Stanberry v. Mallory

101 Ky. 49 | Ky. Ct. App. | 1897

JUDGE HAZELRIGG

delivered the opinion of the court.

As early as 1796, as appears from a map. made by the French General Collot, Towhead island in the Ohio river was a separate and distinct island, situated below the mouth of Green river, and lying to the' south of and between Green river island and the Kentucky shore. '

The first information the record before us furnishes as to its acreage is to be gathered irom the patent granted by the State of Kentucky to Capt. Terry in 1826 for 22% acres, and this only showing that it was at least that large in area. It is inferable that it was not much larger at that time. It increased rapidly, however, by accretion at its head, and in 1842 another patent, embracing land on this island, issued to Matthew McClain, for 57 acres, and still another for 30 acres, denominated accretion to the head of the island, issued to Mallory and Jackson McClain in 1878. Mallory’s wife was the devisee of Terry, and Jackson McClain was the grantee of Matthew McClain, so that the whole of the island became the property of Mallory and McClain. By mutual deeds of 1879 they became the joint owners thereof, each of an undivided one-half. They were in the actual possession of the land, some of it being under cultivation, and had been in such possession for several years before their joint! deeds in 1879, using the lands as their own and working the gravel bar lying immediately up stream from the island and forming a part of the growth or accretion to the island, and which was included in the patent of 1878.

In 1888 they sued the Nugents for a balance due for gravel dug by them under a contract, and were met by an answer to the effect that the Stanberrys, who were the owners of the lands on the Green river island opposite the Towhead, were jin fact the owners of the gravel bar, and were entitled to and were claiming the proceeds sued for.

The Stanberrys appeared and their petition so averring, was filed and taken as their answer. The Nugents paid the sum due from them into court and the issues as to the ownership of the bar were completed and tried out between Mallory and McClain and the Stanberrys, the former winning.

It is fairly shown by the proof that the gravel bur is a growth or accretion to the Towhead and not to the Green river island, and that the patentees and their privies held the actual adverse and uninterrupted possession of the main island for many yearsi before the institution of this action, and, moreover, had like possession of the sand bar, so far as its nature would permit of actual occupancy, (fon a. number of years before 1878, when they obtained their patent.

This use and occupancy consisted in' controlling and letting the bed out for the obtention of gravel therefrom, which was done under the eye of the Stanberrys, who lived near by and in sight of the work, and who at no time set up any claim thereto. Moreover, it is shown that the elder Stan-berry, under whom appellants claim, distinctly disclaimed any interest in or ownership of this bed, and so testified in a suit involving its title in'about the year 1880.

It is insisted for the appellants, however, under the rule settled in this State, in the case of Berry v. Snyder, &c., 3 Bush, 266, that under a grant of land from the Commonwealth on the shore of the Ohio river the grantee owns to the thread of the stream, if not precluded by the terms of the grant, and that they are, therefore, the owners to'the thread of the Ohio, which admittedly lies south of both the Towhead and Green river islands.

A complete answer to this contention is that the Stanberrys are the owners of the shore only by adverse holding. And it seems to be well settled that one who soi holds is confined to his actual occupancy on the shore unless by notorious acts of ownership, in so far as he may be able to exercise them, he furnishes evidence of his intention to claim and hold to the middle of the stream. This case affords an illustration of the wisdom of this limitation on the general rule. If the owners of Towhea'd island and its accretion opposite the land of appellants had sued the shore owners in ejectment' the answer may well have been, “we have not encroached on you — we are in the occupancy of the shore and have a right to be” — and yet, if the patentees did not sue, it is contended thead verse holding of the shore ripened into a perfect title to the thread of the stream. If, however, the shore owner has a grant from the sovereign, and under this well known rule is thereby entitled to claim to the thread of the stream, his opposing claimant has notice, and may contest his right. (Corning v. Troy Iron and Nail Factory, 34 Barbour, 532, and cases cited.)

The judgment dismissing the claim of the Stanberrys is affirmed. *