
    Hogg v. Beerman.
    1. Land covered by the water of a navigable land locked bay, or harbor, connected with Lake Brie, may be held by private ownership, subject to the public rights of navigation and of fishery, provided the holder derives his title from an express grant made, or sanctioned, by the United States.
    2. Where a petition in a civil action prays for equitable partition of real estate and an account of rents and profits, an answer denying plaintiff’s entire title does not oust the court of jurisdiction. Perry v. Bichardson, 27 Ohio St., 110, approved and followed.
    3. When a grantee enters under a deed describing his estate as a tenancy in common with others, his possession will be presumed to be not adverse to the owners of the other undivided interests, until, by unmistakable acts or declarations, of which his co-tenants had, or ought to have taken, notice he claims the entire ownership.
    4. Where the record properly presents the entire evidence in the case, and, giving full faith and credit to all of the evidence for the defense, the plaintiff is entitled to a decree, the court may grant it, notwithstanding a referee before whom the case was heard reported that the petition should be dismissed.
    Appeal. Reserved in the District Court of Ottawa County.
    In the township of Danbury, Ottawa County, Ohio, is a triangular body of water named “East Harbor.7’ It is separated from Lake Erie partly by a narrow strip of land, described in a survey made in 1808, thus: “The dike, or gravel bar, between the lake and marsh is from six to twelve rods wide, and about eight feet high,” and partly by an island similar to the “dike” in composition, width and height. The island is a little more than two miles long; the “ dike ” about one mile.
    The dike runs nearly west from the main land; the island runs northwesterly. Between dike and island is an inlet from the lake, about six rods wide and about eighteen feet deep. The western end of the island curves to the west and south, and there a narrow water passage connects “East Harbor” with another like body called West Harbor. At the extremity of the island, another “inlet” connects West Harbor with the lake. In this case “ East Harbor ” is thus described:
    The body of water is about two miles long east and west, and at the widest point is two miles north and south. It is an irregular triangular shape. The water varies in depth and rises and falls with the water in the lake.
    There is a channel or current extending westerly from the mouth of East Channel, through about the central part of the harbor and northerly to West Harbor. The water is from five to ten feet deep in this channel, and increases in depth as it nears the mouth, and decreases in depth towards the shores on either side. The average depth of water in East Harbor is about six feet. Unaffected by the wind the current in the channel would be out and towards the lake all the time.
    Boats drawing from four to six feet of water have entered East Harbor frequently through East Channel outlet, and occasionally through West Channel, and loaded wood, timber and sand.
    The shore around the greater part of East Harbor is well defined, and is not subject to overflow by the rising of the water in the lake or harbor, except at the west end where the harbor ends in a marsh, and a rise in water of a foot would cover several acres.
    . Wild rice and rushes grow up over most of the harbor, excepting in the channels. Wild rice will grow in water six feet deep. The bottom is muddy.
    The water has been used for fishing purposes in spring and fall, and even in winter through the ice, and for hunting and trapping, and has been generally considered by most people in that neighborhood, to be public and common to all; nor has any person been interfered with in fishing or hunting, or prohibited therefrom by any claimants.
    Danbury township lies within “the Western Reserve.” On September 13, A. d. 1786, Connecticut, by deed, ceded to the United States all its claim to both territory and jurisdiction west of a line drawn from a point in north latitude 41°, one hundred and twenty miles west of the west line of Pennsylvania, due north to the national boundary in Lake Erie. On the next day the old Congress accepted this deed, impliedly recognizing Connecticut’s title east of the-line so drawn.
    In A. D. 1792, Connecticut granted to the people who had suffered loss by the incursions of the British troops during the Revolutionary war, a half million acres of land, bounded on the north by the shore of Lake Erie, on the west by the west line of the Reserve thus drawn; on the south by the forty-first degree of north latitude, and extending far enough east to make up the half million acres. The state also directed a survey to be made at the expense of the grantees, to contain within its limits 500,000 acres, and for this purpose, a traverse was run along the shore of the lake. The grantees were then incorporated under the name of “ The Proprietors of the Half Million Acres of Land lying south of Lake Erie.” The land was laid out into townships and sections, and the Township of Danbury was described as follows: Bounded on the north and east by the shore of Lake Erie, southerly and easterly by the shore of Sandusky Bay, and on the west by the United States land. Section Two, which contains East Harbor, was described as bounded on the north by the shore of Lake Erie, on the east by Section One, on the south by Sandusky Bay, and on the west by the Third and Fourth Sections.
    
    
      In order to ascertain the proportions in which these lands should be held by the grantees, the loss of each individual was found in pounds, shillings and pence, and as considerable: time elapsed before partition was made, many of the sufferers assigned their claims, but instead of conveying any definite quantity of land, they simply conveyed values in pounds, shillings and pence. In this way many of the assignees acquired claims enough to locate an entire section, and the Classification Record shows that Section Two of Danbury Township was allotted to two men as the assignees of the original grantees. These men were. Henry Franklin and William Chappell. ...
    Franklin’s share of the losses was, ¿£809 7s. lid.
    Chappell’s “ “ “ . 534 19 1 .
    Total loss classified in Section Two, ¿£1344 7 0 This Section Two included all of the “Dike” except a small part of its east end; all of the island except about three acres at its northwest end; the greater part of East ■Harbor; about 25 acres of the eastern side of the small peninsula that lies west of the harbor, and all of the main peninsula between sections one and four. ■
    By the act of April- 28, A. D. 1800, Congress authorized the President “to execute and deliver letters patent in the name and on thé behalf of the United States, to the governor of the state of Connecticut, for the time being, for the use and benefit of the persons holding and claiming under the state of Connecticut, their heirs and assigns, forever, whereby all .the right, title, interest and estate of. the United States, to the soil of that tract of land ” * * * “including all that territory commonly called the Western Reserve of Connecticut and which was excepted by said state of Connecticut out of the cession by the said state heretofore made to the United States and accepted by a resolution of. Congress of .the fourteenth of September one thousand seven hundred and eighty-six.” The word soil was used for the purpose of showing that jurisdiction was not to be Conveyed. Connecticut was required to cede “jurisdiction”. to the United States. The state complied, and empowered its governor to accept the patent. Thus, while jurisdiction passed to the United States, ownership of soil — land and water — by express conveyance, sanctioned by the sovereign power, vested in the state, (represented by its governor) in trust for its grantees. The lines of the grant were defined with precision; the northwest corner being far out in Lake Erie, in latitude 42° 6'.
    With equal precision “ section two ” was aparted to Chappell and Franklin. It lay between the west line of section one and the east line of sections three and four, and between Sandusky Bay and “ the shore of Lake Erie,” and contained about 4120 acres. Its east and west lines were parallel running from Sandusky Bay to the main body of Lake- Erie. Actual surveys show that in the part of the section not covered by water, there are about 70 acres on the island; and about 3050 on the main land. Unless then the water of East Harbor, and the ground under it, be included, there is a deficiency of at least one thousand acres in the section. The actual area of the harbor is about 1145 acres.
    On the 19th day of January, 1811, Franklin conveyed all his interest in the section to three grantees: To James Stevens one-half, and to Isaac Ambler and James Skelding one-fourth each.
    On the 28th day of February, 1811, Chappell conveyed all his interest in the section to five grantees, to wit: Seymour Jarvis, Frederick Scofield, William King, Azariah Scofield and Josiah Lockwood, Jr.
    The section was then owned by these eight in common, and, while so owned, the tillable land was laid off in lots numbered from one to twenty. These lots do not extend to the Lake but are bounded on the north- by courses,, distances and monuments as shown by map and table.
    Afterwards they aparted the lots among themselves, leaving that portion of the section between the lots and the lake shore in common.
    Seymour Jarvis, one of the five grantees of Chappell, sold all his interest in the marsh to the other four grantees; and then Azariah Scofield, one of the five grantees of Chappell and one of the four grantees of Jarvis, conveyed all his interest in the marsh to James Skelding, one of the three grantees of Henrj'- Franklin, thus making Skelding the owner of one fourth of Franklin’s share of the marsh, and one fourth of Chappell’s share of the same.
    On the 6th day of October A. d. 1877, the heirs of James Skelding conveyed to Thomas Hogg the undivided one fourth — (the samé being all the interest owned by said James) of the part of section two (2) bounded on the north by “ the shore of Lake Erie, on the east by section one, on the south by lots 18, 14, 15,16, 17,18, 19 and 20, and on the west by section three.” The north line of said lots was about, the southern edge of the marsh.
    On October 30th, A. D., 1813, James Stevens conveyed to Benoni St. John, lots 8, 9 and 20, containing “about 400 acres,” and “ the remainder ” to make up six hundred acres was described as “ being holden in common by us, Isaac Ambler and others, also lying in said section.” Stevens’ share of the ground outside of lots 8, 9 and 20 was over 200 acres.
    On the 31st of March, 1836, the heirs of St. John, by the same description conveyed to E. Cooke and others, who secured the unpaid purchase money by a mortgage. This mortgage was foreclosed, (mortgagors and mortgagees being the only parties to the action,) and, about 1840, James B. St. John bought the mortgaged premises at sheriff’s sale, taking a deed with the same description. On January 23d, 1846, James B. St. John, by deed with same description, conveyed to Jacob Ramsdell. From 1849 down, so much of the island as lay in section two stood upon the tax duplicates of the township as about “72” acres, at first in name of Jacob Ramsdell and afterwards in the names of his heirs or grantees. On July 18th, 1846, Ramsdell quitclaimed to Edward J. Lockwood, so much of a certain interest conveyed by deed of James B. St. John and his wife to Jacob Ramsdell, bearing date January 13th, 1846, and recorded June 11th, 1846, in book B., pages 30 and 31, by S. H. Brown, recorder of Ottawa county, as lies east of lot No. 18 in the 3d section of Danbury and adjoining the same, containing about twenty-five acres, more or less, as survejmd by George W. Reilly, county surveyor of Ottawa county, on the lOfch of December, 1845, as by reference being had to said deed and survey, may more fully appear.
    Ramsdell exercised ownership as stated in the following quotation from the testimony of George Ramsdell: “ I am son of Jacob Ramsdell. Father claimed the island just as much as he did the farm he lived on. He said it was his. He claimed the whole of it. People used to go there to steal cedar, and father got Shanks to go on there to guard it and keep off trespassers. Father let Mr. Thompson go on and cut some hay there, some 33 to 37 years ago.- We always pastured it. Kept hogs and cattle there, and rented pasture there to others. The island or bar is adapted to pasture and to use for fishing. We used to cut wood there. Carsten Ahrens bought sand of us there to build his brick house. Mr. Jewett got permission of us to set out some grape cuttings there.”
    The heirs of Jacob Ramsdell made divers quitclaims. On the 10th of December, 1877, Thomas Hogg began a civil action, in Ottawa common pleas, against the heirs and grantees of Jacob Ramsdell, and the unknown heirs, grantees and devisees of Stevens, Ambler and others. His petition averred that plaintiff owned in fee simple one undivided fourth part of “All that part of said section two, (2) bounded on the north by the shore of Lake Erie, on the east by section one, (1) on the south by lots thirteen (13) to twenty, (20) inclusive, and on the west by the west line of said section two, (2) containing about fourteen hundred acres;” that Jacob Ramsdell in his life time claimed to own 78 acres; that in 1846 he had conveyed the 25 acres to Lockwood who had held adverse possession for more than twenty-one years; that Ramsdell’s heirs and their grantees claim the remaining 53 acres (of the 78); that the other defendants are entitled to shares in said premises. The prayer was to have plaintiff’s one'full and equal one fourth- part set off to him in severalty; that in so doing due regard may be had to the 25 acres of Lockwood, and for such other and further relief as may be right and proper. The heirs of Ramsdell and their grantees answered claiming title in themselves to the entire premises, denying plaintiff’s title, and setting up the 21 years’ statute of limitations.
    A reply traversed. all new matter in the answer. An amendment to the petition asked for an account of rents and profits by those defendants who had been in possession. To this said defendants answered thus: They deny the allegations of said amendment — except they admit that they have claimed and controlled so much of said premises as is capable of private ownership and occupation. And they aver that a good part of said premises as described in the petition consists of open and navigable waters, and is part of Lake Erie, being a mere arm .or bay thereof. And they pray that said petition and amendment be dismissed.
    Other defendants answered admitting the facts stated in the petition and asking that their shares might be aparted to them.
    The common pleas “dismissed the petition and amendment ” and rendered judgment for costs against the plaintiff. He appealed. The district court referred the case to E. B.. King, Esq., as referee. The case was heard before him and he found the facts to be as hereinbefore stated, and as matter of law reported thus:
    That the original survey of said Sufferers’ Land, and the - subsequent partition thereof, and the deeds from Chappell and Franklin and Schofield, and from Skelding’s heirs to' plaintiff, included, by the intention of all parties thereto, that portion of East Harbor and bar adjacent, which is now in controversy.
    I find that if East Harbor is capable of private ownership, the plaintiff is seized in fee, and entitled to an undivided one fourth (|-) part thereof.
    That since 1847 said bar or island, excepting that portion' in section three (3), has been in the possession of Jacob Ramsdell till his death, and since his death, of the defendants Pettibone and Beerman.
    That their possession has been- open, actual, notorious, distinct, hostile and adverse.
    And that the non-residence in Ohio of plaintiff’s grantors as herein before found, does not take the case out of the statute.
    I further find that East Harbor is a bay, arm or inlet of Lake Erie ; that it is not an inland river but a part of Lake Erie, and as such, the owners of land abutting thereon, are bounded bj1- the line at which the water usually stands when free from disturbing causes, and possess such riparian rights as are incident to such ownership, but have no title to or in the water of said harbor or land underneath.
    That the court has jurisdiction in this case upon the pleadings to hear and determine the interests and titles of each of the claimants to this harbor and bar, or any part thereof, and the jurisdiction of the court is not ousted by the fact that the defendants in their answer deny that plaintiff has any title to the premises claimed by him.
    I therefore find that plaintiff is not entitled to the partition of said premises, as prayed for in his petition, and that he ought to take nothing by this action, but the same should be dismissed at plaintiff’s costs.
    The plaintiff moved before the referee for a new trial, and took a proper bill- of exceptions showing all the evidence. He also filed, in court, exceptions to the report. The defendants, heirs of Ramsdell and their grantees, made no motion for a new trial; took no bill of exceptions; but filed in court exceptions to certain rulings and findings of the referee.
    Both sides moved the court to set aside the report, and the court “being of opinion that difficult and important questions arise in the case to be determined,” reserved the cause for decision by the supreme court.
    
      E. B. Sadler and T. L. Magers for plaintiff in error.
    
      1. The land described in the petition is capable of private ownership. Sloan v. Biemeller, 34 Ohio St., 492; Gavitt v. Chambers, 3 Ohio, 496; Lamb v. Ricketts, 11 Id., 311; Walker v. Board Public Works, 16 Id., 544; June v. Purcell, 36 Ohio St., 396; State v. Shannon, Id., 423.
    A grant of land by government is tantamount to a conveyance. 3 Wash. Real Prop. (3d ed.), 173; Angelí on Water Courses, §§ 5, 6, 43.
    The referee found that the channel was in reality a water course. This brings it within Gavitt v. Chambers, 3 Ohio, 496; Lamb v. Ricketts, 11 Id., 311; Walker v. Board of Public Works, 16 Id., 544; June v. Purcell, 36 Ohio St., 396; State v. Shannon, Id., 423.
    The tract in controversy was included in the half million acres grant by the State of Connecticut. A traverse (see 13 Ohio, 431), was made of the lake shore, and was run for the purpose of fixing this eastern boundary of the grant, and it shows on its face that this tract is included in said grant.
    2. The answering defendants are not in adverse possession. 3 Washburn on Real Property (3d ed.), 123, 126, 566; Humphries v. Huffman, 33 Ohio St., 395; McNeely v. Langan, 22 Id., 37; Yetzer v. Thoman, 17 Id., 130; Lessee of Paine v. Skinner, 8 Ohio, 166; Youngs v. Heffner, 36 Ohio St., 282.
    3. The jurisdiction of the court is not ousted by the plea of adverse possession in the defendants. Perry v. Richardson, 27 Ohio St., 110.
    
      John M. Lemmon for defendant in error.
    1. The defense of adverse possession ousts the jurisdiction of the court in a suit for partition. Freeman on Cotenancy and Partition, § 502; Tatler v. Wiseman, 2 Ohio St., 207; Penrod v. Danner, 19 Ohio, 218.
    The question in this case is a question of title. The defendants have a right to have this question tried by a jury. Rev. Stats., § 5130; Ellithorpe v. Bush, 17 Ohio, 72.
    
      2. As to adverse possession:
    The acts of Eamsdell were sufficient to set the statute of limitations running against the world. Clark v. Vaughan, 3 Conn., 191; Freeman on Cotenancy, §§ 221, 229, 238; Prescott v. Nevin, 4 Mason, 330; Ewing v. Burnett, 11 Peters, 52-3; Clancey v. Handlette, 39 Me., 451; Turner v. Hall, 6 Mo., 271; Angell Limitations, §§ 390, 394, 397, 400; Yetzer v. Thoman, 17 Ohio St., 130; Clark v. Potter, 32 Id., 49; Young v. Heffner, 36 Id., 332; Bolton v. Hamilton, 2 W. & S., 299; 3 Metcalf, 101; 9 Cowen, 24. As to visible boundaries, see Angell, §§ 392, 398, 399; 11 Pet., 53 ; 10 Id., 442; 6 Id., 513. As to disseizin by cotenant, see 36 Ohio St., 332; Freeman’s Cotenancy, § 221; Frederick v. Gray, 10 S. & R., 188.
    3. As to boundary: The plaintiff’s title, if he has any, only extends to high water-mark.
    The uniform doctrine in the United States is that lands bordering upon a bay or lake or upon an arm or constituent part of a lake, extends to the high water-mark or to the water’s edge. Sloane v. Biemiller, 34 Ohio St., 492 ; Dela-plaine v. R. R., 42 Wis., 219; Diedrick v. Ry. Co., Id., 248; Leaman v. Smith, 24 Ill., 521; Fletcher v. Phelps, 28 Vt., 257; Tyler on Boundaries, 64, 66, &c.; The C. & St. L. R. R. Co. v. Valentine, 19 Barb., 489-491; Canal Com's. v. People, 5 Wend., 423-447; Hathorn v. Stinson, 1 Fairf. (Me.), 238; State v. Gilmanton, 9 N. H., 461; West Roxbury v. Stoddard, 7 Allen, 167; Wood v. Kellog, 30 Me., 47; U. S. v. Pachee, 2 Wall., 587; 16 Cow., 545, note citing Hale’s de jure Maris; Waterman v. Johnson, 13 Pick., 261; 43 N. H., 578; Austin v. R. R. Co., 45 Vt., 215; Wheeler v. Spinola, 54 N. Y., 377-384, is a good case; Angell Wat., 340, and cases cited.
    And this rule as to lakes applies to arms of the lake— to this harbor. Fletcher v. Phelps, 28 Vt., 257; Dillingham v. Smith, 30 Me., 370; Tyler Boundaries, 69; Robinson v. White, 42 Maine, 209; 3 Kent, 427, note b.; Id., 429, note b.; see Rice v. Ruddeman, 10 Mich., 125; Hooker v. 
      Cummings, 20 John., 90; Marshall v. U. S. Nav. Co., 3 B. & S., 732 (213 E. C. L.) ; Mariver v. Shultz, 13 Wis., 692; Cortilyon v. Brundt, 2 John., 357; Fishing, etc., 1 Kent, 489; Houck on Rivers, 247; Rogers v. Jones, 1 Wend., 237; Martin v. Woodell, 16 Pet., 369.
    But it is claimed a traverse was run by somebody, by whose or by what authority does not appear, making the shore of Lake Erie out into the lake as far as north side of this sand bar or island.
    This purports to be a “traverse of the lake west of the outlet of Sandusky Bay. It is not a meander, nor does it mention such a thing as the shore of Lake Erie.
    Counsel for plaintiff attempt to prove this body of -water is subject to private ownership by showing that the “ traverse ” of the shore of Lake Erie includes it.
    The answer is, first, a surveyor cannot make land of water, nor by including an arm or bay of the lake as land; second, this same traverse includes Sandusky Bay as land.
    Let us recur to the plain law of common sense.
    What does shore mean? Simply where the land and water meet. The shore of Lake Erie must necessarily be continuous. But we are asked to admit that here a shore means an arbitrary line crossing two wide deep channels, leaving the main land and its well-defined bank — in short that it does not mean what everybody understands shore to signify. ■
    If the meandered line of a-lake or pond and the actual water line differ, the latter is the true line of a lot bounded in terms by the meandered line. Boorman v. Sunnucks, 45 Wis., 234, 243; R. R. Co. v. Schurmier, 7 Wall., 272, 286; Wright v. Day, 33 Wis., 260; Jones v. Pettibone, 2 Id., 308.
    The shore, we are told, is that portion of the land adjacent to the sea (or lake) that is between ordinary high water and low water-mark. Hale de jure Maris, 12; Hall on Sea Shore, 8; Tyler on Boundaries, 33 to 35 ; 6 Mass.* 435, 439; 3 Plow., 212. ' .
    
      
      H. & L. H. Goodwin, in reply,
    on the question of boundary cited, in addition to the authorities cited by co-counsel, Rice v. Ruddiman, 10 Mich., 126; Lorman v. Benson, 8 Mich., 32, and urged that it makes very little difference, for present purposes, whether it was accurate or not. It was to “ run eastwardly along the shore of the lake, taking all the indents of the same,” and it was to be a boundary of the lirelands, and it was. The half-million acres was included in a space, bounded by that traverse or the traverse made by Ruggles as one of its lines. And it “ was agreed between the two companies that the waters of San-dusky Bay should not be included.”
    Counsel for defendant claims that this same traverse includes Sandusky Bay as land.
    This is a mistake. Before any survey was made they settled that “ the waters of Sandusky Bay should not be included as land.” See 13 Ohio, 431.
    Judge Burchard says that this survey (of Ruggles), was “approved and acted upon by the directors.”
    It is enough for us to know that a map was made, “upon which is stated the area of each township and fraction,” and making a traverse on the north line of the section. See 13 Ohio, 443 and 444.
    It was returned as part of Ruggles’s Survey, and that survey was made “ to settle what should be deemed land and what the waters of Sandusky Bay.” This map showed where the shore of the lake was and that there was “ marsh ” between that and the north line of the lots.
    We at this day must conclude that the traverse settles the boundaries of the southern shore of Lake Erie.
    It seems to us that it is entirely unimportant who run this traverse, whether it was run- by Ruggles or anybody else. It was certainly the northern boundary of the section, and must have been supposed, at the time, to be the south and west shore of the lake. And we can see no reason, why the owners of the lots, (if the original proprietors, Franklin & Chappell had made no other transfer of it,) would not be entitled to it by running their lines to the lake shore, in accordance with the rules laid down in Clark v. Campau, 19 Mich., 325.
    We admit the exclusive right of access to and from the lake in front of his land belongs to the riparian owner. But the question remains, where is the bank of the lake in reference to this land ? See Delaplaine v. The C. & N. & W. Ry. Co., 42 Wis., 225; Barney v. Keokuk, 4 Otto, 324.
    The state of Ohio has never claimed any right to this land, but has left it to the riparian proprietors to control it as they see fit.
   Granger, C. J.

Did the denial of plaintiff’s title oust the jurisdiction of the court? The claim that it did is based upon the theory that the issue so made is only triable by a jury. But equity courts have long exercised the power to decide finally upon the right of adverse claimants to real estate, where- the nature of the controversy properly called for the interference of a chancellor. A bill to establish and enforce a trust gave him jurisdiction to hear and determine its existence and extent, and to enforce it, in a proper case, by compelling a conveyance- by the defendant as trustee, notwithstanding his answer denied the entire title of the plaintiff. In this class of cases, as well as in a number of others, the fact that the decision of a judge, without a jury, might divest one in possession of the whole estate, does not affect the jurisdiction. The principle controlling is well known: where a party cannot have adequate and complete relief at law, he may apply in equity; and the chancellor, taking jurisdiction, retains it so far as may be necessary to furnish relief adequate and complete. A careful consideration of the position and relations of tenants in common of realty will satisfy the mind, that when a cotenant has gone into possession and refuses to recognize the title of the owners of the other undivided shares, an ordinary suit at law will not furnish to them adequate and complete relief. In the Ohio statutory proceeding for partition the court could not exercise chancery or equity powers, and was limited to the mode and extent provided by the statute. There would seem to be good reason for holding that those statutory powers could only be exercised on behalf of parties whose title at law was not disputed. But a civil action seeking equitable partition, together with an account of rents and profits, properly invokes the ordinary chancery powers of the court, and therefore upon the principle hereinbefore named, an answer denying plaintiffs title could not oust the jurisdiction. So it was well held in Perry v. Richardson, 27 Ohio St., 110. And the referee was right in so holding in this case.

Is East Harbor capable of private ownership ? An absolute sovereign, holding both ownership and jurisdiction of land and water, may vest in a private grantee such portions of either, as the grantor may determine. A sovereign whose powers are limited by constitutional provisions may do the like, so far as the grant does not contravene any constitutional provision or limitation. So long as navigable waters are left free to the public, for unembarrassed passages to and fro, we know of no reason why'the United States, or any state, holding ownership and jurisdiction of land and water, may not vest in a private grantee such a body of land, marsh and water as “ East Harbor.” History is full of instances of the exercise of such power by governments, and instances in which the courts have protected such a grantee against intrusion are not rare.

The ocean, with its gulfs and bays, belongs to no nation. Jurisdiction is allowed to such a distance from shore as the protection of that shore requires. This distance was fixed as a marine league at a time when no gun could force a ball farther. But over inland waters the nations in which they lie may hold, both as sovereigns and as proprietors. A proprietor may convey all his rights to a grantee unless forbidden by some law to which he is subject. No one not possessed of some right in the thing granted should be heard in objection. Where the grantor is the government, the thing granted government property held by absolute title, and no use of the thing granted to which the public is entitled is taken away, we see no reason for denying to the grantee ownership of the thing granted. In Lorman v. Benson, 8 Mich., 32, Judge Campbell, speaking of Detroit river, says: “ Applying the principles of the common law to the tideless stream in question, we do not conceive what public interests would be subserved by placing it on the footing of tidewaters, when the rules applying to public fresh water streams provide amply for every common easement. The right of navigation, to which all others are subservient, is in no way injured or abridged by this holding, and the necessities of wharves, and other conveniences, which could not be made available at all in such a stream as this, unless owned by the riparian proprietor (because not accessible except over his grounds), would be an inducement to modify the common law, were it otherwise, rather than change it as it is now. * * * And we have no difficulty in holding that the plaintiff is entitled to every beneficial use of the property in question which can be exercised with a due regard to the common easement. The cutting of ice is the exercise of a valuable privilege, in securing that which has become stationary on the freehold, and we conceive of no reason which would'justify a denial of it.”

In Rice v. Ruddiman, 10 Mich, 139, speaking of lake Muskegon, the court, after stating that the real question is not whether the outward limits of private ownership in the lake can be defined with precision, say, “But if the water continues so shallow as to render the lands under it susceptible of beneficial private use to the centre line of this narrow lake, then I have no hesitation, in saying that I think the riparian ownership extends to such centre line. * * * If the water becomes so deep * * * as to render the lands under it incapable of such individual use, the question of ownership beyond where it is available for such purpose becomes as barren as the use itself, and is of no practical importance whatever.

In Delaplain v. Railway Co., 42 Wis., 225, the court say: “ The question as to the ownership of the soil under the water, is one which each state is. at liberty to determine for itself, in accordance with its views of local law and public policy; and if it chooses to concede the right of the riparian owner to the centre of the stream, it is not for others to raise objections.”

In Barney v. Keokuk, 4 Otto, 338, the court say: “ If they (the states) choose to resign to the riparian proprietor, rights which properly belong to them in their sovereign capacity, it is not for others to raise objections.”

In Gavitt v. Chambers, 3 Ohio, 497, the court said: “It is, we conceive, vitally essential to the public peace, and to individual security, that there should be distinct and acknowledged legal owners for both the land and water of the country. This seems to have been the principle upon which the common law doctrine was originally settled; that where a stream was not subject to the ebb and flow of the tide, it should be deemed the property of the owners of the soil bounding upon its banks. The reason upon which this rule is founded, applies as strongly in this country as in any other. And no maxim of jurisprudence is of more universal application, than that where the reason is the same the law should be the same.”

In the cases referred to, the courts were dealing with implied grants, resulting from bounding the premises granted by a stream, or other water. What they say applies with additional force when the state owning both the water and the land, by express terms includes within its grant the territory covered by the water.

We think it was competent for Connecticut, with the-sanction of the United States, to vest in its private grantee-the ownership of East Harbor, subject to the public rights-of navigation and fishing. Did the state include East Harbor in its grant ?

As already stated it granted 500,000 acres to be bounded on the west by the west line of the “Reserve,” south by latitude 41°, north by “ the shore of Lake Erie,” and to extendi eastward for the quantity. What was “ the shore of Lake-Erie ” referred to in this grant? The same words described the north line of “ section two.” Was the northern edge of' island and dike “ the shore of Lake Erie ? ”

In one sense all of its bays and harbors are parts of the lake. In another sense the name “Lake Erie” embraces only the main water, excluding land-locked bays and harbors. In which sense were the words used as between the state and its grantees ?

The map shows that the island is a continuance of “ the Dike,” following the trend of the lake shore; that it is made an island because the action of the water has opened, or kept open, two narrow passages called “inlets.” A “ traverse ” of the lake shore was made prior to 1808, and its line followed the outer, or lake, side of both dike and island; the field notes styling East Harbor “ the marsh; ” and describing the eastern inlet as “ a good harbor for small boats and is about six rods wide, and deep.”

It does not appear that the state has ever asserted any ownership of the harbor since the grant of 1792. In the first partition its entire surface was certainly computed as part of section two, and aparted to Franklin and Chappell. Their deeds, as well as those of their grantees, assert title to “ the marsh.” Under these facts can there be doubt that the state used the words “ shore of Lake Erie ” in the popular sense ? Her grant was 500,000 acres. In measuring off that quantity, section two was computed as 4120 acres. ■ To now hold that the harbor was not granted is to deprive the grantees of the state of at least 1000 acres. To do so because the public has fished and hunted, ad libitem, on this marsh, or water, seems to us without warrant. As was held in Sloan v. Biemiller, 34 Ohio St., 514, the right of fishing in Lake Erie and its bays is as open to the public as if they were subject to the ebb and flow of the tide. No mere grant of the land covered by such waters destroys this public right. The private grantee of the land cannot do anything that will interfere with the channel, or hamper the passage of water craft through it. But he may, without the limits of the channel, erect fishing houses or such other structures as his means and the depth of water will permit; he may convert shallow portions into cranberry patches; he may fill up other parts and make solid ground. Although such action by him may lessen the water surface available for the fishing boats, the fishermen cannot complain. Such public right to fish always yields to any permanent improvement by the owner of the land on which the water rests.

How much of East Harbor can be advantageously used by its private owners the record does not tell. It is evident that parts of it may be so used. The private ownership subject to these public rights may be of small value. But it is of some value, and those who own it are entitled to have their respective shares set apart.

Jacob Ramsdell entered into possession of the island and of the 25 acres adjoining lot 18, of section three, in 1846, and he and his grantees have since held possession. But he entered under a deed which recited that so much of the premises granted as lay outside of lots 8, 9 and 20, was “ holden in common ” by his grantor with “ Isaac Ambler and others.”

He had full right to so enter. Having so entered, his possession continued referable to that deed; continued to be that of one tenant in common, until by unmistakable acts of which his co-tenants had notice, or of which it was their duty to take notice, he disclaimed to hold as a tenant in common, and asserted ownership of the entire estate. Until 1877, he and those claiming under him were the only owners resident near the premises. He collected some rents; granted some permits; drove off some trespassers; and paid the taxes. All these were acts that as tenant in common in possession he had a right to do; all of them were perfectly consistent with his being only a tenant in common. Until they were informed that he claimed to be sole owner, his co-tenants might well regard his receipt of rents as merely compensation for looking after the property; or as a matter to be settled and adjusted between them. There is no evidence tending to show that, prior to 1877, any co-tenant had any information that their title was disputed by any adverse claim. Ramsdell’s quitclaim of the 25 acres to Lockwood has resulted in enabling Lockwood by lapse of time to hold that tract as against plaintiff, but a court of equity will treat that as so much of Ramsdell’s share already set off to him, and diminish the quantity now to be set apart for his heirs and their grantees.

We see no reason to disturb the findings of fact made by the referee as stated separately from his “findings,” or conclusions of law. Giving to the evidence full faith and credit so far as it is favorable to the defense, we think it establishes the title of the plaintiff, and his right to an equitable partition and account. We sustain the exceptions to so much of the findings and conclusions of law set out in the report of the referee as conflict with our holding. The court, under section 5213 Revised Statutes, has the same powers in reviewing its decision as it has over the judgment of a trial court. Proceeding to render the judgment required by the record, we grant to the plaintiff a decree for such partition and account, and remand the cause to the common pleas for execution.

Judgment accordingly.  