Not a Lexis Advance subscriber? Try it out for free.

Pollard v. Hagan

Supreme Court of the United States

February 18, 1845, Decided

No Number in Original


 [*219]   [**569]  Mr. Justice McKINLEY [***20]  delivered the opinion of the court.

This case comes before this court upon a writ of error to the Supreme Court of Alabama.

An action of ejectment was brought by the plaintiffs against the defendants, in the Circuit Court of Mobile county, in said state; and upon the trial, to support their action, "the plaintiffs read in evidence a patent from the United States for the premises in question, and an act of Congress passed the 6th day of July, 1836, confirming to them the premises in the patent mentioned, together with an act of Congress passed the 20th of May, 1824. The premises in question were admitted by the defendants to be comprehended within the patent; and there was likewise an admission by both parties that the land lay between Church street and North Boundary street, in the city of Mobile; and there the plaintiffs rested their case."

 [*220]  "The defendants, to maintain the issue on their part, introduced a witness to prove that the premises in question, between the years 1819 and 1823, were covered by water of the Mobile river at common high tide;" to which evidence the plaintiffs by their counsel objected; but the court overruled the objection, and permitted the evidence [***21]  to go to the jury. "It was also in proof, on the part of the defendant, that at the date of the Spanish grant to Panton, Leslie & Co., under which they claim, the waters of the Mobile bay, at high tide, flowed over what is now Water street, and over about one-third of the lot west of Water street, conveyed by the Spanish grant to Panton, Leslie & Co.; and that the waters continued to overflow Water street, and the premises sued for, during all the time up to 1822 or 1823; to all which admissions of evidence, on part of the defendants, the plaintiffs excepted." "The court charged the jury, that if they believed the premises sued for were below usual high water-mark, at the time Alabama was admitted into the union, then the act of Congress, and the patent in pursuance thereof, could give the plaintiffs no title, whether the waters had receded by the labour of man only, or by alluvion; to which the plaintiffs excepted. Whereupon a verdict and judgment were rendered in favour of the defendants, and which judgment was afterwards affirmed by the Supreme Court of the state."

This question has been heretofore raised, before this court, in cases from the same state, but they went off upon [***22]  other points.As now presented, it is the only question necessary to the decision of the case before us, and must, therefore, be decided. And we now enter into its examination with a just sense of its great importance to all the states of the union, and particularly to the new ones. Although this is the first time we have been called upon to draw the line that separates the sovereignty and jurisdiction of the government of the union, and the state governments, over the subject in controversy, many of the principles which enter into and form the elements of the question have been settled by previous, well considered, decisions of this court, to which we shall have occasion to refer in the course of this investigation.

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

44 U.S. 212 *; 11 L. Ed. 565 **; 1845 U.S. LEXIS 431 ***; 3 HOW 212


Subsequent History: Related proceeding at Goodtitle ex dem. Pollard v. Kibbe, 50 U.S. 471, 13 L. Ed. 220, 1850 U.S. LEXIS 1436 (1850)

Prior History:  [***1]  This case was brought up by writ of error from the Supreme Court of Alabama.

It was an ejectment brought by the plaintiff in error in the Circuit Court (State Court) of Alabama, to recover a lot in the city of Mobile, described as follows, viz.: Bounded on the north by the south boundary of what was originally designated as John Forbes & Co.'s canal, on the west by a lot now or lately in the occupancy of, or claimed by,     Ezel, on the east by the channel of the river, and on the south by Government street.

The case was similar in its character to the two cases of City of Mobile v. Emanuel et al., reported in 1 Howard, 95, and Pollard's lessee v. Files, 2 Howard, 592. In the report of the first of these cases the locality of the ground and nature of the case are explained.

In 1 Howard, 97, it is stated that the court charged the jury, that "if the place in controversy was, subsequent to the admission of this state into the union, below both high and low water-mark, then Congress had no right to grant it; and if defendants were in possession, the plaintiffs could not oust them by virtue of the act of Congress." And at page 98 it is remarked, that "the Supreme Court of Alabama [***2]  did not decide the first point raised in the bill of exceptions, viz.: that Congress had no right to grant the land to the city of Mobile."

In the case of Pollard's lessee v. Files, it is remarked (2 Howard, 601) that "the arguments of both counsel as to the right of the state of Alabama over navigable water in virtue of her sovereignty, are omitted, because the opinion of the court does not touch upon that point.

In the present case, there were objections made upon the trial below to the admission of certain evidence which was offered by the defendant; but these objections were not pressed, and the whole argument turned upon the correctness of the charge of the court, which was as follows: "That if they believed that the premises sued for were below usual high water-mark, at the time the state of Alabama was admitted into the union, then the act of Congress, and the patent in pursuance thereof, could give the plaintiff no title, whether the waters had receded by the labour of man only, or by alluvion; to which plaintiff excepted, and the court signs and seals this bill of exceptions."

Under these instructions the jury found for the defendant, and the Supreme Court of Alabama affirmed [***3]  the judgment. From this last court the case was brought up, under the 25th section of the Judiciary Act, and the only question was upon the correctness of the above instructions.

Lessee of Pollard v. Files, 43 U.S. 591, 11 L. Ed. 391, 1844 U.S. LEXIS 347 (1844)


territory, river, treaty, cession, new state, thence, soil, compact, navigable waters, ceded, deed, sovereignty, eminent domain, rights, act of congress, public land, municipal, flowed, limits, sovereign right, navigation, purposes, shores, original state, ordinance, erected, patent, cases, unappropriated, inhabitants

Constitutional Law, Relations Among Governments, Federal Territory & New States, Real Property Law, Eminent Domain Proceedings, Constitutional Limits & Rights, General Overview, Bill of Rights, Fundamental Rights, Eminent Domain & Takings, Trusts, Holding Trusts, Procedures, Governments, Federal Government, US Congress, Public Lands, Property, Supremacy Clause, State & Territorial Governments, Boundaries, Congressional Duties & Powers, International Law, Individuals & Sovereign States, International Trade Law, Commerce Clause, Authority to Regulate, The Judiciary, Jurisdiction, Ownership & Transfer, Public Entities