
    Lessee of Blanchard v. Porter, Collins, et al.
    Land on the Ohio river, lying between high and low water mark, is not common to the public, but may be conveyed by the adjacent proprietor, whoso land bounds on the river.
    This is an action of ejectment, on an agreed statement of facts, from Brown county.
    It was agreed as follows:
    “ 1. That the plaintiff and defendants claim under one George Poage, whoso title covers the premises in controversy.
    “2. That the deed from the said Poage to the lessor of the plaintiff, dated October 19, 1838, includes the slope of the bank of the Ohio river, from low-water mark to the top of the bank.
    “3. That the deeds from said Poage, to the defendants, dated May 20, 1834, cover the ground to the top of said river bank where the deed to the plaintiff is bounded ; and that said deeds to the defendants, 1 save and except, and expressly reserve the break and slope of the bank of the river, and all ferries, and rights to have a ferry.’
    *“4. That the deed from said Poage to John G. Bacon, dated February 8, 1833, grants to said Bacon a right of ferry across said river, from Ferry street to the mouth of Eed Oak, between which two points, the slope of the bank in controversy lies.
    “ 5. That, in 1832, the defendants erected on the top of the bank, and within the hounds of their deeds, a steam saw-mill, and constructed, from said saw-mill, a logway, composed of timber, extending a short distance along the top of the bank, and then across the slope of the bank in question, obliquely, to the Ohio river.
    “ That, since that time, said logway has remained, and, with some little alterations, has been, and is now, used and occupied by the defendants for the purpose of drawing logs from the Ohio river up to said saw-mill. That the defendants, for the purpose of getting their lumber from said saw-mill to the Ohio river, have cut down the slope of the bank, and have constructed suitable fixtures thereon, for the purpose of hauling their logs from the river, and building flat-boats, etc., in which manner they are now occupying the said slope of the bank, embraced in plaintiff’s deed.
    “ It is also agireed that said logway passes partly across the mouth of one of the streets in the town of Ripley, and that said slope of the bank, in controversy, is suitable for the construction of warehouses, etc., by digging down the same.
    
      “ Third specification, so far as it refers to the deeds to the defendants, leaves the construction of said deeds to be decided by the court.”
    Hamer and Devore, for plaintiff:
    The facts in this case are agreed by counsel, and, it is conceived, there can be but little difficulty in determining the rights of the parties. The plaintiff’s deed, dated October 19, 1838, covers all the soil, from the top of the bank to low-water mark, on the margin of the Ohio river. No other conveyance interferes with his right to the land in controversy. The ^defendants’ deed conveys the soil to the top of the river bank, and reserves the “ break and slope,” between that point and the river. The deed to Bacon conveys a ferry-right, but does not interfere with the “soil and freehold” of the plaintiff. The most that Bacon could claim would be an easement; the right to embark and disembark his passengers at suitable places along the shore, between Ferry street and the mouth of Red Oak creek. This is neither an outstanding title, nor a previous conveyance of the premises in question.
    Do the defendants occupy the lands of the plaintiff? If so, by what authority? Is this occupancy consistent with the rights of the plaintiff? Determine these questions, and the case is settled.
    In regard to the first, there can be no doubt. It is admitted that they have a saw-mill on the top of the bank, and a logway reaching from the mill to the edge of the water, supported by permanent fixtures upon the soil. The whole slope of the bank is in their exclusive possession. It is a permanent, durable structure, built upon the soil of the plaintiff, and used, continually, for drawingup logs from the river to the mill. It is an appropriation of the slope of the river bank to their own use and benefit, which excludes the plaintiff, and all others, from the enjoyment of this portion of it, in any manner whatsoever. In addition to this, they have dug down the bank at another point, and established a yard for building boats. By what authority is this appropriation made? Not by their deed, for it does not reach beyond the “ break ” of the river bank. Not by prescription ; for the occupancy is too recent in its origin, and the facts too well known to allow of that defense. But it is said to be an occupancy under the “ ordinance for the government of the territory northwest of the Ohio river,” enacted by Congress in 1787. By that instrument, the Ohio river is made a highway, “ free and common ” to all the citizens of the United States, without any tax, duty, or impost therefor. .What is the extent of this provision, and how far does it interfere with the privileges of riparian proprietors, as they existed at common law? It simply secures *to the people of the United States the use of the river as a “ highway.” It gives them a right to the free and unobstructed navigation of the stream of the Ohio. This right Carrie's with it, as an incident to the grant, the right to land their watercrafts; to load and unload them; to secure them to the shore, by cables or otherwise, at convenient places; and to remain a reasonable time at such places, to accomplish any purpose legitimately connected with the business of navigating the river. But it conveys no right to the public, or to individuals, to dig down the soil of the adjacent proprietors; to remove the rocks and sand from the shore, which are valuable-for building; to establish boat-yards; to construct wharves; to erect warehouses; to build logways from the water to mills upon the top of the bank, or to incumber the freehold with permanent fixtures of any description. No such right existed at common law; none such were intended to be given by the ordinance.
    Is the occupancy of the defendants inconsistent with the rights of the plaintiff? They are clearly so. The slope of the bank is valuable for various purposes. The defendants have found it so; otherwise there would be no defense in the present action. It is agreed that the land covered by the plaintiff's deed is suitable for the erection of warehouses and other buildings. It lies in front of a flourishing town, Ripley, which is the depot for the produce of a fertile country of great extent. The slope is daily becoming more valuable. Suppose it lay in front of Cincinnati, what man would venture to assert that such a tract of land, deeded by the original proprietor to an individual, was common property, liable to be seized and appropriated by any one who chose to occupy it with warehouses, steam mills, factories, water-works, or other valuable buildings? Does its location, in front of Ripley, alter the principle ? If it were in the country, constituting a portion of a plantation, could that fact change the rights of the owners?
    The appropriation of the slope, by the defendants, has excluded the plaintiff entirely from the use of his freehold. His *grant is, practically, a nullity. The law secures to him that which he has purchased and paid for. The defendants have wrested it from him! His legal title .to the premises in controversy is indisputable, derived by a regular, unbroken chain, from the government of the United States. The defendants have wrongfully entered, and forcibly keep) the possession. The law has provided a remedy for this wrong — that remedy is the action of ejectment.
    In support of the doctrine advanced by the plaintiff’s counsel, see 5 Ohio, 495; 5 Wend. 423; 3 Term, 253; 7 Wheat. 59; 14 Mass. 55; 6 Cowen, 677.
    No argument for the defendants came to the hands of the reporter.
   Grimjke, J.

The deed to Bacon may be laid out of the question as not affecting the present controversy. It piurports to convey only an easement. It is not an outstanding title, which interferes with the right of the plaintiff to the soil and freehold. Nor is it a question whether the dead to the plaintiff conveys the land and water to the center of the river, since Virginia only granted the territory on the northern bank of the river to low-water mark, although, by the compact of 1792, between Virginia and Kentucky, a concurrent jurisdiction over the river is accorded to Ohio and Kentucky. There is also no question but what the deed to the plaintiff comprehends, within its description, so much of tholand as lies between high and low-water mark. The question is, simply, had George Poago capacity to convey to that extent? In other words, is the shore of the river common to the public, or does it belong to the adjacent proprietor?

The Ohio is a navigable river; it would be so considered, even if it were not expiressly declared to be such by the deed of cession. This, however, does not determine the question, for there are two kinds of navigable rivers. If we resort to the technical and legal definition of a navigable river, it is that part of the stream only where the tide ebbs and flows. The shore, *below high-water mark, belongs to the public. But grants of lands, bounded on rivers, or upon the margins of the same, above tide-water, carry the exclusive right of the grantee to low-water mark, or, as some of the authorities say, to the center of the stream. None of our rivers, in the western country, are navigable in the technical acceptation of the term. They all fall within the second class. The distinction was originally made in order to define the jurisdiction of the admiralty courts.

In Arnold v. Murndy, 1 Halst. 1, it was said that a grant bounded upon navigable water, where the tide ebbs and flows, extended to high-water mark when the tide was high, and to low-water mark when the tide was low, so as to constitute what Lord Coke called a movable freehold. Co. Lit. 48, b. But this opinion does not appear to have been followed anywhere else. In Cooper v. Smith, 9 Serg. & R. 26, 32, it was held that the right to the bed of a navigable river, where the tide did not reach, was presumed to belong to the public, while the right to the shore belonged to the adjacent proprietor. And in Shrunk v. Schuylkill Navigation Co., 14 Serg. & R. 74, it was decided that the owners of the soil adjacent to the large rivers, in Pennsylvania, do not own the bed of the river to the center. This appears to have been the settled law in Pennsylvania from a very early period. It has, in some measure, effaced the common law distinction between rivers navigable and not navigable. It preserves the distinction, so far as to declare that the river itself is public property; and it destroys it, so far as to make the land between high and low-water mark the property of the riparian proprietor.

But, in Now York, the common-law doctrine has been carried to its utmost extent, and considering all rivers whore the tide does not ebb and flow as not navigable, the adjacent proprietor has been deemed to be possessed to the center of the stream. This was so held, in the People v. Platt, 17 Johns. 195; Hooker v. Cummings, 20 Johns. 90. And, in this last case, it was decided, as a necessary consequence of the doctrine, that the islands in the rivers were the property of the owners of the opposite shores. In South Carolina, a*rule, similar to that in Pennsylvania, appears from the case of Executors of Cotos v. Wadlington, 1 McCord, 580, to have been adopted. It was held that the rule of the English common law, that no river is navigable except where \he tide ebbs and flows, is not applicable to that state so as to entitle the proprietor of land adjacent to a large river, but which is unaffected by the tide, to hold to the middle of the stream. All the authorities, however, agree in giving the adjacent proprietor so much of the land as lies between high and low-water mark.

It appears to have been an unsettled question, in England, until a late period, whether individuals have a right to a tow-path for towing vessels up and down rivers, and it was not until the case of Ball v. Herbert, 3 Term, 253, finally determined that they had not, and contrary to the opinion of Sir Matthew Hale.

But, by banks of the river, in that case, it must be meant the lands above high-water mark; otherwise it would overturn the common-law distinction between rivers navigable and not navigable, for it was admitted, in that case, that the Ouse was a navigable river where the tide ebbed and flowed.

All the authorities, however, as I before remarked, concur in giving the adjacent proprietor a right to the land between high and low-water mark in rivers which are unaffected by the tide. The plaintiff is, therefore, entitled to judgment.

Judgment for plaintiff.  