# Howard v. Ingersoll/Separate Nelson

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* Separate Opinions Nelson Curtis
United States Supreme Court
54 U.S. 381
Howard v. Ingersoll
Mr. Justice NELSON.
This is a writ of error to the Supreme Court of the State of Alabama.
Ingersoll, the plaintiff below, and defendant here, brought an action against Howard for setting back the water of the River Chattahoochee upon his lands and mill by the erection of a dam across the said river, at the city of Columbus, in the State of Georgia, by reason whereof the operations of his mill were obstructed, and the use of his premises impaired.
The defendant pleaded the general issue.
On the trial, it appeared that the plaintiff was the owner of a lot of land held under a patent from the United States, situate on the west bank of the Chattahoochee River, in the State of Alabama, opposite the city of Columbus, and which lot had for its eastern boundary the State of Georgia.
This river has high bluff banks in some parts of it on both sides, in others, the banks are low, and the adjacent lands subject to inundations in high water, extending for nearly a mile from the bank. At the plaintiff's land the banks are from fifteen to twenty feet high on both sides, and somewhat abrupt, and above and below for some distance. The abrupt and high banks, however, on the plaintiff's side of the river do not extend down to the water's edge at ordinary low water. Between the high bluff and the water at this stage, the distance varies from fifty to one hundred and fifty feet; and this intermediate space is flat bottom-land, gradually descending from the base of the bluff to the water, and upon which flat grow trees, such as pines, oaks, gums, poplars, &c. Upon this flat, the plaintiff's grist-mill is built, and a road made along under the bluff leading to it. There is, also, a saw-mill and cotton-gin factory standing upon it. And a small portion of the flat is at times put under cultivation.
In the ordinary state of the river, in the winter season, the water covers this flat about half way to the high bluff, extending to the base of a bank or ridge of sand and gravel; and, in freshets, the water covers the flats reaching to the bluff. It is only in a full state of the river, or freshets, that the water overflows the sand bank or ridge before mentioned.
I have collected these facts from the two cases before us between these parties, each of which involves the same general question.
The plaintiff supplies his grist-mill with water by a wing dam extended obliquely into the river.
The defendant erected a dam across the river some three hundred yards below the plaintiff's mill, and opposite the city of Columbus. The dam is from four to five feet high; and at an ordinary stage of the river, the water is thrown back upon the plaintiff's mill so as to prevent its use. The defendant possesses a grant of the bed of the river upon which his dam is erected, derived from the State of Georgia, and extending to high-water mark on the western bank of the river.
The court charged the jury, that a person passing from the State of Georgia across the River Chattahoochee to the State of Alabama, at ordinary low water, would be upon the bank as soon as he left the water on the western side; 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, to which charge the defendant excepted.
The defendant asked the court to charge, 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 was also refused. and an exception taken.
This case involves a question of much higher interest and importance than a simple decision upon the rights of these parties, as the court see that the decision cannot be reached without a determination of the boundary-line between two sovereign States, for a distance of some one hundred and fifty miles. The facts in the record are few, being confined to a description of the localities respecting this boundary at the point in dispute, and the few that are disclosed, very imperfectly and confusedly stated. It is to be regretted that the court is obliged to pass upon a question of this magnitude under these embarrassments, and in the absence of any opportunity, on the part of the two States interested, to furnish the necessary topographical information in respect to the river Chattahoochee and its western banks for the whole distance within which they constitute the boundary between them.
This information would have been useful to aid the court in a proper determination of the question, and would naturally have been furnished, if the controversy had been between the States themselves.
The words of the cession of Georgia to the United States, in 1802, describing the boundary-line in question, and which are material to be noticed, are as follows:-Georgia cedes the territory 'west of a line beginning on the western bank of the Chattahoochee River, running thence up the River Chattahoochee, and along the western bank thereof and the great bend;' and the United States cede to Georgia all their rights to the territory lying 'east of the boundary-line herein described as the eastern boundary of the territory ceded by Georgia to the United States.'
This is the description of a line that has become the boundary between Georgia and Alabama, for a distance of one hundred and fifty miles.
Two constructions are contended for, arising out of the description: On the part of Georgia, it is claimed, that her boundary extends to high-water mark, on the western bank of the Chattahoochee River for the whole length of this line. On the part of Alabama, that it stops at ordinary low-water mark, on the western bank of said river.
The difference is very material, as it will be seen, that upon the former construction, Alabama can have a water or river line for her boundary only during high water or a freshet, which is but an occasional and temporary state of the river; and consequently the owners of the land on the Alabama side, for the greater portion of the year, and, for all practical use of the water for agricultural or hydraulic purposes, would be deprived of a river boundary. And this difference is the more striking when we see, from the evidence in the record, scanty and meagre as it is, the strip of land between the high bank and the river, that is, between high and ordinary low-water mark, would be from ten to twenty and more rods in width, varying with the character of the bank, which would belong to Georgia, or to the owners on the Georgia side of the river; and over which the jurisdiction and government of Georgia would necessarily extend to the exclusion of Alabama.
We have no evidence, in the record, as to the distance the tide ebbs and flows up this river. It probably does not reach the point where the boundary in question begins, which is at the 31st degree of north latitude. It is navigable for steamboats up to Columbus, which is within some thirty or forty miles of its termination as a boundary between the two States; and, as I am informed, is navigable above the great bend, or west point, for small craft, for some one hundred miles, though interrupted by rocks and falls between that and Columbus.
Grants of land, bounded by the sea or by navigable rivers, where the tide ebbs and flows, extend to high-water mark, that is, to the margin of the periodical flow of the tide, unaffected by extraordinary causes, and the shores below common high-water mark belong to the State in which they are situated. But grants of land bounded on rivers above tide-water, or where the tide does not ebb and flow, carry the grantee to the middle of the river, unless there are expressions in the terms of the grant, or something in the terms taken in connection with the situation and condition of the lands granted, that clearly indicate an intention to stop at the edge or margin of the river. There must be a reservation or restriction, express or necessarily implied, which controls the operation of the general presumption, and makes the particular grant an exception.
These are familiar principles of universal application, governing the construction of grants of land bounded upon the sea or tide-water, or upon freshwater rivers, navigable or unnavigable, and whether made by States or individuals, or in large or small tracts. And in applying them to the description of the cession before us, we shall be enabled to determine where the boundary-line in dispute should be drawn. The words are, 'beginning on the western bank of the Chattahoochee River,' 'running thence up the said River Chattahoochee, and along the western bank thereof.'
Where land adjoining a freshwater river, or above tide-water, is described as bounded by a monument, whether natural or artificial, such as a tree or a stake standing on the bank, and a course is given as running from it up or down the river to another monument standing upon the bank, these words necessarily imply, as a general rule, that the line is to follow the river, according to its meanderings and turnings, and the grantee takes to the middle of the river. Such is the uniform construction given to this description where the common law prevails. It has been repeatedly applied to grants abutting on the River Mississippi, the Missouri, the Hudson, the Connecticut, and other great rivers in the United States, above tide-water. 3 Kent's Com. 427, 428, 429, and notes; Angell on Watercourses, c. 1, ed. 1850.
Had the description in this case been limited to the first two calls in the grant, it would have been impossible to have taken it out of this rule of construction; and the owners on the Alabama side would have been carried to the middle of the river. But the third call, which is, 'along the western bank thereof,' limits the effect and operation of the other two, and excludes the bed of the river. It indicates an intent to reserve the river within the boundary and jurisdiction of Georgia, and to confine the grantee to the western edge or bank. And this raises the material and important question in the case, namely, where shall that line be drawn? On behalf of Georgia, it is contended, it shall be drawn on the bank or bluff, as described in the record, at high-water mark; on behalf of Alabama, at the bank or ridge of sand and gravel, where the western margin of the river is found at ordinary low-water mark.
Now, it is to be observed, that the language of the cession, beginning on the western bank and running thence up the river and along the bank, does not necessarily, nor, as I think, reasonably, call for a line along the bluff or high bank, such as confines the body of water in the river at high water, or when swollen with floods. The bank inclosing the flow of water, when at its ordinary and usual stage, is equally within the description; and the limit within this bank, on each side, is more emphatically the bed of the river, than that embraced within the more elevated banks when the river is at flood. These are more or less distant from the ordinary channel, depending upon the character of the river and topography of the adjacent lands. There are usually in rivers of this description banks representing the point which is reached at high water and which bound it at that stage of the river. They may be, and not unfrequently are, at a considerable distance from the accustomed bed and the banks which then bound it. The flats intermediate may comprise the most valuable portion of farms bounded upon the river and extending back to the uplands, notwithstanding they may be inundated by the spring and fall freshets. The valleys of the Mohawk, and Hudson, and Connecticut Rivers, may be referred to as illustrations, and also the Susquehannah, both in New York and Pennsylvania. Some of the finest alluvial bottom land in New York is found in the valley of the Mohawk, between the banks of the river at its usual stage and the banks at high water, which is the beginning of the uplands. If these alluvial bottoms are found in the valley of the Chattahooche, and for aught I know they may be, according to the boundary-line contended for by the plaintiff in error, the settlements within the State of Georgia would not be bounded by the river; as most valuable possessions for sites of towns, and for hydraulic and even agricultural purposes, might be found lying along its western margin.
I cannot think that it is necessary to occupy more time in attempting to refute the claim to this boundary-line according to the terms used in the cession by Georgia.
Then, if we leave the bank at what is called high-water mark, as not given by any reasonable interpretation of the grant, on what principle or rule of construction is an intermediate line to be drawn short of the ordinary and permanent bed of the river. It would be a boundary wholly undefinable, and designated neither by high water nor low water, nor by the usual stage, but left to vibrate between what is called high water and the accustomed bed of the river.
The term high water, when applied to the sea, or to a river where the tide ebbs and flows, has a definite meaning. The line is marked by the periodical flow of the tide, excluding the advance of waters above this line in the one case by winds and storms, and in the other by freshets or floods.
But in respect to freshwater rivers, the term is altogether indefinite, and the line marked uncertain. It has no fixed meaning in the sense of high-water mark when applied to a river where the tide ebbs and flows, and should never be asopted as a boundary in the case of freshwater rivers, by intendment or construction, whether between States or individuals. It may mean any stage of the water above its ordinary height, and the line will fluctuate with every varying freshet or flood that may happen.
In our judgment, the true boundary-line intended by Georgia and the United States, and the one fairly deducible from the language of the cession, is the line marked by the permanent bed of the river by the flow of the water at its usual and accustomed stage, and where the water will be found at all times in the season except when diminished by drought or swollen by freshets. This line will be found marked along its borders by the almost constant presence and abrasion of the waters against the bank. It is always manifest to the eye of any observer upon a river, and is marked in a way not to be mistaken. The junction of bank and water at this stage of the river satisfies the words of the cession, and furnishes a line as fixed and certain as is practicable; and is just and reasonable to all the parties concerned. It excludes the high bluffs or banks, which the river touches but occasionally, when swollen with freshets or floods; and also an intermediate line, which can be neither marked nor described; and adopts a boundary along the bank and margin of the river of some permanency, and which parties providing for a river boundary between them would naturally have in their minds. That they intended a river boundary in this treaty of cession I cannot doubt. That Georgia intended to reserve to herself the bed of the river is equally clear. The line which I have designated satisfies both intentions, and, in my humble judgment, no other boundary-line will.
There are some general considerations bearing upon the question which should not be overlooked.
This court observed, in the case of Handley's Lessee v. Anthony, (5 Wh. 374, 379,) through the Chief Justice, that 'when a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when, as in this case, one State is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly-created State extends to the river only. The river, however, is the boundary.' 'In case of doubt,' says Vattel, 'every country lying upon a river is presumed to have no other limits but the river; because nothing is more natural than to take a river for a boundary when a state is established on its borders; and wherever there is doubt, that is always to be presumed which is most natural and probable.'
Again the court say, 'Even when a State retains its dominion over a river which constitutes the boundary between itself and another State, it would be extremely inconvenient to extend its dominion over the land on the other side which was left bare by the receding of the water. Wherever the river is a boundary between States, it is the main, the permanent river which constitutes that boundary; and the mind will find itself embarrassed with insurmountable difficulty in attempting to draw any other line than the low-water mark.'
These views are sound and just, and the mind at once assents to them. And they apply directly and with great cogency to the question before us.
Let us now return to the case immediately under consideration. The court instructed the jury that the boundary-line described in the treaty of cession from Georgia to the United States, as running up the said river and along the banks thereof, was the line impressed upon the land by ordinary low water. I am not certain but that the line here designated, or rather intended to be designated, is the same that we have attempted to define in this opinion. 'Ordinary low water,' however, like 'low water,' is a relative term, and, in the abstract and without practicable application, has no definite meaning, and furnishes no satisfactory guide by which to ascertain or determine the line in question. I freely admit, that if the terms of the cession would justify the interpretation given to that of the territory north-west of the Ohio, I should greatly prefer the line adopted in Handley's Lessee v. Anthony, which was low-water mark.
But the call here for the bank seems necessarily to connect that with the river in defining the boundary, and restricts it somewhat to a greater extent than in the description of the line in the case mentioned.
As the general question involved is one of very great importance, and the ruling not necessarily conveying the instruction I think should have been given, I agree that a new trial should be granted.
The defendant requested the court to instruct the jury that, if the bank of river was ordinary low-water mark, the plaintiff had no right to use the water at that stage, which was refused.
This instruction, we suppose, was asked for on the ground that, admitting the boundary-line to be fixed at ordinary low-water mark, inasmuch as the bed of the river within that limit belonged to Georgia, and the defendant's grant, derived from that State, authorized the erection of his dam to the height claimed, he had a right to set back the water up the bed within the aforesaid limit; and the complaint, therefore, that the backwater interfered with the supply of water to the plaintiff's mill, by obstructing the natural current of the river, was unfounded, as the defendant had a right, to this extent, to obstruct it. If this was the meaning of the instruction prayed for, there was error in the refusal.
Undoubtedly the plaintiff has no right, under his grant from the United States, to erect a dam in the bed of the river within the boundary-line of Georgia, for the purpose of supplying his mill with water. But I am not prepared to admit, that he cannot supply it by diverting the water upon his own land, without crossing the boundary-line, as by sinking a trench or ditch, if by so doing he works no injury to the rights of others. Every proprietor of land on the banks of a river has naturally an equal right to the use of the water which flows in the stream adjacent to his lands. No proprietor has a right to use the water to the prejudice of other proprietors, above or below, unless he has acquired a prior right to divert it. He has no property in the water itself, but a simple usufruct while it passes along. Any one may reasonably use it who has a right of access to it; but no one can set up a claim to an exclusive right to the flow of all the water in its natural state; and that what he may not wish to use himself shall flow on till lost in the ocean.
Streams of water are intended for the use and comfort of man; and it would be unreasonable, and contrary to the universal sense of mankind, to debar a riparian proprietor from the application of the water to domestic, agricultural, and manufacturing purposes, provided the use works no substantial injury to others.
These principles will be found stated more at large by Chancellor Kent, in his Commentaries, (3 Kent's Com. 439, 440, 441); and also by Parke, J., in a very recent case in the Court of Exchequer in England, (Embry and another v. Owen, 4 Eng. Law and Eq. R. 466, 476, 477.)
Mr. Justice GRIER.
I concur with my brother Nelson.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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