(dissenting). I do not deem it necessary to reiterate the familiar rules' of the common law governing the rights of riparian owners, and the prerogatives of the crown and sovereign power, as to tidewater streams, and the lands beneath and bordering thereon. The great difficulty with Americans has always been, not to understand these rules, as applied to the condition of things existing in England, but father to make them applicable in any reasonable sense, under the circumstances which surround us, especially in the newer or western and southwestern states of the Union. ■Our system of surveying, admeasurement and conveyance of lands, the great magnitude of our lakes and rivers, and our dual form of government, all conspire together to create difficulties in the way at every step in our efforts to conform to the principles of the common law. That a riparian owner, as such, under the common law, owns to the middle thread of the fresh-water river on his border, and to the upper margin or high-tide mark of the tide-water river, which forms his boundary, and in the latter case is subjected to-the results of erosion, and is entitled to all gains by accretion and reliction, are truisms, that all are expected to be familiar with ; but how far we may be able to adopt these venerable rules to our changed conditions, is not without the greatest difficulty in any given case.
It is altogether probable that a case just like the one we have under consideration could never have arisen under the strict common-law system. In the first place, in England, rivers and other bodies of water were the natural boundaries of lands, and that idea entered into the description contained in all their conveyances. To speak of one’s land as being bounded on the north or south, east or west, by the Thames, the English would readily understand the nature of the landed estate sought to be described. If it was above tide water, they would readily know that the owner owned to the middle thread of the stream, and his peculiar boundary was therefore as varying and as variable as the stream itself. On the other hand, if the domain lay below the point where the stream was affected by the ebb and flow of the tide, they understood readily that the riparian owner was subjected to loss by erosion, and at the same timé, was entitled to whatever might be added to his land by accretion or reliction ; and this was so, not on account of the rule of the gambler’s justice, where the possibility of gain was one’s due for the mere risk of loss, which some have attempted to assign as a reason for the rule, nor, as others say, because public policy demands that there shall be no unappropriated public lands, but because the boundary, being the bank of the river, will be the same, in name, a hundred years hence, though that bank has moved very far laterally, the one way or the other. It will still be the bank of the river, though the owner’s domain has diminished in size by erosion, a fourth or a half ; or has increased, by accretion, to the same extent. At the end of the century from the date of the grant, the sheriff, armed with his writ of ouster, would still be enabled to find the land, so far as the river front is concerned, because he finds the line of the high tide, and that is the “metes and bounds,” although it has actually changed much since the original grant was made. It is still written in that same language and form in the deed.
Now, our system is imaginary parallel and perpendicular lines, forming parallelograms, and the fractions of such as occasion may make necessary. But they are fixed lines, permanently located, and a hundred years from the date of the grant will include exactly and definitely the same portion of the earth’s surface, although that may then be wholly or in part in the river, whereas it was all dry land at first, and the sheriff armed with his writ, wherein the description, as in the other case, is in the exact language as when first written, locates the land by it, and not by any extraneous evidence whatever, though he finds the lines on the water instead of the dry land. This is the portion of the earth’s surface sold to the individual by the federal government, which, in its acts of cession to the state, reserved to itself the title to all lands and the absolute and unconditional right to dispose of them with the fair understanding that its grants to the individual must never be molested or interfered with, whatever may be the assumed rights of the state as against all others, even as against the federal government.
Outside the boundary lines within which the land belongs to the individual by federal grant, the state disposes by whatever rule or law she may choose to make on the subject, but she cannot curtail the right of the owner by any arbitrary rule, although it may have the sanction of judicial accommodation of the common-law principle to the circumstances of the case. It must be born in mind that when the land involved, was purchased from the government, the common law was in force in all its plenitude in both federal and state government. Even the modified rule announced in the case of The Gennessee Chief,1 had not then been announced ; but the old English rule was still in force, and the purchaser purchased with that rule as a part of his contract. That rule regarded the riparian owners on the Mississippi river as owning to- the middle thread, it not being a tide-water.stream. Such was the common law, and Arkansas had adopted the common law, and has never adopted any other rule unto this day, unless we are to regard the court-made law of legal decisions of recent date as a change of the rule. There is not a word in our statutes going to show us what the state has accepted as her interest in the bed of the Mississippi or any land or island that may form therein. This court may say that the common law rules are not applicable in our case, but that does not mean that the court can arbitrarily make other rules that will be ap-' plicable, for it is the right of property we are now dealing with.
The decision of the court in the case at bar is based mainly upon Cox v. Arnold, 31 S. W. Rep. 592, and Naylor v. Cox, 21 S. W. Rep. 589, both Missouri cases, in which the suggestion of the point I have endeavored to make was passed over by a mere repetition of the common law rule, as if the very point was not the inapplicability of the common law rule. Besides, the description there was very nearly as a common-law description of riparian lands.
In St. Louis, &c., Railway Co. v. Ramsey, 53 Ark. 314, the point was neither raised nor discussed. The sand bar or gravel bed in that case had not as yet risen high enough to be denominated land, and was held still to be the property of the state, as the bed of the river over which steam-boats plied in trade and commerce. The farcical part of that case was that Ramsey would have gained title to something he never pretended to buy, had he not been in such a hurry to bring his suit, for presumably the bar would have raised its head out of the water after awhile.
In Cox v. Arnold, supra, Chief Justice Brace dissented; and while he did not file a written opinion, we may conclude that his dissent was on similar grounds as his dissenting opinion in another case.
Gould, in his work on Waters, (sec. 155, p. 313,) says : ‘ ‘ But when the line along the shore is clearly and rigidly fixed by a deed or survey, it is not so certain that it will afterwards be changed because of its accretions [and of its erosions], although, as a general rule, the right to alluvion passed as a riparian right.” Referring to Fulton v. Frandolig, 63 Tex. 330; James v. Howell, 41 Ohio St. 696, and Buras v. O'Brien, 42 La. Ann. 527, and to which may be added Cook v. McClure, 58 N. Y. 437; Minton v. Steele, 28 S. W. Rep. (Mo.), 748; Butler v. Grand Rapids & I. R. Co. 48 N. W. Rep. (Mich.), 571, and authorities there cited.
In the New York case cited, the court said : “In an action of ejectment plaintiff claimed under a deed conveying the premises upon which was a mill and. pond. The boundary line along the pond commenced ‘at a stake near high-water mark of the pond, running thence along the high-water mark of said pond to the upper end of said pond.’ ” Held, that the line thus given was a fixed and permanent one, and did not follow the changes in high-water mark of the pond ; and that defendant, who owned the bank bounded by said line, could not claim any accretions or land left dry in consequence of the water of the pond receding, although the gradual and imperceptible result of natural causes. It seems that this pond was a river dammed up, and that to such ponds the courts in New York apply the common law rules. In Mulry v. Norton, 100 N. Y. 424, the court said: “No lapse of time during which the submergence has continued bars the right of the owner to enter upon the land reclaimed and assert his proprietorship when the identity can be established by reasonable marks, or by situation, extent of quantity and boundary on the firm land.” And further : “And so, if an island forms upon the land submerged [as in this' case], it belongs to the original owner. The sovereign [the state] succeeds to the ownership of such islands and formations only as are originally created and located in tideways outside of the boundaries of property' which has been the subject of individual ownership.”
In the Missouri cases, the island was not within the metes and bounds of the riparian owner, but belonged to another. In a contest between this islander and the main shore owner, the court held that the accretions were to the former land. I think the court was probably correct in that, only the islander’s right should have stopped at the nearest boundary of the shore owner; otherwise, his grant from the federal government would be interfered with, which cannot be. In the case at bar the island rose up within plaintiff’s boundary, and the only possible claimant is the state, and she makes no claim. In this state of things, I think the plaintiff has title superior to all others, if not superior to the state, who holds, if at all, not as an individual^ but as a sovereign. The judgment in my opinion, should be affirmed.
Propeller Gennessee Chief v. Fitzhugh, 12 How. (U. S.) 443.