Jones v. Soulard. 3. That the first direct grant of this land by the State was made by the act of March 3d, 1851, under which plaintiff in error claims. These propositions asserted that, in the United States, a public river, navigable, in fact, though above the tide, was, ipso facto, subject to all the legal incidents of what are properly called "arms of the sea," or creeks and rivers flowed by the tide. This was the main position of the plaintiff in error (defendant in the court below) in the Circuit Court, and it is presumed that the same argument will be repeated here. The defendant in error maintains that the doctrine of Sir Matthew Hale on this subject has been adopted, in all its integrity, by the judicial mind of America. He will first examine those decisions on the subject which have been made by the courts of the several States, and will then consider whether any modification of the rule thus established has been made necessary by opinions which have fallen from this court. As the land in question lies in Missouri, we naturally look, in the first instance, to the decisions of that State to ascertain the rule by which controversies respecting land titles are to be determined. The first decision bearing on this point occurs in 4 Mo. R., 343, O'Fallon v. Price. It was followed by the case of Shelton v. Maupin, 16 Mo., 124. Then came the case of Smith et al. v. the City of St. Louis, 21 Mo. Rep., 36; and the case of Smith et al. v. Kelly et al., not yet reported, decided at the March Term, 1860. In all these cases, the common-law rule laid down by Hale, and referred to by Cowen, was quietly adopted by the court, and, indeed, does not seem to have been gravely questioned by the bar. The only question supposed to present any difficulty was the point which Judge Cowen states as giving rise to all the doubt on this subject which a lawyer can entertain, viz: whether the person claiming to the centre of the stream was, in truth, a riparian owner. The consequences following from the ownership of the shore were treated as being so plain as to require neither illustration nor argument. Jones v. Soulard. When this question has come up, incidentally or directly, before this court, it has been treated as a settled matter. See 13 Howard's Reports, in the case of Howard v. Ingersoll, 416, (Judge Wayne's opinion,) and 422, (Judge Nelson's opinion;) see, also, 18 How., 150, Jones et al. v. Johnston. These are the latest opinions in which a reference to this principle is to be found. It had been repeatedly spoken of in like manner in earlier cases. After referring to the decisions of the courts of Missouri and of the United States, it would seem unnecessary, in respect of the title to land in Missouri, to speak of the decisions of other States. Nevertheless, a brief citation of cases decided in the different States, all agreeing with the doctrine of Sir Matthew Hale, may not be inappropriate. All the cases which are now quoted come fully up to the ground taken by the defendant in error, viz: Maine-Brown v. Chadbourne, 31 Maine Rep., 9. Massachusetts-Storer v. Freeman, 6 Mass., 439; King v. New Hampshire-2 New Hampshire Rep., 369, Claremont Connecticut-2 Conn. Rep., 483, Adams v. Pease; 6 Conn. New York-3 Caine's Rep., 307, Palmer v. Mulligan; 17 New Jersey-1 Halsted's Rep., 1, Arnold v. Munday; 3 Maryland-5 Harr. and J., 195, Brown v. Kennedy. Virginia-1 Rand. Rep., 417, Hays's Ex. v. Bowman. Jones v. Soulard. North Carolina-Taylor's Rep., 84, (top paging,) 136, (side paging,) Hammond v. McGlaughlin. Alabama-8 Porter, 9, Hagan et al. v. Campbell & Cleveland. Georgia-6 Georgia Rep., 141, Young et al. v. Harrison Mississippi-3 Smedes and Marshall, 366, Morgan et al. v. Louisiana-6 Martin, 216, Morgan v. Livingston; 18 Id. 278. Tennessee-3 Swan, 9, Stuart v. Clark's Lessee, (overruling Illinois-3 Scammon, 510, Middleton v. Pritchard. Wisconsin-2 Wisconsin Rep., 308, Jones v. Pettibone. At the trial in the Circuit Court, the defendant (now plaintiff in error) cited, among other authorities to support his views, cases from the Supreme Courts of Tennessee, Alabama, and Michigan, being 6 Humphreys, 358; 2 Porter, 436; and 1 Walker Ch. Rep., 155, respectively. The case in 6 Humphreys is overruled by that in 3 Swan, 9; and though the cases cited from Alabama and Michigan cannot be so distinctly said to have been overruled by the later cases of 8 Porter, 9, and Lorman v. Benson, (which will be found in 8 Michigan Rep. when published,) it is only because the previous decisions of those States were not as supposed by plaintiff in error; no previous decision needed to be overruled in those States. The cases cited from those States by defendant in error are unambiguous, and directly in his favor. He has been careful not to cite from any State any case which was not in point. All those which he has collated are precise, and establish, without any variation, that the bed of a fresh-water stream, or of a river above tide-water, be Jones v. Soulard. longs to the owner of the adjacent soil, and that this holds good whether the portion of the bed which is in question be navigable in fact or not; the only consequence of the stream admitting of navigation above tide-water being, that the proprietary right of the owner of the adjacent soil is subject to the public easement, or servitude, as it is called by Sir Matthew Hale. It is merely repeating the same idea, in almost the same words, to say that, when a piece of land is bounded by a river above tide-water, the middle of the main channel-filum aqua-is the precise line of the boundary; and, therefore, the town of St. Louis, as it stood incorporated on the 13th of June, 1812, was bounded on the east by the middle of the main channel of the Mississippi river. It is admitted that if this were so, then the premises in controversy were within the town, and within the reservation of the second section of the act of Congress of that date. It is scarcely important to fortify a position so abundantly strong; but it may not be inappropriate to refer to the fact that the first charter of St. Louis, passed by the State Legislature directly, without the intervention of a court, expressly calls for the middle of the main channel of the river as the eastern boundary of the corporate limits of the city, and this expression is to be found in all subsequent amendments to the charter. The words of the first section of the act of December 9, 1822, (which is the first charter granted directly by the Legislature,) are as follows: "Sec. 1. That all that district of country contained within the following limits, to wit: Beginning at a point in the middle of the main channel of the Mississippi river, due east of the southern end of a bridge across Mill creek at the lower end of the town of St. Louis; thence due west to a point at which the western line of Seventh street, extended southwardly, will intersect the same; thence northwardly along the western line of Seventh street, and continuing that course to a point due west of the northern line of Roy's tower; thence due east to the middle of the main channel of the river Mississippi; thence with the middle of the main channel of the said river to the beginning, shall be and is hereby erected into a city, by the name of the city of Jones v. Soulard. St. Louis." This may be regarded as the more explicit declaration of the character and position of the eastern boundary, . which the Legislature saw fit to give, instead of using the expression which had previously been used by the Court of Common Pleas on the same subject, which, to a lawyer, however, would convey precisely the same meaning. In the Circuit Court, it was gravely stated, as a geographical truth, that in England no river was navigable, in fact, above tide-water, so as to be capable of being a public stream above that limit. Hence, (it was argued,) the point to which the tide flowed being the limit of navigability, tide-water and navigable water became convertible terms in that country, the one meaning in every respect the same thing as the other, and having all the legal incidents of the other. But the inland navigable waters of the United States being recognised as subject to the admiralty jurisdiction of its courts, (12 How., 450, Fitzhugh v. Genesee et al.,) and it having been decided (3 How., 212, Pollard's Lessee v. Hagan) that the ownership of all lands covered by tide-water within the limits of any State, and undisposed of by the United States, becomes vested in the State upon its admission into the Union; therefore, the bed of every fresh-water stream which is deep enough at its ordinary stage to float any of the boats or vessels which are used in commerce, no matter how far above the influence of the tide, becomes the property of the State on its admission into the Union, and the owner of land adjacent to such stream is bounded by high-water mark. Such was, in substance, the argument of the defendant below. It is submitted, that nothing but a singular confusion of the senses in which the same word is used, in two distinct propositions, together with a total ignoring of the physical truths which underlie the whole learning upon this important subject, could have led those who labor under the geographical mistake above-mentioned into the adoption of the startling conclusion for which the plaintiff in error contends. In the first place, it is far from being true that all the rivers of England are unfit for navigation above tide-water, and are not public rivers above that point. On the contrary, the |