
    NOVEMBER TERM, 1844.
    Daniel Morgan and William Harrison v. Abraham B. Reading.
    Where the parties to a suit have agreed upon the facts, and for the purpose of using that agreement as evidence have reduced the same to writing, they are concluded by it from introducing any evidence to vary or contradict the agreed state of facts. To permit it would be a surprise to the opposite party.
    The Act of Congress establishing the Mississippi River as the western boundary of the Mississippi Territory, and adopting the Common Law for the government of that Territory, thereby fixed the middle of that river as the true boundary line.
    The rights of riparian owners on the east shore of the. Mississippi, must therefore be determined by the Common Law.
    
      “A navigable river,” in technical language, only applies to rivers in which the tide ebbs and flows, and then only to such parts of the river as are subject to the flow of the tide.
    By the Common Law the owners of the soil on the banks of fresh water rivers, whatever their magnitude, have the exclusive proprietary right therein to the middle of the stream, subject only to a right of passage thereon as a highway, where the stream admits it.
    The provisions of the various treaties and acts of Congress, declaring the Mississippi River to be a “ common highway, and forever free to the citizens of the United States, without any tax, duty, &c.,” give a right to an easement over the river only, and do not alter the rule of the Common Law as to the banks of the river and the rights of the owners of the soil therein.
    The banks of a stream not technically “navigable,” are private property, subject to the exclusive appropriation of the owner, and are not subject to the use of the public, although , the river itself be a public highway, the use of which may not be interrupted even by the owner.
    Whether this exclusive right of use by the owner of the soil extends beyond low water mark on the Mississippi River; guare.
    
    Where the banks of the Mississippi River above low water mark were used without the consent of the owner, and where the owner had published his terms for the use of the bank, which were known to the person so using it; held, that the owner of the soil could recover according to those terms for the length of time his bank had been so occupied and used.
    Whether the navigators on the Mississippi River may not, in cases of necessity, use the bank of the river, or fasten their vessels to the trees thereon; guare.
    
    In error from the Circuit Court of Warren county.
    The defendant in error sued out an attachment against the flatboat of the plaintiffs in error, who replevied the boat, and entered themselves parties to the suit, according to the provisions of the act of the legislature, with reference to steamboats and other water craft, passed in the year 1840. Session Acts, 129.
    The defendant in error filed his declaration in assumpsit against the plaintiffs in error for the use and occupation of a certain landing on the Mississippi river belonging to him, and claimed one hundred and nineteen dollars for the use thereof. The plaintiffs in error appeared and plead non assumpsit. A jury, was empannelled, and at the trial the following agreed state of facts was read to the jury.
    “ An agreement between the parties in an attachment case by A. B. Reading against Daniel Morgan and William Harrison. The parties waive all informality of process ; admit the ownership and boundaries, say running along the west side of lots laid off by S. S. Prentiss and others, and bounded on the west by the Mississippi river ; and also acknowledge that said Morgan & Harrison used and occupied the said land below high water mark, and that they are citizens of Ohio, and regular flat-boat traders on the river ; that said Morgan & Harrison lay between Grove and Jackson street sat Vicksburg; the parties agree that said Reading published his terms for the use and occupation of said ground ; and that said Morgan & Harrison took possession, and used said land below high water mark, knowing said terms as published ; but said Reading and Morgan & Harrison never made a special contract for said use and occupation; but said Morgan & Harrison claimed during their whole occupancy as aforesaid to occupy said land, as an incident to the free navigation of the Mississippi river, and always refused to pay for said occupancy. It is agreed, that in the year-, the legislature of Mississippi established the city of Vicksburg, being very near the Mississippi river, but in the year 1839 extended the boundaries to ttie Mississippi river. That said Morgan used the ground in front of his boat, in delivering goods, tying his boat, and pulling his platform ashore below high water mark.” The above statement is to be read to the jury as evidence, May 6th, 1841. It is further admitted, “ that the boat of Morgan lay at the landing the number of days charged, and that Reading’s public terms are one dollar per day.” It is admitted, “.that the high water mark in front of Gilmore’s lot is on the west iine of Levee street, and that Gilmore’s lot is in the city of Vicksburg.”
    This was all the evidence offered by the plaintiff below.
    The defendants below then introduced Judge Springer, and E. H. Wright, as witnesses, and offered to prove by Judge Springer the boundaries of the city of Vicksburg on the Mississippi river, between Grove and Jackson streets ; and offered to read as evidence to the jury a deed from N. H. Rappleye to Gilmore & Folkes ; from J. W. & W. Vick to Gilmore & Folkes ; 'of Guión & Prentiss to Jonathan Gilmore, for the purpose of establishing title in the premises occupied in Gilmore. This evidence and these deeds were excluded by the Court below. They are set out in full in the record, but are not noticed farther in this statement of the case, as they do not elucidate the opinion of the Court. Exceptions were taken to the exclusion of the deeds or oral proof.
    Judge Springer stated to the jury, to which there was no objection made, that there was no wharf between Gilmore’s lot and the Mississippi river,, where the flat-boats lay ; that Gilmore had made some filling and grading in Levee street, but that none had been done by Reading.
    .On motion of the plaintiff below, the Court instructed the jury.
    1.That the rights of persons to lands bounded on the bank of a river, are in this country governed by the principles of Common Law, except when altered by statute.
    
      2. That the owners of lands bounded by a fresh water stream, are the proprietors of the soil to the middle of the stream.
    3. If Reading, the plaintiff, was owner of the land on the bank of the Mississippi river at the point where the defendant’s flat-boat lay, and which he used, Reading had a right to charge the defendant for the use and occupation of the same.
    ■ 4. That the question in this case is one of riparian right, and does not involve the question of the public right to navigate the Mississippi river.
    5. If the defendant occupied the land of Reading, the plaintiff, with full notice that he demanded of him payment of a certain price for the use of the same, Reading is entitled to recover in this action.
    
      The defendant below excepted to these instructions.
    The defendant below asked the Court to instruct the jury, —
    1. That a fresh water navigable river is a public highway from the ordinary point of high water on one side, to the same point on the other side, in which the public have a right of way, and the owner of the adjacent land has no right to appropriate any part thereof below', ordinary high water mark to his exclusive use, although he may have the right of soil to the middle of the river ; that the use of the highway'he has in common with the public.
    • 2. That if the jury believe, from the evidence, that the place, for the use and occupation of which this suit is brought, is below high water mark on the Mississippi river, that it is a portion of the public highway, and that any agreement for the exclusive use of the same is inconsistent with the public easement.
    3. That if the jury believe, from the evidence, that the defendant is a fiat-boat trader on the Mississippi river, his landing at the bank in front of the city of Vicksburg, although he knew that the plaintiff had published that he demanded one dollar per day for all flat-boats landing and fastening to the shore, would raise no valid agreement to pay the sum demanded.
    4. That if the jury believe, from the evidence, that there is no express agreement between the plaintiff and defendant to pay the sum demanded in this suit, the action for use and occupation does not lie.
    5. That the Mississippi river, from high water mark on one side ■to high water mark on the other, is a public highway, and no entry on it can raise an implied promise to pay the owner of the adjacent soil for its use and occupation below high water mark.
    6. The Court is asked to instruct the jury, that the right to navigate the Mississippi river carries with it the incidental right to the use of the shore, for the landing of boats and the discharge of freight. All of these instructions, asked by the defendant below, the Court there refused to give ; to which exception was duly taken.
    Whilst the Court was instructing the jury, one of them inquired of the Court, whether, If the jury should think the amount claimed by the plaintiff in this cause, for use and occupation, was unreasonable, they could find a less sum than that demanded. The Court responded that they could not; that this case was similar to that of a man’s having a house to rent, who would publish that whoever entered his house must pay him so much rent; if a man entered, under these circumstances, he was bound to pay,tbe rent demanded. To which opinion of the Court, as given to the jury in reply to said interrogatory, the defendant also excepted. .
    The verdict of the jury being for the plaintiff below, the defendants there moved for a new trial, on the ground of the opinion of the Court with reference to the agreed state of facts, and the exclusion of the deeds and parol proof referred to, and because the Court misdirected the jury.
    The defendant below read his own affidavit and that of his counsel in behalf of his motion for a new trial; stating that both the defendant and counsel consented to the agreed state of facts under the impression and advice that it did not preclude them from contradicting it by other proof, and also setting out what they expected to prove by other witnesses. These affidavits not being considered of in the opinion of the Court, are not here further noticed.
    The Court below overruled the motion for a new trial; to which exception was taken, and the cause transferred to this Court by writ of error.
    The following errors are assigned.
    1st. In not permitting the documentary and parol proof offered by the plaintiffs in error to be given in evidence to the jury.
    2d. In giving the instructions moved for by the counsel for the defendant in error.
    3d. In refusing to give the instructions moved by the counsel for the plaintiffs in error.
    4th. In refusing to grant the plaintiffs in error a new trial.
    5th. The Court erred in giving judgment in favor of the defendant in error against the plaintiffs in error.
    
      Alexander R. Depew and Henry S. Foote, for plaintiffs in error.
    We maintain that the Court below erred, 1st, in refusing to admit the documentary and parol evidence' which-was offered to the jury, on the trial by the counsel for the plaintiffs in error.
    2d. In giving instructions moved by the counsel for the defendant in error.
    
      3d. In refusing to give the instructions moved by the counsel for the plaintiffs in error. And
    4th. In refusing to grant a new trial.
    . The record in this case presents for the consideration and adjudication of this Court, the great questions, whether the Mississippi river is a public navigable river, and free for the use of all the citizens of all the States of the Union navigating the same, and whether the landings on the Mississippi river, in front of incorporated cities, lying on and extending to the river, and in ports of entry, established by acts of Congress, in front of those cities, on the river, are as free as the river for all the purposes of navigation ; such as the landing of steamboats and flat-boats ; receiving and discharging cargoes ; and whether riparian claimants of the banks and bed of the Mississippi river, below ordinary high water mark in front of incorporated cities, lying on the river and extending to it, in ports of entry established by Congress, can charge ad libitum, nolens volens, all steamboats and flat-boats, landing at the earthen bank (without wharves), in the ordinary navigation of the river, for the use and occupation of such earthen banks thus situated.
    These questions are of vast importance to all the inhabitants of the great and fertile valley of the Mississippi river, comprising about one half of the territory of the whole Union, in which are cultivated in great abundance, for exportation, wheat, hemp, tobacco, cotton and sugar, besides the feeding and grazing of large quantities of horses, mules, beef cattle, hogs, and other live stock for market, all of which' require the navigation of the Mississippi and its tributaries to find a'market.
    We maintain that, by the principles of law, as applicable to the navigation of the Mississippi river, this great river and its banks are as free, for all the purposes of navigation, to all the citizens of all the States of this Union, as the sea and its shores.
    In support of this position, we refer with confidence to the laws of nature and of nations, the civil law, the common law, the French and Spanish laws, public treaties, and numerous acts of Congress ; and contend, that by all of these laws, the Mississippi river is rendered a public navigable river, free to all the citizens of the United States; that the river, its bed and banks between ordinary high vvater mark, are public for all the purposes of navigation ; that no riparian claimant can lawfully demand riparian rents ,for the use and occupation of its earthen banks, below ordinary .high water mark, in public ports of entry in front of incorporated cities lying on the Mississippi river.
    The importance of the questions involved, requires an extensive and profound investigation ; and we feel confident the more the subject is -investigated, the more conclusive will be the positions which we shall endeavor to maintain.
    To show that in the primitive ages of the world all things were held in common, and that when things capable of being appropriated were divided among nations and individuals, the sea and its shores, navigable rivers and their banks, were reserved for the common benefit of mankind, we refer therefore to Puffendorff’s Law of Nature ■and Nations, Book 4, ch. 3,4, 5, 6 ; Grotius, Book 1, ch. 2, sec. 1, 2, 3, 11, 12, 14 ; Yattel, B. 1, ch. 9, sec. 104, ch. 20, sec. 234, ch. 23, sec.<^281, 290, 292 ; Rutherforth’s Inst. 22, 38 ; and Just. Inst. L. 2, T. 1, sec. 1,2, 3, 4, 5.
    On the subject of the laws of Great Britain as to navigable rivers and their banks; we cite Bracton, L. 1, ch. 12, sec. 6, cited 20 Johns. Rep. 95, at the foot of the page in Latin : u Publica vero sunt omnia ilumina et portus, ideoque jus piscandi omnibus commune est in porfu et in fluminibus. Riparum etiam usus publicus est de jure gentium, sicut ipsius fluminis. Itaque naves ad eas applicare, funes arboribus ibi natis religare, onus aliquid in iis reponere, cuivis liberum est sicuti in ipsum fluvium navigare : sed proprietas earum est illorum quorum praédiis adhasrent; et, eadem de causa, arbores in eisdem natas eorundum sunt: et haec in'telligenda sunt de flumi-uibus perennibus ; quia temporalia possunt esse privata.” But all rivers and ports are public. Hence the right of fishing in a port or in rivers is common. By the law of nations, the use of the banks also is as public as the ¡rivers ; therefore all persons are at equal liberty to land their vessels, unload them, and fasten their cables to the trees upon the banks, as to navigate the river itself. Still the banks of a river are the property of those who possess the land adjoining, ■and therefore the trees which grow upon them are the property of the same persons. “ And this is to be understood of perennial rivers, because temporary rivers may be private.”
    
      Bracton is high authority on English law, according to Callis, Seldon, Lord Chief Justice Willes, and Lord Hale. See his History of Common Law, 156 ; 4 Black. Com. 420 ; Justices Buller and Best; Reeve’s English Law, p. —; and Crabb’s History of the English Law, 164, 165. Bracton was Chief Justice of England in the reign of Henry III. This elevated judicial station, together with his great learning and talents, gave him every opportunity of knowing the laws of England at the time he wrote his book, entitled “ De Legibus et Consuetudinibus Anglia.” Much additional evidence as to the doctrine of Bracton, as above quoted, may be deduced from its accordance with the principles of justice, of the law's of nature, of the laws of Rome herself, the laws of. nations which were borrowed from the laws of Rome, and from the laws of almost every government established since the overthrow of the imperial government of Rome, and the rearing of feudal monarchies upon its ruins.
    We also cite, as persuasive evidence to the same effect,- Warren v. Mathews, 1 Salkeld, 357, per Holt,"C. J. of King’s Bench; Same Case, 6 M.odern Rép. 73 ; Ward v. Creswell, Willes, Rep. 265 ; Carter v. «Mitrcoí, 4 Burrows, 2162. These citations show that the doctrine of the Roman code, as laid down in Justinian, was the true doctrine of the Common Law of Great Britain in 1768. When Carter v. Murcot was decided by the Court of King’s Bench, with Lord Mansfield at its head, the case of Warren v. Mathews had been previously decided in the reign of Queen Anne, by the same Court, with Lord Chief Justice Holt at its head, and is reported both in l Salkeld and 6 Modern, substantially alike. The case of Ward v. Creswell, Willes, R. 265, was afterwards decided in the reign of George the 2d, in confirmation of the doctrine of Warren v. Mathews, and Grotius and Bracton are both cited by Lord Chief Justice Willes with approbation, in support of this reasonable principle of Common Law.
    We may also add, as strong additional evidence of Bracton’s assertion, that the above quotation from him forms a part of the laws of England (the statement of Mr. Justice Blackstone, vol. 1, pages 64 & 72, and vol. 4, page 406), and that our laws are com-: pounded of the laws of the ancient Britons, of the Romans, of the Saxons, of the Piets, of the Danes, and the Normans ; and of Lord Bacon’s assertion, that our laws, like our language, is a compound from various sources, and as the one is thereby rendered the more pure, so is the other more equitable and just. We may also add the great probabilities that a doctrine so equitable, so just, so suitable to the situation and circumstances, not only of Rome and her provinces during the era of the republic and empire, but so much in accordance with the situation and circumstances of the people of England, from the conquest thereof by Julius Cffisar until the time when Bracton wrote, that it is almost impossible to believe that these principles should not have been incorporated in the code of the British laws. The English doctrine of Common of Piscary, Common of Estovers, Common of Surbory, Common of Pasture, &c., proves that the rights of Common were favorites of the Common Law, and affords a strong argument in favor of the rights of Common in navigable rivers and their banks for all the purposes of navigation.
    The adjudications, both in England and the United States, on which the defendant in error relies in support of his claim, are all founded on the doctrine of Lord Hale, in his treatise “ De Jure Maris et Brachiorum ejusdem,” Hargrave’s Law Tracis, p. 1, &c. cited 6 Cowen, 557, 558, 559, c. 1,2, 3. Chapter 1. Fresh rivers, of what kind soever, do, of common right, belong to the owners of the soil adjacent; so that the owners of the one side have, of common right, the propriety of the soil, and consequently the right of fishing usque filum aquee, and the owners of the other side the right of the soil or ownership, and fishing unto the filum aquee on the other side. And if a man be the owner of the land o.n both sides, in common presumption he is owner of the whole river, and hath the right of fishing, according to the extent of his land in length. “ With this agrees the common experience.” But special usage may alter the common presumption ; for one man may have the river, and others the soil adjacent; or one man may have the river and soil thereof, and another the frge or several fishery in that river. Though fresh rivers are, in point of propriety, as before, prima facie of a private interest, yet as well fresh rivers as salt, or such as flow and reflow, may be under these two servitudes, or affected by them, viz. one of prerogative belonging to the king, and another of public interest, or belonging to the people in general. See chapters 2 & 3, the ensuing 2 pages, chapter 2d. The king, by an ancient right of prerogative, hath had a certain interest in many fresh rivers, even where the sea doth not flow or reflow, as well as in straits or arms of the sea, viz.
    1st. The right of franchise, or privilege, that no man may set up a common ferry for all passengers without a prescription, time out of mind, or a charter from the king. He may make a ferry for his own use or the use of his family, but not for the common use of all the king’s subjects passing that way ; because it doth in consequence tend to a common charge, and is a thing of public interest and use, and every man for his passage pays a toll, which is a common charge, and every ferry ought to be under a public regulation, &c.
    2d. And this, that is said in reference to a fresh or private river, holds place < much more in a public river, or arm of the sea, and therefore need not be repeated when we come to the subject.
    3d. And interest of jurisdiction, viz., in reference to nuisances in or by rivers, as when the sewers were not kept, which gave rise to the commission of sewers, as well for fresh rivers as for salt.
    And another part of the king’s jurisdiction in reformation of nuisances, is. to reform and punish nuisances in all rivers, whether fresh or salt, that are a common passage, not only for ships and greater vessels, but also for barges or boats, to reform the obstructions or annoyances that are therein to such common passage : for as the common highways on the land are for the common land passage, so these kind of rivers, whether fresh or salt, that bear boats or barges, are highways by water ; and as the highways by land are called altee vice regies, so these public rivers for public passage are called Jluvis regalis and haul streams le Roy; not in respect to the propriety of the river, but to the public use : all things of public safety and convenience being, in a special manner, under the king’s care, supervision, and protection.
    “ Chapter 3d. { Concerning public streams.’ There be some streams or rivers that are private, not only in propriety or ownership, but also in use; as little streams and rivers that are not a common passage for the king’s people. Again, there be other rivers, as well fresh as salt, that are of common public use, for carriage of boats and lighters ; and these, whether they are fresh or salt, whether they flovv and re-flow or not, are prima facia publici juris common highways for man or goods, or both, from one inland' town to another. Thus the rivers of Way, of Severn, of Thames, and divers others, as well above the bridges and ports as below ; as well above the flowings of the sea as below ; and as well when they have become of private propriety, as in what part they are of the king’s propriety ; are public rivers juris publici."
    
    And therefore all nuisances and impediments of passage of boats and vessels, though in the private soil of any person, may be punished by indictments, and removed ; and this was the reason of the statute of Magna Charta, cap. 23, omnes, &c.
    These kinds of nuisances were such as hindered or obstructed the passage of boats ; as weirs, piles, choking up the passage with filth, diverting the waters by cuts or trenches, decay of the banks, or the like. And they were reformed sometimes by indictments or presentments in the petty'sessions of the peace, Oyer and Term-iner, &c., and oftentimes in the King’s Bench, &c. See end of chap. 3d. For no man can take a certain or constant toll, even in his own private lands, for a common passage, without the king’s license.
    We suppose the principles contained in Sir Matthew Hale’s treatise, De Jure Maris, &c., ar.e illegal and unconstitutional innovations upon the genuine doctrines of the Common Law, flowing from abuses of royal prerogative, and in many instances, the most palpable violations of Magna Charta. These primitive rights, spoken of by Lord Hale, in the sea and its shores, in rivers and their banks, were all originally founded upon grants from the crown ; and where the grants could not be proved, the lords of the manors, and their tenants relied on prescription, or custom, to prove the private exclusive right. Those grants were made by the kings, to appease their feudal barons, who made leases of those exclusive' rights to their tenants. These grants were made, as we contend, in violation of Magna Charta, and are not valid even in Great Britain. See the New Jersey oyster case, (Martin, et al. v. 
      Waddell), 16 Peters, S. C. Rep. page 406, &c. But if they are law in Great Britain, they are not in this country ; the Common Law of Great Britain is introduced into this country so far only as is applicable to our situation and circumstances. See the opinion of the Supreme Court of the United States, in the case United States v. Worrell, 2 Dallas, 393 ; and also the opinion of tb^e Circuit Court of the United States, in the case Wheaton & Donaldson v. Peters & Craig, 8 Peters, S. C. Rep. 739, Appendix. The doctrine of Lord Hale as to navigable rivers is not applicable to our situation and circumstances. This whole system of private riparian rights in navigable waters is built on decisions collected by Lord Hale, from the Year Books, in cases decided at a time when the navigation of Great Britain did not extend above the ebbing and flowing of the tide ; and even then the fact of the ebbing and flowing of the tide was only prima facie evidence that the river was navigable and public, or not navigable and private. Many streams through which the tide flows are not navigable ; and the Thames, the Severn, the Humber, the Mersey, and others, for some distance above tide water are navigable.
    Had the navigation of Great Britain, from the time of Bracton .to this period, been in its present state of improvement by steam, the rule with respect to tide water, spoken of by Lord Hale, would never have been recognized as law, even as to the small rivers of the “ sea girt isles.” Much less would it have been the rule to distinguish navigable waters, if our great Mississippi and its tributaries had flowed through England ; and it cannot surely be the rule 'in this country, where we ^are blessed with this great river and its navigable tributaries, flowing through the largest valley of. fertile land in the world, and containing more than fifteen thousand miles of navigable waters. The Supreme Court of Pennsylvania has decide.d that this doctrine of Lord Hale is not applicable to the large rivers of the United States, such as the Deleware, Susquehanna, Alleghany, Monongahela, Ohio, and Mississippi. See Carson v. Blazer, 2 Binn. Rep. 475 ; and Shrunk v. The Schuylkill Navigation Company, 14 Serg. & Rawle’s Rep. 78. And the Supreme Court of South Carolina has decided the same doctrine, in th.e case of Cates v. Wadling, 1 McCord’s Rep. 280 ; The 
      
      Canal Commissioners, Spc. v. The People, 5 Wendell’s Rep. 423, 457.
    But we contend that, even if this doctrine of Lord Hale should be the law in the United States, as to other rivers, it cannot be applicable to the Mississippi and its navigable tributaries. This great river is not only rendered navigable by the laws of nature, but its free navigation consecrated and guaranteed by public treaties' and public law to all the people of the United Slates. See, on this subject, the public treaties, Laws of the United States, vol. 1, pp. 198, 205, and 441. See also Acts of Congress, regulating the sale and disposition of public lands, and authorizing the admission of various new States into the Union, 1 vol. Land Laws, pp. 54, 56, 98, 187, 216, 218, and 310. > See also the instructions of Mr. Jefferson, whilst Secretary of State, to Messrs. Carmichael and Short, American State Papers, vol. 10, 135 to 145.
    We also contend that the banks of the Mississippi river extend from ordinary high water mark on one side, to the same point on the other side ; and refer to the argument of Mr. Jefferson, in the case of the New Orleans Batture, Hall’s American Law Journal, vol. 5, 48 to 62, and the authorities there cited. We also refer to the same argument and authorities, to prove that there is a well established distinction between rural and urban estates, as to the riparian rights of the owners of land on navigable rivers ; that this distinction prohibits the owners of lots in cities from the benefit of alluvion or batture, whilst the riparian proprietors of rural estates on navigable rivers are entitled to all accretions by alluvial deposit and batture. We maintain that this distinction between the rights of rural and urban estates, as to all riparian claims, existed at Common Law in all free incorporated cities, located on navigable rivers, and more especially those which had free ports. The history of Europe, during the middle ages, is filled with the struggles of the people to be emancipated from their intolerable burdens, imposed on them by the feudal barons. The efforts of the free incorporated cities greatly contributed to burst asunder the shackles of feudal slavery, with which a haughty nobility had fettered the great mass of the people of those ages. Those cities became free and independent of the lords of the manors. The feudal burdens and riparian rights on navigable waters, which the haughty barons of those days had .extorted from their sovereigns, to the oppression of the inhabitants of their manors, weré not permitted to enter the corporate limits of 'free cities. With free ports, commerce required protection from the plunder and robberies of the feudal barons ; and the wisdom of the princes of those times reared the free, cities, as places of refuge for the plundered merchants and oppressed vassals. See Robertson’s History of Charles thé 5th, vol. 1, 21 to 24 ; Hallam on the Middle Ages, vol. 2, 78 and 80; Smith’s Wealth of Nations, vol. 1, 393 to 398. That the same liberal principles prevailed in ■Great' Britain, in all commercial cities on navigable rivers with ports of entry, is manifest from the decision of the Court of King’s Bench, in the case of the London wharves. See 2 William Blackstone’s Rep. 581, 590 ; and from all the Acts of Parliament on the subject of ports, havens, harbors, and wharves, see also 1st. vol. English Statutes at Large, 4, 5, 6 ; Magna Charta, chapters 9, 16, 23, 24’, which are as follows ; Rlackstone’s Com. 419, 420.
    ' By the laws of nature and of nations, and the civil law, as has been shown, the sea and its shores, navigable rivers and their banks, are free and open to all'the community. By the Common Law of England, the King, as head and representative of the people, is lord of the shores of the sea, and of navigable rivers and their banks, for the common use of all his subjects. He is also lord of the ports and havens, which are the inlets into the kingdom, and the gates of the realm. See Dav. 9, 56. The King alone, or parliament, has authority to establish wharves in any of the ports or havens of the •kingdom. If wharves cannot be established in ports and havens without authority for the purpose of taxing commerce, even with the great benefit of wharves and quays, much less can riparian claimants burden commerce in incorporated cities with free ports under the disguise of riparian rents.
    Nq person by the Common Law can establish a public ferry or bridge for toll; because it is a public charge on-all persons using the ferry or bridge. See Lord Hale’s He Jure Maris, c. 2, 3, Hargrave’s Law Tracts, 1, &c. If no subject of Great Britain can charge toll for a ferry or bridge or road on his own land without authority from the King or Parliament, can he levy duties or tolls or tribute in free ports in incorporated cities on navigable rivers, under the name of riparian rents ?
    One D. Morgan was fined one hundred marks, about two hundred pounds sterling, for such an offence. See Hargrave’s Law Tracts, 51 ; PetersdorfF’s Abr. vol. 15, p. 292, title Wharves and Wharfage. And as touching ports, and the public right to them, Lord Hale saith, “ Bracton saith true; but with this allegation, that the law of England doth thus far abridge the common liberty of ports, that no port can be erected without the license or charter of the King, or that which presumes and supposes it, viz., custom and prescription.” Ib. 84.
    Further, to show that the Mississippi river is public property, and free to all the citizens of the States, that the bed of the river is also public property, until by alluvial deposites and batture it rises above the waters of the rivers so as to become private property, we refer to the decisions of the Supreme Court of Louisiana from the case of Gravier v. The Mayor and Aldermen of the City of Mew Orleans, decided in 1807, to the case of Putty & Erevin v. Municipality Mo. 2, 18 Louisiana Rep. 278, &c.
    Still further, to prove that the Mississippi river is public property, and free to all the citizens of all the States, and that its bed and banks are as free for all the purposes of navigation, as the river itself, we maintain the position, that the navigation of this great river is to be governed by the Roman, French and Spanish laws, which are among the people of this Union the international law of that river. Vattel, B. 1, ch. 22, sec. 266, and other writers on the laws of nations, state it to be a well settled rule of international law, that the nation first taking possession of a country through which a navigable river flows, and' exercising dominion over the river and country, becomes entitled to the whole river. The French discovered the Mississippi river as early as 1673, by Father Marquette and Mons. Joliet, sent out for that purpose by the Governor of Canada through Lake Michigan and Wisconsin, to its confluence with the Mississippi river. Those gentlemen explored this river to the 33d degree of North latitude (about 60 miles above Vicksburg), and returned to Canada. The mouth of the Mississippi was soon afterwards discovered by La Salle of Quebec, who a few years afterwards sailed with four' ships and some colonists from France, under the orders of the French government, to take possession of the country of the Mississippi river. This expedition, though disastrous, took possession of Louisiana in 1684. In 1712, the King of France granted Crozet a charter over the country which is now Louisiana, and a large portion of the valley of the Mississippi. A Governor and Intendant were established by the French government. The laws, edicts, and ordinances of the realm, and the custom of Paris were extended to the province of Louisiana ; this charter was surrendered some time afterwards by Crozet, and in 1817 another was granted to the North-Western Company. A short time afterwards, the city of New Orleans was founded on its present site ; the French established many towns and forts on the Mississippi river and its tributary streams, among which are Natchez, Cape Girardeau, Kiskas-kies, St. Louis, Prairie du Chien, Vincennes, Terre Haute, Du-quesne, &c. &c.; and formed the splendid design of connecting by a cordon of military posts the Canadas and Louisiana. According to the history of the settlement of the Mississippi river by the French, its occupancy by them for nearly a century, and the laws of nations applicable to the case, the civil law, or the laws of France which are founded on the civil law, govern the navigation of the Mississippi' river.
    The British had no rights on this river, except the imperfect rights of upper inhabitants of some of its tributaries, until the treaty of Paris of 1763, fixing the limits of the French and British territories in America. In the 7th article of that treaty, is this provision: “In order to establish peace on solid and durable foundations, and to remove forever all subjects of dispute with regard to the limits of the British and French territories on the continent of America, it is agreed, that for the future, the confines between the dominions of his Britannic Majesty and those of his most Christian Majesty in that part of the world, shall be fixed irrevocably by a line along the middle of the Mississippi river, from its source to the river Iberville, and from thence by a line drawn along the middle of this river and the lakes Maurepas and Pontchartrain to the sea; and for this purpose, the most Christian King cedes in full right, and guarantees to his Britannic Majesty, the river and port of Mobile, and everything which he possesses or ought to possess on the left side of the Mississippi, with the exception of the town of New Orleans, and the island in which it is situated, which shall remain to France ; it being well understood that the navigation of the Mississippi river shall be equally free, as well to the subject.s of Great Britain as to those of France, in its whole breadth and length from its source to the sea ; and expressly that part which is between the said island of New Orleans and the right bank of that river, as well as the passage both in and out of its mouth. It is further stipulated, that the vessels belonging to the subjects of either nation shall not be stopped, visited, or subjected to the payment of any duty whatever.” When this treaty was made, either the civil law or the French law was the law of the Mississippi river, the British having acquired their interest by cession. See 1 Black. Com. 108 ; Salk. 411, 666 ; 2 P. Wms. 75. By the civil law, the river and its banks are public for all the purposes of navigation. See Just. Inst, ut supra, which is as follows, Liber 2, T. 1, sec. 1: “Things common to mankind by the law of nature, are the air, running water, the sea, and consequently the shores of the sea ; no man is therefore prohibited from approaching any part of the sea shore, whilst he abstains from damaging farms, monuments, edifices, and so forth, which are not in common, as the sea is.”
    Section 2. “ Rivers and ports are public, hence the right of fishing in a port or in rivers is in common.”
    Section 3. “ All that tract of land over which the greatest winter flood extends itself, is the sea shore.”
    Section 4. “ By the law of nations, the use of the banks is as public as the rivers ; therefore, all persons are at equal liberty to land their vessels, unload them, and to-'fasten ropes to the trees upon the banks, as to navigate the river itself. Still the banks of a river are the property of those who possess the land adjoining ; and therefore the trees that grow upon them are the property of the same persons.”
    Domat, in his prelection to Book 1, sec. 1, says: “The heavens, the stars, the light, the air, the sea, are all of them things belonging so much in common to the whole society of mankind, that no person can make himself master of them, nor deprive others of the use of them. And likewise the nature and situation of all these things are entirely in proportion to the common use of all men.”
    Section 2. “ Rivers, the banks of rivers, highways, are things public, the use of which is common to all particular persons, according to the respective laws of countries. And these kinds of things do not appertain to any particular person, nor do they enter into commerce. But it is the sovereign that regulates the use of "them.”
    The laws of Spain are substantially in accordance with the Roman and French law on this subject. See the Laws of Las Siete Partidas, Partida 3, tit. 28, law 6. ■ “Rivers, ports, and public roads belong to all men in common, so that strangers coming from foreign countries may make use of them, in the same manner as the inhabitants of the place where they are. And though the dominion or property (Senorio) of the banks of rivers belongs to' the owner of the adjoining estate, nevertheless every man may make use of them to fasten his vessel to the trees that grow there, or to refit his vessel, or to put his sails or merchandize there. So, fishermen may put and expose their fish for sale there, and dry their nets, or make use of the banks for all other like purposes, which appertain to the art or trade by which they live.”
    From the great coincidence in the Roman, French, and Spanish laws, on the subject of the rights of the public, for the promotion of commerce in navigable rivers and their banks, and in ports and harbors, it is not material whether the civil, French, or Spanish laws, or all combined, constituted the law of the Mississippi river at the time of the ratification of the treaty'of Paris of 1763; That treaty was tripartite, His Catholic Majesty, His most Christian Majesty, and His Britannic Majesty were all parties thereto. France had ceded Louisiana to Spain by treaty, dated 3d November, 176'2, but did not deliver possession thereof until October, 1764 ; and then requested that the laws, ordinances, and usages of the colonies, should continue in force in Louisiana. The definitive treaty of peace between the United States and his Britannic^ Majesty of September, 1783, has this provision : “ Article 8. The navigation of the river Mississippi, from its source to the ocean, shall forever re.main free and open to the subjects of Great Britain, and the citizens of the United States.”
    
      The treaty between the United States of America and Spain of the 20th October, 1795, contains the following provision. Article 4. “ It is likewise agreed that the Western boundary of the United States, which separates them from the Spanish colony of Louisiana, is in the middle of the channel, or bed of the river Mississippi, from the northern boundary of said States, to the completion of the 31st degree of latitude north of the equator ; and his Catholic Majesty has likewise agreed, that the navigation of the said river, in its' whole breadth from its source to the ocean, shall be free only to his subjects and the citizens of the United States, unless he should extend this privilege to the subjects of other powers by special convention.”
    From this view of the subject, it is manifest, that whilst France and Spain had dominion over the river Mississippi, the rights of the public were on the broad and liberal principles of the civil law; that the interests acquired by the British by the treaty of Paris of 1763, did not change the laws applicable to that river, or in the least diminish the rights of the public to the free navigation thereof, but confirmed them by express stipulation; and that the rights acquired by the United States, by the treaty of peace of 1783 (September), made no change in the same liberal principles of public law applicable to this great river, but confirmed and guaranteed them also by express stipulation to all the citizens of the United States.
    Were the rights of the American public in the riv.er Mississippi diminished by the treaty of St. Ildefonso of the 1st of October, 1800, by which Spain retroceded Louisiana to France, — or by the treaty of the United States of America and the French Republic of the 30th April, 1803, by which Louisiana was .ceded in full sovereignty to the United States ? Let the history of the great solicitude felt by the whole American people for the free navigation of that river, and the great excitement occasioned by its obstructions whilst Louisiana was under the dominion of Spain, answer these questions. If further evidence should be wanting, it will be found in the great solicitude of the people of the United States on this important subject, as evidenced by the 'various acts of Congress authorizing the erection of territories lying on the river Mississippi into independent States ; all of which contain provisions similar to that of March 1st, 1817, to enable the people of the western part of the Mississippi territory to form a Constitution and State Government, which is as follows : “ And that the river Mississippi, and the navigable rivers and waters leading into the same, or into the Gulf of Mexico, shall be commo^highways, and forever free, as well to the inhabitants of said State, as to other citizens of the United States, without any tax duty, impost, or toll therefor, imposed by the said State.”
    The Act of March 3d, 1803, provides “ That all navigable rivers within the territory of the United States south of the State of Tennessee, shall be deemed and remain public highways.”
    The Act of 20th February, 1811, authorizing the people of the territory of Orleans to form a Constitution and State Government, has a provision in the same language of that authorizing the admission of the Mississippi territory into the Union.
    The Act of March 3d, 1811, on the subject of the sale of public lands in said territory and Louisiana, provides “ That all navigable rivers and waters in the territories of Orleans and Louisiana, shall be and forever remain public highways.”
    The Act of April 8th, 1812, to admit Louisiana into the Union has this clause : “ Provided that it shall betaken as a condition upon which the said State is incorporated into the Union, that the river Mississippi, and the navigable rivers and waters leading into the same and the Gulf of Mexico, shall be common highways, and forever free,'as well to the inhabitants of said State as of the other States and territories of the United States, without any tax, duty, impost or toll therefor imposed by said State ; and that the above conditions, &c., shall be considered, deemed, and-taken fundamental conditions and terms, upon which said State is incorporated in the Union.”
    By the Act of March 6th, 1804, making provision for the sale of ’lands in the Indiana Territory, and for other purposes, it is enacted, “ That all the navigable rivers and waters within the Indiana territory, shall be deemed to be and remain public highways,” &c.
    By the Act of March 2d, 1819, authorizing the admission of -Alabama territory into the Union as a State, it is declared, “ That all navigable waters within said State shall forever remain public highways, free to the citizens of said State and of the United States, without any tax, duty, impost, or toll therefor imposed by said State.”
    By the Act of March 3d, 1823, supplemental to the act for ascertaining claims and titles to land in the territory of Florida, it is declared, “ That all the navigable rivers and waters in the districts of East and West Florida, shall be and forever remain public highways.”
    The above quotations from numerous acts of Congress passed at different times, together with the quotations from the public treaties we have cited, furnish irresistible evidence that the people of the United States consider their Mississippi as much a navigable river as the Thames, the Severn the Mersey, or the Humber, below the ebbing and flowing of the tide. The navigability of the river Mississippi is not left to the prima facie evidence of Lord Hale ; but the anxieties of the American people have caused them to guarantee iis free navigation by as many solemn confirmatory acts as the British did their Magna Charta. It is therefore most manifest that the Mississippi is elevated by the public law of American people, as well as by the laws of nature and nations, above the condition of the ordinary rivers of the United- States. .Whatever application therefore Lord Hale’s prima facie doctrine of the navigability of rivers may have to the small rivers of this country, the free navigation of which has not been secured by public law, it can have no application to the Mississippi, the Queen of Rivers-, covered all over as she is with guarantees of her free navigation
    If the Mississippi is the public navigable river we have endeavored to show, can the defendant in error be the proprietor of the river, its bed or banks, below ordinary high water mark, in front of the city of Vicksburg, in a port of entry established by the Congress of the United States ? By the Common Law, the king is the lord of royal or public navigable rivers, as well as the ports established thereon ; and since Magna Charta, he cannot grant exclusive private rights in the beds of navigable waters or ports. See the opinion of the Supreme Court of the United States in the case of Martin, et al. v. Waddell, 16 Peters, Rep. S. C. 410. The Civil Law is clear and explicit on this subject. See Dig. 45. 12. 7.' “ Impossible est ut alveus fluminis publici non sit publicus ;” construed, 
      “It is impossible that the bed of a public river should not be public.” See also Digest, 50. 16. 96. 112. “ Littus 'publicum est catenus qua maximum jluctus excesiuat; ” construed, “The sea shore is public as far as the greatest wave.surges.” Grotius, De Jure Belli et Pacis, 2. 8. 9. “ Ripa est pars exeima ahii, quo naturaliter Jlumen excurrettranslated, “ The bank is the outermost part of the bed in which the river naturally flows.” Dig. 43. 12. 3. “ Ripa ea putatur esse quae plenissimum flumen continet; ” in English, “ That is considered the bank, which contains the river when fullest.” The commentary of Vincennes on this passage is, ££ Ut significit portem ripee non esse spatium illucl ripa proximum quod aliquando jlumine caloribus minuto cestivo tempore non occu-pat'ur;” construed, “ This signifies that the space next to the banks, which is sometimes occupied by the river, when reduced by the'heats of the summer season is not a part of the bank, ” and of course a part of the bed of the river. Again, Dig. 43. 12. 3. 5. translation, “ The bank may be thus rightly that which contains the river holding the natural direction of its course. But if at any time, either from rains, the sea, or other cause, it has overflowed a time, it does not change its banks. Nobody has said that the Nile, which, by its increase, covers Egypt, changes or enlarges its banks. For when it has returned to its natural height, the banks of its bed are to be secured.” Grotius, De Jure B. et P. 2. 8. 9. .££ AlveusJlumina tegitur.” “ The bed is covered by the river.” Vinn. Partitiones Jur. Civil. 1. 17. “Alveus est spatium'illud jlumine subjectum per quod jluet.” ££ The bed is the space subjacent to the river through which it flows.” Curia Phillipica, 2. 3. 1 ; cited Derb. 46 ; translation, “ The bank of a river is understood to be the whole of what contains its waters when most swelled, in whatsoever time of the yearj without leaving its bed or channel. ”
    From these principles, which are so reasonable and so just that they must be of universal application, it is manifest that the bed of the Mississippi river, and its banks at its highest tide, when it does not overflow its banks, are as public, for all the purposes of navigation, as the waters of the river which flow between its banks.
    If the king, since Magna Charta, cannot grant exclusive privileges, even to lords, in the beds of navigable rivers, can the quasi 
      riparian lords of this country claim such rights by implication and construction ? Before Magna Charla, no subject of England could claim alienation by the crown of private rights in royal rivers without they were expressly named ; their public rights were not to be converted into private, by intendment or implication. See Plowd. 333, 334, 336 ; Jllton Wood’s case, 1 Coke’s Rep. 46, B. 15 ; Vin. Abr. 697; Chitty’s Prerog. 392; Comyns, Digest, title Grant, c. 7. 12 & 3. M. 37. If, since Magna Charta, no subject of England can claim .private privileges in public navigable rivers, either by implication or express grant, surely a construction ought not to be given to a grant of our government, which, by implication, would repeal the provisions of so many public treaties and acts guaranteeing the free navigation of the Mississippi river to all the citizens of the United States.
    We take an additional ground for the plaintiffs in error, which is not applicable to the owners generally of steam and flat boats navigating the Mississippi, in consequence of most of them having submitted, though with great reluctance, to the payment of those illegal charges for use and occupation of the landing at Vicksburg. It is this, that they avowed, at the first time they landed at the port of Vicksburg, that they had a right, by public law, to land there free of charges, and that they never would pay the defendant in error, or any other person, one dollar for wharfage or riparian rents.' This declaration they made to the defendant in, error himself, and have often repeated it. Fie admits the facts in this and other suits pending in inferior and superior courts of this State ; not one dollar has ever been paid by those champions of the free navigation of the river Mississippi, for those illegal charges for use and occupation for the landings in the port of Vicksburg. The settled doctrine of the Common Law, is, that assumpsit for use and occupation will not lie, unless there is an express promise made at the time of the demise. See 3 Levinz, 150; Johnson v. May, Bull N. P. 138 ; Smith v. Stewart, 6 Johns. Rep. 4S ; 2 H. Blackstone’s Rep. 319, and cases there cited. The statute of 11 George 2d, chap. 19, sec. 14, is not in force in this country, and we have no statute on the subject. The furthest that the English Courts have gone under the statute of 11 George 2d, c. 19, sec. 14, is to hold that, where the relation of landlord and tenant exists, so that a promise may be implied, assumpsit for use and occupation is maintainable, and the decisions of the Supreme Court of New York, under their statute, are in accordance with those of Great Britain.
    To recapitulate: we contend that the Mississippi is a public navigable river, rendered so by the laws of nature and nations, and also by the laws of Great Britain, as laid down by Bracton, solemnly adjudged by the Court of King’s Bench, with Lord Chief Justice Holt at its head ; by the same Court, with Lord Chief Justice Willis at its head, who cites the doctrine of Bracton, with approbation, as the true doctrine of the Common Law ; and also by the same Court, with Lord Chief Justice Mans'field at its head. We contend that the doctrine of Lord Hale’s treatise, De Jure Maris, is composed of exceptions to the general rule of law relative to navigable rivers and their banks ; that those exceptions are founded on arbitrary grants of the crown to the nobility, in violation of Magna Charta, or on prescription or custom originally 'founded on those illegal grants, and is not applicable to the great rivers of this country, and especially to the river Mississippi ; that if by possibility it could extend to the Mississippi, generally, it cannot extend to the landings in an incorporated city, with a free port, on the banks of that river. But’we maintain that by the laws of nature and of nations, by public treaties, and numerous acts of Congress, the Mississippi river forms a grand exception to the general rule of law, and has its free navigability firmly guaranteed to all the citizens of all the States in the Union, and that the freedom of landing in the port of Vicksburg is granted by solemn dedication to the American public.
    We further maintain, that no man can levy wharfage, tolls, or any other charges on commerce (not even a Lord), except by public authority, and in compensation for services rendered to commerce by them. In addition to other authorities, we cite Vattel, B. 1, c. 9, sec. 104, in which the author says : “ A particular Lord, who has, a neck of land that projects into a river, shall there establish a toll, though he is not at a farthing’s expense in preserving the river and the convenience of navigation. This is a manifest extortion, contrary to the natural law of nations.” Apropos the case at bar.
    
      The questions involved in this controversy are of vital importance to the inhabitants of the whole valley of the Mississippi, more especially since the improvements in steam navigation, and the multiplication of steam vessels on the Mississippi river and its tributaries, so greatly contribute to the conveyance of the surplus productions of this extensive and fertile country to the best .markets. The efforts which for some time have been making by riparian claimants, and city authorities, to render the great body of the people tributary to a few quasi riparian and city lords, have kindled a flame throughout the whole valley of the Mississippi, which will never be extinguished until this lawless system of plunder is suppressed.
    From every view we can take of this subject, we are decidedly of opinion that the proceedings of the Court below in this case are erroneous, and should be reversed by this Court.
    
      George S. Yerger, for defendant in error.
    The defendant, Reading, who by the facts agreed, is the owner and possessor of the lot in Vicksburg, referred to in the pleadings, which lot is bounded by the Mississippi river, charged the owners of'flat-boats, who tie up their boats at his landing, a certain sum for wharfage or riparian rent. The boats lie there all the year, and retail groceries and other articles. The defendants resist his right to charge wharfage or riparian rent, upon the ground that the soil between high and low water mark belongs to the public ; that the navigation of the Mississippi is free for all persons ; and that the land of individuals bounded by the river extends only to high water mark, and not to the centre of the stream.
    1st. It is a settled principle of the Common Law, that land bounded by a river not navigable, in the Common Law sense of the term (i. e. where the tide does not ebb and flow), extends to the middle of the stream, and carries the soil and interest to the grantee, subject only to the leasement or right of the public to use it as a highway for the passage of boats, &c. 3 Kent’s Com. 427, 428, &c., 411, 412, &c. ; Claremont v. Coulter, 2 N. H. Rep. 369 ; 6 Cowen’s Rep. 518, 537 to 558 ; 13 Wend. 355 ; 3 Caines’s Rep. 307 ; 1 Randolph’s Rep. 417 ; 4 Pick. 268 ; 6 Mass. Rep. 438 ; 14 Mass. Rep. 151 ; 5 N. H. Rep. 520 ; 
      Gavitv. Chambers, 3 Ohio Rep. 496 5 Harr. & John. Rep. 195 ; 2 Whart. Rep. 538 ; 1 Halsted, New Jersey Rep. 1 ; 2 Conn. Rep. 4.81 ; 20 John. Rep. 90.
    But when the land is bounded by the sea, or an arm of the sea, or a river below the ebb and flow of the tide, the boundary extends to high water mark, and the soil between high and low water mark belongs to the public. Vide authorities above cited.
    This rule has been uniformly so decided in' all the American States, with the exception of Pennsylvania, and perhaps South Car-lina. These States seem to form an exception, grounded however on a supposed usage, &c. 2 Binney’s Rep. 475 ; 14 Ser. & Rawle, 71 ; 1 McCord, 580.
    I am not disposed to answer the learned argument filed by Col. Depew in this case. He endeavors to prove that by the law of nations, the Spanish law, and the French law, a different rule prevails ; and that this rule is applicable to the Mississippi, because its mouth was first discovered by the French, &c. The argument is, in substance, that of Mr. Jefferson, in the batture case of New Orleans.
    It may be, that the French, Spanish-, and civil law is as stated, and grants for land, lying in a -country governed by either of these codes, would unquestionably be governed by the law of the place where the land is situated. But where.the land granted lies in a country or state governed by the Common Law, the Common Law rule must prevail.
    ■ A river may run through two or three .kingdoms, and the law of each would govern the land within its territory, and the law must be administered in each accordingly.
    So firmly has the rule of the Common Law been settled, that it has been remarked (see 6 Cowen, Rep. 543), “ that at this day no lawyer will hazard his reputation by controverting it-, &c.
    • The Mississippi, above the ebb and flow of the tide, is a fresh water river, and can form no exception to the rule. Like the Hudson, the Ohio, the Connecticutt, and other large rivers, it is 'navigable for boats, and its free navigation cannot be obstructed. It is a common highway for all the citizens of the Union. In common parlance, it is navigable ; but it is not navigable in the Common Law sense of the term, above the ebb and flow of the tide, though it may afford water sufficient to float a seventy-four gun-ship.
    Two arguments or points are mainly relied on, to show that the rule in regard to the Mississippi is, or ought to be, different.
    1st. It is assumed, as a principle of the law of nations, that the law of the nation or country which first discovers the mouth of a great river' prevails to the -whole extent of the river ; that the French first discovered the, mouth of the Mississippi, and consequently the French law must prevail; and for this is cited, Vattel, ch. 22, sec. 266.
    The passage cited is directly the reverse. Vattel explicitly states, that the law of the discovering nation only extends so far as the river bounds its territory. And in another place (ch. 18, sect. 207, 208), he expressly lays it down, that the law of nations does not acknowledge the rights of the discovering nation, to a country discovered by it, except those of which it has actually taken possession, and formed settlements, or which it makes actual use.
    In this way, the rights of France, Spain, and England, to different parts of the American continent, have been recognized, and their various possessions defined and settled by treaty stipulations, &c. Where grants have emanated from the French or Spanish governments to individuals, for land lying within the acknowledged territory of these nations, in bounding these grants, the law of these nations at the time of the grant must prevail ; and so of grants emanating from the-English Government, they are governed by the Common Law.
    At the times the grants and patents issued for the land in question, Mississippi was governed by the Common Law.' The Common Law rule must therefore prevail, as it has done in all other States governed by the Common Law, unless the various treaties and Acts of Congress, referred to on the other side, alter this rule. ■
    In the ordinance of Congress, and in these treaties referred to, the free navigation of the Mississippi is to be preserved. This is all the provision made upon the subject. But does this alter the rule of the Common Law in regard to the boundary of the lands lying on the Mississippi? Assuredly not.. By the Comm'on Law itself, the free navigation or use of the river for the public, as an easement was established.
    These stipulations, therefore, would have been unnecessary, were it not that the Mississippi and its tributaries run through different States, and these States, claiming the right of soil and jurisdiction, might by law block up the river, or impede its free navigation, by conditions and restrictions imposed on the citizens of other States, &c. Hence, to provide against any attempt of the kind, these stipulations were introduced : they were prohibitory to the States. But the right of the individual owner to the soil to the middle of the river, subject to the public right of passage, was never intended to be altered.
    Whe word “ navigation,” in this act, was meant in its common acceptation, that is, that the river should be free for the passage of boats, &c. The above is illustrated by the case from 3 Ohio Reports, before referred to.
    In the ordinance of Congress of 1787, it is declared to be “a fundamental principle, to remain forever unalterable, that the navigable waters leading into the Mississippi shall be common highways, and forever free.” It was held in the above case from Ohio, that this did not alter the Common Law rule in regard to the rights of the individual owners of the banks.
    The case of the New Jersey oyster case (16 Peters, 406), cited on the other side, has no application. In that case, the question arose as to individual rights, hounded by tide water, and the case was no doubt correctly decided.
    
      2. The next question is, has the owner of the land to the middle of the stream the right to charge wharfage or riparian rent, when the owner of a flat fixes his boat upon it, and remains permanently there, for the purpose of retailing goods from his boat.
    It is not necessary to examine the question how far he would have a right to charge wharfage to boats which merely stop to load or unload on their passage. But the question here is, whether the owner of a flat-boat, who is not navigating the river, but who builds his boat or forces it on his ground, can use it for years, without paying for it, upon the ground that the river is navigable, &c.
    The river in such cases is not used for the purposes of a highway, but a fixed abode is established on the land-of Reading, with notice given to them by Reading, that if they did so, they would have to pay him a certain sum, named by him.
    Admitting, for the sake of argument, that in passing up and down the river, and whilst using it as a highway, that the owner of the banks could make no charge for landing, &c., does it therefore follow, that the owner of a house or boat may use his soil, not for the purpose of navigation, but for a fixed and stationary purpose ? To navigate the river, means to pass up and. down it in boats, &c. See Webster’s Dictionary, word “Navigable.'” The right therefore reserved in the Acts of Congress, treaties, &c., to navigate the river, and to use it as a highway, surely cannot confer a right to the use of the bed of the river for years, as a place to float about to sell goods in.
    But the law we think is settled, that the owner of the land has a right to charge a moderate wharfage or riparian rent. 13 Wend. Rep. 290, 291. The law in' respect to public highways and to fresh water rivers is the same, and the analogy is perfect as regards the soil. The owner is 'entitled to the freehold and all the profits ; may maintain ejectment, tresspass, &c., subject only to the right of passage in the public. 3 Kent, 432, and authorities cited.
    In the case of the President and Selectmen of Natchez, v. ■-, decided this term, the same principles are recognized, as the owner of the land recovered the wharfage received by the corporation, &c.
    3. It is said this action for use and occupation will not lie. This action is brought for the wharfage due, or riparian rent; and, independent of the ordinary case of landlord and tenant, may be sustained. 13 Wend. 290, 291 ; 3 Kent, 432. But why may not this action be maintained when the occupation is by consent of the owner ? It was formerly held this action would not lie, except upon an express promise to pay ; but the modern authorities, especially in the American Courts, is, that when one man occupies the land of another, with permission of the owner, the law will infer or imply assurance to'pay for its use. 4 Day’s Rep. 228 ; 1 Wash. 199 ; 3 Serg. & Rawle, 500 ; 1 Munford, 407; 7 J. J. Marsh. 6 ; 2 Gill & Johns. 326 ; 2 Aiken’s Rep. 258 ; 13 John. Rep. 240 ; 4 H. & Munford, 161.
    
      The agreement of facts admits ownership and boundary ; it admits the occupation of the land below high water mark ; it admits, that Reading published the terms upon which all who chose to occupy his land or lot fronting on the river should pay, and it admits that Harrison knew this when he entered, but says there was no special contract. It is submitted, that when A. owns land, and is in possession, and says that all who take possession of it for a particular purpose, shall pay him so much ; that a person who thus takes possession, knowing the terms, impliedly agrees to pay.
    It is true the agreed case says, that Harrison, during his occupancy, claimed the right to occupy and own the land, as an incident to the navigation of the river. He cannot mentally reserve this. Nor can he, after he enters under an express or implied agreement, when he thus gets into possession, dispute the right of the owner to recover.
    4. The Court did not erf in rejecting the deeds offered, to show title in some one else. Reading went to trial upon the agreement of facts, in which his ownership and right of possession was admitted ; as to third persons, he could not be prepared to meet the evidence ; the proposed evidence contradicted the agreed case, and in effect would be a substitute for an action of ejectment.
    5. Nor was there any error in refusing to grant the new trial. The agreed case admitted the ownership of the lots as above referred to, and also admitted the boundary to be' the Mississippi river ; the only question then, which can be raised on the agreed.case, is, whether the boundary extended to the middle of the river. The parties all knew the facts contained in the affidavits before the trial; they were inadmissible on the trial by reason of the agreement of facts. This agreement was entered into to prevent trouble in investigating title, &c., and to grant a new trial upon this ground, would in effect be to try an action of ejectment.
   Mr. Chief Justice Shaeket

delivered the opinion of the Court.

Reading instituted this suit in the Court below, to recover the sum of $ 119, for the use and occupation of a portion of the bank of the Mississippi river, in front of the city of Vicksburg. The parties went to trial on an agreed state of facts, by which the ownership of Reading is admitted as bounded on the west by the Mississippi river, and the occupancy of the defendants below high water mark with their flat boats, by tying their boats, and delivering goods from a platform extended to the shore, for the number of days charged in the declaration — one hundred and nineteen. By this agreement it is admitted that Reading had published his rates for the use of his landing at the price of one dollar per day, and that the defendants below took possession, knowing the published terms, but without any special contract with Reading. The defendants claimed a right to occupy the bank as an incident to the free navigation of the Mississippi river. They were citizens of Ohio, and regular flat-boat traders, and during their occupancy, always refused to pay Reading, on the ground that they had a right to use the bank of the river below high water mark.

The plaintiff below presented his case to the jury by reading the agreed state of facts, and thereupon the defendants offered to introduce deeds, and also parol evidence to prove the boundary of Vicksburg, and to prove the ownership of another individual in front of the boats above high water mark. This evidence was excluded. During the progress of the trial, certain charges were given in favor> of the plaintiff’s right, to which the defendants excepted ; and certain other charges, declaring the banks of the Mississippi to be a part of the common highway, and open to public use as an incident to navigation, were refused.

The assignment of errors presents, in substance, two questions. First, did the Court err in excluding evidence tending to vary and contradict the agreed state of facts ; and, second, has the owner of the bank of the Mississippi river a right to recover for use and occupation, or riparian rent, for the use of the bank below high water mark, or is it subject to the unrestricted use of persons navigating the Mississippi.

The first point seems to require but a passing remark. When parties to a suit agree upon the facts of the case, and for the purpose of using that agreement as evidence, reduce it to writing, they are concluded by it, as far as it goes. No evidence to vary or contradict it can be admitted, for this would be taking the other party by surprise. If this evidence had been admitted, and the verdict had been different, Reading might well have complained of surprise. The object and the effect of the rejected evidence, was materially to change the facts agreed on, and it was therefore very properly excluded.

We come now to inquire into the relative rights of riparian owners on the Mississippi, and of the public. This is the main point in the controversy, and on it the counsel for the plaintiffs in error have addressed us a very ingenious argument, evincive of great research, in favor of the rights of their clients. In support of this position, we are referred to the laws of nature and of nations ; the common law ; the French and Spanish laws ; and treaties and acts of Congress. The argument is founded, however, mainly on the civil or French law, on the ground that the Mississippi was first discovered by subjects of France, and, from its source to its mouth, became thereby subject to her dominion. Amidst this multitude of authority, derived from codes differing essentially in their provisions, it becomes important, in the outset, to determine what law is to furnish the rule for our decision. A glance at a few prominent features in the early history of this country, will enable us, as we think, to settle this point without much difficulty. France, although not the first to discover, was the first owner, by appropriations of the Mississippi and all the territory of its tributaries. By treaty with Great Britain, in 1763, to which Spain was a party, France ceded to Great Britain all her territory east of the Mississippi and north of the river Iberville, and the two powers fixed the boundary between them, “by a line drawn along the middle of the river Mississippi, from its source to the river Iberville, and from thence by a line drawn along the middle of this river, and the lakes Maure-pas and Pontchartrain, to the sea.” Great Britain continued to be the owner of the ceded territory until the 30th of November, 1782, when, by a provisional treaty, she acknowledged the independence of the United States, bounded on the west, above the 31st degree of north latitude, by a line drawn along the middle of the Mississippi river, corresponding exactly with the boundary in the treaty with France. This provisional treaty became operative by reason of the treaty of peace between France and Great Britain, and all its provisions were incorporated in the definitive treaty of peace, concluded on the 3d of September, 1783. Great Britain, at the same time, ceded West Florida, which, by that government, had been extended to the mouth of the Yazoo-, to Spain ; but as, by the provisional treaty, the southern boundary of the United States had been fixed at the 31st degree of north latitude, Spain acquired nothing above that parallel, as Great Britain had previously disposed of it. ' Thus, the United States succeeded to all the territory east of a line drawn along the middle of the Mississippi, above the 31st degree of latitude. This left Louisiana bounded on the east by the same line, the middle of the river, above the river Iberville, as it had been established by the treaty of 1763 ; and by that boundary it was ceded by France to Spain, and by Spain retroceded to France, and ultimately, by France, in 1803, to the United States ; so that no variation of this line, up to that time, 'had taken place. In 1798, whilst this' was still the line between the United States and the province of Louisiana, Congress established the Mississippi Territory, bounding it on the west “by the Mississippi.” Laws of the U. S., vol. iii. p. 39. And, in 1817, Mississippi was admitted into the Union, with its boundary up the Mississippi river, from the 31st degree of north latitude to the southern point of Tennessee on that river. Laws of the U. S., vol. vi. pp. 175, 356. In 1804, Louisiana was divided into two territories; the Territory of Orleans to embrace all the territory which had been ceded by France, west of the Mississippi below the 33d degree of north latitude,-and east of the same river below the 31st'flegree. Laws of the U.’ S., vol. iii. p. 60S. Louisiana was admitted into .the Union with her boundary running “down the said river ” (the Mississippi). Laws of the U. S., vol. iv. p.' 402. In defining the territorial and state boundaries, Congress adopted the more general mode of defining boundary on water-courses, and omitted to designate the middle of the river as the limit, but, as we shall endeavor to show, did not thereby change the original boundary. When the Mississippi Territory was organized, in 1798, the ordinance, which had been adopted for the government of the NorthWestern Territory, was extended to the Mississippi Territory. Laws of the U. S., vol. iii. p. 39. In that ordinance, we find this provision : “ The inhabitants of said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury ; of a proportionate representation of the people in the legislature, and of judicial proceedings according t the course of the Common .Law.” Laws of the U. S., vol. i. p. 475. Thus, we find the Common Law adopted for the government of the Mississippi Territory, and, by that means, all other systems of law virtually abolished. We have been thus particular, in order to meet fully the arguments of counsel, and also to show the true boundary between the common and civil law. The middle of the river being the dividing line, it follows that all grants, public as well as private, within the Common Law jurisdiction, must be construed by the rules of the.Common Law. We have said that Congress omitted to mention the middle of the river, but bounded the territory “by the Mississippi.” The Common Law, by construction, extends grants, bounded “ by,” or “ on,” or “ along ” a fresh water stream, to the thread of the stream. The Mississippi Territory, by this rule, extended to the middle of the river. All west of that line was owned by a foreign power, and we cannot suppose that Congress, under the circumstances, designed to limit the jurisdiction of the territory by the bank of the river. Having shown then that the Common Law .was adopted for the government of the Mississippi Territory, and that the line of the territory was the middle of the river, it follows, that the rights of riparian owners on the east shore, must be determined by the Common Law. We thus dispose of so much of the argument as invokes the rules of the Civil Law.

But say the counsel, by the Common Law also their clients were justified in the use of the banks of the river. A passage from Bracton is relied on as high authority, which is as follows : “ But all rivers and ports are public. Hence the right of fishing in a port or in rivers is common. By the law of nations, the use of the banks also is as public as the rivers ; therefore all persons are at equal liberty to land their vessels, unload them, and fasten their cables to the trees upon the banks, as to navigate the fiver* itself; still the banks of the river are the property of those who possess the land adjoining, and therefore the trees which grow upon them are the property of the same persons.”

It is said, that in accordance with this doctrine, several decisions have, been made in England. The case of Warren v. Mathews, referred to, only decides that every subject may fish in a navigable river, as well as in the sea. The case of Ward v. Creswell, decides in effect the same thing, and so does the case of Carter v. Murcot. But there is no analogy between the right to fish in the sea or a navigable river, and a right to use the bank of a fresh water stream. In reference to riparian rights, the English decisions have not followed the doctrine of Bracton. Ball v. Herbert, 3 Durn. & East, 253, is a leading case. The question was as to the right of the public to a tow-path on the river Ouse, which was by the plea alleged to be a navigable river, where the tide ebbs and flows. Lord Kenyon said that such a right might be supported on the ground of long usage, but not as a Common Law right. He referred to Lord Hale’s treatise, De Jure Maris, &c., as containing the true doctrine of the Common Law, and concludes thus : “ Therefore on these authorities, on the silence in the books respecting this Common Law right, and on account of the extreme inconvenience to which individuals having lands adjoining the public rivers would be subject, I cannot bring my mind to say that the defendant’s justification can be supported.” Mr. Justice Ashhurst was of the same opinion. Mr. Justice Buller said, no such general usage existed, and thus commented on the passage from Bracton : “ Another authority cited, is the passage from Bracton, and quoted by Callis ; that plainly appears to have been taken from Justinian, and is only part of the Civil Law ; and whether or not that has been adopted by the Common Law, is to be seen by looking into our books, and there it is not to be found.” The case of Blundell v. Catrell, 5 Barn. & Ald. 91, must put this question at rest, so far as the English decisions can do so. That was trespass for using a part of the sea shore which had become private property, by passing over it with bathing machines between high and low water mark, to which the defendant pleaded the public right. The case was very fully considered by all the Judges of the King’s Bench. Mr. Justice Holroyd said the passage from Bracton was copied from the Civil Law, and added : But whatever may be found in the Civil Law upon this subject, and whatever may have been stated by some of our law writers from the Civil Law, or may be found to have dropped as dicta from some of our Judges, yet it appears, I think, that the Civil Law as applicable to this subject, differs from the Common Law of England ; that its principles have not only not been adopted into the Common Law, but are at variance with it, and are therefore no guide to us ; that the public right to the extent claimed in this case, is not only not found to be established by our law, but that the established principles of our law are inconsistent with it.” “ But further,” continued this Judge, such a general public right in all the king’s subjects, to use the sea shore for all such temporary purposes as they please, would be, I think, inconsistent with the nature of permanent private property, or with the sea shore becoming such private property.” He also gives unqualified, approbation to the treatise of Lord Hale, and shows that the only two cases which followed the doctrine of Bracton, were overruled in Ball v. Herbert. Mr. Justice Bayley also expressed his opinion as clearly against such Common Law right as that claimed. Chief Justice Abbott placed the question on its broadest foundation, and denied the existence of any such "right, even as a question of commerce. He said : As the waters of the sea are open to the use of all lawful purposes, it has been contended as a general proposition, that there must be an equally universal right of access to them for all such purposes over land like the present. But, in my opinion, there is no sufficient ground, either in authority or in reason, to support this general proposition. Commerce is a matter greatly favored in our law, by reason of the public and national benefits derived from it; but, even as to this favored matter, I have found no authority in the law of England to support such a proposition.”

We come, then, to the doctrine of Lord Hale, whose treatise, Be Jure JWaris, &c. we have seen, is, regarded as authority. He says, “ Fresh rivers of what kind soever, do, of common'right, belong to the owners of the soil adjacent.” He further says, “ There be some streams or rivers that are private, not only in propriety or ownership, but also in use, as little streams and rivers that are not a common passage for the king’s people. Again ; there be other rivers, as well fresh as salt, that are of common or public use for carriage of boats ■ or lighters. And these, whether they are fresh or salt, whether they flow and reflow or not, are prima facie publici juris, common highways for man or goods, or both, from one inland town to' 'another.” Whilst the learned author is explicit that even private rivers may be liable to a public servitude, he is silent as to the banks of such rivers being subject to a like servitude. This same learned author in another treatise, De Portibus Maris, says : “ Though A. may have the propriety of a creek or harbor, or navigable river, yet the king may grant there the liberty of a port1 to B. and so the interest of the propriety, and the interest of the franchise, several and divided, and in this no injury atall is done to A., for he hath what he had before, viz. the interest of the soil, and consequently theimprovement of the shore, and the liberty of fishing ; and as the creek was free for any one to pass in it against all but the king (for it was pub-lici juris as to the matter before), so now the king takes off that restraint, and by his license and charter, makes it free for all to come and unlade. Bub if A. hath the ripa or bank of the port, the king may not grant a liberty to unlade upon that bank or ripa without, his consent, unless custom had made the liberty thereof free to all, as in many places it is ; for that would be a prejudice to the private interest of A., which may not be taken from him without his consent.'”

Thus we perceive that he gives no countenance to the notion that the public have a right to the use of a bank where it is private property, although the stream itself may be a public highway.

The. American decisions have generally conformed to the Common Law doctrine. Before we proceed to an examination of them, it is necessary to mark the distinction between a navigable river, and one which is not navigable, within the legal signification of that term, because many of the decisions seem to be based upon that distinction. The phrase u navigable river,” has a technical meaning in the Common Law. A river is navigable in the technical sense, as high up from its mouth as the tide flows. Angelí on Watercourses, 204,205. Above that it may be a common highway, subject to the use of the public for navigation according to the common acceptation of the term, but it is not technically a navigable river. The soil under a river which is navigable in the technical sense, does not belong to the riparian owners, but to the public. According to this author, a river may be regarded in three points of view ; first, when it is altogether private, as in the case of shallow streams ; secondly, when it is private property, but subject to public use-; and thirdly, when the use and property are both public ; and he mentions the Hudson as furnishing an example ; being private.in one part, subject to public use in another; and public property as high up as the tide flows.

In the case of Palmer v. Mulligan, Chancellor Kent held that the banks of the Hudson, above tide water, were private property, and subject to the exclusive appropriation of the owner, although the river was a common highway, and subject to the public servitude. The same doctrine prevailed in the case of Hooker v. Cummings, 20 J. Rep. 90; and in Ecc parte Jennings, 6 Cowen, 518. This question has recently undergone a very full examination in New York, and it was settled that the public have not the right to use and. occupy'the soil of an individual adjoining navigable waters, as a public landing, and place of deposit of property in its transit, against the will of the owner. Pearsall v. Post, 22 Wend. 425. The rule as laid down by Chancellor Kent is, that grants of land on rivers or along the same, 'above tide water, carry the exclusive right of the grantee to the middle of the stream, unless the grant clearly denotes an intention to stop at the edge of the stream ; and if the river is navigable for boats, the public have an easement therein, or right of passage as a highway. But the proprietors of the banks have a right to use the land and water, in any way not inconsistent with the easement, and it would require an exception in the grant, or a clear and unequivocal declaration, or immemorial usage, to limit the title of the owner to the edge of the river. 3 Kent, 427, 428.

In the case of Adams v. Pease, 2 Conn. Rep. 481, it was held ‘that the owner of the adjacent land had an exclusive right of fishing in the Connecticut river, above tide water, on the ground that the river was not navigable, and that he was therefore owner adfilum medium aquae. On the same principle was the case of Ingraham v. Wilkinson decided, 4 Pickering, 268, and also the Commonwealth v. Chapin, 5 Pickering, 199.

It seems that the Common Law rule admits of no modification in consequence of the magnitude of a river. On the Ohio river, which is certain!y one of the first magnitude, the Common Law prevails in regard to the rights of riparian proprietors. Lessee of McCulloch v. Aten, 2 Ohio Rep. 307; Lessee of Blanchard v. Porter, 11 Ohio Rep. 138. And in that State it has been adjudged that the ordinance of 1787, for the government of the North-Western Territory, which declares that the navigable waters leading into the Mississippi shall be common highways, and forever free, does not impair or abolish the Common Law principle, that he who owns the bank, owns to the middle of the river, subject to the easement of navigation. See 3 Kent’s Com. (5th ed.) 427, and notes.

In Missouri, it is true, this question has been decided differently in regard to the rights of riparian proprietors on the Mississippi. It was held in the case of O’Fallon v. Daggett, 4 Missouri Rep. 343, that the navigable rivers in that State are public highways, and that although the banks may be private property, yet that fishermen and navigators are entitled to use them in landing, in fastening, and in repairing their vessels, and for exposing their sales or merchandize ; yet this right was held to be a qualified one, and that such use could not lawfully be continued for several weeks ; that houses could not be built for the purpose of enabling navigators to repair their vessels. This case arose under a grant made to an individual by the Spanish government, whilst it was the owner of the territory, and it was decided exclusively on a passage in the Partidas, and the Louisiana decisions. It is therefore not authority in a case depending on the Common Law.

In Pennsylvania, too, the Courts have departed from the Common Law doctrine on this subject; but it is enough for us to say, that we do not feel warranted in following their example, unless such departure is justified by some general regulation of the Federal government, which is a point that remains to be considered, as counsel have insisted that by treaties and various acts of Congress the Mississippi river is made an exception to the rule.

By the provisional treaty with Great Britain, to which we have before referred, it was declared that the navigation of the Mississippi should forever remain free and open to the subjects of both nations. By the act admitting Louisiana into the Union, the Mississippi was declared to be a u common highway, and forever free” to the inhabitants of all the States. Public Land Laws, Part 1, p. 185.

By the act of the 3d of March, 1803, providing for the sale of the public lands south of the State of Tennessee, it is declared that all navigable rivers within the territory of the United States, south of the State of Tennessee, shall be deemed to be and remain public highways. Ib. 98. By the act providing for the sale of lands in Indiana Territory, it was provided that all the navigable rivers, creeks and waters w'ithin the Territory, should be deemed and remain public highways. Ib. 107. By the act providing for the adjustment of land claims in the territories of Orleans and Louisiana, it was provided that all navigable rivers and waters in the territories, should be, and forever remain, public highways. Ib. 195. By the act providing for the Missouri Territory, it is declared that the Mississippi and Missouri rivers, and the navigable waters flowing into them, shall be common highways, and forever free to the people of the territory, and of the United States, without any tax, duty, or impost therefor. Ib. 216. By the act providing for the admission of Mississippi into the Union, it is provided that the Mississippi river, and the navigable rivers and vvaters leading into the same, or into the Gulf of Mexico, shall be common highways,.and forever free to the citizens of the United States, without any tax, duty, impost, or toll therefor, imposed by said State. Ib. 286. And the same provision is inserted in the act providing for the admission of Alabama into the Union, in reference to the rivers in that State. Ib. 310. These several provisions do nothing more than secure the free navigation of the rivers and water-courses mentioned, to all the people of the United States. The rivers are declared to be public highways, free for the use of- all, without any tax, or duty for such use, to be imposed by the States. But in these provisions there is nothing which appropriates the banks to the like purposes. There are reservations of the rivers for public uses, but they contain no reservations of the banks ; and if Chancellor Kent is right in asserting that it requires an express exception in the grant, or some clear and unequivocal declaration to limit the title of the riparian owner, there is nothing in these acts which does so limit it. That such limitation might be made by general law, is undoubtedly true ; but it mast be expressed, or result necessarily from tbe nature of the*law. These acts, whilst they secure the public easement to the river itself, were mostly designed to limit the power of the States, by placing it out of their power to impose taxes, duties or imposts for the use of the navigation. A highway is a thoroughfare, common to all, whether it be on land or water, and tbe law with respect to public highways, and to fresh water rivers, is the same, as regards the right of soil. 3 Kent, 432. Congress has given no new capacities or incidents to these rivers, but has merely declared that the facilities afforded by the natural capacities of the rivers to the public, shall remain without interruption. It is by all these acts, in effect, declared that the navigation of navigable rivers shall be free to all without State interposition, or individual interruption. No principle of the Common Law is materially changed, either in regard to the rights of the public, or of the riparian owner. Or if these provisions do operate to produce any change, it can only extend to the bed of the river, and not to the banks above low water nyirk. In view of all these acts of Congress, it has been decided in Alabama, that in grants from the government to individuals, bounded on water-courses, there is an implied exception of the bed of a fresh water river, beyond low water mark. Bullock v. Wilson, 2 Porter’s Rep. 436. Supposing this to be the true doctrine, it does not alter this case, because tbe bank was used above low water mark.

The authorities cited establish the following conclusions : 1. That even the sea-shore, which is generally subject to public use below ordinary high water mark, is not subject to such use when it has become private property, such use being inconsistent with private right. 2. That there is a material difference between rivers which are navigable, and those which are not navigable, according to the Common Law meaning of the term. On rivers not navigable, the riparian proprietor, by construction of the Common Law, owns to the thread of the stream, unless restricted by the grant; and the bank being private property, subject to the exclusive appropriation of the owner, is not subject to the use óf the public, although the river itself be a public highway, the use of which may not be interrupted even by the owner. 3. That as the-bank cannot be used without the consent of the owner, he may require satisfaction, and if he has published his1 terms, which are known to any one using the bank, it amounts to an implied promise to pay. It is not necessary to say more than was said in the case in Alabama, that the riparian proprietors on the Mississippi own at least ’ to low water mark. By an application of these conclusions to the case at bar, it is plain that the plaintiffs in error are not entitled to judgment. They claim something more than a right to use the bank as an incident to navigation. They took possession and held it for four months, which was an interruption to navigation, and an actual appropriation of the bank to their private use, not justified even by the Civil Law.

The protection of the rights of the riparian owner, so far from being detrimental to navigation, is important to its perfect enjoyment. By this means safe wharves and landings are secured by the improvements put on the bank. If the. public has a right to use the'bank as an incident to navigation, every such wharf, and every improvement of the landing, would be in law a nuisance;

We are* not called on to say that the navigators of the Mississippi, may not, in cases of necessity, use the bank or fasten to the trees. As. a matter of convenience, too, this is often done, without objection on the part of the owner. Often it is for his advantage, but when it is not, there is generally no injury, or if there be any; it is so slight that no complaint is likely to be made. There is a salutary check against frivolous and vexatious suits.

The judgment must be affirmed.

Mr. Justice Claxton

delivered the following opinion..

I concur in the opinion of the Chief Justice in most respects, and in the conclusion in this particular cause. The plaintiffs in error could have no right to occupy the land of the defendant in error for so long a period without making compensation.

But I desire to reserve the expression of any opinion as to the right of persons navigating the Mississippi river to land when necessary to moor their vessels to the shore.

The free navigation of that river has been guaranteed in several different modes referred to in the opinion in chief. This unquestionable right carries with it all the means necessary for the accomplishment of the end. 1 Kent, 35. I should be unwilling, therefore, in this case, to say anything which could give countenance to the idea, that the right to land and moor vessels to the shore for purposes necessary to navigation, could be questioned or embarrassed by the owners of the bank. Probably there is jjut little cause for fear on this head, but it is not improper to guard against a possible contingency. The right to charge for the use of wharves, erected for the convenience of commerce and the benefit of navigation, depends on a different principle, and those who use them may be justly considered to have consented to pay for the increased facilities they afford.  