Berry v. Snyder
| Decision Date | 14 February 1867 |
| Citation | 66 Ky. 266 |
| Parties | Berry v. Snyder, & c. |
| Court | Kentucky Court of Appeals |
1. A sand-bar in the Ohio river is held to be private property and the owner thereof may maintain an action in the nature of an action of trespass for entering upon and removing sand therefrom.
2. The title of the owner of land binding on the Ohio river, if not excluded by the terms of the grant under which he holds extends to the middle thread of the main channel of the river, and all accretions belong to the riparian owner, as an incident to his title. This title and these rights are held subordinate to the free and unobstructed public rights of navigation and commerce.
3. Under a Virginia patent, issued before the separation of Kentucky from Virginia, the rights of the patentee vested under the laws of Virginia; and, by the compact between Virginia and Kentucky, the rights and interests of lands so derived are to be determined by the Virginia laws.
4. However the courts of the United States may regard navigation and commerce as the controlling elements in testing their admiralty jurisdiction, and founding this, not upon tide water, but navigation and commerce, yet, in testing the rights of riparian owners, they recognize the common law distinction between tide water and fresh water in its fullest, broadest sense.
5. The English common law recognized the land granted on a fresh water river as extending to the thread of the main channel unless the words of the grant excluded this, whilst the rule was different on all those rivers, or that part of the river subject to the ebb and flow of the sea.
APPEAL FROM CAMPBELL CIRCUIT COURT.
STEVENSON & MYERS, For Appellant,
CITED--
3 Kent's Commentaries, 432 to 434, 427, 428.
9 Paige's Chy. R., 547; Varick vs. Smith.
Angell on Highways, secs. 54, 315, 319, and 320.
26 Wendell, 404; Commissioners of Canal Fund vs. Kempshall.
2 Washburn on Real Property, 632, secs. 46 and 451.
4 Hill (N. Y. ), 372; Child vs. Starr.
12 Johnson, 252; Jackson vs. Larew.
2 Barbour, 126; Orndorff vs. Steele.
Angell on Water-courses, chap. 1, sec. 2, chap. 7, p. 201.
3 Cain, 319; Palmer vs. Mulligan.
2 Cain, 481; Adams vs. Pease.
14 B. Mon.; Morrison vs. Troutman.
5 Wheaton, 374; Handley's lessees vs. Anthony.
1 Chitty on Pleading, 175, 176.
1 Burrows, 133; Goodtitle vs. Alker.
3 Ben. Mon., 443; Trustees of Augusta vs. Perkins.
3 Wallace, U. S., 57; Banks vs. Ogden.
M. C. JOHNSON, On same side,
CITED--
Angell on Tide-water, pp. 61-4, 33, 101 to 105, 151 to 163.
5 Wheaton, 375; 17 B. Mon., 246.
3 B. Mon., 143; City of Louisville vs. Bank of U. S.
18 B. Mon., 86; Easley vs. Easley.
J. R. HALLAM, On same side,
CITED--
1 Chitty's Pleading, 176.
Angell on Water-courses, secs. 53 to 59.
2 Hall's Law Journal, 307.
11 Ohio, 311; Lamb vs. Ricketts.
8 B. Mon., 232; Rowan's ex'rs vs. Portland.
2 Wallace (U. S. ), 67; Banks vs. Ogden.
5 Wheaton, 285; Handley's lessees vs. Anthony.
3 Ohio, 497; Gavitt's adm'r vs. Chambers.
3 Greenleaf's (Me. ) R., 474; Morrison vs. Keen.
3 Scarn. (Ills. ) R., 510; Middletown vs. Pritchard.
CARLISLE & O'HARA, For Appellees,
CITED--
Cooper, 86; The Mayor of Lynn vs. Turner.
5 Taunt., 706; Miles vs. Rose.
B. & C., 598; Rex vs. Montague.
1 Modern, 105; 4 Barn. & Cress, 602.
5 Modern, 107; Constable Case Rep., 326.
Hale, De Jure Maris, & c., Pars Prima, cap 4.
2 McLean, 376; Bowman, & c., vs. Wathen, & c.
12 Howard, 443; Genesee Chief vs. Fitzhugh, & c.
10 Wheat., 428; 2 Binney, 475; 14 S. & R., 71.
9 Watts, 228; 8 Watts, 434; 2 Devereux, 30.
3 Devereux, 59; 3 Iredell, 281; 5 Ib., 118.
1 Walker's (Mich. ) R., 155; 1 G. Greene (Iowa ), 348.
3 Iowa, 1; 9 Howard, 471; 13 Howard, 381.
5 Wheat., 375; Amr. Law Reg., vol. 1, 357.
Act of Congress of Feb. 20, 1811; 2 Stat. at Large, 642; also 703 and 747.
Compact with Virginia, 11 sec., and Va. Act, July 28, 1791.
Con. of 1792, art. 8, sec. 7.
Con. of 1799, art. 6, sec. 9.
Con. of 1850, art. 8, sec. 9.
13 Howard, 415; Howard vs. Ingersoll.
14 John., 225; 9 Porter, 577; Hardin, 258.
2 J. J. M., 160; Bruce vs. Taylor.
4 J. J. M., 157; Fleming vs. Kinney.
1 Mar., 243; 1 B. Mon., 26; 3 B. M., 143.
14 B. Mon., 367-249; 3 B. Mon., 437; 8 Ib., 232.
9 B. Mon., 201; 11 B. Mon., 163; 6 Pet., 728; Ib., 431.
8 Dana, 50; 2 Met., 98; 18 B. Mon., 289; 16 B. M., 172.
3 Met., 2, 18; 2 Met., 425, 451; 17 B. M., 607.
4 Dana, 336; 5 Dana, 533; 1 Marsh., 395; 2 Littell, 182.
2 Marsh., 222; 1 Dana., 14; 18 B. M., 86.
The appellees being trustees of Jamestown, on the Ohio river, in Campbell county, licensed one Snyder to enter upon the sand-bar in front of said town, and take therefrom sand, & c., to be sold in the market of Cincinnati, on the opposite bank of the river. Appellant claiming to be the owner and in possession of this sand-bar, brought this action in the nature of an action of trespass, for entering upon her said possession.
A tract of one thousand acres was originally granted by patent, dated April 20, 1787, by the State of Virginia, to James Taylor, assignee of George Muse, " beginning at said Taylor's upper corner--buckeye, beach, and sugertree on the bank of the river-- running thence up the river, binding on the same as it meanders, " nine hundred and sixty-four poles. James Taylor conveyed this land, by deed of March 13, 1788, to George Muse.
Catty Shropshire and Catherine Gregory and her husband, William Gregory, claiming to be devisees of George Muse to this land, by their deed of November 14, 1792, conveyed it to Washington Berry, who took possession of it immediately, and so continued in possession until his death in 1813, a period of over twenty years. His widow, Alice, and his children, continued this possession until 1825, when two hundred and eighty-four and one half acres of the tract, embracing this river line, was assigned her as dower. For some prudential reason, Mrs. Alice Berry, in 1830, obtained a patent from the State of Kentucky for this land assigned her, bounded by low watermark on the river.
Major James T. Berry, appellant's father, was one of nine children left by their father, Washington Berry; also of their mother, Alice Berry, as heirs-at-law, she having died in 1837.
James T. Berry, by various means, became possessed of the interest of his co-heirs to this land allotted to their mother as dower, and to which she had obtained the Kentucky patent, when, in 1846-7, he conveyed an undivided interest therein to J. M. McArthur and Henry Walker.
Berry and McArthur, however, had, before this conveyance to Walker, laid off the town of Jamestown, and conveyed the land on which it was situated to J. N. Taliaferro, as a trustee, to convey the lots as they should direct. The individual interest of these joint owners was afterwards, by legal proceedings, separated, and this sand-bar assigned to said Berry, who died in February, 1864. He directed a division of his lands by his last will, and this sand-bar was assigned to appellant by the division made in pursuance thereof.
The evidence tends to establish, that when Washington Berry took possession of the land, in 1792, there was then a small tow-head just above where the town is now situated, and that there was a channel between the bar and main bank; that, by the gradual wearing away of this tow-head and accretions below it, this channel has filled up, and that now there is no channel between the sand-bar and bank; and, as this may have been only a change from one point to another of the land of the same proprietor, it might, perhaps, be more strictly called a reliction; that Washington Berry, and those who claim under him, have had such possession and control of this sand-bar as its nature permits, it being uncovered by water from eight to nine months in the year, but so deeply covered during the winter and rainy seasons as to often admit the largest and heaviest laden steamers plying on the river to pass over it.
The evidence further indicates that the original proprietors, for the purpose of enhancing the sale of the lots, licensed the citizens or trustees to use the sand for building purposes in said Jamestown, and that the citizens have so used it at will without hindrance, and that even country citizense have frequently gone on it and obtained sand for their purposes; but that Major Berry, and those under whom he claimed, also used it as their property, and claimed to be in possession, frequently renting fishing and other privileges.
The deed from Muse's devisees to Washington Berry was rejected as evidence; and the record of the chancery suit divesting Taliaferro's heirs of the legal title was also rejected.
The plat of the town by which the lots were sold, and as we understand the evidence, shows, that, between Front street and the bank of the river, there was a rather crescent-shaped piece of ground, which was also dedicated as a common, but which did not include the sand-bar; and it is admitted in the record that the sand was taken from that part of the bar not included in the deed of trust from Berry and McArthur to Taliaferro. Besides, by section 5 of the act approved March 1, 1848, incorporating Jamestown, and authorizing a sale of lots, in which said deed of trust, for the purpose of holding and conveying the legal title to the lots, by Berry and McArthur to Taliaferro, was recognized, " the said proprietors reserve to themselves all ferry rights in front of said town, and all other rights and immunities which they are by law entitled to, and which they have not heretofore disposed of. "
As the sand...
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