State v. West Tennessee Land Co.
| Citation | 158 S.W. 746 |
| Parties | STATE ex rel. CATES, Atty. Gen., et al. v. WEST TENNESSEE LAND CO. et al. |
| Decision Date | 07 June 1913 |
| Court | Supreme Court of Tennessee |
Proceeding by the State, on the relation of Charles T. Cates, Jr., Attorney General, and D. J. Caldwell, District Attorney General, against the West Tennessee Land Company and others to remove a cloud on title. There was a decree dismissing the bill, which was affirmed by the Court of Civil Appeals, and the State brings certiorari. Reversed as to part of the lands involved, and decree ordered for the State, and as to the remainder of the lands affirmed, and bill ordered dismissed.
H. H. Barr, of Nashville, D. B. Puryear, of Memphis, and Charles T. Cates, Jr., Atty. Gen., for the State. V. H. Holmes and M. H. Taylor, both of Trenton, and J. B. Waddell, of Union City, for defendant West Tennessee Land Co. Thomas O. Morris, of Obion, for defendant Wilson.
In the view which we take of this case, it is not necessary to make an extended statement of the pleadings, or to discuss the questions presented upon the demurrer to the bill. The only question for determination is whether Reelfoot Lake is a navigable body of water in the technical legal sense of that term. If it is, we think it is beyond dispute upon the authorities that neither the waters nor the lands underlying them are capable of private ownership. If it is not, and is navigable only in the common or ordinary acceptation of the term, then both the waters and the lands underlying them are capable of private ownership, and belong to the defendants. This one question of the navigability of the lake is inclusive of all questions made upon the appeal, and determines the entire controversy.
The lake was formed by an earthquake in 1810. The result of the earthquake was to lower the lands upon which the waters of the lake rest several feet below the surrounding lands. The submergence of the land carried down the forest timber growing upon it, and these timbers and their remains are still in the lake. The lake is from 2 to 7 miles wide and about 15 miles long, with an average depth of about 7 feet, except at Beaver Dam and Brewer's Bar, and at and near the shore lines. At places along the shore lines, and probably along their greater distance, the water is only a few inches deep for several yards out into the lake. The shallow water along the shores and in the lake is filled with vegetation natural to wet lands in this climate. The water at its ordinary stage at Brewer's Bar and Beaver Dam is from a few inches to 2 feet in depth. These shoals are from 200 to 300 yards wide. There are numerous deep pools of water in the lake, ranging in depth from 7 feet to more than 20 feet; but they have no continuous open connection with the other waters of the lake. They are surrounded by trees, which project in many instances above the water, but many of them have rotted off at the water's surface; but the stumps of the trees remain submerged in the water of the lake.
Upper Blue Basin, in the northern portion of the lake, is about 2 miles long, with an average width of something like 400 yards, and an average depth of probably 10 feet, and is open and free of obstructions. It is surrounded, however, with timber and stumps. The part of the lake south of Upper Blue Basin is 5 to 7 miles wide and several miles long. It is separated from Upper Blue Basin by Brewer's Bar, which makes a strip of shallow water only a few inches to 2 feet deep and probably 200 yards wide. There are a number of other smaller basins, practically free from stumps and timber, in the southern portion of the lake; but, like the other bodies of water, they have no open connection with each other or with the main body of water on account of the stumps and timber. Most of the snags standing in the lake are bare of limbs; but many dead snags still stand at a height of 30 to 40 feet above the surface of the water.
Some of the witnesses speak of the general appearance of the lake as that of a harbor from which the masts of vessels project. The area of the lake is probably 60 square miles and its average depth is probably 7 feet, so we think it undoubtedly true that the lake contains sufficient volume of water, and is of sufficient size, to make it navigable in the legal sense, but that it is not suitable in its present condition for purposes of navigation on account of the existence of the stumps and trees which form obstructions to successful navigation. It is also true that commercial vessels would not be able to reach the shore line at many places on account of the shallowness of the water.
The lake has both an inlet and an outlet. The outlet flows continually, but is not of sufficient depth to form a navigable connection with the Mississippi river, into which it flows. At present there is a government levee opposite the northern end of the lake, which prevents the waters of the Mississippi at ordinary tide from flowing into the lake. Before this levee was built, the river would overflow into the lake once or twice a year, and thus raise its waters many feet. The surplus waters would remain in the lake until the late spring or summer following.
From 300 to 400 people take fish from the waters of the lake daily and employ in this capacity something like 1,000 small boats, canoes, and batteaux. They take annually from 1,000,000 to 1,500,000 pounds of fish. Wild fowl are killed upon its waters every year in large quantities. Its waters are clear and pure, and as a breeding ground for fish it is probably not excelled anywhere in the world. Before the building of the levee above mentioned the fish would have free access from the lake to the Mississippi river and from the river to the lake during high water. The public have used the lake and its fowling and fishing privileges at will for more than 40 years.
The vessels of commerce plying the Ohio, Cumberland, and Caney Fork rivers range in tonnage capacity from 5 to 200 tons. A 5-ton vessel plying the Cumberland and Caney Fork rivers is 59 feet 2 inches long, 11 feet 9 inches wide, with a hold 1.9 feet deep, and draws 12 inches of water loaded. Another vessel of 11 tons' capacity is 55 feet long, 14 feet wide, 2 feet in the hold, and draws 10 inches of water light. Steamers on the Obion and Forked Deer rivers are from 65 to 100 feet in length, 15 to 20 feet in breadth, and draw from 15 to 24 inches of water loaded. Steamers of the Cumberland river are 125 to 165 feet in length, and from 22 to 29 feet beam, have from 150 to 191 tons' capacity, and draw 18 inches light, and 4 feet 4 inches loaded. Fifty per cent. of the sailing and steam mercantile vessels of the United States are of less than 20 tons gross capacity, and not more than 25 per cent. exceed 100 tons gross.
In Elder v. Burrus, 6 Humph. 358, the Cumberland river was held to be navigable in the technical legal sense. In that case, the court rejected the common-law definition of a navigable stream, and, while it forbore to lay down a definition of navigability, the Cumberland river was held to be navigable in the strict technical legal sense, according to the civil law. But in Stuart v. Clark, 2 Swan, 9, 58 Am. Dec. 49, the court laid down the definition of a navigable river which has been uniformly followed by this court ever since. The definition of such a stream according to the civil law was reaffirmed as the rule of this state, and the definition in the text of Mr. Angell on Water Courses was quoted and adopted. The quotation is as follows:
"Navigable rivers are not merely rivers in which the tide flows and reflows, but rivers capable of being navigated; that is, navigable in the common sense of the term." In the words of the Digest, a navigable river is "statio iturre navigio."
The learned judge, speaking for the court, observed that the only change of the common law effected by the adoption of the rule of the civil law is the substitution of a new and more appropriate criterion of a navigable river,
After stating that, under the new test of navigability of rivers, the term "navigable" is none the less a word of technical meaning than at common law, as determining the respective rights of the public and the riparian owners, in reference to the property of the soil, as well as the use of the water courses, the court laid down the final definition of a navigable body of water in the technical legal sense of the term in its own language as follows:
"We are aware of no less exceptionable criterion than that to be extracted from some of the cases before referred to, namely, a river capable, in the ordinary state of the water, of navigation, ascending and descending, by sea vessels; that is, such vessels as are employed in the ordinary purposes of commerce, whether foreign or inland, and whether steam or sail vessels."
The stress which it is now sought to lay upon the use of the words "sea vessels," so as to limit navigable bodies of water to those which have sufficient depth and capacity to float vessels which navigate the high seas, is not justified by the language of the court in that case. The words themselves are followed by the explicit explanation that they are meant to include such vessels as are employed in the ordinary purposes of commerce, whether foreign or inland, and whether steam or sail vessels. Inland commerce is not carried on the high seas, and therefore necessarily not carried in sea-going vessels in the sense referred to. The same strict and literal meaning...
To continue reading
Request your trial