(dissenting). — I. The Missouri river is the boundary between the states of Missouri and Nebraska. It is well settled “that where a stream *53which is a boundary from any cause suddenly abandons its old and seeks a new bed, such change of channel works no change of boundary; and that the boundary remains as it was in the center of the old channel, although no water may be flowing therein.” Nebraska v. Iowa, 143 U. S. 359.
The word channel as applied here to the Missouri river means the bed in which the main stream of the river flowed, rather than the deep water of the stream as followed in navigation. Black’s Law Dictionary, p. 193; Bridge Co. v. County of Dubuque, 55 Iowa, 558. Beck, J., in delivering the opinion of the court in the case cited, says: “The word is used, in its primary meaning above indicated, to describe the course and place of streams that have ceased to flow, and to designate new beds of rivers which owe their existence, either to natural or artificial causes. The geographer speaks of the' channels of ancient rivers, in which no water now flows; great floods or the industry of men sometimes change the course of streams it is said by opening new channels. When the word is thus used it means the bed of the river from bank to bank.” Some of his subsequent remarks in regard to the channel of the Mississippi river of which he was treating apply with more force to the Missouri. After noting that the main river is always readily distinguished, he says: “the course of navigation follows the deepest water; this is sometimes on one side of the river, and very near the. shore, and sometimes on the other. Sometimes it is at right angles with the current, and not unfrequently the navigator in descending the river, must direct his vessel against the current in order to keep in the deepest water. Changes are continually occurring in the line of deep water followed by the vessels, caused by the shifting nature of the sandbars every where found in the river. The course *54of navigation, which, follows what boatmen call the channel, is extremely sinuous and often changing, and is unknown except to experienced navigators. On the other hand, the bed of the main river designated by the word channel, used in its primary sense, is the great body of water flowing down the stream. * * * It cannot be possible that congress and the people of the state, in describing its boundary, used the word channel to describe the sinuous, obscure and changing line of navigation, rather than the broad and distinctly defined bed of the main river. The center of this river bed, channel, may be readily determined, while the center of the navigable channel often could not be known with certainty. The first is a fit boundary line of a state; the second cannot be.”
It seems 'to be accepted law that when a river suddenly changes its course or deserts the original channel, “the boundary remains in the middle of the deserted bed.” Buttenuth v. St. Louis Bridge Co., 123 Ill. 535; St. Louis v. Rutz, 138 U. S. 245.
And in the case in hand it can not be doubted that the boundary line between the' two states at the place in controversy is a line equidistant from the well defined shores of the stream at the time of the cut off, and as all the land sued for is north of that line, and next to the Missouri shore, all of it is within the boundaries and jurisdiction of the state of Missouri.
II. The next inquiry in order is, what land did plaintiff’s grantors acquire from the government under their grant of the fractional section quarters, bordering on the Missouri shore of the river? These subdivisions on the side next to the river all have a common meandering line designating the river shore. In the recent case of Hardin v. Jordan, 140 U. S. 371, Mr. Justice Beadley in delivering the opinion of the court says, in regard to such lines: “It has been the practice of the *55government from its origin, in disposing of the public lands, to measure the price to be paid for them by the quantity of upland granted, no charge being made for the lands under the bed of the stream, or other body of water. The meander lines run along or near the margin of such waters are run for the purpose of ascertaining the exact quantity of the upland to be charged for, and not for the purpose of limiting the title of the grantee to such meander lines. It has frequently been held, both by the federal and state courts, that such meander lines are intended for the purpose of bounding and abutting the lands granted upon the waters whose margins are thus meandered; and that the waters themselves constitute the real boundary. Railroad v. Schurmeir, 7 Wall. 272; Jefferis v. East Omaha Land Co., 134 U. S. 178; Middleton v. Pritchard, 3 Scam. 510; Canal Trustees v. Haven, 5 Gilm. 548, 558; Houck v. Yates, 82 Ill. 179; Fuller v. Dauphin, 124 Ill. 542; Boorman v. Sunnuchs, 42 Wis. 233, 235; Pere Marquette Boom Co. v. Adams, 44 Mich. 403; Clute v. Fisher, 65 Mich. 48; Ridgway v. Ludlow, 58 Ind. 248; Kraut v. Crawford, 18 Iowa, 549; Forsyth v. Smale, 7 Biss. 201; Revised Statutes, secs. 2395, 2396. * * * It has never been held that the lands under water, in front of such grants, are reserved to the United States, or that they can be afterwards granted out to other persons to the injury of the orignal grantees.
“With regard to grants of the government for lands bordering on tide water, it has been distinctly settled that they only extend to high water mark, and that the title to the shore and lands under water in front of lands so granted enures to the state within which they are situated if a state has been organized and established there. Such title to the shore and lands under water is regarded as incidental to the sovereignty *56of the state — a portion of the royalties belonging thereto and held in trust for the public purposes of navigation and fishery — and cannot be retained or granted out to individuals by the United States. Pollard v. Hagan, 3 How. 212; Goodtitle v. Kibbe, 9 How. 471; Weber v. Harbor Commissioners, 18 Wall. 57. * *
“This right of the states to regulate and control the shores of tide waters and the land under them is the same as that which is exercised by the crown of England. In this country the same rule has been extended to our great' navigable lakes, which are treated as inland seas, and also in some of the states to navigable rivers as the Mississippi, the Missouri, the Ohio, and in Pennsylvania to all the permanent rivers of the state; but it depends on the law of each state to what waters and to what extent this prerogative of the state over the lands under water shall be exercised. In the case of Barney v. Keokuk, 94 U. S. 324, we held that it is for the several states themselves to determine this question and that if they choose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity it is not for others to raise objections. * * *. The same view was taken in quite a recent case with regard to titles on the Sacra-men to river under the law of California. Packer v. Bird, 137 U. S. 661.
“On the east side of the Mississippi in the state of Illinois and Mississippi, a different doctrine prevails, and in those states it is held that the title of the riparian proprietor extends to the middle of the current in conformity to the rule of the common law, that the beds of all streams above the flow of the tide, whether actually navigable or not, belong to the proprietors of the adjoining lands. Middleton v. Pritchard, 3 Scammon, 510; Morgan v. Reading, 3 Sm. & Marsh. 366; *57St. Louis v. Rutz, 138 U. S. 226. In the one case, that of Iowa, the government grant was held to extend only to high water mark; in other cases of Illinois and Mississippi, it was held to extend to the center of the ■stream, being governed in both cases by the respective laws of the states affecting grants of land bordering on the river. In the one case the state by its general law, does not allow the grant to enure to the individual farther than to the water’s edge, reserving to itself the ownership and control of the river bed; in the other cases the states allow the full common law effect of the grant to enure to the grantee, reserving to themselves only those rights of eminent domain •over the waters, and the land covered thereby, which .are inseparable from sovereignty.
“As was well said by the supreme court of Illinois in Middleton v. Pritchard, supra: ‘"Where the government has not reserved any right or interest that might pass by the grant, nor done any act showing an intention of reservation, such as platting or surveying, we must construe its grant most favorably for the grantee, and that it intended all that might pass by it. What will pass then by a grant bounded by a stream of water! At common law this depended upon the character of the stream of 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 proprietors bounded on or by the river, ■could acquire exclusive ownership in the soil, water and fishery to the middle thread of the current; sub*58ject, however, to the public easement of navigation. ■And this latter, Chancellor Kent says, bears a perfect’ resemblance to public highways. The consequence of this doctrine is, that all grants bounded upon a river not navigable by the common law entitle the grantee to all islands lying between the main land and the center thread of the current. And we feel bound so to construe grants by the government according to the principles of the common law unless the government has done some act to qualify or exclude the right. * * * The United States have not repealed the common law' as to the interpretation of their own grants, nor explained what interpretation or limitation should be given to or imposed upon the terms of the ordinary conveyances which they use except in a few special instances; but these are left to the principles of law, and the rules adopted by. each local government where the land may lie. We have adopted the common law, and must therefore apply its principles to the interpretation of their grant.’ These views are referred to with strong approval by Chancellor Kent in a note, the third volume- of his commentaries, p. 427, sixth addition, being the last addition prepared under his own supervision.”
No words of ours could add to the force or lucidity of this statement of the law on this question, applicable as well to Missouri as Illinois; for we also have adopted the common law and must apply its principles.
As was said by the supreme court of Michigan in the recent case of Butter v. Railroad, 48 N. W. Rep. 569: “This rule applies to grants by the United States government as well as to grants by individuals. The legal maxim must here be borne in mind, that all grants must be construed most strongly against the grantors. To this maxim the government forms no excep*59tion. Reservation cannot be . implied. When therefore the government has surveyed its lands along the bank of the river, and has sold and conveyed such land by government subdivisions its patent conveys the title to all lands lying between the meander line and the middle thread of the river, unless previous to such patent it has surveyed such islands as governmental subdivisions or expressly reserves them when not surveyed. Webber v. Boom Co., 62 Mich. 626; 30 N. W. Rep. 469; Fletcher v. Boom Co. 51 Mich. 277; 16 N. W. Rep. 645; Granger v. Avery, 64 Me. 292; Jones v. Sonlard, 24 How. 41; Middleton v. Pritchard, supra; Chandos v. Mack, 77 Wis. 573; 46 N. W. Rep. 803; Railroad v. Schurmeir, supra; Jefferis v. East Omaha Land Co., 134 U. S. 178.
And “it is laid down by all the authorities that if an island or dry land forms upon that part of the bed of a' river which is owned in fee by the riparian proprietor, the same is the property of such riparian proprietor. He “retains the title to the land previously owned by him with the new deposits thereon.” St. Louis v. Rutz, 138 U. S. 245, loc. cit.
These recent authorities render unnecessary areview of the many cases in which this question has been discussed, and clearly and satisfactorily answer the question propounded' at the beginning of this paragraph, that the plaintiff’s grantors acquired from the government, title to the middle of the thread of the Missouri river opposite their surveyed riparian lands, which, according to the evidence, covers all the land sued for, and which plaintiff ought to recover, except as to so much thereof as the defendant may have acquired title to by adverse possession. The rule governing such adverse possession would of course be the same as to the surveyed lands.
*60III. It will not be necessary to notice the instructions in detail or at length. The case was evidently-tried upon the theory broadly stated- in the head note to the case of Benson v. Morrow, 61 Mo. 345; that “under the acts of congress and the decisions of the United States supreme court, the ancient doctrine distinguishing navigable and non-navigable rivers by their position above or below tide-water is done away with, and the Missouri river is a navigable stream. And hence, as in other cases of navigable rivers, the proprietor of land on its banks owns only to the water’s edge.”
The decision in this case was rendered in 1875. It would not be profitable now to determine whether or not the deduction there drawn was warranted by the earlier decisions of the supreme court of the United States. It is evident, however, from the reading of the case, that this conclusion was reached in deference to what was then supposed by the court to be the doctrine of the United States supreme court upon the subject, a doctrine which, if ever, is now no longer maintained by that court, as is evidenced by the most recent decisions of that tribunal hereinbefore cited.
"With this idea eliminated, it is impossible to see now upon what principle the rights of riparian proprietors upon the shores of the Missouri can be governed, other than upon the doctrine of the common law applicable to all fresh-water streams, made the law of this state by'statute, and by which such proprietor owns to the middle of the thread - of the stream, subject to the right of public navigation secured by' acts of congress. This wholesome doctrine so ably maintained by the supreme court of Illinois in Middleton v. Pritchard, supra, which commended itself so strongly to the mind of Chancellor Kent, and which has now received the sanction of the supreme court of the United States in *61Hardin v. Jordan, supra, ought to become the settled law of this state, as tending' to the repose of the titles of its citizens to lands bordering on its streams, and to a definite and easily ascertained location of their boundaries.
The Missouri river is important to the state only as a public highway, and so long as the law is maintained that makes it such, no public right, state or national, will be impinged, in subjecting its bed to the stable and well understood rule of the common law defining the boundaries of its riparian proprietors.
The judgment, in my opinion, ought tobe reversed, and the cause remanded for new trial in accordance with these views.