22 W. Va. 52 | W. Va. | 1883
The town of Ravenswood was chartered by the Legislature of the State of Virginia by an act passed, March 10, 1852. Said charter was amended by the Legislature of West Virginia by an act passed February 25, 1868. By both of said
The defendants answered and claimed, that the patent under which they claim called for an object “on the Ohio river and to run with the meanders thereof;” that the
The pleadings therefore show, that the plaintiff, the town of Ravenswood, was incorporated and. entrusted with the power of building wharves, &c.; that within the limits of said town and without the consent of the town-council of said town, between higli-water-mark and low-water-mark on the Ohio river, the defendants, who owned a lot on said river, commenced and claimed the right to complete the construction of a wharf and ice-harbor in front of this lot, claiming the right so to do as riparian owners. On the 11th day of September, 1880, the cause was heard by the circuit court
It is insisted by counsel for the appellees, that the Ohio river is not a navigable river according to the common law definition of the term; that only arms of the sea and streams, where the ’tide ebbs and flows, are by the common law deemed navigable; and streams above the tide-water, though navigable in fact are not navigable in law. For this Middleton v. Pritchard, 3 Scam. 510, and Morgan v. Reading, 3 Smedes & M. 366 are cited. The decisions in these cases and in a number of others do so hold, - but against the great weight of authority as well as against reason. It is true, that “ the only waters recognized in England as navigable were the tide-waters, yet the reason of the rule would apply equally to waters in fact navigable above the flow of the tide,that reason being, that-the public authorities ought t’o have entire control of the great- passage-ways of commerce'and navigation to be exercised for the public advantage and com-venience. The confusion of navigable with, tide-water streams found in the monuments of the common law long prevailed iu this country, notwithstanding the broad differences existing between the extent and topography of the British island and that of the American continent. It had the effect- for two generations of excluding the admiralty jurisdiction from our great rivers and inland seas; and under ,the like influence it laid the foundation in many States of doctrines with regard to the ownership of the soil in navigable waters above tide-water at variance with sound principles of public policy.” Barney v. Keokuk, 94 U. S. 338.
In the Genesee Chief v. Fitzhugh, 12 How. 443, it was held, that the admiralty and maritime jurisdiction granted to 'the Fed
Is the Ohio river a navigable, public river ? That it is, the Court will take judicial notice. In State of Pennsylvania v. Wheeling, &c., Bridge Co., 13 How. 561, Mr. Justice McLean speaking for the court said : “That the Ohio river is navigable is an historical fact, which all courts may recognize. Eor many years' the commerce upon it has been regulated by Congress, under the commercial power, by establishing ports, requiring vessels which navigate it to take out licenses, and to observe certain rules for the safety of their passengers and cargoes. Appropriations by Congress have been frequently
It has been held in very many cases, that riparian owners oí land on rivers in fact navigable are governed by the common law as to the extent of their boundaries. The Ohio river being navigable, do riparian owners of land on said river hold, as against the State, to high-water or low-water marks ? It is not contended by any of the authorities, that if the river is navigable at common law, riparian owners hold to the middle of the stream. In Martin v. Waddell, 16 Pet. 367, it was held, that when the Revolution took place, the people of each State became themselves sovereign, and in that character held the absolute right to all their navigable waters and the soil under them for their common use, subject only to the rights since surrendered by the Constitution to the general government.
Pollard’s Lessee v. Hagan, 3 How. 212, was a writ of error to the supreme court of Alabama. The action was ejectment, brought by the plaintiff in error in the circuit conrt of Alabama, to recover a lot in the city of- Mobile described as follows: “Bounded on the north by the south boundary of what was originally designated as John Forbes & Co.’s canal; on the west by a lot now or lately in the occupancy of, or claimed by-Ezel; on the east by the channel of the river, aud the south by Government street.” The whole question turned on the correctness of the charge to the jury, which was as follows: “That if they believed, that the premises sued for were below usual high loater mash at the time the State of Alabama was admitted into the Hnion, then the act of Congress and the patent in pursuance thereof could give the plaintiff no title, whether the waters had receded by the
Under the twenty-filth section of the judiciary act, the judgment was reviewed by the Supreme Court of the United States and affirmed, Mr. Justice Catron dissenting. Mr. Justice McKinley, who delivered the opinion of the Court said page 228: “Alabama is therefore entitled to all the sovereignty and jurisdiction over all the territory within her limits, subject to the common law, to the. same extent, that Georgia possessed it before she ceded it to the United States. To maintain any other doctrine is to deny, that Alabama has been admitted into the Union on an equal footing with the original States, the Constitution, laws and compact to the contrary, notwithstanding. But her rights, sovereignty and jurisdiction are not governed by the common law of England, as it prevailed in the colonies before the Revolution, but as modi-, fied by our own institutions.” He then quotes the language which I have already quoted from the opinion of the court in Martin v. Waddell, 16 Pet., and proceeds: “ Then to Alabama belong the navigable rivers, and the soil under them in controversy in this case, subject to the rights surrendered by the Constitution to the United States; and no compact, that might be made between her and the United States, could diminish or enlarge these rights. The declaration therefore contained” in the compact entered into between them, when Alabama was admitted into the Union, that all navigable waters within the said State shall forever remain public highways free to the citizens of said State and of the United States, without any tax, duty, impost or toll therefor imposed by the said State would be void, if inconsistent with the Constitution of the United States. But is this provision repugnant to the Constitution ? ” ITe comes to the conclusion that it is not and then says: “ This supposed compact is therefore nothing more than a regulation of commerce to that extent among the several States, and can have no controlling influence in the decision of the case before us. This right of eminent domain over the shores and the soil under the navigable waters, for all municipal purposes, belongs exclusively to the States within their respective territorial jurisdictions, and they and they only
In Pennsylvania R. R. Co. v. New York and Long Branch R. R. Co., 23 N. J. Eq. 159, the Chancellor said, “The facts of the case are clear and undisputed. The question is as to the rights of the parties upon these facts. It is settled by the decision of the court of errors and appeals in the. case of Stevens v. Patterson and Newark R. R. Co., 5 Vroom, that the lands under water, including the shone, on the tide-water of New Jersey belong absolutely to the State, which has the power to grant them to anyone, free from any right of the riparian owner in them.” In that case it was granted for public use. I do not suppose the court wished to be undei’-stood as saying, that the State could grant such lands for mere private purposes.
Gould v. Hudson River R. R. Co., 12 Barb. 616, was an action brought against the Bailroad Company, which had
In The People v. Tibbetts, 19 N. Y. 523, it was held, that the State has the title to all the navigable waters within its borders, subject only to the jurisdiction delegated by it to Congress in the Constitution of the U nited States for the regulation of commerce; that although the proprietors of lands on the banks of navigable waters have rights to the use of such waters, which cannot be impaired by individuals, yet such rights are subordinate to those of the State, and cannot in any manner interfere with the exercise of such public rights. To the same effect is The People v. The Canal Appraisers, 33 N. Y. 461.
In Comm. v. Tewksbury, 11 Met. 55, it was held, that a Massachusetts statute, which imposed a penalty on “any person, who shall take, carry away or remove any stones, gravel or sand from any of the beaches in the town of Chelsea” was passed for the purpose of protecting the harbor of Boston and extends as well to the owner of the soil as to strangers. In La Plaisance Bay Harbor Co. v. City of Monroe, 1 Walk. Ch. (Mich.) 168, the Chancellor said: “The complainants do not own either the bed or the banks of the river below, the point of obstruction; the bed of the stream is public property, and belongs to the State. This is the- case with all meandering streams, no part of them being included in the original survey; and the common law doctrine of usque ad medium filum aquce is not applicable to them. The public owns the bed of this class of rivers, and is not limited in its right to an easement or right of way only. So with regard to our large lakes or such parts of them as lie within the limits of the State. The proprietor of the adjacent shore has no property whatever in the land .covered by the water of the lake.”
In The Mayor, &c., of Mobile v. Eslava, 9 Porter 578, the court held, that the navigable waters within the State, have been dedicated to the use of the citizens of the United States,
■ The most elaborate opinion on the subject to be found in the books'is that of Judge'Woodward’ in McManus v. Carmichael, 3 Ia. 1. McManus owned land bn the Mississippi river; in front-of his land at low water was a, sand-bar and from this bar between high-water and low-water marks Carmichael took two boat loads of sand, 'forSvhich McManus sued him in an action-'of trespass. The lower court found judgment for the plaintiff, and 'the defendant appealed. Leárned counsel filed able and exhaustive briefs, and upon a thorough review of the-authorities'the court held tliat “although the ebb and flow of the tide -was at common law the most usual test of navigability, it wTas not necessarily the only one. But however this may be, the test is not applicable to the Mississippi river. The common law consequences of navigability attach to the legal navigability of the Mississippi. The term navigable embraces 'within itself not merely the idea, that the waters could be navigated, but' also the idea of publicity, so that 'saying waters are public is equivalent in legal sense to saying, that they'are navigable. Yet the navigability in fact is the leading idea, and is the ground of their publicity. The ebb and flow of the tide does not in reality make the waters navigable, nor has it in the essence of the thing anything to do with it. It is navigability in fact, -which forms the foundation for navigability in law, and from the fact follows the appropriation to public use and hence its publicity and legal navigability. The real test of navigability in this country is ascertained by use or by public act or declaration. The acts and declarations of the United States declare and constitute the Mississippi river a public highway in the highest and broadest intendment possible. The common law knows' but two lines-, the medium filum aquae and high water. If-the stream be navigable the boundary of the adjoining land is the one; if not navigable, the other. By the common law the riparian proprietor on navigable waters owns-to high water mark only, and this rule applies to the Mississippi riveri”' The court reversed the judgment.
Mr. Justice Bradley in delivering the opinion of the court said of the case of McManus v. Carmichael, 3 Ia. 1, “the exhaustive examination of this question by the supreme court of Iowa * * really leaves nothing to be said. The precise point was directly before the court, namely: Whether the title of the riparian proprietor extends below high-watermark in the Mississippi river; and it was.decided-thatit does not.” He also says on page 338 : “The cases in which this court lias seemed to hold a contrary view depended, as most cases must depend, on the local laws of the States, in -which-the lands are situated. In Ioiva, as before stated, the more correct rule seems to have been adopted, after a most elaborate investigation of the subject.” The cases evidently referred to by Mr. ■ Justice Bradley in the above cited opin
What is the position of Virginia, and of our own State on this question ? In Home v. Richards, 4 Call 441, it was held, that the bed of a navigable river in this commonwealth cannot be granted. In a river not navigable the owner of the soil on either side is proprietor of the bed to the middle of the stream. In Hayes’s ex’or v. Bowman, 1 Rand. 417, it was held, that when land is conveyed, which is bounded by a water-rcourse not navigable, such conveyance carries with it the title to a moiety of the bed of the water-course. In Norfolk City v. Cooke, 27 Gratt. 430, it was held, that a patent for land constituting a part of the bed of a navigable river conveys no title to it.
In the ordinance passed by the Confederate Congress July 13, 1787, entitled, “An ordinance for the government of the territory of the United States northwest of the Ohio river,” section 4, last clause, it is provided as follows: “The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same shall be common highways, and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and to those of any other States, that may be admitted into the Confederacy, without any tax, impost or duty therefor.” This was approved by Virginia, and in the same generous spirit on the 15th day of January, 1802, the Legislature passed the following act, with reference to the navigable rivers west of the mountains in that State: “Whereas it'hath been represented to this present General Assembly, that many persons have located and lay claims in consequence of such location to the banks, shores and beds of the rivers and creeks in the western parts of this commonwealth, which were intended and ought to remain as a common to all the people thereof, be it therefore enacted, that no grant issued bj? the register of the land office for the same, either in consequence of any
An examination of all the statutes of Virginia will show, that the State has always asserted the right in its exercise of sovereignty to control the bed, shores and banks of all the navigable waters within the commonwealth. 10 lien. St., ch. 2 p. 226; 1 Rev. Code, ch. 86 p. 323: Code of 1849, ch. 62 p. 326; Code of 1860, ch. 62 p. 366. In the first Constitution of West Virginia, art. 1, sec. 1, is this provision: “The State of West Virginia, shall also include so much of the bed, banks and shores of the Ohio river as was heretofore apportioned to the State of Virginia; and the territorial rights and property in and the jurisdiction of whatever nature over the said beds, banks and shores heretofore reserved by or vested in the State of Virginia shall vest in and be hereafter exercised by the State of West Virginia.” The Constitution of 1872 contains in substance the same language, but includes the Big Sandy river, and adds: “And such parts of the said beds, banks and shores as lie opposite to and adjoining the several counties of this State shall form parts of said several counties respectively.” The provisions referred to in the Code of Virginia were inserted in the Code, of West Virginia.
In the Acts of the Virginia Legislature of 1839-40, chap. 71, page 58, is found the following provision: “ Any person owning land upon a water-course may erect a wharf on the same, or a pier or bulkhead in such water-course opposite his land, so that the navigation be not obstructed thereby, and so that such wharf, pier or bulkhead shall not otherwise injure the private rights of any person. ' But the court of the county, in which such wharf, pier or bulkhead shall be after causing ten days’ notice to be given to the owner thereof of its intention to consider the subject, if it be satisfied that such wharf, pier or bulkhead obstructs the navigation of the water-course or so encroaches on any public landings as to prevent the free use thereof may abate the same'. ' Any person desiring the privilege of erecting a wharf at or on any county-landing may after giving notice of his intention by advertising such notice at some public place near the landing, and also at the front door of the court-house of such county on the first day of the term of the court- of said
These provisions were inserted in the Code of 1849, ch. 52, §§ 46, 47, and are to be found in the Code of 1860, ch. 58, §§ 47, 48. These provisions are substantially contained in the Code of West Virginia, ch. 48, §§ 40, 41, with this important modification, see section 42: “Nothing contained in either of the last two sections shall be construed to authorize the erection of any wharf, pier or bulkhead within the limits of an incorporated town, village or city, without the consent of the council thereof.”
The same provisions, substantially, are hi the Acts of1872-3 ch. 194, §§ 46, 47, 48, with this additional section, 49: “Nothing contained in this act shall be construed to take from the jurisdiction, charge or control of the council, trustees or other authority of any town, village or city so much of any road, bridge, landing or wharf, as by the laws now in force, is under such jurisdiction, charge or control exclusively.”
What do these statutes mean ? They clearly indicate, that Virginia always assumed to exercise control over the beds of her navigable streams. The beds of course include the shores and the whole space through which the stream flows. The latter acts of West Virginia show, that the Legislature did not intend to allow any one, without the consent of tile council thereof, to build a wharf, pier or bulkhead within the limits of an incorporated town, village or city. Both States have clearly shown, that they have claimed to own
In French v. Bankhead, 11 Graft. 136, which involved the construction of a grant of a tract of land to the United States, whether the grant did or did not convey to low-water-mark. Judge Allen, president, speaking for the whole court, pp. 159-60, said: “If it were a mere grant of property, the jurisdiction remaining in the State, the right of the grantee ‘would extend to ordinary low water mark, under the express provisions of the act of the Assembly, 1 Rev. Code of 1819, ch. 87 p. 341, which declares, that hereafter the limits or bounds of the several tracts of land lying on the Atlantic ocean, the Chesapeake bay and the rivers and creeks thereof within this commonwealth shall extend to ordinary low-watermark; and the owners of said land shall have, possess and enjoy exclusive rights and privileges to and along the shores thereof down to ordinary low-water-mark. By the common law the title of the proprietor extends to the ordinary high-water-mark. The shore or that space alternately covered and left dry by the rise and fall of the tide, being the space between high and low-water mark, was in the king for the use of the public. The law of Virginia so far at least as it relates to the soil has been altered; and the limits or boundaries of the land extend over and include the shore by operation of law. This was the law in force, when the cession of the land at Old Point Comfort was made, and the law being general, and speaking at every instant of time, it operated upon the grant to the United States, and extended the bounds down to ordinary low-water-mark, thereby annexing the right to the soil between ordinary high-water and low-water marks as incident or appurtenant to the adjacent land.” The statute referred to only applied to “the Atlantic ocean, the Chesapeake bay, and the rivers and creeks thereof.” It had and was intended to have no application whatever to the Ohio river.
"We have seen that the Ohio river is a great public highway, and according to the overwhelming weight of authority, according to the statutes and decisions of the State of Virginia, the riparian-owners of land on its banks have no title as against the State, beyond ordinary high-water-mark, and
In aid of the free navigation of the river/the Legislature delegates to those cities and towns, which it incorporates, the exclusive right to construct wharves. This it certainly has the right to do. It is necessary that such municipal corporation should have the exclusive right to regulate their own wharves; if they had not it would be difficult if not impossible to discharge the public trust reposed in them. They are held to the strictest accountability by those, who navigate the river, for any injury 'which they may suffer in their per
If any riparian owner oí a lot in an incorporated town could have the privilege ot making a wharf opposite his lot, it would of course be impossible for the Legislature through the municipal corporation to regulate it. It was held in Barney v. Keokuk, 94 U. S. 324, that “The public authorities have the right in Iowa to build wharves and levees on the bank of the Mississippi below high-water-mark, and to make improvements thereon necessary to navigation or public passage by railways or otherwise, without the consent of the adjacent proprietor, and without making him compensation.” As we have seen, the same rule applies here to the Ohio river, as was applied in that case to the Mississippi.
The principles evolved from the great weight of authori-' ties, to which we have referred, are that the Ohio river is navigable- and a public highway in the highest and broadest intendment possible; that riparian owners of lands thereon, as against the State of West Virginia, hold'to ordinary high-water-mark only; that the beds, banks and shoi’es of the Ohio river are by the State held in trust for the public; that it is competent for the Legislature to confer on municipal corporations the exclusive right to build wharves within their corporate limits, between ordinary high-water-mark and low-water-mark on said river, without compensation to the adjacent lot-owner for the land so taken for that pul-póse. -
It is insisted in the brief for appellee, that an injunction would not lie in this case. It is the only remedy which will give full and adequate relief, and has often been resorted to in such cases. Railroad Co. v. Schurmier, 7 Wall. 272; Yates v. Milwaukee, 10 Wall. 497; Trustees of Watertown v. Cowen, 4 Paige Ch. 510.
The question is not here involved as to what rights riparian owners of lands on navigable rivers between high and low water-marks have as against strangers. We here hold, that as against the State they have none. In my opinion they have an undoubted right to the exclusive use of the banks and shores of the navigable rivers adjacent to their farms as
The decree of the circuit court of Jackson county dissolving the said injunction is reversed with costs to the appellant: and this Court proceeding to render such decree as the circuit court should have rendered, the injunction granted by the judge of the circuit court is made perpetual, with, costs to the plaintiff in the court below.
Decree Reversed.