127 Tenn. 575 | Tenn. | 1913
Lead Opinion
delivered the opinion of the Court.
In the view which we take of this case, it is not necessary to, make an extended statement of the pleadings, or to discuss the questions presented upon the demurrer to the bill. The only question for determination is whether Reelfoot Lake is a navigable body of water in the technical legal sense of that term. If it is, we think it is beyond dispute upon the authorities that neither the waters nor the lands underlying them are. capable ' of private ownership. If it is not, and is navigable only in the common or ordinary acceptation of the term, then both the waters and the lands underlying them are -capable of private ownership., and belong to the defendants. This one question of the navigability of the lake :is inclusive of all questions made upon the appeal, and (determines the entire controversy.
? The lake was formed by an earthquake in 1810. The result of the earthquake was to lower the lands upon which the waters of the lake rest several feet below the surrounding lands. The submergence of the land carried down the forest timber growing upon it,, and these [timbers and their remains are still in the lake. The I lake is from two to seven miles wide and about fifteen ( miles long, with .an average depth of about seven feet, except at Beaver Dam and Brewer’s Bar, and at and near the shore lines. At places along the shore lines, and probably along their greater distance, the water is only a few inches deep for several, yards out. into the,
Upper Blue Basin, in the northern portion of the lake, is about two miles long, with an average width of something like 400 yards, and an average depth of probably ten feet, and is open and free of obstructions. It is surrounded, however, with timber and stumps. The part of the lake south of Upper Blue Basin is five to seven miles wide and several miles long. It is separated from Upper Blue Basin by Brewer’s Bar, which makes a strip of shallow water only a few inches to two feet deep and probably 200 yards wide. There are a number of other smaller basins, practically free from stumps and timber, in the southern portion of the lake; but, like the other bodies of water, they have no open connection with each other or with the main body of water on account of the stumps and timber. Most of the snags standing in the lake are bare of limbs; but many
Some of the witnesses speak of the general appearance of the lake as that of a harbor from which the masts of vessels project. The area of the lake is probably sixty square miles and its average depth is probably seven feet, so we think it undoubtedly true that the lake contains sufficient volume of water, and is of sufficient size, to make it navigable in the legal sense, but that it is not suitable in its present condition for purposes of navigation on account of the existence of the stumps and trees which form obstructions to successful navigation. It is also true that commercial vessels would not be able to reach the shore line at many places on account of the shallowness of the water.
The lalte has both an inlet and an outlet. The outlet flows continually, but is not of sufficient depth to form a navigable connection with the Mississippi river, into which it flows. At present there is a government levee opposite the northern end of the lake, which prevents the waters of the Mississippi at ordinary tide from flowing into the lake. Before this levee was built, the river would overflow into the lake once or twice a year, and thus raise its waters many feet. The surplus waters would remain in the lake until the late spring or summer following.
From 300 to 400 people take fish from the waters of the lake daily and employ in this capacity something like 1,000 small boats, canoes, and batteaux. They take
The vessels of commerce plying the Ohio, Cumberland, and Caney Fork rivers range in tonnage capacity from five to 200 tons. A five-ton vessel plying the Cumberland and Caney Fork rivers is fifty-nine feet two inches long, eleven feet nine inches wide, with a hold 1.9 feet deep, and draws twelve inches of water loaded. Another vessel of eleven tons’ capacity is fifty-five feet long, fourteen feet wide, two feet in the hold, and draws ten inches of water light. Steamers on the Obion and Forked Deer rivers are from sixty-five to 100 feet in length, fifteen to twenty feet in breadth, and draw from fifteen to twenty-four inches of water loaded. Steamers of the Cumberland river are 125 to 165 feet in length, and from twenty-two to twenty-nine feet beam, have from 150 to 191 tons’ capacity, and draw eighteen inches light, and four feet four inches loaded. Fifty per cent, of the sailing and steam mercantile vessels of the United States are of less than twenty tons gross capacity,'and not more than twenty-five per cent, exceed 100 tons gross.
“Navigable rivers are not merely rivers in which the tide flows and reflows, but rivers capable of being navigated; that is, navigable in the common sense of the term.” In the words of the Digest, a navigable river is e($tatio iturre navigio
The learned judge, speaking for the court, observed that' the only change of the common law effected by the adoption of the rule of the civil law is the substitution of a. new and more appropriate criterion of a navigable river, “and that is, not the flow and reflow of the tide, but simply the fact whether the river, in the ordinary state of the water, is capable of and suited to the usual purposes of navigation. In all other respects, the principles of the common law, regulating and defining the ■respective rights -of the public and. of the riparian pro
After stating that, under the new test of havigabil-' ity of rivers, the term “navigable” is none the less á word of technical meaning than at common law, as determining the respective rights of the públic and the riparian owners, in reference to the property of the soil, as well as the use of the watercourses, the court laid down the final definition of a navigable body of water in the technical legal sense of the term in its own language as follows:
“We are aware of no less exceptionable criterion than that to be extracted from some of the cases before referred to, namely, a river capable, in the ordihary state; of the water, of navigation, ascending and descending, by sea vessels; that is, such vessels as are employed'in the ordinary purposes of commerce, wli ether foreign or inland, and whether steam or sail vessels.”
The stress which it is now sought to lay upon the use of the words “sea vessels,” so as to limit navigable bodies of water to those which have sufficient depth and capacity to float vessels which navigate the high seas, is not justified by the language of the court in that case. The words themselves are followed by the explicit explanation that they are meant to include such vessels as are employed in the ordinary purposes of commerce, whether foreign or inland, and whether steam or' sail vessels. Inland commerce is not carried on the high and therefore necessarily not carried in sea-going
In no case decided by this court has such a restricted definition been given to sea vessels. Indeed, the meaning now attributed to the terms by the learned Chief Justice would render unnavigable both the Cumberland and the Ohio rivers, and probably the Mississippi above Cairo.
I We think, therefore, that it can be reasonably held I that Reelfoot Lake has sufficient capacity, that is, sufficient depth and width and volume of water, so as to make it a navigable stream in the strict technical legal ^sense.
The next question for determination is whether the /presence of the stumps and trees herein described, and ! which- admittedly form a present obstruction to naviga- | tion,- will destroy the character of the lake as a naviga- | ble body of water, so as to make it the subject of private [.ownership.
In Webster v. Harris, 111 Tenn., 692, 69 S. W., 782, 59 L. R. A., 324, it was held by this court that they do.) The facts found by the court in that case are substan-/ tially the same as those stated in this opinion. The test of a navigable body of water was stated to be “whether a stream is inherently in its nature capable
Without undertaking to review the authorities cited in support of the decision in Webster v. Harris, we say that those of them which support the opinion do not represent the great weight of American authority, and. some of them are not applicable. The Alabama court was speaking of a floatable stream. In the case of Swanson v. Boone Co. the Minnesota court was considering the right of the public to navigate the Mississippi river and the rights of certain riparian proprietors in respect thereto, and no question pertinent to the one under con
>• The chief importance of determining whether Reel-root Lake is navigable in the technical legal sense does ¡not concern its use as a public highway for commerce, /but- is in regard to the respective rights -of the public and private person in the use and ownership of its waters and the lands' submerged by them. It is primarily a question of dominion and ownership, rather than one of commerce and travel. The right of the public to use its waters as a highway for commerce is precisely the same, whether the lake be navigable in the technical legal sense or Avhether it be navigable only in the common or ordinary sense. The distinguishing difference between the two classes of streams is capacity; that is, depth, width, volume. The legal effect of this difference is upon the title, the right of soil in waters and the lands under them, and the fisheries. If a given body of Avater falls within-'one class, it belongs to the public; if in the other, it may be privately owned.
The real nature in law of navigable bodies of water Is admirably stated by the supreme court of the United States in Shively v. Bowlby, 152 U. S., 1, 14 Sup. Ct., 548, 38 L. Ed., 335. The court' said:
“Such waters [navigable streams] and the lands they cover, either at all time®, or at least when the tide is in, are incapable of ordinary and private occupation, cultivation, and improvement, and their natural and*589 primary uses are public in tbeir nature, for' highways of ^navigation and commerce, domestic and foreign, and for the purpose of fishing by dll the king’s-subjects. Therefore the title, jus privatum, in such lands, as of waste and unoccupied lands, belongs to the king as the sovereign; and the dominion thereof, jus publicum, is vested in him as the representative of the nation and for the public benefit.”
And' in Stuart v. Clark this court said:
“If the river be a public navigable stream, in the legal sense, the soil covered by the water, as well as the use of the stream, belongs to the public. But if it be not navigable in the. legal meaning of the term — as is the case in England as to all streams above the flow of the tide — the ownership of the bed of the stream is in the riparian proprietors, but the public have an easement therein, for the purposes of transportation and commercial intercourse.” Stuart v. Clark, 2 Swan, 16, 58 Am. Dec., 49.
But the public have rights in streams which are technically navigable, other than the right of navigation, such as the ownership of the waters and the lands under them, their fisheries, hunting privileges, and every;, thing of value incident to a right of soil; and these rights exist concurrently, and are taken all together to express; the .public proprietorship of public waters. And so,, if: a body of water have sufficient capacity to be legally navigable, this determines its title, jus" privatum, whether it is being actually used as a highway or not; aR<3,
Considered in this view, the presence of stumps and trees in the water, although they may prevent present navigation, cannot affect its capacity nor change its classification from that of a navigable body of water in the legal sense to that of one navigable only in the ordinary sense. Indeed, the only interest which the public has in the latter class of streams is a right of easement of way over and through their waters and the presence of stumps and trees in the water could more properly be said to destroy its capacity for navigation in that sense than in the technical legal sense.
What we believe to be a great weight of authority is in accord with this view. In State v. Pacific Guano Co., 22 S. C., 50, it was said that, to be navigable, a stream should have sufficient depth and width of water to float [Useful commerce. This case was followed approvingly in Heyward v. Farmers’ Mining Co., 42 S. C., 138, 19 S. E., 963, 20 S. E., 64, 28 L. R. A., 42, 46 Am. St. Rep., 702. In that case it was stated that the “test is navigable capacity, and not that the surroundings should bes-such that it may be useful for the purpose of commerce.” It was further said that a stream may not be useful for commerce at one time, and yet circumstances may make it so. “There are certain navigable streams in our State,” said the court, “which are very valuable on account of their phosphate deposits. If the question of their navi
The court also repudiated the test of connections with other highways, and stated that such a test had only been applied in cases where the question was whether a stream was a navigable water of the United States.
Heyward v. Farmers’ Mining Company, supra, is supported by what appears to us to be a very great weight of authority. The Daniel Ball, 77 U. S. (10 Wall.), 557, 19 L. Ed., 999; The Montello, 87 U. S., 430, 22 L. Ed., 391; Moore v. Sanborne, 2 Mich., 519, 59 Am. Dec., 209; Brown v. Chadbourne, 31 Me., 9, 50 Am. Dec., 646; Hickok v. Hine, 23 Ohio St., 523, 13 Am. Rep., 255; Diedrich v. Northwestern Union R. Co., 42 Wis., 248, 24 Am. Rep., 399; Attorney-General v. Woods, 108 Mass., 436, 11 Am. Rep., 380; Rowe v. Granite Bridge Corp., 21 Pick. (Mass.), 344; Little Rock, M. R. & T. R. Co. v. Brooks, 39 Ark., 403, 43 Am. Rep., 277, in which it is held that a river made useful for commerce by improvements is a navigable river. In The Daniel Ball, supra, the court stated the test of a navigable stream as follows:
“Those rivers must be regarded as public navigable rivers in law which are navigable in fact; and they are1 navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways^*592 for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water; and they constitute, navigable waters of the United States within the meaning of the acts of congress, -in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.”
In’ The Montello, the court held in substance that if a river is hot of itself a highway for commerce with other States or foreign countries, or does not form such highway by its own 'connection with other waters, and is (Only navigable between different places within the State, ft is not navigable water of the United States, but is a navigable water of the State. We make the following quotation from that case,:
“The learned judge of the court below rested his decision against the navigability of the Fox river below the De Pere rapids chiefly on the ground that there were, before !the river was improved, obstructions to an unbroken-navigation. . . . Apart from this, however,' the rule laid down by the district judge as a test Of nav-igrtlOitJweannot be adopted, for it would exclude many of '^'>jgá§at rivers of -the country, which are so interrupted by rapids as to require artificial means to enable them- to be navigated without break." Indeed:'theré are*593 but few of our fresh water rivers which did not originally present serious obstructions to an uninterrupted navigation. In some cases, like the Pox river, they may be so great while they last as to prevent the use of the best instrumentalities for carrying' on commerce; but the vital and essential point is whether the natural navigation of the river is such that it affords a channel for useful commerce. If this be so, the river is navigable in fact, although its navigation may be encompassed with difficulties by reason of natural barriers, such as rapids and sandbars.”
In Moore v. Sanborne, supra, it was said:
“In this country the public right cannot depend upon custom, or upon general use; and we accordingly find that in nearly all the States this rule has been extended so as to be adapted ... to our trade and commerce, and to embrace all streams upon which in their natural state there is capacity for valuable floatage, irrespective of the fact of actual public use, or the extent of such use. Nor . . . can the fact that a floatable stream has not been used by the public, or has only been used by persons following a particular occupation, deprive such stream of its public character. This principle is one of vast importance to the interests of this and all new States.”
In Brown v. Chadbourne, supra, the court said:
“If a stream could be subject to public servitude by long use only, many large rivers in newly settled States, and some in the interior of this State, woüld be alto*594 gether under the control and dominion of the owners of their beds, and the community would he deprived of the use of those rivers, which nature has plaiulv declared to be public highways. The true test, therefore, to be applied in such cases, is whether a stream is inherently and in its nature capable of being used for the purposes of commerce, for the floating of vessels, boats, rafts, or logs.”
In Hickok v. Hine, supra, the Supreme Court of Ohio said:
“A river is regarded as navigable which is capable of floating to market the products of the country through which it passes, or upon which commerce may be conducted; and, from the fact of its being so navigable, it becomes in law a public river or highway. The character of a river, as such highway, is not so much determined by the frequency of its use for that purpose as it is by its capacity of being used by the public for purposes of transportation and commerce.”
Many other cases could be cited and quoted from to the same effect, but it is sufficient to say that a reference to the selected cases in the L. R. A. and the American Decisions, American State Reports, and the American and English Annotated Oases will show that, with only an occasional exception, the courts of nearly all of the American States have entertained similar views. It is not possible within the compass of a judicial opinion to comment on all of them, or to make excerpts from them, or even to cite them. ¡We call especial attention to the
We think the holding of the court in Webster v. Harris is not only contrary to a very great weight of authority in this country, and especially our own cases, but that it is a misconception of the purpose of the law in giving to bodies of water the two classifications of navigable in the technical legal sense, and in the common or ordinary sense. The only purpose of such classification is to establish the respective rights of the public and private individuals in the ownership and use of the waters and the lands under them. We suppose that if a great storm should blow all of the trees along the banks of the Cumberland river into and across its channel, so as to completely obstruct navigation, it would not be contended by any one that its navigable character could be affected by that event. There is no question of navigation to be determined in this case. It is no . answer to say that highways do not exist in for
Inasmuch, therefore, as the lake has capacity for navigation in the technical sense, as laid down in Stuart v. Clark, supra, the rights of the public attach to it, to its use, and to its fisheries, so that it is incapable of private ownership, and the State owns it in trust for all the people, and cannot alienate it away.
What has been said with respect to the rights of the public and the defendants to the waters and the fisheries of the lake would apply equally to all of the grants of land claimed by the defendants; but at this point it should be stated that the defendants claim under grants issued by the State of North Carolina to one Doherty before the lake was formed. At this time the lands were subject'to'grant, and the grants issued by North Carolina were valid at' the date of their issue, and the titles conveyed by them vested in Doherty, the grantee. It is said for the State that these grants were abandoned by their claimants in a partition suit instituted in Williamson county, in which the lands submerged by the lake were not taken into consideration in the division of the. estate
Does the fact that the Doherty grants were submerged by the lake after they were granted, and are now the bed of a navigable stream, deprive the owners of the submerged land of their title to the lands and their right to claim the fisheries in the waters lying over them? Upon this particular question, we have not been cited to any authority directly in point, and we have found none. It would seem, on principle, that the title to the land would be unaffected by the formation of the lake, and its owners would be entitled to its use and its enjoyment as long as they can reasonably identify it and fix its boundaries. It is proven in this case that the Doherty grants can still be identified, and their boundaries are reasonably well established. The waters of the lake are
A case strongly in point is McCullough v. Wall, 4 Rich. Law, 68, 53 Am. Dec., 715, in which the Suprema Court of South Carolina had under consideration a right' of fishery in the Catawba river. Briefly stated, that was a case of trespass to try title, in which the plaintiff sought to recover a certain rock, called Julius' Rock, situated in the Catawba river and usually covered with' water. It was used by the defendant as a fishing station. The plaintiff claimed the rock as a part of his tract of land v liich lay on the west side of the river, and mainly
“The jury have found that the Catawba river, where it is the boundary of the land granted, was not, in Í772, the date of the grant, navigable for boats. If it has since been made navigable, the right of the public to use it as a highway has been asserted; but the right of the grantee and those claiming under him, subject to the rights which the public have in the river as a highway or easement, continues to the soil granted ad filurn aquae, as it vested at the grant. A subsequent improvement of the river, or change of the law relating to the soil of rivers, could not divest the rights of soil which had been granted, further than was required for some public purpose.”
The foregoing authority, however, has no application to grants claimed by the defendant to other portions of the lake, which were issued after the lake was formed. This portion of the lake is governed by the rule stated in Elder v. Burrus and Stuart v. Clark, supra, and was not gran table. The State not having parted with its
For the reasons stated, it is our opinion that the complainant is entitled to a decree establishing its title in trust for all the people to all that portion of the lake, its lisheries and fowling privileges, lying outside of, and not over and above, the grants issued by the State oí North Carolina to Doherty. As to those grants, the bill will be dismissed. The costs of the case will be equally divided.
Dissenting Opinion
delivered a dissenting opinion as follows:
The bill in this case was filed by the State to remove is a cloud from its title the claim of title and ownership held by the defendant, ffhe chancellor sustained!
I shall not take up the errors in the form in which they are assigned, but shall merely respond to the questions raised.
1’. As to the Doherty grants: It appears from the bill that the defendants claim title to a large part of the lake under these grants, and that they were issued by the State of North Carolina in 1788, which was before the territory now covered by Reel foot Lake was ceded to the United States, and before the State of Tennessee was created, or became a body politic. It also appears from the bill that Reelfoot Lake was not formed until the winter of 1811-1812, and was then formed by an earthquake or series of earthquakes, which caused the land to sink and to-fill with water.
The parts of the bill to which the demurrers were directed, which the chancellor sustained, contained the following allegations, viz.: “That said Doherty grants were never in fact surveyed, as required by law;” that “for more than seventy-five years Doherty and those claiming under him, not only set up no claim to said land, but paid no taxes thereon, and abandoned the game;” “that said lake is a public body of water; that it
The ground of demurrer directed tso the charge, of the bill respecting the absence of a survey was properly sustained by the chancellor. Upon the issuance of a grant, all of the prerequisites must be presumed to have taken place. Overton’s Lessee v. Campbell & Lackey, 5 Hayw., 188-189, 9 Am. Dec., 780; Callaway v. Sanford, 35 S. W., 775; Stockard v. McGary, 120 Tenn., 180, 109 S. W., 507.
As to the point that the grants were abandoned, there is no charge of any fact in the bill, except as quoted that those claiming under Doherty, “not only set up no claim to said land but paid no taxes thereon,” for more than seventy-five years. That an abandonment cannot be predicated upon such facts is fully shown in Phy v. Hatfield, 122 Tenn., 696, 126 S. W., 105, 135 Am. St. Rep., 888, 19 Ann. Cas., 374. It is shown in that case that a perfected title cannot be abandoned, and that certainly the failure to pay taxes would not be evidence of such abandonment. Moreover, we may add that, if the rule claimed in the bill had any existence in fact, many hundreds of thousands of acres of land in this State owned in the mountains by nonresidents would long since have been forfeited to the State. On the contrary, this court has without exception enforced such claims when they were otherwise sound, although taxes, had not been paid and the owners had paid no attention to the lands for a long series of years. The demur-.
The chancellor also rightly sustained the demurrer to that part of the bill which asserted in behalf of complainant any rights in the property covered by the Doh-erty grants on the ground that the lake is a body of water navigable both in law and fact, and belongs to the State in trust for the benefit of all its people. The ground of the demurrer was that the bill shows on its face that these Doherty grants were issued long before Reelfoot Lake was formed, and those under whom defendant claims had thus acquired title thereto before the creation of the lake.
It seems to require no argument to sustain the validity of the demurrer. The State of Tennessee never had title at any time to .the lands .covered by the Doherty grants; defendants deriving their title from the State of North Carolina, before, the State of Tennessee came-into existence. I. know of no law by which the happening of an earthquake can- immediately transfer title from one person to another, or by which title can be. deraigned from an earthquake. Of course, the earthquake could have no effect on the title. The land was still there. It was not destroyed. It was simply lowered a few feet beyond its former level, and covered with water, and can be identified by the lines of the. grant. The fact that land is covered by water does not preclude private ownership therein. The rule is recognized in numerous cases in this State, and everywhere else, thgt land covered by
It was suggested in the argument at the bar that the happening of the earthquake and the consequent lowering of the surface of the land, and the subsequent covering of the bed thus formed by the inflowing of water, would have the same effect as an avulsion. I do not think that the law of avulsion could be applied to such a situation. An avulsion occurs when a river suddenly and violently changes its bed and makes for itself a new channel. The subject is illustrated and discussed at length in State v. Pulp Co., 119 Tenn., at pages 102 to 109, inclusive, 104 S. W., 437. It also seems to apply to a case where the sea violently takes land from the shore. It is difficult to see — indeed, impossible as it seems to me — how such instances could be applied to the action of an earthquake in making a lake in the
“ ‘If a subject hath land adjoining the sea, and the violence of the sea swallows it up, but so that yet there be reasonable marks to continue the notice of it, or though the marks be defaced, yet if by situation and extent of quality and bounding upon the firm land the same can be known, though the sea leave the land again, or it be regained by art or industry, the subject doth not lose his property; and accordingly it was held by Cooke and Foster, M., 7 Jac. C. B., though the inundation continue for forty years. If the marks remain or continue, or extent can reasonably be certain, the case is clear, Id., 15.'
“The case of the Town of Shinbridge, in 18 Hen., III, is stated on page 16: ‘The river Severn had gained upon the town of Shinbridge so much that its channel ran over part of the Shinbridge lands, and lost part thereof unto the other side (Aure), and then threw it back to Shinbridge. It shall not belong to Aure, neither was it at all claimed by the king, though Severn be in that place an arm of the sea; but it was restored to Shinbridge as before. The propriety of the soil was not lost to the owners who had it before.’ .
*607 “ ‘The soil under the water must needs be of the same propriety as it is when it was covered with the water.' If the soil of the sea while it is covered with water be the king’s, it cannot become the subject’s because the water has left it. But when the land, as it stood-covered with water, did by particular usage or prescription belong to a subject, then recess'us maris, so far as the. subject’s particular interest went while it was covered with water, so far the recessus maris, vel brachii ejusdem belongs to the same subject.’ Id., 31.”
To the same effect is the following:
“Where considerable quantities of soil aré, by a sudden action of the water, taken from the land of one, this is called avulsion; but the ownership is not lost, though the surface earth is transported elsewhere; and it may be reclaimed, and the ownership reasserted. Thus, lands dedicated and accepted, subject to the trust impressed on them or remaining forever unoccupied by buildings, included all the land between the west line of Michigan avenue and the shore of Lake Michigan as it was when such lands were platted; and the title to such portion thereof as was subsequently carried away and submerged by the waters of the lake, and thereafter reclaimed by artificial means, was not lost, but by such reclamation thereof the city completely reasserted its title thereto as such title stood at the time of such dedication. City of Chicago v. Ward, 169 Ill., 392, 48 N. E., 927, 932, 38 L. R. A., 849, 61 Am. St. Rep., 185.” 1 Words and Phrases, 655, 656.
Prom what has been said, I think there can be no doubt that the Doherty grants must be treated as having been finally and correctly disposed of in the disposition made of the demurrer, and that in no event can complainant have any relief in respect thereof. However, I shall presently treat the case as if no demurrer had been filed on this subject, and, viewing the Doherty grants as simply a constituent part of the whole bed of the lake, and the lake as a single entity, shall cite another principle equally as conclusive as to the whole lake.
But before going to this subject it is necessary to refer to a demurrer filed to certain parts of the bill attacking the Caldwell grants, which cover the rest of the bed of the lake.
2.' This demurrer was to so much of the bill as charged in substance that these grants were void because entered by Caldwell when he was deputy entry taker. The bill did not allege that Caldwell actually made the entries himself, or negative the fact that the entry taker-himself was present and sanctioned such entry, or that the entry was made under the direction of such principal entry taker. Of course, the mere fact that the entries were made while Caldwell was deputy entry taker would not vitiate them. Besides, the statute does
8. I shall now recall the well-recognized general division of waters into, firstly, those which are navigable in law; secondly, those which are navigable in fact;¡ thirdly, those which are merely floatable streams. We have á body of law ua>aa tbi* subiect embraced in Elder
I pause at this point to emphasize the . importance of ascertaining and stating clearly the rules on this subject which hare been formulated by this court, and of adhering to them, and the danger of changing or modifying them at this late day. The importance of the matter consists in the fact that they are primarily and chiefly rules of property which determine the ownership of the land constituting the bea of every stream in the State, and hence are the foundations of many thousands of titles.
Here it is necessary to discuss the cases above cited, and refer to certain underlying principles.
A most noteworthy fact is that the question of navigability is always raised in the class of cases we have before us for the purpose of determining the susceptibility to private ownership of the land on which the waters rest or over which they flow, or as incident to such asserted ownership, the uses of the watercourses,
The real inquiry then is, always, whether the land under such and such water can be the subject of private ownership. Under the common law it was held that land underlying streams or rivers was subject to private ownership, except that lying under streams wherein the tide ebbed and flowed. Such streams, so far as the influence of the tide extended, were said to be navigable in law, of which fa-'. of course, the court could taire judicial notice. This o«»;rt in Elder v. Burrus, supra, hold the common-law rule inapplicable to this State, since we had no tidal rivers, and adopted the rule of the civil la w instead, which left the question of navigability open to proof in each case. \
In that case the contest was over an alleged shortage in land sold by the acre lying on Cumberland river. “It was agreed,” says the statement of facts preceding the opinion, “that the Cumberland was a navigable river, a great highway, and the chief outlet and inlet of commerce for the middle part of Tennessee, and also that it was not a tide water.” The trial judge charged: “That when a deed called for running to Cumberland river, thence up the river, the location of the line should be at the center of the river and not at low-water mark.” The correctness of this charge was the matter up for determination, .It was..conceded by the. court. that un
“The insular position of Great Britain, the short course'? of her rivers, and the well-known fact that there are none of them navigable above tide water but for very small craft, well warrants the distinction there drawn by the common law. But very different is the situation of the continental powers of Europe in this particular. Their streams are many of them large and long, and navigable to a great extent above tide water, and accordingly we find that the civil law, which regulates and governs those countries, has adopted a very different rule as to what are or are not navigable streams, and by it all rivers, even above tide water, provided they are navigable for ships or boats, are considered as public property.
“Now, these principles of the common [and] civil law are not in conflict with one another; they are both right and proper for the countries to which they are made to apply. In England there are no streams navigable above tide water; but the reverse is true of the Continent, and the eiid designed to be effected, both by the common and civil law upon this subject, is identical, viz.;. That navigable rivers shall not become pri-*613 yate property, but shall belong to the community at large. If the local situation of the Continent of Europe required an extension of the construction of what was necessary to constitute a navigable river, and prevented ■its restriction to tide water, much more so does that of our own country, and particularly the valley of the Mississippi. Our rivers are of immense extent and size, and navigable for thousands of miles above their mouths. So, to adopt the English principle that no river is a navigable river above the ebb and flow of the tide would be to declare that there is no river navigable in the valley of the Mississippi, and that the Mississippi, Missouri, Ohio, and Tennessee do not belong to the public, but are the property of individual owners of land upon their margins — an absurdity too monstrous to be thought of. Shall it be held that the interest of the communityi of England requires that their navigable streams should! belong to the crown as public property, but that in all the States bordering on the Mississippi and its mighty1 tributaries, these great and important highways, by! which such an amount of merchandise of every kind' and description is annually sent to market, shall belong to private individuals because the. tide does not ebb and flow in them? Surely not, unless' we are compelled' by positive law so to maintain.
“Upon what principle can it be contended that, thei I rule of the common law of England, as to what makes' .a navigable river, is obligatory in the State of Tennessee? 'I trust I have shown satisfactorily that it is one not! .adapted to our position.” •'
The next case, Stuart v. Clark’s Lessee, supra, is, I think, our leading case on this' subject, the opinion in which was written by one of our greatest and most accurate judges. The contest in this case was over the ownership of an island in Nolachucky river. If the river was one navigable in law, the- grant which called to begin at the bank of the river, running thence various courses and distances to a stake on the'bank of the river, at a different point, then up the different meanders of the river to the place of beginning, would run only to the margin of the river, and would not take in the island; on the other hand, if the river was not one navigable in law, the grant would run to the center of the stream and take in the island. In order to settle the question it became necessary, therefore, for the court,
“It is to be remarked that the only change of the common law, effected by the adoption of the rule of the civil law with us, is the substitution of a new and more appropriate criterion of a navigable river; and that is, not the flow and reflow of the tide, but simply the fact whether the river, in the ordinary state of the water,*616 is capable of and suited to the usual purposes of navigation. In all other respects, the principles of the common law, regulating and defining the respective rights of the public and of the riparian proprietors in rivers of whatever character, remain unchanged, and are to be applied by our courts.
“But it is to be borne in mind that, although we have adopted a new test of the navigableness of rivers, different from that of the common law, still, the term ‘navigable,’ as applied to streams, is no less a word of technical meaning than at common law; and the distinction between the technical sense of the term and its common acceptation is important to be kept in view, in enquir-ling into the respective rights of the public and the riparian owners, in reference to the property in the soil, <as well as in the us of watercourses.
.“We feel the difficulty of the attempt, under the rule of the civil law, to define with exact precision what is a navigable river, in the legal sense of the term. We are aware of a no less exceptionable criterion than that to be extracted from some of the cases before referred to, namely a river capable, in the ordinary stale of the ■ water, of navigation, ascending and, descending, by sea vessels; that is, such vessels as are employed in the ordinary purposes of commerce, whether foreign or inland, land whether steam or sail vessels
The court then proceeds to state the importance of having a clear rule distinguishing streams navigable in law from those navigable in fact, and from mere float-able streams, the definition of each of the two latter,
“The only view in which it becomes a matter'of any great practical importance' to distinguish between rivers that are navigable in the technical sense, and those that are not so, is in reference to the rights of the public and the adjacent owners in respect to the ownership of the bed of the stream; for, so far as regards the use of the stream, for all purposes of navigation, the public have the same right, whether it be navigable or not navigable.
“If the river be a public navigable stream, in the legal sense, the soil covered by the water, as well as the use of the stream, belongs to the public. But if it be not navigable in the legal meaning of the term — as is the case in England as to all streams above the flow of the tide — the ownership of the beds of the stream' is in the riparian proprietors, but the public have an easement therein, for the purposes of transportation and commercial intercourse. A distinction is taken by the common law between streams which, in the common acceptation of the term, are suited to some purposes of navigation, and small shalloiv streams ivhich are not so. In respect of the former — which, though not navigable in the sense of the law, are yet of sufficient depth, naturally, for valuable floatage, as for rafts, flatboats, and perhaps small vessels of lighter draft than ordinary — while it is settled that the right of property in the bed of the stream is vested in the riparian proprietor, and in that respect it is to be regarded as a private river, still it is equally*618 well settled that the public have a right to the free and uninterrupted use and enjoyment of such stream for all the purposes of transportation and navigation to which it is naturally adapted. And this easement, or ‘servitude of public interest,’ in the phrase of the Roman law, is as absolute and unlimited in the public in reference to this class of rivers as to rivers navigable in the technical meaning of the term.
“But as to shall T'w streams, unfit for such purposes of transportation and commerce, both the right of. property and use are wholly and absolutely in the owner of the adjoining land.”
The words which we have italicized show the definitions made by the opinion of the court. It is apparent that under this case the test of a river navigable . in law, the bed of which cannot be granted to a private person, is that it is one the waters of which in their ordinary state are capable of being ascended and descended by sea-going vessels, such as are employed in the ordinary purposes of commerce, whether foreign or inland, and whether steam or sail vessels; and the definition of a stream navigable in fact, but not in law, and one therefore in the bed of which private persons may have a property right, is one of sufficient depth, naturally, for valuable floatage, as for rafts, flatboats, and perhaps small vessels of lighter draft than ordinary.
Our subsequent cases are practically but commentaries and applications of the principles laid down in this great case, with one or two exceptions, presently to be noted.
It was further agreed that, about seven miles above the mouth of Big creek, five trees had been cut down into the stream in the presence of Sigler and with his consent, that the navigation was thereby obstructed below the points to which small boats had gone, and from which timber, wood, and rafts had been brought out.
It was further agreed that Sigler was owner of the land on both banks of the stream.
The court referred with approval to the definition contained in Stuart v. Clark, supra, of a river navigable in law, and then proceeded:
“This is a technical definition of navigable rivers, and upon this definition the rights of riparian owners are to be tested. If the river be technically navigable, the soil covered by the water, as well as the use of the stream, belongs to the public. But if the stream be not navigable, in the legal sense, the ownership of the bed of the stream is in the riparian proprietors; but still tiie public have an easement therein, for the purposes of transportation and commercial intercourse. And this easement, or 'servitude of public interest/ in the phrase of the Roman law, is as absolute and unlimited in the public, in reference to this class of rivers, as to rivera navigable in the technical meaning of the term.
*621 “In Angelí on Highways, 45, it is said: 'The -ebb and, flow is not the only test, nor'is the public easement always formed upon usage or custom. The test is whether there is in the stream capacity for use for the purpose of transportation valuable to the public; and in this view it is not necessary that the stream should have a capacity for floatage at all seasons of the year, nor that it should be available for use against the current as well as with it. If, in its natural state and with its ordinary volume of water, either constantly or-at regularly recurring seasons, it has such capacity that it is valuable to the public, it is sufficient.’ ”
The court then continued: “According to the facts agreed on, it appears that for several months of each, year Big creek is well adapted to floating out timber rafts and logs, and when the Mississippi is above its ordinary height that tugs and small boats can run up and! down the stream, and that for a period of at least- fifteen years, and probably more, the stream has been so used by the public. Upon these facts the judge held that Big creek was a navigable stream, and that defendant was guilty of a nuisance in obstructing it. We are of the opinion that his conclusion is sustained by the facts and the law, and we affirm his judgment.”
So‘ it does not clearly appear whether the court held Sigler liable on the ground that the stream was navigable in law or navigable only in fact, since both kinds of streams are referred to, and he' would have been guilty of a nmsance in obstructing either. ‘Evidently, however, the decision was based on the quotation taken
This is made clear and certain by the case of Holbert v. Edens, supra. That was a case where the question arose on a shortage of land. The shortage was made good if the land lying in the bed of Powell’s river could be taken into account, and the question was whether that river was one navigable in law. It was agreed by the parties that Powell’s river was a small river, unsuited for the navigation of steamboats or sea vessels, and was never used for such purpose, but that the same was navigable for, floating flatboats and rafts down stream during freshets and high water, though not dur-,
“If a watercourse be navigable in the legal sense, the soil covered by the water, as well as the use of the stream, belongs to the public. If it be navigable only in the ordinary sense, the ownership of the bed of the stream is in the riparian proprietors, and the public have an easement therein for purposes of transportation and commercial intercourse. If the stream be so shallow as to be unfit for such purposes of transportation and commerce, both the right of property and use are in the owners of the adjoining land. A stream is navigable in the legal sense when it is capable, in the ordinary stage of the water, of being navigated, both ascending and descending, by such vessels as are usually employed for purposes of commerce. A river not navigable in a legal sense, may yet be navigable in the common acceptation of the term, as where, in certain stages of the water, it may have sufficient depth for flatboats, rafts, or small vessels of light draft. Elder v. Burrus, 6 Humph., 358; Stuart v. Clark, 2 Swan, 10, 58 Am. Dec., 49; Sigler v. State, 7 Baxt., 493. The agreed state of-facts in this case shows that Powell’s river is not navi-! gable in a legal sense, but is navigable in the common, acceptation of the term. The ownership of the bed of the stream is therefore in the riparian proprietors.”
In Railroad v. Ferguson the question arose- in relation to a bridge which the railroad company maintained over Hiwassee river. “The defendant in error,” said ;the court, “was the owner of a steamboat built for the I : ' ’ purpose of, and used by him in, plying the Hiwassee river when there was sufficient depth of water. In, his declaration filed in this cause it is averred that plaintiff in error, maintained ,,a bridge over this stream so lo.w as- greatly to interfere with its, navigation, and that, by reason of such improper , construction his steamboat was ‘wrongfully,, unlawfully, and unjustly prevented from navigating said stream and from reaching its destination in time, to (his great and special damage and, injury,’ .For the loss, sustained in this alleged unlawful deten
“It also appears That in the spring season and winter, when there is good tide in the river, a light-draught steamboat now and then runs up the river to the mouth of the Ocoee river, in Polk county, Tenn., some fifteen or twenty miles by river above Charleston,’ and that' at high tide such a boat can run up to a point some twenty-five or thirty miles above Charleston.
“The case was tried upon this agreed statement of facts, and evidence of the additional fact that at a certain period within three years before the institution of this suit, when the river was swollen to a considerable, but not unprecedented, degree by a heavy rainfall, the steamboat of the defendant [in error] was detained while transporting a cargo of valuable freight, by the obstruction of this bridge, to the loss of its owner.
“On this record, it is clear that the Hiwassee was a navigable river within the definition of such a streaui, as frequently repeated by this court. Elder v. Burrus, 6 Humph., 367; Stuart v. Clark, 2 Swan, 9, 58 Am. Dec., 49; Sigler v. State, 7 Baxt., 493.”
There was no claim on either side to any rights in tfeq bed of the stream, but only a question a»' t&. the obstruction of one of the water highways of the State', artd hence there was no necessity for distinguishing between a river navigable in-law:, or one simply navigable in.
In Webster v. Harris, supra, the definitions which we have quoted from Stuart v. Clark’s Lessee, supra, were quoted and distinctly approved. I shall have occasion to refer to this case later in another connection.
In Miller v. State, supra, Stuart v. Clark’s Lessee, supra, was again referred to and approved, and Webster v. Harris was also approved.
The facts in this case.were, as stated by the court: “Wolfe river is a narrow, crooked, rocky, and swift stream, something over fifty miles in length. In its ordinary condition, and with the exception of a few days each year, when swollen by heavy rains, it is for the most part shallow, having numerous shoals, where it is ofttimes less than eight inches deep, and cannot in the ordinary state of its waters be navigated or used for floatage, ascending or descending, for commercial purposes. D-urine the winter and spring months, as a result of heavy and continuous rains for- six or more
After stating that the plaintiff- in error owned a valuable tract of land situated on both sides of the river; that he was the owner of a mill located on the river, and used its waters by means of a dam which he and his predecessors in title had maintained for more than sixty'years; that a slope had been constructed, composed of timbers resting upon the dam at one end, and in the bed of the river at the other, for the waters to flow over, of sufficient width to accommodate rafts; that this
“The questions to be determined upon these facts are whether or not Wolfe river is a navigable stream, as averred in the first count of the indictment; and, if not, whether it is a highway for transportation of commerce which the public has a right to have kept open and unobstructed for its use in floating logs and rafts.”
After referring, with approval, to Stuart v. Clark’s Lessee, supra, Holbert v. Eden, supra, and Webster v. Harris, supra, as to the characteristics of a stream navigable in law, the court said:
“Wolfe river does not come within these definitions of a navigable stream. It cannot be navigated profitably for commercial purposes ascending at any time, and can only be used descending for the transportation of logs and rafts for short periods of time, when swollen with rain, ten or twelve days in each year.
“The remaining question, then, is whether this stream is a public highway, which' the public has the right to use for transportation purposes, and whether the' plaintiff in error, by the maintenance of his dam across the name is unlawfullv obstructing it.
*629 “While the beds of all streams not navigable in the legal sense belong to the riparian proprietors and are private property, yet if in its natural state the volume of a stream, whether ordinary or when swollen by rains, at certain periods of the year occurring with reasonable certainty,' is such that the stream can be used profitably for commercial purposes in the transportation of the products of the forests, mines, tillage of the. soil, other articles of commerce, the public has an easement of highway therein, and this easement cannot be unreasonably obstructed by the riparian proprietors. * * *.
“This easement, however, does not extend to all streams in this State. The stream must be of sufficient size to float, by the force of tne current, and without the aid of persons traveling upon the banks, craft and rafts of sufficient size to make the business profitable. It is not sufficient that loose logs or lumber can be floated down it when at flood. Streams of that character are not subject to the public servitude, but are private property. We think that Wolfe river is such a stream that the public has an easement in, and the right to use its waters for floatage at such periods, as this right can be profitably exercised in the natural state of the stream. This easement, however, is not an absolute and unqualified right of way. The riparian proprietors also have rights in such streams as valuable as that of the public, and these respective rights of the public and the riparian proprietors must be so used and. exercised as*630 not to unreasonably interfere with and obstruct each other.”
This case is the only one in our Reports which puts on a clear basis floatable streams as a distinct class.
From a consideration of. all of these cases it is perceived that our authorities recognize three classes of navigable streams, viz.: First class, those navigable in law; second class, those navigable in fact; third class, floatable, streams. There always occurs to the mind' of any one examining the subject an ambiguity arising out of the expressions navigable in law and navigable in fact, since, of course, the first are actually navigable as well as the second, and even in a much ampler sense. But so it is the two expressions have acquired a technical meaning — the first as indicating a degree of navigability so great as that the sovereign not only owns in trust for the public the stream of water itself, but also the bed of the stream, and cannot alienate either; the second to indicate that the streams belonging to that classification have a degree of navigability so much less that individuals, without injury to the public welfare, may own proprietary rights in the bed thereof, and such rights as in law attach to such ownership, subordinate, however, to the right of the public to use the stream as a highway.
Confusion has arisen in the effort to distinguish between streams of the first and second class: the distinction being based on the kind of craft they «an sustain and float . .
The second class is composed of streams which the opinion thus defines: Those “which, though not navigable in the sense of the law, are yet of sufficient depth, naturally, for valuable floatage, as for rafts, flatboats, and perhaps small vessels of lighter draft than ordinary;” understanding as a natural condition of such a river those annual periods of swollen tide, lasting for weeks or months, as shown in Sigler v. State, supra, which enable'them to bear for the time being such valu«
The third class -is accurately defined, as T have stated; in Miller v. State, supra.
If these definitions were always kept in mind, there Avould be less confusion on the subject in the minds of counsel, and less than that which has been sometimes exhibited in the opinions of the court.
Here I may, properly, as I think, turn aside from the main current of the discussion to say that the decision of thie court in the present case upon the question of navigability, if contrary to what has been previously held, as set forth in the preceding cases, will, as I have already indicated, have an effect far beyond the present-controversy. If it be declared that waters three or four feet deep (such as those intervening the bank and the deep water out in the lake), and capable of floating a light-draft steamboat, are navigable in law, the beds of all streams in this State that can bear such craft will be thereby declared to belong to the State. The rule that the title of riparian owners extends to the middle of the stream, where lands are bounded on streams now falling within the second class, will be abrogated; moreover, every-stream where the question of depth is in doubt will be drawn into litigation, and the people of the State will in course of time reap as a result of this one lawsuit a vast harvest of other litigations. It was declared in Miller v. State, supra, that the legislature «could not arbitrarily declare a stream navigable (meaning navigable in 1-uf) ■ the effect of such declara
4. It is perceived that the rules heretofore estahí-' lished by the court all apply to streams as highways in which the State or its people have an easement; the State owning the water highways of the first class. Do
What is the common-law rule on the subject? This is fully discussed and the authorities cited in Hardin v. Jordan, 140 U. S., 371, 11 Sup. Ct., 808, 838, 35 L. Ed., 428, in an opinion by Mr. Justice Bradley.
After examining the question, and reaching the conclusion that at common law lakes may be owned as private property, the learned justice continued in further support of his conclusion as follows:
“But we are not without express authority, in addition to that of Lord Coke, as to the rule of the common law. As before observed, the small number in England of the bodies of water of the kind now under consideration would lead us to expect but few decisions on the subject compared with those relating to rivers and streams. But the precise question has been brought before the court in recent times, and has been decided as from the reason of the thing' we should anticipate it would be. Bristow v. Cormican, L. R., 3 App. Cas., 641, is directly in point, and received the consideration of*637 the best legal minds of England. It related to riparian rights in Longh Neagh, a lake in the north of Ireland, about fifteen miles in length (north and south)’ and about ten miles in breadth, situated some fifteen mills west of Belfast, and having the town of Antrim nbal its northeastern extremity. The plaintiff sued the 'defendants in trespass for fishing in the lake, and de raigned title from the crown by a grant made in the tipie, of Charles II. of all the fishings in Lough Neagh] aifd the question was whether the crown had the right €© make such a grant The decision was unanimous that" it; had not. Lord Cairns, then Lord Chancellor, said:.‘The crown has no de jure right to soil or fisheries of a lopgh like Lough Neagh. Lough Neagh is, as your lordships are aware, the longest inland lake in the United Kifig-j dom, and one of the largest in Europe. It is from four-] teen to sixteen miles long, and from six to eight mills? broad. It contains nearly 100,000 acres; but, though! it is so large, I am not aware of any rule which would/ prima facie, connect the soil or fishings with the crown,1) or disconnect them from the private ownership either1 of riparian proprietors or other persons.’ Lord Hather-1 ley said: 'This is an inland lake, and therefore it is not a portion of the land belonging to the crown by reason of its being on the shore of the sea, or a navigable, straight or river.’ Lord Blackburn added: ‘The firstj question that I shall discuss is whether it is conclusively^ shown that Charles II had, in 1660 and 1661, title to the property he purported .to convey. I think he had not: The _prope|^i^he sea a»d ^tu$ries,*638 and of rivers in which the tide ebbs and flows, is, prima facie, of common,, right, vested in the crown; bnt the property of dry Mnd is not of common right in the crown. It is clearly and uniformly laid down in our books that, where the soil is covered by the water forming a river in which the tide docs not flow, the soil, does of common right belong to the owners of the adjoining lands; and there is no case or book of authority to show that the crown is of common right entitled to land covered by water, where the water is not running water forming a river, but still water forming a lake.’ Then, after taking notice of a hesitating remark on the subject made by Justice Wightman in Marshall v. Ulleswater Steam Navigation Co., 3 Best & S., 742, and of the apparent inconvenience of adjoining owners of small holdings on the borders of a lake going out to the center, he adds: ‘It is, however, necessary to decide whether the crown has of common right a prima, facie title to the soil of the lake; I think it has not. I know of no authority for saying it has, and I see no reason why it should have it.’
“Of course, this decision has not the controlling authority which it would have had, if it had been made before our Revolution. But it is the judicial decision of the highest authority in the British empire, and it is entitled to the greatest consideration on a question like this, of pure common law.”
Mr. Justice Bradley then, after distinguishing the Massachusetts cases as being based on a colonial ordinance adopted in 1641, which provided that great ponds
“But we forbear to quote further the reasonings of the cases. There are many more to the same effect, all going to demonstrate what the rule of the common law is with regard to the ownership of the beds of inland lakes, not of such size or importance as to be classed with the great navigable lakes and rivers of the country. We need not depend upon the English case of Bristow v. Cormican alone, great as its authority neces*640 sarily is, but are surrounded, by a cloud of witnesses in our own country whose testimony is in harmony with that decision.”
By the great lakes which he excludes in the sentence last quoted it appears from the opinion elsewhere that he had reference to our great inland seas, Lake Michigan, Labe Superior, Lake Erie, Lake Champlain. He shows that the fact that the lake is navigated by steamboats does not change the rule of the common law, which was proven by Smith v. Rochester, 92 N. Y., 463, 44 Am. Rep., 393. “The latter case” said he “related to Hemlock Lake, which is seven miles long and half a mile wide, and navigated by scows, steamboats, and other craft. The legislature of the State authorized the city of Rochester to take the water of the lake for the use of the inhabitants of the city, subject to the payment ‘of 1 images for injury to private property. The plaintiff, owning mills which were driven by the waters of the lake, applied for an injunction to restrain the city authorities from taking the water; and the defense was that fee lake was the property of the State, and that the State had a right to dispose, of the water. The opinion of the court of appeals, by Chief Justice Ruger, exhibits a careful and able examination of the law on the gabjecfc After adverting to the constitution of the State, framed in 1777, by which the common law and the statutes of England and the colony were continued as the law of the State, subject to such alterations as the legislature night make, and also adverting to the peculiar lümownership ^
I think I have thus proven, by most ample and in dm bitable authority, that under the common law of Eng^ land, which is also the common law of this State, lakes are not owned and held by the sovereign in trust for the whole people of the State, and cannot be granted to private persons, but that, on the contrary, they are the subject of private ownership and may, be. granted as other lands are granted.
5. But if it be thought that this court should not follow the common law on this subject, but rather the civil law, the result is the same. In the case already referred to, Hardin v. Jordan, there is a discussion of this subject with citation of authority by Mr. Justice Bradley, of which I avail myself, viz.:
“In Scotland, where there are many lakes, often of large extent, there has never been any doubt on the subject. It is true their system of laws is founded on the civil law, by which lakes and ponds are regularly of private ownership. Lord Selborne, in McKenzy v. Banks, L. R., 3 App. Cas., 1324, 1338, says: ‘It is to these facts that the law of Scotland with respect to the rights ,of riparian proprietors in inland lakes- has now to be ap*642 plied. Under titles such as those by which both the competitors in the present case hold (and when nothing turns upon any evidence of exclusive possession), the entire lake, if surrounded by the land of a single proprietor, belongs to that proprietor, as a “pertinent” of his land. If there are more riparian proprietors than one, it belongs “ratably” to them all. So far as relates to the solum or fundus of the lake, it is considered to belong in severalty to the several riparian proprietors, if more than one; the space inclosed by lines drawn from the boundaries of each property usque ad medium, filum aquae being deemed appurtenant to the land of that proprietor, exactly as in the common case of a river.’ But as to the rights of boating, fishing, and fowling, Lord Selborne added: ‘These are to be enjoyed over the whole water space by all the riparian proprietors in common, subject (if need be) to judicial regulation.’ See, also, to the same purport, Burge, Col. & For. Law, vol. 3, page 425; Justinian’s Digest, lib. 8, tit. 3, f. 23, sec. 1. And centuries before Justinian, Cicero spoke of the many lands, houses, lakes, ponds, places and possessions (that were) confiscated by Sulla, and conferred upon his own favorites. Agra. Law Orat., 3, chaps. 2, 7.”
He then continues, in amplification of the subject:
“As many features of the common law with regard to tSte rights of riparian owners were borrowed directly 'from, the civil law (Hale, De Jure Maris, pt. 1, chap. 6, page 28), it would not be strange if the rule relating to lakes and ponds came from the same source. It was recommended by the same reason that applied to fresh wa*643 ter rivers and streams. When land is bounded by a lake!' or pond, the water, equally as in the case of a river, is appurtenant to it; it constitutes one of the advantages of its situation, and a material part of its value, and enters largely into the consideration for acquiring it. Hence the presumption is that a grant of land thus bounded is intended to include the continuous land covered by water. Besides, a lake or pond, like a river, is a concrete object, a unit, and, when named as a boundary, the natural inference is that the middle line of it is intended; that is the line equidistant from the land on either side. If the margin is named as the boundary, the case is different; the land under the water being then expressly excluded. Of course, these observations do not apply to our great navigable lakes, which are really inland seas, and to which all those reasons, apply which apply to the sea itself.”
It thus appears that, both by. the common law and the civil law, lakes are the subject of private ownership. It seems to me this should close the question. ■ It must close the question, unless there is something' in our situation on the subject Of lakes fairly and justly distinguishing it from the situation of the .British Is- . land's :gnd nur own States which have applied- the com-* mon law, and all of the countries in; which the .civil law'. regulates, on this subject, .the rights of men'.; ■ No such.. distinction has been pointed out, and none is suggested., to my.own mind;
.6.1; But I shall now/layaside, for the moment, the rea-Boning and the < authorities contained apdi referred to in
Now, treating the present case from the saíne standpoint : The facts shown in this record are substantially the same >as those set forth in the opinion of the court in Webster v. Harris, supra, with the following exceptions : It is made to appear more clearly in the present case that the water touching the shore of the lake on all sides and separating the shore from the deep basins within is very shallow, and another exception which I shall presently mention. It is shown that near the shore i all around the water is very shallow, only a few inches in depth, except at two or three places, where it is perhaps four feet deep. It is more than 100 feet at every' point to deep water, and very much more than that before either of the open basins, within the lake is>
The evidence shows that the lake is of a very irregular shape, at some points only two miles in width, at others seven or eight miles, sprawled upon the earth like water splashed on a rock, and extending itself in numerous sinuosities and angles or inlets, the latter of which are separated by peninsulas or tongues of land. In length it is about fifteen miles. It is described by the witnesses as presenting the appearance of a deadening in a forest; by others as having the similitude of water covered with the masts of ships. All over it, except in the recessed basins, which are themselves unconnected, and not much more than a mile each in extent, some much less, and five or six in number, there are trees still standing, and the snags of those which have fallen, and under the water thousands of stumps of trees that are not visible from the outside, but are a few inches under the surface. It would be impossible even for a steamboat of the light draft applicable to rivers of the second class, under the rules laid down in Stuart v. Clark's Lessee, supra, to navigate this lake, unless a lane should be cut out for it, or roadway, by removing the stumps standing under the water. Right ihere should be mentioned the second exception above .referred to. It was made to appear that a float road, as ¡it is called, in the record, was cut out by one H. M. Wii-
It is insisted, however, that the channels of Reelfoot river, or creek, and the channel of Bayou de Chién, are still distinguishable in the lake, and also the channel made by their junction, in the lake; that these channels are free of stumps and trees, and are broad enough and deep enough for the passage of large boats. It is true that the outline of the channels of these drowned streams can still be distinguished within the lake by sounding with pole or paddle, and noting the stamps of trees under the water lining the banks, although nothing oí this can be seen on the surface of the lake, which presents the appearance of a single sheet of water, the drowned streams having no current. It is true that these channels are from sixty to ninety feet wide, that they range in depth from seven to ten or eleven feet deep, and that there are only a few stumps in them. There are, however, a good many fallen trunks of trees in them here and there, and in the channel of Bayou de Chien there is an obstruction for about 100 yards of its length that reduces its depth according to the weight of the testimony to about twelve or fifteen inches, and at points to a depth less than this. It also appears that at the lower end of the lake the channel of the united stream is lost before the bank is reached, and opposite this place, according to the weight of the evidence, the water does not exceed at the bank four feet in depth, and there are stumps between the end of the channel
We have been referred to decisions holding" in sub-“ stance that, although there are obstructions at places* here and there in a river that have to be removed before) the river, navigable at other places, can be made navigable for its whole length (as where a river is navigable for the most part, but there are reefs or other obstructions at intervals, where portage has to be employed to transfer freight from a point above the obstruction to a point- below), such obstructions do not destroy the navigability of the river. I see no objection to this view. A navigable river is a highway, just as a road or street is a highway, and it can be no impeachment of a highway as such that obstructions may have to be removed before its whole length can-be utilized. But who would think of calling á dense forest a highway, because it is possible to ¡cut down the trees, dig.
Before passing from this part of the case I should notice the fact that complainant cites a number of federal cases on the subject of the navigability of streams, and gives the dimensions of a number of very small craft •that are subject to the jurisdiction of the United States .courts in the regulation of interstate commerce. These cases and the craft referred to have no bearing, as I think, upon any question- in this case. The determining ■principle on which such cases proceed is the capacity of ithe stream, no matter how small or how great, for the (purposes of interstate, commerce. But, as already pointed ■out, the purpose of making inquiry as to the navigability, ■and the grade of it, or degree, in the class of cases we .have before us, is totally different; that is, to ascertain .the ownership of the underlying earth as a basis for the assertion of the rights appertaining thereto. The soundness of the view here stated is recognized-in the most recent decision of the supreme court of the United States in the case of Donnelly v. United States, 228 U. S., 243, 33 Sup. Ct., 449, 57 L. Ed., —. I hardly need add that the case of Illinois Central R. R. Co. v. State of Illinois and City of Chicago, 146 U. S., 387-476, 13 Sup. Ct., 110, 36 L. Ed., 1018, has no application, as
7. It is insisted that the rights of fishery do not go with the soil, even if that belongs to the defendant. The authorities are directly to the contrary.
It was said by Chancellor Kent:
‘'It, was a settled principle of the common law that the owners of land on the banks of fresh water rivers, above the ebbing and flowing of the tide, had the exclusive right of fishery, as well as the right of property, opposite their respective lands ad filum medium aquae, and where the lands on each side of the river belong to the same person he had the exclusive right of fishery so far as his land extended along the same. The right existed in rivers of that description, though they might be of the first magnitude, and navigable for rafts and boats, though they are subjected to the jus publicum, as a common highway or easement for navigable purposes.” Comm. (12 Ed.), vol. 4, p. 412.
Washburn says:
“At common law the right to take fish belongs so essentially to the right of soil in streams where the tide does not ebb and flow that, if the riparian proprietor oto upon both sides of the stream, no one but himself may come within the limits of his land and take fish there.’? Easements and Servitudes (4 Ed.), p. 561.
Farnham says:
“When the soil over which the water runs and the water itself belongs to the same person, the owner cannot be correctly said to have a right of fishery,' because*654 the land and its profits are so completely identified as his inheritance that they cannot be separated. Therefore the fishery is included in land and water; and since, in the absence of express reservation, land includes water, a grant of land will include both water and fishery.” Farnham on Waters, p. 13T6. “Again, since the right to fish follows the title to the soil, there is no public right of fishery in a lake the title to the bed of which is in private ownership.” Id., 1427.
G-ould says:
“Where a fresh, navigable river is held to be private property, the crown or State and the public have no rights in it which are not connected with navigation.” Gould, Waters (2d Ed.), sec. 46, p. 109.
We are referred to Willow River Club v. Wade, 100 Wis., 86, 76 N. W., 273, 42 L. R. A., 305, as laying down a different doctrine, and so it docs. That case holds that, although the riparian owner owns the land lying under a stream of water, yet the fishing rights in the water belong to the public, and not to such riparian owner, although, as we infer, he might own both sides of the stream. This is not the common law, and cannot be followed in this State. We are also referred to Lamprey v. State, 52 Minn., 181, 53 N. W., 1139, 13 L. R. A., 670, 38 Am. St. Rep., 541. That case, while adhering to the common-law rule that fisheries.in streams navigable in law belong to the public, and fisheries navigable in fact-belong to riparian owners,- yet states a test of. navigability in law wholly at variance with our cases, and to adopt jyhich would overrule them all. Um
We are referred to the case of Peters v. State, 96 Tenn., 682, 36 S. W., 399, 33 L. R. A., 114, for the proposition that the State has the right to fisheries in lakes. This contention is a misunderstanding of that case. It appeared that two persons owned a lake in Lauderdale county, one person about 1,000 acres, and another forty acres; the forty acres being an arm of the lake. The case dealt with an act which made it unlawful for any one to seine for fish in any of the streams, lakes, rivers, or ponds in this State, or to take fish in any way, except by rod, line, or trot line. It is provided, however, that the act does not apply to private ponds. Peters, who owned the larger-part of the lake, was indicted for seining in this lake. His defense was that it was a private pond, and that the act did not apply. The court held that, inasmuch as another person owned an arm or part of the lake, it was not a private pond in the sense of the act, because the fish could run from one part of the lake to the other, and that neither of the owners would have the right to take fish in the interdicted manner; that, if such conduct were allowed, either might gather all of the fish into his part of the lake and destroy
We are also referred to the case of State v. Ashman, 123 Tenn., 654, 135 S. W., 325. That case treated the constitutionality of an act prohibiting nonresidents from engaging in the business of taking pearl mussels or other shellfish for profit in the waters of this State, without first obtaining a permit or license from the clerk of the county court of the county where such waters are located, and payment of the privilege tax imposed upon nonresidents engaged in that business. This case did not'-concern the rights of any ripárian owner, or any person claiming a right to the soil under the water, and is- inapplicable to the present controversy..
8. It is insisted that, because for a great number of years people'' hunted and fished at will over the lake, it may be for forty or fifty years,, until in 1902 the West Tennessee Land Company united all titles in itself, and -a dew years'afterwards undertook, to. prevent the incur
“The plaintiff claimed to own a natural, nontidal lake in Morris county, called ‘Green pond.’ The actio*» was; trespass for breaking his close and fishing .in water that covered his land. The defendant pleaded the general' issue, denying that the plaintiff had an exclusive right.' to fish in said pond, set up the statute of limitations' and license from the plaintiff, and also alleged a prescriptive right to fish, by virtue of certain grants to. persons under whom the defendant claimed. A verdict 1 was rendered for the defendant, which was set aside on rule to show cause. The supreme court held that the! plaintiff had proved his title, and that the defenses bv¡ way of limitations, license, and prescription were not; sustained. Among the legal conclusions to be drawn from this case are these: That the soil under a fresh water pond in New Jersey is not in the State, but is in private ownership; that the exclusive right of fishing therein is prima facie in the owner of the soil, but may j be acquired separate from the ownership of the soil;! that the right of the public to fish in private waters! cannot be claimed by custom, or established by proof of*658 customary right; and that such right can be acquired only by grant or prescription, and must be prescribed for in a que estate. The following extract from the opinion will show both how strong was the proof of user in that case, and how closely the facts resemble those now in view: ‘The evidence in this case shows that the public in general, for a period of forty years and upwards, were accustomed to fish in the pond in question without hindrance or molestation, and the permission to do so was neither asked nor granted; that the fishery was never used by its owners, either before or since the plaintiff acquired title, as a source of pecuniary profit, but that every one, without regard to residence or tenure of lands, was permitted to fish in all parts of the pond at will, and whenever his inclination prompted him to do so; and that this privilege was exercised under prevalent impression that the fishery, in the language of one of the witnesses, was a free fishery. And it is a noticeable fact in the case that, although the witnesses who fished in the pond testify that they did so under a conviction of their right, yet no one claimed -a right personal to himself, or other than such as it was thought. belonged to the public in general. This evidence tends merely to establish a customary right in all the inhabitants and frequenters in that locality to fish in these waters, if a right to fish could be established by proof of custom. But the right of fishing, being a profit a, prendre in another’s soil, as distinguished from an easement, cannot be claimed by custom, but must be prescribed for in. a que estate. ... . The defendant'*659 cannot justify under a custom, nor will proof of a custom sustain a plea of prescriptive right, because the two rights, though they may coexist in the same land, are of a completely different nature.’ The defendant subsequently applied for leave to file an additional plea justifying the alleged.trespass on the ground that the fishery had become public by dedication. Leave was granted in order that the question might appear on the record, and the plea was then, after argument, struct out. The opinion is reported in Cobb v. Davenport, 33 N. J. Law, 223, 97 Am. Dec., 718. The conclusions expressed by the court are that the right to fish and tahe fish in alieno solo is not an easement, hut is a profit a pendre. and can be acquired only by grant or prescription, which must be pleaded; that such a right, so universal and un - qualified as to subsist in the entire public, cannot hr gained by custom or prescription; and that the doctrine of dedication to public uses does not embrace a claim of this character.”
To same effect is Lembeck v. Nye, supra.
We are referred to Stump v. McNairy, 5 Humph., 363, 42 Am. Dec., 437, for the principle that, when the public has used for purposes of navigation a waterway for twenty years under a claim of right, it acquires an easement therein for the purpose indicated. The principle is sound, but has no application to a claim of fishery rights in the public, as shown in the New Jersey cases above referred to, reported in 64 N. J. Law, 330, 45 Atl., 634, 48 L. R. A., 616, 81 Am. St. Rep., 504, and Limbeck v. Nye, supra. The public, by hunting and fishing
In what has been said I have considered .all of the contentions of the parties, and reached the conclusion, soundly, as I believe, that the State is not entitled' to any relief in the present case. In my judgment, the best solution of the controversy would be to permit the case of Webster v. Harris, supra, to remain undisturbed as a rule of property controlling the special piece of property involved in this controversy. It is true, as I believe, that that case was placed upon an erroneous theory; but of this the State cannot complain, because, as a result of the application of such theory, a declaration has been made in behalf of the citizens of the State to the effect that the lake is a body of water navigable in fact, and also that it cannot be drained. As a consequence of treating the lake as a body of water navigable in fact (and one not navigable in law), the bottom of the lake is as susceptible of private ownership as if the true theory, that lakes are susceptible of private1, ownership, had been applied; but an additional right, which under the true theory would not belong to the public, was declared by the opinion — that is, the right, of Ihe public to navigate it. Also, as stated, it is declared that the lake cannot be drained. This latter nrop-osition was placed on the ground that persons who own
It is urged in behalf of the State, in view of the annual catch of fish, which is very large, and of the great number of ducks and geese annually killed on the lake, that this body -of water should belong to the State, for the pleasure and profit of all of its citizens who may desire to resort thither. To this I agree. The State should buy it from the owners by private purchase, or, failing in that, should condemn it and pay for it, just' as it obtains any other private property which it needs. But inasmuch as this property, under the principles of law which I have discussed, is capable of private ownership and was sold, part of it by the State of North Carolina more than 100 years ago, and the rest of it more than sixty years ago, to private persons under whom; defendants claim and hold the title, it is not just that! the State should retake it without paying therefor a, value ascertained by contract or proper adjudication.
For the reasons stated, I am of the opinion that the bill should be dismissed, at the cost of the State.
