— The following statement prepared by Bbace, J., is adopted:
This is an action in ejectment brought by Millard F. Cooley, lessee of the Hamilton Land Company, against James F. G-olden, for the recovery of a tract of about two hundred and seventy acres of unsurveyed lands lying south of fractional southeast quarter of section 32 and fractional southwest quarter of section 33, in township 67 of range 42, and south and west of fractional sections 3, 4 and 10, in township 66, of range 42, all west of fifth principal-meridian, in Atchison county, in this state, composed partly of an island called Pole island and a triangular tract of ground of about one hundred acres of reíicted land in the old bed of the Missouri river. The answer was a general denial and a plea of statute of limitations.
Title emanated from the government to the aforesaid surveyed lands at various times from 1850 to 1856. It is not disputed that the plaintiff’s lessor has acquired that title through various mesne conveyances, its immediate grantor being J. P., and A. H. Allen. The lands were surveyed about the year 1846. As riparian *37owners of these surveyed lands, plaintiff’s lessor claims the land in controversy. The location of these lands by such survey, with reference to the then existing bed of the Missouri river, is shown by the following plat:
*38As will be observed they are on the north shore of the river.
The evidence tends to show that at the time of the government survey the current of the river washed this shore, that at some time previous, a bar had formed in the river opposite these surveyed lands; that in navigating the stream, boats passed between this bar and the north shore until about the year 1854, when the current changed and afterwards ran, and boats passed, south of it. At the time of the survey this sand bar had been in existence for some years. It was a long, narrow strip containing perhaps an hundred acres or more, upon which young cotton wood and willows had grown to the height of fifty or sixty feet, and became known as Pole island. It was not noticed in any way in the government survey. After the current changed in 1854, the water-way between it and the main shore began to fill up, and it soon became so united to the main shore, to the northwest of it, that in an ordinary stage of water persons could cross to it with teams by throwing in a little brush in the depressions between the island and the main shore. The water of an independent stream called ‘ ‘Willow Slough” flowing into the old channel from the north however separated the principal part of the island from the main land to the north and northeast of it.
On the fifth day of July, 1867, the Missouri river being at a very high stage of water, suddenly cut through the narrow neck of land between sections 18 and 30, township 66, range 42, and run all its water through said newly made cut and abandoned its old bed in the bend, fifteen miles long and from three-fourths of a mile to one mile wide; as shown in plat A. The'peninsula of land so cut off by said avulsion and thrown east of the Missouri river is called *39McKissock’s island and continues to be a portion of Nebraska. This relicted territory was at first and for a year or two stagnant ponds of water. Gradually, however, by drainage and evaporation it became comparatively dry, except water standing in a few low places. Occasionally when the Missouri river was high it would overflow this ground as well as the surrounding country and deposit sediment on said low ground. In time vegetation commenced to grow on it, trees appeared and about 1881-2-3, much of it became fit for pasture and cultivation. It is still much lower than the surveyed lands surrounding it on the Missouri and Nebraska' shores and has in many places deep sloughs and depressions in which water rests a good portion of the year. It is as a general rule higher in the center than it is next the shore, and there is a deep depression all along the main shore between this relicted land and the originally surveyed lands, leaving the border of the originally surveyed shore higher than the relicted lands all around.
From a point on the Missouri shore, seventy-seven chains east of the northwest corner of section 5, township 66, range 42, runs a public road due south, crossing the west end of Pole island across the aforesaid relicted land to that portion of the Nebraska shore called McKissock island, and the lands in controversy and claimed by appellant is that portion of Pole island lying east of said road and a portion of said reliction in a triangular shape lying south of said island.
The condition of the old bed of the river at the time this suit was brought, and the situation of the land in controversy and the respective claims of the parties is illustrated by the following plat:
*40
*41The land sued for is included within the lines A, B, 0, D,. A. The irregular line D A, being the southwest shore of Willow slough until it reaches a point due east of point A, thence due west to said point. The old bed is four hundred rods wide where the aforesaid public road crosses, but gradually narrows as we follow down the river until it is only one hundred rods wide some two miles below.
Plaintiff’s lessors own all the surveyed lands on the Missouri shore opposite the Pole island tract, surveyed to the river’s edge, and they and their grantors have held it for various periods from time of original entries, varying from 1850 to 1861. to the present time. Plaintiff’s lessors also own the surveyed lands along the opposite Nebraska shore, and their immediate grantors (the Allens), in 1886 fenced the lands on the Nebraska side into a pasture, extending their fences across the old bed onto the Missouri side, to a point about one hundred and twenty-four rods north of the center of the old bed along the road, where the drain or slough called the Northern or Venable plough, runs through the old bed; the fence then followed in a southeastly direction down this slough to a point where the water was deep enough to turn stock; the pasture was fenced with post and wire fences except where the sloughs and streams were sufficient to prevent escape of cattle, and embraced about seven hundred or eight hundred acres of pastures, about one hundred acres of which, being the triangular piece contained within the lines 2B c2, in northwest part, is included in the lands in this suit. This one hundred acres is the only part of the lands in controversy that was ever in actual possession of plaintiff or those under whom he claims. The Allens were the first to ever fence or use it in any way, and plaintiff has possession first as their tenant and afterwards as tenant of the Hamilton Land *42Company, which, succeeded to their interest. The remainder of the lands in controversy were never in plaintiff’s actual possession. Defendant in the year 1888 purchased the claim of a squatter named Mrs. Bird, who had lived on Pole island several years with her children after her husband’s death. She made him a deed describing in a general way Pole island, and afterwards (after Golden had had a survey made) she executed another deed describing a track by metes and bounds as in plaintiff’s petition. These deeds were recorded in Atchison county, and were the only ones recorded by defendant and those under whom M claims.
Mrs. Bird’s husband, who died in 1882, seems ía have taken possession of the island in 1881, by virtue of a purchase from a man by the name of Wilcox, who had been in possession from 1868 or 1869, and who succeeded to the possession of several precedent squatters whose possession ran back as far probably as 1860 or 1861. So that the defendant and those under whom he claims had been in* the continuous adverse possession of Pole island proper for more than ten years before this suit was instituted. Mrs. Bird’s fence seems to have run to Venable slough, but she claimed and deeded to the defendant the tract as described in the petition, and the defendant has enclosed and claims the tract as then deeded.
The case was tried by the court without a jury, the law declared by way of instructions, the finding and judgment was for the defendant, and the plaintiff appeals.
The foregoing statement prepared by Judge Bbace is adopted.
That plaintiff owns under mesne conveyances from the government the fractional sections of the land on the margin 'of the waters of the Missouri river, is con*43ceded by both parties. The most important inquiry, therefore, is whether such grant from the United States, being without reservation or condition, passed to the grantee the title to the land beneath the water to the center thread of the channel, or only to that above the water line.
Under the well recognized rule of the common law, the extent of the grant is made to depend upon whether or not the river at the particular point is, or is not, navigable. And again rivers are held not to be navigable unless the tide ebbs and flows therein. In navigable streams, that is below tide water, the soil beneath the waters was vested in the crown in order to the protection of commerce, fisheries and other rights deemed public. On the other hand the soil beneath the waters of streams which are not navigable, that is, in which the tide does not ebb and flow or above tide water, is vested in the riparian owner to the center of the channel. Lord Blackburn says: “The property in the soil of the sea, and of estuaries, and of rivers, in which the tide ebbs and flows is prima facie, of common right, vested in the crown.” Bristow v. Cormican, 3 App. Cases, 641.
In discussing the question as to what will pass by a grant bounded by a stream of water, the supreme court of Illinois, in an early case, says: “At the common law, this depended upon the character of the stream, or water. If it were a navigable stream, or water, the riparian proprietor extended only to high water mark. If it were a stream not navigable, the rights of the riparian owner extended to the center thread of the current. * * * At common law, only arms of the sea and streams where the tide ebbs and flows, are deemed navigable. Streams above tide water, although navigable in fact at all times, or in freshets, were not deemed navigable in law. To these, riparian proprie*44tors bounded on or by the river, could acquire exclusive ownership in the soil, water and fishery to the middle thread of the current; subject, however, to the public easement of navigation.” Middleton v. Pritchard, 3 Scam. 510. See Hardin v. Jordan, 140 U. S. 372.
Now the Missouri river at the point in question is many hundreds of miles above the ebb and flow of the tide, and is and at the time of the grant of said lands from the government was, in fact, navigable. It is contended by plaintiff that, as the common .law of England has been adopted in the state of Missouri, the unqualified grant of the lands by the government should be construed according to the principles of the common law, and under such construction pis title would extend to the center of the channel. The argument being supported, as it is, by the decisions of the courts of many states, adopting the common law rule, has great weight and is entitled to serio us consideration. Having given the matter such consideration, we -have reached the conclusion that the conditions under which .the rule was adopted and has been adhered to in England, do not exist in respect to the great rivers of the United States, and the reason for the rule not existing, as to the Missouri river, the rule itself should not be applied if one can be found under the changed conditions which is sounder in principle and policy.
In discussing the applicability of the rule of the common law to fresh water lakes, Chancellor Walworth says: “The principle itself does not appear to be sufficiently broad to embrace our large fresh mater lakes, or inland seas, which are wholly unprovided for by the common law of England. As to these there is neither flow of the tide, or thread of the stream, and our own local law appears to have assigned the shores down to the low water mark to the riparian owners, and the *45beds of tbe lakes with tbe islands thereinto the public.” Canal Commissioners v. People, 5 Wend. 446.
' Probably no river in England, in the day of Sir Matthew Hale, who first formulated the common law rule, w,as navigable above tide water to more than the smallest boats. The Missouri river, at the time of this grant, was navigable for the largest of river boats for hundreds of miles. It was at the point in question, which is several hundred miles above its confluence with the Mississippi; of a width of about one mile from shore to shore. It is a tortuous stream, flowing rapidly through a valley of varying width, liable, as was shown in. this case, to sudden changes of its entire bed. It is very manifest that the principle of the common law, as said by Chancellor Walworth “is not sufficiently broad to embrace our large,” western rivers.
As directly bearing on the subject, the remarks of Mr. Justice Field, in a recent case, Packer v. Bird, 137 U. S. 666, are pertinent and convincing. He says: • “It is undoubtedly the rule of the common law ' that the title of owners of land bordering on rivers above the ebb and flow of the tide extends to the middle of the stream, but that where the waters of the river are affected by the tides, the title of such owners is limited to ordinary high-water mark. The title to land below that markin such cases, is vested in England in the crown, and in this country in the state within whose boundaries the waters lie, private ownership of the soils under them being deemed inconsistent with the interest of the public at large in their use for purposes of commerce. In England this limitation óf the right of the riparian owner is confined to such navigable rivers as are affected by the tides, because there the ebb and flow of the tide constitute the usual test of the navigability of the streams. No rivers there, at least none of any considerable extent, are navigable in fact, which are not *46subject to the tides. In this country the situation is wholly different. Some of our rivers are navigable for many hundreds of miles above the limits of tide-water, and by vessels larger than any which sailed on the seas when the common law rule was established. A different test must, therefore, be sought to determine the navigability of our rivers, with the consequent rights both to the public and the riparian owner, and such test is found in their navigable capacity. Those rivers are regarded as public navigable rivers in law which are navigable in fact. And, as said in the case of The Daniel Ball, 10 Wall. 557, 563, ‘they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. ’
“The same reasons, therefore, exist in this country for the exclusion of the right of private ownership over the soil under navigable waters when they are susceptible of being used as highways of commerce in the ordinary modes of trade and travel on water, as when their navigability is determined by the tidal test. It is, indeed, the susceptibility to use as highways of commerce which gives sanction to the public right of control over navigation upon them, and consequently to the exclusion of private ownership, either of the waters or the soils under them. The common law doctrine on this subject, prevailing in England, is held in some of the states, but in a large number has been considered as inapplicable to the navigable waters of the country, or, even if prevailing for a time has given way, or been greatly modified, under the different conditions there.”
While it is true that many of the. states retain the common law rule, in others it is rejected as being wholly inapplicable to the character of the fresh wafer *47lakes and large rivers of the United States. Eor exhaustive reviews of the authorities see McManus v. Carmichael, 3 Iowa 1, and People ex rel. v. Canal Appraisers, 33 N. Y. 461. The latter ease was dintinguished in Smith v. Rochester, 92 N. Y. 473, and the common law doctrine substantially affirmed.
The rule has been declared in many of the states inapplicable to the conditions of this country, and is wholly inconsistent with the actual navigability of the rivers, the control retained by congress over the commerce and navigation. of the rivers, the rules of the general land office in the survey and sale of the public lands bordering on the rivers, and the recognition by congress of the navigability of the Missouri river. See collation of authorities in G-ould on "Waters, secs. 56, etseq. The act of congress providing for the government of the territory of Missouri provided that the Mississippi and Missouri rivers should be common highways and forever free to the people of the said territory and to the citizens of the United States. 2 U. S. Statutes at Large, p. 747, sec. 15. These are the very conditions upon which the right to the soil under the waters of navigable streams was retained in the crown. The rule most applicable to the condition of the Missouri river would be that applied by the common law to navigable rivers, and the riparian owner should only take title to the waters edge. i
This extended consideration of the question as an original one has been given in 'part on account of its importance, and the quantity and value of the land that may be affected, and in part on account of the earnestness and ability with which the doctrine of the common law has been supported by counsel.
The identical question was very fully discussed by this court in the year 1875, in the case of Benson v. Morrow, 61 Mo. 347, in which the conclusion was *48reached that the application of the common law principle could not be transferred to our great public rivers, and that the proprietor of land on the banks of the Missouri river does not own to the middle of the. stream, but only to the water’s edge. This decision has been approved in two cases decided by Division Two of this court at this term. Naylor v. Cox, 114 Mo. 232, and Rees v. McDaniel, 115 Mo. 145. See cases cited in the opinion in the latter case.
Plaintiff only taking title to the margin of the river can claim in addition to the original grants only such land as may have been added thereto by the regular process of accretion or reliction. 1 ‘Land formed by alluvion, or the gradual and imperceptible accretion from the water, and land gained by reliction, or the gradual and imperceptible recession of the water belong to the owner of the contiguous land to which the addition is made. There is no distinction in this respect between soil gained by accretion and that uncovered by reliction.” G-ould on Waters, sec. 155.
The formation or reliction must be imperceptible and must be made to the contiguous land so as to change the position of the waters edge or margin. Hence it is said in Benson v. Morrow, supra, that the owner of the contiguous land is not the ‘ ‘owner of an island that springs up in the midst of the stream, whether the island be on one side or the other of the thread of the river. He goes only to the margin of the river.”
It would also logically follow that if by accretions to such island the water margin should unite with the shore, the new made land would become a part of the island and not of the main land, and the riparian ownership would not be extended. It is so held in Buse v. Russell, 86 Mo. 211 and Naylor v. Cox, *49supra. It makes no difference in principle that the islands in these cases had been surveyed and disposed of by. the United States. The riparian owner would not take the accretion for the reason that it was not added to his own land.
Pole island sprang up in the midst of the stream, far enough from the shore, which bounded plaintiff’s land, to admit, at times, of the passage of boats between it and the shore. The banks of the island and that of the north shore of the river afterwards united by accretions formed by the washing of the waters and plaintiff was only entitled to such part thereof as was formed upon his land. Buse v. Bussell, supra, Naylor v. Cox, supra.
If the waters of a navigable river or lake, recede gradually and insensibly, the derelict land belongs to the riparian proprietors and their boundaries change as the waters receded. This is on the same principle as that under which they take by accretions. The recession must be gradual and imperceptible. In case the river, from storm, flood or other cause, entirely forsakes its .channel and forms a new one, the boundary lines remain unchanged. Angelí on Water Courses, sec. 59; Nebraska v. Iowa, 143 U. S. 359; Rees v. McDaniel, supra, and cases cited.
The change of the channel of the river in this case was of such a character, and plaintiff had no claim to the relicted land caused thereby. The boundary of his land remained at the water line of the old channel.
The claim is now made that inasmuch as the new channel, thus formed by avulsion, is at once subject to the public use, the relicted land, should of right, vest in the riparian proprietors on the principle upon which the right to the accretion is sometimes placed, that as every proprietor whose land is thus bounded, is subject to loss, by the same means which may add to his *50territory; and as he is without remedy for his loss, in this way he cannot be held accountable for his gain.” New Orleans v. United States, 10 Peters 662, 717; Jefferis v. East Omaha, Land Co., 134 U. S. 189. It is claimed that such a rule would be peculiarly applicable and just if applied to the Missouri river, which from its tortuous course, the rapidity of its current and the character .of its soil is so subject to such sudden changes. Such a rule could not be justly applied for the reason that in most cases the one who loses his land by the avulsion would gain nothing by the reliction and the one who would gain by the reliction would lose nothing by the avulsion.
Nothwithstanding the character of the Missouri river, and that of the soil through which it flows, it is held that the principle applying to accretions and relictions in other streams apply also to it. Jefferis v. East Omaha Land Co., supra; Nebraska v. Iowa, supra.
The general rule seems to be the only one the courts can justly apply. In view of the more rapid formations of new land by accretions and relictions, caused by the peculiarity of the river and of the soil, the time in which the formations are made, if done gradually, imperceptibly and upon the bank should make less difference than in case of rivers less subject to changes.
Again it is insisted that as the river is navigable, the general government alone has the right to the soil beneath the waters in the channel and as the United States construes its grants of lands bounded thereby as relinquishing its title to the center of the stream as of lands on the rivers that are not navigable, such grants carry the title of the grantee to the center of the channel subject only to the rights of the public.
The fact that the United States relinquished . its title to the soil beneath the water does not necessarily *51imply that such relinquishment was intended for the benefit of the grantee of the adjacent land. The extent of the grant depends upon the law of the state in which the land granted.is situate. In the ease of Hardin v. Jordan, supra, it is said by the supreme court of the United States: “In our judgment, the grants of the government for lands bounded on streams and other waters, without any reservation or restriction of terms, are to be construed as to their effect according to the law of the state in which the lands lie.” It is true in that case three justices dissented, but all agreed upon the foregoing proposition. Mr. Justice Bbeweb, who wrote the dissenting opinion, quoted approvingly from the opinion of Mr. Justice Blatchfoed in St. Louis v. Rutz, 138 U. S. 226, 242, as follows: “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 gov-, erned by the local law of Illinois.”
As has been seen, under the decisions of this court, the riparian owner took title only to the water’s edge, and the grant of the United States carried his title no further. In the case of Barney v. Keokuk, 94 U. S. 324, it is said: “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 objection.” This declaration was cited with approval in Packer v. Bird, 137 U. S. 666, and St. Louis v. Rutz, supra.
It is apparent from these decisions that when the United States relinquished its rights to the soil under the waters of the Missouri river, it was intended that the states in their sovereign capacity should succeed to all the rights so relinquished. We are not aware of any legislation in this state disposing of the land under the *52waters of its navigable rivers or of relicted land- from sudden changes in the channel. Whether those whose lands have been taken by changes of the bed of the rivers should be compensated from the relicted lands is a question for the determination of the legislative department of the state. We can only say now that the ownership of land in this state is subject to such changes as may be wrought by the natural action of the waters of the navigable rivers upon it.
Plaintiff claims that he was entitled to recover a portion of the land sued for on account of a prior possession, though neither party showed title in himself.
That question was fairly submitted under the following instructions:
" “6. If the plaintiff or his lessor was in possession of any portion of the land in controversy by having the same fenced as a pasture and the defendant afterwards, while the same was so fenced, entered upon the same .without plaintiff’s consent, then plaintiff will be entitled to recover without proving any further title than prior possession, and if the evidence in the case identifies with such degree of certainty, any .land in plaintiff’s petition described, as was in the possession of the plaintiff or his lessor, and of which defendant took possession without plaintiff’s consent, the plaintiff would be entitled to recover so much of the land as his evidence shows plaintiff or his lessor was in possession of, and that the defendant entered and held against him.”
The case was tried substantially according to the views herein expressed, and the judgment is affirmed.
All concur except Brace, J., who dissents, .and Barclay, J., who expresses no opinion.