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JOHN H. HOWARD, PEAINTIFF IN ERROR, v. STEPHEN M. INGERSOLL; JOHN H. HOWARD AND JOSEPHUS ECKOLLS

December 1, 1851

JOHN H. HOWARD, PEAINTIFF IN ERROR,
v.
STEPHEN M. INGERSOLL; JOHN H. HOWARD AND JOSEPHUS ECKOLLS, PLAINTIFFS IN ERROR,
v.
STEPHEN M. INGERSOLL.



THESE two cases were argued and decided together. The suits related to the same tract of land and the rights of the same parties, although they came up from different States. The first, which is referred to in the opinion of the court as No. 121, was an action on the case brought by Ingersoll in the Circuit Court of Alabama (State court) to recover damages for the wrongful obstruction, by Howard, of the Chattahoochee River, whereby the waters of that stream were backed in such a manner as to overflow Ingersoll's land and obstruct the use of his mill. This mill was built between the high bank of the river and low-water mark, as it was called, so that when the water was high it was overflowed; but when the water was low, it was on dry ground. At such times, it was worked by a race fed from the river by means of a wing dam. Howard built a dam below, which backed the water upon the mill, and impeded its operations. On the trial of this cause the jury returned a verdict in favor of Ingersoll for the sum of $4,000. The cause was carried to the Superior Court of Alabama, where the judgment was affirmed; whence it was brought to this court under the 25th section of the Judiciary Act. {No. 131. {HOWARD & ECKOLLS, Plaintiffs in error, {v. {INGERSOLL. This case was brought, by writ of error, from the Circuit Court of the United States for the District of Georgia. Howard & Eckolls, the builders of the dam, brought a suit against Ingersoll in the Superior Court of Muscogee county, Georgia, to recover damages for an illegal entry upon their land covered with water, and fishing thereon. The jury found a verdict for the plaintiffs for the sum of $600. A bill of exceptions brought the case up to this court. After these general observations upon the two cases, let us now take them up separately; and first of No. 121. {HOWARD, Plaintiff in error, {v. {INGERSOLL. It has been always stated that this case was brought from the Supreme Court of Alabama. The bill of exceptions, which was taken on the trial of the cause in Russell Circuit Court, was as follows:

The opinion of the court was delivered by: These cases having been brought before this court upon these two bills of exceptions, were argued by Mr. Johnson and Mr. Berrien, for the plaintiffs in error, and Mr. Coxe, for the defendant in error. The reporter gives the following notes of the argument of Mr. Berrien, which have been kindly revised by him, and having no notes of Mr. Coxe's argument, begs to refer the reader to the report of the Alabama case, in 17 Alabama Reports, 780; where will be found the argument of the counsel for Ingersoll, and also the opinion of the court as delivered by Dargan, C. J.

Bill of Exceptions. On the trial of this cause the plaintiff (Ingersoll) produced a patent from the United States to himself, dated in 1802, to fractional section No. 11, township 7, range 30, and proved title in himself to lots 1, 2, 3, and 4, in the town of Girard, lying in Russell county, Alabama, and specifically described in some of the counts of the declaration; said land has for its eastern boundary the State of Georgia, and is immediately west of the Chattahoochee River, on the bank thereof. This river has, for the most part, high bluff banks; but in some places the banks are low, and the adjacent lands on either side (where they are low) are subject to inundation, for nearly a mile out of the banks. Immediately at the plaintiff's lands and lots there are banks of the river from fifteen to twenty feet high, and very abrupt, and are high on both sides, and above and below, for considerable distances. The abrupt and high banks, however, do not extend down to the water's edge at ordinary low water. The bed of the river at this point is about two hundred yards wide from bank to bank; and by the bed is meant the space between these abrupt and high banks, and is composed of rocks and slues among the rocks from one side to the other; ordinary low water and extreme low water together prevail for about two thirds of the year, during which time the river is confined to a channel about thirty yards wide, leaving the bed of the river as above described, exposed on each side of this channel, from thirty to sixty yards. Immediately under the western abrupt and high bank, and within the latitude of the north and south boundary line of plaintiff's land, side lines being drawn down to the water's edge, and in the bed of the river, as above described, east of said western abrupt and high bank, the plaintiff erected a mill previous to 1842, and continued the possession and use thereof until overflowed by defendant's dam. The place on which said mill was situated was covered with water in ordinary high water, but was bare and dry in ordinary low water.

To supply his mill with water the plaintiff had erected a wing dam, which ran in a north-east direction into the river, and supplied his mill with water at all seasons, and diverted a portion of the stream to the said mill, which passed again into the river above defendant's dam, and he, plaintiff, had blown out rock to give room to his mill-wheel.

It was further proved, that, in 1845, the defendant erected a dam across the river, about three hundred yards below the plaintiff's mill, and opposite the city of Columbus, Georgia. The said dam was four to five feet high, and at ordinary low water backed the water on plaintiff's mill, so as to prevent its working; in high water the said dam made no difference, as the water was level above it and on both sides of it. The plaintiff further proved the value of his mill and the injury he sustained. The defendant introduced in evidence the act of cession of the State of Georgia to the United States; the Constitution of the State of Georgia; an act of the State of Georgia granting to the city of Columbus, the right to lay off lots on her river boundary, running across the Chattahoochee River, to high-water mark, on the western bank of said river. All of which evidence, being printed in the public acts, are to be read and considered in full as part of this bill of exceptions.

The defendant also offered in evidence an authenticated deed to him, from the city of Columbus, granting him said lots, running across the river, and authority to erect the dam across the river; which original deed and accompanying plat, it is agreed, may form a part of this bill of exceptions, and may be exhibited as such. The plaintiff's land was situated at a point of the river where there were falls or rapids, and where it was not navigable, and that it was far above tide-water, and a freshwater stream, and between Miller's Bend and Cochei Creek. The defendant's dam raised the water to a point on the western high bank which [is] dry at ordinary low water. One witness proved that he never knew a sheriff or constable of Georgia to come over on the western bank to serve any writ, or process, or other official act, and stated that he, the witness, had good opportunity to know if any such thing had been attempted, as he had lived on the western bank for ten years.

At the place at which plaintiff's mill was erected the summit of the bank was never overflowed, even at the highest stages of the river, the water of which always remained several feet below it. The plaintiff gave in evidence to the court, which was not allowed to go as evidence to the jury, although requested by plaintiff, acts of the State of Georgia, conveying authority to the commissioners to negotiate the cession of territory from Georgia to the United States, and also the act of Georgia ratifying said cession; all of which may be read from the public acts. The court charged the jury, that one passing from Georgia to Alabama, across the Chattahoochee River, at ordinary low water, would be upon the bank as soon as he left the water on the western side, although an inappreciable distance from the water, and that the line described in the treaty of cession from Georgia to the United States, as running up said river, and along the western bank thereof, is the line impressed upon the land by ordinary low water; and if they believed the plaintiff's mill was west of that line, and defendant's dam backed the water so as to obstruct the operation of said mill, the plaintiff was entitled to recover; to which charge the defendant excepted.

The defendant asked the court to charge the jury, that if the bank of the river was ordinary low-water mark, the plaintiff had no right to the use of the water at that stage; which charge the court refused; to which defendant excepted, and prays his exceptions to be signed and sealed, and made part of the record of this cause, which is accordingly done in term time.

J. J. WOODWARD. [L. S.]

The judgment of the Circuit Court was affirmed by the Supreme Court of Alabama, and brought to this court to be reviewed, under the 25th section of the Judiciary Act.

No. 131.

{HOWARD & ECKOLLS, Plaintiffs in error,

{v.

{INGERSOLL.

This action was brought by way of petition by Howard & Eckolls, the owners of the dam below, against Ingersoll, the owner of the mill above, for entering the close (ground covered with water) of the petitioners and fishing. Ingersoll removed the cause into the Circuit Court of the United States, where it was tried in July, 1850. The court having refused to charge the jury as prayed for by the plaintiffs, they brought the case to this court, although there was a verdict in their favor for $600 damages.

The following is the bill of exceptions:

On the trial of this cause the plaintiffs proved, by the articles of cession, dated on the 16th day of June, 1802, between the United States and Georgia, that the boundary-line between Georgia and the Territory, now State of Alabama, was a line beginning on the western bank of the Chattahoochee River, and running along the western bank thereof. And did further prove, by competent testimony of witnesses, both for the plaintiffs and on the part of the defendant, that at the part of the said River Chattachoochee, where the closes in the said declaration mentioned are situated, the said river (not being a tide-water, and not being navigable) is considerably reduced at its lowest state, especially in droughts, being quite narrow at such state, particularly in some places where it is confined by rocks projecting from the opposite sides of the river, and in other places spreading out more at large. That between the water in this state of the river, and a high and perpendicular bluff on the western or Alabama side, the distance varies, according to one witness, from 30 to 100 yards; according to another, the bluff banks are high and precipitons; at some places they are 30 feet, at others 100, and again 150 feet from the main channel; by another, at the foot of the bluff bank is a flat space from 50 to 150 feet wide, between ordinary water mark and the bluff bank; from very low-water mark to the bluff bank is more than 50 to 150 feet. According to another witness it is from 100 to 120 feet from the bluff bank to medium water mark, and from 80 to 100 feet from medium water mark to low-water mark; that this intermediate space is a flat or bottom land, gradually descending from the base of the bluff to the water; that in places upon this flat there is a growth of shrubbery, and some trees, such as pines, gums, oaks, willows, alders, poplars, &c.; that the growth on this flat would be liable to be destroyed if the flat were long or often overflowed; that there is a road or cart-way underneath this bluff, a grist-mill, one post of which stands in the water, (the water approaching very near the bluff at that point,) and there being just room between the mill and the bluff for the above road to pass. There is also a saw-mill, (but not on the closes in the declaration mentioned,) and a cotton-gin factory under the bluff on this flat; and a small portion of it has at times been cultivated. That in the ordinary winter state of the river the water covers this flat about half way to the bluff, to the base of a bank or ridge of sand and gravel, having an inclination of about forty-five degrees; that in very full states of the river, that is, in freshets, the water covers the flats, reaching to, or nearly to, the bluff, and in the freshet of 1840, known as the Harrison freshet, it extended twelve feet up the base of the bluff; that the extent to which this flat is covered with water varies with the height of the freshets in said river, it being all dry land at the lowest state of the river, and a portion of it being always, except in high freshets, uncovered with water; that it is only in the full state of the river that the water overflows the sand-bank or ridge before mentioned.

Whereupon the plaintiffs prayed the court to instruct the jury that the true interpretation of the said article of cession in the year 1802, between the United States and Georgia, requires the boundary line between the State of Georgia and the Territory, now State, of Alabama, to be drawn on and along the western bank of the Chattahoochee River. And that wherever the jury may find that bank to be, the jurisdiction and limits of the State of Alabama must terminate, and cannot pass beyond that line to the eastward of the same, but that all east of said line, whether it be land or water, is included within the limits and jurisdiction of Georgia, and no grant from the United States or the State of Alabama can confer title to any part of the same, either directly or indirectly, either by virtue of the said grant, or as an incident to the same.

Which instruction the said court refused to give, except subject to this modification, to wit, that the articles of cession was an instrument, the interpretation of which belonged to the court and not to the jury, and gave the said instruction subject to the said modification; and moreover instructed the jury that, by the true construction of those articles of cession, the boundary-line between the State of Georgia and Alabama was to be drawn on and along the western bank of the Chattahoochee River at low-water mark, when the river was at its lowest state.

To which refusal and instruction the plaintiffs except, and pray this bill of exceptions to be signed, sealed, and enrolled, which is done this fifth day of July, 1850.

JNO. C. NICOLL, [L. S.] District Judge for the District of Georgia.

Mr. Coxe contended that this court had no jurisdiction over the Alabama case, because Ingersoll claimed under a title derived from the United States, and the judgment was in his favor and not against its validity, as required by the 25th section of the Judiciary Act.

Mr. Berrien, for plaintiffs in error.

I will consider,–1st. The question of jurisdiction; 2d. That of boundary.

Jurisdiction. This question arises under the 25th section of the Judiciary Act of 1789, (1 Stat. at Large, 85.) The object of the section is to give appellate jurisdiction to the Supreme Court of the United States from decisions of the State courts, in all cases in which it is necessary to determine (I use the words of the act) the validity of a treaty, of a statute, or an authority exercised under the United States, or the construction of any clause of the Constitution or of a treaty, or of a statute of, or commission held under, the United States. No further detail is necessary to present the question of jurisdiction than to state, that the United States and Georgia both claimed lands lying east and west of the River Chattahoochee; that the United States exercised jurisdiction over them by organizing the Territory of Mississippi, recognizing in the act the claims of Georgia, saving her rights, and providing for the appointment of commissioners to adjust these conflicting claims, (Act of 1798, 1 Stat. at Large, 549; Act of 1800, 2 Stat. at Large, 69); that Georgia acquiesced in this proposal; that commissioners were appointed, and articles of cession defining the boundary between the territory claimed by the United States and by Georgia were duly executed and confirmed. On the true ascertainment of that boundary the rights of the parties in these cases depend.

Georgia ceded to the United States all her right, title, &c. to all lands lying west of that line. The United States ceded to Georgia all their right, title, &c. to all lands lying east of it. The plaintiffs in error, deriving their title from Georgia, claimed under her original title, modified as it was by these articles, and therefore claimed also under the United States, that is to say, under the cession to Georgia by the United States of all their right, title, &c. to all lands lying east of a line running on and along the western bank of the River Chattahoochee. They claimed the whole river, the shore or flats between the margin of the water, and the bank, and founded their claim on the legislative grant of Georgia and these articles of cession by the United States.

The question in controversy between the parties was, What was the line which they established? In No. 121 the court decided it to be 'the line impressed upon the land by ordinary low water.' In No. 131 it was declared to be 'a line drawn on and along the western bank of the Chattachoochee River at low-water mark, when the river was at its lowest state.'

These decisions were therefore adverse to the claim set up by the plaintiffs in error under the act of cession by the United States, denying their exclusive right to the river in every stage, to the shores and flats between the water's edge and the base of the bank, and to its inner edge or slope. The validity of this claim it is not material to consider on this question of jurisdiction. It is sufficient that it was made in the Supreme Court of Alabama, that it was made under the cassion from the United States to Georgia, from whom they derived title, and that that court decided against it. In the construction of the 25th section of the judiciary Act, this court has said, 'it must appear that the right, title, &c., under a statute or commission of the United States, was specially set up by the party claiming the same in the State court, and the decision be against the same.' Montgomery gomery v. Hernandez, 12 Wheat. 129. But the court has also said that it is 'not necessary that the question shall appear in the record to have been raised, and the decision made in direct and positive terms, ipsissimis verbis; it is sufficient if it appear that the question must have been varied, and must have been decided, to induce the judgment.' 1 Stat. at Large, 86, in notes and authorities cited. Now the plaintiffs claimed under Georgia. She had restricted her limits, having, by the act of cession, withdrawn them from the Mississippi to the line agreed upon in those articles. To determine on the validity of her grant it was necessary to decide where that line was, and this depended on the construction of the articles of cession,–the joint act of the United States and Georgia. Again, the bill of exceptions states, that at the point to which this controversy applies the river is bounded by banks from fifteen to twenty feet high; that the bed of the river, the space between these banks, is about two hundred yards wide; that at ordinary low water the channel is about thirty yards wide, leaving from thirty to sixty (or rather eighty) yards of flats exposed on each side between the channel and banks; that the mill of defendant in error was placed below the western high bank in the bed of the river, and that the site of the mill was covered with water in ordinary high water, but was bare and dry in ordinary low water. The plaintiffs claimed the western high bank, including the whole river, the flats, and the inner face of that bank, and that this was the line defined in the act of cession made by the United States. If this claim was affirmed, the defendant in error was a trespasser, and this judgment could not have been rendered. It was disaffirmed, and so disaffirming it the court denied the validity of the act of cession, under which plaintiff claimed, or they gave a construction to those articles adverse to his claim, and in either case the appellate jurisdiction of this court is manifest.

But the learned counsel has yielded the question of jurisdiction by conceding, as he has done, that these records 'present but a single question, viz., what is the true construction of that part of the compact between the State of Georgia and the United States,' &c. Surely it belongs to this court to decide, in the last resort, on the construction of a compact entered into by commissioners of the United States acting under the authority given by a statute of the United States.

But again, the learned counsel yields the question of jurisdiction by contending, as he may rightfully contend, that these actions 'were local in their character,' for then, especially in the Alabama case, No. 121, in which alone the jurisdiction of this court is contested, it became necessary for the Supreme Court of Alabama to decide that the locus of the alleged trespass was within the limits of that State, which could only be done by giving a construction to the act of cession, and thus deciding the locality of the line of boundary between Georgia and Alabama, which they prescribe. Without this, judgment could not have been rendered for the plaintiff in the court below.

The question of jurisdiction is submitted. I proceed to examine the question of boundary.

Its decision depends on the construction to be given to the following words in the act of cession: 'West of a line beginning on the western bank of the Chattahoochee River, where the same crosses the boundary-line between the United States and Spain, running up the said River Chattahoochee, and along the western bank thereof'; and on the mutual cession of the United States and Georgia,–the United States ceding to Georgia all their right, title, &c. to the territory lying east of that line, and Georgia ceding to the United States all her right, title, &c. to the territory lying west of it. That line, then, limits the precise boundary between the contracting parties. The United States have relinquished all claim to territory lying east of it; Georgia has in like manner relinquished her claim to territory lying west of it.

But the learned counsel supposes that this cession by the United States is valueless, because the commissioners of the United States exceeded their power in making it; that they were limited, by the act creating the commission, to an acceptance of a cession from Georgia; of a cession of lands lying west of the Chattahoochee, and were not authorized to cede to Georgia the right, title, &c. of the United States to territory lying east of that line.

To give to the learned counsel the whole benefit of his argument, let it be conceded that the commissioners of the United States exceeded their powers in making the cession to Georgia, as the commissioners of Georgia certainly did exceed their powers in ceding to the United States all the right, title, &c. of Georgia to the territory lying west of a line drawn on the bank of the Chattachoochee, for they were limited to a cession of the territory lying west of a line seventy miles west of the Chattahoochee. Marb. & Craw. Dig. Laws Geo. Both parties, then, exceeded their powers. With a view to the amicable adjustment of the controversy they assumed to themselves powers which were not conferred upon them. What then? The learned counsel is aware that the subsequent ratification of the acts of an agent who has exceeded his powers is equivalent to the original grant of the powers which he has exercised. Now Georgia and the United States have acquiesced in the settlement of the controversy made by the articles,–Georgia by an express act of legislation, the United States by repeated acts, resulting in the organization of the Territory of Alabama and her subsequent admission as a State.

We enter, then, upon the consideration of the articles of cession, having established our claim to the full benefit of the mutual cession of the United States and Georgia. Under these articles the plaintiffs in error claim that the boundary which they describe is a line beginning on the western bank of the Chattahoochee, running up the river and along the western bank thereof, meaning thereby the elevated bank, which, with that on the eastern side, contains the river in its natural channel when there is the greatest flow of water.

The line is to begin on the bank, to run up the river and along the bank. It is to run up, to indicate its direction; on and along the bank, to mark its locality. The line thus clings to the bank.

What, then, is the western bank? Is it the margin of the river,–the varying line marked by the contract of the water with the land, in its different stages of high, low, ordinary high, and ordinary low, or extreme low water, and which of them? Or is it the bank of earth which, with that on its opposite side, contains the river in its natural channel when there is the greatest flow of water? This inquiry may be considered,–1st. Technically; 2d. With a view to the probable intention of the parties, as that is to be inferred from the statutory history of the transaction, taken in connection with the character of the river and the consequences to result from either construction.

Before entering upon this inquiry, there are certain terms which will occur in the progress of this discussion, to which it is necessary to affix a definite meaning.

We are seeking to ascertain the meaning of the expression, the bank of a river. What, then, is a river? What are its banks? A river is defined to be a body of flowing water, of no specific dimensions, larger than a brook or rivulet, less than a sea–'a running stream, pent in on each side by walls or banks.' Woolwich on Sewers, 51; Rutherf. 90, 91; vide etiam Livingston v. Morgan, 6 Mart. R. 19.

A river is said to be 'pent in by walls or banks,' and is thus contradistinguished from a sea or an ocean, which encompasses the land, rather than is encompassed by it. A river consists of water, a bed, and banks. The bed or channel is the space over which the water flows,–'the hollow bed in which waters flow.' Nautically, the term channel is opposed to shallows; the former indicating the deeper portion of the stream, that along which vessels pass. In ordinary phraseology, the bed or channel is the hollow space between the banks which bound the river. It is usual in cases of this sort to refer to lexicographers.

A bank is defined to be 'a steep declivity, rising from a river, lake, or sea.' Webster, def. Bank.

Ripa extremitas terrae, quae aqua alluitur. And again: Ripa recte definitur id quod flumen continet naturalem vigorem cursui sui tenens. Bayley's Latin Lexicon, def. Ripa.

Bouviere says: 'Banks of rivers contain the river in its natural channel when there is the greatest flow of water.' Bouv. L. Dict., def. Banks of Rivers; Morgan v. Livingston, ante.

Mr. Justice Story defines shores or flats to be the space between the margin of the water in a low stage, and the banks which contain it in its greatest flow, thus distinguishing flats or shores from banks. Thomas v. Hatch, 3 Sumn. 178.

Chief Justice Parsons, citing Lord Hale's definition of the term shores, considers it as synonymous with flats, and therefore substitutes this latter expression. Storer v. Freeman, 6 Mass. R. 438, 439. His opinion in that case confirms the position for which we are contending. Chief Justice Parker holds a similar doctrine. Hatch v. Dwight, 17 Mass. R. 289, 298.

Chief Justice Marshall says: 'The shores of a river border on the water's edge.' Handley's Lessee v. Anthony, 5 Wheat. 374, 385.

If the shore borders on the edge of the water, it must extend outwards to the bank, and therefore cannot be the bank, which, in certain stages of the river, it separates from the water's edge.

A river, then, consists of water, a bed, and banks; these several parts constituting the river, the whole river. It is a compound idea; it cannot exist without all its parts. Evaporate the water, and you have a dry hollow. If you could sink the bed, instead of a river you would have a fathomless gulf. Remove the bank, and you have a boundless flood. He who owns the river must therefore own the water, the bed, and the banks; since these are parts of that which belongs to him–the elements which constitute the river, of which he is owner.

1. The question of boundary considered technically. I proceed to consider, first,–the language of the articles of cession; the description of the river in the record; the position of the mill of the defendant in error.

The articles of cession are found in Hotchk. Dig. Laws Geo. 83. Its language is familiar to the court. It requires the line to run on and along the western bank.

The description of the river is found in Howard v. Ingersoll, Rec. p. 5; Howard & Eckolls v. Ingersoll, Rec. p. 4. It is described as bounded–'pent in'–by high banks, up to which it sometimes flows, being two hundred yards wide, while at others it is reduced to a channel of thirty yards in width.

The eastern boundary of defendant's land is the State of Georgia. Howard v. Ingersoll, Rec. p. 5. His mill-site is in the bed of the river, and is covered with water at ordinary high water. It is not on the high bank, nor at its base; for a cartroad passes between the mill and the bottom of the bank. Howard & Eckolls v. Ingersoll, Rec. p. 4.

The Supreme Court of Alabama decided that this mill-site was within the State of Alabama, in al. verba, that a mill-site in the bed of the river, between which and the bank there was a cart-road, and which mill-site was overflowed at ordinary high water, was west of a line drawn on and along the western bank of the Chattahoochee River.

The grounds of that decision it is my duty to examine. It rests––

1. On the consideration of convenience.

2. On cases relative to riparian rights, as calculated to show that the term bank may be considered as equivalent to low-water mark.

3. On the supposed analogy of the case of Handley's Lessee v. Anthony, to this case.

A brief remark on each of these. To the argument of convenience, I might safely reply in the language of the maxim, Cujus est dare, ejus est disponere. Georgia yielded to the United States, almost gratuitously, the vast domain, which now constitutes the States of Alabama and Mississippi. She had a perfect right to prescribe the limits of her cession, and to consult her own convenience in determining them. But what is the inconvenience? It is said, it would be burdensome to the citizens of Alabama, to answer in the courts of Georgia for offences committed on the western margin of the Chattahoochee River. But this would be true also of the Flint, Ocmulgee, or any of the other great rivers of Georgia. The inconvenience should be considered before the act is committed. But the Supreme Court of Alabama was influenced, also, by a consideration of the convenience of Georgia, and decided to divest Georgia of all that part of the bed of the river which lies between the foot of the bank, and low-water mark, because it would be inconvenient to her to exercise jurisdiction over it. Why more so than over the eastern side of a river which, according to the decision of the Supreme Court of Alabama, is, for nine months of the year, only thirty yards wide?

This argument of convenience will, however, be considered hereafter in examining the case of Handley's Lessee v. Anthony.

I proceed with the consideration of the opinion of the Supreme Court of Alabama.

In commenting on the decision of the court in Hatch v. Dwight, ante, and quoting the words of Chief Justice Parker, who says, 'the owner may sell the land without the privilege of the stream, as he will, if he bounds his grant by the bank,' the Supreme Court of Alabama proceeds as follows:–'Now, I admit that if the grant be limited to the bank of the river, the land covered by the water will not pass by it, that is, the bed of the river will not be granted; but we consider it well settled, that if land be granted on a running stream, not navigable, and in which the tide does not ebb and flow, and the words used to designate the boundary be the river, or the bank of the river, then the grant will extend to ...


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