John McLean

“ The defendant having no right of soil to the premises sued for, the next inquiry is, could congress grant the land below high-water mark? That the United States acquired the right of soil from France, by the treaty of 1803, is not open to question; and that a mud-flat flowed by tide-water is the subject of grant by the government to an individual, I think, cannot well be doubted by any one acquainted with the southern country; when such valuable portions of it are mud-flats, in the constant course of reclamation. ”

“ The act of 1824 granted the lands between ordinary high-water mark and the channel of the river, to the corporation of Mobile. The bill of exceptions, in effect, states, 'that the defendant was claimant in possession of land lying immediately west of the land sued for; that his claim extended to the river, and lay west of it; and that the lands of the plaintiffs were bounded on the west by the high-water mark, and extended east to the channel of the river.' So that the high-water mark is the common boundary between the grants. ”

“ The Mobile bay is an arm of the sea, where the tide flows and reflows, and is part of the ocean; and is navigable in the sense of the term as applicable to such waters. The shores between the high and low-water marks belonged to the king of Spain, and passed to the United States by our treaty with France, in 1803, as the king of Spain held them; unless they had been granted by the king, before the cession to France, or, at least, before they were ceded to the United States, in 1803. In regard to title, no difference exists between the high lands, and those flowed by the tide. ”