delivered the opinion of the court.
The testimony shows that the premises described in the deeds under which the defendants claim are for the greater part within the harbor lines established by the general government for purposes of navigation. It is also true, as a matter of fact, by the undoubted weight of the testimony that during most of the year the disputed tract is wholly submerged, and that water craft navigating the channel in the towage of logs and lumber, and for other purposes, daily pass over the place in question. It appears likewise that the form of this so-called island is continually changing by the action of the water, especially since a large section of the dike already mentioned has been removed. When not actually submerged, the tract, even at its highest point, is a great deal of the time barely awash.
1. For the reason that the place is not alternately covered and exposed every 24 hours by the action of the tide, it is manifestly not tide land; but this is not necessarily decisive of the question. If, in fact, the state had the right to sell the property so as to place it entirely in private ownership, it matters not to the plaintiffs under what name it was alienated if they themselves had no interest or estate in the demised premises. If the plaintiffs had no right there they would have no standing to question the authority of
2. The testimony clearly demonstrates that in real truth the land in dispute is nothing more than an inequality in the bed of the river, and that for the most part it is directly in the official route of navigation as established by the general government. The officers of the state composing the state land board were imposed upon by the representation that it constituted tide land, and were led into the error of conveying property in a manner and for a purpose which would act as a direct and permanent impediment to navigation. This the state could not do without violating the trust under which it holds the title to such property, and its grantees would take nothing by such a deed.
The right of access to navigable water abutting upon riparian lands is a valuable appurtenance to such
“There the grant of the submerged soil of the lake was in such quantity as, in the opinion of the court, impaired the public interest in its waters, and operated, if irrepealable, as an abdication by the state of its trust over the property.”
It would seriously unsettle property rights of riparian owners and work great harm to navigation if it were permitted that the moment low water should disclose a sand bar that is liable to be scoured out by the
3. For the reason that what was attempted to be conveyed is in the general course .of navigation at’ that point and mainly within the harbor lines as established by the general government, and that the state had no right to convey the property and so abdicate its trust designed to protect navigation, the decision of the Circuit Court is affirmed, but with the modification that no costs or disbursements will be taxed for or against the defendants Dabney, they having disclaimed in their answer any interest or estate in the tract, although they were the original grantees of the state.
Affirmed and Modified.