138 Va. 461 | Va. | 1924
delivered the opinion of the court.
There is great conflict of authority in the States as to the ownership of the bed of nontidal navigable waters. The authorities are nearly evenly divided. The opposing views are well stated in 27 R. C. L. pp. 1360, 1362, sections 270 and 272, and there is a full citation of authority in the notes. These sections are as follows:
“The great size of many of the fresh water rivers of this country, and their capability of navigation, have induced some of the highest courts of several of the States to attach to them the common law consequences of navigability, thereby abrogating the common law distinction between them and those in which the tide ebbs and flows, so that grants bounded on such rivers stop at their margin. Thus in many States the same rule as to the ownership of and sovereignty over lands under the navigable fresh water rivers has been applied which obtains at common law as to the ownership of and sovereignty over lands under tide waters, and such lands are regarded as held by the same rights in the one case as the other, and subject to the same trusts and limitations.
“According to this view, in the case of large fresh water rivers which are navigable in fact, the riparian*467 owners do not take to the middle of the river, but the State is the owner of the subjacent soil, and the public have an easement in the river. So it has been decided that the owner of premises bounded on one of the Great Lakes takes no title to any submerged land under the waters of the lake. The wrongful diversion of the waters of a navigable river from its bed does not extinguish the title of the State thereto, or add to that of riparian owners.”
Section 272: “The view that the State has title to the bed of navigable fresh water courses is not uniformly followed by all the States, but there is a strong array of authorities opposed thereto, which do not regard the greater size of rivers in the United States as furnishing a sufficient reason for departing from the rule at common law. They have, therefore, held to the strict application of the common law rule that only those rivers in which the tide ebbs and flows limit grants of lands adjoining to high water mark, and that in all others, without regard to size or capabilities for transportation and commercial intercourse, the middle of the river is the boundary of lands on either side, except in some cases where a different rule has been applied'owing to the terms of the original grant, and is subject only to the public right of navigation. According to this view, where, by the law of a State, an owner of land on a river takes to the thread of the stream, a raparían owner whose land is bordered by a State boundary river takes title to the boundary between the two States regardless of whether that is nearer to or farther from the shore than the filum aquae of the stream. And where the lines of a grant of land from the State include a navigable river, the soil covered by the river passes with the grant, subject to the public easement of fishery and navigation, unless clearly confined within less limits by the grant,
In our view of the evidence in the instant case, it will not be necessary to enter into any discussion of this subject.
In Old Dominion Iron & Nail Works v. C. & O. R. R. Co., supra, the court confined its holding as to the right of raparían owners on James river, and'in the petition for the appeal in the instant case it is said that the waters and soil involved in that case are “the identical waters and soil' involved in the instant case.” Under these circumstances we shall confine what we have to say not only to James river, but to that part of the river in controversy in the instant ease.
The plaintiff in error bases its claim to so much ■of the land as lies' in the bed of the river, upon two grants from the Commonwealth; one issued to Beverly Smith in 1813 for twenty-foür acres, and the other to Hall Neilson in 1845 for 107% acres, and traces its title "to these two grants. This is an admission that the title "to the bed of the river was in the Commonwealth at the "time of the respective grants, and that previous grants to riparian owners did not extend to the thread of the stream, and this accords with the holding in Old Dominion Iron & Nail Works v. Ches. & O. R. Co., supra.
In the recent ease of Old Dominion I. & N. Works v. Ches. & O. R. Co., supra, it was in effect held, as stated in the opinion of the learned trial judge, that “this water in James river opposite Belle Isle near this very point was public waters, the bed was a public bed, belonging to the State of Virginia, and it was incapable of private ownership and incapable of private use.” Undoubtedly there are certain public uses of navigable waters which the State does not hold in trust for all the public, and of which the State cannot deprive them, such as the right of navigation, but, subject to these public rights, there is no reason why the beds of navigable streams may not be granted unless restrained by the Constitution. The legislature is the representative of the people in such matters, and may exercise full power over the property of the State except so far as that right has been ceded to the Federal government, or is restrained by the State Constitution. The State Constitution is not a grant of power, and the legislature may exercise any and every legislative power of the
Section 175 of the State Constitution prohibits the legislature from leasing, renting, or selling, the natural oyster beds, rocks and shoals in the waters of the State, and declares that the same shall be held in trust for the benefit of the people of this State, but there is no other inhibition in the Constitution on the powers of the legislature over the beds of navigable waters of the State. The result is that the legislature has the power to dispose of such beds and the waters flowing over them, subject to the public use of navigation, and such other public use, if any, as is held by the State for the benefit of all the people.
As said in Newport News Shipbuilding Co. v. Jones, 105 Va. 503, 513, 54 S. E. 314, 317 (6 L. R. A. [N. S.] 247), quoting from the case of Langdon v. Mayor of New York, 93 N. Y. 129: “The State has succeeded to all the rights of both the Crown and Parliament in the navigable waters within its limits, and in the soil under them. It holds them as absolute owner, and, except as restrained by the Constitution, its right to grant them is absolute and uncontrollable.” To the same effect, see Taylor v. Commonwealth, 102 Va. 759, 47 S. E. 875, 102 Am. St. Rep. 865. Of course, the grant is subject to the public right not to be prevented from, or unreasonably impeded in, navigation. The ownership by the State of the beds of navigable tidal streams and the right to dispose of the same to private persons, subject to the public right of navigation and fishing is well settled in this State. Taylor v. Commonwealth, 102 Va. 759, 47 S. E. 875, 102 Am. St. Rep. 865, and cases cited, especially McCready v. Virginia, 94 U. S. 391, 24 L. Ed. 248. For authority in other jurisdictions, see Saunders v. New York Central, etc., R. Co., 144 N. Y. 75, 38 N. E.
It is said that the old English cases hold that tidal streams are navigable in law, whether navigable in fact or not. Gaston v. Mace, 33 W. Va. 14, 10 S. E. 60, 5 L. R. A. 392, 25 Am. St. Rep. 848, opinion by Green, J. Whether the same consequences attach to a stream made navigable by statute, when not in fact navigable, as to a tidal stream, we are not called upon to decide, as the plaintiff in the instant case is claiming title under the Commonwealth as the owner of the bed of the river.
It may be conceded, therefore, for the purposes of this case, that.at the time the two grants aforesaid were issued, the. State was the owner of the bed of James river at the place in controversy and had the right to grant the said bed to the grantees aforesaid. But it may be well doubted whether the said grants were within the powers conferred upon the land office which issued them.
The land office was constituted by an act of the. General Assembly passed in 1779 (2 Rev. Code 1819, ch. 5, p. 365), and the lands for which it was authorized to issue grants are uniformly described as “waste and unappropriated lands.” The preamble of the act recites: “Whereas there are large quantities of waste and unappropriated lands within the territory of this Commonwealth, the granting of which will encourage the migration of foreigners hither, promote population, increase the revenue, and create a fund for discharging the public debt.” At that time the territorial limits of the State were very extensive and the population very sparse, except in a few counties in the eastern part of the State. There were vast areas of land that were in
The terms “waste and unappropriated lands,” in the usual acceptation of the term, was peculiarly appropriate to lands which were not occupied by anyone, and hence was “waste” so far as benefit to the State was concerned, and there were manifest reasons why the State should wish to sell them to those who would occupy and cultivate them. The object to be accomplished by the State was to increase its population and also its productive wealth. The phrase has no natural application to land under water. No one who bought a. hundred acres of “waste and unappropriated lands” would expect to find the whole area in the bed of a navigable stream. If land under water was intended it would have been so stated. Color is lent to this view by the provisions of the land office act, that “any person possessing- highlands -to which any swamp, marshes or sunken grounds, are contiguous shall have the preemption -of such swamp, marsh or sunken grounds for one year after the passage of this act; and if such person shall not obtain a grant for such swamp, marsh or sunken grounds within the year then any other-person may enter on and obtain a grant for the same in like manner as is directed in the case of other unappropriated lands.”
This provision manifestly refers to conditions existing in the eastern part of the State where there were “swamps, marshes and sunken grounds” usually adjacent to tidal streams, but gave no right to the bed of
When 'rights, have been conferred in the beds of waters, it has usually been done either by an act specially conferring the right, or by act mentioning the right to be dealt with and conferring upon some court, board, commission or agency power -to deal with the situation. This is well illustrated by the various acts ■conferring rights and powers in and' over the waters, and the various' acts relating to oyster planting grounds. The rights and interests of the State in -the beds of its navigable waters are of a peculiar nature and would seem to be too valuable to be open to purchase by anyone, who may offer the nominal price therefor asked by the State for its “waste and unappropriated lands.”
Furthermore, in-May, 1780, the year after the establishment of the land office, the legislature adopted the following preamble and'aet (10 Hen. Stat., p. 226):
“I. Whereas certain unappropriated lands on the bay, sea and river shores, in the eastern part of this Commonwealth, have been heretofore reserved as common to all the citizens thereof, and whereas by the act of General Assembly entitled an act for establishing a 'land office, and' ascertaining the terms and manner of .granting wasto and unappropriated lands, no reservation thereof is made, but the same is now subject to be ■entered for and appropriated by any person or persons; whereby the- benefits formerly derived to the publiek therefrom will be monopolized by a few individuals, and*474 the poor laid under contribution for exercising the accustomed privilege of fishing: Be it therefore enacted by the General Assembly, That all unappropriated lands on the bay of Chesapeake, on the seashore, or on the shores-of any river or creek in the eastern part of this Commonwealth, which have remained ungranted by the former government, and which have been used as common to all the good people thereof, shall be, and the-same are hereby excepted out of the said recited act, and no grant issued by theRegister of the Land Office for the same, either in consequence of any survey already made, or which may hereafter be made, shall be valid or effectual in law, to pass any estate or interest therein.”
This exemption from grant was still further enlarged. by the act of March 1, 1819 (1 Rev. Code 1819, ch. 86,, p. 322), declaring that all unappropriated lands on the bay of Chesapeake, on the seashore, or on the shores of any river or creek, and the bed of any river or creek in this Commonwealth, which have remained ungranted. by the former government, and which have been used as a common to all the good people thereof, shall be and. the same are hereby excepted out of this act; and no-grant issued by the Registrar of the Land Office.for the same, either in consequence of any survey already made, or which may hereafter be made, shall be valid or effectual in law, to pass any estate or interest therein. See also Code 1919, sec. 3573.
Under these circumstances it may be well doubted whether the legislature ever intended to confer upon the* land office power to grant title to the river bed as set-forth in the grants to Beverly Smith and Hall Neilson, hereinbefore mentioned, and, if it did, if that power was-not revoked by the acts aforesaid; but however this may be, and whatever views this court, as at present constituted, may entertain as to the power of the State.
As to the land outside of the bed of the river, the trial court held “that the evidence is insufficient to show title in the plaintiff to any portion of the land in controversy, or to maintain the issue on his part, that he is a coterminous owner with the defendants or either of them.”
The two tracts of land that are alleged to be coterminous to a certain extent are the Spring Hill tract.and the Grove tract. The original Spring Hill tract contained about seventy-three acres, extending to the thread of the river. The witnesses for both the plaintiff and the defendant seem to have located the line of this tract without much difficulty. This tract was added to by purchases from time to time till the shore land, still designated Spring Hill, contained one hundred and thirty-six and a fraction acres as shown by the defendant’s own testimony. To this must be added the two grants for land in the bed of the river containing 107 % acres. On the north side of these two tracts, and be
Whatever title the plaintiff has to the land in. controversy it acquired through a deed from John R. McLean’s- executor. The defendant claims that the de
This conclusion renders it necessary to ascertain what title John R. McLean acquired from those under whom he claims. It may be conceded that the agreement‘of 1845 between Holden Rhodes and Hall Neilson and the award in pursuance thereof do not so designate the boundary line between the Grove track and the Spring Hill tract that the same can be now located, in the absence of the shrubs and bushes therein referred to which have disappeared. But this line was evidently surveyed and located soon after said partition and while the natural objects referred to were probably still in existence. On July 6, 1846, just a year after the partition, Hall Neilson had an agreement with the New England Woolen and Cotton Compayin which this line is definitely fixed in giving the description of the parcel of two acres, two roods and thirty poles of land therein referred to. That description is as follows: “Bounded by a line commencing at a cedar tree, on the hill twenty poles from the James river, in the original west line, dividing the Spring Hill tract proper from the Grove tract, thence north eighty-seven degrees west, twenty-three poles, crossing a branch to a spruce bush corner, thirty feet west of said branch, thence north twenty-five degrees east eighteen poles, crossing the old canal to the James river, thence down the river twenty poles to the line first mentioned, and thence with the said line along a ditch and fence, south seventeen degrees west, twenty poles
Some time after 1850 the Richmond and Danville Railroad .Company (now Southern) acquired a strip of land eighty feet wide along the northern border of both the Grove and Spring Hill tracts and near the river. This acquisition left five or six acres of the Grove tract north of the railroad and between it and the river. The Grove tract was then owned by Holden Rhodes. He died in possession of it, and it passed, under his will and by subsequent conveyances- which are traced in the record, to Charles W. Turner, who, by deed dated December 9, 1886, conveyed it to T. C. Williams. ' The tract contained 187 acres,-and the deed conveyed the land lying on both sides of the railroad.
We are not here concerned, however, with the title of the parties to any part of the land except the western boundary claimed by the plaintiff, which is the only place where it can be said that their boundaries are coterminous. Section 5490 of the Code is a statutory remedy to have ascertained and designated the true boundary line or lines of coterminous landowners, and
Without going into a further detailed statement of the evidence, we are of opinion that the true western boundary of the plaintiff’s land north of the Southern railroad’s line, mentioned in the notice, is fixed by the deed from Burgess B. Long to the Spring Hill company, dated April 26, 1860; that the old dividing line between the Spring Hill and Grove farms was along a ditch which is still visible; that the location of the cedar tree on the hill mentioned in the deed from Morgan & Neilson, trustees, to Burgess B. Long, dated July 26, 1874, was twenty poles from James river along said old dividing line, which can be readily ascertained by measuring from the river along said old dividing line; and that to these data the courses and distances given in the Long deed should be applied, making such changes as are made necessary by reason of magnetic, variations, and such changes, if any, in actual measurements as are needed to reach designated points.
We are not unmindful of the fact that the judgment of the trial judge as to the credibility of witnesses and the weight to be given to their testimony, when the
The trial court, we think properly limited the inquiry to the boundary line on the shore, and refused to consider any question of easements of the defendant or the right to abut its dam on the shore at some point other than on the coterminous boundary line on the shore. We limit our holding in the same manner. We fix the western shore boundary of the plaintiff as hereinbefore indicated, but whether the canal at other points constituted a part of the bed of the river, or what are the rights of the parties respectively east of the line established, or what easements the defendant has in the river, we leave undecided. There are two canals referred to in the record, and the rights of the parties may not be the same as to each. This question was not settled in the trial court. •
So far as the judgment of the trial court denies the title of the plaintiff to any portion of the bed of James river, it is affirmed. So far as it refuses to establish the boundary line between the plaintiff and the defendant at the west end of the plaintiff’s land where they are coterminous owners, it is reversed, and said line is established as above indicated, and all of the relief to which the plaintiff is entitled in this proceeding having been accomplished, the case will be dismissed, without prejudice to the right of the plaintiff, in any proper pro
Reversed in part.