Groner v. Foster

• Decision Date: 17 June 1897
• Citation: 94 Va. 650,27 S.E. 493
• Parties: GRONER et al. v. FOSTER et al.
• Court: Virginia Supreme Court

27 S.E. 493

94 Va. 650

GRONER et al.

v.FOSTER et al.

Supreme Court of Appeals of Virginia.

June 17, 1897.

Riparian Rights—Ownership of Flats—Boundaries — Line of Navigability — Port Warden's Line — Shore Line — Low-Water Mark.

1.In a suit to determine the boundaries of the respective portions of the flats, lying between the shore line and the line of navigability, to which riparian owners were entitled, it appeared that the line of navigability formed two sides of a right-angled triangle, of which the shore line was the hypotenuse.Held, that the line of navigability should be subdivided and apportioned among them in the same proportions that theportions of the shore line owned by each bore to the whole shore line, and that each owner was entitled to such portion of the flats as would be bounded by lines drawn from the termini of his portion of the line of navigability to the termini of his portion of the shore line, and that the entire line of navigability, and not merely one side of the triangle, must be so apportioned, irrespective of the fact that one part was less valuable than another.

2.The port warden's line, as defined by the board of harbor commissioners, was binding on the court in apportioning among riparian owners the respective portions of the flats, between the line of navigability and the shore line, to which they were entitled, under Acts 1881-82, c. 205, p. 216, andActs 1883-84, c. 148, p. 184, authorizing the board of harbor commissioners of Norfolk and Portsmouth to define the port warden's line along the water front, and to fix the lines within which riparian owners may erect wharves, docks, and other structures.

3.In apportioning among riparian owners the respective portions of the flats, between the line of navigability and the shore line, to which they are entitled, the low-water mark must be taken as the shore line, under Code, § 1339, providing that the limits of the several tracts of land lying on the shore, and the rights and privileges of the owners of such lands, shall extend to low-water mark.

Appeal from law and chancery court of city of Norfolk.

Bill by S. L. Poster and others against Katherine R. Groner and others.Prom decrees in favor of complainants, defendantsKatherine R. Groner and another appeal.Reversed.

White & Garnett, Tunstall & Thorn, and Osborne & Groner, for appellants.

Walke & Old and R. H. Baker & Son, for appellees.

RIELY, J.Every riparian owner has the right to the water frontage belonging by nature to his land.This right includes, among others, the right of access from the front of his land to the navigable part of the water course, and also the right to the soil under the water between his land and the navigable line of the water course, whereon he may erect wharves, piers, or bulkheads for his own use or the use of the public, subject to such rules and regulations as the legislature may see proper to impose for the protection of the public.Gould, Waters, § 149;Norfolk City v. Cook, 27 Grat. 430;Railway Co. v. Faunce, 31 Grat. 761;Dutton v. Strong, 1 Black, 23;andYates v. Milwaukee, 10 Wall. 497.In this state the enjoyment of the right is made subject by statute to the limitation that its exercise shall not result in the obstruction of navigation, nor in other injury to the private rights of any person.Code Va.§ 998.

Each riparian proprietor is entitled, in conformity to such right, to have the extent of its enjoyment upon the line of navigability of the water course determined and marked, and his proper share of the flats or land under the water for the purposes aforesaid set apart, and its boundaries defined.A court of equity has jurisdiction, and is the proper tribunal, to make the apportionment, and to determine and establish the boundary lines of the co-terminous owners.

In making the apportionment the prime ob ject, upon plain principles of justice, should be to give to each proprietor of the shore, and as directly in his front as practicable, a parcel of the land under the water of a width at its outer end upon the line of navigability proportioned to that which it has at the inner or shore end.Wonson v. Wonson, 14 Allen, 71;andGould, Waters, §§ 162, 163.

It is apparent, upon the most cursory reflection, that this cannot be attained by a fixed rule of extending out to the line of navigability of the water course the divisional lines between the proprietors of the uplands in the same direction that these lines reach the shore.The frequent curvature which generally characterizes the form of the shore forbids its adoption as a rule of division.It would only answer where the line of the shore was straight, the line of navigability equal in length and parallel with it, and the divisional lines approached the shore at right angles.Where the line of the shore or the line of navigability curves, either inwardly or outwardly, or the divisional lines of the uplands approach the shore at different angles, their projection in the same direction out to the line of navigability would necessarily, and unjustly, cause them to encroach upon the riparian rights of the several co-terminous proprietors in the water frontage, and deprive some one or more of them of all access to, and benefit of, the navigable part of the water course.

A just rule of division is to measure the length of the shore, and ascertain the portion thereof to which each riparian proprietor is entitled; next measure the length of the line of navigability, and give to each proprietor the same proportion of it that he is entitled to of the shore line; and then draw straight lines from the points of division so marked for each proprietor on the line of navigability to the extremities of his lines on the shore.Each proprietor will be entitled to the portion of the line of navigability thus apportioned to him, and also to the portion of the flats or land under the water within the lines so drawn from the extremities of his portion of the said line to the extremities of his part of the shore.The general rule of division, therefore, is, as the Whole shore line is to the whole line of navigability, so is each one's share of the shore line to each one's share of the fine of navigability.The lines so drawn will be parallel or diverge or converge as the navigable water line happens to be equal and parallel with, or is longer or shorter than, the shore line.

The rule stated above Is that which has been adopted in apportioning riparian rights between co-terminous owners in cases of a similar nature.It is the rule that was early adopted by the supreme court of Massachusetts in Deerfield v. Arms, 17 Pick. 41, which was the case of an apportionment of a parcel of land formed by alluvial deposits on the margin and bed of Deerfield river, and has since been not only adhered to in that state, but has been followed by the supremecourt of the United States, and by the highest courts of a number of the states.Johnston v. Jones, 1 Black, 222, 223;O'Donnell v. Kelsey, 10 N. Y. 412;Batchelder v. Kenlston, 51 N. H. 496;Railroad Co. v. Hannon, 37 N. J. Law, 276;Lumber Co. v. Peters, 87 Mich. 498, 49 N. W. 917;Land Co. v. Bigelow, 84 Wis. 157, 54 N. W. 496.

The rule, as was suggested by Chief Justice Shaw in Deerfield v. Arms, supra, may require modification in some cases on account of its peculiar circumstances, but is the one to be generally applied in cases of this kind.

The rule laid down above was the...