Berry v. Snyder, &C

• Decision Date: 14 February 1867
• Citation: 66 Ky. 266
• Court: Kentucky Court of Appeals
• Parties: Berry vs. Snyder, &c.

Page 266

66 Ky. 266

Berry vs. Snyder, &c.

Court of Appeals of Kentucky.

February 14, 1867.

APPEAL FROM CAMPBELL CIRCUIT COURT.

STEVENSON & MYERS, For Appellant.

M. C. JOHNSON, On same side.

J. R. HALLAM, On same side.

CARLISLE & O'HARA, For Appellees.

JUDGE WILLIAMS DELIVERED THE OPINION OF THE COURT:

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 citizens 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 was taken from land not included in this deed of trust, it is not necessary for us to investigate the objects and legal effect of that deed, nor whether, as the specific trusts had been performed, and, since Taliaferro's death, another trustee has been appointed in his stead by order of court, the legal title still continues in his heirs or has passed out of them. It is said to be rejected because, in a suit to obtain the legal title, all of Taliaferro's heirs were not served with process; but if it be conceded that they still held the legal title, and were essential parties, we apprehend it was good as against those who were served. But, in a subsequent suit by Tompkins to foreclose a mortgage to him by McArthur, a partition and conveyance was made, allotting to Jas. T. Berry, appellant's ancestor, this sand-bar in controversy; and the then trustee, appointed as Taliaferro's successor, was a party to the suit; so, whatever legal title Taliaferro may have once had, none remained in his heirs after these various proceedings.

It is insisted that there is no proof that those conveying to Washington Berry, as Muse's devisees, "were his heirs," and that there is no sufficient description of the land in their deed. It was certainly not essential that devisees should be heirs-at-law. If they were devisees, that would be sufficient. But if it was meant that their identity as devisees was not made out, we apprehend that, after a lapse of near three quarters of a century under a deed, it would seem rather late to require proof as to the character of the vendors or the identity of the land; but, in this action, we suppose it at least was competent to show the character and extent of the holding.

But as the possession was of the only character of which this land was susceptible, and fully made out by the parol proof, no peremptory instruction should have been given to the jury to find against the plaintiff, unless that holding was tortious, and that it cannot be if this land could be private property; therefore, the important and controlling inquiry involves the question whether it was or could be private property appendant to Taylor's original patent.

There is only one view in which the Kentucky patent to Mrs. Alice Berry could be important, and that is, if the land between high and low water lines is susceptible of being granted by the State, but was excluded by the Virginia patent to Taylor, then it belonged to Kentucky, as inheriting the sovereign rights of Virginia, and could pass by her grant.

But we return to the main question. It is insisted that the Ohio river is a public navigable stream, and, therefore, no part of its bed is to be presumed as granted to private persons, but belongs to the public at large; because, as the tide ebbs and flows in all the rivers of England, and none or but few waters there, are navigable, except tide-water, that therefore navigable rivers were correctly described by the common law to be those in which the tide ebbed and flowed; but that navigability is the principal thing, the flowing of the tide but a mere incident. When, therefore, we find here other navigable waters, the flowing of the tide being no test, the same consequences, properties, and incidents attach as are given by the jurists of England to its navigable waters, whatever may be the new definitions.

To this it may be replied, that 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.

It may be said that so long as the ocean keeps its bed, and nature's present frame shall continue to exist, there will always be water up to the ocean's level in all those channels where the tide ebbs and flows, and this not dependent upon the water falling in rain; therefore, these channels are filled to ocean's level twice every twenty-four hours, and are constantly and uniformly navigable. Their navigability does not depend upon a season more or less rainy, but on the constant, unvarying laws of nature, and will remain as surely navigable as the sea itself. Though not so deep, their surface level is the same; hence, without violence of expression or idea, they are called "arms of the sea."

But it is different with all the great rivers of the earth above tide-water. These are dependent for their supply from the clouds. The Ganges,...