THE JCDHOND80N ISLAND CASE.
But these· structures, although built under the direction of the engineers in charge of the improvement of the navigable channels of the Chesapeake, and of the officials in charge of the maintenance of the lighthouse, were constructed primarily to facilitate the purposes of the fish commission, and 80 far 8S they are now used, in the sense of being occupiedandheld in exclusive possession, they are used solely by the fish commission. The houses removed from the other portions of the island at the termination of the lease, and re-erected on this new-made area, have no use whatever in connection with the light-house; or with commerce or navigation. It was held "by this court in the Hawkins Point LightH0U86 0186, 89 Fed. Rep. 77 , that the United States might erect a necessary light-house in a navigable stream in front of the land of a riparian proprietor who had not only the rights which the Maryland law of 1862 had given him 8S riparian proprietor, but bad also a patent from the state for the submerged land itself, without making him any tion. :But it is a necessary qualification of that rule that the United States can exclude the owner,without making him compensation, to no greater extent than is reasonably necessary for the maintenance of the light-house; and that the United States would have no right to forbid such an 'owner from making any use of the premises which did not interJere with the ea'3ement asserted by it for the public use of commerce and navigation. If, for eX!lmple, the riparian owner had, under the state law,mex.. clusiveright to plant and take oysters in the waters the so, unless it was injurious to the light-Ilouse light-house,he could structare, Qr interfered with navigation; but tbeUnited States could pot exclu<ie ·him·fromthat privilege upon the ground that it interfered with the' or navigation, and grant the same to the. fish So in this case, if these structures are such that, ifmade bjrariy p'rivate person, tbey would become appurtenant to the island, and belong to the owner of it, if the United States justifies the tion of them on the ground that tbeyare aids to commerce Rnd navigatibri,itcim only exclude the owner of the. island from them to theextl:lnt required: by the, use which is relied upon as the justification of their const1;notion. After. erecting· the light-house upon the. parcel 45 feet square, ,to which the United States title by deed, it might,hlLve discotered that the safety of the light-house required that a. heavy wall should he built out in the water so as to surrOlllldthe island. If !luch a .wall .had bt:en built, could it be· contended .that· the United States migbtsayto the owner oBhe land, ''You:mustnot. make any use oftbe wall fur landing. orlhawing seines because it is. injurious to the strU;Qture;"andthen proceed to grant that privilege to the fish· COmmiElSion. to us that, if this was a case. ofordinaryriparian,ownershipj the owner of the island would: beentitledtQ·the addit.ions islM,d
in the made by the United States, .subject only to the easement United States for the aid of commerce and navigation. But in this case it is urged by counsel for the United States that by the act of 1835, c. 99, and determination of the commissioners under it, the plaintiff is debarred from acquiring apy title to any extension of the island beyond the outlines fixed by those commissioners. It is urged that with regard to this island the special law of 1835, restricting its limits, controls the general law of 1862, which allowed riparian owners to extend their lands into the water, subject only to the restriction that they shall not interfere with navigation, and that as to:this island it had been authoritatively determined to what extent the extension might be made without interfering 'with' navigation. But if, under the general law, an extension should be made in suoh manner as to interfere with navigation; the riparianowner would be none the. less the owner of the improvement. He might be Hable to indictment for .mainiaining a nuisance, or to some appropriate proceeding.. instituted by the state to have the ·unlawful structure;'abated, and would no doubbbe liable to private actions at the instance of any one who suffered spedaLdamage, but meanwhile we do not think he could be ousted by a stranger, or by his own tenant, .but might tmaintain his possession against unauthorized intruders. So with regard, to this island, it appf'ars to us that, although the owner had improved ;out beyond the lines fixed by. the commissioners, and had rendered himself liable to similar proceedings requiring its removal, yet, while the improvement or extension r.emained, he would be under the general Jaw the owner, and could possession against any privateper$On who attempted to turn him out. Yates v. Milwaukee, 10 Wall. 497. In Browne v. Kennedy, 5 Hal'. & J. 206, the court of appeal!,! of MaTyland said: relicted lands, and otber increase arising in navigable rivers, itiEngland, to the king. here to the state; where thppl'operty in tbe soil hltsn()t beea appropriated;' but where it has become private property, either by grant or p'rescripti0n. the same rules do or should apply to it that govern other ,private property.of saine nature. It is subject to the saine la w of by the Ilame mode and form of conveydescents. and liable to be ance, apd is' subject of the rules applicable to lands not granted or distributed out." . .
,. . h
See, also, Giraud's LeB8ee v. Hughesi 1: ·Gill & J. 249. It would appear that, as a fact, the extensions made to the island do not interfere' with navigation as they have been constructed by those having charge .of the improvement of navigation, and, although, as against' the plaintiff, they might, at the instance of the state,beadjudged ,unlawful, because of the restrictions of the act of 1835, still until that! is done, in our opinion, we legal title is in the plaintiff. Wlth such a legal title to the locus in quo, although it is subject:to an easement; think there is no doubt that the plaintiff may maintain this action of ejectment. In Adams v. F}m(!/f'son, 6 Pick. 57, it :was held that the owner of the soil over which aWI'Dpike road was laid out niight maintain trespaFls fJgainstthe turnpike corporation for taking the herbage. In tleciding ,this case, the Massachusetts court said:
THE EDMOlSDSON ISLAND CASE.
"The in quo, althongh a part of a turnpike road, is the soil and freehold of tile plaintiff. lIe has the exclusive right of property in the land, subject, however, to the easement or rights incident to a public highway, such as the right of passage over it, and the right which the turnpike company has to construct a convenient pathway; and to keep it always in good repair. To accomplish these purposes, the corporation may dig and remove, from place earth, sand, and to plac!', within the limits * * * for the road, gravel, and may dig or cut up sods and turf; but it by no means follows that the corporation hHS the right of herbage which is the exclusive property of the owner of the soil, as well as all trees, mines, etc. The corporation has no right of property in thl! land, but only a servitude or easement, and this doeS not clash with the plaintiff's exclusive right of property in the laud. * * * It was once doubted whether ejectment or other real action would lie for the soil of a road or highway, because it was said full seisin could not be'delivered, and a dictum of Lord HAl.'tDWICKE was quoted to that effect, in the case of (Joodtitle v. Alkm', 1 Burrows, 133; but that doubt was removed by the decision in that case, and very clearly it had no foundation in principle." The same doctrine had been previously held by the same court in RQbbins v. Borman, 1 Pick. 122, and was reaffirmed in Perley v. Chand-. ler, 6 Mass. 454, in which the court said: "The soil and freehold remain in the owner, although incumbered with a way; and every use to which the land can be applied, and all the profits which may be derived from it consistently with the continuance of the easement, the owner may lawfully claim.' He may maintain ejectment for the land thus incumbered, and, if the way be discontinued, he shall hold the land free of the incumbrance." In our judgment, the plaintiff is entitled to a verdict and judKment for the premises declared for, subject to the easement in the United States to make such use thereof as is necessary for the protection of the lighthouse. Having reached this conclusion without reference to the questions growing out of the relation of landlord and tenant, we do not find it necessary to rule upon the prayers in which the contentions of the' plaintiff based upon that aspect ,of the case are stated, but it is evident that the familiar rule that a tenant cannot be held to dispute his landlord's title must, so far as it is applicable, strengthen the plaintiffs' Case, .and tend to support the conclusions at which we have arrived.
UNiTED SrATl£SV. GARRETE?ON. t
(C:(rcuit Oourt, S.
The geMral public domain iBopen to ;private entry, and lands cannot be said to be reserVed for such entry; The lands reserved are those severed from the mass of publio lands, and appropriated: for governmental purposes.
SAME-OFFENSES AGAINST LAND LAWS-CUTTING TIMBER-!NDIOTMENT.
ATIONS-,'-LAND' SUBJEOT TO ENTRY·.
Tbe last of section .Rev·.St., forbids the cutting or.. removal of timber from lands ope;n to entry \iit1l the intent to use it for any other than United States naval purposes; but sUch intent mU$t be alleged in the information or indictment. . ..
Ris a "..en.I:Iral. ruIe in .. ..the c.on lil tnIction o. . .. that general preceded or foll,?wed by particular words. the same, or another. clause are qualified or restramed by them. . .· . .· ..'.' .. . 4. SAME-CUTTINGTIMBER""'-TuR'1>aNTINB' Bdiitm. · Rev. St. § 5888, makes thawanton destruction of timber on lands reserved for public uses acriml1, but does not coyer turpentine boxing or destruction of timber on lands open .for pre-emption,' homestead, and cash entries. Penal statutes cannot be extended beyond the obvious meaning of their terms on any plea of failure of and, if t'iieta is a fair doubt whether the act charged j:,ls embraceD. in·a.crimlnal, prohibition, that doubt is to be.resolved in favor of the accused.
At LaW. . On :demurrer to criminal information. The opinion covers points made on! original hearing and rehearing. L. H. Faith, for demurrant· .Y. D. lt1ckersham, Dist. Atty. ;, :for the United States. TOULMINIJ'. The first, second; and third counts in the information charge thedeftmdant with unUl.wftillyeutting, and procuring to be cut, timberon lands of the United Statei,"I\'hich, in pursuance of law, have been reserved for pre-emption,hotnestead, and cash entries; and the fOlli'th and fifth counts eharge hirtl'wi1:h wantonly destroying, and procuring to be 'wantonly destroyed;' timher on the same lands of the United States, with the 'same avel'mentthttt they were lands which, in pursuance of law, had been reserved /1(}r pre-emption, homestead; and cash entries. and that the cutting and wanton destruction of the timber was by boxing and chipping the same for turpentinepuTposes. The demurrers are, in substance, that the information fails to aver that the timber alleged to have been unlawfully cut and to have been walltonly destroyed was on lands of the United States which, in pursuance oflaw, had betn reserved or purchased for the use of the navy of the United States, or for military or other public purposes, and that it fails to aver the intent }Vith which the alleged cutting was done. It is conceded by the district attorney thai the information is not good under section 2461, Rev. St., under the latter clause of which it is necessary to aver the intent with which the cutting was done. But the contention is that the information is good under section 5388, Rev. S1., which provides, as
IReported by P. J. Hamilton, Esq., of the Mobile, Ala., bar.