Barre v. Flemings

• Decision Date: 05 February 1887
• Citation: 1 S.E. 731,29 W.Va. 314
• Parties: BARRE v. FLEMINGS.
• Court: West Virginia Supreme Court

1 S.E. 731

29 W.Va. 314

BARRE v. FLEMINGS.

Supreme Court of Appeals of West Virginia.

February 5, 1887

Submitted January 21, 1887.

Syllabus by the Court

The riparian proprietors of lands bounded on the Ohio river, in this state, own the fee in the lands to low-water mark subject to the easement of the public in that portion lying between high and low water mark, with the right of the state to control the same, for the purposes of navigation and commerce, without compensation to the owner. ^[1]

When land lying on the Ohio river is conveyed by deed with general warranty, and calling for low-water mark on said river as one of its boundaries, the warranty is not broken by reason of the fact that the public owns an easement therein, and the state, or one of its municipal corporations, has perpetually enjoined the purchaser from building a wharf or private landing on the land below high-water mark, without obtaining a license to do so.

Appeal and supersedeas from circuit court, Jackson county.

C. L Brown, for appellant.

H. C Flesher and V. S. Armstrong, for appellees.

SNYDER J.

Henrietta F. Barre and Anne L. Fitzhugh, by deed dated May 13, 1880, conveyed to Fairman F. and George P Fleming, with general warranty of title, a certain lot of land situate in the town of Ravenswood, in Jackson county, described and bounded as follows: "Beginning at a stake on the south-east side of Sand street, between the lot of A. Callison and the river, opposite the head of a small drain or gully that empties into Sand creek; thence in a straight line to low-water mark on Sand creek; thence down said creek to the river at low-water mark; thence up the river, at low-water mark, to the lower side of Sand street; thence, with said street, to the place of beginning." In consideration of said conveyance the grantees paid down $500, and in addition thereto agreed to pay to the grantors $1,000 in two equal payments at one and two years, with interest. A lien was retained in the deed to secure the deferred payments.

The river mentioned in the deed as one of the boundaries of said lot is the Ohio river, which forms the western boundary line of this state. At the time of said purchase the grantees were, and for more than 15 years prior thereto had been, engaged in the business of wharfingers on the Ohio river at the said town of Ravenswood. They were put in possession of said lot immediately after the date of the deed, and soon thereafter they commenced the construction and erection of a wharf and bulk-head on that part of the lot lying between high and low-water mark on the Ohio river, without obtaining the consent of the council of said town to do so. Thereupon, on July 30, 1880, the said town obtained an injunction from the circuit court of said county restraining the grantees from constructing any works or wharf within the corporate limits of the town without legal authority to do so, or in any manner interfering with the franchises and landings of the town. This injunction was afterwards dissolved by said court; but, upon appeal to this court, the same was on July 7, 1883, reinstated and made perpetual. Ravenswood v. Flemings, 22 W.Va. 52.

The said Anne L. Fitzhugh died in the year 1882, after having willed her whole estate to her sister, the said Henrietta F. Barre, and, a large portion of the purchase money for said lot remaining unpaid, the said Henrietta F. Barre, in July, 1885, instituted this suit against the said Flemings, in the circuit court of Jackson county, to enforce the lien on said lot for the unpaid purchase money.

The defendants in their answer aver that they purchased said lot for the purpose of making and owning their own wharf, in order that they might carry on their business within the corporate limits of the town without being subject to the large annual tax they were then paying to the town for the privilege of carrying on their business; and that the river front of said lot to low-water mark was the material inducement to the purchase. They also aver that, by reason of the decision of this court in the aforesaid injunction suit, they have been deprived of the use and control of about one and three-fourths acres of said lot, and that there is a deficiency in the lot of that quantity, being the portion lying on the Ohio river between high and low water mark, to which the grantors had no title, of the value of $900, for which sum they seek an abatement on the purchase price of the lot. The circuit court decided and entered a decree on November 10, 1885, that the defendants were entitled to an abatement of the purchase money for the value of that portion of the lot lying between high and low water mark, and the plaintiff appealed therefrom to this court.

There is no controversy in regard to the material facts. The land of which the said lot is a part was granted to Gen. George Washington by the commonwealth of Virginia prior to the year 1800. The said grant is over 100 years old, and its boundaries call for the Ohio river, and running with its meanders, without reservation or qualification, and the town of Ravenswood is located upon the land embraced in this grant. If the commonwealth of Virginia retained any right, title, or interest in said land, or has acquired any therein since the date of the grant, it can be only such as may have been retained or acquired by virtue of the statutes and the sovereign right of eminent domain; and if the state of West Virginia or town of Ravenswood has any such right, title, or interest to any portion of the lot in controversy, it must, in like manner, be only such as existed in the commonwealth of Virginia at the formation of this state, or has since been acquired or conferred by the public laws and statutes of the state. The important question, then, is, what right, title, or interest, if any, has the state or town of Ravenswood in the lot in controversy, or in any portion of it? It is not pretended that either has any title or control over that portion of the lot lying above ordinary high-water mark. The only controversy is as to that portion lying between high and low water mark on the Ohio river.

In May, 1779, the general assembly of Virginia passed an act establishing a general land-office, and prescribing the terms and manner of granting lands. This act authorizes the granting of all waste and unappropriated lands lying within the commonwealth, with certain defined exceptions, none of which includes any lands in that section of the commonwealth in which the grant to Gen. Washington, now in question, was located. 10 Hen. St. c. 13, p. 50. In May, 1780, an act was passed excepting from the operation of grants thereafter to be issued the sea-shore, or the shores of any river or creek in the eastern parts of the commonwealth, which have remained ungranted, and which have been used as common to all the good people. 10 Hen. St. c. 2, p. 226. This act, of course, had no reference to lands west of the Alleghanies. By an act of the confederated congress passed July 13, 1787, the navigable waters leading into the Mississippi and St. Lawrence rivers, and the carrying places between the same, were made common highways, and forever free to the citizens of the United States, without tax, duty, or impost.

The general assembly of Virginia, on January 15, 1802, passed the following statute: "Whereas, it hath been represented to this present general assembly that many persons have located, and lay claim in consequence of such location to the banks, shores, and beds of the rivers and creeks, in the western parts of this commonwealth, which were intended and ought to remain as a common to all the good people thereof, be it therefore enacted that no grant issued by the register of the land-office for the same, either in consequence of any survey already made, or which may hereafter be made, shall be valid or effectual in law to pass any estate or interest therein." 2 Va. St. at Large, 317. March 1, 1819, a general act similar to the above, and applying to the whole commonwealth, was passed. 1 Rev. Code 1819, p. 323, c. § 6, Code 1849, c. 62, p. 326.

By an act passed February 3, 1840, the general assembly conferred upon the county and corporation courts authority to permit individuals to erect wharves at public landings, and fix the rate of wharfage, provided the same should not interfere with navigation or a public landing. It also authorized the owners of lands upon any water-course to erect piers or bulk-heads in said water-course opposite their lands, provided the same should not obstruct navigation, or interfere with private rights. But it is expressly declared that such wharf, pier, or bulk-head may be abated by the county court whenever said court is satisfied that the same obstructs the navigation of the stream, or encroaches upon any public landing. Acts 1839-40, p. 57, c. 71. The substance of this act was incorporated in the Code of 1849. Code 1849, c. 52, §§ 46, 47, p. 275. The same provisions were incorporated in the Code of this state as sections 40 and 41 of chapter 43. But by section 42 it is declared that "nothing contained in either of the last two sections [40 and 41] can be construed to authorize the erection of any wharf, pier, or bulk-head within the limits of an incorporated town, village, or city, without the consent of the council thereof." Code 1868, p. 276; Acts 1872-73, c. 194,§§ 46-48, p. 577.

The town of Ravenswood was incorporated by an act of the general assembly of Virginia passed March 10, 1852, (Acts 1852, c. 400, p. 296;) and its corporate limits were extended by an act of the legislature of this state passed February 25, 1868, (Acts 1868, c. 51, p. 47.)

By the provisions of the constitution of 1863, under which this state was formed, it is...