Opinion of the Court.

We do not question the general principle that the word "lands" includes everything which the land carries or which stands upon it, whether it be natural timber, artificial structures or water, and that an ordinary grant of land by metes and bounds carries all pools and ponds, non-navigable rivers and waters of every description by which such lands, or any portion of them, may be submerged, since, as was said by the court in Regina v. Leeds & Liverpool Co., 7 Ad. & El. 671, 685 : "Lands are not the less land for being covered with water." See also Brocket v. Ohio &c. Railroad, 14 Penn. St. 241; Beckman v. Kreamer, 43 Illinois, 447; Hooker v. Cummings, 20 Johns. 90; State v. Pottmeyer, 33 Indiana, 402; Rex v. Wharton, Cas. Temp. Holt, 499; S. C. 12 Mod. 510; Buckingham v. Smith, 10 Ohio, 288; Mill River Woollen Mfg. Co. v. Smith, 34 Connecticut, 462; Waters v. Lilley, 4 Pick. 199; Washington Ice Co. v. Shortall, 101 Illinois, 46.

But it is equally well settled that, in the absence of any local statute or usage, a grant of lands by the State does not pass title to submerged lands below high water mark; Pollard v. Hagan, 3 How. 212; Goodtitle v. Kibbe, 9 How. 471; United States v. Pacheco, 2 Wall. 587; Weber v. Harbor Commissioners, 18 Wall. 57; Hardin v. Jordan, 140 U. S. 371, 381; Shively v. Bowlby, 152 U. S. 1, 13; and that this principle also applies to the Great Lakes. Illinois Central Railroad v. Illinois, 146 U. S. 387; Hardin v. Jordan, 140 U. S. 371, 382; Seaman v. Smith, 24 Illinois, 521; People v. Kirk, 162 Illinois, 138, 146; Revell v. The People, 177 Illinois, 468, 479.

It is true, as was said by the court in Shively v. Bowlby, 152 U. S. 1, 13, that if either the language of the grant or long usage under it clearly indicates an intention that waters submerged by the sea shall be included, it is within the power of, the sovereign to grant them. But we know of nothing in the way of constant usage with regard to these submerged waters which lends support to the argument of the railroad company that this case is within the exception and not within the general principle of Shively v. Bowlby. To make usage significant of the proper interpretation of the grant, it should

Opinion of the Court.

appear that it was a usage for the railroad company to appropriate such lands without the express consent of the city, but with its silent acquiescence. Undoubtedly such usage might be inferred from repeated appropriations by the railroad without objection from the city authorities. But the facts seem to be that, wherever the railroad has taken such lands, it has done so with the express consent or subsequent ratification of the State or city. Thus the railroad originally entered the city under an ordinance adopted June 14, 1852, giving it the right "to enter said city at or near the intersection of its southern boundary with Lake Michigan, and following the shore on or near the margin of said lake northerly to the southern bounds of the open space known as Lake Park, in front of canal section 15, and continue northerly across the open space in front of said section 15 to such grounds as the said company may acquire between the north line of Randolph street and the Chicago River,

upon which said ground shall be located the depot of said railroad," and express permission was given in section three of this ordinance to extend the railroad company's works and “fill out into the lake to a point on the southern pier not less than four hundred feet west from the present east end of the same."

In Illinois Central Railroad v. Rucker, 14 Illinois, 353, it was held that the company had the right by its charter to locate its road over these premises, the city having consented to such location. That was an application by the railroad company for the condemnation of certain lands along the water front. The petitioner alleged that the railroad had been located and was to be constructed in the waters of the lake, along the margin, in front of the premises of the land owners, and partly over the same. One of the defences was that the corporation had no power to locate its road in the waters of Lake Michigan, and that the premises in question were a part of the harbor of Chicago and an encroachment thereon. Counsel for the road took the position that the State had, by the express words of the charter, given to the company author ity to locate its road in the waters of the lake. The opinion

Opinion of the Court.

is very brief, and the report of the case unsatisfactory, but the court did hold that the company had the right by its charter to locate the road over the premises in question, the city having assented. In the case under consideration the Supreme Court took the view that the controversy in that case concerned only the 200 feet strip for the location of the main track; that no question was raised or decided in regard to the right of the railroad company to go beyond the 200 feet right of way, and take submerged lands for an engine house or other purposes named in the charter. This is entirely true; at the same time it is difficult to see wherein authority to take this 200 feet strip is distinguishable from an authority to take such other submerged lands as are necessary for the complete operation of the road. It is highly probable that, if the case had been presented in the light of subsequent authorities, a different conclusion might have been reached. It is sufficient to say of the Rucker case, however, that the city was no party to the litigation, having expressly consented to the location of the main track, and that it is in no sense estopped by the adjudication. It was entirely competent for the Supreme Court in the instant case to take a different view of the law.

It would appear that, prior to 1869, other encroachments had been made upon these submerged lands, and upon April 16, 1869, the General Assembly by an act condoned these encroachments, and declared that the right of the company "under the grant from the State in its charter and under and by virtue of its appropriation, occupancy, use and control in and to the lands submerged," was confirmed, a procedure which seems to have been quite unnecessary upon the present theory of the railroad company that it has a perpetual right under its charter to take such submerged lands as were necessary for its complete operation. McAuley v. Columbus, Chicago &c. Central Railway, 83 Illinois, 352.

The position here taken, that the grant of the railroad company did not include the submerged lands along the lake shore, is not in conflict with the New York cases, which related

Opinion of the Court.

to submerged lands admittedly belonging to private parties. In the principal case, In the Matter of New York &c. Railroad Companies, 77 N. Y. 248, the proceeding was for the condemnation of lands in the city of New York, along the Hudson River, a large portion of which was under water. It was held that, so far as they belonged to private parties, they might be condemned, but so far as the lands formed a part of the streets and avenues of the city, the company could not acquire title to them, for the reason that they belonged to the city and were for the benefit of the public, citing People v. Kerr, 27 N. Y. 188. It was also held that, so far as respected the lands of private parties, the fact that they were submerged made no difference. In Staten Island Rapid

Transit Co., 103 N. Y. 251, it appeared that the statute authorizing the formation of railroad corporations empowered them to acquire lands, under the right of eminent domain, not only from individuals, but also from the State: but, as observed by the court in the opinion, all questions as to the right of a railroad company to acquire lands under navigablė waters, as against the State, were excluded from the controversy. In the case of Kerr v. West Shore Railroad, 127 N. Y. 269, it was held that proceedings taken by the company to acquire a right of way across plaintiff's lands were effectual to vest in the company whatever title plaintiff had in the upland or in the land under the waters of the river, but it was said in the opinion to be familiar law that the shores of navigable rivers and streams, and the lands under the waters thereof, belong to the State, and may be appropriated by the State to all municipal purposes.

The grant of "waters" in the second sentence of section three is, as shown by the context, still less decisive of an intent on the part of the legislature to make a general grant of the waters of Lake Michigan. By the first sentence of this section power is given to the corporation to appropriate land not exceeding two hundred feet in width through its entire length, and "to enter upon and take possession of and use all and singular any lands, streams and materials of every kind for the location of depots and stopping places,

etc.,

Opinion of the Court.

for the complete operation of said road;" and by the second sentence "all such lands, waters, materials and privileges, belonging to the State, are hereby granted to said corporation for the said purposes, provided that nothing in this section contained shall be so construed as to authorize the said corporation to interrupt the navigation of said streams." Obviously the words "such waters" in the second sentence is limited to the "streams" specified in the first sentence, and power was given to the railroad company to take possession of such streams for the purpose of constructing bridges, dams, embankments, excavations, station grounds, etc., upon the theory that the navigable streams of the State could not be bridged, diverted or encroached upon, except with the express authority of the State. The object of the section was evidently to confer such authority, subject, of course, to the navigation laws of the United States. Escanaba Co. v. Chicago, 107 U. S. 678, 683; Illinois River &c. Packet Co. v. Peoria Bridge Asso., 38 Illinois, 467; Chicago v. McGinn, 51 Illinois, 266.

The word "streains" was evidently used to denote running waters, and is wholly inapplicable to a body of water like Lake Michigan. Trustees of Schools v. Schroll, 120 Illinois, 509. That this was the intention of the legislature is also evident from the proviso of the section "that nothing in this section contained shall be so construed as to authorize the said corporation to interrupt the navigation of said streams.” The use of this word "streams" was not only intended to differentiate the waters of rivers from the waters of the lake, but also has its bearing as tending to show that the word "land" was used in the sense of dry lands, or upland, as distinguished from submerged land. It is incredible that, if the General Assembly had intended to authorize the company to take possession of submerged lands, as it found it necessary or convenient so to do, it would not have employed more explicit language to that effect.

3. But even if the grant were as broad as claimed, and gave the company a right to take parcels of submerged land, as it became necessary for its railroad purposes, we are yet con