The inquiry to be made here is as to the territorial extent of ownership, i. e., what are the boundaries of the land. There may be, in any particular case, no difficulty, unless it be merely of survey, as where John Smith's property lies contiguous to and is bounded by Henry Jones' property. But in case there is a road, river or lake, between the two, or Smith's property lies along the lake shore, where is the boundary deemed to be? The answer is the subject matter of this chapter. Description of boundaries is covered in Chapter 27, post.
Land bounded by a highway extends to the center thereof, subject to the public's use, unless under the law the ownership is in the public.
The law of Highways is largely a matter of local law, but the general rules so far as they effect boundaries may be stated here.
The fee of a highway may be in the Public or in the adjoining owners. If in the adjoining owners, each owns to the center of the highway, subject to the right of the public to use the highway. If, however, the state or city owns the fee, the adjoining property extends of course only to such road or street. In some states dedication of a street by the owner or owners puts the fee in the public, while under other statutes or practices the fee remains in the owners subject to the use of the public.
If the fee to a highway is in the adjoining owners, it is a presumption, subject to rebuttal, that a conveyance of the property carries with it the title to the center of the roadway, and a description of the land only, without mentioning the street will carry with it the title to the street.
By the common law if land is bounded by a navigable river the title to the bed of the river is in the sovereign and the adjoining owner owns to the high water mark, but if the stream is non-navigable, the adjoining owner owns to the thread of the stream. The terms navigable and non-navigable described respectively streams in which the tide did or did not ebb and flow. This rule is still adhered to in some states, but not in others.
In order to determine whether a person owned to the middle of a stream or merely to the shore, it is necessary by the common law rule to establish whether the stream is navigable or non-navigable, but those adjectives had a special meaning to convey in the one case that the influence of the tide was felt, in the other, that it was not. Navigability in fact did not make the stream navigable within this rule. The tide must be felt therein.
If within this rule, a stream is non-navigable (whether navigable in fact), the adjoining owner owns to the thread of the stream, and owns any islands or parts of islands on his side of the thread of the stream, subject to the easement of the public in the water; but if navigable he owns to the high water mark only, the bed of the river being in the sovereign, and the land between high water and low water mark being a public common.88
In some jurisdictions the question of navigability is one of actual fact, and this will determine whether the boundary stops with the shore or goes to the edge of the stream.
If the owner owns to the thread of the stream a conveyance by him of the land will carry title to the thread of the stream unless reservation is made.
The stream, if navigable in fact, whether navigable in law or not by the above test, is subject to a public easement, that is, the right of the public to navigate it and make reasonable uses thereof, including the right to temporarily tie up at the wharves thereof, or to seek shelter upon the shores.
Although the owner of the adjoining land may own also to the thread of the stream, he owns subject to the public easement, and also subject to the rights of others, whose property abuts upon the stream. He must therefore make no use of it that will pollute it, or unreasonably diminish it or stop or impede its natural flow. In other words, his use of it must be a reasonable one.
If a lake is navigable, generally the title is in the sovereign. If not
88. Middleton v. Pritchard, 4 111. 510. (This case held that the Mississippi River adjoining the Illinois shore, to be non-navigable by the common law test and that the owner of the land on the river owned title to trees on an island on his side of the thread of the river and that defendant was liable to him in damages for cutting and carrying them away.) navigable the adjoining owners own the bed of the lake in proportion to their water frontage.
There is a good deal of confusion in the cases as to the rules to apply in case of lands bounded by lakes. The English common law was about the same in case of lakes as in case of rivers, as stated in the above section. But America has problems which England did not have on account of the number and size of the lakes in this country. We can perhaps with accuracy lay down the general rule that if a lake is large enough to be navigable in fact, the bed of the lake belongs to the sovereign subject to the riparian rights of the owners of the adjoining shores, but if not navigable in fact the owners own the lake bed. But it has been held that if the lake is meandered in making the original survey, the title passes to the water's edge, but if not large enough to be meandered then title passes to the bed of the lake as the boundary of the adjoining land.89
A meander line is a line drawn by the surveyors along the shore from point to point following the general outline of the lake, and does not in itself constitute the boundary.
If the bed of the lake is in the adjoining owners, it may be a difficult task to assign to each his proportionate part. On account of the fact that the lake is circular in form, and there is no thread of the stream, lines of the adjoining boundaries cannot be extended, as in the case of rivers. Different tests have been suggested generally to the effect that the adjoining owner owns that portion of the lake which is proportionate to his water frontage.
80. Fuller v. Shedd, 161 111. 462; see note to Gouverneur v. National Ice Co., 18 L. R. A. 695, for conflicting authorities on question of title to bed of lake.