INTRODUCTION
 

Ownership and control of submerged lands have played a pivotal role in the nation's economic, political, and cultural development. Many of America's greatest cities are located on lands that were once submerged. Navigational improvements of lands beneath coastal waters and along inland waterways have been instrumental in integrating the national economy. Because of their economic value and social importance, submerged lands have been the subject of conflicting laws and policies throughout the history of the nation. These laws and policies have attempted to balance the competing pressures from those user groups that seek to exploit the lands for private gain versus those that wish to protect the lands for the public's benefit.

Although most legal rules governing ownership of submerged lands in the United States were settled long ago in a series of judicial decisions in the nineteenth century, the current legal regime is far from uniform or coherent. Many of the rules depend on whether the land is located in coastal or inland areas. Submerged lands that are subject to the ebb and flow of the tide are owned by the state in which they are located and are subject to the ancient doctrine known as the "public trust." This well established doctrine provides that title to submerged lands is held in trust for the people of the state for purposes of navigation, fishing, and commerce and may only be conveyed to private parties if the proposed use is in the state's higher public interest.⁽¹⁾

In contrast, there is no uniform set of legal rules regarding ownership of navigable rivers and streams that are not subject to the ebb and flow of the tide. Some states such as Pennsylvania and Arkansas retained public ownership of submerged lands under navigable freshwaters believing that their control was too important to be left to the dictates of private owners.⁽²⁾ Other states, including Mississippi, allow private riparian owners to own the bottoms of navigable rivers and streams subject only to a public right of navigation.⁽³⁾ Private ownership of water bottoms has even been applied to the greatest rivers such as the Mississippi and Yazoo.

This article will examine the historical origins of Mississippi's submerged lands law. It will focus on an interesting yet little known episode in the state's history, that we will call the Vicksburg Flatboat War of 1838.⁽⁴⁾ Although the episode had relatively little intrinsic historical importance, it has left a profound mark on the state's submerged lands law. After briefly describing the events that led to the so-called war, the article will discuss how the dispute was settled by the courts as well as its subsequent impact on Mississippi's political and economic development.
 

VICKSBURG IN THE 1830S
 

By the early 1830s it has been estimated that some 4,000 flatboats descended the Mississippi River each year to deliver cargo to New Orleans and other southern ports.⁽⁵⁾ These boats were crudely and cheaply built from heavy wood beams. They were generally 50-100 feet long and about 18-25 feet wide. Most carried a 25 to 100 tons of the most diverse type of cargo. One contemporary observer wrote that the river was "literally covered with crafts conveying off produce, property, and articles of every kind and denomination that you could possibly think of, and many that you, nor no other person except a Yankey, would not think of taking to market."⁽⁶⁾

During the winter months, it was not unusual to have as many as four or five hundred flatboats tie up along Vicksburg's waterfront.⁽⁷⁾ Because these boats averaged about four crew members each, nearly 1500 to 2000 transient flatboatmen found their way into the city each winter.

Not surprisingly, altercations between the townsfolk and the large flotilla of visiting flatboats and their crews were quite common. As early as 1831, a militia company was formed to protect citizens from the "prospect of a great many visitors the coming winter."⁽⁸⁾ Many of the disputes between the permanent residents and transient crew members were of the typical variety. For example, violations of laws relating to public drunkenness, assault, theft, prostitution, and gambling dramatically increased during the winter months. However, of perhaps greater concern to the local population was the economic and moral consequences presented by the large influx of strangers from the north.

Through the eyes of local merchants, the flatboats were seen as serious and unscrupulous business competitors. Although the merchants depended on the boats for their wholesale supplies, they deeply resented the fact that local citizens were going down to the waterfront and buying their goods directly from the boatmen. The following letter to the editor of a local newspaper illustrates the level of frustration exhibited by Vicksburg merchants:
 

...I am a merchant, and as such, and for the privilege of being such I am taxed. But whilst I am taxed for the privilege, strangers are allowed to bring their produce along side our wharves, and without being subjected to either taxation or rents, are permitted to dispose of their produce or other merchandise at lower rates than can be afforded by the settled merchant, subjected as he is to taxes and rent. Is this being protected in the right for which I pay? Is it right that the stranger be allowed greater privileges than I enjoy? Why should fleets of flat boats and other vessels be permitted to lie at our wharves and their owners be allowed to dispose of their contents free from all taxes, whilst I must be restricted in my dealing, and submit to such ordinances as the corporation may choose to ordain....⁽⁹⁾
 

In addition to economic jealousies, moral and political concerns may have played an equally large role in the resentment exhibited by local citizens toward the flatboatmen. The writer of another letter to the editor feared that the liquor being supplied by the flatboats "seduces the poor, and particularly our slaves to buy, and the constitution is injured by its drink, whilst the morals are corrupted."⁽¹⁰⁾ Furthermore, it was pointedly noted that the strangers from the north came "from a country whose people entertain deep rooted prejudices against our institutions, who have for us a secret hatred."⁽¹¹⁾

The long simmering animosity that existed between the townspeople and community of strangers erupted into violent confrontation on the Fourth of July in 1835 when a well known and highly inebriated gambler rudely disrupted the city's holiday celebration.⁽¹²⁾ After serving out his day in jail, he showed up at city hall the next day, heavily armed, and threatened revenge. A group of citizens quickly disarmed him and took him to the city limits where he was whipped, tarred and feathered, and told never to return.

That evening, rumor spread among the townsfolk that many of the gambler's friends and colleagues had gathered to plan their revenge against certain city leaders. In a preemptive strike, the townspeople hastily established an organization known as the Anti-Gambling Society which was delegated the duty to close the gambling halls and to run their proprietors out of the city. However, what began as a limited effort to rid the city of gambling became in reality an opportunity to purge the city of all kinds of perceived undesirables. The militia suspended the law for a twenty day period and quickly began the task of rounding up for tar and feathering all suspected thieves. Mobs went to all of the gambling halls, gathered up and burned in the street all gambling devices, and told the owners to get out of town.

Most in the gambling community took the threats quite seriously and quickly complied. However, five gamblers barricaded themselves inside their structure and refused to come out. When a group of citizens tried to rush the premises, a respected physician was shot in the chest and killed. The door was eventually broken down, and all five of the gamblers were quickly taken to the outskirts of town and unceremoniously executed by hanging.
 

FLATBOAT WAR OF 1838
 

Any easing of tensions between the Vicksburg townspeople and outsiders as a result of the gambling riots of 1835 was short- lived. Soon, the economic boom that had transformed Vicksburg into the second largest and commercially important city in the state disappeared (Natchez was the premier city). The national financial crisis of 1837 hit Vicksburg especially hard.⁽¹³⁾ Cotton, the engine that fueled Vicksburg's unprecedented growth, lost more than 50 percent of its value between December 1836 and April 1837. County land and lots within Vicksburg that had doubled or tripled in value each year in the past could not be sold at any price as a result of the crash in cotton prices and the unavailability of currency.

As the economy worsened, local merchants focused more and more attention on the damage that flatboats were doing to their increasingly scarce business. According to the reminiscences of William Fulkerson, a resident of Vicksburg at the time, the City Council came under increasing political pressure from local merchants to run the flatboats from the city's landing.⁽¹⁴⁾ To accomplish this task, the City Council enacted a series of escalating taxes and wharfage fees to prevent the flatboats from undercutting the prices of established merchants. It seems that the flatboat operators were willing to pay the taxes until, according the Fulkerson, they were raised to the draconian level of fifty dollars per day.⁽¹⁵⁾ Although the fifty dollar per day tax reported by Fulkerson seems to be an exaggeration, there is clear evidence that the city intended to make it so expensive for the flatboats to do business that they would be forced to move elsewhere.⁽¹⁶⁾

In the Winter of 1838, the flatboatmen finally rebelled and refused to pay the city until they could get a hearing in court regarding the legality of the city's taxes and fees. According to Fulkerson, "to this end they armed themselves with the one or more rifles or shotguns on each boat, and with heavy bludgeons cut from a boat a load of hickory hoop-poles lying at the landing."⁽¹⁷⁾ Upon hearing that the flatboatmen had taken up arms, the Chief of Police called in the militia. Two companies marched to the landing in full uniform, with muskets and fixed bayonets, and armed with a cannon. To counter the buildup, the flatboatmen armed with clubs and rifles created a breastwork of cotton bales and dragged out their own cannon.

The eyeball to eyeball confrontation continued for some time until as Fulkerson relates:
 

After much quarreling and threatening, and some feeble attempts at casting off the lines of some boats, disgust at the situation suddenly seized the citizens and soldiers, and they 'marched up the hill again,' concluding it was best to let the courts decide the question.⁽¹⁸⁾
 

So ended the armed phase of the Flatboat War of 1838. The dispute between the City of Vicksburg and the flatboatmen next moved to the courts and legislature.
 

LOWER COURT DECISION AND LEGISLATION
 

In the litigation that followed, the flatboatmen premised their defense on the issue of submerged lands ownership. To the author's knowledge, no written records exist of the resulting Warren County Circuit Court decision pertaining to the dispute. However, Fulkerson noted that the original Circuit Court decision went against the city.⁽¹⁹⁾ In the absence of a written opinion we can only speculate about the court's reasoning, but it is likely that the decision was based on the fact that the Court did not believe that Vicksburg had legal jurisdiction over submerged lands of the Mississippi River. This conjecture is grounded upon the actions that the city took in February 1839 when it went to the State Legislature to amend its city charter to expand the limits and boundaries of Vicksburg to a point in the Mississippi River "as far as the state boundary on the Mississippi River extends..."⁽²⁰⁾ In addition, the new charter created a Mayor's Court, which had the legal authority to usurp all of the duties that had formerly been entrusted to the Warren County Circuit Court.⁽²¹⁾ It also authorized a sizeable fines and imprisonment for any violation of a city ordinance.⁽²²⁾ These actions can only be interpreted to indicate that the city was attempting to correct the legal deficiencies that caused the unfavorable Circuit Court ruling preventing it from carrying out its aim of forcing the flatboats out of Vicksburg.

The following year, Vicksburg again amended its charter. The newest charter authorized the city to require all flatboats to obtain a city license and pay ad valorem taxes on all merchandise sold within the city limits.⁽²³⁾ The city thus laid the legal groundwork necessary to aggressively enforce its policy against flatboats.

MISSISSIPPI SUPREME COURT DECISION
 

On May 6, 1841, William Harrison of Ohio, the owner of a flatboat loaded with flour, whiskey, pork, and bacon, landed at the port of Vicksburg and proceeded to dispose of his cargo. Harrison was a longtime trader on the river and balked when the city requested that he obtain a license and pay ad valorem taxes. He also refused when the private owner of the land fronting the river where his boat was located demanded that he pay a wharfage fee of one dollar per day for tying up to the riverbank. Harrison argued that the public had a legal right to navigate on the Mississippi and that a private landowner could not charge vessels for exercising this right. The city quickly issued a warrant from the Mayor's Court to recover a civil fine of fifty dollars. In addition, the private owner attached his boat for failure to pay rent.⁽²⁴⁾ Harrison lost in the lower court and appealed the decision to the High Court of Errors and Appeals (as the State Supreme Court was known at the time).

The dispute reached the Supreme Court as two separate yet factually related appeals. The first appeal entitled, William Harrison v. The Mayor and Council of Vicksburg, involved the legal question of whether the tax on merchandise sold within the City of Vicksburg violated the Interstate Commerce Clause of the United States Constitution.⁽²⁵⁾ The Court quickly disposed of this case finding that intra-state and inter-state commerce was taxed identically and therefore there was no impermissible burden on interstate commerce.

The second appeal, entitled, Daniel Morgan and William Harrison v. Abraham B. Reading, addressed the broader and important issue of who owned the submerged lands of the Mississippi River, and more precisely, whether a private riparian landowner could charge rent for their use.⁽²⁶⁾ The flatboatmen presented a wide-ranging and eloquent attack on the notion that the lands beneath the great rivers of the United States should be subject to private ownership. They cited historical authority based on treaties between the United States, France, and Spain; treatises by noted international scholars; and precedent in other states such as Pennsylvania and South Carolina, which rejected private ownership of large rivers. Their legal brief concluded with a passionate, if somewhat hyperbolic, appeal to the Justice's sense of economic and social fairness as follows:
 

The efforts ... to render the great body of the people tributary to a few quasi riparian and city lords, have kindled a flame throughout the whole valley of the Mississippi, which will never be extinguished until this lawless system of plunder is suppressed.⁽²⁷⁾
 

Abraham Reading, the riparian landowner, argued that the English Common Law provided that submerged lands under navigable freshwaters are subject to private ownership and no distinction should be made between small streams and large rivers. He recognized that the public had a right to navigate over privately owned submerged lands, but refused to equate this right of navigation with the seasonal mooring of flatboats as a place to sell goods.⁽²⁸⁾

In a well-researched, yet seemingly predetermined unanimous opinion, Chief Justice William Sharkey upheld private ownership of submerged lands and the practice of charging rent for their use. He interpreted the Common Law rule as providing for private ownership of any waterway that was not subject to the ebb and flow of the tide. He also rejected as unpersuasive the policy determinations of several other states that exempted the largest navigable rivers from the Common Law rule.⁽²⁹⁾ Finally, he held that the riparian proprietors on the Mississippi River probably own out to the middle thread of the river, but at a minimum, at least to low water mark.⁽³⁰⁾

Of course, it is impossible to enter the minds of the Justices to determine why they ruled as they did. It is possible that Chief Justice Sharkey and the other two Justices truly believed their assertion that, "the protection of the riparian owner, so far from being detrimental to navigation, is important to its perfect enjoyment."⁽³¹⁾ However, there is also evidence that politics and self-interest played more than a minimal role in the decision.

All of the lawyers, judges, and defendants who were involved in the case were wealthy and politically powerful citizens of Vicksburg.⁽³²⁾ Moreover, all had either direct financial interests in property along the Vicksburg waterfront or had close business relationships and personal friendships with riparian property owners. Much of Vicksburg's waterfront was in fact owned by the famous lawyer, orator, and Whig politician, Seargent S. Prentiss. Prentiss obtained a large portion of the land fronting the river by successfully representing the heirs of the town founder in a dispute over the dead man's estate. The flatboatmen presented evidence in Morgan that Abraham Reading did not own the waterfront property in question, but instead that the land was owned by either Prentiss or a man named Gilmore who had been deeded the land by Prentiss.⁽³³⁾

William Sharkey was a close friend of Prentiss, a former member of Prentiss' law firm and a fellow Whig politician. Sharkey was fully aware of Prentiss' considerable land holdings in Vicksburg, writing a letter to him at one point disputing Prentiss's estimate of the land's worth at one hundred thousand dollars and instead appraising the value of the property at not "less than three or four hundred thousand dollars."⁽³⁴⁾ In fact, Sharkey recused himself from the original proceedings before the Supreme Court because of his personal interest in the outcome.⁽³⁵⁾

Regardless of whether Chief Justice Sharkey's decision was influenced in any manner by his personal friendship or business dealings with Prentiss, there is no question that the Morgan decision substantially benefited any party that owned land along the state's navigable waterways. The individuals that benefited most, excluding Prentiss, were planters who owned rural property in the Mississippi Delta region and business people that lived in Vicksburg, Natchez and other river communities that were now able to exclude flatboat competitors.⁽³⁶⁾ Clearly, the constituency that benefited most from the Morgan decision was the same constituency that formed the nucleus of the Whig party.
 

CONCLUSION
 

The rampant land speculation, bank failures, cotton fortunes, and flatboat trading that dominated the Mississippi frontier period of the 1830s and 1840s created a unique economic, political, and legal environment that will not be duplicated. Given the small and close-knit group of elites that controlled the state's affairs during the period, it may have been inevitable that legal decisions were sometimes based more on politics and personal gain than on sound legal analysis.

The problem is that under our common law system, decisions made more than 150 years ago continue to govern today's world. We are still living with the consequences of Justice Sharkey's decision in Morgan. For example, it is possible that hundreds of millions of dollars of revenue has been lost to the state as a result of the Supreme Court's decision in 1844 that turned over all submerged lands to private owners. We may only speculate at how many millions of dollars in oil and gas or other mineral royalties have been foregone as a result of the Morgan decision. Similarly, we may never know how much the state paid in eminent domain damages to private individuals for public improvements to submerged lands. Finally, it is impossible to determine how many acres of environmentally fragile aquatic areas could have been protected or better managed if they had not been granted to private owners.

Like the 1830s, Mississippi is currently enjoying an economic boom period. The state's dockside gaming industry has triggered a new wave of land speculation. Today's courts are dealing with many of the same submerged lands issues that confronted their judicial brethren during the Sharkey era. The same types of economic and political pressures that led to the 1838 Flatboat War and the Morgan decision are still with us. It is up to today's judiciary to foresee how its decisions will be perceived by future generations and to rule accordingly.

1. A more detailed discussion of the public trust doctrine and how it has been applied in Mississippi may be found in WATER LOG volume ? and ?

2. A discussion of those states that have retained title to the beds of all navigable waters may be found in Henry Philip Farnham, THE LAW OF WATER AND WATER RIGHTS (1904) at 253-256.

3. For a discussion of the laws of those states that provide for private ownership of the beds of navigable waterways see id at 249-251.

4. The term "Flatboat War" was coined by H.S. Fulkerson, in his description of the episode as reported in his book, RANDOM RECOLLECTIONS OF EARLY DAYS IN MISSISSIPPI originally published in 1885. The book was republished with biographical sketch and introduction under the editorship of P.L. Rainwater, Baton Rouge, Louisiana, Otto Claitor, (1937). Fulkerson's is the only popular narrative description of the event known to the author. All of the other information comes from various legal records.

5. For an excellent discussion of the flatboat trade, see Harry N. Scheiber, "The Ohio-Mississippi Flatboat Trade: Some Reconsiderations," in THE FRONTIER IN AMERICAN DEVELOPMENT (David M. Ellis, ed. 1969) at 277-298.

6. id at 283.

7. H.S. Fulkerson, RANDOM RECOLLECTIONS OF EARLY DAYS IN MISSISSIPPI, (1937) at 97.

8. Most militias in Mississippi during this period were formed to prevent slave revolts in the aftermath of the Nat Turner rebellion in Virginia. In contrast, The prime objective of the Vicksburg militia was to regulate the behavior of the numerous strangers that were located in the city. See, Christopher Morris, BECOMING SOUTHERN: THE EVOLUTION OF A WAY OF LIFE, WARREN COUNTY AND VICKSBURG, MISSISSIPPI, 1770-1860, (1995) at 120.

9. Vicksburg Daily Whig, January 15, 1840.

10. Vicksburg Advocate and Register, April 13, 1836. As quoted in Morris supra note ? at 122.

11. Vicksburg Advocate and Register, April 9, 1836. Id.

12. Unlike the so-called flatboat war of 1838, the events of July, 1835 are well documented. The description that follows can be found in a number of books and articles. See for example, Fulkerson, supra note ? at 95-97; and Morris, supra note ? at 121-122.

13. For an interesting discussion of what Vicksburg was like before and after the 1837 crisis, see G. Prentiss, A MEMOIR OF S.S. PRENTISS, VOL. I (1881) at 183-186.

14. Fulkerson, supra note ? at 98.

15. Id.

16. Other than Fulkerson's account, there is no historical evidence that the city imposed a tax of fifty dollars per day on the flatboat operators. Instead, he may have been referring to a city imposed civil fine of fifty dollars.

17. Fulkerson, supra note ? at 98.

18. Id at 98-99.

19. Id at 99.

20. Laws of the State of Mississippi (1839), Chapter 145, Section 1, approved February 15, 1839.

21. Id at Section 40.

22. Id Section 41.

23. Laws of the State of Mississippi 1840, Chapter 45, Section 4.

24. Not surprisingly, during the same 1840 Mississippi Legislative Session that the Vicksburg Charter was amended to impose taxes and fines on flatboats, the State Legislature also enacted a separate law that provided for private maritime attachments. Laws of the State of Mississippi 1840, Session Acts, Chapter 72.

25. 3 Smedes & M. 581 (1844).

26. 3 Smedes & M 366 (1844).

27. Id at 390.

28. Id at 394.

29. Id. at 402-406.

30. Id at 406-407. It is interesting to note that while the Morgan Court's finding that riparian owners have title to the middle thread of the stream was clearly dicta, later courts interpreted and applied the middle thread rule as law. See for example, Steamboat Magnolia v. Marshall, 39 Miss 109,137 (1860); and New Orleans, Mobile & Chattanooga Railroad Co. v. Emilie Frederic et al., 46 Miss. 1, 9 (1871).

31. Morgan, id at 407.

32. Biographical information about the lawyers and judges can be found in, Frank E. Everett, Jr., VICKSBURG LAWYERS PRIOR TO THE CIVIL WAR.

33. Morgan, supra note ? at 367-368.

34. A MEMOIR OF S.S. PRENTISS, supra note ? at 220.

35. Shields, THE LIFE AND TIMES OF SEARGENT SMITH PRENTISS at 67.

36. Many of these men made their money while living in Vicksburg and later purchased plantations in the surrounding countryside. The defendant in Morgan v. Reading, Abraham Reading, was the owner of the town's foundry at the time of the decision, but bought a plantation later. William C. Smedes, another former law partner of Seargent Prentiss, also bought a local plantation. Interestingly, one year after Morgan was decided Prentiss ended up losing all of his Vicksburg waterfront property including the most luxurious hotel in town called Prentiss House when the United States Supreme Court reversed the Mississippi Supreme Court's decision that provided him with the land in the first place. See, Lane v. Vick, 3 Howard 463 (U.S.) (1845). Prentiss soon left Vicksburg for New Orleans and died penniless in Natchez at the age of 42.