foundation upon which it rested, the consideration upon which it issued, and it stood as fairly upon the law, as any other case whatever. We see no principle to distinguish it from the great mass of claims to be satisfied out of lands reserved. But if any difficulty existed on this ground, it seems to have been entirely removed by the legislation of congress on the subject.

The act of March 3, 1807, fully recognizes the validity of these resolution warrants, so far as they were issued upon resolutions passed previous to the cession from Virginia to the United States. The proviso of the first section of that act must be understood as relating to warrants issued upon resolutions adopted subsequent to the cession. Rights confirmed at the time of the cession are not contemplated by it. For it would be highly unjust and improper that congress should institute an inquiry into the validity of individual rights, completely vested when the right of the United States accrued.

The second section of the act of March 1, 1823, revives the act of March 3, 1807, and gives four years from the 4th day of January, 1823, to return the surveys and obtain the patents on location upon resolution warrants. Within this period the survey was made and returned. So that, according to the provisions of the act of Congress, the title has been consummated in the complainants. The patent obtained by the defendant upon a junior entry, stands upon no better footing than if the complainant's entry was on a warrant issued in the ordinary manner, for services performed in the Virginia line upon continental establishment. The case is not analogous to an entry predicated upon a warrant for services in the state line.

In the cession to the United States, no reservation was made in favor of those to whom bounties were engaged, for military services in the state line. Consequently they were excluded from making location in the reserved territory, N. W. of the Ohio. But those claiming. under resolution warrants, for servi ees performed, in the Virginia line, upon continental establishment, were inclu ded in the reservation, and their rights are not distinguishable from others, in whose favor, the reservation was made.

By deciding that the entry of the complainant is a good and valid entry, which entry ought to be sustained against an elder patent founded on a junior entry, we do not impeach the decision of the Supreme Court of the United States, in the case of Miller v. Kerr, cited by the defendant's counsel. And in respect to this case, it is pertinent to remark, that from the doctrine advanced in Hoffnagle v. Anderson, decided at the next subsequent term, it may well be doubted whether that Court were entirely satisfied with their resolution in the former case.

It is evident that the title of the defendant, commenced in 1823, when the complainant was in actual possession, was originated with a view to speculation alone. It is not an accidental confliction of title, where the latter locator honestly supposed he was appropriating unappropriated lands. In this state of the case, he is entitled to no favor in a Court of Equity. He stands upon his legal rights altogether. And these are to be decided upon with the severest scrutiny, into their absolute obligation. All equitable considerations operate in favor of the complainant, whom, we conceive, entitled to a decree for the conveyance asked by the bill.

GAVIT v. CHAMBERS, ET AL.

The owner of lands situate on the banks of navigable streams is entitled to the beds of the rivers to the middle of the stream.

This was a writ of error brought to reverse the judgment of the court of Common Pleas, of Sandusky county, and adjourned here for decision. The plaintiff in error, was the plaintiff in the original suit, which was an action on the case for erecting a dam over the Sandusky river, and flowing back the water in the bed of the river upon the plaintiff.

At the trial, the plaintiff proved that he owned certain lands bounded by the river, and situate on its western bank. He also proved, that by the erection of the dam, the water was flowed back in the bed of the river, opposite the lands of the plaintiff, so as to stand four feet deep on a stone quarry, in the bed of the river, between the plaintiff's land and the middle of the stream. It was proved that, in making the original surveys, the river was intersected by the lines, but the area of the river to high water mark, subtracted from the integral survey, and only the lands on the shores paid for, to the United States, by the purchaser. It was also proved, that the plaintiff was in possession of the land claimed, and had used the stone quarry in the bed of the river, before the erection of the dam, and notified the defendants not to raise their dam, so as to flow the water back upon him.

The Court of Common Pleas charged the jury that the plaintiff could set up no right, in consequence of owning the lands on the shore, to the use or ownership of the bed of the river, adjacent to such lands. The plaintiff excepted to this charge, and the jury gave a verdict for the defendant, upon which the court rendered judgment for him, to reverse which, this writ of error was brought,

Platt Brush, for defendants.

By the COURT.

The question presented for decision, in this case, is, has the proprietor of lands bounded on a navigable stream, a separate and individual interest or property, in any portion of the bed of the river.

The cession to the United States, of the lands within the territory of which Ohio is now a part, was made subject to no condition with respect to navigable streams. But in the first frame of government, commonly called the ordinance, which is fundamental in its character, it is stipulated that "navigable waters leading into the Mississippi and St. Lawrence, shall be common highways, and forever free" to all the people of the United States. The legislation of Congress, for the disposition of the lands, has strictly conformed to this stipulation The lands within the beds of navigable rivers, have not been sold to individuals as land to be paid for. And whether the rivers have, or have not been made boundaries of surveys, the land usually covered by water, has been deducted

from that upon which the purchase money was charged. This, it is argued, is a fact conclusive to establish the position, that the individual purchaser acquires no right or title to the bed of the river adjoining the lands. But we do not think it properly attended with such consequence.

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 be 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 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.

If, in the case before us, the owners of the lands bounded on the banks of the Sandusky river, does own the fee simple in that stream, subject only to the use of the public, who does own it, and what is its condition? The ordinance reserves nothing but the use. No act of congress makes any reservation in relation to the beds of rivers. We find no provisions but those of the ninth section of the act of 1796, which are confined to reserving the use of naviga. ble rivers, and to declaring the existence of the common law doctrine, in respect to streams not navigable.

A river consists of water, bed and banks. At what point does the right of the owner of the adjoining lands terminate? On the top, or at the bottom of the bank? At high or at low water mark? Docs his boundary recede and advance with the water, or is it stationary at some point? And where is that point? Who gains by alluvion, who looses by direptions of the streams? No satisfactory rules can be laid down, in answer to these questions, if the common law doctrine be departed from; and if it be assumed, that the United States retain the fee simple in the beds of our rivers, who is to preserve them from individual trespasses, or determine matters of wrong between the trespassers themselves? It cannot be reasonably doubted, that, if all the beds of our rivers supposed to be navigable, and treated as such by the United States, in selling the lands, are to be regarded as unappropriated territory, a door is opened for incalculable mischiefs. Intruders upon the common waste, would fall into endless broils amongst themselves, and involve the owners of the adja. cent lands in controversies innumerable. Stones, soil, gravel, the right to fish, would all be subjects for individual scramble, necessarily leading to violence and outrage. The United States would be little interested in preserving either the peace or the property, and, indeed, would be powerless to do it, without an interference with the policy of the state, as unsuitable for the Union to exercise, as it would be inconvenient, if not dangerous to state sovereignty.

We do not believe that it was the intention of the United States, to reserve an interest in the bed, banks or water of the rivers in the state, other than the use for navigation to the public, which is distinctly in the nature of an easement, and all grants of land upon such waters, we hold to have been made subject to the rule of the common law, which, in this case, is the plain rule of common sense. And it is this: He who owns the lands upon both banks, owns the entire river, subject only to the easement of navigation, and he who owns the land

same easement.

upon one bank only, owns the land to the middle of the river, subject to the This is the rule, recognized not only in England, but in our sister states. (20 John. 90. 17 John. 195. 3 Caines, 319. 2 Conn. Rep. 481.) The case in 20th Johnson, is full and clear in point. There is nothing in the trust vested in congress, and executed by them, and nothing in the manner of executing it, to warrant the establishment of a different principle here. The charge of the court of Common Pleas, was, in our opinion, erroneous, the judgment must therefore be reversed, and a venire de novo awarded.

YOUNG, ET UX. . McINTIRE.

Where there is a devise to the widow of "one half of all the personal property" and a subsequent devise to the widow of "one half the profits of the real estate for life" and a devise to a daughter after the death of the widow of "the profits of all his stock in a certain company for life" and a further devise to the heirs of the daughter of "all the stock aforesaid"-Held, that the stock did not pass under the devise of "personal property."

This was a bill in chancery, brought to compel the assignment of thirty five shares of stock, in the Zanesville canal and manufacturing company, which the complainants claim under the will of John M'Intire, deceased. The bill states, that M'Intire in his will devised to the complainant Sarah, one half of the personal property of which he should die possessed, except his clock, and directed that the personal property should be valued by three men chosen for that purpose by his executors; and that the will further directed that the said Sarah should make choice of the same if she thought proper, if not, that the whole should be sold and one half the proceeds paid to her.

The bill alleged the decease of M'Intire, the proof of the will, and the qualification of the executors, and their taking upon them the execution of the will, and obtaining possession of his entire estate. It claimed that the complainant Sarah was entitled to one half of the seventy shares of stock owned by M'Intire, in the stock of the Zanesville canal and manufacturing company, and prayed a decree that the executors transfer it to them, the said Sarah having since intermarried with the complainant David.

The answer admitted the will, the devise, and that they took upon themselves the executorship, and received a large amount of property, and submitted to the court, upon a case stated, whether the complainants were or were not entitled to a transfer of the stock.

The facts of the case, as agreed by the partics, were as follow. M'Intire owned a tract of land which he agreed to sell to the company for stock. The stock agreed upon as the capital of the company was 70,000 dollars, to be divided into one hundred and forty shares of 500 dollars each. Of these shares seventy were subscribed by M'Intire, to be paid in the land. The other seventy were subscribed by others to be paid in money. The agreement was, that M'Intire's shares should draw dividends only upon so much of each as should be actually paid in upon each of the other shares. That so soon as the other shareholders should pay in the one half of their shares, and give security for the payment of the residue, M'Intire should convey to the company the

land sold, with the entire privileges of the water. Under this contract the company took possession of the ground, and commenced their works, in the lifetime of M'Intire, but did not entitle themselves to a conveyance, until long since his death. The conveyance has been made by the executors. The complainant Sarah, who was the wife of M'Intire, agreed to take under the will, and received one half the personal estate, except this stock, agreeably to the directions of the will.

The material provisions of the will are these:

"In lieu of my wife's full dower at law, I give, devise and bequeath to her, absolutely, the one half of all the personal property I may die possessed of, except my clock, which is not to be sold, but remain in my dwelling house so long as it shall go." "All my personal property is first to be valued by three men, chosen by my executors. Then my wife Sarah is to make her choice of the one half, or should she not take the one half, the residue is to be sold and she is to get the money arising from the sale."

The use of the mansion house is then given to his wife, and the executors are authorized to sell certain lands and pay his debts with the proceeds. Then the will proceeds:

"After which debts are paid, my executors are to pay to my wife Sarah annually during her life, the one half of the rents, interests, and profits of all my estate, both real and personal." "The money arising from the sale of my real and personal estate, after the payment of my debts, as aforesaid, is to be by my executors vested in stock, in the Zanesville Canal and Manufacturing Company." Some legacies excepted.

Directions are then given for the sale of real estate, after the death of his wife, and investing the money in canal stock, "As my other money is ordered to be invested." And the will proceeds:

"I give and bequeath to my daughter, Amelia McIntire, at the death of my wife, my mansion house, with the premises before described, provided she leaves heirs of her body. Also, I give and bequeath to her and the heirs of her body, and their heirs forever, all the rents, issues, interest and profits of all my Zanes. ville Canal and Manu. Co. Stock, which are to be paid to her annually, during her life, by the President and Directors of said company, on her own personal application and no otherwise. She is not at liberty to sell, under the pain of forfeiture, any part of said stock, nor is the same ever to be liable for the payment of her debts which she may contract, or which her husband, should she marry, may contract. Should she leave an heir or heirs of her body, then at her death, the house aforesaid to be vested in them in fee simple, and ALL THE STOCK AFORESAID, to do with as they may think proper."

Silliman, for the complainant. Goddard, contra.

By the COURT.

The first clause of the will would doubtless be sufficient to vest the widow with one half the canal stock, were there no other provisions in the will in direct repugnance to it. The stock is personal property, notwithstanding it is connected in some manner with the realty. But if we decree one half this stock to the widow, we inevitably defeat what appears to have been the great and lead. ing design and intention of the testator.