ST. LOUIS
v.
RUTZ.

*239 Mr. Leverett Bell and Mr. W.C. Kaeffner for plaintiff in error.

Mr. James K. Edsall for defendant in error. Mr. Alonzo S. Wilderman also filed a brief for the same.

*241 MR. JUSTICE BLATCHFORD, after stating the case, delivered the opinion of the court.

The general question involved in the case is, whether the land in dispute is a part of surveys 149 to 156, inclusive, in the common fields of Prairie du Pont, with the accretion thereto, situate on the Illinois side of the Mississippi River, in St. Clair County, Illinois, and is owned by the plaintiff, or whether it is owned by the surviving defendant, the city of St. Louis, as an accretion to, and part of, an island in that city, called "Arsenal Island" or "Quarantine Island," on the western or Missouri side of the Mississippi River, which was originally an island more than a mile higher up the river than the surveys in question.

The assignments of error made are, that the Circuit Court, erred (1) in holding that the title and ownership of the plaintiff extended to the middle of the main channel of the Mississippi River and embraced the premises in controversy; and (2) in refusing to hold that the premises in controversy were an accretion to Arsenal Island, and the property of the city of St. Louis.

We cannot review the action of the Circuit Court in finding the facts which it did find and refusing to find the facts which it was asked to find and did not find. We can only inquire whether the facts found are sufficient to support the judgment. The "defendants' refused declarations of law" do not appear to have been based upon the facts found by the court but upon the defendants' proposed findings of fact, which were rejected by the court. These "refused declarations of law" contained mixed questions of law and fact; and where *242 such questions are submitted to the court in a trial without a jury, this court will not, on a writ of error, review such questions, any more than it will pure questions of fact.

The question as to whether the fee of the plaintiff, as a riparian proprietor on the Mississippi River, extends to the middle thread of the stream, or only to the water's edge, is a question in regard to a rule of property, which is governed by the local law of Illinois. Barney v. Keokuk, 94 U.S. 324, 338; St. Louis v. Myers, 113 U.S. 566; Packer v. Bird, 137 U.S. 661. In Barney v. Keokuk it is said, that if the States "choose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objections."

The Supreme Court of Illinois has established and steadily maintained, as a rule of property, that the fee of the riparian owner of lands in Illinois bordering on the Mississippi River extends to the middle line of the main channel of that river. Middleton v. Pritchard, 3 Scammon, 510; Braxon v. Bressler, 64 Illinois, 488; Houck v. Yates, 82 Illinois, 179; Cobb v. Lavalle, 89 Illinois, 331; Lavalle v. Strobel, 89 Illinois, 370; Washington Ice Company v. Shortall, 101 Illinois, 46; Village of Brooklyn v. Smith, 104 Illinois, 429, 438; Trustees of Schools v. Schroll, 120 Illinois, 509, 518, 519; Buttenuth v. St. Louis Bridge Company, 123 Illinois, 535, 550.

The findings of fact by the court make no specific reference to a deed dated December 23, 1873, from Augustus A. Blumenthal and wife to the plaintiff and others, the substance of which is set forth in the bill of exceptions, but state merely that Blumenthal acquired by deeds the title in fee to surveys 149 to 156, and that the plaintiff acquired from Blumenthal "his said title to said land prior to the commencement of this suit."

The defendant, however, refers to the deed of December 23, 1873, and relies upon the fact that the description of the premises contained in it describes the line between surveys 148 and 149 as running north 33½ degrees west, 142.51 chains "to the present bank of the Mississippi River," thence along the extended line between surveys 148 and 149, north 33½ degrees *243 west, "to low-water mark of the Mississippi River," and "thence down to the extended line between surveys" 156 and 157. The description further says: "The tract hereby conveyed containing 500 acres, more or less; together with all rights as riparian owner to the accretion or sand-bar lying northwestwardly and between the extended lines of said land herein described, situated in the county of St. Clair and State of Illinois." The deed also describes the property conveyed as "being the northwestern part of surveys numbered" 149 to 156, both inclusive, in the Prairie du Pont common fields.

The contention of the defendant is, that this deed did not convey to the grantees the fee of the bed of the river beyond low-water mark. But we think this contention is erroneous. In construing the deed, all the words of the description must be given effect, if possible. The property conveyed is described as "the northwestern part of surveys" numbered 149 to 156. This makes it impossible that the grantor should retain the ownership of any part of the surveys northwest of that which he conveyed to his grantees. Again, the description, after saying "to low-water mark of the Mississippi River," does not say "thence down low-water mark to the extended line between surveys" 156 and 157, but says only "thence down to the extended line between surveys" 156 and 157. The word "down" properly means down the river. As was said in County of St. Clair v. Lovingston, 23 Wall. 46, 64, "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 another, 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." Here the next preceding call was a point at "low-water mark of the Mississippi River," and the next call was an intermediate line "down to the extended line between surveys" 156 and 157, without specifying whether it was down the river generally or down the line of low-water mark. This description made the river the boundary of the surveys on their northwestern ends, although the termination of the last preceding call was at low-water mark of the river. *244 The river always had been the boundary of the surveys on their northwestern ends; and there is nothing to show that the parties to the deed intended to make anything but the river the boundary at the northwestern end of what the deed conveyed.

It is plain that the fee of Blumenthal in the surveys extended to the middle of the river; and the contention of the defendant is, that Blumenthal, instead of conveying by the deed all the land which he owned on the northwestern end of the surveys, conveyed only to low-water mark. This would be repugnant to that clause of the description which conveys "the northwestern part of surveys" 149 to 156. Then we have the description "together with all rights as riparian owner to the accretion or sand-bar lying northwestwardly and between the extended lines of said land herein described, situated in the county of St. Clair and State of Illinois." These words show that the grantor intended to convey all his riparian rights appurtenant to the surveys, "between the extended lines" of them, in the county of St. Clair; and it cannot be held, consistently with the terms of the deed, that he intended to retain to himself any interest in the fee of the bed of the river. The accretion or sand-bar mentioned in the deed evidently existed at its date, and it was the nucleus of the bar which subsequently developed into the land in dispute. If the boundary terminated at low-water mark on the margin of the river, it could not have included all the rights of the grantor as riparian owner to the accretion or sand-bar lying northwestwardly in the river opposite the surveys. Piper v. Connolly, 108 Illinois, 646.

The finding by the court that the plaintiff acquired from Blumenthal, prior to the commencement of the suit, Blumenthal's title to the premises in question, which title was one in fee to such premises, acquired by him by deeds from the parties then in their actual possession as owners thereof, amounts to a finding that the accretion or sand-bar mentioned in the deed of December 23, 1873, was the same sand-bar which first appeared earlier in 1873, and which by subsequent accretions developed into the land in controversy. This finding *245 is conclusive to show that the land conveyed by Blumenthal was not limited by the line of low-water mark on the river. It does not appear that Blumenthal or any one claiming under him asserted any interest in the land after the making of the deed. Jefferis v. East Omaha Land Company, 134 U.S. 178, 197.

The next question concerns Arsenal Island. By findings of fact 6 to 9 the sudden and perceptible loss of land on the premises conveyed to the plaintiff, which was visible in its progress, did not deprive Blumenthal, as riparian proprietor, of his fee in the submerged land, nor in any manner change the boundaries of the surveys on the river front, as they existed in 1865, when the land commenced to be washed away.

It is contended by the defendant, not only that the plaintiff never had any title to the bed of the river, but that, when the dry land of which he was in possession was swept away by the river and ceased to exist, his ownership of that land also ceased to exist. It is laid down, however, by all the authorities, that, if the bed of the stream changes imperceptibly by the gradual washing away of the banks, the line of the land bordering upon it changes with it; but that, if the change is by reason of a freshet, and occurs suddenly, the line remains as it was originally. This principle is recognized by the Supreme Court of Illinois, in Buttenuth v. St. Louis Bridge Company, 123 Illinois, 535, 546, in these words: "The law, as stated by law writers, and in the adjudged cases, seems to be, that where a river is declared to be the boundary between States, although it may change imperceptibly, from natural causes, the river, as it runs, continues to be the boundary. But if the river should suddenly change its course, or desert the original channel, the rule of law is, the boundary remains in the middle of the deserted river bed." It is laid down by all the authorities, that, if an island or dry land forms upon that part of the bed of a river which is owned in fee by the riparian proprietor, the same is the property of such riparian proprietor. He retains the title to the land previously owned by him with the new deposits thereon.

*246 It may be asked, pertinently, what has become of the riparian rights of the plaintiff on the river, if his title to the land in dispute is not sustained? It appears by the findings, that the greater part of the so-called Arsenal Island, which is now embraced within the boundaries of the land sought to be recovered by the plaintiff, is located upon the site of the dry land of surveys 149 to 156, as the same existed from 1850 to 1865, and that the residue thereof, being about one-eighth of the entire width of the island, is located upon the bed of the Mississippi River as it then existed, and eastwardly of the thread or middle line of the river; that, between 1865 and 1873 the river front of the surveys was washed away to the extent mentioned in finding 8, and was further washed away thereafter until 1884; and that such washing away did not take place slowly and imperceptibly, but was rapid and perceptible in its progress, and the particulars are given in finding 9. The plaintiff was a riparian proprietor on the river. If his title to the land in question is not sustained, he is no longer such riparian proprietor and is cut off from access to the river. Among his rights as a riparian owner are access to the navigable part of the river from the front of his land, and the right to make a landing, wharf, or pier, for his own use or the use of the public. Dutton v. Strong, 1 Black, 23; Railroad Company v. Schurmeir, 7 Wall. 272; Yates v. Milwaukee, 10 Wall. 497, 504.

No act has been done, or negligence committed, by the plaintiff or his grantor, which occasioned any loss of the land or any transfer of the title to it, either to the State of Illinois or to the city of St. Louis. Finding 10 shows that the washing away of the bank of the surveys was caused by dikes built by the city of St. Louis on the western side of the river, which caused its current to flow to and against the eastern shore. When land was formed again on the place where the plaintiff's land had been washed away, it became the property of the plaintiff, and although the land thus newly formed extended a short distance into the old bed of the river beyond the former shore line, such additional formation belonged to the plaintiff as a deposit on that part of the bed of the river which was *247 owned by him in fee, and not to the State of Illinois or to any third party. Otherwise, the plaintiff would be cut off without his fault from the river front and from his riparian rights.

When the United States government, from 1876 to 1878, as found in finding 19, built the dike from the eastern shore of the river to the bar or island as it then existed, above the north line of the plaintiff's land, the result was, that the space or channel of water between the bar or island as it had formed in front of the river bank of the plaintiff's land, and the eastern bank of the river as it existed when the cutting away of the plaintiff's land ceased, was filled up, so that by 1884 it had become dry land, and it has since continued to be such on the front of the plaintiff's land out to the western side of the island or land in question. The fact that more land has thus been restored to the plaintiff than was cut away, cannot deprive him of his riparian right or of his access to the river. The State of Illinois does not claim any part of such land, but concedes to the riparian proprietor the bed of the river where the land formed.

It is found by findings 17 and 18, that the bars which formed below and were joined to the foot of Arsenal Island were not formed by accumulations of soil washed up against its lower end, but by the deposit, in times of flood, of soil and sediment on the bed of the river below the island; that, before the island was washed away, the main and navigable channel of the river was eastwardly of the island, but after the bar was formed lower down the river in front of the plaintiff's land, the main and navigable channel of the river was removed to the west side of the bar or island, and since that time boats navigating the river have not run between the bar or island and the eastern shore of the river. It, therefore, appears, that the dry land in question was formed on that part of the bed of the river which was owned in fee by the plaintiff, or his grantor, as the riparian owner, and that their rights were governed by the established rules of law in force in Illinois. It is well settled that the owner in fee of the bed of a river, or other submerged land, is the owner of any bar, island or dry land which subsequently may be formed thereon. Mulry v. Norton. 100 N.Y. 424.

*248 It is shown by the findings of the court that the space which was covered by water between the front of the plaintiff's dry land and the bar or island, when the latter first was formed, has since been so filled up by deposits from the river that by the year 1884 it was all dry land on the river front of the plaintiff's land out to the western side of the land in question, except in high water. Therefore, when the bar or island formed in front of Blumenthal's land, within the boundaries over which such land extended prior to 1865, the bar or island which was so formed continued to be the land of Blumenthal, notwithstanding a part of it extended farther westward than the boundary of his dry land in 1865. It was formed upon that part of the bed of the river which was owned in fee by Blumenthal and the plaintiff, and continued in such ownership after it became dry land.

The land described in the declaration is on the eastern side of the Mississippi River, in the county of St. Clair and State of Illinois. The land to which the city of St. Louis acquired title was on the western side of the Mississippi River, more than a mile higher up the river, and situated in the city of St. Louis, in the State of Missouri. The only possible claim of the city of St. Louis to the land is based on the act of June 13, 1812, 2 Stat. 748, and on section 2 of the act of May 26, 1824, 4 Stat. 66, and on section 2 of the act of January 27, 1831, 4 Stat. 435. By the terms of those acts, the village of St. Louis was authorized only to acquire title to lands within said village, in the Territory (or State) of Missouri; and it obtained no right thereby to acquire title to land in the State of Illinois.

The enabling act of April 18, 1818, 3 Stat. 429, § 2, under which Illinois was organized as a State and admitted into the Union, made "the middle of the Mississippi River" the western boundary of the State. The enabling act of March 6, 1820, 3 Stat. 545, § 2, under which Missouri was organized as a State and admitted into the Union, made the "middle of the main channel of the Mississippi River" the eastern boundary of Missouri, so far as its boundary line was coterminous with the western boundary of Illinois. It has been held by the Supreme Court of Illinois, Buttenuth v. St. Louis Bridge Co., *249 123 Illinois, 535, that these two enabling acts are to be construed as in pari materia, and that the common boundary line between Missouri and Illinois is the "middle of the main channel of the Mississippi River." The "middle of the main channel of the Mississippi" has been constantly treated as the eastern boundary of the State of Missouri. Jones v. Soulard, 24 How. 41; The Schools v. Risley, 10 Wall. 91.

It follows that an island in the Mississippi River, in its course between Illinois and Missouri, must lie wholly in one of those States or the other, because the main channel of the river must run on one side or the other of such island. Arsenal Island, to which the city of St. Louis acquired title, was on the Missouri side of the river in 1863 and 1864, and wholly within that city. The land described in the declaration was never in the city of St. Louis or in the State of Missouri. This follows from the facts stated in finding 18.

The title of the St. Louis Public Schools to the island is set forth in finding 13, and was acquired in 1863 and 1864, under the Cozzens survey of 1863, mentioned in finding 11. By finding 14, the title of the St. Louis Public Schools in the island was conveyed, in 1866, to the city of St. Louis by a deed which is stated in such finding to have described it as situated "in the county of St. Louis and State of Missouri." The land described in the declaration, a mile lower down the river and situated in the State of Illinois, on the other side of the river, is manifestly not the land to which the city of St. Louis so acquired title. Dry land which should again form on the site where Arsenal Island existed when it was surveyed in 1863 would be the property of the city of St. Louis. Mulry v. Norton, 100 N.Y. 424. In such event, could the city hold both tracts of land, a mile distant from each other? Of course it could not.

The city of St. Louis, by virtue of its original title to the island, is still the owner in fee of the submerged site where the acts referred to, to acquire land was limited to land situated within the boundaries of the city and on the west side of the middle of the river, it cannot acquire, indirectly and by *250 implication or construction of law, land which it was not authorized to acquire directly and in pursuance of law. Nor is the land described in the declaration an accretion to the land in Missouri which the city of St. Louis acquired, a mile higher up the river, because the middle of the main channel of the river is the eastern boundary of the State of Missouri, and the land described in the declaration is east of the middle of the main channel of the river. The title to land acquired by accretion is a title acquired under the operation of the law of the State, which each State determines for itself. Barney v. Keokuk, 94 U.S. 324.

As the law of Illinois confers upon the owner of land in that State which is bounded by, or fronts on, the Mississippi River, the title in fee to the bed of the river to the middle thereof, or so far as the boundary of the State extends, such riparian owner is entitled to all islands in the river which are formed on the bed of the river east of the middle of its width. That being so, it is impossible for the owner of an island which is situated on the west side of the middle of the river, and in the State of Missouri, to extend his ownership, by mere accretion, to land situated in the State of Illinois, the title in fee to which is vested by the law of Illinois in the riparian owner of the land in that State.

We must not be understood as implying, that if an island in the Mississippi River remains stable in position, while the main channel of the river changes from one side of the island to the other, the title to the island would change, because it might be at one time on one side and at another time on the other side of the boundary between two States.

The right of accretion to an island in the river cannot be so extended lengthwise of the river as to exclude riparian proprietors above or below such island from access to the river, as such riparian proprietors. Mulry v. Norton, 100 N.Y. 424, 436, 437. It appears from the map, "Exhibit B," that the so-called Arsenal Island extended as far down the river as is shown on that map, which was made from surveys in 1873 and 1884; and if the plaintiff thereby has lost such newly-formed land and been deprived of access to the river in front *251 of his surveys, then all the riparian proprietors down the river, as far as the bars have formed or may form hereafter in front of their land, must lose their titles and surrender them to the city of St. Louis, as a part of Arsenal Island. Such rapid changes in these alluvial formations cannot transfer title from one proprietor to another.

This Arsenal Island was the subject of the case of Carrick v. Lamar, 116 U.S. 423, and in the opinion in that case is described as "a mere moving mass of alluvial deposits." To such a movable island, travelling for more than a mile and from one State to another, the law of title by accretion can have no application, for its progress is not imperceptible, in a legal sense.

As it is found by finding 16, that the bar formed at the foot of the island in the flood of a single year extended down the river for the distance of a quarter of a mile or more, in front of the surveys in question, and such bar subsequently appeared as a part of the so-called Arsenal Island, the question arises as to when the transfer of it passed, if it did pass, from the plaintiff to the city of St. Louis. Whenever it occurred, whether when the sediment first commenced to form a deposit on that part of the bed of the river, or whether when it formed a bar which, though still submerged, could be discerned by soundings, or whether when it came so near to the surface that its extent could be discerned by navigators, or whether when it arose above the surface and became dry land, there must have been, in order to maintain the contention of the defendant, an instantaneous transfer of a quarter of a mile of land from the plaintiff to the city of St. Louis, at one and the same moment of time. Such a transfer was not a title by accretion, within the meaning of the law on that subject.

Judgment affirmed.