Bosworth v. Nelson
| Decision Date | 18 March 1930 |
| Docket Number | 7386. |
| Citation | 152 S.E. 575,170 Ga. 279 |
| Parties | BOSWORTH v. NELSON. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where the owners of a tract of land intersected by three creeks conveyed to a grantee all their right, title, interest equity, and claim in and to the water rights, water power and milling privileges at a shoal on one of said creeks together with the fee-simple title to such part of the bed of said creek and its adjacent banks that might be required by the grantee, its successors and assigns, for the erection of a dam across the creek at said point, and where thereafter the owners conveyed to the same grantee an additional 104 acres of said land, in which they "reserve to themselves and to their heirs and assigns the exclusive boating and fishing privileges on said creeks to the extent that the same do not interfere with the rights herein or heretofore conveyed to the said party of the second part, it being expressly understood that this reservation of the boating and fishing privileges shall extend to and cover all of the property herein and heretofore conveyed to said party of the second part, and this reservation is made as a part of the consideration to support the conveyance herein made," said reservation reserved to the grantors, their heirs and assigns, the boating and fishing privileges in the waters upon the lands conveyed by both of said conveyances.
(a) The right thus reserved by the grantors to themselves, and their heirs and assigns, was one of "profits à prendre," which consists of a right to take the fish in the waters of the land conveyed; and such a right is an interest or estate in the land itself, and is the principal feature which distinguishes it from a pure easement, which is a right or interest without profit in the land constituting the servient estate.
(b) Such a right to profits may exist without a dominant estate whereas, the general rule is that to constitute an easement there must be both a dominant and a servient estate.
(c) Such a right is in its nature corporeal, and is capable of livery, while easements are not, and may exist independently without connection with or being appendant to other property.
(d) The right of profits à prendre thus reserved by the grantors to themselves, their heirs and assigns, is one in gross, and is to be regarded as an estate or an interest in land which is inheritable when granted in fee.
(e) It was competent for the grantors to convey the fee in these lands and reserve to themselves, their heirs and assigns, the boating and fishing privileges in the waters covering the land conveyed.
(f) Where an owner conveys part of his land reserving therein a right of profit à prendre distinct from the ownership of the land retained, such right does not pass to the grantee where the land retained is subsequently conveyed.
(g) This case is distinguishable from Lee v. Mallard, 116 Ga. 18, 42 S.E. 372; Mallet v. McCord, 127 Ga. 761, 56 S.E. 1015; and Thompson v. Tennyson, 148 Ga. 701, 98 S.E. 353. In the first of these cases a part of the consideration of the deed was that the grants were to have the right to fish in the pond to be created under the grant in the deed. Clearly this was a personal right which did not descend to the heirs of the grantors. A casual inspection of the other two cases shows the difference between the rulings made in them and the rulings made in this case.
There is no law which will estop one from asserting title to his own property or privileges because he sees another improving his adjoining property, although it may be inferable from the circumstances that the latter expects to use the property or privileges of the former in connection with the improved property; and the former is not estopped from asserting his title.
(a) Where an owner of land gives to another permission or license to use his property in a particular manner or for a particular purpose, and where the licensee has incurred expense in the execution of it, by making valuable improvements or otherwise, it is regarded in equity as an executed contract, and substantially an easement, the revocation of which would be a fraud on the licensee, and therefore the licensor is estopped from revoking it.
(b) Under the pleading and evidence in this case, Bosworth does not bring himself within this principle.
The right to fish and take fish in the waters of another is not an easement, and cannot be claimed under the designation of an easement. It is a right of profit in lands.
(a) The only mode of acquiring the right of taking profit from another's land or soil is by grant or prescription.
(b) Right of public and common fishery is one so universal and unqualified that it cannot exist in the soil of a private proprietor, either by custom or by prescription.
(c) The right of fishing in unnavigable waters over or upon the soil of a private proprietor can only be acquired in this state by grant or by an uninterrupted and exclusive occupation and enjoyment, adverse to the owner of the soil, and continued for 20 years.
(d) The right to take fish in any water which is not navigable, although it belongs prima facie to the owner of the soil, follows the ownership of the water if that is separated from the ownership of the soil.
(e) Applying the above principles, Bosworth did not, under the facts of this case, acquire a prescriptive right of piscary in these waters.
Under conflicting evidence we cannot say that the judge erred in enjoining the defendant from selling to his patrons permits to swim in these waters, even if he had acquired the right to the swimming privileges from the rightful owner.
Error from Superior Court, Dougherty County; B. C. Gardner, Judge.
Suit by T. M. Nelson against L. B. Bosworth. Judgment for plaintiff, and defendant brings error.
Affirmed.
Owner permitting another to use property is estopped to revoke license against licensee making valuable improvements.
T. M. Nelson and his mother owned the Nelson place, containing approximately 570 acres. This place was intersected by Kinchafoonee, Muckafoonee, and Muckalee creeks. On August 18, 1903, they conveyed to the Albany Power & Manufacturing Company all their right, title, interest, equity, and claim in and to the water rights, waterpower, and milling privileges at the Big Shoals Muckafoonee creek, together with the fee-simple title to such part of the bed of said creek and its adjacent banks as might be required by said company, its successors and assigns, for the erection of a 20-foot dam across the creek at said point. This conveyance embraced 42.4 acres of said Nelson place. On May 31, 1907, Nelson conveyed to his mother his undivided half interest in said place. On November 18, 1909, Nelson and his mother conveyed to said company an additional 104 acres of said Nelson place. In this deed is a recital that this conveyance of 104 acres, together with the conveyance of 42.4 acres, embraces all of the lands adjacent to said creeks belonging to said grantors. In this deed of November 18, 1909, is the provision that the grantors "reserve to themselves and to their heirs and assigns the exclusive boating and fishing privileges on said creeks to the extent that the same do not interfere with the rights herein or heretofore conveyed to the said party of the second part, it being expressly understood that this reservation of the boating and fishing privileges shall extend to and cover all of the property herein and heretofore conveyed to said party of the second part, and this reservation is made as a part of the consideration to support the conveyance herein made." On May 4, 1911, the mother of Nelson conveyed to the Stackhouse Land Company the Nelson place, less the acreage embraced in a railroad right of way across said place, and the 146.4 acres sold to the Albany Power & Manufacturing Company. This deed conveyed this tract of land with all the appurtenances thereto belonging or in any wise appertaining. The mother of Nelson died in 1913 or 1914, leaving him her sole heir at law.
Bosworth is now the owner of 6 acres of land on Muckalee creek, being a part of the Nelson place. He acquired a portion of this land on July 2, 1927, and the other portion on March 8, 1928. He claims title thereto under mesne conveyances from the Stackhouse Land Company. Upon the purchase of said six acres he began to erect buildings, piers, and landing places thereon for the purpose of operating a pleasure resort. The present suit was instituted by Nelson on July 11, 1929, to enjoin Bosworth from using and enjoying the fishing, boating and swimming privileges in the waters covering the lands conveyed by him and his mother to the Albany Power & Manufacturing Company. To this action Bosworth demurred upon the ground that it set forth no cause of action, legal or equitable; and he further demurred specially upon various grounds. While the court did not render judgment on demurrer, it was considered by the court in granting a temporary injunction. In his answer Bosworth set up that the public had for 20 years continually and uninterruptedly used said creeks and waters for boating and bathing, without interference and without permission of the plaintiff or any one else, and that the public had acquired a prescriptive title to the use of said privileges. He further alleged that he purchased a portion of his land on July 2, 1927, and a portion on March 8, 1928. Upon said purchase he began to construct piers and landing places, making improvements to houses and buildings, and after the expenditure of several hundred dollars, and at least six months after this expenditure, which was open to the public, Nelson first approached him and said to him in substance that he owned these water rights out there, but that...
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