
    Elder vs. Burrus.
    Navigable streams and the beds which they occupy are public property, and the owner of land on a navigable stream above tide-water has title to ordinary low water mark, and not to the centre of the stream.
    Elder brought this action of covenant in the circuit court of Montgomery county, against Burrus. Plea, covenant performed an issue.
    It appeared on trial before Judge Martin and a jury of Montgomery that Burrus sold to Elder his equity of redemption in a tract of land called Woodlawn, and covenanted in the deed, “that whereas, there is some doubt as to whether the tract will hold out or contain 400 acres, which I hereby obligate myself it shall contain, free from any interference or claim of any other person whatsoever. And in case it should not measure as aforesaid 400 acres of land, I hereby obligate myself, heirs, &c., to refund to said Elder at the rate of $20 per acre for any deficit, with interest from the 1st day of July, 1842, and obligate myself to make him a good and sufficient title to the aforesaid tract of land, and also to have the land properly surveyed at my own proper expense, on or before the first day of April next, 1844.”
    Elder caused the land to be surveyed by the county survey- or. The last line runs “up Cumberland river with its meanders,” a distance of 452 poles. Measuring this line along the margin of the water at a medium distance between high and low water the tract is short of 400 acres by 46 acres, two poles. Measuring along the margin of the river, at the lowest stage of water, so as to include much of the bed of the river and several sand bars the deficit is 19 acres. But measuring to the centre of the stream, there was no deficit, but an excess.
    It was agreed, that the Cumberland was a navigable river, a great highway, and the chief outlet and inlet of commerce for the middle part of Tennessee, and also that it was not a tide water.
    The defendant contended that the plaintiff had by correct survey, the number of acres covenanted, he insisting that Elder acquired to the centre of the Cumberland by his deed, and the circuit judge so charged the jury, and a verdict and judgment was rendered for the defendant. The plaintiff appealed.
    Meigs, for the plaintiff.
    It is insisted that the margin of the water is the boundary of all private possessions lying on public rivers navigable; and that the centre of the stream, medium aquae filum, is the boundary of land lying on private rivers, non-navigable, and that this is a universal principle of all codes, but has been misapplied in the United States by blindly and slavishly following English cases and not the principle of those cases.
    There, because it is a little island in the midst of the sea, the tide penetrates deep inland, and the rivers are navigable so far and no farther. So far as the tide flows, they are public and navigable, and private possessions bounding on them are limited by the margin of the water. Above the flow of the tide they are non-navigable or private, and the riparian proprietors hold to the middle of the stream. That the rule is as above stated, see all the cases in Kent’s Com. 427, 431, 5th Ed.; 4 Pick. 268, 274.
    But let the law be as it may in other States of this Union, the margin of the navigable rivers in Tennessee is the boundary of tracts lying on them. See the following acts of assembly, and cases: 1715, chap. 33, sec. 3, Haywood and Cobb, 2.vol. 16; 1777, chap. 1, sec. 10, Haywood and Cobb, vol. 10, 11; 1779, chap. 4, sec. 7; Haywood and Cobb, vol. 2; 1806, c. 1, sec. 5, 1 Scott, 892; H. & C. 45-6; 1819, c. 1, sec. 25, 91; 1829, c. 49, 123; 1823, c. 59, 148. Wilson vs. Forbes, 2 Dev, 30, 39; Ingram vs. Threadgill, 3 Id. 59; 5 Wheaton, 374.
    
      Shackleford, for the defendant.
    1st. The question in this case is one of boundary as to where the line running to the river shall terminate; whether at low water mark or at the centre of the stream. The court charged the jury, that where a deed called for Cumberland river thence down the river; the location of the line would be at the centre of the stream, and not at the low water mark, unless the phraseology of the deed unequivocally expressed the intention of the parties that the line should terminate at low water mark.
    There has been no principle of the common law more fully settled than that charged by his Honor. Lord Hall, in his treatise de jura mans, edited by Mr. Hargrave, page 5, says; “fresh rivers of what kind so ever, do of common right belong to the owners of the soil adjacent, so that the owners of one side have of common right the property of the soil, and consequently the right of fishing, usque ad filum aquae, and the owners of the other side a similar right.”
    Where there were two riparian owners directly opposite each other, each proprietor owns that portion of the bed of the river 'adjoining his land usque ad filum, unless from prior grants on the opposite side, such construction is negatived. Hatch vs. Dwight, 17 Mass. Rep. p. 289; Angel on Watercourses, page 4.
    The principle decided by his honor, has been several times before the supreme court of New York, and in the case of the commissioners of the canal fund, vs. R., 26, Wendell, p. 404, it was expressly decided as charged by his honor, and the rule has been well established in Westminster Hall.
    By the common law the property in the soil and all aquatic privileges in the shores and arms of the sea whei'e the tide ebbs and flows is in the sovereign, while all the uses and enjoyments are public and common. The presumption of law is, that this original right continues unless the contrary is shewn.
    As to all fresh water rivers above the tide, the rule is the reverse, and in the absence of proof of any other right is always held to be in the owners of the bank who are considered the grantees of the soil of the river bed and of the use of the water to the middle of the stream. It is as perfect, Lord Hale says, as the right to the adjacent dry land, not only in property but in use, and is analagous to the property in fee in any land through which a road passes; see 26 Wendell, page 414; Angel on Water-courses, pages 4, 5, 6, 7, 8, 9, 10; Palmer vs. Mulligan, 3 Caines’ Reports, page 319; Adams vs. Pease, 2 Connecticut Reports, 481; Hooper vs. Cummins, 20 Johnson, 91; Arnold vs. Monday, 1st Halstead; 2 New Hampshire Rept., 369; Ingraham vs. Wilkerson, 4 Pickering, 468; People vs. Seymans, 6 Cowen, 570; Mead vs. Haynes, 3 Randolph, 33; 8 Green. Reports, 253.
    A grant of land bounded by the margin of a river above tide water vests the right of the soil in the grantee, to the centre of the river. See exparte Jennings, 6 Cowen, 518, and the note of the reporter in which the whole doctrine is discussed.
    The Cumberland river is a public highway, and cannot be obstructed by the person owning the right of soil over which it passes, but the right to pass does not affect the right of property; the public have an easement in the water, but it is a principle that nothing passes with such easement or servitude, whether of a public or private nature but that which is requisite to the fair enjoyment of the right. 26 Wendell, 414; 3 Kent’s Commentaries; 4 Ed’t., page. 427. There is a marked distinction existing between rivers as public highways, and a navigable river so called according to the technical and legal definition of a navigable river, it does not extend above the flowing of the tide; see Angel on watercourses, page 201.
    The common law rule has been recognised in the States of Maine, New Hampshire, Massachusetts, Connecticut, New York, New Jersey, Maryland, Ohio, and Virginia; 3 Kent’s Commentaries, page 428. Having shewn by authority that the principle decided by his honor, is the common law, it remains to see how far it has been adopted and is obligatory on our courts. Having adopted the common law, the principle became the law of the land, and it must continue until abrogated by statutory enactment to constitute a portion of our laws, and as much exacts obedience, and must be carried as fully into effect as any other portion of the common law; Polk vs. Pharis, 9 Yerger.
    The principle decided by his honor, came indirectly before this court in the case of Roberts vs. Cunningham, Martin and Yerger, 67. In that case the court decided that the acts of North Carolina, 1777, chap. 1st, sec. 10, and 1784, ch. 15, prohibiting the extension of surveys under 1000 acres across navigable streams, do not apply in this State. In that case it was decided that the lines of a grant that called to lie on the south side of Cumberland may nevertheless be extended across the river if necessary to comply with the calls. It is remarked by the court, that no plausible argument be founded upon the supposed unwillingness of the General Assembly to suffer the appropriation of a navigable stream as private property. What injury could this do the public? The right of soil being in a private individual does not render the running water less subject to public enjoyment as an easement, All navigable rivers of every class either de jure or de facto, are public highways. See 19 Viner’s Abridgement T. A. River; 3 Bacon Tit. highways, and the case of Roberts vs. Cunningham, Martin and Yerger, page 67.
    In Pennsylvania the rule has been rejected; in Alabama it has been altered by the constitution of the State. In North Carolina the question came before the courts of that State, but it was controlled by the acts of 1777 and 1784, before referred to. In South Carolina, the question came before that court. See 1st McCord’s Reports, 582, in which they declare that the English common law is not applicable; yet in the same case they declare the rule to be that the pub-lie may use the waters for the purposes of navigation; but that does not impair the right of individuals to the soil.
    There is no proof that the plaintiff has been disturbed in his possession. The Judge charged that the clause in the covenant free from the claims, áte., was a covenant against older and better titles, and does not limit the defendant to low water mark. This is strictly correct. This clause had no reference to the land covered by water: the plaintiff knew the location of the lands, and if he wished to limit the defendant to low water mark, he should have provided against it; if the land is of no use to him covered by water, it is his misfortune; he should have provided against it; courts always construe covenants according to the intent and meaning of the parties. 9 Yerger, 278; 5 Mason, 195.
    
      Kimble, for plaintiff in error.
    1. The doctrine of the common law, that fresh water rivers are not navigable and that the riparian owner has title to the centre of the stream or river though navigable in fact is technical and arbitrary, and should not be adopted in Tennessee.
    2. Whether any of the States consider the question settled as to them, I am not prepared to say. At all events in some of the latest cases decided in the State of New York, the question was admitted to be an open one. See 17 Wend. 571; 26 Wend. 417; 4 Hill’s Reports, 379.
    3. But admitting it to be now a settled doctrine in the States of New York, Maine, New Hampshire, Massachusetts, Connecticut, New Jersey, Maryland, Ohio, Virginia, and Louisiana, as stated by Chancellor Kent in his 3 Com. 428, still we say that Pennsylvania has repudiated the doctrine. See 2 Binney, 475; 14 Sug. and Rawl, 71; also, the State of North Carolina. See Wilson vs. Forbes, 2 Dev. 30, and 4 Dev.; and South Carolina. See 1 McCord’s Rep. 580. Nor can we overlook the fact that our legislature has by repeated enactments asserted the supremacy of the State to her navigable waters, by imposing penalties for obstructing her navigable rivers. See Nich. and Car. 626; but see Martin and Yer. 68.
    4. But supposing the common law rule to prevail in Tennessee, still we are to enquire, what is the nature and character of the right of the riparian owner to the centre of a navigable river. Is it to be purchased and paid for by the acre in a contract for a given number of acres of land? Mr. Justice Cowen admits it an incident in delivering his opinion in favor of the common law doctrine; 20 Wend. 152. See also in 6 Cowen, 548, opinions of Hale, Coke and Littleton, there cited. It is said it is a common law right, as a right of common, &c.. To the same effect is Story in the case of Tyler and others vs. Wilkinson and others 4 Mason’s Rep. 400 and 401. He says, “but our law annexes to the riparian proprietors the right to the use in common, as an incident to the land.”
    5. The defendant in error covenanted that the tract of land in question should contain 400 acres. A portion of a navigable river to make out the number of acres cannot satisfy this covenant. This would be against the intention of the contracting parties.
    6. The defendant covenanted the title to be “free from the claim of all others.” This covenant cannot be satisfied by forcing the plaintiff to take a portion of a navigable river to which there is a conflicting and paramount claim. This would be against the intention of the parties, and against the common understanding of the country; and this general understanding, says Justice Cowen, 20 Wend, 153, “should govern in the construction of conveyances.” And it may be laid down as a safe rule that the intention of parties may be collected as well from the subject matter about which they may contract, as from the words employed.
    7. The shore of a fresh' water river is the ordinary water mark. 6 Cowen, 547.
   Tueley, J.

delivered the opinion of the court.

The defendant sold to the plaintiff his equity of redemption in a tract of land, called Woodlawn, and covenanted in his deed as follows: “Whereas, there is some doubt as to whether the tract will hold out or contain four hundred acres, which I hereby obligate myself it shall contain, free from any interference or claim of any other person whatever; and in case it should not measure as aforesaid four hundred, acres of land, I hereby obligate myself, heirs, &c., to refund to said' Elder, at the rate of twenty dollars per acre, for any deficit, with interest fro'm the 1st day of July, 1842.

The plaintiff, supposing that there was a deficit in the tract of land, instituí ed his action upon this covenant, in the circuit court of Montgomery county. Upon the trial, it appeared that the land had been surveyed by the county surveyor; that one of the lines including the same, calls to run up the Cumberland river with its meanders four hundred and fifty-two poles; that measuring this line along the margin of the river at a medium distance between high and low water, the tract falls short of four hundred acres by forty-six acres and ten poles; measuring at the lowest stage of the water, the deficit is nineteen acres; but measuring to the centre of the river there is no deficit. And the question presented for the consideration of the circuit court was, which of the modes of measurement was the correct one. Upon this subject, the circuit Judge charged, “That when a deed called for running to Cumberland river, thence up the river, the location of the line should be at the centre of the river and not at low water mark.” Upon which, there was a verdict and judgment for the ^defendant, and an appeal to this court on the part of the plaintiff.

The same question, as to the legal mode of running the line, which was presented to the circuit Judge, is now brought before us for our adjudication; and its solution depends upon whether the Cumberland river is to be considered a navigable stream, and the boundaries of lands lying upon it are or are not to be restricted to the low water mark.

It is not doubted, but is a settled principle of the English law, that the right of soil of owners of land bounded by the sea or on navigable rivers, where the tide ebbs and flows, extends to the high water mark; and the shore below common but not extraordinary high water mark belongs to tbe public; but grants of land bounded by rivers or upon the margin of the same, or along the same, above tide water, carry exclusive right and title of the grantee to the centre of the stream. This is the well settled ‘common law doctrine of England, and is, in a few words, this: “The right of grantees to land lying on rivers above tide-water, extends to the centre of the stream, but upon those where the. 'tide ebbs and flows, is stopped at ordinary high water mark.”

This principle, if applicable to our State, settles this case in favor of the defendant. But, is it applicable? We think it is not, and is no portion of our common law, either by adaption or usage.

All laws are, or ought to be, an adaptation of principles of action to the state and condition of a country anil to its moral and social position. The common law, as we have hitherto had occasion to observe, consists of such principles, matured and established by the ‘Judges of England, upon a fitness of things, ascertained by observation and experience. There are many rules, of action recognized in England as suitable, which it would be folly in the extreme, in countries differently located, to recognize as law; and, in our opinion, this distinction between rivers navigable and not navigable, causing it to depend upon the ebbing and flowing of the tide, is one of them.

The insular position of Great Britain, the short courses of her rivers, and the well known fact that thera/ are none of them navigable above tide water, but for very, small craft, well ^warrants the distinction there drawp by the common law. But very different is the situation of the continental powers of Europe in this particular. Their streams are many of them large and long, and navigable to a great extent above tide water, and accordingly we find that the cmTTaw which regulates and governs those countries, has adopted a very different rule, as to what are or are not navigable streams; and by it, all rivers even above tide water, provided they are navigable for ships or boats, are considered as public property.

Now, these principles of the common and civil law are not in conflict with one another; they are both right and proper for the countries to which they are made to apply. In England, there are no streams navigable above tide water; but the reverse is true of the continent, and the end designed to be effected, both by the common and civil law upon this subject, is identical, viz: that navigable rivers shall not become private property, but shall belong to the community at large. If the local situation of the continent of Europe required an extension of the construction of what was necessary to constitute a navigable river, and prevented its restriction to tide water, much more so does that of our own country, and particularly the valley of the Mississippi.' Our rivers are of immense extent, and size, and navigable for thousands of miles above their mouths. So, to adopt the English principle, that no river is a navigable river above the ebb and flow of the tide, would be to declare that there is no river navigable in the valley of the Mississippi; and that the Mississippi, Missouri, Ohio and Tennessee, do not belong to the public, but are the property of individual owners of land upon their margins — an absurdity too monstrous to be thought of. Shall it be held that the interest of the community of England requires that their navigable streams should belong to the crown as public property, but that in all the States bordering on the Mississippi and its mighty tributaries, these great and important highways by which such an amount of merchandize of every kind and description is annually sent to market, shall belong to private individuals, because the tide does not ebb and flow in them? Surely not, unless we are compelled by positive law so to maintain.

Upon what principle can it be contended that the rule of the common law of England, as to what makes a navigable river, is obligatory in the State of Tennessee? I trust I have shown satisfactorily that it is one not adapted to our position. It has never been recognized by our courts, and is not adopted, as we think, by the act of 1788, chap. 5, which provides that such parts of the common law as were heretofore in use in the Territory, not destructive of or repugnant to, or inconsistent with the freedom and independence of this State, and the frame of government therein established, and which are not abrogated, expired or become obsolete, shall be in full force in this State. Now, this principle of the common law which is under consideration, is so obviously at war with the position of our country and its best interests, that we hesitate not to say, that it had never been in force and use in this State, while it was a Territory, and is, therefore, not forced upon us by the act of 1787.

We are aware that in a portion of the States of this Union, this question has been differently held, but it is to be observed of them, that they are located upon tide water, and may have felt that the principle of the common law was applicable to their position. It, however, has received a different construction from the supreme court of North Carolina in the case of Wilson vs. Forbes, 2d Dev. 36, where it is held that the English rule for determining whether a river is navigable or not by the ebb and flow of the tide is not applicable to that State. If not there, most assuredly not'here. We are satisfied that the question w;as correctly decided by that court, and adopt the principle therein recognised, “that the owners of land on a navigable stream above tide water, has title only to ordinary low water mark, and not to the centre of the stream.”

In holding otherwise in this case, the circuit judge erred, for which the judgment must be reversed, and the case remanded for a new trial.  