
    Wood et al. v. C., R. I. & P. R. Co.
    1. Riparian Rights: navigable river declared non-navigable: eeeect on boundaries. The owner of land bordering upon a navigable river owns only to high water mark, and an act of Congress declaring the river non-navigable does not have the effect to extend his fee to the center of the .stream, nor to entitle him to maintain an action to recover possession of the'land lying below high water mark from a railway-company, which began to occupy the same with its road-bed while the river was yet, in contemplation of law, navigable.
    
      Appeal from Wapello District Court.
    
    Thursday, March 22.
    Action to recover possession of certain land in the city of Ottumwa. The land in question is a part of the bed of the JDes Moines Eiver, between high and low water mark, on the north side. The defendant, and those under whom it claims, have maintained and operated a railroad across the land since 1859. When the land was first thus occupied, the Des Moines Eiver was, in contemplation of law, a navigable stream, and remained so until 1865, when by act of Congress it was declared non-navigable. Tbe plaintiffs are tbe owners of tbe land lying north of tbe river at tbe place in question, and extending to tbe river. There was a trial to a jury, and verdict and judgment were rendered for tbe defendant. The plaintiffs appeal.
    
      J. W. Dixon and H. B. Hender shott, for appellants.
    
      Stiles db Dathrop, for appellee.
   Adams, J.

Tbe road was constructed by tbe Keokuk, Eort Des Moines & Minnesota Eailway Company. Tbe defendant claims under it. Tbe river being a navigable stream at tbe time that company entered upon tbe land and constructed its road, its occupation was rightful, so far as the riparian proprietors were concerned, and remained so, at least, until tbe stream was declared non-navigable. So far we think that there is no reasonable ground for controversy. Tomlin v. Railroad Company, 32 Iowa, 106. During that time, at least, tbe riparian proprietors owned tbe fee only to high water mark. Tbe plaintiffs, then, cannot complain, unless -the act of Congress bad tbe effect to extend their rights. Tbe plaintiffs contend that it did have such effect by giving them tbe fee to tbe middle of the stream. The court held otherwise, giving an instruction in these words: “It is claimed by tbe plaintiffs that since said conveyances were executed (being those under which they claim), tbe said river has been, by act of Congress, declared non-navigable, and that tbe plaintiffs, by reason of their ownership upon the bank of that stream since said act was passed, own to tbe center of the stream. But upon this point tbe court instructs you that tbe said act of Congress, declaring tbe said river non-navigable, would not extend tbe former boundaries of tbe plaintiff’s land. When tbe said Wood received bis deed, it gave him no right beyond ordinary high water mark, and it was tbe same as though so expressed in tbe deed, and tbe said act of Congress would not have the legal effect to extend his boundaries as claimed by the plaintiffs, and the plaintiffs, claiming through him, and deriving their right from his title, are limited to high water mark.” The plaintiffs assign the giving of this instruction as error.

The plaintiffs contend that it is not true that the deed under which they claim gave their ancestor no right beyond high water mark. They contend that he had rights beyond high water mark as a riparian proprietor, and that, too, though the stream was navigable; citing Musser v. Hershey, 42 Iowa, 356; Railroad Company v. Schurmer, 7 Wall., 287; and Yotz v. Milwaukee, 10 Wall., 504. In the last case Miller, J., said: “This riparian right is property, and is valuable, and, though it must be enjoyed in due subjection to the rights of the public, it cannot be arbitrarily destroyed or impaired.”

Such, doubtless, is a fair expression of the law; but this is not the precise point upon which the controversy turns. It may not be quite correct, as the court below said, that Wood acquired no rights beyond high water mark. What the court meant, doubtless, was, that Wood acquired no rights as against the occupancy by the railroad company. This,-and this only, was it necessary to say, as preliminary to the further proposition that Wood acquired no right, subsequently, by the act of Congress. To this extent it is true that Wood acquired no right by his deed — Tomlin v. Railroad Company, above cited; and if the court went further, it relied upon an immaterial point, and the plaintiffs were not prejudiced.

The principal difficulty arises when we reach the question as to whether the act of Congress • conferred an additional right. The plaintiffs, in support of their position that it did, cite Lockwood v. Railroad Company, 37 Conn., 387. Rut that case involves only the principle of accretion, and change of boundary as consequent thereon. No such principle is involved in this case; nor have we a case .where the plaintiffs’ estate was at one time burdened by another which has since been extinguished. They claim an extension of boundary, but only as an incident to the act of Congress declaring the stream non-navigable. ¥e have been unable to discover any authority or principle upon which we could hold that the act had that effect. The case is somewhat like that of the vacation of a street. The boundary of the land abutting on the street is not changed. If the adjacent owner was the owner of the fee to the middle of the street, he would, of course, enjoy whatever benefit there might be in the extinguishment of the public easement. But if he was not the owner of such fee, the vacation of the street would not confer it.

In respect to a riparian proprietor, we think that this, and this only, can be said: While the stream is navigable, his riparian rights are subject to the public right of navigation; after it is declared non-navigable, they are not.,

Some other questions have been presented, but it is not material to determine them. Upon the undisputed facts, and with the view of the law which we have taken, we have to say that we think that the plaintiffs are not entitled to recover.

Affirmed.  