Our conclusion is, that where the user is of such a character as to establish an easement to pond water on the land, or to use it as a water way for surplus water, the right to gather ice which forms on the pond is in the owner of the fee, and not in the owner of the dominant estate.
2. Ice on Public Waters.
26 Kansas, 682. - 1882.
Brewer, J. - This is a petition for an injunction. A demurrer thereto was sustained in the District Court, and the plaintiffs bring the case here for review. The petition alleges substantially that on the 20th of January, 1880, one Matthias Splitlog was the owner and had the exclusive possession of a tract of land in the neighborhood of Kansas City and Wyandotte, and bordering on the Kansas river, and extending to the middle of the channel; that he then leased said tract to these plaintiffs for ten years, and placed them in the same exclusive possession; that these plaintiffs are ice dealers, engaged in gathering ice, and that they have erected ice-houses on the banks of the Kansas river and in close proximity to this tract of land, for the storage and preservation of ice in great quantities; that merchantable ice is a commodity of great value, and the value thereof greatly enhanced, as it can be gathered in close proximity to the market; that the cities of Kansas City and Wyandotte furnish a good market for the sale of ice to consumers, as well as for export trade; and that merchantable ice of superior quality formed upon the surface of said Kansas river within the limits of said premises, which adhered to the banks of the stream and extended therefrom to the center of the channel. The petition contained further allegations that the defendants were entering the premises and removing the ice, and other facts showing that the plaintiffs were entitled to an injunction if they were the owners of the ice, or if they had such an interest therein that they could prevent any removal of it.
The question, then, is fairly presented as to the extent of the interest which a riparian owner has in the ice formed adjacent to his property. The petition alleges ownership and possession to the center of the channel; but the defendants insist that this allegation must be disregarded, because the Kansas is a navigable stream, and that the owner of the adjacent soil in such case only owns to the bank, and not to the center of the stream; that this court is bound to take judicial notice of such fact - the official records of United States surveys showing that the stream was meandered, and its navigability being also indicated by early Kansas legislation and its actual navigation a fact of early Kansas history. We think the claim of the defendants is correct - that the court is bound to take judicial notice of the navigability of the stream. * * *
It is true, in 1864 (Laws 1864, p. 180), an act was passed by the State Legislature declaring the Kansas and certain other rivers not navigable; but the plain implication of the act is that the streams had theretofore been considered navigable, and its purpose was to sanction the bridging and damming of such streams. It certainly was not the purpose and the act had not the effect, to enlarge the title of the riparian owners, or to recognize them as possessed of higher rights than heretofore. Indeed, where title is once vested, a mere change in the condition or character of the current or the uses to which the stream is put, will not transfer any title. People v. Tibbets, 19 N. Y. 527; Wheeler v. Spinola, 54 N. Y. 377. It was an assertion of State control over a stream wholly within its territorial limits; a control which, notwithstanding the general supremacy of the federal government over navigable streams, was asserted to exist in the State in the case of Naederhauser v. The State, 28 Ind. supra, as well as in many other authorities. So that for all the purposes of this case, and any question in it, we may assume that the Kansas is, at the point in controversy, a navigable stream. The stream having been meandered, the lines of the surveys are bounded by the bank; the patents from the United States passed title only to the bank; Splitlog, as riparian owner, owned only to the bank. The title to the bed of the stream is in the State. Stevens v. Rld. Co., 34 N. J. Law, 532; Pollard's Lessee v. Hagan, 3 How. U. S. 212. It is true a distinction was recognized in England, and that streams were considered navigable only in so far as they partook of the sea, and to the extent that their waters were affected by the ebb and flow of the tide, and only so far was the title of the riparian owner limited to the bank; above such point, even although the stream was large enough to be used, and in fact was used, for purposes of navigation, the riparian owner owned the soil ad medium filum aquae. So that really three distinct characters of streams were recognized: First, those smaller streams, which could not be used for any purpose of navigation, in which the title to the soil was in the riparian owner, and along which the public had no rights of highway or otherwise; an intermediate class, in which the riparian owner owned to the middle of the channel, but along whose stream the public had all the rights of a highway; and third, that which was called technically the navigable streams, where the title to the bed of the stream was in the sovereign, and all rights were in the public. The same doctrine of riparian ownership to the center of the stream in all rivers unaffected by the ebb and flow of the tide, is recognized in some States of the Union; but the better and more generally accepted rule in this country is, to apply the term " navigable " to all the streams which are in fact navigable; and in such case to limit the title of the riparian owner to the bank of the stream. Especially is this true in the States where the lands have been surveyed and patented under the federal law. See the following authorities. Rld. Co. v. Schurmeir, 7 Wall. 272; McManus v. Carmichael, 3 Iowa, 1; Haight v. Keokuk, 4 Iowa, 199; Tombden v. Rld. Co., 32 Iowa, 106; Flannigan v. City of Philadelphia, 42 Pa. St. 219; Bridge Co. v. Kirk, 46 Pa. St. 112; People v. Tibbets, 19 N. Y. 523; People v. Loomis, 33 N. Y. 461. These conclusions seem to compel an affirmance of the judgment of the District Court; for whatever might be the case where a riparian owner owns to the center of the channel, and whatever ownership and control he may have over the ice which forms upon the stream upon his premises, (and as to the extent of his rights, see the following authorities: State v. Pottmeyer, 33 Ind. 402, also reported in 5 American Reporter, 224; Mill River Co. v. Smith, 34 Conn. 462; Marshall v. Peters, 12 How. Pr. 218; Meyer v. Whittaker, 18 Alb. L. J. 128; 4 Cent. L. J. 500; 7 Cent. L. J. 141; Higgins v. Kusterer, 41 Mich. 318, reported in 9 Cent. L. J. 247; People's Ice Co. v. The Excelsior, II Cent. L. J. 347; Paine v. Wood, 108 Mass. 173; Gage v. Stumphaus, Sup. Ct. Mass. reported in 24 Alb. L. J. 516; Washington Ice Co. v. Shortall, 111. Sup. Ct. 13 Rep, 9), it would seem that where there is no ownership of the sub-jacent soil, a riparian proprietor has no title to the ice. The title to the soil being in the State, and the stream being a public highway, obviously the ownership of the ice would rest in the general public, or in the State as the representative of that public. The riparian proprietor would have no more title to the ice than he would to the fish. It simply is this, that his land joins the land of the