135 S.E. 589 | W. Va. | 1926
Complainant, claiming right and title to Racoon Island, situate in the Ohio River about six miles below the City of *521 Gallipolis, in the State of Ohio, upon a bill filed in the Circuit Court of Cabell County, obtained an injunction perpetually restraining and inhibiting defendants, and each of them, their officers, agents and employees, from trespassing upon or removing any sand and gravel from said island above the low water elevation, as shown on Government Chart No. 76, filed as Exhibit No. 3 with plaintiff's amended bill, and above the exterior line in red as shown on Merrick's Exhibit No. 2; also a decree against the defendants for the sum of $288.00, the value at three cents per cubic yard, for 9600 cubic yards of gravel actually removed therefrom. It was from this decree that the final appeal was taken by defendants, and now before us for review.
It is a concessum, that aside from the incidental questions, the issues presented by the pleadings, and the determination of the plaintiff's right to the relief prayed for, and granted, are:
"1. Has the plaintiff by reason of its ownership of Racoon Island any title to the sand and gravel bar surrounding the same, between high and low water marks?
"2. If the first question be answered in the affirmative, where, under the existing conditions, in said river, is low water mark located, and was it properly located by the final decree with reference to Government Chart No. 76?"
In deraignment of its title to Racoon Island plaintiff alleged in its original bill that its immediate source of title was a deed dated September 16, 1924, from Moses T. Epling, recorded in Mason County, West Virginia, December 17, 1924; that title reverted back for its remote and ultimate source of title, to a decree and deed originating in a suit instituted in 1878 by one F. A. Guthrie, Commissioner of School lands of Mason County, to sell said Racoon Island as waste and unappropriated land of the State. The bill does not allege the name of the purchaser, nor the date of the deed, but there was introduced in evidence a part of the record in the suit of Guthrie, School Commissioner, including an order therein, of April 21, 1879, showing that the purchaser was one Lewis *522 J. Cook, his compliance with the terms of sale, confirmation thereof, and directing the commissioner, upon payment of the residue of the purchase money, to execute and deliver to him a proper deed, conveying to him all the right, title and interest of the State, in and to said lands. There was also introduced in evidence a decree, purporting to have been made in another chancery suit, brought by E. L. Meade, against L. J. Cook, to subject said Racoon Island as Cook's property to the payment of a judgment of plaintiff against him, and in which it was found that Cook was entitled to a deed for said island, and appointing one Gibbons special commissioner to execute and deliver to him a deed therefor, and decreeing the same to be sold by one Gunn, special commissioner, to satisfy said judgment. Another order entered in said cause, on May 7, 1889, introduced in evidence, shows payment and satisfaction of said judgment and a direction that the cause be retired from the docket.
Another fact respecting the title, not covered by any pleading, but appearing in the record as evidence, is that this island tract was delinquent for taxes in 1916, purchased by the State, and was again proceeded against, and sold by B. H. Blagg, Commissioner of School Lands, in 1924, in which proceeding, Epling and Sheppard, in whose name the delinquency occurred, disclaiming in favor of plaintiff in this suit, appeared and filed their answer; and plaintiff appeared also, and by answer or petition claiming the right of redemption, was on its motion permitted to redeem the property from said forfeiture. A certificate of the clerk of the county court, also filed in the cause, shows that the property was regularly taxed from 1890 to and including 1924, and that there was no intervening delinquency or sale of the property except for the year 1916, already alluded to.
While these facts respecting the title to Racoon Island thus appear in the record, no real objection to plaintiff's right thereto is interposed, except the broad proposition contended for, that the commissioner of school lands had no jurisdiction or authority to proceed against said tract, in so far at least as the said title related to any part of the island below high water *523 mark, and included between that level and low water mark delineated on the Government Chart No. 76, referred to in the decree; defendants' major proposition being that at the time said school commissioner's proceedings were begun and continued, all the sand and gravel beds lying between such high water mark and low water mark constituted but a part of the bed and banks of the Ohio River, which were not subject to entry, or sale or disposition thereof for the benefit of the school fund, and that the proceedings of the school commissioners were absolutely void, in so far at least as they involved the right and title to the gravel and sand bars below high water mark; wherefore plaintiff had acquired no title thereto as against defendants or anyone else, with license or permit to take gravel or sand therefrom.
When so proceeded against in 1878, the land was described as a tract of "about 2 acres of land and sand and gravel bar surrounding same"; and in the commissioner's report to the court, it was represented that the same was subject to sale under section 1, chapter
And in connection with this statute our attention is directed to the provisions of Section 1, Article II, of the Constitution, descriptive of the territory of the State, as including "the bed, bank and shores of the Ohio River, and so much of the Big Sandy River as was formerly included in the Commonwealth of Virginia; and all territorial rights and property in, and jurisdiction over, the same, heretofore reserved by, and vested in, the Commonwealth of Virginia, are vested in and shall hereafter be exercised by, the State of West Virginia. And such parts of the said beds, banks andshores as lie opposite, and adjoining the several counties of this State, shall form parts of said several counties respectively."
The only other statute having special application to the question in hand, and one much relied on by defendants, is an act of the General Assembly of Virginia, of January 15, 1802, 2 Va. Statutes at Large, p. 317, quoted by Judge SNYDER in full in Barre v. Fleming,
The preamble to the act of 1802 will show that it was intended to defeat the efforts of "many persons who had located and laid claim to banks, shores and beds of the rivers and creeks in the western part of the Commonwealth, which ought to remain as common to all the good people thereof." Plainly it was not intended to prevent the register of the land office, nor the commissioners of school lands, from proceeding to perfect title to lands sold or lands delinquent for the nonpayment of taxes bordering on the Ohio River and held by riparian owners to low water mark theretofore when not otherwise restrained from doing so. The sole purpose was to prevent the acquisition of title to the banks, shores and beds of rivers, to the exclusion of the public or the rights of all the people for carrying on commerce thereon. We observe that while the act of 1802 describes the lands excepted as banks, shores and beds of the rivers, the acts of 1872-3, 1882, 1891 and 1893 limited such grants to the beds of such rivers. It is argued here that the bed of a river included beds, banks and shores. If so, unless we have misinterpreted our decisions cited, the rights of riparian owners are only limited to the rights of the public for the purpose of commerce, and not in title to low water mark. As was said by Judge GREEN inRavenswood v. Flemings, supra, and noted by Judge SNYDER inBarre v. Fleming, riparian owners "have an undoubted *526
right to the exclusive use of the banks and shores of the navigable rivers adjacent to their farms as against every stranger, who is not navigating the river or exercising some public privilege, that pertains to everyone in the use of a navigable stream, and that they could maintain trespass against anyone, who should cut trees there, or who should take drift-wood therefrom, or sand, gravel or earth, or who should take therefrom coal or other valuable thing that might lodge thereon." So that we reach the same conclusion reached by Judge SNYDER in Barre v. Fleming, following his very learned discussion of the law, common and statute, prevailing here, that the title of a riparian owner of land bounded by the Ohio River extends at least to low water mark, subject to the easement of navigation and the right of the State to control its use for the promotion of commerce. This we think is the law of this state. The rule may be different in some of the states, as in Iowa, where title depends upon governmental grants of public lands on navigable waters, and which is limited, as the title of the government is, to the banks of such rivers. Barney
v. Keokuk,
The property here involved happens to be an island located in the Ohio River; but it seems to be settled law that the *528
rights of a riparian owner to the mainland appertains to the owner of an island so situated. The Bedford-Nugent Company v.Herndon,
The rights of plaintiff as a riparian owner and against defendants, take it to low water mark, or ordinary low water mark, whichever of these terms be properly descriptive of plaintiff's rights. The court in Wood v. Appal,
Thus described, however, it is quite true that the line of low water mark could not be fixed for all time with absolute certainty, because at no two periods of the year could the line be delineated on the ground with absolute precision. The engineers, testifying with reference to Government Chart No. 76, say that they took as their bench mark the lowest water level ascertainable from all available sources. This was of course for the purpose of a monument for the work of improving the river with locks and dams as proposed by the federal government, and would not necessarily be binding upon riparian owners unalterably fixed and determined as to their rights. But in this case we not only have the evidence of experienced engineers that this is the usual and practicable way of determining the line of low water mark, but of numerous witnesses acquainted with the situation for many years, who locate the low water mark substantially where the government engineers located it; and for all practical purposes where could it be located with more reasonable certainty? If we can say ordinary low water mark is called for and should be fixed as the boundary, no witness has and no witness could fix it with more certainty than has been done by the engineers on Government Chart No. 76, referred to in the decree. And the evidence is pretty clear that the sand and gravel taken by the defendants was removed from within the level of low water mark, no matter what line may be designated, unless that line of low water mark has been shifted by the improvements of the Ohio River by the general government, whereby a nine-foot stage of water above low water mark, as located by the engineers, has been established and maintained. The defendants contend that the present low water mark thus established now controls plaintiff, and of necessity all other riparian owners. The evidence shows that this nine-foot level created by the dams on the river practically submerge all of the sand and gravel bar surrounding it and a part of Racoon Island and leaves little tillable ground above the pool stage of the water, and subjects that portion of the bar to public navigation and to their supposed right to take sand and gravel by government permit, from the submerged *530 part of the island without liability to the plaintiff for the value thereof. The record shows that plaintiff and defendants were competitive bidders for the island, but that the plaintiff having the prior option became the purchaser a about the price of $37,500.00; and not unlikely if the defendants had come out first in the race, the positions of the parties in this controversy would have been reversed. If the plaintiff or its predecessors had the rights decreed in the decree complained of, it is not conceived how they or it lost them to the defendants by the improvement of the river by locks and dams. Of course their rights necessarily had to yield to the rights of the public, but except in so far as the defendants have undertaken to use the water for navigation and commerce as a part of the public, they were not within their rights as navigators of the river. They took sand and gravel from the bar of the river for their private use, and were trespassers, we think, and subject to the plaintiff for damages. If not, as can be conceived, they might go on indefinitely to exhaust the necessary subjacent and lateral support of the island and finally destroy it altogether, or subject it to the action of the elements, which would result in the same thing. But for the river improvements, it appears defendants could not have occupied the territory with their boats and sand and gravel dredges requiring a good stage of water to float them and to carry on their business.
Defendants, in opposition to the views herein expressed, cite us to Mendota Club v. Anderson,
In view of what we have said, we are of opinion to affirm the decree.
Affirmed.