Banks v. Ogden
THIS was an ejectment brought to December Term, 1859, in the Circuit Court for the Northern District of Illinois, to recover a lot of ground, A A, formed by accretion on the western shore of Lake Michigan. The case was thus:
Kinzie, being owner in fee of a fractional section of land bounded on the east by the said lake, and lying immediately north of the original town of Chicago, made a subdivision of it in 1833, which he called Kinzie's addition, and deposited a plat of it in the office of the county recorder, where it was recorded in February, 1834: though not in accordance with certain statutes of Illinois, which, it was contended in the argument, give an effect to plats properly made, acknowledged, and recorded, that changes the rule of the common law regarding the streets on which the lots are sold.
The north and south street of the subdivision nearest the lake was called Sand Street; the east and west street nearest the north line of the fraction was named Superior Street. The waters of the lake limited Sand Street on the north by an oblique line extending from a point on its eastern side, about a hundred feet below, to a point on its western side about a hundred feet above Superior Street; as indicated on the diagram opposite. The northeastern block of the subdivision, numbered 54, was bounded, on its eastern side, in part by Sand Street and in part by the lake. Sand Street, therefore, terminated in a small triangular piece of land, b, c, d, between the lake and Block 54. This triangle was less than thirty-three feet wide at its lower or southern end, and diminished to a point at its northern extremity. Upon this triangle, distinctly shown by the plat, new land was formed in 1844-'5-the date must be observed-by accretion; and extended eastwardly, in the direction of the dotted lines, more than two hundred feet. The question was, to whom did this new land belong?
In 1842, Kinzie had been declared a bankrupt under the bankrupt act of 1841, and his whole property passed of course by operation of law to his assignee.
Under this title the assignee claimed, subject to public use as a street, the eastern half of the triangle, and the newly-formed land as accretion. Acting upon this claim he sold, under petition and order of the District Court, made in 1857, part of the accretion, being the land in controversy, to one Sutherland, who conveyed to Banks, plaintiff in the ejectment. Of course this newly-formed land had not been included in the assignee's inventory of the bankrupt's effects.
On the other hand, Ogden, the defendant, deriving title by regular conveyance in 1833 from Kinzie, to that part of Block 54 to which the triangle was adjacent, conceived that the fee of the whole triangle, subject to the public use, passed to him with the land bounded by it. His theory was, that Sand Street, which was sixty-six feet wide below its meeting with the lake, continued sixty-six feet wide to its northern termination, and that the whole triangle being everywhere less than thirty-three feet wide, was west of the middle line of the street, and therefore belonged to him as owner of the adjoining land. As the legal result of these propositions he claimed the whole accretion, as formed upon land of which he held the fee.
It is necessary here to state that the bankrupt act, under which Banks, the plaintiff, claimed, enacts, by its eighth section, that 'no suit at law, or in equity, shall, in any case, be maintained by or against the assignee of the bankrupt, touching any property or rights of property of the bankrupt, transferable to or vested in him, in any court whatever, unless the same be brought within two years of the declaration of bankruptcy, or after the cause of suit shall have first accrued.' At what date Ogden, the defendant, went into possession, did not appear. The bankrupt act (§ 10) also enacts that all proceedings in bankruptcy shall, if practicable, be brought to a close by the court within two years after a decree.
Upon this case the court below instructed the jury that the law was for the defendant; and, judgment having been so entered after verdict, the case was now before the court on error.
Mr. Fuller, for Ogden, defendant below and in error.
1. The first question is, whether or not Kinzie had any title remaining in him to any land east of Block 54, after making and recording the plat of Kinzie's addition, and the conveyance of 1833?
By making and recording the plat, Kinzie dedicated all the land which there then was in front of the block; and, so far as it sufficed to make a street, to public use, and as the land increased, by accretion or otherwise, the public was entitled to extend the street in a line with that part of it south of this block. 'Where a city is laid out with streets running to the water,' says a California case,  'such streets should be held to continue on to the high water, if the city front is afterwards filled in, or the space enlarged by accretion or otherwise. Any other doctrine would be destructive of the interests of commercial communities.' The curved line on Kinzie's plat, showing the course of the lake opposite to the block, was not meant to declare its boundary in all time on that side. It meant simply to show that along that line was the then course of the water; that there was where the lake came, and to prevent purchasers from supposing that the street held good for its original width of sixty-six feet below or southward. If it was washed away after that, it was the purchaser's loss. If it was extended by accretion, his gain. Had a street of full width been there, it would have carried the grant to the middle; but, before the middle was reached, the granted premises touched the waters of the lake; and the purchaser, like Kinzie himself had been, became riparian owner, and entitled to the privileges of such ownership,-one of which is that above stated, of having the whole road.
Independently of this he may rely on the common law principle of ad medium filum, or to the dividing line. The land in front of Block 54, at its widest part, did not suffice to make one-half the width of the street when the grant of the lot was made; and the conveyance of the block invested the purchaser with the fee, not only of the block itself, but of all the land to the water's edge. 'As between grantor and grantee,' says a recent and leading case in New York,  'the conveyance of a lot bounded upon a street in a city, carries the land to the centre of the street. There is no difference in this respect between the streets of a city and country highways.' This case overrules all the preceding ones in New York which had been supposed to establish a different rule. There is, indeed, no doubt-notwithstanding several dicta and some decisions to the contrary-that the rule, in the broad and imperative way in which it is above asserted-is now rapidly becoming-has in fact become the rule of our courts. They are disposed to regard the matter not as one of intention or of construction at all, but as one of policy; and as in Paul v. Carver,  to carry the grant to the middle line, in spite of words limiting it in the clearest way to the edge.  And this is reason; for, whether the new ground arise from the abandonment of a former street, or from the creation of new soil by accretion, there is no reason for giving it to the old owner. In neither case did he ever expect to have it. In the first he has been paid for it in the price of the adjoining lots made of higher price by being on the street; in the latter he has parted, as he supposed, with every vestige of soil, and should not be allowed to block up and intercept light and view-in this case a view upon a noble lake, itself a matter of value to any residency-by building upon soil so accidentally and unexpectedly obtained, and so to injure persons who supposed, as he did, that they had acquired ownership to the water's edge. The purchaser is therefore a riparian owner, and is entitled, as such proprietor, to the accretions which have been formed in front of the block. 'The question,' says this court, in one case,  'is well settled at common law, that the person whose land is bounded by a stream of water, which changes its course gradually, by alluvial formations, 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.' This rule was also tacitly recognized in Jones et al. v. Johnston;  Johnston v. Jones et al.,  here as applicable to accretions formed on Lake Michigan, and at almost the precise place where the accretions in question have been formed. The same rule has elsewhere been held applicable to the Detroit River.  To the same effect is Seaman v. Smith. 
That this right to the accretion is not divested by the intervention of a public highway between the riparian estate and the water-course, was decided by the Supreme Court of Louisiana; a region where, from the nature of their soil, this whole subject of accretion and diminution is specially studied and most wisely settled in the well-considered case of Morgan v. Livingston.  'If there be a public road between a field and the river,' says that case, 'still that which is made by alluvion accrues to the field.' This case was decided in 1819. In 1841 the same question came before the same court in the case of Municipality v. The Orleans Cotton Press;  and the court cited the language used in the former case, with approval, as a correct statement of the law on this subject. It added further, 'that the intervention of a public road between the front tract and the river does not prevent accretion by alluvion, because the road and the levee themselves belong to the front proprietors, subject to the public use;' and the court, in summing up the points intended to be decided, say:
'We are of opinion that urban property fronting on a water-course is entitled to alluvion, as well as rural estates; and that cities can acquire jure alluvionis only in virtue of a title which would constitute them front proprietors. That the defendants must be considered as owning down to the road last laid out, and that the intervention of the road does not in law prevent their being regarded as front proprietors, and entitled to any alluvion which now exists or may hereafter be formed between the levee and the water, subject to the public use under the administration of the municipal authorities.
The language first quoted is descriptive of the present case, and that cited last states the rule which should be applied. The principles established by these cases have been affirmed in the later ones. 
The right to accretion is one that belongs to the principal estate, not to the person of the owner, nor to the proprietor of the easement. It does not belong to the latter, because he enjoys a benefit in another man's property or estate, and the loss or gain of that estate is not his, but the owner's. 'The right to future alluvion,' says one of the cases cited by us, 'is inherent in the property itself, and forms an essential attribute of it, resulting from natural law in consequence of the local situation of the land, just as much as the natural fruits of a tree belong to the owner of the land; and that such an attempt to transfer from the owner of the land to the city the future increase by alluvion, would be as legally absurd as if the legislature had declared, that after the incorporation of the city, the fruits of all the orange trees within its limits should belong thereafter to the city, and not to the owners of the orchards and gardens.' 
It cannot be contended, we think, that the medium filum was to the middle of the triangle only. Such a view would be unreasonable. It would be a view first of all extremely technical. It would decide, moreover, that because the purchaser of Block 54 had less than anybody else, less than he needed for the proper enjoyment of his lot, less than was usual and natural, he should have but half of that. Is it possible to suppose that Kinzie meant to reserve one-half the triangle? Of what use could such a piece of ground be to him? Of what necessity was it not sure to prove to the purchaser? A full street is supposed to be equally divided, because the owner on each side needs half; but here there was no owner on the east or lake side. The broad and fathomless Michigan was there. Ownership was not predicable of that side at all, and was predicable of the other side only. Had the road been full sixty-six feet wide, yet we might say that at common law, even then coming to the water's edge, it was a case where the owner would take it all. In grants on tidal waters the grant is almost universally to low water mark; and this for the obvious reason that, if this mark change, the purchaser may still have as near as possible what was sold and what was bought. By analogy we may fairly contend that here the purchase is to the water's edge, even had the street been full, there being nothing to be sold beyond it. That seems to be the doctrine of the Louisiana case; specially, as we have said, worthy of respect in this branch of law.
The case does not show that Kinzie ever asserted or supposed he had any interest left after his deed of 1833. Years after he had parted with his interest there, the accretion began to form. It was not inventoried among the assets of his bankrupt estate, because it did not then exist. Fifteen years after that, a 'prowling assignee' asks for, and obtains, an order to sell the demanded premises, which had no existence, either in fact or law, until after Kinzie had been declared a bankrupt, and when he was no longer the owner of the principal estate, or any part of it, to which the right to accretions could attach. The assignee takes no greater interest than the bankrupt had in the estate assigned to him, and we cannot well see how a right to accretions, which is an incident to the principal estate, can arise or exist in favor of one who had no such estate.
2. Kinzie was declared a bankrupt in 1842, under the act of August 19, 1841. The petition and order for a sale of the demanded premises were made in 1857. If any interest or estate was left in Kinzie, after his conveyance of 1833, his assignee, and those claiming under him, are barred from maintaining this suit by the 8th section of the bankrupt act. This, like all limitation laws, was intended as a 'statute of repose,' and to insure a prompt settlement of the bankrupt estate; and the public good requires that full effect be given to it by the courts.
It is a practice too common all over the country for assignees to make sales of real and pretended interests in the bankrupt estate down to the present time, and for the purchasers to bring suits upon the titles thus acquired. It cannot be pretended that this is done for the benefit of the creditors. It is now more than twenty years since that law was enacted and repealed, and the interests of the creditors of the bankrupts have, in most cases, passed away, and these proceedings are instituted obviously for speculating and litigious purposes. They belong to the class of suits described by Lord Bacon as 'contentious suits,' which that great judge declares 'ought to be spewed out as the surfeit of courts.'  The act, in express terms, limits the right of the assignee to bring any suit, at law or in equity, against any person claiming an adverse interest touching the property, and rights of property, assigned to him, to two years after the declaration and decree of bankruptcy, or after the cause of suit shall first have accrued. The present cause of action (if there is any) arose fifteen years before the petition for the sale of the demanded premises was filed. The assignee acquired title to them at the date of the assignment, or he never did; and if his right was barred, so was that of his grantee, for it was a limitation against the right to recover these premises, and he could transfer no greater right than he had. This point has been decided in New York. 
Mr. Wills, contra.
The CHIEF JUSTICE delivered the opinion of the court, and, after stating facts, proceeded as follows:
^1 Wood v. San Francisco, 4 California, 194.
^2 Bissell v. The New York Railroad Co., 23 New York, 61.
^3 26 Pennsylvania State, 223.
^4 See Dovaston v. Payne, 2 Smith's Leading Cases, 199*, 6th edition, and the English and American notes to that case.
^5 New Orleans v. United States, 10 Peters 717.
^6 18 Howard, 150.
^7 1 Black, 209.
^8 Lorman v. Benson, 8 Michigan, 18.
^9 24 Illinois, 523.
^10 1 Louisiana Condensed Reports, 451.
^11 18 Louisiana, 122.
^12 Mrs. Kennedy v. Municipality No. 2, 10 Louisiana Annual, 54, A.D. 1855; Remy v. The Second Municipality, 11 Id. 161, A.D. 1856; Barrett v. New Orleans, 13 Id. 105, A.D. 1858.
^13 Municipality No. 2 v. Orleans Cotton Press, 18 Louisiana Annual, 240.
^14 Essay of Judicature.
^15 Cleveland v. Boerem et al., 24 New York, 613, S.C.., 27 Barbour, 252