment of time." Lib. II, tit. I, § 20. The surveys here in question were not within the category of the agri limitati of the civil law. The latter were lands belonging to the State by right of conquest and granted or sold in plats. The increase by alluvion in such cases did not belong to the owner of the adjoining plat. D. XLI, 1, 16; Sanders' Inst. 177. See also Morgan v. Livingston, 6 Mart. (La.) 251.

The Code Napoleon declares: "Accumulations and increase of mud formed successively and imperceptibly on the soil bordering on a river or other stream is denominated 'alluvion.' Alluvion is for the benefit of the proprietor of the shore, whether in respect of a river, a navigable stream, or one admitting floats or not; on the condition, in the first place, of leaving a landing place or towingpath conformably to regulations." Book II of Property, etc., § 556. Such was the law of France before the Code Napoleon was adopted. 4 Nouv. Diction. de Brillon. 278; Morgan v. Livingston et al., 6 Martin, 243.

And such was the law of Spain. Parted. III, tit. XXVIII, Law 26. Blackstone thus lays down the rule of the common law: "And as to lands gained from the sea, either by alluvion, by the washing up of land and earth, so as in time to make terra firma, or by dereliction, as when the sea shrinks below the usual water-marks; in these cases the law is held to be that if the

Lovingston v. The County of St. Clair.

gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining. For de minimis non curat lex; and beside, these owners being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is, therefore, a reciprocal consideration for such possible charge or loss. But if the alluvion be sudden or considerable, in this case it belongs to the king; for, as the king is lord of the sea, and so owner of the soil while it is covered with water, it is but reasonable he should have the soil when the water has left it dry." 2 Com. 262. See also Woolwich's Law of Waters, 34; and Shultes' Aquatic Rights, 116.

Blackstone takes his definition from Bracton, lib. 2, cap. 2. Bracton was a judge in the reign of Henry III, and the greatest authority of his time. Hale, in his De Jure Maris, says Bracton followed the civil law. Hale himself shows the great antiquity of the rule in the English law. De Jure Maris, 1st part, ch. 6. See also The King v. Lord Yarborough, 1 Dow & Clark, App. C. 187.

Chancellor Kent, the American commentator, recognizes the rule as it is laid down by the English authorities referred to. 3 Kent's Com. 428. By the American Revolution the people of each State, in their sovereign character, acquired the absolute right to all their navigable waters and the soil under them. Martin v. Waddle, 16 Pet. 307; Russel v. The Jersey Co., 15 How. 426. The shores of navigable waters and the soil under them were not granted by the Constitution to the United States, but were reserved to the States respectively. And new States have the same rights of sovereignty and jurisdiction over this subject as the original ones. Pollard's Lessee v. Hagan et al., 3 How. 812; Pollard v. Kibbe, 9 id. 471; Hallet v. Bute, 13 id. 25; Withers v. Buckley, 20 id. 84.

The question here under consideration is not a new one in this court. In New Orleans v. The United States, 10 Pet. 662, it was said: "The question is well settled at common law that the person whose land is bounded by a stream of water which changes its course gradually by alluvial formations, shall still hold the same boundary, including the accumulated soil. No other rule can be applied on just principles. Every proprietor whose land is thus bounded is subject to loss by the same means which may add to his territory, and as he is without remedy for his loss in this way, he cannot be held accountable for his gain."

To the same effect are Saulett v. Shepherd, 4 Wall. 502, and Schools v. Risley, 10 id. 110.

In the light of the authorities alluvion may be defined as an addition to riparian land, gradually and imperceptibly made by the water to which the land is contiguous. It is different from reliction, and is the opposite of avulsion. The test as to what is gradual and imperceptible in the sense of the rule is, that though the witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on. Whether it is the effect of natural or artificial causes makes no difference; the result as to the ownership in either case is the same. The riparian right to future alluvion is a vested right. It is an inherent and essential attribute of the original property. The title to the increment rests in the law of nature. It is the same with that of the owner of a tree to its fruits, and of the owner of flocks and herds to their natural increase. The right is a natural, not a civil one. The maxim “qui sentit onus debet sentire commodum" lies at its foundation. The owner takes the chances of injury and of benefit arising from the situation of the property. If there be a gradual loss, he must bear it; if a gradual gain, it is his. The principle applies alike to streams that do, and to those that do not

The People v. Wilson.

overflow their banks, and where dykes and other defenses are, and where they are not, necessary to keep the water within its properflimits. 3 Washb. on Real Prop. 48; Municipality No. 2 v. Orleans Cotton Press, 18 La. 122. In England the rule which is applied to gradual accretions on the shores of fresh waters is applied also to such accretions on the shores of the sea. The King v. Lord Yarborough, 3 Dow & Clark's Ap. Cas. 178.

We may well hold that the adjudications of this court to which we have referred are decisive of the case before us. They are binding upon us as authority. We are of the opinion that the United States never had any title to the premises in controversy, and that nothing passed by the several acts of congress and of the legislature of Illinois, relied upon by the plaintiff in error. The judgment of the Supreme Court of Illinois is affirmed. Judgment affirmed.

THE PEOPLE V. WILSON.

(64 III. 195.)

Contempt - what constitutes—power of the court to punish therefor. Publica tions-disclaimer by publisher.

Contempts are of two kinds, direct and constructive; a direct contempt is one offered in the presence of the court while sitting judicially; a constructive contempt is one which tends to obstruct and embarrass a court, though the act be not done in its presence.

The publication of an article by any person, even in a newspaper at a place remote from that where the court is being held, concerning a case pending in court, and which has a tendency either to prejudice the public, to corrupt the administration of justice, to influence the court by a threat of “ popular clamor," or to reflect on the tribunal, the parties, the jurors, the witnesses or the counsel, held a contempt of court and punishable as such by a process of attachment.

The power to punish contempt is original with all courts of justice, and is determined by the principles of the common law and is not limited by exist ing statutes.

All acts which impede, embarrass or obstruct a court of justice, or which tend to produce such effects, whether done in or out of court, are to be considered as done in the presence of the court, and are punishable as contempts. The meaning and intent of a published article are to be determined by a fair interpretation of the language used, and are matter of law for the court as to whether or not they constitute contempt, and any disclaimer on the part of the publisher as to any intentional disrespect to the court, is not a sufficient ground for discharging a rule to show cause why an attachment should not issue.

Where a party is under a rule to show cause why an attachment should no issue against him for contempt, a mere excuse, without appearance, is no, sufficient ground for discharging the rule, and will only affect the question of punishment.