102 Va. 759 | Va. | 1904
delivered the opinion of the court.
Appellant filed her bill in the Circuit Court of the city of Richmond, in which she states that she is the owner in fee simple of a tract of land in Gloucester county, known as “Rosewell,” containing two hundred and fifty acres, fronting on York river, being a portion of a tract which was the property of her father, now deceased, allotted to her by a decree of the Circuit Court of Gloucester county; that as riparian proprietor her rights in the soil under the waters of York river extend to the channel or navigable portion of the river, and that from the original grant from the English Crown of this land down to and including the lifetime of complainant’s father, the proprietors of “Rosewell” had been in the habit of leasing the oyster lands upon their water front; that the last person who held such a lease from the proprietor of “Rosewell,” while still occupying the relation of tenant to complainant, accepted from the Commonwealth a subsequent lease of the flats, or oyster planting grounds, in front of “Rosewell”; that about the year 1892, while said lessee was occupying the “Rosewell” flats, under the circumstances above set out, an artesian well was sunk between low watermark and the channel or navigable portion of York
The prayer of the bill is that the well and the water therefrom be declared the property of complainant; that it be decreed that no lease can be made under the provisions of the Act of March 5, 1900, that the lease under which the Colonial Water Company claims to hold said well conveys no title to it whatsoever; and that said company may be compelled to surrender the possession thereof to complainant, and for general relief.
To this bill the Commonwealth of Virginia and the Colonial Water Company were made parties defendant, and filed their demurrer upon the following grounds:
First. The bill alleges that the plaintiff is the owner in fee simple of the soil of the bed of York river, between low water mark and the channel or navigable part of said stream, while the “demurrants insist that the right of plaintiff extends only to low watermark, and that she has no interest in the soil of the bed of said river, but that the soil of said bed is the property of the State of Virginia, so declared by statute, and the State, through the Legislature, has the authority to rent portions of the said bed to the demurrant, or any one else.”
Second. That if plaintiff has any right whatever in the soil of said river between low watermark and the channel or navigable portion of said river, it is only the, right to pass over the surface of the water in boats, vessels or river craft, or to erect wharves, piers or bulkheads opposite her said land; provided the navigation be not obstructed, nor the private rights of any person be otherwise injured thereby; and that should the plain
Third. That “the bill alleges that the plat, notice and proceedings under the Act of March 5, 1900, are erroneous, and do not comply with the requirements of the act; that these acts were performed by the county surveyor, and are presumed to be correct, and the bill should point out wherein that officer failed in the discharge of his duties.”
Fourth. That “plaintiff claims one-half acre of land for oyster planting purposes, but this right does not give her the ownership of the well, and she would be required to use said land for oyster purposes, so as not to interfere with the well and she would not thereby acquire ownership or control of the well, nor the fee simple to the soil of the bed of the river.”
The Colonial Water Company also filed a cross bill, but it is not at present necessary to consider the questions which it presents.
When the case came on to be heard the judge of the Circuit Court filed a learned and able opinion, and entered a decree sustaining the demurrer and dismissing complainant’s bill, but-reserving for further consideration questions between the Colonial Water Company and the Commonwealth of Virginia, arising upon the cross bill. That decree is before us for review.
By section 1338 of the Code, it is declared, that “All the beds of the bays, rivers, creeks, and the shores of the sea within the jurisdiction of this Commonwealth, and not conveyed by special grant or compact according to law, shall continue and remain the property of the Commonwealth of Virginia, and may be used as a common by all the people of the State for the purpose of fishing and fowling, and of taking or catching oysters and other shell fish, subject to the provisions of chapters ninety-five, ninety-six and ninety-seven, and any future laws that may
Is section 1338 a mere self-servient declaration of title, an arbitrary assumption of right upon the part of the State, or is it in accordance with the law of the land, as commonly received and understood? The discussion of the subject invited us to explore the past, and to investigate the power and authority, the interest and the title of the English Crown in the soil under the tidal waters of that realm; to discriminate between the power of the Crown before the adoption of the Magna Gharta, and as limited by that instrument. The difficulty of the task and the consciousness that at this day we could throw no light upon a subject which has been so often considered by the ablest jurists, disposes us to follow the example of Chief Justice Taney, who, in the case of Martin v. Waddell, 16 Peters, 407, wisely said: “We do not propose to meddle with the point as to the power of the king since Magna Gharta to grant to a subject a portion of the soil covered by the navigable waters of the kingdom. . . . Eor when the Revolution took place the people of each State became themselves sovereign; and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution to the general government. A grant made by their authority must therefore manifestly be tried and determined by different principles from those which apply to grants of the British Crown, when the title is held by .a single individual in trust for the whole nation.”
soil below low watermark is the subject of exclusive propriety and ownership, belongs to the State on whose maritime border and within whose territory it lies, subject to any lawful grants of that soil by the State, or the sovereign power which governed its territory before the Declaration of Independence. But this soil is held by the State, not only subject to, but in some sense in trust for the enjoyment of certain public rights.”
The case of McCready v. Commonwealth of Virginia, reported in 94 U. S. 391, 24 L. Ed. 248 (27 Gratt. 985), is one of peculiar interest in the consideration of this case. It originated in the county of Gloucester in this State, and involved the constitutionality of an Act of Assembly, which forbade the planting of oysters in the waters of the State by any person not a resident of the State. The case came to this court, which held, Judge Anderson delivering the opinion, that the navigable waters and the soil under them within the territorial limits of the State are the property of the State, to be controlled by it within its discretion for the benefit of its people, the only limitation upon that power being that it could not.interfere with the authority of the government of the United States in regulating commerce and navigation. Upon a writ of error from the Supreme Court of the United States to the judgment of this court, Justice Waite, after reviewing numerous cases upon the subject, declares, that the principle has been long settled “that each State owns the beds of all tide-waters within its jurisdiction, unless they have been granted away. In like manner the States own the tide-waters themselves, and the fish in them, so far as they are capable of ownership while running. Eor this purpose the State represents its people, and the ownership is that of the people in their united sovereignty. The title thus held is subject to the paramount right of navigation, the regulation of which, in respect to foreign and interstate commerce,
Ill. Cent. Ry. Co. v. The People of the State of Illinois, 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1018, contains an interesting discussion of this whole subject. The opinion of the majority was delivered by Mr. .Justice Eield, and in it he states it to be “the settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide-waters, ■within the limits of the several States, belong to the respective States within which they are found with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest of the public in the waters, and subject always to the paramount right of Congress to control their navigation so far as may be necessary for the regulation of commerce with foreign nations and among the States. This doctrine has been often announced by this court, and is not questioned by counsel of any of the parties.” He then shows that the same doctrine is held applicable to lands covered by fresh water in the Great Lakes, over which is conducted an extended commerce with different States and foreign nations, and which possess all the general characteristics of open seas, except with respect to the freshness of their waters, and tire absence of the ebb and flow of the tide. “In other respects they are inland seas, and there is no reason or principle for
This opinion was concurred in by three of the members of the court, while a dissenting opinion was delivered by Justice Shir as, concurred in by two of the justices, and the Chief Justice and Mr. Justice Blatchford did not sit.
The dissenting opinion maintains to the fullest extent the right of the State over the soil under tide-waters within its limits, with the consequent right to dispose of the title to any part of the soil in such manner as it may deem proper, subject only to the paramount right of navigation.
The position of the majority of the court is fairly summed up in the first syllabus of the report. “The ownership of and dominion and sovereignty over lands covered by tide-waters, and the fresh waters of the Great Lakes within the limits of the several States, belong to the respective States within which they are found, with the consequent right to use or dispose of any portion thereof, when that can be done without impairment of the interest of the public in the waters, subject to the right of Congress to control their navigation for the regulation
In Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331, this subject was further discussed by Mr. Justice Gray, who delivered the opinion, in which many authorities are considered, and the conclusion reached that the lands under tide-waters are vested in the States for the benefit of the whole people, within their respective borders, subject to the rights surrendered by the Constitution to the United States. See also Alger v. Commonwealth, 7 Cush. 53; Florida v. Black River Phosphate Co., 32 Fla. 82, 13 South. 640, 21 L. R. A. 189; Gough v. Bell, 21 N. J. L. 156; Langdon v. New York, 93 N. Y. 129; Pollard v. Hagan, 3 How. 212, 11 L. Ed. 565.
The authorities which we have cited abundantly establish the proposition asserted by the court in McCready v. Commonwealth, supra, that the navigable waters and the soil under them, Avithin the territorial limits of a State, are the property of the State, to be controlled by the State, in its own discretion, for the benefit of the people of the State, and demonstrate that section 1338 of the Code is a declaration of right in the State, sanctioned and supported by the common law. See also French v. Bankhead, 11 Gratt. 136.
Let us look at the case from another point of view. The claim of appellant rests upon her right as riparian owner, by ■virtue of which she asserts title to the bed of the river between low watermark and the line of navigability, and to its exclusiA^e use and enjoyment, subject only to the paramount right of the United States and the right of fishery, which she concedes to the Commonwealth as trustee for its citizens. It is for the plaintiff to maintain her right. The possession of the defendant is sufficient, except as against the claim of one haAÚng a better right to the possession.
At common laAV the title of the owner of land bounded by a tidal stream extended to high watermark, and no farther. Bv an act of the Legislative Assembly of Virginia, passed in 1619
The fee simple title, therefore, of a riparian owner ends with low watermark. Between that point and the line of navigability the riparian owner has a qualified right, of which Justice Miller, in Yates v. Milwaukee, 10 Wall. U. S. R. 447, 19 L. Ed. 984, speaks as follows: “But whether the title of the owner of such a lot extends beyond the dry land or not, he is certainly entitled to the rights of a riparian proprietor whose land is bounded by a navigable stream; and among those rights are access to the navigable part of the river from the front of his lot, the right to make a landing wharf or pier, for his own use, or for the use of the public, subject to such general rules and regulations as the Legislature may see proper to impose for the protection of the rights of the public, whatever those may be. This riparian right is property, and is valuable; and though it must be enjoyed in due subjection to the rights of the public, it cannot be arbitrarily or capriciously destroyed or impaired. It is a right of which, when once vested, the owner can only be deprived in accordance with established law, and, if necessary, that it be taken for the public good upon due compensation.”
This court said, with respect to this subject, in Norfolk City v. Cooke, 27 Gratt. at page 435: “This right of the riparian owner is not a mere license or privilege, but is property, pro-
Lewis on Eminent Domain, section 78, after stating the opinion of those writers and judges who maintain that the riparian owner has no private rights which are appurtenant to his land other than those of any other member of the public, and that the only difference is that he is more conveniently situated to enjoy the privileges which all the public have in common, and that he has access to the waters over his own land, which the public has not, says, “there are cases which hold that the riparian owners upon waters, the bed of which belongs to the public, have valuable rights appurtenant to their estates, of which they cannot he deprived without compensation. This seems to us the better and sounder rule. The opposite conclusion has been reached by a narrow and technical course of reasoning, based upon the fact that the title to the soil is in the State, or the public. It is assumed that this title gives the State the same absolute and exclusive control of the waters and their bed as an individual possesses over his private property. But there is really no analogy between the relations of a riparian owner to the waters upon which he abuts, and the relations between the proprietors of adjoining lands. The State holds the title to public waters as a trustee,- merely, for the use of all the public
We have reached the conclusion that the title to the bed of the river in question is held by the Commonwealth for the benefit of all of its citizens, and that the riparian owner has certain rights with respect to it. These rights are enumerated in section 83 of the 2nd Edition of Lewis on Eminent Domain, as follows:
“Eirst. The right to be and remain a riparian proprietor and to enjoy the natural advantages thereby conferred upon the land by its adjacency to the water.
“Second. The right of access to the water-, including a right of way to and from the navigable part.
“Third. The right to build a pier or wharf out to navigable water, subject to any regulations of the State.
“Fourth. The right to accretions or alluvium.
“Eifth. The right to make a reasonable use of the water as it flows past or laves the land.”
These rights of the riparian owner and the Commonwealth must be exercised, if possible, so that the one shall not unnecessarily disturb or impair the enjoyment of the other. Appellant has built no wharf or pier, nor any like structure, upon her premises, nor does it appear that she contemplates doing so. When she does exercise that right, it must be in accordance with such rules and regulations as the Commonwealth imposes for the protection of the rights of the public. ETor does it appear that the right in the plaintiff of access to the water from her land, or of a right of way to and from her shore to the navi
When the riparian owner complains of an injury done to him in respect to these rights, the question to be considered is, does he present a case in which there has been any substantial interruption or impairment of his rights ? Were he the owner in fee simple of the soil, any entry upon it without his consent would constitute a trespass, but having mere easements in the river, the riparian owner has no cause of complaint so long as he is permitted the full and undiminished enjoyment of these rights.
Two cases in the House of Lords illustrate this position. The Duke of Buecleuch was the occupier, under a lease from the Crovn, of a house, the garden of which ran down to the Thames, where a wall protected it from the river, which flowed up to it at high water. There was a door in this wall, which was locked or opened at the pleasure of the plaintiff, and afforded him the means, at high water, of landing persons and goods, while at low water he was afforded the same privilege by a paved causeway, which ran from the door to the river. The river was embanked under authority of an Act of Parliament, and a large strip of dry land was formed where the river had formerly flowed up to the garden, and a public road was made between this strip of land and the river, and the plaintiff claimed compensation under the act. Tt was held that the loss of the use of the river frontage and the consequent loss of privacy, and the increase of dust and noise by the creation of the embankment and road, were subjects to be considered as occasioning deterioration in the value of the property. Duke of Buccleuch v. Metropolitan Bd. of Wks., 5 Eng. & Irish App. 418.
In North Shore Ry. Co. v. Pion, 14 App. Cas. 612, an appeal from the Supreme Court of Canada, it appears that Pion had a large manufacturing establishment upon the foreshore of
In both these cases damages were awarded, it appearing that the right of access was in one case destroyed, and in the other case so far interrupted as to be rendered of little value.
In the case before us, the property of the plaintiff is used merely for farming purposes. There has not been erected, and, as far as the record discloses, there is no purpose to erect, any pier or wharf. She is engaged in no business requiring such access to the channel of the stream as cannot be fully enjoyed consistently with every right which the State has exercised, or which it has delegated to others. The Commonwealth holds as trustee a vast body of land covered by the flow of the tide precisely as in the case before us, for the benefit of her citizens. It is not only her right, but her duty, as such trustee, to render this property productive. Is it reasonable that the Commonwealth, holding title to the soil, is to be wholly subordinated in the use of it to the use with which another is clothed merely by virtue of being an owner of the adjoining shore, when the rights of each and all can be fully protected without diminution and without hindrance. If the time should come when the river front of the plaintiff shall be divided into lots whose owners find it necessary to their profitable enjoyment to erect piers and wharves upon them, if they engage in business which shall require exclusive access to the channel of the stream, it may be that a case could then be presented more meritorious than that which we have under consideration, and in the light of changed conditions the court may be again called upon to consider the respective rights of the riparian owner, and those remaining
With respect to plaintiff’s claim to have the half-acre of land assigned to her under the statute, as an oyster-planting ground, it may be observed first that this is no part of her common law right, but is the creature of statute, of which she has not availed herself, and as to which she has no cause of action, if before availing herself of the right a subsequent statute defeats it. But if this be not so, she ought not to be permitted, capriciously and arbitrarily, to exercise that right and to locate the half-acre in a manner most injurious to others, and not more beneficial to herself, so far as the facts in this case disclose. She should be required to exercise that right in the manner least injurious to others, if that end can be accomplished without a wrong to her.
The views which we have expressed are not in conflict with any case heretofore decided by this court. Where the nature of the title of the Commonwealth has been considered, it has generally been in cases which involved the power of the State over the waters within it, with respect to the right of fishery, and language is used which implies absolute ownership and dominion. Of this class of cases, McCready v. Commonwealth, supra, is a fitting illustration. We shall not prolong this opinion by discussing each case in detail, but content ourselves with observing that the opinions are to be read and interpreted in the light of the facts under consideration. Groner v. Foster, supra,
In conclusion, we are of opinion that the plaintiff has no title as riparian owner to the water between low watermark and the channel of the river, nor to the soil beneath it; that as riparian proprietor she has certain rights beyond low water mark, as the right to build wharves and of access to the water and a right of way over it to the channel, and others perhaps which need not now be considered, including a right to locate a half-acre of land as an oyster-planting ground, but that all these rights may be enjoyed by her to their fullest extent without let or hindrance, diminution or impairment, by reason of any right or privilege granted to and exercised by the Colonial Water Company, under the facts as disclosed in this record. We are, therefore, of opinion that there was no error in dismissing the plaintiff’s bill, and the decree of the Circuit Court is affirmed.
Affirmed.