IN THE SUPREME COURT 
 
 OF THE UNITED STATES. 
 
 GEORGE C. BATES, 
 
 vs. 
 THE ILLINOIS CENTRAL RAIL ROAD COMPANY. 
 
 The facts of this case are very briefly as follows : Kobert 
 Kinzee, under the act of Congress of May 29, 1830, and the 
 subsequent amendment of the same, claimed as pre-emptor 
 the north fraction of section ten, on town 39, north of range 
 fourteen east, being part of what is now Chicago. At that 
 time there was a sand bar stretching across the mouth of tho 
 Chicago river which bounded the harbor on the south. This 
 sand bar was the result of a current on the westerly coast of 
 Lake Michigan from the north southward, coming in contact 
 with the river current coming into the lake. The lake cur- 
 rent being the largest in volume and the most powerful, pre- 
 vailed, and sweeping the river current southward, but in 
 some measure slackening the lake current arid creating some 
 eddy, caused a deposit of sand, which stretching down the 
 shore formed a bar, which was a narrow strip of sand stretch- 
 ing southward from the north fraction claimed by Kinzee, 
 outside of the current of the river along the whole lake front 
 of the south fraction of the same section, and along the
 
 lake front of the next section, south of that sometimes a mile, 
 sometimes a mile and a half, and sometimes only three- 
 fourths of a mile, depending upon the winds and currents 
 and freshets which might take place in the Chicago river, 
 sometimes lengthening it out, sometimes cutting it off, and 
 always more or less aifecting its length southward, and to 
 some extent its dimensions in other respects. The diagram 
 will give an idea of the position and nature and character 
 of the bar and its form. 
 
 At the time of the survey by the Government surveyors 
 in 1820 or 1821, the river ran directly out straight into the 
 lake in an easterly instead of a southerly course. At that 
 time the ingress and egress for boats into and out of the river 
 was at the point, and which in the government survey was de- 
 signated as the mouth of the river. At that point is the call 
 mentioned in the government survey as the mouth of the 
 river, and at that point was the then actual mouth of the 
 river, through which its waters passed into the lake. It so 
 remained during that season until fall or winter, when the 
 downward current of the lake, carrying with it ice and drift- 
 ing sand, filled it up ; but in the spring when the freshet of 
 the river came down it cut through the bank there again, and 
 continued to pass out there during the next season, when the 
 same causes again filled it up. It was probably opened in 
 the spring of 1820 or 1821, the year of the survey when 
 the river was high, by shoveling out a small trench on the 
 top of the bar, across it, so as to enable a small current 
 to run across, which in a few hours cut it out to such 
 width and depth, that the whole current of the river found 
 its outlet there. The same thing had been done in 1811, 
 and again in 1816, and again once or twice afterwards, but 
 certainly once in 1829. When this was done the result was 
 that sometimes the downward current of the lake acting upon 
 the current of the river, and forcing it southward, would wear 
 away the sand bar south, and by the same process add to the
 
 north side, until the bed of the river should have passed 
 over and worn away the entire sand bar gradually, and as 
 gradually formed a new one by accretion or deposit of sands 
 on the north side. The result was the old sand bar entirely 
 wearing away, and an entirely new one forming, but the 
 causes being always the same, invariably in the same posi- 
 tion. This is a sketch of the history of the bar, but it is ma- 
 terial as showing where and what was the actual mouth of 
 the river at the time of the government survey, and as show- 
 ing that that actual mouth, and the call made by the govern- 
 ment survey, and designated by the style of, and as the 
 mouth of the river, was at that time its actual mouth. In 
 other words, that the call in the survey designated as the 
 mouth, and the location of the mouth, or the position of the 
 mouth on the land or earth, were the same. There was 
 therefore no discrepancy between the survey and the monu- 
 ments called for in the survey. 
 
 A material question arises here on this point, which in itself 
 may be decisive of the whole case. What was the southern 
 boundary of the north fraction at the time of the govern- 
 ment survey, and as fixed by the courses and distances, and 
 actual monuments called for by that survey. Was it the 
 river as it then actually was, as it it is described in the sur- 
 vey, or was it the river as it ran at other times and in other 
 years, outleting three-fourths of a mile, a mile, or a mile 
 and a half below, according to the circumstances ? If it was 
 the river as it then was emptying, and as the survey lixed it 
 then, all that was gained to the north fraction was what was 
 added to it by accretion subsequently, under the well known 
 law relative to accretions. If the river, as it then was, was 
 the southern boundary, and we think it must be so beyond 
 controversy, then the sand bar south of it belonged to, and 
 was a part of the south fraction of section ten, because the 
 survey of that fraction bounds the east side of it by the Lake 
 Michigan, and the courses and distances running from its
 
 4 
 
 south-east corner on Lake Michigan, call for the lake shore 
 all the way up as its eastern boundary, being a distance of 
 half a mile, until they reach the part then designated as, and 
 what was actually, the mouth of the river, and the call or 
 natural monument then being the lake, of course carried the 
 south fraction to the lake, and included within it all the land, 
 sand bars, and shore, south of the then mouth of the river, to 
 the lake. If this be so, then the locality of the sand bar was 
 in the south fraction. It might be worn away by the gradual 
 action of the waters, and the title to it lost to the owners of 
 the south fraction, and it might, after having gradually 
 worn away, be added to the north fraction by the gradual for- 
 mation of land added to it by accretion, which accretion 
 would gradually extend over the place where the sand bar 
 formerly was, and thus add that locality to the north fraction. 
 
 It will be observed, however, that though the river ran 
 out there then, and for two years, and though it was then 
 beyond a doubt the actual mouth of the river at that place, 
 so recognized and designated by the surveyors as the monu- 
 ment which bounded the north fraction on the south, and 
 thus locating the whole situs of the sand bar south of it in 
 the south fraction, yet some time anterior, human agency 
 had co-operated with the current of the river to turn its 
 waters out there and form that channel; that the channel 
 having been formed there, in some degree, by human agency 
 co-operating with the force of the waters, it was to some 
 extent, at least, an artificial channel, and it was in conse- 
 quence of the waters running out there where the downward 
 current of the lake would not permit them to remain, but kept 
 crowding them southward, that the sand bar south was gradu- 
 ally washed away and a new one formed from the north, 
 gradually stretching over the same locality, and thus adding 
 to the north fraction the locus in quo which had formerly be- 
 longed to the south fraction. 
 
 These reflections become material in the view Judge
 
 McLean took of this question. He holds, that because 
 Kinzee, or his grantee, could designate the situs of the sand 
 bar and its extent, that, therefore, the title could not be lost 
 to it by the gradual action of waters wearing it away gradu- 
 ally and imperceptibly. He holds, also, that when human 
 agency and artificial means have co-operated with the cur- 
 rent to wear away the soil, the title cannot be lost. Though 
 we do not agree with him on these points, as will be here- 
 after seen, yet upon his principles the title to the locus in quo 
 could never have been transferred from the owner of the 
 south fraction to the owner of the north fraction. The cur- 
 rent which wore away the south fraction was not the natural 
 current, but was a current or channel formed there to some 
 extent by artificial means. The testimony showed, that if 
 the sand bar washed away twenty times, it would reform ex- 
 actly in the same position, the causes being the same and 
 acting in the same way. The site of the old sand bar could 
 therefore be determined as exactly as that of the new one. 
 According to Judge McLean, therefore, it could not by decre- 
 tion or accretion be transferred, so far as title and legal right 
 is concerned, from the south fraction to the north fraction by 
 the action of the river and lake, as the testimony shews them 
 to have operated. If his positions be true, therefore the title 
 was always with the owners of the south fraction, and, as the 
 defendants own all the lake shore of the south fraction, is in 
 them. 
 
 Again, upon any view we take of this case, we think this 
 sand bar has never been included in the north fraction, even 
 though the river had not ran straight into the lake when it 
 
 O O 
 
 was fixed and designated as the monument which bounded 
 the north fraction on the south. In its more ordinary and 
 natural position this sand bar stretched south of the north 
 fraction from three-fourths of a mile to mile and a half, ex- 
 tending far south of the whole section, and lay outside of 
 the main shore of the south fraction and between it and the 
 2
 
 waters of the lake, and with the water of the river between 
 it and the main shore. Now the courses and distances call 
 for the lake as the eastern boundary of the south fraction. 
 They commence on the south-east corner on the shore of lake 
 Michigan and run thence north on said shore of the lake un- 
 til it reaches the point designated as the mouth of the river, 
 thence across the said mouth to the north shore, thence along 
 the lake shore north till it reaches the northerly line of the 
 section. Now, upon the supposition that the said sand bar 
 was then there, and the water did not run out where the call 
 makes it to have done, but to have run out a mile below, 
 we have a discrepancy between the courses and distances, 
 and calls or monuments, called for by the surveyors, and the 
 natural monuments as they existed. There was no lake shore 
 on the east side of the south fraction at all, but a liver and 
 sand bar between it and the lake. The mouth of the river, 
 instead of being where the courses and distances and calls 
 fix it, was a mile, or a mile and a half, south of that point, 
 and the discrepancy is such in the circumstances, that it is 
 impossible to ascribe it to error in admeasurements in 
 courses, or calls. The survey is as the surveyors intended, 
 and is without error, and the question is, what is to govern 
 the boundaries of the north fraction according to the govern- 
 ment survey. What was the southern boundary of the north 
 fraction? "Was it the line designated by the courses and dis- 
 tances and calls of the surveys, or are all these to be thrown 
 away and the southern extremity of the fraction to be brought 
 a mile and a half south, because one of the calls is the mouth 
 of the river, which ordinarily was at the southern extremity of 
 this bar, sometimes longer and sometimes shorter ? It is a case 
 of a discrepancy between the locus of the call and that fixed by 
 courses and distances. And the question is, to ascertain the 
 intention of the surveyors and what they intended to fix as 
 the south boundary, because it is by their survey that the 
 government grants.
 
 There are certain rules established to control, or rather to 
 enable the court to arrive at the meaning of words used in a 
 deed or conveyance of lands. Sometimes the number of 
 acres mentioned will be resorted to to control a given course, 
 sometimes a given course will give way to and be controled 
 by distance, and distance will give way to be controled 
 by the calls or monuments upon the land, and especial- 
 ly if it be a natural monument, as a tree, a water course, 
 or lake, the rule being, that when all the words of description 
 do not agree with each other, but some are repugnant to the 
 rest, those shall be retained where there is less liability to er- 
 ror, and those rejected where men are most liable to make 
 mistakes. But all these maxims and rules are laid down to 
 be followed only as the most certain rules and maxims, by 
 which the intention of the deed can be ascertained. There- 
 fore, it is that in some sets of circumstances the courses will 
 give way, in others acres, in others distances, in others calls 
 or natural monuments. Sometimes one of these elements, in 
 combination with other facts, furnishing more certainty to 
 the mind than others, or even all the others. For authorities 
 bearing upon this point see the following cases. 
 
 19 Pick., 466. 
 6 Cowen.717, 281. 
 
 3 How. U. S., 193. 
 
 4 Wend., 313. 
 17 Mass., 210. 
 14 Barbour, 438. 
 
 8 N. H.. 404. 
 19 Johns., 449. 
 
 32 Maine, 80. ,.. 
 
 9 How., 4H5. 
 
 10 Ohio. 316. 
 
 4 Wheaton, 447. 
 
 2 Wheaton, 316. 
 
 3 Pick.. 277. 
 
 11 Conn.. 332. 
 
 13 Wendell. 303-5. 
 
 8 Wend., 190. 
 
 9 Yerger, 55. 
 2 Spear., 628.
 
 8 
 
 These cases present a great variety of examples, those in 
 New York and Massachusetts especially, where every ele- 
 ment of description has been rejected which has been usu- 
 ally denominated the most certain, because others combined 
 with circumstances in these particular cases became more 
 certain. The case in 17 Mass, is a very remarkable one, 
 where calls became less certain than distance, and gave way 
 to it. The whole go to show that there is no certain rule, but 
 that in each case those elements, which in that case furnisli 
 the most conclusive convictions upon the mind, of the 
 boundaries intended, will prevail, and all other repugnant 
 elements will give way before them. 
 
 Apply the principles to this case, and there can be no 
 doubt that the courses and distances must govern here so far 
 as to fix the south boundary of the north fraction. The fact 
 that those courses and distances and calls, for natural bound- 
 ary of lake on south fraction, show that there could be no 
 error in course and distance, because they arc each of them 
 fortified by the great natural boundary with which they agree 
 and correspond. There can be no error here on south frac- 
 tion, it has the lake on the east for half a mile in the direc- 
 tion of the courses and distances, at the end of half a mile 
 those courses strike the river and cross it, whether that were 
 the mouth or not. So far everthing agrees. Thence it crosses 
 and goes on the north side following the lake shore up. Un- 
 less the courses and distances are to govern, then there can 
 have been no survey of the east side of the whole section. 
 The mouth of the river may have been misnamed, but there 
 can be no doubt where the point was. The object called the 
 mouth was where the Jacob's staff was set. This is beyond all 
 controversy. That was the point by them called the mouth 
 of the river, and intended, both by them and the govern- 
 ment, as the southern boundary of the north fraction. The 
 sand bar was considered not as being on the north side of the 
 river, and except where it lay across the raoutli-of the river
 
 9 
 
 was on the south fraction, and a part of it. This is very ap- 
 parent 
 
 Now, should any construction be put upon this grant made 
 upon this survey, which should not only defeat the manifest 
 intent of it, but should destroy the whole survey, and now 
 after thirty years transfer $2,000,000 of property from the 
 south fraction to the north fraction, from the owners of one 
 to the owner of the other ? 
 
 I am aware that by the general principles of law a bound- 
 ary by a water course generally although the courses and 
 distances would not carry the boundary to the water will 
 prevail, and the courses and distances will give way to it. 
 This is the general rule as above described, because that is 
 the presumed intention. It is the same with the general 
 rule that where land is conveyed bounding on a fresh river, 
 the title passes to the middle of the river. But in such case, 
 where there are circumstances or words to do away with this 
 presumption and rebut it, and showing a contrary intent, a 
 contrary rule prevails. And so in this case we think that 
 the south boundary of the north fraction was and is at the 
 point where the courses and distances establish it. 
 
 But, passing from this, in 1830 the pre-emptor entered the 
 land and paid his money for it. He did so in a land office 
 having no jurisdiction, and secured no title. It was entered 
 at Palestine 7th May, 1831. Chicago had been set off from 
 that land district February 19, 1831, three months before. 
 He got no patent. In June, 1836, the land office at Wash- 
 ington decided his entry to be void. Hall's opinions of 
 
 Altornies General, vol. 3, 131. 
 13 1'eterg, 511. 
 7 Wheat., 210. 
 
 5 Branch., 92. 
 
 6 Peters, 676. 
 
 2 How.. 284, 318. 
 
 But in July, 1836, an act passed by Congress confirming 
 3
 
 10 
 
 these entries and authorizing patents to issue upon them. 
 Under that act, in March, 1837, a patent issued to Kinzee of 
 the north fraction, according to the map or plan in the Sur- 
 veyor GeneraFs office of said fraction. 
 
 Some questions arose upon this, as to the time when the 
 title passed and the pre-emptor became owner. Does the 
 confirmation relate back to the entry of May 7, 1831, or to 
 the time of the act of Congress? I do not discuss this point, 
 but the following authorities bear upon it: 
 
 Jacob's Dictionary. 
 
 Title Confirmation, 8 How., 293. 
 
 4 How., 463. 
 2 How., 319. 
 8 Cow., 285. 
 
 5 Cruise, 275. 
 16 Johns, 110. 
 13 Peters, 514. 
 
 Coke Lit., 609. 
 
 At the time of the passage of this act of Congress, the 
 Government of the Union had constructed the piers at Chi- 
 cago and opened the harbor. This was done by cutting a 
 channel through this sand bar in an easterly direction across 
 it and where the river was passing out when the lands were 
 surveyed in 1820 or 1821, and where, by the survey and plat 
 made thereupon, the mouth of the river is located, and where 
 the courses and distances of the survey locate it, and where, 
 at different times, from 1811 up to 1833, the river had, at va- 
 rious times, passed out after making for itself a passage, or 
 aided by some little help of man by a trench across it with 
 shovels. 
 
 If the title relates back only to the act of Congress, then 
 the survey, plan in Surveyor General's office, description in 
 the patent, and the river in its mouth, all correspond and 
 agree exactly together as they did in 1820 or 1821, when the 
 lands were surveyed and the government plans or maps were 
 made, and there can be no question in the case. The pre-
 
 11 
 
 emptor took bounded by the river. If it related back to the 
 entry, then if this sand bar was a part of the north fraction 
 the government, by that act of Congress, must be held to 
 have conveyed away all the government works and harbor 
 constructed by it. 
 
 The Harbor was built in 1833-4. The channel was opened 
 through where it now is and has ever since been, in Marchj 
 1834, and the permanent mouth or entrance to the harbor 
 there established. The piers were in after years extended 
 perhaps one thousand feet out into the lake. The effect of 
 this was to interrupt the downward current on the shore of 
 the lake, turn it a little from the shore and prevent the drift- 
 ing sands from depositing upon the shore below the pier, as 
 they had formerly done. The current striking against the 
 pier was of course, at that point, to some extent arrested and 
 caused to strike out into the lake a little, below the piers. 
 The consequence was a deposit of the drifting sand on the 
 north side of the pier, where many acres have been made, 
 until the angle between the pier and shore was full; when, 
 there being a curved shore formed in that angle, the water or 
 current passes along more easily and without eddies by the 
 end of the piers, but still turned from the shore south, and is 
 depositing its sands south of and forming a new sand bar 
 across the present mouth of the river, and stretching south a 
 mile or more, and nearly but not quite parallel to the old 
 one, which was upon the site in question. The prevailing 
 winds are from the north-east, and the waves strike the whole 
 western shore of Lake Michigan in a quartering or angling 
 manner, and are, for a hundred and fifty miles north and south 
 of Chicago, gradually encroaching upon and wearing away the 
 land. The drift of sand being stopped by the piers and turned 
 outside the old bar, the supply which before had been constant, 
 and enabled it to maintain its battle with the waves by addi- 
 tions of new material as fast as it wore away, was cut off and 
 turned elsewhere the action of the waves continued, and
 
 12 
 
 every particle of sand they carried away was lost, with no* 
 new acquisitions. The consequence was, the old bar south of 
 the piers was gradually worn away, and in three or four 
 years disappeared beneath the waters. It had never been 
 more than about eighteen inches high. It disappeared be- 
 neath the surface of the water in 1836-7, but it was several 
 years before the mass was washed away so that the lake ac- 
 quired there its full depths, ranging from four feet near the 
 piers to ten feet at the southern line of the section, near a 
 half a mile below. In 1836 it mainly went under water 
 gradually and imperceptibly, as the jury find. The water 
 there became deep, and was for many years an open road- 
 stead for rafts, boats and vessels. It remained so from 1836 
 to 1852, abandoned by all claimants, and forgotten. The 
 Railway Company located its depot there, filled it up and 
 expended $2,000,000 of money there. In 1857, twenty years 
 after its disappearance, the plaintiff goes and buys up the 
 claims which the pre-emptor of the north fraction might have 
 to it as a part of that fraction for a small sum, and brings 
 this suit. 
 
 Now the question is admitting in this place that it once 
 belonged to the north side did the title wash away with the 
 sands which composed the bar ? If lands wash away by the 
 gradual and imperceptible action of water, does the title to 
 the locus remain f Does it make any difference that the place 
 where the land once had been can be accurately identified ? 
 Does it make any difference that the artificial construction of 
 the piers by the government acting upon the current in the 
 manner above described had an agency in causing it to wash 
 away? 
 
 That the general rule of law is that where, by the gradual 
 and imperceptible action of the waters land is worn away 
 the title goes with it; and where in the same manner land is 
 gradually added the title spreads over it is indisputable, and 
 is established by many striking cases; and the reason as-
 
 13 
 
 signed in the Books is that the party owning on the water is 
 subject to the contingencies there, and being liable to lose 
 and having a chance of gain, the one is a compensation for 
 the other, and his title shall be good to the accretion because he 
 is liable to lose his title to the land worn away. This princi- 
 ple is stated by the Supreme Court of the United ' States, 
 McLean giving the opinion thus: 
 
 "The question is well settled at common law that the per- 
 " son whose land is bounded by a stream of water which 
 " changes its course gradually by alluvial formation shall 
 " still hold by the same boundary, including the accumulated 
 " soil ; no other rule can be applied on just principles. Every 
 " proprietor whose land is thus bounded is subject to loss by 
 "the same means which may add to his territory, and as he 
 " is without remedy for his loss in this way, he cannot be 
 " held accountable for his gain." 
 
 10 Peters, 717. 
 
 This, it will be noticed, is stated by the Supreme Court of 
 the United States as the well settled rule of the common law, 
 and the reason given is a common law reason. The doctrine, 
 however, was taken from the civil law, and was incorporated 
 into the common law in and subsequent to Bracton's time, 
 who copied into his work on the Law of England as being 
 the law of England, the paragraphs in the Institutes upon 
 the subject word for word and comma for comma, as the cases 
 cited by me below show, and ever since his time has been 
 unquestioned law. 
 
 See 
 
 Angel on Tide Waters, 257-8, note 266, 9, 255, 256. 
 Angel on Water Courses, 43, 53. 
 
 2 Black. Com., 262-3. 
 
 3 Barn. <fe C., 80, 91. 
 
 4 Barn. & C., 485. 
 
 5 Meeson & W., 327. 
 
 18 Louisiana. 122, and arguments of Counsel there. 
 10 E. C. L., 50, 670.
 
 14 
 
 9 Conn., 38 
 
 1 Gro., 321. 
 
 8 Pothier, 1 79. 
 Puff., 5tfi. 
 Vattel, 183-4-5. 
 
 2 .lohn., 322. 
 
 3 Kent, 429; n. 
 
 9 Cusb., 444. 
 23 Vert, 319. 
 19 Barb., 492-3. 
 
 3 Marten, 33. 116, 83, 91, 131-2-3-4-5-9. 
 Justinian, lib. 2, tille 1. sec. 20. 
 
 Hale De Jure Maris, 28, 31, 35. 
 
 4 Mason, 349. 
 11 Ohio, 311. 
 18 How., 157. 
 
 The case in 5 Meeson & Wellsby, 327, was one where land 
 had been washed away at the month of the Humber. A 
 railway came along and was located there between high and 
 low water marks, and it condemned the land and paid the 
 money into court. The water having worn away the land, 
 and the ocean having gained a foot-hold there, and the bed 
 of the ocean belonging to the Crown, the question was to 
 whom the money should be paid; whether to the Crown or 
 to the former owner of the land where the road was located. 
 The question on one side, in favor of the owner, was ably 
 discussed, but the counsel for the Crown were stopped, the 
 Court thinking the case too clear for argument, and ordered 
 the money to the Crown. The case and the arguments of 
 counsel are worthy of especial notice, as are all the cases in 
 the English Books, especially the cases in 10 and 15 English 
 Common Law, and in 4 Mason, 349, and the Louisiana 
 Cases. 
 
 All the cases and books state that accretion and decretion 
 by action of water are governed by exactly the same rules 
 the one is exactly the reverse of the other. What is gradu- 
 ally worn away from land the owner loses. What is gradu- 
 ally taken from the water by accretion to land the public, 
 which is the owner of the bed of navigable waters, loses.
 
 15 
 
 The cases are governed by the same principles throughout. 
 Vattel, 183-4-5, and all the books passim. 
 
 There can be no doubt of the principle, therefore, and the 
 only thing to inquire about is whether there be any exception 
 to this rule, and whether this case comes under the exception. 
 
 The position taken by the plaintiff is: First, That the pre- 
 cise extent of the sand bar above water can be ascertained 
 and determined, and that when this can be done the owner 
 does not lose his title if the land wears away, because his 
 land can always be identified and the extent known. For 
 this position he relies upon a paragraph in the first chapter 
 of Lord Hale's Treatise, saying that where there be left any 
 thing to determine the extent of land, as stakes or stones, the 
 owner shall not lose his land; and a case in the Year Books 
 is cited, and Dyer, 328. 
 
 It will be found, upon examination, that there are cases 
 where water has invaded the land and then retired or been 
 driven back, and the question has been who was entitled to 
 the land from which the water had retired the Crown or 
 former owner, and the decisions have been that where the 
 land marks remain stakes, stones or other boundaries, the 
 the former owner should be entitled. These cases are clearly 
 right. They are manifestly cases of inundation and not cases 
 where water has worn away the land by gradual and imper- 
 ceptible action. 
 
 There are several distinct classes of cases: Gradual accre- 
 tion to land; gradual washing away of land, which is accre- 
 tion to the extent and domains of water; reliction of land by 
 water, which is where the water suddenly retires from the 
 shore, leaving a large tract of the bed of the ocean bare and 
 dry; and inundation, which is the reverse of reliction, where 
 the sea, for some reason, suddenly invades the land and 
 spreads over a large surface. In these latter cases neither of 
 them is the title affected, and in both cases it is for the same rea- 
 son. The change is sudden the surface of the land is not chan-
 
 16 
 
 gad or worn off which is the reason given by Justinian why 
 the owner does not lose his land by inundation. 
 
 Institutes by Oooper, lib. 2, title 1, sec. 24. 
 
 These sudden changes occur on the coasts of England, 
 where many of the manors extend to low water marks, and 
 where there is a wide extent of marsh or flat land on the bor- 
 der of the ocean. The manors having been granted to low 
 water mark and this marsh land enclosed by a dike to keep 
 the water out at high tides, sometimes these dikes are bro- 
 ken down by the waves, and the water spreads over them, 
 and sometimes is permitted to remain a long time, and the 
 question has arisen whether such lands belong to the Crown, 
 and it has been uniformly held not, and properly, according 
 to the principles of law. Yet, as Lord Hale has no distinct 
 chapter on inundations, but has put these cases under other 
 heads, there is a little confusion, apparently, in his book, 
 whereas these cases are rightly decided. They are not, how- 
 ever, at all, cases of accretion or gradual washing away, and 
 no confusion can arise except in the minds of those who 
 look at these passages in his books and disregard all the rest 
 of it. (See pages 28, 31, 35.) 
 
 The case where a party was permitted to reclaim, after 40 
 years, was of this sort, and the case where the heir at law 
 appealed to Parliament, against the Bishop, is clearly an- 
 other similar case, as is evident from the words of Hale him- 
 self. (See page .) 
 
 And no case can be found where there has been a gradual 
 accretion or a gradual wearing away of land, where it has 
 not been held that the water has always been the boundary 
 of the title; that the title of the owner of the land extends 
 as his land imperceptibly gains, or recedes as the land recedes 
 by wearing away. See 
 
 10 E. C. L., 50, 670.
 
 17 
 
 5 Meeson <fe W., 327. 
 
 3 B. & C , 80. 
 
 4 B. & C., 485. 
 
 3 Martin, 33, <fec., <fec. 
 
 There is a remarkable case cited in the argument of Liv- 
 ingston, in this last case, and stated also in the opinion of the 
 court, taken from the Pandects. It is as follows: Titus had 
 a field, and between him and the river there was first a high- 
 way then a field of Attius, and then the river, bounding 
 Attius' land. The river gradually wore away the whole of 
 the field of Attius, then the road, and then began to wear 
 the field of Titus, who became riparian owner. The river 
 then began to retire, gradually re-forming the land first 
 gradually making by alluvion the space where the highway 
 was, then the space where Attius' field was, until it got back 
 to its old bed. Then the question arose between Attius and 
 Titns as to the ownership of the land where Attius had owned 
 the field. It was decided that, as his field wore away, his 
 title was gone; and that Titus, having become riparian owner, 
 with the risks of that sort of ownership, he was entitled to 
 its chances, and that he was the owner of the space where 
 formerly Attius' field had been. 
 
 3 Martin, 33, 83,91, <fcc. 
 
 Here there was no dispute about the extent of land that 
 was precise and definite, and easily ascertained. Did that 
 make any difference in the principle ? The rule is that the 
 riparian owner is entitled to riparian privileges in compen- 
 sation for his disadvantages. If the front owner allows his 
 land to wear away without defending it, and the water 
 reaches the next owner, then that owner becomes the riparian
 
 18 
 
 owner, subject to hazard as such, and consequently to the 
 privileges. 
 
 In this present case it so happened that when the sand bar 
 had about half disappeared by the action of the waters it 
 was surveyed and a plat made -of it; and because this chanced 
 to be done and by the order of the Government Surveyor 
 General and the plat thereof, and the courses and distances 
 preserved in the Government archives, therefore the law of 
 riparian rights ceased. The party c';n identify where his 
 land was, and therefore it can never wear away so that he 
 will lose his title. His risk in that respect has ceased. If 
 that be so, and his boundaries cannot be diminished, then 
 the reverse of the rule could not apply to him, and if there 
 be imperceptible accretion, he could not be entitled to them. 
 It amounts to this: that where there has been a survey,-there 
 the law does not apply. They have caught one of the forms 
 which this changing sand bar has assumed, and therefore it 
 can never change any more. With as much propriety rni'ght 
 they say that because they have daguerreotyped a man in 
 middle age and got his features, that, from thenceforth, the 
 law of nature for him shall be suspended time shall cease 
 to produce its effects upon him; he shall cojitinue to exist in 
 perennial manhood. I do not think this point is really wor- 
 thy of argument. 
 
 I deem it very clear that the fact that the extent of land 
 may be identified, where it has worn away, does not change 
 the law. If that were the case, a man might have his land 
 on the border of the river surveyed and a map of it made, 
 and by so doing he could avoid the hazard of riparian own- 
 ership; and yel, if there should be an accretion, reap all the 
 advantages. He might follow a changing river upon all 
 western waters, as it retired and wore away the opposite 
 shore, until he had acquired the title to land and farms which 
 formerly were on the other side, but could not lose his, should 
 the river go the other way. Indeed the law would be wholly
 
 done away with on all our western waters, where every stream 
 has been surveyed, and the exact extent and boundaries of 
 every lot marked and mapped and placed in the general land 
 office, at Washington, as a perpetual record. The law would 
 have been done away with by the surveys under the Con- 
 queror, which are recorded in the Doomsday Book, by which 
 the extent of every manor and the boundary on every river 
 of that day can be determined by courses and distances. In 
 other words, that law could not be law which could be altered, 
 changed or suspended by any individual who chose to sur- 
 vey his land. I deem this position simply absurd. 
 
 Then, does the fact that the construction of the pier was a 
 co-operating cause of this sand bar washing away alter the 
 principle of law or create an exception ? 
 
 In order to estimate properly, and decide this question, it 
 may be well to examine the reasons upon which the law rela- 
 tive to riparian rights of accretion, &c., is founded. It is 
 said by the Roman law to be a principle of natural law, that 
 he who is subject to the risks shall have the chances of gain ; 
 and it is equally so that he who has the chances of the gain 
 shall be subject to the risks of loss. This is the reason 
 always given why a man loses his title where his land wears 
 away by the action of navigable waters, and why his title 
 extends as his laud extends by accretion. See 
 
 18 Louisiana, pages 131, 132, 134, 154, 166, 172, 228, 
 
 245. and 258. 
 
 3 Martin, Louisiana, 122, 125, 126. 
 Puffendorf, 188. 
 1 Urotius, 138, 321. 
 
 And this reason has been fully adopted by the common 
 law. 
 
 2 Black's Comm., 262-3. 
 
 10 Peters. 717. 
 
 Hale De Jure Maris, 28, 29. 
 
 15 E. Com. Law, 524. 
 
 10 E. C. L., 53, and argument of counsel there.
 
 20 
 
 2 John R.. 322. 
 
 3 Kent, 429, n. 
 9 Conn., 42. 
 
 Now, the government pier was built under the exercise of 
 sovereign power. It was one of those acts which are the 
 same in the eye of the law, as would be the eifect of an earth- 
 quake, or any other convulsion, which might have thrown up 
 there an impediment to the usual currents of water. It is to 
 be, and must be, in the nature of things perpetual, as much 
 so as the necessity which called it into existence, viz.: the com- 
 merce of the lakes yet in its infancy, and which will exist as 
 long as the lakes themselves. Here then is a work erected by 
 the government in its necessity perpetual artificial to be 
 sure, but which must always be maintained. 
 
 The argument is, that because the sovereign power of 
 the country placed it there, and not the sovereign power of 
 the universe, that, therefore, all the laws relative to riparian 
 rights in the vicinity are changed, that the man who is ex- 
 posed to the risk of ha ving his soil worn away, shall not have the 
 chances of accretion made to it, that he who may be bene- 
 fited shall not incur the hazard of a loss. 
 
 At the time the pier was built the same party, according 
 to the position of the plaintiff, owned the lake shore for a 
 half a mile north and a mile south of it The chances both 
 on the north and south were his, as a result he gained on the 
 north and lost on the south. The piers were built there with 
 his consent and approbation, and he held his land with its 
 chances of benefits and hazards of losses. 
 
 But let us look further. If the construction of this pier 
 suspended the ordinary principles of law in the vicinity of 
 it, and the riparian owners there were not entitled to the 
 privileges of riparian owners, by what law were their rights 
 regulated, and how far north and how far south did the new
 
 21 
 
 substituted law extend. This west shore current extended 
 south and around the south end of the lake. When did the 
 effect of the pier upon it cease ? Where did the new and 
 substituted law cease ; and when and at what point did the 
 old law resume its dominion? 
 
 Again the land owners south of the pier, as well as north 
 of it, were bounded by water. What were those rights on 
 that water? They were subject to its action, their land was 
 liable to wear away, and if it should happen to increase 
 should it become theirs? As it resulted, south it was more 
 likely to wear away. Was not the right to any possible gain 
 strengthened upon the principles of law ? Suppose the re- 
 sult had been accretion on both sides north and south as if 
 left to itself would be the case in time the new bar would 
 form at the outer end of the pier, and in time would come 
 to the surface and stretch well down the shore. The inner 
 shore would thus be protected again from the sea, and the 
 gradual deposits of the river, which would naturally fall upon 
 the western or inner side where the water would be still, 
 would gradually extend the shore out until only a space 
 should again be left sufficient for the passage of the waters 
 of the river. Would not the riparian proprietors be entitled 
 to the accretion so made ? The first effect of such an artifi- 
 cial construction as this pier may be one thing, the perma- 
 nent effect of it, when the results are fully developed 
 running through a course of ages, might be different. The 
 position is by the counsel on the other side, that before its 
 effect shall be fully known a principle shall be laid down by 
 the court, as if ages had worked out the results and they 
 were complete, and when time shall have passed, and the 
 permanent results are very different from the immediate 
 ones, it may be found that the decision has been based upon 
 the beginnings instead of results. 
 
 Again, when in process of time this sand bar had washed 
 away, which stretched for a mile down the lake shore and
 
 22 
 
 formed a barrier to protect the main land from the action of 
 the sea and waves of the lake, and when the city lots and 
 property on the main shore, in consequence, was attacked 
 by the waves of the lake, driven in by furious storms, what 
 became the rights of those owners. They were then brought 
 face to face with the enemy the lake and commenced 
 a battle with it which lasted seventeen years with vari- 
 ous success, and until the wall built by the Illinois Cen- 
 tral to shut out the waters. In the meantime a single owner 
 had been compelled to expend $3,000 in a single year to pro- 
 tect his lot against the fury of the lake, and all the proprie- 
 tors, including the city, in the incessant warfare, had been 
 compelled to tax themselves and expend many thousands, 
 and for many years to protect their property, which had for- 
 merly been protected by that bar. 
 
 Now, how long would they be compelled to do this before 
 they became entitled to the precarious privileges of riparian 
 owners upon a tempestuous sea? Would it be by five, ten, 
 twenty, fifty, or a hundred years, or an indefinite length of 
 time ? Are they not subject to the risks of riparian owners, 
 and does not that give them the rights, and if it gives them 
 the rights what are they? Are they not the right of free in- 
 gress and egress to the lake for all purposes, that right to 
 any accretion which possible changes of the currents, or 
 winds, or time, may bring to them ? To have the lake kept 
 open, to have their lots bounded upon it, so that none could 
 get between them and it? How long, I say, would they be 
 compelled to defend themselves against their enemy the lake 
 before they would be entitled to their rights ? 
 
 Can the sovereign power maintain that pier there a thou- 
 sand years, and the riparian owners, made so by the owners 
 of the sand bar neglecting to defend it and allowing it to 
 wear away, remain in contest with the lake generation after 
 generation and at large expense, and at the end of any num- 
 ber of generations, when riparian rights have become more
 
 23 
 
 valuable, then be cut off by the descendants of Kinzee, or 
 Bates, going into the lake and cutting them off from it by 
 re-building this sand bar between them and it ? 
 
 I take it upon principle this cannot be law. The owners 
 of the sand bar might have defended it if they deemed it 
 worth while, but they could not lay by allow it to wear 
 away throw the burden of the contest on those behind them, 
 and then after a long time come in and say that all the laws, 
 regulating the rights of parties bounded by the water, were 
 there suspended and abrogated, and repossess themselves of the 
 place where the sand bar was. Much less can they, when 
 under the authority of the Legislature, and by a purchase of 
 all the riparian rights a company has filled up the lake there 
 and expended $2,000,000, being more than its actual value, 
 come in and claim that they have owned it all the time. As 
 soon as by action of the waters it had by imperceptible de- 
 grees worn away, and those in the rear had become riparian 
 owners, they became entitled to all the rights, as they were 
 subject to all the hazards, of such owners. 
 
 As upon principle no case could be, so no case can be 
 found to the contrary, and so far as there are decisions on the 
 point they sustain the positions I lay down. 
 
 In the 15 E. C. L. is a case, though not in point, yet in 
 principle, I think, sustaining me. It decides, that the con- 
 struction of artificial works on the coast to protect one man's 
 land against the sea, by means of which the sea is thrown 
 with greater violence against another man's land, and wore 
 it away, was not the just ground for an action, and that no 
 wrong could be done to one by another's defending himself. 
 
 15 E. C. L., 179. 
 
 This was upon the ground, that the man defending his 
 land did it rightfully, and was not responsible for conse-
 
 24 
 
 quences. The government of course built the pier rightfully, 
 and moreover with the consent of the owner of this bar, if 
 it was ever owned by him, and for a great public purpose, 
 and from the very object of it, it must be a perpetual work, 
 as perpetual as commerce. In the exercise of a right, if it 
 -\rae no wrong to any body, how can it alter the rights of any 
 
 - relative to any property they mnv have. 
 But the very Question lias been decided in Massachusetts 
 and in a case which turned upon the precise point, and in 
 favor of the principles I maintain, and if that case be law it 
 is decisive. 
 
 See 3 M.TS8., 352> 
 
 There the question was as to the property in lands formed 
 by the accretion, and the position was taken, that the accre- 
 tion was caused by the erection of a wharf into the river, 
 which caused a deposit by the water by reason of a change 
 in the current. The court said that it did not think much of 
 the position, and that it mattered not whether the accretion 
 was wholly by natural, or partly by natural, and partly by ar- 
 tificial, means. 
 
 This is the only authoritive case directly on the point, 
 though the reason upon which the law is based, and all its 
 principles, tend to that direction. 
 
 So much for the general question, and I think it a clear 
 one. There is a special question as to land formed under 
 'the lee of the pier in front of land owned by the govern- 
 ment, about two hundred feet in length; this accretion ex- 
 tended across the old bed of the river, and would occupy a 
 small space where the sand bar had formerly been. It was 
 formed by accretion during a space of fifteen years. The 
 peculiarity as to this is, that it formed in front of the land of 
 the government occupied as an hospital. The government
 
 built the pier. The consequence was, the old sand bar wore 
 away, accretion formed in front of main shore on land of 
 government. Does any diiferent rule apply to this than to 
 lands owned by individuals ? Can the government who built 
 the pier, the remote consequence of which was accretion in 
 front of its own land, claim the accretion, and sell it? It is 
 the case above cited from the .Roman law, with the additional 
 element, that the remote cause of the accretion was created 
 by the owner of the land upon which the accretion formed. 
 There is no decision on this point, though it is alluded to 
 in a case by a judge in New York. 
 
 4 Smith's Court of Appeals, 151. 
 
 Upon the best consideration I have been able to give to it, 
 the title to this accretion will rest upon the same principle 
 as would that which formed upon the next lot belonging to a 
 private owner. I can see no reason for any distinction. All 
 my reasoning above applies as well to that land as to the 
 rest, and I think it must be governed by the same rule. 
 
 JAMES F. JOY.