
    Administrators of Gavit v. Chambers and Coats.
    In Ohio, owners of lands situate on the banks of navigable streams running through the state, are also owners of the beds of the rivers to the middle of the stream, as at common law.
    This was a writ of error brought to reverse the judgment of the court of common pleas of Sandusky county, and adjouimed here for decision. The plaintiff in error was the plaintiff in the original suit, which was an action on the case for erecting a dam over the Sandusky river, and flowing back the water in the bed of the river upon the plaintiff.
    At the trial the plaintiff proved that he owned certain lands bounded by the river and situate on its western bank. He also proved that by the erection of the dam the water was flowed back in the bed of the river, opposite the lands of the plaintiff, so as to stand four feet deep on a stone-quarry, in the bed of the river, between the plaintiff’s land and the middle of the stream. It was also proved that in making the original surveys the river was intersected by the lines, but the area of the river to high-water mark sub tracted from the integral survey, and only the lands on the shores paid for, to the United States, by the purchaser. It was also proved that the plaintiff was-in possession of the land claimed, and had used the stone-quarry in the bed of the river before the erection of the dam, and notified the defendants not to raise their, dam so as to flow the water back upon him.
    The court of common pleas charged the jury that the plaintiff could set up no right, in consequence of owning the lands on the shore to the use or ownership (if the bed of the river adjacent to such lands. The plaintiff excepted to this ^charge, and the jury gave a verdict for the defendant, upon which the court rendered judgment for him, to'reverse which this writ of error was brought.
    
      Platt Brush, for defendants in error,
    argued that as the San-dusky river was declared a navigable stream no individual could acquire an exclusive property in its bed.
    No argument was submitted on the other side.
   By the Court :

The question presented for decision in this case is, has the proprietor of lands, bounded on a navigable stream, a separate and individual interest or property in any portion of the bed of the river?

The cession of the United States of the lands within the territory of which Ohio is now a part, was made subject to no condition with respect to navigable streams. But in the first frame of government, commonly called the ordinance, which is fundamental in its character, it is stipulated that “ navigable waters leading into the Mississippi and St. Lawrence, shall be common highways, and be forever free” to all the people of the United States. The legislation of Congress, for the disjDosition of the lands, has strictly conformed to this stipulation. The lands within the beds of navigable rivers have not been sold to individuals as land to be paid for. And whether the rivers have or have not been made boundaries of surveys, the land usually covered by water has been deducted from that upon which the purchase money was charged. This, it is argued, is a fact conclusive to establish the position that the individual purchaser acquires no right to the bed of the river .adjoining his lands. But we do not think it properly attended with such consequence.

It is, we conceive, vitally essential to the public peace and to individual security, that there should be distinct and acknowledged legal owners lor both the land and water of the country. This seems to have been the principle upon which the common law doctrine was originally settled, that where a stream was not subject to the ebb and flow of the tide it should be deemed the property of the owners of the soil ^bounding upon its banks. The reason upon which this rule is founded, applies as strongly in this country as in any other. And no maxim of jurisprudence is of more universal application than that where the reason is the same the law should be the same.

If, in the case before us, the owners of the lands bounded on the banks of the Sandusky river, do not own the fee simple in that stream, subject only to the use of the public, who does own it, and what is its condition ? The ordinance reserves nothing but the use. No act of Congress makes any reservation in relation to the beds of rivers. We find no provisions ¡but those of section 9 of the act of 1796, which are confined to reserving the use of navigable rivers, and to declaring the existence of the common law doctrine, in respect to streams not navigable.

A river consists of water, bed, and banks. At what point does the right of the owner of the adjoining lands terminate? On the top, or at the bottom of the bank ? At high or at low-water mark ? Does his boundary recede and advance with the water, or is it stationary at some point? And where is that point? Who gains by alluvion, who loses by the direptions of the streams ? No satisfactory rules can be laid down, in answer to these questions, if the common law doctrine be departed from; and if it be assumed, that the United States retain the fee simple in the beds of our rivers, who is to preserve them from individual trespasses, or determine matters of wrong between the trespassers themselves? It can not be reasonably doubted, that, if all the beds of our rivers supposed to be navigable; and treated as such by the United States, in selling the lands, are to be regarded as unappropriated territory, a door is opened for incalculable mischiefs. Intruders upon the common waste would fall into endless broils among themselves, and involve the owners of the adjacent lands in controversies innumerable. Stones, soil, gravel, the right to fish, would all be subjects for individual scramble, necessarily leading to violence and outrage. The United Slates would be little interested in preserving either the peace or the property, and, indeed. would be powerless to do it, without an interference with the policy of the state, as unsuitable for the Union to exercise, as it would be inconvenient, -if not dangerous, to state sovereignty.

*We do not believe that it was the intention of the United States to reserve an interest in the bed, banks, or water of the rivers in the state, other than the use for navigation to the public, which is distinctly in the nature of an easement, and all grants of land upon such waters, we hold to have been made subject to the rule of the common law, which, in this case, is the plain rule of common sense. And it is this: He who owns the lands upon both banks, owns the entire -river,- subject only to the easement of navigation, and he who owns the land upon one.bank-only, owns to the middle of the river, subject to the same easement. This is the rule, recognized not only in England, but in our sister states. 20 Johns. 90; 17 Johns. 195; 3 Caine, 319; 2 Conn. 481. The case in 20 Johnson is full and clear in point. There is nothing in the trust vested in Congress, and executed by them, and nothing in the manner of executing it, to warrant the establishment of a different principle here. The charge of the court of common, pleas was, in our opinion, erroneous ; the judgment must, therefore, be reversed, and a venire de novo awarded.  