
    June v. Purcell.
    1. The principle decided in Qa/oit v. Chambers (3 Ohio, 496), that the 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, has become a rule of property, and, irrespective of the question of its original correctness, ought not to be disturbed.
    2. The same rule applies to lands bordering on the Sandusky river, in the tract of two miles square surveyed and sold under the act of congress of April 26, 1816. 8 Statutes at Large, 308.
    3. Hence, the riparian owner can recover for sand tortiously taken from the bed of the river.
    Error to the District Court of Sandusky County.
    The oiiginal action came into the court of common pleas by •appeal.
    April 8, 1873, John Purcell filed his petition in said common pleas court against Daniel L. and Daniel S. June, setting forth that he is the owner, in fee simple and in actual possession, of out-lots number 61 and 62, in said city of Fremont, Sandusky county, Ohio, which said lots were designated in the ■original survey thereof as tracts number 23 and 24 in the United States Reservation of two miles square at the foot of the lower rapids of the Sandusky river. That said lots or tracts comprise all of the large island in the Sandusky river, which is a navigable stream.
    That said Purcell owns to the center of the river, subject, however, to the right in the public to navigate the same.
    That a portion of the bed of the river 'immediately adjacent to'the westerly side of said island had, at the time of committing the wrongs complained of, risen so high as to form a distinct ridge or bar, which at ordinary stage of water was left dry. That said bar lies wholly between the center of said river and said island, and connects with said island by a narrow neck, bar or ridge.
    That about December 1, 1870, and at other times between that day and the commencement of this action, the said Daniel L. and Daniel S. June, wrongfully and unlawfully entered upon said premises, dug up, took and carried away from said bar or ridge, and converted to their use, one ■ hundred and twenty wagon loads of said Purcell’s sand, earth and soil, being the alluvium and accretions so as aforesaid deposited upon the bed and shore of said river adjacent to and on the westerly side of said island, to said Purcell’s damage, &c.
    Daniel L. and Daniel S. June, answering, admit:
    That the lots described in Purcell’s petition comprise the large island in the Sandusky river, which is a navigable stream^ That said island is situate in the city of Eremont, Sandusky county, Ohio, and within the United States Reservation of two miles square at the foot of the lower rapids of the Sandusky river.
    They also admit that during the month of December, 1870, they caused to be taken and removed from the bed of the river, below the low-water mark thereof, opposite said island and between it and the center of the river, about sixty wagon loads of sand. They deny all statements of facts contained in said Purcell’s petition not in this their answer specifícally admitted.
    At the April term, 1873, the court found the issues in favor of the plaintiff and assessed his damages at $10 for which judgment was rendered.
    The motion of the defendants for a new trial having been overruled, a bill of exceptions was taken, embodying all the evidence.
    The following are the material parts of the bill of exceptions :
    “ Be it remembered, that on the trial of said action to maintain the issues on the part of the plaintiff, the following facts were agreed to by the defendants, and with the consent of both the plaintiff and defendants, received and considered by the court as evidence in said action on behalf of the plaintiff, that is to ■say, that at the date of the alleged trespass herein, the plaintiff was the owner in fee, and was in the actual possession to the •ordinary or low-water mark, of out-lots sixty-one (61) and sixty-two (62), the same being out-lots twenty-three (23) and twenty-four (21), according to the original survey thereof, in the city of Fremont, Sandusky county, and state of Ohio. That said •out-lots comprise all of the large island in the Sandusky river, which is a navigable stream, and within the Reservation of two miles square at the foot of the lower rapids of said river. That •within the bed of said river, on the north-west side of said island, opposite the willow tree designated in the sixth course in the record of the survey and field notes hereto attached, and marked exhibit ‘ A,’ as being £ 10 inches in diameter, bearing very much down stream, marked with six notches,’ and between ■said island and the center or thread of the stream there is a sand-bar, lying parallel with said island, the result of gradual and imperceptible accretions to the bed of said river, which sand-bar at ordinary or low-water, is surrounded by water. That during the month of December, a. d. 1870, the defendants dug up, took, and carried away from the north-west side ■of said sand-bar, and between said island and the center or thread of said stream, about 60 wagon loads of sand, of the value of ten dollars. Whereupon the plaintiff rested. Thereupon, the defendants, to maintain the issues on their part, gave, in evidence on the trial of said action, the record of the plat and field notes of a survey of said out-lots, made by the United States in the month of July, a. d. 1816, under and :n accordance with an act of Congress approved April 26th, 1816, and, £ entitled an act providing for the sale of the tract of land at the lower rapids .of the Sandusky river,’ of which record a copy duly certified is hereto attached, marked exhibit ‘A’ and made part hereof. Also, the following facts were agreed to by the plaintiff, and, with the. consent of both parties, admitted and considered by the court as evidence on the trial of said action on behalf of the defendants, that is to say, that by the survey of the Reservation of two miles square at the foot of the lower rapids of the Sandusky river, made by the United States, in the month .of July, 1816, under and in accordance with the act of congress aforesaid, none of the subdivisional lines of said survey extended to or embraced the bed of the aiver, but that, on the contrary, all of the subdivisional lines of said survey, approaching the river, were so run as to extend ■only to certain points on the bank of the river at greater or less distances from the margin of the water, which points ai'e ■designated by said survey as corners to the respective subdivisions of said Reservation. And also that the river was meandered on the bank thereof, to and from said respective corners. And thereupon defendants rested. Whereupon fhe court found and ruled that the aforesaid act of congress under which said •surveys were made, reserved only an easement to the public ■of the right to navigate the waters of said river, and that by said act and the said surveys of the United States, made under said act as afoi’esaid, the boundary line of plaintiff’s said land was not restricted to the margin of the water at ordinary or low-water mark, but that the same extended to the 9enter or thread ■of the stream, and that the plaintiff, being the owner of the island aforesaid, was by virtue thereof the owner of the bed of •the river opposite to said island to the center or thread of the stream, subject only to the light of the public to navigate the waters thereof, and thereupon rendered a judgment in favor of the plaintiff against the defendants.”
    The following is exhibit “ A,” attached and referred to in bill of exceptions.
    
      “ Meanders of the big island below the lower rapids in the ■Sandusky river, opposite the town of Croghansville.
    
      “ Beginning at a sycamore 12 inches in diameter, marked with 3 notches on the north side, thence:
    
      
      
    
    “Found this island to contain 15N acres; then divided the island into two equal parts, setting the post at the N. W. side of it at the willow tree, notched on the sixth course, and run- a division line thence across the island S. 46 deg. E. and set a post on the river bank corners, to lots 23 and 24.
    “ July 11, 1816.”
    The judgment having been affirmed by the district court, the present proceeding in error is prosecuted by the plaintiff's in error, in this court, to obtain the reversal of the judgments of both courts.
    
      
      J. JR. Bartlett, for plaintiff in error :
    I. The Sandusky river is a public navigable stream, and as a corollary from this, the riparian proprietors own the fee of the soil only to high-water mark, and the proprietorship of the bed of the stream below ordinary high water is in the state for the use of the public.
    II. If the Sandusky river is not navigable in the supposed common law sense of that term, then the common law doctrine that the riparian owner of the bank owns to the center of the stream has no'application to this case, because the premises granted are clearly and explicitly limited to the banks, and the grantor had no power to go beyond. The English rule of determining the character of a public navigable river by the ébb and flow of the bide is inapplicable to this country. If the water is navigable in fact, it is to’be deemed pxiblic. The Sandusky liver is navigable in fact, above this island, and by the acts of congress of May 18, 1796 (1 U. S. Laws, 468, § 9), and April 26, 1816 (3 U. S. Laws, 308. 309), it is declared to be a public highwaxj ; consequently, in law it must be regarded a public navigable rivei*. Buel v. Long, 18 Ohio St. 529, 531; Hickok v. Hine, 23 Ohio St. 523; People v. Canal Appraisers, 33 N. Y. 461, 490; McManus v. Carmichael, 3 Iowa, 1, 27; Tomlin v. D. B. & M. R. R. Co., 32 Iowa, 106, cited 7 Am. Rep. 176; Hine v. Tevor, 4 Wall. 555-565; The Genesee Chief, 12 How. U. S. 445-454; Woolrych on the Law of Waters, 40; The Daniel Wall, 10 Wall. 557. The Sun-dusky being a legal public nmigable stream, the common law consequences of navigability attach to such legal navigability,, and one of the common law consequences of navigability is, that the riparian propiietor owns the fee of the soil, only tO' ordinai'y high-water mark, and the proprietorship of the bed of the stream, below ordiixary high-water, is in the State, for the use of the public. 3 Kent Comm. “ Riparian Rights,” §427; 1 Bouv. Inst. No. 428, p. 171; Woolrych on the Law of Waters, ch. 1, 2; Angell on Tide Waters, 19, 67; Hale De Jurs Maris, in 6 Cow. 539 ; Chapman v. Kimball, 9 Con. 38,. 40, citing Harg. Law Tracts, 12, 13, 17, 32; McManus v. Carmichael, 3 Iowa, 1, 29, 48; Haight v. Keokuk, 4 Iowa, 199 ; Tomlim v. D. B. & M. R. R. Co., 32 Iowa, 106, cited in 7 Am. Rep. 176; People v. Carnal Appraisers, 33 N. Y. 487; La Plaisance Bay Harbor Co. v. Monroe, Walker Ch. (Mich.) 155, 168; Pollard’s Lessee v. Hagan, 3 How. U. S. 213, 229, 230; Goodtitle v. Kibbe, 9 How. U. S. 471; Stevens v. Paterson, &c. R. R. Co., 34 N. J. Law, 532; Smith v. Leonnis, 8 N. Y. 472 ; Monongahela Bridge Co. v. Kirk, 46 Penn. 112; Bullock v. Wilson, 2 Port. 436; Elder v. Burns, 6 Humph. 358, 336; Stewart v. Clark, 2 Swan, 9; People v. Gutches, 38 Barb. 656, 666, 668 ; Wisconsin River Imp. Co. v. Lyons, 30 Wis. 61; Railroad Co. v. Schurmeir, 7 Wall. 272, 287-289.
    !£■ the'. Sandusky is not a public navigable stream in the supposed common law sense of that term, then we say the common law doctrine'that the proprietor of either bank of an unnavigable stream. owns to the middle or thread of the stream, or, ag usually expressed, ad medium filwm aquae, never was of universal application, and, as understood at the present day, Operates only in giving construction to calls in a grant, or conveyance, referring in general terms to a river or stream as a boundary, and-when the intention is not clearly apparent to stdp short of the middle of the stream. 3 Rent Comm. § 427; Angelí on Water-courses § 9, 23; 5 Wend. 423; 17 Wend. 570; 26 Wend. 403. It could never be applied where the terms of the grant clearly denote the intention to stop at the edge or margin of the river, or where the grantor had no power to go beyond. The right of a riparian owner to claim to the middle of the stream is therefore merely prima fade, and may be rebutted by showing that the calls in his conveyance limit him to the bank or shore, or that his grantor had no power to carry him further. The United States being the exclusive proprietor and exercising the right of eminent domain, has the undoubted right to deal with its property in such manner as it deems best, and if the precaution is taken to express its intention in clear and explicit language, there is nothing left for a court of justice to do but to enforce its grants, according to such intention.
    In giving construction to government grants, the rule of a-grant being construed most strongly against the grantor, does not apply. The government being but a trustee for the public, its grants are to be construed strictly against the grantee in favor of the government. McManus v. Carmichael, 3 Iowa, 38; Varrick v. Smith, 9 Paige, 547; Wetmon v. Story, 22 Barb. 414; Canal Company v. People, 5 Wend. 444, 460, 464; Canal Company v. People, 17 Wend. 574, note 612; La Plaisance Bay v. Monroe, Walker Ch. (Mich.) 155; Charles River Bridge v. Warren Bridge, 11 Pet. 544; Stombridge Canal v. Wheeley, 2 Bam. Add. 792.
    In the case of United States grants by patent for lands bothering on meandered and unsurveyed streams, it cannot be presumed that it was the intention to convey to the middle of ■ the river, for the sale being regulated by law, which provides only for disposal of lands previously surveyed and platted, and .the grants by the United States in their patents therefore have only relation to the surveys, plats, and field notes. Railroad Co. v. Sehurmeir, 7 Wall. 272, 287-289 ; Jackson v. Freer, 17 Johns. 28; La Plaisance Bay v. Monroe, Walker Ch. 155, 168 ; Chenneworth v. Haskell, 3 Pet. 96 ; McIver v. Walker, 4 Wheat. 447; Pearsall v. Post, 20 Wend. 116 ; W. Riv. Imp. Co. v. Lyons, 30 Wis. 61-64.
    These surveys and plats are the guides of the land officers in making their sales, and they have no authority to embrace unsurveyed land in the patent.
    Such a sale is therefore wanting in all the characteristics' which at common law are necessary to call into force the maxim ■ad medium filum aguce.
    
    No language could more emphatically denote the intention to stop at the margin of the water, than that used in the act referred to for the sale of the reservation at the foot of the lower rapids of the Sandusky river, viz.: “ Provided, that m no case -shall the subdivisional limes be so run as to extend to, or embrace the becl of the river.” The surveys, field notes, plats, and patents, and all the terms employed in the description, have refer’ence only to the premises actually surveyed, platted, and .areas computed, and they could not, by any rational construction be applied to the unsurveyed bed of the river, neither could there well be a clearer case of want of power to carry the grantee beyond the margin of the river. So well established is the rule, that the United States officers can make no sale or conveyance of land, except in pursuance of statutory provisions,, that the supreme court of the United States, has repeatedly decided that patents issued without such prerequisite authority are entirely void. Polk’s Lessee v. Wendall, 9 Cranch, 99 Stoddard v. Chambers, 2 How. U. S. 289; Wills v. Stoddard, 8, How. U. S. 345; United States v. Stone, 2 Wall. 526;: McManus v. Carmichael, 3 Iowa, 38, 39.
    The bed of a river is a substantive matter of grant, and cam only pass as such. It can never pass as incident or appui’tenant to a grant. Child v. Starr, 4 Hill (N. Y.) 382 ; 17 Mass. 289; 4 Hill (N. Y.) 369; 2 Ohio, 308; 11 Ohio, 311; 32 How. Pr. 439; 13 N. Y. 296; 53 Ill. 19 ; 45 Me. 9; 4 Rob. 35 ; 5 Rob. 192; 42 Barb. 60; 5 Wheat. 374.
    
      Everett S Fowler, for defendant in error:
    The question as to who owns the beds of navigable rivers in Ohio, or, in other words, what are the rights of riparian ownem in such streams, was clearly settled in Gavit v. Chambers, 3 Ohio, 496, cited and approved in Lamb v. Rickets, 11 Ohio, 315 ; Walker v. Board of Public Works, 16 Ohio, 544; and abundantly supported by the text-books and numerous authorities of other states. Some of these authorities aro: Angelí on Watercourses, 6 ed., edited by J. C. Perkins, p. 16, §§ 10, 11, 12, 13, 14, 15, 16; 3 Kent Comm. 11 ed., p. 427 ; 2 Wash. Real Estate, 451, 452, and § 46 on p. 632; Brown v. Chadbourne, 31 Maine, 9; Storer v. Freeman, 6 Mass. 439; Hatch v. Dwight, 17 Mass. 289; Clermont v. Carlton, 2 N. H. 369 ; Adams v. Pease, 2 Conn. 438; Warner v. Southworth, 6 Conn. 471; People v. Platt, 17 Johns. 195; Hooker v. Cummings, 20 Johns. 90; Exp. Jennings, 6 Cow. 518; 5 Paige, 137; 5 Wend. 447; 14 Wend. 358 ; 17 Wend. 571; 20 Wend. 111; 22 Wend. 425; 26 Wend. 404; Arnold v. Mundy, 1 Halst. 1; Brown v. Kennedy, 5 Har. & J. 195 ; Hays v. Bowman, 1 Rand. 417; Hammon v. McLaughlin, Taylor, 84; Hay
      
      den v. Campbell, 8 Ala. 9 ; Young v. Harrison, 6 Geo. 141; Jones v. Water Lot Co., 18 Geo. 539 ; Morgan v. Reading, 3 Smedes & M. 366 ; Morgan, v. Livingston, 6 Martin, 216 ; Municipality No. 2 v. Cotton Press Co., 18 La. 278; Middleton v. Pretchard, 8 Scamm. 510.
    The United States statutes at large (vol. 3, p. 309), under which the survey of the Reservation was made, including the island in question, contains this provision: “ That in no case shall the subdivisional lines be so run as to extend to or embrace the bed of the river, which is hereby declared a public highway.”
    The ordinance of 1787 provides that the navigable waters .leading into the Mississippi and St. Lawrence shall be common .highways and forever free, &c.
    Considered in connection with this proviso in the ordinance, .and in connection with section 3 of the act under which this •survey was made, the reason for the proviso in the act, and its ■effect, become clear.
    The proviso in the act of congress referred to was simply a ■compliance with the terms of the ordinance. The Sandusky river is a navigable river; it leads to the St. Lawrence. Congress was bound to preserve it a highway.
    Section 3 of the act directs the sale of “ all the land contained in the cession of two miles square, excepting salt springs and lots set apart for the support of schools.
    Is not the bed of the river, where sand can be taken above the water, land ? Was it not ordered to be sold ? The whole bed of the river under water is land, and we claim it was sold tinder the provision of the act.
   White, J.

The ruling of the courts below is in accordance with the decision of this court in Gavit v. Chambers decided in 1828. 3 Ohio, 496. In that case it was held, that in this ■■state the owners of land situate on the banks of navigable ■streams running through the state, are also owners of the bods of the rivers to the middle of the stream, as at common law. The same doctrine has been recognized in subsequent cases, and has become a rule of property in this state. Lamb v. Rick ets, 11 Ohio, 311; Walker v. Board of Public Works, 16 Ohio, 544. The rule is in accordance with the doctrine of the-common law, which regards all non-tidal streams, that are navigable in fact, as mere highways ; and the same rule prevails in. most of the states.

In Jones v. Soulard, decided in 1860, the rule was applied •by the supreme court of the United States, to the Mississippi river. In speaking of the rule, it is said in the opinion : “We-■think this as a general rule too well settled, as part of the American and English law of real property, to be open to discussion ; . . . The doctrine, that on rivers where the tide ebbs and .•flows, grants of land are bounded by ordinary high-water mark, hás no application in this case; nor does the size of the river alter the rule. To hold that it did, would be a dangerous tampering with riparian rights, involving litigation concerning the-size of rivers as matter of fact, rather than proceeding on estab'lished principles of law.” 24 How. U. S. 65. See also, Delaplaine v. C. & N. W. R’y Co., decided in 1877, by the supreme-court of Wisconsin, 42 Wis. 214; and Braxton v. Bressler, decided by the supreme court of Illinois in 1872, 64 Ill. 488.

In Sloan v. Biemiller, 35 Ohio St. 492, it was held that the rule did not apply to Lake Erie and its bays; and a similar-ruling was made in Wisconsin, in Delaplane v. C. & N. W. N. W. R'y Co., supra.

The plaintiffs in error rely on the case of Railroad Company v. Schurmier, decided by the supreme court of the United States in 1868. 7 Wall. 272.

In that case it was declared that the common law rules off riparian ownership did not'apply, under the acts of congress,, to lands bordering on navigable non-tidal streams, where the-title to such lands is derived from the United States.

Rut in the subsequent case of Barney v. Keokuk (94 U. S. 338), it is said, whether, as rules of property, it would now be-safe to change the doctrines of the common law where they have been applied, is for the several states themselves to determine. “ If they choose to resign to the riparian proprietor,, rights, which properly belong to them in their sovereign capacity, it is riot for others to raise objections.”

The common law doctrine, having been incorporated into the jurisprudence of this state at so early a day, and having been regarded as a rule of property for more than half a century, it onglit not now, irrespective of the question of its original correctness, to be disturbed., To disturb the rule now, “wouldbe •a dangerous tampering with riparian rights.”

The decision in Gavit v. Chambers related to the Sandusky river, the same river that is involved in the present case; but the land in question in that case was surveyed and sold under the act ci May 18, 1796. Ohio Land Laws, 35. In the present case the land was surveyed and sold under the act of April 26, 1816. 3 U. S. Statutes at Large, 308.

It is contended on behalf of the plaintiffs in error, that the decision in Gavit v. Chambers does not apply to the act last named. It is true the case arose under the former act, but the doctrine of the common law which it lays down in regard to the rights of jiparían owners must be kept in view in giving construction and application to the act now in. question.

It is admitted in the agreed statement that “ none of the sjibdivisional lines of the sjirvey extended to, or embraced the bed of the river, but that, on the contrary, all of the sub-divisional lines approaching the river were so ran as to extend only to certain points on the bank of the river, at greater or less distances from the margin of the water, which points are designated by the survey as corners to the respective subdivisions of the reservation. And also that the river was meandered on the bank thereof, to and from said respective corners.”.

That the meander-lines ran in surveying portions of the public lands bordering upon navigable rivers, are run, not as boundaries of the tract, but as a means of ascertaining the quantity of land to be paid for by the purchaser1, was decided in Railroad Company v. Schurmeir, supra. The meandej’-line, therefore, in the present instance, not being a boundary line, the only boundary was the river; aud the question is, when the boundary line of a riparian owner is thus described, where is it to be located? Gavit v. Chambers answers, at the middle of the stream, as at common law.

The act -n question provided for the survey and sale of the tract of two miles square, at the lower rapids of the Sandusky river, ceded by the Indians to the United States, by the treaty of Greenville.

The second section provided that, previously to the disposal of the tract,' the surveyor-general should re-survey and mark the exterior lines of the tract, conformably to a survey previously made. It also required him “to cause divisional linos to be run through 'each fractional section, and that of the adjoining quarter section, so that each subdivision, having one front on the ri/oer, may contain, as near as may be, eighty acres. And in like manner to cause the large island, lying in the west half of section number one, to be surveyed, and the same to 'be divided into two equal parts.”

One of the provisos in the section is, “ That in no case shall the subdivisional lines be so run as to extend to, or'embrace the bed of the river, which shall be deemed, and is hereby declared to be, a public highway.”

The third section provides, “ That dll the leund contained within the aforesaAd cession, of two miles square, shall, with the exception of as many town lots and out-lots as in the opinion of the secretary of the treasury may be necessary to reserve for the support of schools within the same, and with the exception also of the salt springs, and the land reserved for the use of the same, be offered for sale to the highest bidder,” &c. It is also pi’ovided that “the divided quarter sections and fractional sections shall not be sold for less than two dollars per acre; the in-lots for less than twenty dollars each, nor any out-lot for less than at the rate of five dollars per acre.”

It seems to us that the only exceptions or reservations from sale intended by the act, were the lots for the support of schools, the salt springs, and the land for the use of the same, and the use of the river for the purposes of a highway.

In the argument for the plaintiffs in • error, stress is laid on the provision requiring the snbdivisional lines to be so run as not to extend to or embrace the bed of the river. But if it was intended not to embrace the1 bed of the river as land to be paid for, which’ was in accordance with the policy of the government, it was necessary Tor the line's'tó-be thus run, in order to ascertain the quantity of land in each subdivision and the •amount- to be paid therefor by the purchaser.

Judgement affirmed.  