POLLARD'S LESSEE V. HAGAN, 44 U. S. 212 (1845)

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U.S. Supreme Court

Pollard's Lessee v. Hagan, 44 U.S. 3 How. 212 212 (1845)

Pollard's Lessee v. Hagan

44 U.S. (3 How.) 212


The stipulation contained in the 6th section of the act of Congress, passed on the 2d of March, 1819, for the admission of the State of Alabama into the union, viz.:

"that all navigable waters within the 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,"

conveys no more power over the navigable waters of Alabama to the Government of the United States than it possesses over the navigable waters of other States under the provisions of the Constitution.

And it leaves as much right in the State of Alabama over them as the original States possess over navigable waters within their respective limits.

The shores of navigable waters, and the soils under them, were not granted by the Constitution to the United States, but were reserved to the States respectively, and the new States have the same rights, sovereignty, and jurisdiction over this subject as the original States.

The United States never held any municipal sovereignty, jurisdiction, or right of soil in and to the territory of which Alabama, or any of the new States, were formed, except for temporary purposes, and to execute the trusts created by the acts of the Virginia and Georgia legislatures, and the deeds of cession executed by them to the United States, and the trust created by the treaty of the 30th April, 1803, with the French Republic ceding Louisiana.

Upon the admission of Alabama into the union, the right of eminent domain, which had been temporarily held by the United States, passed to the State. Nothing remained in the United States but the public lands.

The United States now hold the public lands in the new States by force of the deeds of cession and the statutes connected with them, and not by any municipal sovereignty which it may be supposed they possess or have received by compact with the new States for that particular purpose.

That part of the compact respecting the public lands is nothing more than the exercise of a constitutional power vested in Congress, and would have been binding on the people of the new States whether they consented to be bound or not.

Under the Florida treaty, the United States did not succeed to those rights which the King of Spain had held by virtue of his royal prerogative, but possessed the territory subject to the institutions and laws of its own Government.

By the acts of Congress under which Alabama was erected a territory and a State, the common law was extended over it to the exclusion of all other law, Spanish or French.

The treaty of 1795 was not a cession of territory by Spain to the United States, but the recognition of a boundary line and an admission by Spain that all the territory on the American side of the line was originally within the United States.

The United States have never admitted that they derived title from the Spanish Government to any portion of territory included within the limits of Alabama, for, by the treaty of 1795, Spain admitted that she had no claim to any territory above the thirty-first degree of north latitude, and the United States derived its title to all below that degree from France under the Louisiana treaty.

It results from these principles that the right of the United States to the public lands, and the power of Congress to make all needful rules and regulations for the sale and disposition thereof, conferred no power to grant land in Alabama which was below usual high water mark at the time Alabama was admitted into the union.

Page 44 U. S. 213

This case was brought up by writ of error from the Supreme Court of Alabama.

It was an ejectment brought by the plaintiff in error in the Circuit Court (State Court) of Alabama to recover a lot in the city of Mobile, described as follows, viz.: bounded on the north by the south boundary of what was originally designated as John Forbes & Co.'s canal, on the west by a lot now or lately in the occupancy of, or claimed by, _____ Ezel, on the east by the channel of the river, and on the south by Government Street.

The case was similar in its character to the two cases of City of Mobile v. Emanuel et al., reported in 1 How. 95, and Pollard's Lessee v. Files, 2 How. 592. In the report of the first of these cases, the locality of the ground and nature of the case are explained.

In 42 U. S. 1 How. 97, it is stated that the court charged the jury, that,

"if the place in controversy was, subsequent to the admission of this State into the union, below both high and low water mark, then Congress had no right to grant it; and if defendants were in possession, the plaintiffs could not oust them by virtue of the act of Congress."

And at page 42 U. S. 98, it is remarked, that

"the Supreme Court of Alabama did not decide the first point raised in the bill of exceptions, viz., that Congress had no right to grant the land to the city of Mobile."

In the case of Pollard's lessee v. Files, it is remarked ( 43 U. S. 2 How. 601) that

"the arguments of both counsel as to the right of the state of Alabama over navigable water in virtue of her sovereignty, are omitted, because the opinion of the court does not touch upon that point."

In the present case, there were objections made upon the trial below to the admission of certain evidence which was offered by the defendant; but these objections were not pressed, and the whole argument turned upon the correctness of the charge of the court, which was as follows:

"That if they believed that the premises sued for were below usual high water mark, at the time the state of Alabama was admitted into the union, then the act of Congress, and the patent in pursuance thereof, could give the plaintiff no title, whether the waters had receded by the labor of man only, or by alluvion; to which plaintiff excepted, and the court signs and seals this bill of exceptions."

Under these instructions the jury found for the defendant, and the Supreme Court of Alabama affirmed the judgment. From this last court the case was brought up, under the 25th section of the Judiciary Act, and the only question was upon the correctness of the above instructions.

Page 44 U. S. 219

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