Tomlin v. Dubuque, Bellevue & Miss. R. R.

Day, Ch. J. l. BiPABiAt? Sssrpxfi’riverl I. In the case of McManus v. Carmichael, 3 Iowa, 1, this court, after great research, extending to a review of all the cages both in the State and Federal courts, in a well-considered opinion, announced as the law of this State, that the Mississippi river is a legally navigable stream, and that the common-law consequences of navigability attach to such legal navigability. This doctrine was followed in the subsequent case of Haight v. Keokuk, 4 Iowa, 199. One of the common-law consequences of navigability, as fully shown by McManus v. Carmichael, is that the [109] riparian proprietor owns the fee of the soil only to ordinary high-water mark, and that the proprietorship of the bed of the stream, below ordinary high water, is in the State for the use of the public. Appellee concedes that it is only upon a review of the former decisions of this court that he can expect a favorable result in this case, and hence we are asked to overrule McManus v. Carmichael, or at least to modify the holding so far as to extend the ownership of the riparian proprietor to low-water mark. A careful examination of this case, with the reasoning by which it is supported, convinces us that the conclusions there reached rest upon satisfactory and solid foundations, and induces us to adhere to it as a sound exposition of the interesting questions it involves. 3. constbucboad: right of riparian owner to damages, II. This case does not involve the right of compensation for the land taken below ordinary high-water mark. The court instructed the jury that the plaintiff did not own the fee in such land, and could not ., , * . recover its value. lJie question is, can tlie plaintiff recover damages for being deprived of access to a navigable liver, by reason of the building of a railroad along its banks. In view of the concession of appellee, that a result favorable to him can be effected only through the overruling or modification of the cases before alluded to, we will content ourselves with a less elaborate consideration of this question than that which -its importance might otherwise render proper. The doctrine deducible from adjudged cases is, that by the rules of the common law the owner,of land along the shore of a navigable river is entitled to no right, either in its shores or waters, as an incident of his ownership, except the contingent ones of allmvion and dereUctum. Hence he is not entitled to damages, for an improvement made along the banks of such river, by the authority of the State, the effect of which is to deprive him of free access to the stream. This question was directly passed upon in the case of Gould v. [110] Hudson River R. R. Co., 6 N. Y. 543, wbicb was an. action of trespass, to recover of tbe railroad company damages sustained by plaintiff in consequence of the construction of tbe railroad between bis farm and tbe channel of tbe Hudson river, between bigb and low-water mark. Tbe court. of appeals, affirming tbe decision of tbe supreme court, held: “ That the owner of lands adjoining a navigable river in wbicb tbe tide ebbs and flows bas no private right or property in tbe waters of tbe river, or in tbe shore between bigb and low-water mark, and is therefore not entitled to compensation from a railroad company wbicb constructs, in pursuance of a grant from tbe legislature, a railroad along tbe shore, between bigb and low-water mark, so as to cut off all communication between such land and tbe river otherwise than across tbe road.” And that, “ whatever rights tbe owner of tbe land in such cases bas in tbe river, or in its shore below bigb-water mark, are public rights, wbicb are under tbe control-of tbe legislative power, and any loss sustained through the act of tbe legislature affecting them is damwwm absque injuria.” In tbe recent well-considered case of Railroad v. Stevens, in tbe court of errors and appeals of New Jersey, in wbicb this question was involved, Beasly, C. J., announcing tbe opinion of tbe court, after a full review of tbe subject, uses this language : “ Tbe result is, that there is no legal obstacle to a grant, by tbe legislature, to tbe defendants of that part of the property of tbe public, wbicb lies in front of tbe lands of plaintiff, and which is below bigb-water mark. It may be true that by such an appropriation tbe plaintiff will sustain a greater inconvenience than will other citizens whose land does not run along this river. But tbe injury to all is in its essence and character tbe same, tbe difference being only in degree. All persons who have occasion to approach this river over that part of tbe bank occupied by tbe railroad of tbe defendants may, perhaps, experience some incon [111] venience from the interposition of snch works; the railroad, therefore, is somewhat of an impediment to the public rights of fishery and navigation. But no one, it is presumed, will pretend that such impediment is on that account illegal, if authorized by the legislative authority. Nor can the plaintiff complain because a difficult access to' the water is a greater hardship to him, owing to the easy use of the water in connection with his property in its natural condition, than it is to those who live at a distance from it.” Am. Law Reg. for March, 1871, p. 166. These decisions settle the questions involved in this case, adversely to appellee, and in their conclusions we concur. Reversed.