Brown Oil Co. v. Caldwell
| Decision Date | 14 March 1891 |
| Citation | 13 S.E. 42,35 W.Va. 95 |
| Parties | Brown Oil Co. v. Caldwell et al. |
| Court | West Virginia Supreme Court |
Submitted January 26, 1891.
Syllabus by the Court.
1. Rights of riparian owners of land on the Ohio river extend to low-water mark.
2. A conveyance of land calls "thence N., 8 degrees W., 26 9-10 poles to a stake at Ohio river marked 'I;' thence down said river S., 62 degrees W., 81 6-10 poles, to a stake on point at mouth of French creek." The line along the river is low-water mark.
3. This is not changed by the facts that before the conveyance actual survey was made fixing the point at I just over the river bank, and running thence a straight line to point at the mouth of French creek, leaving a space between it and low-water mark, and that a diagram representing such surveying and straight line was made, and the further fact that the deed conveying three parcels of land contains the clause: "These said calls are controlled by diagram made by R. A. G., county surveyor."
Appeal and supersedeas from circuit court, Pleasants county.
On a bill presented by the Brown Oil Company against R. G Caldwell and others to the judge of the circuit court of Pleasants county, an injunction was awarded restraining the defendants from constructing derricks, boring any well, or entering or trespassing upon certain premises of the plaintiff described in the bill; and, the judge having overruled a motion to dissolve the injunction, the defendants appealed to this court. On 26th October, 1887, George Hendricks and wife conveyed to Elizabeth Jones three tracts of land, Nos. 1, 2, and 3; and on 27th March, 1890, Elizabeth Jones and her husband leased said land to Joseph S. Brown for oil development, and he transferred his lease to the Brown Oil Company. On 14th July, 1890, George Hendricks leased to R. G. Caldwell and others, for the purpose of boring for oil, a parcel of land of about one acre, and these lessees having entered to bore a well for oil, the Brown Oil Company obtained said injunction. Both sides claim under George Hendricks. The Brown Oil Company claims that the deed from Hendricks and wife, conveying lot No. 2, goes to low-water mark on the Ohio river, leaving no opening for the subsequent lease made to Caldwell and others; while Caldwell and his co-lessees claim that the prior deed from Hendricks to Jones is next to the river bounded by a line running practically with its bank, not including its shore and beach leaving between this line and low-water mark an area of about one acre leased to them. Thus the only question we are to decide is whether the lot No. 2, conveyed by Hendricks and wife to Elizabeth Jones, extends to the low-water mark of the Ohio river; for, if it does, there is no room for the land he subsequently leased to Caldwell and others, he having no title to it to confer on Caldwell and others. The deed from Hendricks to Jones describes lot No. 2 as follows:
Hendricks' right extended to low-water mark of the Ohio river, as riparian owners of lands bounded by that river go to low-water mark, subject to the easement of the public in that portion between high and low water marks. Barre v. Fleming, 29 W.Va. 314, 1 S.E. 731. I think it plain, under the law, that the boundary of tract 2, as given above, carries that tract to the limit of Hendricks'; that is, low-water mark. We see that after leaving the Ohio River Railroad right of way the call is for N., 8 W., 26.9, to a stake at Ohio river. Where does this line stop? As the grantor's line was the low-water mark, in law is it not reasonable to say that he intended to sell to the outer line when he locates a corner at the river? Does he intend still to retain a narrow strip, which he could not reach except by going over the land which he sold? Of what value would it be to him? Is it reasonable that the purchaser intended to leave this strip, which would cut off all access to the river for the most of the time? Ang. Water-Courses, § 23, says: "The cases, on the whole, may be said to demonstrate the existence of the rule that a grantee bounded on a river (and it is immaterial by what mode of expression) goes ad medium filum aquae, unless there be decided language showing a manifest intent to stop at the water's edge; and there seems a distinct and strong tendency in the cases to turn every doubt upon expressions which fix the boundary next the river in favor of a contact with the water." My examination satisfies me thoroughly that this statement of Angell is a fair and unquestionable presentation of the law. Surely, under this law, a line calling for a stake "at Ohio river" would carry us to the water of the river. In the case of the Ohio it is to low water; in case of streams not navigable, it would be to the middle of the stream. In Rix v. Johnson, 5 N.H. 520, a call for a stake at the river made the river the boundary, and from "stake at the river" the line was said to be "on the river," and it was said to be a strong argument to show that the river was the boundary. Note to section 29, Ang. Water-Courses. Where a line ran to a stake standing on the east bank, etc., thence down the river, it extended to the thread of the river. A line calling easterly on a creek, and down said creek to a butternut tree, was held to place the corner in the center of the stream opposite the butternut. 1 Wait, Act. & Def. 711. The cases are numerous to show that this line from the railroad goes clear to the river. Thus we are at the low-water mark, and we cannot leave it; and then the next call is: "Thence down said river S., 62 degrees W., 81 6-10 poles, to a stake on point at mouth of said French creek." Who can doubt that this expressly keeps us to the low-water mark in tracing the line? A line running on or with or along a stream goes to its middle; and, even where the call is the bank of a river, it is to its middle. Ang. Water-Courses, § 24. And this river line calls for a terminus at a stake "on point at mouth of said French creek." The mouth of French creek is the Ohio; that is, it is actual, physical contact of creek with river; a confluence of their waters; their intermingling and union. This is the meaning of the expression "at the mouth of said French creek." The call for a stake, all surveyors know, is not a natural or fixed, immovable point, but we must yield distance to the natural call for the river, and be conducted to it by course or some other element to give it location. Here the stake is "on point at mouth of said French creek." Well, that is the point of land made by the junction of the creek and river. If we want to go to high-water mark, we would go out the point only so...
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