dissenting.
I dissent from the principal opinion on several grounds. It is impossible for me to ascertain from the ,few facts stated in the record, whether the land'in controversy lies in front of the city of Mobile, as' it existed, in 1824. It is quite probable it lies north ■of any established street running west from the bay, at date of the act of Congres? under which the corporation claims; and it is clear that such street is the limit of grant on the north, as it calls for “ North Boundary streetand it is an admitted fact that no street bearing this name existed in 1824. It was incumbent on the corporation, as plaintiffs, to prove that their grant included the premises sued for to authorize a recovery on the strength of their own title; as they could not rely upon the weakness of that of their adversary. Until this was done, the validity of the statute of the United States could not be drawn in question in *264the State Court. It must appear upon the face of the record, 1. That such a question might have arisen; and 2. that it was actually made; and 3. that it was decided. For the rule, I refer to the case of. Armstrong v. The. Treasurer of Athens County, decided at this term. Suppose it appeared by the record that the land lay miles^bove the city as it existed in 1824, and yet the State Court had seen proper to declare that the act of Congress was void: could this Court. take jurisdiction to examine and reverse the state decision ? I think not. No. question on the validity of the act could in.such case have been properly raised or decided; because the act of Congress had no application to • the'premises sued for. It .rested on the plaintiffs in error'to show in the bill of exceptions the facts that could give rise to the question: we cannot infer the facts, to give this Court jurisdiction under the twenty-fifth section of the act of 1789. If it be true, that the making such a question at the bar, and its decision by the State Court, gives jurisdiction to this Court, then the validity of this act of Congress may be drawn in question in any case when the State Court sees proper to give an abstract opinion in regard to it.
It i« supposed the description of the premises in the declaration can be referred to in this case, to aid the bill of exceptions; which in itself is not pretended to be sufficient to raise the ques.tion on the validity of the act of Congress. The declaration is allegation, not proof. It is not referred to by the exceptions; no fact stated in it is recognised as proved by the Court. The bill of exceptions states, that the plaintiffs claimed under the act of 1824; that the premises claimed by plaintiffs were north of St. Louis street, were bounded on the west by high-water mark, and east by the channel of the river; and that the defendant was claimant in possession of the land lying immediately west, and which extended eastwardly to the river; and which he held’ under a Spanish grant; and that Water street, in 1824, did not extend so far north as the front of the land claimed by defendant ; and this is all it states. I deem it wholly inadmissible in this Court to assume jurisdiction under the twenty-fifth section, by inference. But if it could, I should infer, rather, that the land in dispute lay north of the front of the city, when the grant *265w.as made, than the reverse, because Water street did. not extend so far north at that time.
Secondly, If the premises are "Situate south of North Boundary street, as it existed in 1824, then, I have no doubt, the corporation took title by virtue-of the act of that year; notwithstanding that the land of the defendant’s testator, Kennedy, fronted on the shore of the river, and was bounded by the -high-water mark. 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 bétween the high and low water marks belonged to the King of. Spain/ and passed to the United States by our treaty with France, in 18Ó3, 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. 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 éxtended east to the channel of the river.” So that the, high-water mark is the common boundary between.the grants.'
I concur with my brethren of the majority, that if the defendant was in possession of the land in, controversy under a confirmed Spanish grant, that then such Spanish grant is excepted from the act of 1824; and that this is the true construction of the act, as this Court held in' Pollard’s heirs v. Ki-b'bé: and it matters not when the Spanish grant was made, so that it was before Spain surrendered the .country to the United States, for although such grant was void, still the act of 1824 intended to except it. This is the settled doctrine of the Court on the construction of the act.
But my brethren and myself differ as to the fact; we cannot go out of the record; and this explicitly states that the eastern boundary of the defendant’s land was the western boundary of that sued for by the plaintiffs; and it is almost the only explicit *266statement in the biU of exceptions. The case did not turn in the Courts below on a conflict of boundary; but, obviously, on the grounds assumed in the case of the same plaintiffs against Es-lava, as will be'seen hereafter.
As no right to the soil below high-water mark was claimed for the defendant, further discussion on this point might-be dispensed with : yet, as the New Jersey case of Martin v. Waddel has just been argued for the third time in this Court, and the doctrine of riparian rights was very fully presented, and as the authorities are-at hand, a slight reference to them will be made.
A primary rule of construction, according to the English common law as applicable to grants of land made by the government to individuals, when they front on the shores of tide-waters, is, that they go no further than ordinary high-water mark; and if the grant, extends over the tide-water, taking the high land on both sides, the land under watpr does not pass by the ordinary terms of grant, applicable to high lands; because the soil under tide-waters is a public sovereign right, and an estate to itself, in the sovereign, held in trust 'for the public use, separate from the highland. This is the settled doctrine in England, as will be seen by the case of the Royal Fishery of the Baune, 8 James 1, reported .by Sir John.Dory, 149; and by Angel, in his Treatise on Tide-waters, App. 35, ed. of 1836.
The case was recognised as sound law by the Court of King’s Bench, in Carter v. Muscot, Burr. Rep. 2162, it which it 'is said, “ That navigable rivers, or arms of the sea, belong to the crown, and not like private rivers to the landowners on each side: and therefore the presumption lies the contrary way in the one case from what it does in the other. Here, indeed, it lies prima facie, on the side of the king and the public.” “ The case of the Royal Salmon Fishery in the river Baune, in Sir John Dory’s" Reports, is agreeable to this; and it is a very good case.”
The same doctrine has been maintained in Massachusetts, as will be seen by the case of Storer v. Freeman, 6 Mass. Rep. 435. in that state, a local peculiarity exists which is explained by the Court.
So in New York. Palmer v. Hicks, 6 Johns. 133; Mayor, &c., of New York v. Scott, 1 Caines’ Rep. 355. And in many subsequent caáes this rule of construction is recognised.
*267I understand the same rule to apply by force of the laws oi Spain, to the Spanish grant under which the defendant Hailett claims. So the Supreme Court of Alabama held in Hogan v. Campbell, 8 Porter’s Ala. Rep. 1, 24. And see Mayor, &c. of Mobile v. Eslava; opinion of Supreme Court of Alabama. And I feel disinclined on this point to look beyond the decisions of the State Court of Alabama; if power to look beyond it exists in this Court, on this particular point; which I doubt.
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; where such valuable portions of it are mud-flats, in the constant course of reclamation.
That the King of England could so grant in the American colonies, and that the states of this Union, where the rights of soil are governed by the common law, can thus grant, is not an open question. . The city of New York, by the king’s charter of 1730, and by legislative acts of the state, holds a large body of land in and about the city that was formerly entirely below high-water mark, and that is but slightly reclaimed at this day; as will be seen' by 1 Kent’s Com. 7, 85.
And I understand it to be the settled doctrine in Alabama that the United States has power to grant the lands fro,m high-water mark to the channel of the rivet Mobile, previous to the formation of the state constitution. So the Supreme Court of that state held, in Hogan v. Campbell,above cited. But the ground assumed by that Court, amongst-others, is, that by the adoption of the state constitution, and its acceptance by Congress, the right of soil to all lands flowed by tides passed to the state government by implication, as an incident to the state sovereignty. And on the same principle was the present cause decided by that Court; for they certify in the record before Us, “ That the opinion delivered in the case of the Mayor, &c., of Mobile v. Eslava, at this term, is decisive of the present. The consequence' is, that the *268judgment of the Circuit Court is free from error, and must be affirmed.”
The case of the Mayor, &c. v. Eslava has been before us this term, and I refer to my opinion in it for the reasons why I supposed the Supreme Court of Alabama mistaken when they declared the act of Congress void.
Assuming that the act of 1824 covered the land in controversy, then, I am of opinion that the- Supreme Court of Alabama erred by declaring it invalid; and that the judgment ought to be reversed. -