ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI
Fuller, Harlan, Gray, Brewer, Brown, Shiras, Jr., White, Peckham, McKenna
MR. JUSTICE PECKHAM, after making the foregoing statement of facts, delivered the opinion of the court.
A motion was made in this case to dismiss the writ of error for lack of jurisdiction, and a decision of the motion was reserved
until after an argument of the case upon the merits. The whole case having been argued, it becomes necessary to dispose of the motion to dismiss.
The motion is based upon the averment that there is no Federal question involved, and that even if there were one, it was not properly raised in the court below. We think that, for the reasons now to be stated, the motion to dismiss must be granted.
In our judgment there is no Federal question arising by reason of plaintiff's claim under the patent put in evidence by her as the source of her title to the land in question. With reference to the first clause of section 709 of the Revised Statutes, it appears plainly that the validity of the patent has never been questioned. Nor has the validity of any treaty or statute of or authority exercised under the United States been drawn in question. It is a pure question of the construction of the language used in the patent, whether the land granted therein reached the waters of the Mississippi River on the east, or whether, according to the courses and distances contained in the patent, the eastern limit of the land conveyed was some hundreds of feet west of the river. It was really a question of fact as to how far east the measurements of the courses and distances carried the boundary. There was no contention made as to the authority of the Government to convey the land to the bank of the river where the water was actually flowing, if it chose so to do. The decision did not touch the question as to how far a grant by the Government, of land bounded by the waters of a navigable stream, would carry the title, whether to high water or low water, or out to the middle of the stream. If the grant from the United States had been bounded by the waters of a navigable river, and the right to make the grant to the extent claimed by the grantee, had been denied by a grantee under a State, the denial of the validity of the authority exercised in making such grant might bring the question of construction within the principle decided in Packer v. Bird, 137 U.S. 661, and Shively v. Bowlby, 152 U.S. 1. In Packer v. Bird, it was a question how far a grant carried the title to land bounded by the margin of the Sacramento River, or, as stated by Mr. Justice Field, who delivered the opinion of the court in
that case, "The question presented is, whether the patent of the United States, describing the eastern boundary of the land as commencing at a point on the river, which was on the right and west bank, and running southerly on its margin, embraces the island within it, or whether, notwithstanding the terms of apparent limitation of the eastern boundary to the margin of the river, the patent carries the title of the plaintiff holding under it to the middle of the stream. The contention of the plaintiff is that the land granted and patented, being bounded on the river, extends to the middle of the stream, and thus includes the island. It does not appear in the record that the waters of the river at the point where the island is situated are affected by the tides; but it is assumed that such is not the case. The contention of the plaintiff proceeds upon that assumption." The opinion then proceeds with an examination of the question of what was the common law upon the subject, and whether that law had been adopted in the State of California where the land was. It was stated that it was "undoubtedly the rule of the common law that the title of owners of land bordering on rivers above the ebb and flow of the tide extends to the middle of the stream, but that where the waters of the river are affected by the tides, the title of such owners is limited to ordinary high-water mark. The title to land below that mark in such cases is vested, in England in the Crown, and in this country in the State within whose boundaries the waters lie, private ownership of the soils under them being deemed inconsistent with the interest of the public at large in their use for purposes of commerce."
It was said there was much conflict of opinion in the Western States as to what the true doctrine was, whether it was the common law, which decided the question by the ebb and flow of the tides, or the law of actual navigability of the river, and in the case then before the court it accepted the view of the Supreme Court of California in its opinion as expressing the law of that State, "that the Sacramento River being navigable in fact, the title of the plaintiff extends no farther than the edge of the stream." It was in a case involving such facts that the remark was made, in the course of the opinion, that the courts
of the United States would construe the grants of the General Government without reference to the rules of construction adopted by the States for their grants, but that whatever incidents or rights attached to the ownership of property conveyed by the Government would be determined by the States, subject to the condition that their rules do not impair the efficacy of the grants or the use and enjoyment of the property by the grantee. It was a necessary case for the court to adopt one or the other of these two conflicting rules for the construction of the grants of the General ...