I. The soil and accretions thereto.
17 Pickering (Mass.), 41. - 1835.
Writ of entry to recover a parcel of land formed by alluvial deposits on the bed and margin of Deerfield river.
Shaw, C. J., delivered the opinion of the court. - There are several points in this cause to which it seems proper to allude in the outset, and upon which we entertain no doubt.
In the first place it seems very clearly settled that upon all rivers not navigable (and all rivers are to be deemed not navigable above where the sea ebbs and flows), the owner of land adjoining the river is prima facie owner of the soil to the central line, or thread of the river, subject to an easement for the public to pass along and over it with boats, rafts and river craft. This presumption will prevail in all cases in favor of the riparian proprietor unless controlled by some express words of description which exclude the bed of the river, and bound the grantee on the bank or margin of the river. In all cases, therefore, where the river itself is used as a boundary, the law will expound the grant as extending adfilum medium aquae.
We also consider it as a well-settled principle of law resulting in part from the former, that where land is formed by alluvion, in a river not navigable, by slow and imperceptible accretion, it is the property of the owner of the adjoining land, who for convenience, and by a single term, may be called the riparian proprietor. And in applying this principle, it is quite immaterial whether this alluvion forms at or against the shore, so as to cause an extension of the shore or bank of the river, or whether it forms in the bed of the river and becomes an island. And where an island is so formed in the bed of the river as to divide the channel and form partly on each side of the thread of the river, if the land on the opposite sides of the river belong to different proprietors, the island will be divided according to the original thread of the river, between the rival proprietors.
This view of the subject disposes of one of the questions of fact in relation to which some evidence was given; namely, whether the alluvial formation in controversy was separated by water from the eastern bank of the river, claimed by the demandants as riparian proprietors, or whether the newly formed land, at that point, extends quite to the eastern bank. We think this fact entirely immaterial to the rights in controversy between these parties. [TheJudge then discusses the title of Deerfield to the lands on the east bank of the river (deciding in favor of such title) and the principles on which the accretion is to be divided among the several riparian proprietors.]
86 Iowa, 71. - 1892.
Replevin for an aerolite. Appeal from judgment for plaintiff.
Granger, J. - The District Court found the following facts, with some others not important on this hearing: " (1) That the plaintiff, John Goddard, is, and has been since about 1857, the owner in fee simple of the north half of section No. 3, in township No. 98, range No. 25, in Winnebago county, Iowa, and was such owner at the time of the fall of the meteorite hereinafter referred to. (2) That said land was prairie land, and that the grass privilege for the year 1890 was leased to one James Elickson. (3) That on the second day of May, 1890, an aerolite, passed over northern and northwestern Iowa, and the aerolite, or fragment of the same, in question in this action, weighing, when replevied, and when produced in court on the trial of this cause, about sixty-six pounds, fell onto plaintiff's land, described above, and buried itself in the ground to a depth of three feet, and became imbedded therein at a point about twenty rods from the section line on the north. (4) That the day after the aerolite in question fell it was dug out of the ground with a spade by one Peter Hoagland, in the presence of the tenant, Elickson; that said Hoagland took it to his house, and claimed to own same, for the reason that he had found same and dug it up. (5) That on May 5, 1890, Hoagland sold the aerolite in suit to the defendant, H. V. Wincheli, for $105, and the same was at once taken possession of by said defendant, and that the possession was held by him until same was taken under the writ of replevin herein; that the defendant knew at the time of his purchase that it was an aerolite, and that it fell on the prairie south of Hoagland's land. . . . (10) I find the value of said aerolite to be one hundred and one dollars ($101), as verbally stipulated in open court by the parties to this action; that the same weighs about sixty-six pounds, is of a black, smoky color on the outside, showing the effects of heat, and of a lighter and darkish gray color on the inside; that it is an aerolite, and fell from the heavens on the second of May, 1890; and that a member of Hoagland's family saw the aerolite fall, and directed him to it." As conclusions of law, the District Court found that the aerolite became a part of the soil on which it fell; that the plaintiff was the owner thereof; and that the act of Hoagland in removing it was wrongful. It is insisted by the appellant that the conclusions of law are erroneous; that the enlightened demands of the time in which we live call for, if not a modification, a liberal construction, of the ancient rule " that whatever is affixed to the soil belongs to the soil," or the more modern statement of the rule, that " a permanent annexation to the soil of a thing in itself personal makes it a part of the realty." In behalf of appellant is invoked a rule alike ancient and of undoubted merit - " that of title by occupancy " - and we are cited to the language of Blackstone, as follows: " Occupancy is the taking possession of those things which before belonged to nobody; " and " Whatever movables are found upon the surface of the earth, or in the sea, and are unclaimed by any owner, and supposed to be abandoned by the last proprietor, and as such are returned into the common stock and mass of things, and, therefore, they belong, as in a state of nature,to the first occupant or finder." In determining which of these rules is to govern in this case, it will be well for us to keep in mind the controlling facts giving rise to the different rules, and note wherein, if at all, the facts of this case should distinguish it. The rule sought to be avoided has alone reference to what becomes a part of the soil, and hence belongs to the owner thereof, because attached or added thereto. It has no reference whatever to an independent acquisition of title, that is to an acquisition of property existing independent of other property. The rule invoked has reference only to property of this independent character, for it speaks of movables " found upon the surface of the earth or in the sea." The term " movables " must not be construed to mean that which can be moved, for, if so, it would include much known to be realty; but it means such things as are not naturally parts of earth or sea, but are on the one or in the other. Animals exist on the earth and in the sea, but they are not, in a proper sense, parts of either. If we look to the natural formation of the earth and sea, it is not difficult to understand what is meant by " movables" within the spirit of the rule cited. To take from the earth what nature has placed there in its formation, whether at the creation or through the natural processes of the acquisition and depletion of its particular parts, as we witness it in our daily observations, whether it be the soil proper or some natural deposit, as of mineral or vegetable matter, is to take a part of the earth and not movables.