County of St. Clair v. Lovingston, 90 U.S. (23 Wall.) 46

County of St . Clair v. Lovingston.

1. Where a survey begins “on the bank of a river” and is carried thence “ to a point in the river,” the river-bank being straight and running according to this line, the tract surveyed is bounded by the river. It is even more plainly so when it begins at a post “on the bank of the river, thence north 5 degrees east up the river and binding therewith.” 2. Alluvion means an addition to riparian land, gradually and imperceptibly made, through causes either natural or artificial, by the water to which the land is contiguous. 8. The test of what is gradual and imperceptible 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. 4. It matters not whether the addition be on streams which do overflow their banks or those that do not. In each case it is alluvion.

Error to the Supreme Court of Illinois.

The county of St. Clair, Illinois, brought ejectment against Lovingston, for a piece of land within its own boundaries, situated on the east bank of the river Mississippi (as its east bank now runs), opposite to St. Louis. The land was confessedly “ made land;” that is to say, it was land formed by accretion or alluvion, in the general sense of that word; though whether it was land made by accretion or alluvion in the technical or legal sense of the word was a point in dispute between the parties in the case. The bank of the river had confessedly, in some way, been greatly changed, and, in this part, added to. The tract in dispute is indicated on the diagram upon the next page, by the deeply shaded or most dark part of it; the part at the bottom of the diagram and on the left hand side of it.

The case was thus:

Before the year 1815, and in pursuance of an early formed intention by the government, to give a piece of land to soldiers in the old French settlements in Illinois, a survey was made in the public lands for one Nicholas Jarrot, of one hundred acres, which was either on or near to the Mississippi River, as it then ran; though whether, in all its parts, on

Statement of the case.

the river or only beginning on its bank and leaving a strip or pieces of land between the tract and the river—edges more or less ragged—was one point in the case.

Diagram No. 1.

Statement of the case.

The field-notes and a plot of the tract, as given in proof, were thus:

Diagram No. 2.

West.

South. North.

“ Beginning on the bank of the Mississippi River, opposite St. Louis, from which the lower window of the United States store-house in St. Louis bears N. 70f W.; thence S. 5 W. 160 poles to a point in the river from which a sycamore 20 inches 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.”

At the time of this survey the west line of the tract, if not in all its course on the river, was confessedly in all its course near to the river; the general course of the river-bank in 1814, just before the survey, being indicated on the Diagram No. 1 by the words “River-bank in 1814;” and the tract, the field-notes of whose survey are above given, being marked on that diagram as “No. 579, N. Jarrot.”

To the north of this tract of one hundred acres to Jarrot were two other tracts, each of one hundred acres. They are numbered on the Diagram No. 1, the one 624 and the other 766, and their general position is thus shown. Jarrot, in virtue of a transfer from some other French settler, claimed also this latter tract, No. 766.

At a later date, that is to say in 1815, a certain Pierre Coudaire got a survey which covered the whole of the three

Statement of the case.

abovementioned tracts, and some irregular edges on the east between them and the Cahokia Creek, as also a small strip bending round and going to the south of the southernmost of the three tracts, or tract No. 579. What this survey embraced on the west—that is to say, on the river side—not embraced by the surveys of the others, or, more especially, and so far as that extent of line was concerned, not embraced by the west line of tract No. 579—and whether it embraced anything at all—in other words, whether it brought the title any more upon or to the river than the old surveys—was one of the questions of the case. The field-notes of Coudaire’s survey, which a drawing, Diagram No. 3, thus illustrates, called for a post in the northwesterly line of survey

Diagram No. 3.

636 as the point of beginning; thence south 38° 50' west with said line 17 poles to a post; thence south 51° 10' east with another line of said survey 134 poles, to a post on the west side of Cahokia Creek; “ thence down the said creek with its different coursesthence by courses and distances described to a post. The field-notes then continued :

Thence 85° W. 174 poles to a post on the bank of the Mississippi River, from which*—thence N. 5° 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),

There was a considerable blank here, in which no doubt the bearing of some object was meant to be inserted; though it never was in fact inserted. —Rep.

vol. XXIII. 4

Statement of the case.

551 poles and 10 links to a post, northwesterly corker of Nicholas Jarrot’s survey, No. 766, claim No. 100, from which a sycamore 36 inches diameter bears S. 21° W. 29 links; thence 8.85° E. with the upper line of the last-mentioned survey 88 poles to the beginning.”

The righto of Jarrot was confirmed at an earlier date than that of Coudaire. Coudaire’s survey bore the number 786.

Several old maps were introduced which seemed to show plainly enough that at the time when the surveys were made the river-bank, in this part of it, ran in what might fairly be called a straight line. Oral testimony in the record proved also that it did so.

We have already said that after the surveys were made the east bank of the river greatly advanced. But what caused this change in position was not quite obvious.

About the time when the new land began perceptibly to form, certain coal-dykes for the accommodation of the public were built above the point where the land in controversy was. The United States also made some improvements to throw the channel of the river more towards the city of St. Louis, that is to say, away from the side where these tracts were, and the city itself put certain large rocks on one edge of the river to preserve its own harbor. How far, exclusively of natural causes, all this had formed the new land was not clear. The evidence showed, however, that the defendants had nothing to do with the making of any of these artificial works, and it was not clear that in a river like the Mississippi the new land might not have been made without them, and by natural causes alone.

The fact that the additions were a making was perceptible at certain intervals, though the additions were too gradual to strike the eye as they were in the actual process of formation.

In this state of things, and a considerable addition having now been made, Congress, on the 15th of July, 1870, passed an act in these words :*

Statement of the case.

“ That the title of the United States to all lots, out-lots, tracts, pieces, parcels, and strips of land in St. Clair County, State of Illinois, lying and situate outside of the United States surveys as noted in the field-notes of the United States surveyors, and on the Mississippi River near surveys 766, 624, and 579, . . . &c., be, and the same is hereby, confirmed and granted to said St. Clair County, in said State.”

The plaintiff, St. Clair County, claimed under the above-quoted acts, and under certain other acts of legislation, Federal and State, not necessary to be quoted.* Its positions were:

1st. That the west boundary of the earlier and the later survey was the same; that this west boundary was a line originally established irrespective of the river line; that accordingly the lands included by the surveys never extended to the river, and that the new-made land, even if it were “ accretion,” or “ alluvion,” never belonged to the owner of tracts surveyed, as riparian owner, but was unconveyed land belonging to the United States, which by its above-quoted act of Congress, it had granted to the plaintiff, St. Clair County.

2d. That if what is above said as to the western line of the tracts as surveyed was not true, and if the tracts did originally extend to the river, yet that the made land was not “accretion” or “alluvion” in a legal sense, since the making had been brought about by artificial means; that therefore the new land belonged to the United States as sovereign.

3d. That even if neither of these two propositions were true, yet that the surveys were specifically brought to the river and were limited to one hundred acres each, and hence that they could not embrace an addition as large as or larger than themselves.

4th. That, independently of all other positions, the Mis-

Act of February 18th, 1871, chapter 58, 16 Stat, at Large, 416; act of September 28th, 1850, chapter 84, 9 Id. 519 ; also under the acts of the legislature of Illinois of the 22d of June, 1852; of the 12th of February, 1853; of March 4th, 1854; of February 18th, 1859; and of March 11th, 1869.

Argument against the right of the riparian owner.

sissippi in the sense of the American law—where “ navigability ” meant navigability in fact—was a “ navigable river,” as respected riparian rights, and that accretions on it belonged to the sovereign.

The position of the defendant, Lovingston, who held under the two surveys, 579 and 786 (a valid title to which was admitted to be in him, or in those under whom he claimed), was, that those surveys were both (or certainly the last one) bounded originally by the river, and that whether the additions were caused wholly by natural causes or whether in part by the artificial structures, as causes causative, the new land fell within the technical and legal idea of accretion or alluvion, and so belonged to him as riparian owner; and that it made no difference, even if by the terms of the survey or grant the title came originally but to the river, or whether the river was a “ navigable” one or not.

Of this opinion was the Supreme Court of Illinois, where the case finally came, and where judgment was given for the defendant. The case was now here on error from that judgment.

Mr. Gustavus Koerner, for the plaintiff in error;

The history of these hundred acre tracts, often called militia tracts, should be stated by the reporter as part of the case. They are facts, which go to constitute the case, and are an important part of it.

So far back as June 20th, 1788, in a resolve of the old Congress of the United States,* a report was made to Congress, and approved by it, for confirming the rights of old French settlers in Illinois.

The Congress under the present constitution in 1791f—re-enacting the resolve of June 20th, 1788—provided in the sixth section that the governor of the Territory should be authorized to make a grant of land, “not exceeding one hundred acres, to each person who hath not obtained any donation,”

* 1 Bioren & Duane’s Statutes, 203, chap. 101. f 1 Stat, at Large, 221.

Argument against the right of the riparian iwner.

&c., and who has done militia duty, “ the said land to be laid

out in such form and place as the said governor shall direct.”

Section eight provided that the governor should lay out

the said lands agreeably to the act of Congress of June

20th, 1788, an act which provided that they shall be located

within certain parallelograms. These parallelograms of one

hundred acres each were, of course, defined plats of ground.

They made what the Roman law calls agri limitati*

Independently of which, it is plain that a grant is not

carried to the centre of the stream, but stops at the bank, if

the grantor describe the land as beginning on the bank of

a river; or as coming only to a post or point on the shore;

and carries a boundary, not by the stream, but by a straight

line between points on its bank. This confines and limits

everything to the lines described.

Now, alluvion is an accretion of a tract of land, bounded

by a river, the owner of which is not limited by a certain measure.

It does not apply to the ager limitatus. Moreover alluvion

must be not only gradual and imperceptible, but be also by

natural causes.} The causes here were not natural causes,

but artificial ones.

The common law as to rivers not navigable has adopted

the civil law4

We have heretofore referred to the history of those claims;

now let us make the application.

The region of country from the mouth of Wood River, a little below Alton, to the mouth of Kaskaskia River, between the bluffs on the east and the Mississippi River on the west, is generally known as the American Bottom. It 'is about ninety miles long, and averages five miles in width.

At the time of the resolve of Congress, June 20th, 1788,

Argument against the right of the riparian owner.

no American iesided there. The principal settlements were at the Kaskaskies, Prairie des Rochers, and Cahokia, the latter opposite Carondelet, and a little below St. Louis, though there were others, such as Fort Chartres, Prairie du Pont, and Cantine, the latter .extending nearest to Wood River. Now, these donations, one hundred acres, were limited to exactly the quantity fixed by the law. It would have been most unjust to give one militia man one hundred acres, and to another, by possible accretion, one thousand acres.

It is to be presumed that the surveyors, under the direction of the governor of the Northwest Territory, carried out the directions of the law; that is, that they laid out said reservations in parallelograms. This being done, there was no possibility of making the river the boundary, except where, as in this case, as the maps show, accidentally the river-bank was quite straight and fell on the western line of the parallelogram, though it was not so straight but what one of the points of the survey was fixed in the river.

Now in the field-notes of survey 579, the tract in question, there is not a word said about meandering with the river, but all goes on points and lines clearly given. The field notes of the Coudaire tract are equally definite, and more significant; for while the eastern boundary, beginning on the Cahokia Creek, is made to run “ thence down the said creek with its different courses,” quite a different language is adopted as to the west boundary. It comes to a point on the bank of the Mississippi, but there is not a word said, as before, about going up the said river with “its different courses.” The language is “ up the Mississippi, and binding therewith.”

The west line of the Coudaire survey seems in fact to be identical with the west line of the three militia claims.

Both these land donations, militia claims and Coudaire settlement rights, were each a well-defined, measured tract of land.

Coudaire, whose right was younger than that under the militia claims, took nothing of these militia claims nor anything but the fractions east, between the lines of the militia claims and the meanders of the Cahokia Creek; the lower

Argument in favor of the right of the riparian owner.

part on Diagram No. 3, and which is shaded. The title of the defendants to the land in question ultimately rests solely on the militia claims; the Coudaire grant being utterly void as to them.

There was no advantage of the river front when these locations were made. The country was hardly settled. St. Louis was a little village. The important point was Carondelet, on the Missouri side, six miles below. Canoes, and now and then a keel-boat, were the only craft on the river. No wharfage, no woodyards were thought of.

We have thus far argued the case strictly within the case in Middleton v. Pritchard* and other decisions of the Supreme Court of Illinois, which are to the effect that all grants hounded upon a river not navigable (to which class they decide the Mississippi River to belong), as to riparian rights, entitle the grantee to claim to the centre thread of the river and all the islands lying between the main land and the centre thread of the current.

The doctrine that no rivers are navigable, except wherein ebb and tide flows, said to be the common-law doctrine, but denied even in England, is repudiated by many decisions in the State courts, f

In this court decisions have been made which. strongly favor the view that the navigability of the river does depend on navigation in fact, and not on the supposed English definition.

If then the Mississippi is a navigable river, as to riparian rights, the accretions belong to the sovereign, and Congress had an undoubted right to grant them to the county of St. Clair.

Mr. W. H. Underwood, contra:

Every position taken by the opposing counsel is so well

* 3 Scammon, 510.

t Carson v. Blazer, 2 Binney, 475; Commonwealth v. Fisher, 1 Pennsylvania, 462; Wilson v. Forbes, 2 Devereux, 80; Cates v. Wadlington, 1 cCord, 580; Elder v. Burrus, 6 Humphreys, 358; Bullock v. Wilson, 2 orter, 436 ; People v. Canal Appraisers, 33 New York, 461 ; McManus ». Carmichael, 3 Clark (Iowa), 1.

Argument in favor of the right of the riparian owner.

answered in the opinion of Thornton, J., delivering the unanimous judgment of the court below, and every position which we would desire to enforce is so well there presented, that we do little but offer to this court his ideas in his owu language.

If the land of the riparian proprietor was bounded by the Mississippi River, his right to the possession and enjoyment of the alluvion is not affected, whether the stream be navigable or not. By the common law, alluvion is the addition made to land by the washing of the sea, a navigable river, or other stream, whenever the increase is so gradual that it cannot be perceived in any one moment of time. The navigability of the stream, as the term is used at common law, has no applicability whatever to this case. If commerce had been obstructed, or the public easement interrupted, or a question was to arise as to the ownership of the bed of the stream, then the inquiry as to whether the stream was navigable or not, in the sense of the common law, might be pertinent. Ko such question is presented. On this branch of the case the only question is: Have the United States, or has the State, or the riparian owner, the right to the accretion ?

If the river is the boundary, the alluvion, as fast as it forms, becomes the property of the owner of the adjacent land to which it is attached. On a great public highway like the Mississippi, supporting an immense commerce and bearing it to every part of the globe, purchasers must have obtained lands for the beneficial use of the river as well as for the land. Can it be presumed that the United States would make grants of lands bordering upon this river, with its turbulent current, and subject to constant change in its banks by alluvion upon the one side and avulsions upon the other, and then claim all accretion formed by the gradual deposition of sand and soil, and deprive the grantee of his river front ? If he should lose his entire grant by the washing of the river he must bear the loss, and he should be permitted to enjoy any gain which the ever-varying channel may bring to him. If a great government were to under-

Argument in favor of the right of the riparian owner.

take under such circumstances to dispossess its grantee of his river front, the attempt would be akin to fraud, and it would lose the respect to which beneficent laws and the protection of the citizen would entitle it.

Sir William Blackstone says* as to lands gained from the sea by alluvion, where the gain is 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 besides, 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.”

The same reasoning applies, with all its force, to the lands abutting upon the Mississippi River.

This question has been discussed with profound research and great ability by the courts in Louisiana, as to accretions upon this same river, and the law clearly announced. In Municipality No. 2 v. Orleans Cotton Press^ it was declared that the right to future alluvial formations was a right inherent in the property, an essential attribute of it, the result of natural law, in consequence of the local situation of the land; that cities, as well as individuals, had the right to acquire it, jure alluvionis, as riparian proprietor; and that the right was founded injustice, both on account of the risks to which the land was exposed and the burden of protecting the estate. The court further assimilated the right to the right of the owner of land to the fruits of a tree growing thereon.

The same principle was declared by this court in Banks v. Ogden.\

The only portion of the field-notes to which we desire to call attention is the following':

o

‘ To a post on the westerly side of the Cahokia Creek, thence down the creek with the different courses thereof,’ and ‘ thence

* 2 Commentaries, 262. f 18 Louisiana, 122. t 2 Wallace, 57; see, also, The Mayor, &c., of New Orleans v. The United tates, 10 Peters, 662 ; Jones v. Soulard, 24 Howard, 41; Warren v. Chamb®18» 25 Arkansas, 120.

Argument in favor of the right of the riparian owner.

N. 85° W. 174 poles, to a post on the bank of the Mississippi River; from which thence N. 5° E., up the Mississippi River and bounding 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 northwesterly corner of Nicholas Jarrot’s survey No. —, claim No. 100.”’

This survey was made in 1815. From the copy of the plat of it, from the custodian of the United States surveys, it will be seen that the line along Cahokia Creek meanders with the stream, which was sinuous, and hence the call in the notes, “ down the said creek, with the different courses thereof.” A further examination of the plat will show that though the line from “ a post on the bank of the Mississippi River to a post northwesterly corner of Nicholas Jarrot’s survey, claim No. 100,” is a straight line, the river-bank as indicated by the plat was also straight in 1815. The Coudaire survey embraces three militia claims which had been surveyed before, and which were confirmed to Jarrot.

One of the Jarrot surveys begins on the bank of the Mississippi, and thence to a point in the river, &c.

Concede that the Jarrot survey did not make the river the boundary by specific call, yet its beginning was on the bank of the river opposite St. Louis, and thence it followed the river to a point on it. It is, then, evident that at this time there was no land between the western line of the Jarrot survey and the river. All the plats introduced in evidence show that the river-bank was straight, and the point in the river must have been made for the purpose of obtaining the bearing of the witness tree, a sycamore 250 links from the point. It is manifest that the river was the boundary, and whether the grant was bounded by the river or on the river can make no difference as to the question involved. The grant may be so limited as not to carry it to the middle of the river, and yet not exclude the right to the alluvion.

The counsel for the county argue that a grant is not carried to the centre of a stream, but stops at the bank, if the grantor describes the live as upon the margin, or at the edge

Argument in favor of the right of the riparian owner.

or shore, and that these terms become monuments, and that they indicate an intention to stop at the edge or margin of the river. This may be good law, and not affect the rights of the defendants. They do not claim the bed of the stream, and the river does not run over the land in dispute at ordinary stages of water. Their claim, if established, does not obstruct the river, or interfere with its free navigation and use by the public.

But the Coudaire survey not only covers the Jarrot surveys, but extends beyond them. It not only takes any fractions between the Jarrot surveys and Cahokia Creek—the parts at the bottom of Diagram No. 3, and shaded—but the land, if any, between their western line and the river. The Coudaire survey ran up the river, binding it, and passed the southwesterly corner of the Jarrot survey, No. 579, at six poles. Language could not make it more plain, that the western line was bounded by the river; and the plats confirm this view.

The only construction to be given to these grants is, that the United States had conveyed the land to the bank of the Mississippi. It follows that the grantees were riparian proprietors, and are the owners of the alluvial formations attached to their lands.

Unless such construction be given and adhered to rigidly, almost endless litigation must ensue from the frequent changes in the current of the Mississippi and the continual deposits upon one or the other of its banks; the value of land upon its borders would depreciate, and the prosperity of its beautiful towns and cities would be seriously impaired.

Opposing counsel say that at the time the locations were made there was no advantage of river-front, no wharfage, and no wood-yards. This may be true, but even at this early period the grantees must have realized the vast importance of the Mississippi to them, and to all the people of the States bordering upon it, in the grand future soon to be uno ded. They must have seen the necessity, and accepted t. e grants, for the [ urpose of securing an approach to the

Argument in favor of the right of the riparian owner.

Before 1819 a ferry was established across the river, near to the land in dispute, and has been since in constant operation. Before 1850 a city had sprung up on the Missouri side of the river, and a prosperous village was growing on the Illinois shore. Before 1852 a charter for a railroad had been granted by the State, which resulted in the construc*tion of a road from Terre Haute, in the State of Indiana, to Illinoistown. Prior to the grant made by the United States in 1870, a number of railroad tracks had been constructed upon the ground formed by accretion, and an elevator erected, and dykes for the use of wagons, and a large expenditure of money made by the ferry company for the preservation of the banks recently made. These are matters of known public history.

It needed no prophetic eye to foresee, prior to the year 1850, these grand improvements which bring the products of an empire to the Father of MTaters. Their absolute necessity, and consequent construction, as an outlet for our immense produce had been known for more than a quarter of a century before their completion. Their usefulness would be greatly crippled and the public thereby seriously suffer if ready access to the river was denied.

It would be a strained construction to hold that, in making these grants, the United States reserved all accretions, and thus to deprive these proprietors of ferry privileges and the beneficial enjoyment of the river.

It is further contended that the lands are not accretions, as they were made by artificial and not natural means.

Concede, what is not clear, that the dykes, to some extent, caused the accretions. They were not constructed for such purpose; and the defendants had nothing to do with their erection.

The fact that the labor of other persons changed the current of the river, and caused the deposit of alluvion upon the land of the defendants, cannot deprive them of a right to the newly made soil.

If portions of soil were added to real estate already pos-

Argument in favor of the right of the riparian owner.

sessed by gradual deposition, through the operation of natural causes, or by slow and imperceptible accretion, the owner of the land to which the addition has been made has a perfect title to the addition. Upon no principle of reason or justice should he be deprived of accretions forced upon him by the labor of another, without his consent or connivance, and thus cut off from the benefits of his original proprietorship. If neither the State nor any other individual can divert the water from him, artificial structures, which cause deposits between the old and new bank, should not divest him of the use of the water. Otherwise ferry and wharf privileges might be utterly destroyed, and towns and cities, built with sole reference to the use and enjoyment of the river, might be entirely separated from it.

In Godfrey v. The City of Alton* the public landing had been enlarged and extended into the river, both by natural and artificial means, and this court held that the accretions attached to and formed a part of the landing.

In New Orleans v. The United States,^ the quay had been enlarged by levees constructed by the city, to prevent the inundation of the water, and the court held that this did not impair the rights of the city to the quay.

In Jones v. Soulard^. the intervening channel between the island and the Missouri shore had been filled up in consequence of dykes constructed by the city, and the riparian owner succeeded.

In the case at bar the accretions have not been sudden, but gradual, as we gather from the testimony. The city of St. Louis, to preserve its harbor and to prevent the channel from leaving the Missouri shore, threw rocks into the river, and the coal-dykes were made to afford access to boats engaged in carrying across the river. The ferry company protected such accretions by an expenditure of labor and money.

The accretions are partly the result of natural causes and paitly of structures and work erected and performed for the

* 12 Illinois, ‘29. f 10 Peters, 662. + 24 Howard, 41.

Opinion of the court.

good of the public. The defendants 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 be no adequate redress.

Mr. Justice SWAYNE delivered the opinion of the court.

We shall assume, for the purposes of this opinion, that all the title which could be passed by Congress and the State was and is vested in the plaintiff in error.

It is not denied, on the other hand, that a valid title to the surveys 579 and 786 is vested in those under whom the defendant in error holds.

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.* A call for a natural object, as a river, a spring, or even a marked line, will control both course and distance.!

Artificial and natural objects called for, have the same efiect.J

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.§ In *Bruce, v. Taylor,\\* a patent called “ to begin on the Ohio

Opinion of the court.

River, and then for certain courses and distances, without any corners or marked lines, to the mouth of the Kennikek, and then certain courses and distances, without any courses 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.” This case is very instructive, and contains, much additional argument in support of the view expressed. Cockrell v. McQuinn* 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 the court whose province it is to decide all questions of law.” In Bruce n. Morgan^ the rule laid down in Bruce v. Taylor was affirmed.

Where a survey and patent show a river to be one of the boundaries of the 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.J

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 low-water mark.§

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 low-water mark is the boundary. || Where the line around the land was described as “ running to a stake at the river, thence on the river N. 6° 40' 23 perches, thence N. 39° 50' W. S3 perches, thence N. 20° 20',

* 4 Monroe, 62. f 1 B. Monroe, 26. J Churchill v. Grundy, 5 Dana, 100. « McCullock’s Lessee v Aten, 2 (Ui, 3^9; see, also, Handly’s Lessee v Anthony, 5 Wheaton, 380. II Lamb v. Rickets, 11 Ohio, 311.

34 County of St. Clair v. Lovingston. [Sup. Ct.

Opinion of the court.

35 perches and 8 links to a stake by the river,” it was held that this description made the river a boundary.*

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 filium aquae, unless the river be expressly excluded from the grant by the terms of the deed.f

The eastern line of the city of St. Louis, as it 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 rive'r4 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 vrater-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.”

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

Opinion of the court.

arise, and to which we have given no consideration. The point was considered by this court in Railroad v. Schurmier* 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 of the United States store-house in St. Louis bears X. 70J W.; thence S. 5 west 160 poles to a 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 extend to the water’s edge. There was no previous 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° W. 174 poles, to a post on the bank of the Mississippi River, from which . . . ; thence N. 5° 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 northwesterly corner of Nicholas Jarrot’s survey, No. —, claim No. 100, from which a sycamore 36 inches diameter bears S. 21° W. 29 links; thence S. 85° 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

* 7 Wallace, 287.

Opinion of the court.

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 consequence does 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 affected by artificial means is immaterial.*

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.”f

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 plat4

The Code Napoleon declares:

“Accumulations and increase of mud formed successively and imperceptibly on the soil bordering on a river or other

Opinion of the court.

stream is denominated ‘ alluvion.1 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 towing path conformably to regulations.”*

G? 1

Such was the law of France before the Code Napoleon was adopted.f

And such was the law of Spain.J 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 ot 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 gafn be by little and little, by small and imper-

ceptible degrees, it shall go to the owner of the land adjoin-

ing. For de minimis non curat lex; and besides, these owners

being otten losers by the breaking in of the sea, or at charges

to keep it out, this possible gain is, therefore, a reciprocal

consideration tor 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

ot the soil while it is covered with water, it is but reasonable

he should have the soil when the water has left it dry.Ӥ

Blackstone takes his definition from Bracton, lib. 2, chap.

2. Braeton 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.||

Chancello! Kent, the American commentator, recognizes

the rule as it is laid down by the English authorities referred to4

Opinion of the court.

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.* The shorea 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.f

The question here under consideration is not a new one in this court. In New Orleans v. The United Slates,J 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 tire 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 Saulet v. Shepherd,§ and *Schools v. Risley.\\*

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.

Syllabus.

The title to the increment rests in ihe 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 overflow their banks, and where dykes and other defences are, and where they are not, necessary to keep the water within its proper limits.*

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.f

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.

Judgments affirmed.

The Dexter.

1, The rule of navigation prescribed by the act of Congress of April 29th, 1864, “for preventing collisions on the water,” which requires “ when sailing-ships are meeting end on, or nearly so, the helms of both shall be put to port,” is obligatory from the time that necessity for precaution begins, and continues to be applicable so long as the means and opportunity to avoid the danger remain.

* 3 Washburne on Real Property, 58, *452; Municipality No. 2 v. Orleans Cotton Press, 18 Louisiana Rep. 122.

t The King v. Lord Yarborough, 3 Dow & Clark’s Appeal Cases, 178.

Statement of the case.

2. In a collision at sea, happening on a bright moonlight night, and when the approaching vessel was seen by the officer in charge of the deck long before the collision occurred, the absence of a lookout held unimportant; it being assumed that his presence would have done nothing to avert the catastrophe.

Appeal from the Circuit Court for the District of Maryland, affirming a decree of the District Court dismissing a libel filed by the owners of the schooner Julia against another schooner, the Dexter, in a cause of collision in Chesapeake Bay, by which the Julia was totally lost; the only difficulty in the controversy being—that usual one in causes of collision at sea—to ascertain what were the facts of the case; in other words, to settle the case; a matter rendered difficult in this cause, as in so many others of collision, by the circumstance that witnesses of one side swore in direct opposition to witnesses of the other. The adjudication, therefore, ministers nothing to juridical science.

The case, as it was assumed in both the courts below, and in this, upon the contradictory testimony adverted to, was thus:

On the night of November 17th, 1870—the night being clear and the moon shining brightly—the schooner Julia was sailing up Chesapeake Bay. The schooner Dexter was sailing down it. The wind, which was fresh, was between northwest and west-by-north, and the vessels were each sailing at the rate of eight miles an hour; approaching, therefore, rapidly. The Julia was close to the wind, though not as close as she would lie without impeding her course.

The helmsmen of the two vessels saw them respectively when three miles from each other. What their exact course then was, and whether likely to come together did not so plainly appear. Some evidence tended to show that, at that time, the vessels were not approaching end on, but that the Dexter was sailing with the wind free. But by the time that they got to within a half-mile of each other the Julia was heading north-northeast, and the Dexter south-southwest; that is to say, the vessels were approaching from exactly opposite directions; and the vessels were approaching also

Statement of the case.

end on, or nearly so. As they thus approached the Dexter ported her helm. The Julia kept on her course, till the vessels got very near, when a collision was plainly threatened. The Julia then starboarded her helm. A collision ensued, and the Julia, which was heavily laden with oysters, went to the bottom.

The only lookout on the Dexter when the Julia came in sight was the captain, who, at the time of the collision, was standing aft of the foremast.

The act of Congress “ fixing certain rules and regulations for preventing collisions on the water,” among its “ Steering and Sailing Rules” thus provides:*

Two Sailing -ships Meeting.

“Article 11. If two sailing-ships are meeting end on, or nearly end on, so as to involve risk of collision, the helms of both shall be put to port, so that each may pass to the port side of the other.”

Two Sailing -ships Crossing.

“ Article 12. When two sailing-ships are crossing, so as to involve risk of collision, then if they have the wind on different sides, the ship with the wind on the port side shall keep out of the way of the ship with the wind on the starboard side, except in the case in which the ship with the wind on the port side is closehauled, and the other ship free; in which case the latter ship shall keep out of the way. But if they have the wind on the same side, or if one of them has the wind aft, the ship which is to windward shall keep out of the way of the ship which is to leeward.”

No Ship, under any Circumstances, to Neglect Proper

Precautions.

“ Article 20. Nothing in these rules shall exonerate any ship, or the owner, or master, or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout,” &c.

The District Court, as already said, decreed a dismissal

*13 Stat, at Large, 60.

Argument for the Julia.

of the libel; the Circuit Court affirmed the decree, and the owner of the Julia took this appeal.

Mr. R. F. Brent, for the appellant, owner of the Julia, contended—

1. That the captain was not a competent lookout, and that if he had been so in general, he was standing on this occasion aft of the foremast, and plainly could not see; that Article 20 of the act of Congress is obligatory on vessels to keep a proper lookout, and that none of the other rules which the act prescribed dispensed with the obligation to do so.*

2. That this was not a case under Article 11th of the Rules to Avoid Collisions; a matter which the learned counsel attempted to establish by the evidence; arguing that the theory of the Dexter, that the vessels were approaching each other “ end on,” was based on evidence not trustworthy; that the Dexter, at the distance of two miles, must have been upon the course diverging to the westward and approaching the Julia, not only to the leeward as respected place, but also heading on a course bearing to the eastward of the Julia’s course; and that so she was not meeting end on, but was a vessel sailing with the wind free, and subject to Article 12th; that the rules of navigation begin to apply when vessels are within ten or twelve minutes of each other; that hence the Dexter should not have put the Julia in jeopardy, or even in a reasonable fear of danger; that a vessel with the wind free should give a wide berth to one having the right of way ;f that porting the helm a point or so, and then waiting (as did the Dexter) until the collision was inevitable, was not enough to exonerate one whose duty it was to give way;| that the Julia was closehauled and never changed her course until the collision was imminent; that a vessel with the right of way should keep her course; and that if there was error on the Julia’s part in the moment

Argument for the Dexter.

of collision, such error would not prevent her from recovering if otherwise not in fault.*

Messrs. S. T. Wallis and J. H. Thomas, contra;

The case is one really involving nothing but fact; and on the evidence the facts are plain. Two courts have found them in one way. In such a case the findings are primd facie right. On the case then as found, the matter is too palpably plain for argument. The following points will oc'Curat once, to every one, and they end all question:

1. When the vessels were half a mile apart, the Dexter saw the Julia. They were “ meeting end on, or nearly end on,” and under article eleven of the act of Congress the helms of both should have been put to port, so that each could pass on the port side of the other.f

2. They were not “crossing” within the meaning of the twelfth article. That section is applicable to two vessels on different and converging tacks.

3. The Dexter ported her helm when far enough oft" to pass safely on either side of the Julia. This was a full compliance with her obligations under either rule.

4. The Julia starboarded her helm. If the eleventh rule was applicable, she ought to have ported; if the twelfth, she ought to have kept her course. She violated her duty under either rule.

5. It is unimportant, in view of the facts of this case, under either of these rules, whether the Julia was closehauled or not. There was nothing to prevent her from porting, going farther to leeward, if that was her duty, or from keeping her course, it subject to the twelfth rule. If she had done either there would have been no collision.

6. The case as proved shows that the Julia was not closehauled.

7. The error on the part of the Julia was not excusable on the ground of well-founded alarm arising from too dan-

Opinion of the court.

gerous proximity, the result of previous fault on the part of the Dexter.

8. The absence of a special lookout other than the captain on the Dexter could not have contributed to the collision. Her captain saw the Julia two miles off; saw all that could be seen, and did everything that could have been done under *any circumstances.*

Mr. Justice CLIFFORD delivered the opinion of the court Objection is made by the libellant that the lookout of the Dexter was insufficient, but it is unnecessary to decide the question, as it was a clear night, and as each vessel was seen by the other long before there was any necessity for precaution and in ample time before the collision to have done whatever the circumstances required to have prevented the disaster. Sufficient lookouts are required by the rules of navigation, but where it appears that the officer in charge of the deck saw the approaching vessel while she was yet so distant that no precautions to avoid a collision had become necessary, and that the want of a lookout did not and could not have contributed to the collision, the vessel omitting such a proper precaution will not be held responsible for the consequences of the disaster if in all other respects she is without fault.f

It is insisted by the libellant that the wind was from the 'northwest and that his schooner was closehauled. On the other hand, it is contended by the claimant that the wind was west-by-north, and he denies that the course of the schooner was such as is alleged by the libellant.

Strong doubts arise whether the wind was as far north as the point assumed by the libellant, and the proofs fail to convince the court that it was as far to the west as is supposed by the claimant. Difficulties attend the inquiry, but the better opinion is that the course of the schooner of the libellant was not as close to the wind as she would lay, without impeding her headway. Nor is it very material whether

f lb. 337.

* The Tarragut, 10 Wallace, 337.

Opinion of the court.

she was or not when the vessels were first seen by each other, as they were then two miles apart and were moving through the water, by estimation, at the rate of fourteen or fifteen miles an hour. Satisfactory proof is exhibited that the schooner of the claimant was heading south-southwest, and whatever may have been the course of the other schooner when they were two miles apart, the proof is equally satisfactory that her course when they were a half a mile apart was exactly opposite to that of the schooner of the claimant. Evidence is certainly exhibited in the record tending to show that the course of the schooner of the libellants was east-northeast when the vessels were first seen by each other, but it is convincing that when they were only a half-mile apart they were approaching from exactly opposite directions and that the case falls within the true intent and meaning of the eleventh sailing rule prescribed by Congress.

Sailing ships are meeting end on, within the meaning of that provision, when they are approaching each other from the opposite directions or on such parallel lines as involve risk of collision on account of their proximity, and when the vessels have advanced so near to each other that the necessity for precaution to prevent such a disaster begins, which cannot be definitely defined, as it must always depend, to a certain extent, upon the speed of the respective vessels and the circumstances of the occasion.*

Rules of navigation, such as the one mentioned, are obligatory upon vessels approaching each other from the time the necessity for precaution begins and continue to be applicable as the vessels advance so long as the means and opportunity to avoid the danger remain. They do not apply to a vessel required to keep her course after the approach is so near that the collision is inevitable, and are equally inapplicable to vessels of every description while they are yet so distant from each other that measures of precaution have Rot become necessary to avoid a collision.

APply the eleventh sailing-rule to the case and it is clear

Opinion of the court.

that the decree of the Circuit Court should be affirmed, as the evidence shows that the two vessels when they were half a mile apart were approaching each other in opposite directions and that the schooner of the claimant ported her helm as required by that rule; and it is equally clear that the collision would have been prevented if the schooner of the libellant had performed her duty in that regard. Instead of that she held her course until the danger became imminent, and then, by the mistake of the man at the wheel, put her helm in the wrong direction, which rendered the collision inevitable.

Attempt is made in argument to exculpate the error of the helmsman upon the ground that the danger was imminent, but such an excuse cannot be admitted as a valid one where it appears that the imminence of the peril was occasioned by the negligence, carelessness, or unskilfulness of those in charge of the vessel setting up such an apology for a violation of a plain rule of navigation.

Serious conflict exists in the testimony as to what was done by the respective vessels when they were more distant from each other, but it is not deemed necessary to give that part of the evidence much examination, as it is clear that they had ample time and opportunity to adopt every needful precaution to avoid a collision after it must have been apparent to both that they were fast approaching each other from opposite directions.

Resort is had by the libellant to that part of the evidence to show that the case falls under the twelfth sailing-rule and not under the eleventh, as contended by the claimant. Even suppose that proposition could be maintained, which is denied, it is quite clear that it would not benefit the libellant, as it is conceded that his schooner changed her course by putting her helm to starboard and that it was that error which produced the collision.

Viewed in any light it is clear that the libellant is not entitled to recover.

Decree affirmed.

Statement of the case.

The Teutonia.

Two steam vessels, one an iron steamship (an ocean vessel of twenty-five hundred tons), coming from sea up the Mississippi to New Orleans, and the other a small river steamer of one hundred and thirty-five tons, trading up and down the river below New Orleans from plantation to plantation, and carrying passengers, and getting market produce for the city just named, held, in a case of collision, to be equally in fault for running at full speed in a very dark and foggy night, after they had learned by signals from each other of their respective existences in the river, and while they were in doubt as to what respectively were their courses and manoeuvres.

Appeal from the Circuit Court for the District of Louisiana; the case being thus :

On the night of December 80th, 1868, the iron steamship Teutonia, an ocean vessel of twenty-five hundred tons burden, then arriving by sea from Hamburg, entered the mouth of the Mississippi, meaning to go up it that night to New Orleans. She arrived at the quarantine below the city at 8j o’clock p.m. The night was dark and the weather very b^gy- By 10 o’clock the fog had partially cleared away, and the vessel left the quarantine and proceeded up the river on her course to New Orleans. In an hour or so, and by the time that she was approaching Point la Hache, which is forty-five miles below New Orleans, the fog had increased and there was considerable rain and wind. The night, too, continued very dark.

On the same evening, the Brown, a small river steamer of one hundred and thirty-five tons, carrying passengers and market produce on the river between New Orleans and the various plantations on both sides of it below—touching first at one and then at the other, delivering or receiving cargo, and in the habit of running day7 and night without much regard to weather—set oft’from New Orleans on one of her customary trips. By 11 o’clock she, too, was nearing Point •a Hache. As she approached the Point, having then just left Woodville Landing, she blew three long whistles, an in-

Statement of the ease.

dication simply that a steamer was descending the river. Two short whistles were heard in reply from below. These were from the ascending steamship, and they signified that that vessel would go to the left bank. The steamer, whose business required her now to touch on that side, also blew two whistles in response, indicating that she intended to go on that side, to which indeed she was now rapidly crossing. No reply coming back from the steamship, the steamer repeated the signal, and in return the steamship blew a single whistle, to indicate that things were understood and that she would go to the right bank. Thus far there was no difficulty about the case. But the vessels unexpectedly and of a sudden found themselves in close proximity to one another. What now took place, as they thus came near each other—this being the important part of the case—was a matter about which the parties on one vessel swore in one way and those on the other swore in another and exactly opposite way. Whistles, perhaps, were blown on both vessels, but if so they were misinterpreted in the confusion of the moment, and it was plain that while the vessels were rapidly approaching, they were, both from the darkness and fogginess of the night, unconscious how near they were to each other, what were their relative positions, and what their respective purposes as to course and manœuvre.

The result of the whole was that while the owners of each vessel brought witnesses from his own vessel who swore that the engines of that vessel were seasonably stopped and reversed, the tw’o vessels themselves collided with a violence impossible to have existed had this been done; and that the smaller one, the steamer, whose witnesses testified that the steamship had attempted to go between her and the left or eastern shore, went over, and so, bottom uprnost, sank in the depths of the stream, here thirty-five feet deep. In this position a submarine diver, brought by her owners, testified that fourteen months after the catastrophe he examined her and “that he found a hole in her starboard side three feet and two inches in length, and four feet in depth, twenty-five feet aft the stem, and that the hole went clear through the

Statement of the case.

side of the vessel into the hull, and that the planks were started off on the opposite or port side.”

Her value was $9000, and she was insured in $3000.

Iler owners now libelled the steamship in the District Court at New Orleans. The libel alleged that the pilot of their steamer first stopped and then reversed her engines, and seeing that the steamship was crossing the river and approaching the steamer, hallooed to those on the deck of the approaching steamship that she would run into his steamer; that those in charge of the steamship paid no attention to this warning, but suffered the steamship to come on with a full head of steam, striking the steamer on the starboard side, making a large hole in her hull and causing her to go down.

The answer alleged contrariwise, that the pilot of the steamship, when he discovered the approach of the steamer of the libellants, ordered the helm of the steamship to be put hard-a-port; that the order was immediately executed; that the approaching steamer nevertheless kept on her course and ran with great force and violence afoul of the steamship, striking her on the port side, about one hundred and fifteen feet from the stern.

The District Court, at the request of the owners of the steamship, who alleged that the case involved nautical questions which no one but shipmasters could properly decide, invited two persons having experience both as masters and pilots to sit as its assessors. The assessors sat and heard both evidence and arguments. The aid rendered to the court by them, however, did not prove of great value; for while each assessor gave an opinion, and each fortified his opinion with numerous reasons to show its correctness, the conclusion reached by one was the exact reverse of the conclusion reached by the other. The court accordingly decided the case for itself, deciding that the collision was caused by the carelessness of the steamship, and that she and she alone was in fault.

From this decree the case was taken to the Circuit Court, which, disagreeing with the District Court, thought that the

Argument for the steamer, The Brown.

steamer alone was to blame, and accordingly dismissed the libel with costs in both courts.

From that decree of reversal the case was now here.

Messrs. Durant and Hornor, for the owners of the steamer, appellants:

1. The steamer was one of one hundred and thirty-five tons, engaged in trade on the Mississippi River, between the city of New Orleans and the plantations below, stopping on her way down at the various plantations on both sides of the river, landing supplies and passengers; and on her way up conveying to the city, passengers and the produce of the plantations. She was a regular “ coast packet,” as. such boats are called, plying on the river between the city and the plantations, and running day and night, in all sorts of weather; and was in fact as much of a necessity for the planters and agriculturalists of that section as the Brooklyn ferries are for those of Long Island.

The actual value of the steamer was $9000; she was insured for $3000. In view of this fact we start with the presumption in our favor that the steamer was under the management of men deeply interested in avoiding a collision.

The other vessel was an ocean iron steamship of over twenty-five hundred tons burden. She was, therefore, very nearly twenty times the tonnage of our steamer.

The night was a winter night, very dark and foggy; it was blowing and raining. No dispute exists as to the facts above stated. And on this indisputable case our first point, is that the steamer was properly engaged in her usual business, had the right to cross and recross the river, and was not bound to “ lay up;” and that on the contrary, the steamship was in fault in ascending the river at the time and under the circumstance that she did; that by so doing s e very greatly and unnecessarily enhanced the perils of t e river to the river steamers, and that it was her duty to lay up” for the night, either at the quarantine station, whence she had set off, or at Point la Hache. She could gam nothing by going up to New Orleans that evening, for she would arrive there long before daylight.

Argument for the steamship, The Teutonia.

2. If she was not bound to lay up she was assuredly bound, on such a night as this was, dark and foggy, when running at all, to run at a slow rate of speed; and upon the very first signal of a vessel above, to run with the most extreme caution and vigilance. As we have said, she was an immense iron ocean steamship, nearly twenty times the size of our wooden steamer. Our steamer might have run at full speed and have struck her and yet have done her no harm. She could not be going at her full speed and strike us at all, and not destroy us. If, therefore, we had been going at full speed (which we assert that we were not doing at the time), the catastrophe would not have occurred had the steamship been going at a properly reduced rate of speed, and had she been stopped. The force of any blow in such a case is in proportion to the mass and the momentum.

3. The probabilities, independently of the evidence, would be against the steamship. A man in absolute command and control of a very large vessel, an ocean steamship, freighted with the wealth of thè world, is far too apt, unless he be rather nobly constituted, to look down with some indifference upon all smaller craft. In a natural idea of his. own importance he feels : “I have signalled that I am coming. Lookout for yourselves.” But this idea, however natural, is one wholly illegal. Contrary to what it prompts, the pilot of the large vessel should respect the small one simply because it is small, because it is weak, because a collision which will do no harm at all to the large one will destroy the small one in a moment, and send it, as was the case here, bottom upwards, and almost in an instant, to destruction.

1. The opposing counsel assume that the steamboat was a privileged vessel, and because she brought vegetables, &c., to the markets of New Orleans, that therefore she had a t to the road as against the largest vessels that cross the ocean, vessels “freighted with the wealth of the world.”

e eny this extensive right. The river packet-boat had

Argument for the steamship, The Teutonia.

no more right than the steamship had to be in the river. If the night was so dark and the weather so misty as to make navigation dangerous, she was bound to stop as much or more than the steamship, for she was continually leaving the natural line of travel up and down the river, and crossing and recrossing from side to side; an operation of necessity dangerous, and one which in this case led to the catastrophe. To stop and detain for twelve hours a great ocean steamship, laden with passengers, is a costly, difficult, injurious, and (when as here the ship is almost in port) a vexatious thing to do. To stop and detain a river packet-boat is a small affair; neither costly, difficult, injurious, nor vexatious.

When the steamship left the quarantine, the weather was favorable for going up the river, unless the fog rose again, of which, at that time, there was no prospect.

It was not the same thing to the steamship whether she remained all night down at quarantine or not. She wished to be at New Orleans by daylight of the 31st December, ready with the morning to send her passengers ashore and to unload her cargo. The 1st of January would be a holiday.

2. The steamship is admitted to have been well manned, to have had proper lookouts, and proper lights in their proper places burning brightly. The officers and hands on our large ocean steamships, such as was this one, are habitually careful as to lights, lookouts, and other matters pertaining to vigilance.

There is great conflict of evidence about certain facts; the court must pass upon the weight of the evidence; but, as we read it, it shows that the rules of navigation were strictly complied with by the steamship; that she was sailing at the time of the catastrophe at a reduced rate of speed, and upon the first intimation of real danger, that she first slowed, and then stopped her engines and put her helm a-port.

In conclusion, there is no pretence that the collision was wilful on the part of the steamship. The collision was therefore accidental, and whether the accident is to be attributed

Opinion of the court.

to the want of diligence or skill in those who controlled the ship, is the question to be solved, in considering whether the decree below should be affirmed or reversed. We see no evidence of want of skill on the steamship.

Whatever may be the rule elsewhere, it is the settled doctrine of this court, that where a collision occurs without the negligence or fault of either party, each should bear his own loss.* But if this be not so, this court will, at the most, reverse the decree in order to divide the damages. It cannot reverse to establish the view of the District Court, and to hold the steamship alone responsible.

Mr. Justice CLIFFORD delivered the opinion of the court, in effect as follows:

The pleadings and proofs sufficiently show that the approaching vessels were respectively ignorant of each other’s intention as to the course they would pursue; that nothing was done by the officers and crew of the steamer which could enable those in charge of the steamship to ascertain or deterniine what course the steamer intended to pursue, and that those in charge of the steamer were equally in doubt and uncertainty as to wuat were the intentions of the steamship.

fije collision occurred between eleven and twelve o’clock at night. The night was dark. Both vessels were in a pietty dense fog just prior to the collision, and inasmuch as they had failed to come to an understanding from the signals given as to what precautions would be necessary to avoid a collision, it was manifest rashness to advance until t ey could in some way accomplish that object. This is virtually admitted by both parties, as each alleges that they stopped their engines, though it is not possible to credit the statements that they did so, as it is clear that if such orders a been given by both parties and seasonably and effec?a y executed, the collision would have been avoided. The

circumstances disclosed in the testimony satisfy the court

Opinion of the court.

that both vessels were under headway when the collision occurred. The contradictory allegations in the libel and answer cannot be reconciled, nor is there anything in the testimony to afford much aid in that direction.

Great reliance to support the theory that the steamship struck the steamer upon the starboard side is placed by the libellants upon the testimony of a witness employed by them to examine the wrecked steamer some fourteen months after the collision. But the argument for the appellees is that such a theory cannot be supported, as the steamer of the libellants was bound down the river, and it must be admitted that the argument is entitled to wreight. Still it is not difficult to see that it may be true if the residue of the libellants’ theory is well founded, that the steamship actually attempted to pass up the river between the steamer of the libellants and the eastern shore of the river, as the testimony of the libellants tends strongly to prove.

Inconsistencies, however, such as these cannot be reconciled with any satisfactory degree of certainty, nor is it necessary to make any such attempt in the case before the court, since, as already said, it is clear in the judgment of the court, that both vessels were under considerable headway when the collision occurred. Those in charge of each of them knew that the other was approaching from the opposite direction, and that their efforts to come to an understanding as to the respective courses they should pursue had been unsuccessful; and they also knew that the night was dark and foggy to such an extent as to render navigation peculiarly dangerous. ,

Attempt is not made to set up the defence of inevitao e accident, nor could it have been successful if it had been set up, as such a defence can only be maintained in a case w ere neither vessel is in fault. Inevitable accident in the case o a collision is where both parties have endeavored by a means in their power, with due care and a proper disp ay of nautical skill, to prevent its occurrence, or it may from the darkness of the night if it clearly appears that o parties were without fault from the time the necessity

Syllabus.

precaution began to the moment when every opportunity to avoid the danger ceased.

Precautions must be seasonable in order to be effectual, and if they are not so and a collision ensues in consequence of the delay, it is no defence to allege and prove that nothing could be done at the moment to prevent the disaster, or to allege and prove that the necessity for precautionary measures was not perceived until it was too late to render them availing. Inability to avoid a collision usually exists at the moment it occurs, but it is generally an easy matter, as in this case, to trace the cause to some antecedent omission of duty on the part of one or both of the colliding vessels. Plainly both were in fault in this case in that they continued to advance under headway in a dark night, when those in charge of them knew that there was imminent danger that they would collide. Both vessels having been in fault the rule is that the damages should be divided between the offending vessels.

Decree reversed, with costs in this court, and the cause is remanded with directions to divide the damages found in the District Court, together with the costs in both of the subordinate courts.

Reversal and remand accordingly.