John McLean

“ From the first, shores and banks of rivers have been the boundaries of fractional sections; large quantities of land have been sold, and are now in the market, within the high-water mark; many even on the Alabama river. On the Mississippi, most of the fractions are partially overflowed. Towns and villages on the banks of the rivers are partly within the high-water mark, resting on patents from the United States, or on confirmed French and Spanish claims. ”

“ If congress had no power to grant, the act of 1836 is void, and our decision wrong, as was that of the supreme court of Alabama, in the same case; for they held the previous act of 1824 was a valid grant. Many of the flowed lands must have private owners. The old states are in the constant habit of granting them; in some, they are supposed to be of almost equal value with all the high lands ”

“ And so far as regards the question before us, it is immaterial by what process of reasoning the supreme court of Alabama came to this conclusion; their opinion constitutes no part of the record, and is not properly a part of the case; we must look to the points raised by the exceptions in the circuit court, as the only questions for our consideration and decision.
Both parties set up a right under the act of 1824. It is the foundation of the plaintiff's title; and the defendant relies upon it as sanctioning his claim. ”

“ And we think a reasonable construction of the act requires the improvements to have been made or owned by the proprietor of the front lot, at the time of its passage. Being proprietor of the front lot, and having improved the water lot, opposite and east of Water street, constitute the conditions on which the right, if any, under the statute vests. In his charge to the jury, the judge laid down these conditions in clear terms; and instructed the jury, if the facts brought the defendant within them, that they should find against the plaintiffs. ”

“ Water street was not opened as low as Church street until 1824. It appeared, that the defendant and those under whom he claims, had paid taxes on the property to the corporation. That in 1824 or 1825, the defendant was required to pay for side-walks around his lots, upon the assessment of the corporation; and in 1833, he was required by the mayor of the city, to fill up two places upon one of the lots with earth or shells. About this time, the lot was advertised for sale, as the property of Matthews, the defendant's tenant, for taxes due the corporation ”

“ And it is just as free from doubt, that the shores and banks of such waters, and the mud-flats flowed by them, are the subject of private ownership. The property cannot be appropriated, to the obstruction or injury of the public use in the water, further than the state government permits ”

“ In Massachusetts (including what is now Maine) all the right of soil to lands, so far as the sea ebbed and flowed, by the colonial charter (to the extent of one hundred rods) , was in the owners of the shores; and although the charter was annulled, the right was maintained as the common law of the stote, at the revolution. The law and decisions are found in Angel on Tide Waters 108; and in Dane's Abr. 694, 698. So, in New York, lands were held under tide-water, especially about the city, by individual titles Mayor, &c. ”