Haight v. City of Keokuk

Woodward, J.- -The thought which first demands our attention is, tbat tbis matter bas been already adjudicated. In tbis respect tbe position of things is as follows: In December, 1851, tbe city of Keokuk sued Haigbt for tbe penalty for keeping a wharf boat at tbe wharf of tbat town, without a license so to do. Tbe defendant pleaded not guilty of a violation of tbe ordinance. He was charged witb keeping tbe boat at tbe wharf or levee built by-him, out from tbe natural shore, in front of lots four, five and six, in block six, mentioned in tbe statement. Tbe facts which give rise to tbe question, were not pleaded, but were given in evidence under tbe above plea. Tbe cause was submitted to tbe court on fact as well as law. Under tbe statute, tbe court reduced to writing its finding of facts, and tbe law which it applied. It finds many facts, and among them, tbat tbe land was, prior to, (a time not named,) private property;' tbat in tbe year, (left blank, but which in fact was 1840,) Isaac Galland, professing to act for himself and other parties, &c., laid out tbe town of Keokuk; tbat there is noth — 206 — ing to show that at the time Gralland laid out the town, “he had any title or right to the same,” or any authority to act •for the owners, farther than is shown upon the face of the map, (which is his certificate and acknowledgment, signed “ for himself and others, proprietors;”) that the plat was not made, acknowledged and recorded so as to vest the streets, alleys and public grounds in the town; that by the notes upon the map, it is declared that the streets and alleys shall be public highways, with some exceptions; and that among such exceptions is Water street, which the court finds was not made a public highway by the act of Gralland, nor the operation of law; that in the proceedings for partition (which the court finds), between the owners and proprietors, the town as laid out by Gralland, was recognized, adopted and made a part of the decree ; that in said decree the town lots were bounded by the middle of the streets and alleys, and those upon Water street included all the land in front of them to the Mississippi river; that lots four, five and six, in block six, lie upon Water street, and included all the land in front of them to the river; that the owners own the right of soil to the middle of the river ; that Haight owned lot six, and had permission from the owners of four and five, and kept a wharf boat on the river in front of those lots; and that the city by its charter, has authority to establish wharves upon city property only, and fix rates,. &c., when so established, &c. Other facts are found, but they are not deemed material. Wherefore the court found that he was not liable to the penalty for not taking out a license to keep his wharf boat, in accordance with the ordinance, and therefore rendered judgment for the defendant. The question now is, whether the judgment in the above cause is a bar to the present one, which is a bill for an injunction to restrain the city from suing persons for landing boats at the wharf, without paying wharfage. The former suit involved, at most, only the question, whether Haight had a right to keep a wharf boat, as he was doing. Now, however similar the evidence may be in its detail, or the facts developed by the testimony, the questions are totally — 207 — unlike. The objects and ends of tbe two suits — tbe relief sought — are quite diverse. Allowing tbe complainant tbe utmost benefit of tbe former suit, be could say no more than that it was decided, that be bad a right to keep a wharf boat at that place; and this has no apparent nor necessary bearing on tbe question of tbe power of tbe city to demand wharfage. Neither tbe judgment, then, nor the pleadings, show anything to our present purpose; but to find anything, we have to look beyond them, to tbe finding of tbe court. This is in tbe nature of a special verdict. Such a verdict would find facts only. Tbe rest is tbe law held by tbe court. The court held that defendant bad the right of soil, and then inferred or held, that in law be bad tbe right to keep tbe boat, and therefore rendered judgment for him. Now, all this, except tbe judgment, is incidental. It comes up in tbe evidence. There is nothing put in issue concerning tbe title; and to make it conclusive, the matter should, in some manner, have been put in issue. Tbe right of soil, or property, was not tbe matter in issue, although it was made incidental to it by tbe evidence. An estoppel, in these cases, arises from tbe point or matter of fact having been once distincly put in issue, and having been on such issue joined, solemnly found against tbe party. 2 Phil. Ev. (ed. 1849-50) 18; 4 Cow. & Hills (ed. of 1849-50) 12 et seq., and note 12, et seq. In order to make tbe matter a bar, it must have been embraced in some of the pleadings, or in tbe issue in tbe former action. 2 Phil. Ev. ut sup. 13 to 19; 2 Pick. 20. Thus, any demand or claim embraced in the declaration, or any right or title set up in defence, in a plea, may become a bar; and parol evidence is sometimes admitted to show what was tried or submitted. But this is only, to show that some particular item, demand, claim, or right, which would be covered by tbe declaration or plea of notice, was submitted or was not, as under a general count for money demands, or under a general submission to award, to show that certain demands or subjects were beard and submitted. But it is apprehended, that no matter can be pleaded as res adjudicata, — 208 — wbicb was not covered by, or embraced in tbe pleadings of tbe former suit. Matters which arise only incidentally in tbe evidence, however much they may influence tbe mind of tbe judge or jury in arriving at a conclusion, are not matters adjudicated. 2 Phil. Ev. 12 to 23, chap. 1, § 1, div. 3. Tbe case of Standish v. Parker, 2 Pick. 20, is a case in .point, in wbicb Parker, C. J., says: “Tbe principle adopted is, that in actions of trespass, or for torts generally, nothing is conclusively settled, but tbe point or points put directly in issue." Tbe matter there sought to be set up as res adjudicata, was a right of way, and its position or relation in tbe suit was remarkably similar to that of tbe right here set up as a bar. But there is a great difference between tbe two cases, in one important respect, viz: that tbe matter or right was tbe same in tbe two suits, whilst in tbe case at bar they are different. This leads to another rule. Tbe matter of tbe two actions must be tbe same, in order to make tbe one conclusive in tbe other. 2 Phil. Ev. 5. And it is difficult to see bow tbe matters of these two suits can be considered tbe same. They may be determinable by tbe same facts — the same rights or title — but those facts, or that right or title, were not pleaded in tbe former suit, nor embraced in its pleadings, but arose only incidentally in evidence. Tbe question is a delicate one, and requires discrimination, but we think it clear, upon tbe whole, that tbe judgment in tbe former suit is not conclusive upon tbe present. Under this state of things, tbe case is open to an inquiry into tbe claim of complainant. He insists, in bis bill, that be is tbe owner of all the ground in front of said lot, to. tbe middle of tbe main channel of tbe river, and never has parted with tbe title, nor tbe use of tbe same, for tbe purposes of a wharf, to tbe public, nor to tbe city of Keokuk, nor to any other person. The prayer of tbe petition is based upon this supposed right to tbe use of tbe land between tbe lots and tbe river, tbe same argument being applied to lots four and five, and tbe land in front of them. Tbe plat of tbe town, made by Gralland, and tbe proceed — 209 — ings in partition are in evidence. By the treaty of August 4th, 1824, (7 U. S. Stat. at Large, 229,) the Sac andEox tribes of Indians ceded to the United States, certain lands, including those known as the Half-Breed tract, with the following stipulation as to that tract: “ It being understood that the small tract of land lying between the river Desmoines and Mississippi, and the section of the above line between those rivers, is intended for the use of the half-breeds belonging to the Sac and Eox nations,” &c. By the act of Congress of June 30, 1834, (4 U. S. Stat. at Large, 740,) the United States relinquished and vested in the said half-breeds or those relations who, at the passage of the act, were entitled to the same, all the right, title and interest which might accrue or revert to the United States in those lands, with power of sole devise and descent. Many persons of the halfbreed race conveyed away their interest. In 1840, Isaac Gal-land laid out the town of Keokuk, his certificate being signed by his name, “for himself and others, proprietors.” In 1841, there was a decree of partition between those found to own shares, being one hundred and one in number. Galland’s map declares that all the streets and alleys shall be, and remain public highways for ever, except Water street, and certain alleys. The commissioners adopt, in the main, the plan of the town, as laid out by Galland, in respect to its blocks, lots, and streets. In their report, they do not except any of the streets or alleys from the effect of the dedication as public ways. Galland’s map made three squares public, two (at least) of which the report assigns to individuals; but yet recognizing them all as “squares,” in these words: “Arch, Eayette and Chatham squares are each three hundred feet square, or the size of an entire block.” The report uses the following language in respect to the town lots generally : “ All the town lots included in the above share, are bounded by the middle of the streets and alleys on which they are situated,” and of those next the river, it says: “ And those upon Water street, include also the land in front of them to the Mississippi river." The above is the language used in relation to share M 80, — 210 — which, was Haight’s, and by which he obtained lot six in block six; and similar language is used in respect to the shares by which lots four and five were obtained. The complainant claims some effect from the circumstance that Galland’s map does not make Water street a public street. There is no evidence of Galland’s authority to lay out a town and record its plat, other than his certificate and acknowledgment upon the map, and the fact, subsequently appearing, that he had an interest in the tract of land. So far as it was adopted in the report and decree, it becomes of force ; but where the report and decree depart from it, it is not of force. The latter place Water street upon the same ground, as to publicity, with all the other streets. There is nothing said as to their being public or highways, but they are laid out and named, and called streets, and are in a town. They stand upon the usual ground of streets in a town, whose plat or map is recorded; and in that manner, and so far as that effects it, are dedicated to the public use. In other words, they are dedicated as highways, and are, therefore, public. But assuming, for the moment, Galland’s authority to make the town, it may very well be doubted, whether his exception of Water street from such dedication, was not invalid for repugnancy. A reservation or exception repugnant to the grant, is void. This case is just as if the whole matter were written out in words. The law gives á certain meaning to a plat or map of the town, acknowledged and recorded, without many explanatory words. It is called or named the map or plan of such a town; it is divided into blocks or squares, and lots, and these are numbered; between the squares are spaces, as for ways; and suppose them not named, and not called streets, the proprietor sells lots to various persons. Now, it may well admit of a reasonable doubt, whether he would be permitted to say, that these spaces were not streets and highways; and whether the law does not give to his acts such a signification. But when he calls them streets, and names them as such, it would seem that all doubt is removed. A town, with blocks behind — 211 — each other, to the number of ten or twenty in depth, without streets, would be an anomaly. When he says Water street is a street, but it is not public — it is a highway, but it is not public — this would seem to be incongruous and repugnant. But the report, and the decree adopting it, do not adopt this absurdity. This street stands, as the others do, as regards its publicity. But what is the effect of the language in .the report and decree, that the lots are bounded by the middle of the streets and alleys on which they are situated ? It is to give the lot owner the same right in the soil, as the owner of land has in his land over which a highway runs. He owns the soil— the land — the fee simple — but subject, always, to the public right to the use, control, and management of the highway. If the town should be vacated, he would own the land, and with it the use, up to the middle of what had been the street; It is so of Water street in Keokuk. By this decree or partition among the proprietors, those fronting the river, in like manner, own the land — the fee — to the river. But it is subject to the public rights and wants. The lot owner has very little of present interest in it. He does not own the present use. If the town should be vacated, he would then own, and be able to occupy, to the river. But as long as there is a town, it is public, and the use, control, and management of it, is in the public somewhere, and by the charter, this control is placed in the municipal government. It is taken for granted that no one supposes that, under the language above quoted, a lot proper extends to the middle of the -street, for the lots are described, in both Grab land’s map and the report, as having certain dimensions, say fifty feet in width, and one hundred and forty in depth or length generally; and, again, this construction would leave it a town, without streets! The same reasoning applies to Water street. No other reasoning than the foregoing will answer; for it is impossible to suppose that the proprietors, in laying off a commercial town upon a great navigable river, intended to cut off from free access to that river, all but those who owned the front lots, and thus take away that — 212 — which constitutes the greatest value of them all. What makes the land of this town of more value than a common farm? It is its adaptation to commerce and trade, through its accessibility to a large navigable stream, and thence its communication with the rest of the world. Again: the petitioner argues that Water street is limited to the width marked on the dotted hues, and that he has right to the space outside of that. Not so ; this street is thus described in the report: “Water street extends the whole front or river side of the town, or from the intersection of Orleans street, (on the upper side), with the Mississippi river, down the right bank of said river, with the meanders thereof, to the intersection of Cedar street, (on the town: side,) with the Mississippi river.” The lines were probably intended for convenience, as indications of distances then existing, but at any rate, must, according to the well-established rule, yield to great natural objects designated as marks and bounds. But, as a consideration of more weight, the report and decree do not adopt these lines and distances, although the map attached thereto shows them. The description of this street, in the report, is as given above, and in fair interpretation, leaves it as undefined in width, extending to the river, and forming the river front of the town. We must give a little attention to this part of the cause. In the case of McManus v. Carmichael, 3 Iowa, 1, after a very full argument and hearing, and a careful examination of the subject, as it hacheen adjudicated upon heretofore, it was determined that the proprietor of land upon the bank of, and adjacent to, the Mississippi river, does not own to the middle of the main channel of the river, nor to low water but to high water only — that is, he owns to the edge of the bank — and that the whole bed of the river is in the public. If we divide a river into its parts, it consists of banks, bed, and water, and the bed includes the shores; for, to constitute a part of the bed, it is not necessary that it should be always covered by water, yet in order to obtain intelligible terms for different parts, it is often divided into banks, — 213 — shores, bed, and water, still the shore is a part of the bed, or bottom of the river. It is probable that confusion and misunderstanding of cases has arisen from the use of this term “bed” of a river, in different senses, sometimes in its broad and true sense, and sometimes in a limited one, measuring only that part which is always covered by water. According to the case of McManus v. Carmichael, then, Haight owns the soil to high water only. But here is interposed the argument, that this land is not held under the United States by the usual manner of grants, that is, by patent, after a survey, and described by section, town and range. This is true; but yet it will not affect the extent of the complainant’s right. The grant to the half-breeds, was to them as persons, and not as a political body. The political jurisdiction remained in the United States. Had the grant been to them as a political society, it would have been a question of boundary between nations or states, and then the line would have been the medium filum aquae, as it is now between Iowa and Illinois. But such a grant could not be, without creating an imperiam imperio. This was not designed, and was not done. The grant was to them as individuals — as tenants in common — and is to be construed as any other grant or sale to individuals. It has since been surveyed and divided into sections in the same manner as the other public lands, although the country was not then surveyed, yet the grant extends no further on the river shore or bank, than if surveyed. It has been held, that the government cannot convey the land between high and low water on the public or navigable rivers; (Mayor, &c., of Mobile v. Eslava, 9 Porter, 578; Same case on error, 16 Pet. 232;) and that this space and these waters belong to the state. Mayor &c., v. Eslava, 9 Porter, 578 ; 16 Pet. 235, ut supra; Pollard's Lessee v. Filer, 2 How. 572 ; Same v. Hagan, 3 How. 213. Although no state may exist at the time of such a grant, as in this ease, yet grants and sales made under such circumstances, are to be construed as having a view to the future sovereignty which may or will arise, and so as not to impair its rights when arisen. It is our opinion, — 214 — therefore, that the complainant’s right of soil is to be limited to the line established in the case of McManus v. Carmichael. One further thought, presented by the petitioner, should be noticed. It is, that if this ground is dedicated to the public, it is as a street only; and that if his rights are subject to the public uses, they are so subject to the use of it only as a street or highway, and not as a wharf, and that it is named and called a street and not a wharf. He claims that the object of a street is for passage, for traveling over, and not to land or deposit goods upon. This is taking a very narrow and close view. The streets of a town are fairly subject to many purposes to which a highway in the country woiild not be. More regard should be paid to the object and purpose than to the name. The ways of a town would' be of comparatively little use if the citizens and traders could not deposit their goods in them temporarily, in their transit to the store-house, and so of other things, and so it is of the wharf. If goods cannot be deposited upon it in preparation for shipping them, or unladen upon it from boats and vessels, why is a town located near the river upon land which, in other respects, is inconvenient, and is expensive to grade, to bring into form and order, and to keep in repair, instead of upon an even prairie, requiring no such trouble and outlay ? But this is too plain to require words. Let this be called by what name it may, its object is manifest. It is not intended by this to imply that the name given in such cases has nothing to do with .the designation of the purpose of the dedication, but only that it is not to be construed too rigidly, and that the manifest purpose is to be taken into view. Had this been named a wharf or levee, the party would have had the same force of argument in objecting to its use for traveling over it. The name street is sufficiently accurate, and sufficiently opens it to all the public uses manifestly intended. It should be observed also, in relation to this town, that the whole proceeding is to be regarded as an act of the joint proprietors, laying out a town for their mutual and common — 215 — benefit; and hence it should be difficult to adopt any construction detrimental to the interests of a large portion of the town. Such acts should not be construed with close and technical rigidity, although it is true that we must not depart from the settled rules of law. The intent affords the guiding principle. We cannot entertain any doubt that the use of this street, in its full width, is in the public, and the management of it in the municipal authorities. The claim bf the town is not one of property, but (as trustees for the still greater public), one of government and regulation, under authority delegated from the supreme civil power of the state, and which is clearly given in the charter of the city. Eor cases supporting the foregoing views, and upon the subject of town plats, dedications to public uses, wharfage, &e., see Bowan's Executors v. Portland, 8 B. Monroe, 232; Barclay v. Howell's Lessee, 6 Pet. 498; Louisville v. Bank of U. S., 3 B. Monroe, 144; Augusta v. Perkins, Ib. 437; Bowlinggreen v. Hobson, Ib. 478 ; Giltner v. Carrolton, 7 Ib. 680; Kennedy's Heirs v. Covington, 8 Dana, 61. That a location on a river is sufficient evidence that the town extends to the water : see 2 J. J. Marsh. 224 ; and ut supra, 3 B. Monroe, 144; 7 B. Monroe, 680. The petition for re-hearing is overruled.