97 Va. 176 | Va. | 1899
delivered the opinion of the court.
“ Each riparian proprietor is entitled, in conformity to such right, to have the extent of its enjoyment upon the line of navigability of the water course determined and marked, and his proper share of the flats, or land under the water, for the purposes aforesaid set apart, and its boundaries defined. A court of equity has jurisdiction, and is the proper tribunal, to make the apportionment, and to determine and establish the boundary linea of the coterminous owners.”
Upon the authority of this case we think there was no error in. overruling the demurrer to the plaintiff’s bill; and we are of opinion that the objection taken by some of the appellants to the; decree complained of, that it was made in the absence of certain necessary parties, should also be overruled.
The lots, which are the subject matter of this suit, form the shore of Elizabeth river at that portion thereof known as “ Crawford’s Bay ”; the lots owned by the appellants being on the north side of the city of Portsmouth, and forming the’ south shore of the bay, while those of the appellees form its west shore. These two shore lines run nearly at right angles to each other,, so that the shore lines of the bay may be said to form the right
Appellees claim that by virtue of their ownership of the land on the west'shore they have the right to all of the flats or bottom of this bay to the port warden’s line, and to fill in the same and build their structures thereon to said port warden’s line to the exclusion of the owners on the south shore of the bay; which assumption is based upon the boundaries given in the several deeds from William Crawford to his immediate grantees, it being claimed that these boundaries were to “ high-water mark,” and, therefore, the lots so bounded had no riparian rights, while the lots of the appellees were bounded by the river, and hence riparian rights were included therein. The Hustings Court sustained the position of appellees and denied riparian rights to the appellants. In this there was error.
The several deeds under which appellants claim convey to them to “ high-water mark,” and in the deed to Page and the
As early as 1679 it was ordered and declared by the Legislative Assembly of Virginia, that “ every man’s right, by virtue of his patent, extends into the rivers or creeks so: far as low-water mark,” and the present statute provides that, subject to certain designated'provisions, “ the limits or bounds of the several tracts of land lying on said bays, rivers, creeks, and shores, and the rights and privileges of the owners of such lands, shall extend to low-water mark, but no further, unless, where a creek or river, or some part thereof, is comprised within the limits of a lawful survey.” Code of Va., sec. 1399; 1 Rev. Code of 1819, ch. 87, p. 341; Groner v. Foster, 94 Va., at p. 657.
“ Thus the limits or boundaries of the several parcels of land under consideration,” as was said in the case just cited, “ were extended by operation of law, down to the ordinary low-water márk, and the right to the soil between ordinary high and low-water mark annexed as incident or appurtenant to the adjacent land.” French v. Bankhead, 11 Gratt. 160.
French v. Bankhead is a very strong case. It was decided in 1854 by a unanimous court, and has never been questioned to this day. The State of Virginia agreed to cede to the United States its soil and jurisdiction to the extent of 250 acres at Old Point Comfort, for the purpose of fortification and other objects of national defence, and authorized the Governor to convey the land by deed to the United States. The land is a peninsula bounded by Chesapeake bay, Hampton Eoads, and Hill creek.
As we have seen, the act of 1679 was in force when the deeds in question in this case were executed, and upon the authority of French v. Bankhead, supra, they vested in the grantees the right to the soil between ordinary high and low-water mark as incident or appurtenant to the adjacent land. We do not, of course, mean to say that the operation of the grant may not be so limited to “ high-water mark ” as to exclude riparian rights as incident to it, but in order to control the operation of the statute of 1679, substantially in force to this day, as construed by this court in French v. Bankhead, supra, the intention so- to do must be clear and manifest upon the face of the deed. The presumption is that the right attached as incident to the grant to “ high-water mark ”; therefore we hold that, as to these lots, with respect to .which the decree of the Hustings Court is silent, it is to be presumed, in the absence of evidence to the contrary, that the original deeds conveyed to “ high-water mark,” and consequently they will be placed upon the same footing with other lots upon the north side of the city of Portsmouth, and the south shore of Crawford’s Bay.
The apportionment of riparian rights should be made in accordance with the principles established in the case of Groner
We are of opinion that the decree of the court below should be reversed, with directions to proceed in conformity with the views herein expressed.
Reversed.