Ware v. Hager, 126 Ky. 324

Ware v. Hager

126 Ky. 324 | Ky. Ct. App. | 1907

Opinion op the Court by

Judge Hobson

Affirming.

This action was instituted by appellant Fanny Ware in the Franklin circuit court against appellee S. W. Hager, auditor of public accounts and ex-officio custodian of the land office, to compel him to file the certificate and plat of the county surveyor of Campbell *326county for a tract of vacant unappropriated land in that county entered and surveyed by appellant pursuant to an order of the Campbell county court, and to issue her a patent therefor. AH 'the proceedings necessary for the issuing of a patent are specifically set out in the petition. But the tract of land sought to be patented consists of 200.acres beneath the waters of the Ohio river and lying between the thread of the stream and the low-water mark on the northern shore. It is alleged that the land south of the Ohio river and opposite the land sought to be patented has heretofore been duly patented by the commonwealth, and that these patents call for a corner on the south ' bank of the Ohio river, and thence with the river as it meanders to another point on the south bank of the river. The .circuit court dismissed the petition, and the plaintiff appeals.

It is well settled that the boundary of the state of Kentucky extends to the northern shore of the Ohio river at low-water mark. Handley v. Anthony, 5 Wheat. (U. S.) 374, 5 L. Ed. 113; Louisville Bridge Company v. Louisville, 81 Ky. 189, 5 Ky. Law Rep. 16, 473. It has also been held by this court that patents issued by the state of Kentucky for land on the Ohio river give the patentees title to the thread of the stream (Berry v. Snyder, 3 Bush. 266, 96 Am. Dec. 219; Miller v. Hepburn, 8 Bush, 326), and it is insisted for appellant that the land north of the thread of the stream and between that and the low-water mark on the northern shore is vacant land. On the other hand, it is insisted for the appellee that, as the state of Kentucky owns no land on the opposite side of the river, the Kentucky patents for land on the south bank of the river should be held to- extend to the State boundary line, and that therefore the *327land sought to he patented is not vacant land. The court is not inclined, after so many years, to depart from the rule laid down in the cases cited; but there is another reason for which the judgment appealed from was proper. While the State owns the land to the northern shore of the river, we do not think it has ever provided for the taking up of the river bed between the thread of the stream and the northern shore as vacant land. The proceedings in question was instituted under chapter 127, Ky. St. 1903. Section 4702, which is the first section of that chapter, provides that each county in the State shall have the right to dispose of the unappropriated lands lying therein not otherwise provided for in the manner thereinafter directed. Section 4703 provides that an actual settler on any vacant or unappropriated land shall have a pre-emption right to any number of acres, not exceeding 100. It also provides that any person who wishes to appropriate any vacant or unappropriated land may obtain an order of court authorizing him to enter and survey any number of acres, not more than 200. Section 4704 provides that the surveyor shall survey the entries in the order of time in which they are made, bounding the same by plainly marked trees, stones, or stakes, and noting where they bind on a water course or a marked line of another survey. In enacting these provisions, we cannot believe that the Legislature had in mind the taking up of the bed of the Ohio river between the thread of the stream and the northern shore. Such a survey could not be marked by stones or stakes or plainly marked trees. There could be no actual settlers on such land. While we' do not doubt the power of the Legislature to provide for the issuing of patents for the bed of the Ohio river north of the *328thread of the stream, so that the sand or minerals which may be on or under this land may be appropriated, we do not think it has yet done so, and therefore the circuit court properly dismissed the petition.

Judgment affirmed.

Petition for rehearing by appellant overrnled.