Wood v. Fowler
26 Kan. 682
Kan.
1882
Check Treatment

The opinion of the court was delivered by

Brewer, J.:

This is a petition for an injunction. A demurrer thereto was sustained in the district court, and the plaintiffs bring the case here for review. The petition alleges substantially that on the 20th of January, 1880, one Matthias Splitlog was the owner and had the exclusive possession of a tract of land in the neighborhood of Kansas City and Wyandotte, and bordering on the Kansas river and extending to the middle of the channel; that he then leased said tract to these plaintiffs for ten years, and placed them in the same exclusive possession; that these plaintiffs are ice dealers, engaged in gathering ice, and that they have erected ice-houses on the banks of the Kansas river and in close proximity to this tract of land, for the storage and preservation of ice in great quantities; that merchantable ice is a commodity of great value, and the value thereof greatly enhanced, as it can be gathered in close proximity to the market; that the cities of Kansas City and Wyandotte furnish a good market for the sale of ice to consumers, as well as for export trade; and that merchantable ice of superior quality formed upon the surface of said Kansas river within the limits of said premises, which adhered to the banks of the stream and extended therefrom to the center of the channel. The petition contained further allegations that the defendants were entering the premises and removing the ice, and other facts showing that the plaintiffs were entitled to an injunction if they were the owners of the ice, or if they had such an interest therein that they could prevent any removal of it.

The question then is fairly presented as to the extent of the interest which a riparian owner has in the ice formed adjacent to his property. The petition alleges ownership and possession to the center of the channel; but the defendants insist *686that this allegation must be disregarded, because the Kansas is a navigable stream, and that the owner of the adjacent soil in such case only owns to the bank, and not to the center of the stream; that this court is bound to take judicial notice of such fact — the official records of United States surveys showing that the stream was meandered, and its navigability being also indicated by early Kansas legislation and its actual navigation a fact of early Kansas history. We think the claim of the defendants is correct — that the court is bound to take i courts- judi- judicial notice of the navigability of the stream. Limits of judicial knowledge are perhaps not strictly defined. Greenleaf in his work on Evidence, vol. I., § 6, sums it up in these words: “ In fine, courts will generally take notice of whatever ought to be generally known within the limits of their jurisdiction.” In a note thereto, he adds: “ There is not much consistency in the cases, and possibly this may result -from the fact that different judges may assume that what is or is not known to them, is or is not generally known.” Returning to the cases, we find' many that tend with more or less directness to sustain the conclusion we have arrived at. A reference to some may not be inappropriate.

In the Rld. Co. v. More, 16 Ind. 43, in a suit against a railroad company for dámages, it was proved that the accident happened at a certain locality, but it was not proved that such locality was within the limits of the county, and the court took judicial notice of the limits of the county, and of the fact that such place proved was within its limits. See also Rld. Co. v. Case, 15 Ind. 42. In the Lake Co. v. Young, 40 N. H. 420, it was held that courts take notice of the civil divisions of the state, such as counties and townships, and of its great geographical features, as of large lakes, rivers, and mountains. In Atwater v. Schenck, 9 Wis. 160, it was ruled that judicial notice would be taken of the government surveys and the legal subdivisions of public lands. In Montgomery v. Plank Road Co., 31 Ala. 76, the court took judicial notice that no part of the Tallapoosa river was within the *687corporate limits of the city of Montgomery. See also Lewis v. Harris, 31 Ala. 69. In “The Peterhoff,” Blatchford’s Prize Cases, 463, it was held that the court will take judicial notice of the situation of a town in a foreign country, and that a bar exists at the mouth of the river at which it lies, which vessels of the draught of the vessel libeled cannot cross. In Mossman v. Forrest, 27 Ind. 233, it was ruled that courts will take judicial notice of the permanent geographical facts and features of the country. See also Rld. Co. v. Stevens, 28 Ind. 429; Wright v. Hawkins, 28 Tex. 452. In Buchanan v. Whitam, 35 Ind. 257, it was held that the court will take judicial notice that the lands in Ripley county were surveyed and laid out by an act of congress, and that their sides were east, west, north, and south, and that there can be no such description of, or in relation to, a congressional survey of them as the southeast side of a quarter-section. In 1 Green-leaf on Evidence, § 6, the author, citing several cases, says: “The courts of the United States, moreover, take judicial notice of the ports and waters of the United States in which the tide ebbs and flows.” And further, the exact question in this case came before the supreme court of Indiana in Naederhauser v. The State, 28 Ind. 257, and there the court, after a full consideration, held that courts will take judicial notice of the navigability of streams, at least so far as the great rivers are concerned. See also McManus v. Carmichael, 3 Iowa, 1. Indeed, it would seem absurd to require evidence as to that which every man of common information must know. To attempt to prove that the Mississippi or the Missouri is a navigable stream, would seem an insult to the intelligence of the court. The presumption of general knowledge weakens as we pass to smaller and less-known streams;- and yet, within the limits of any state the navigability of its largest rivers' ought to be generally known, and the courts may properly assume it to be a matter of general knowledge, and take judicial notice thereof; and in taking judicial notice, we know that the Kansas is the largest river wholly within the limits of the state; that it has been recog*688nized as the prominent geographical feature dividing the state into northern and southern Kansas; that in early territorial history it was in fact navigated, a few steamboats going up and down its waters; and that its volume of water is such that in its natural condition it is capable of being used for purposes of navigation, and so coming within the recognized definition in this country of a navigable stream. (The Montello, 20 Wall. 430; Booming Co. v. Speechly, 31 Mich. 336.) We know that the lines of the United States surveys do not •cross the channel, but that the stream was meandered. (Lester’s Land Laws, p. 714.) We find among the territorial statutes, (Laws 1857, pp. 166-7,) two charters of navigation companies incorporated to engage in the business of navigating the Kansas. It is true in 1864, (Laws owner°;fchP92(an 1864, p. 180,) an act was passed by the state legislature declaring the Kansas and certain •other rivers not navigable; but the plain implication of the .act is that the streams had theretofore been considered navigable, and its purpose was to sanction the bridging and damming of such streams. It certainly was not the purpose, and the act had not the effect, to enlarge the title of the riparian owners, orto recognize them as possessed of higher rights than heretofore. Indeed, where title is once vested, a mere change in the condition or character of the current or the uses to which the stream is put, will not transfer any title. (People v. Tibbets, 19 N. Y. 527; Wheeler v. Spinola, 54 N. Y. 377.) It was an assertion of state control over a stream wholly within its territorial limits; a control which, notwithstanding the general supremacy of the federal government over navigable streams, was asserted.to exist in the state in the case of Naederhauser v. The State, 28 Ind., supra, as well as in many other authorities. So that for all the purposes of this case, and any question in it, we may assume that the Kansas is, at the point in controversy, a navigable stream. The stream having been meandered, the lines of the surveys are bounded by the bank; the patents from the United States passed title only to the bank; Splitlog, as riparian owner, owned only to *689the bank. The title to the bed of the stream is in the State. (Stevens v. Rld. Co., 34 N. J. Law, 532; Pollard’s Lessee v. Hagan, 3 How. U. S. 212.) It is true a distinction was recognized in England, and that streams were considered navigable only in so far as they partook of the sea, and' to the extent that their waters were affected by the ebb and flow of the tide, ■and only so far was the title of the riparian owner limited to the bank; above such point, even although the stream was large enough to be used, and in fact was used,- for purposes of navigation, the riparian owner owned the soil ad medium Jilum aquae. So that really three distinct characters of streams were recognized: First, those smaller streams, which could not be used for any purpose of navigation, in which the title to the soil was in the riparian owner, and along which the public had no rights of highway or otherwise; an intermediate •class, in which the riparian owner owned to the middle of the •channel, but along whose stream the public had all the rights •of a highway; and third, that which was called technically ■the navigable streams, where the title to the bed of the stream was in the sovereign, and all rights were in the public. The same doctrine of riparian ownership to the center of the ■stream in all rivers unaffected by the ebb and flow of the tide, is recognized in some states of the Union; but the better and more generally accepted rule in this country is, to apply the term “navigable” to all the streams which are in fact s. Riparian navigable; and in such case to limit the title of the riparian owner to the bank of the stream. Especially is this true in the states where the lands have been ■surveyed and patented under the federal law. See the following authorities: Rld. Co. v. Schurmeir, 7 Wall. 272; McManus v. Carmichael, 3 Iowa, 1; Haight v. Keokuk, 4 Iowa, 199; Tombden v. Rld. Co., 32 Iowa, 106 ; Flannigan v. City of Philadelphia, 42 Pa. St. 219; Bridge Co. v. Kirke, 46 Pa. St. 112; People v. Tibbets, 19 N. Y. 523; People v. Loomis, 33 N. Y. 461. These conclusions seem to compel an affirmance of the judgment of the district court; for what-ever might be the case where a riparian owner owns to the *690center of the channel, and whatever ownership and control' he may have over the ice which forms upon the stream-upon his premises, (and as to the extent of his rights, see the following authorities: State v. Pottmeyer, 33 Ind. 402, also reported in 5 American Reporter, 224; Mill River Co. v. Smith, 34 Conn. 462; Marshall v. Peters, 12 How. Pr. 218; Meyer v. Whittaker, 18 Alb. L. J. 128; 4 Cent. L. J. 500; 7 Cent. L. J. 141; Higgins v. Kusterer, 41 Mich. 318, reported in 9 Cent. L. J. 247; People’s Ice Co. v. The Excelsior, 11 Cent. L. J. 347; Paine v. Wood, 108 Mass. 173; Gage v. Stumphaus, Sup. Ct. Mass., reported in 24 Alb. L. J. 516; Washington Ice Co. v. Shortall, Ill. Sup. Ct., 13 Rep. 9,) it would seem that where there is no ownership of the subjacent soil, a riparian proprietor has no title to the ice. The title to the soil being in the state, and the stream being a public highway, obviously the ownership of the icé would rest in the general public, or -in the state as the representative-of that public. The riparian proprietor would have no-more title to the ice than he would to the fish. It simply is-this, that his land joins the land of the state. The fact that-it so joins, gives him no title to that land, or to anything-formed or grown upon it, any more than it does to anything formed or grown or found upon the land of any individual neighbor. Undoubtedly, in view of the importance that ice is rapidly assuming as a merchantable commodity, it would be wise for the state to legislate in reference to the ice product of the navigable streams; but until such legislation is had, it would seem that the one who first appropriates 4' rfpáriaa of and secures the ice which is formed is entitled it, and on the same principle that he who catches a fish in one of those rivers owns it. (Hickey v. Hazard, 3 Mo. App. 480; Gage v. Steinkrans and Rowell v. Doyle, Mass. Sup. Ct., 25 Alb. L. J. 23.)

There being no other questions in the case, the judgment of the district court will be affirmed.

All the Justices concurring.