Harrison v. Fite

• Decision Date: 22 October 1906
• Docket Number: 2,250.
• Citation: 148 F. 781
• Parties: HARRISON et al. v. FITE et al.
• Court: U.S. Court of Appeals — Eighth Circuit

148 F. 781

HARRISON et al. v. FITE et al.

No. 2,250.

United States Court of Appeals, Eighth Circuit.

October 22, 1906

This was a suit by Fite and Acklen, officers and trustees of a voluntary association known as the 'Big Lake Shooting Club,' for an injunction restraining the defendants Harrison and 36 others, most of whom were averred to be market hunters and fishermen, from trespassing upon the property of the club and killing wild fowl thereon for shipment and sale. The property in controversy is a part of the bed of what is known as 'Big Lake' and 'Little River,' located in the northeastern corner of the state of Arkansas and extending as far north as the Missouri line. It is not disputed that the complainants, as trustees for their club, hold title to strips of land 10 feet in width adjacent to and abutting upon the meander line of Big Lake as shown by the government survey made about the year 1834. But it is denied by the defendants that the rights of the riparian owners extend further than the meander line. It is claimed by them that Big Lake is a part of Little River and contains various navigable channels over which steamboats can be operated at all seasons of the year; that Little river is itself a navigable stream; and that they have full right to go upon all parts of it, including Big Lake, in their hunting and fishing pursuits. On the other hand, the complainants claim that Little river is unnavigable, and is a distinct stream running along the western margin of the surveyed area of the lake, and that the remainder of the land in controversy is a lake only in name, being nothing more even in times of high water, than an unnavigable morass or swamp, wholly useless for purposes of navigation, and that it long since became by accretion a part, in fact and title, of the surveyed lands along the eastern meander line; also that as the owners on both sides of Little river their title extends to the thread of that unnavigable stream. Upon final hearing the Circuit Court sustained the theory of the complainants and entered a decree perpetually enjoining the defendants from trespassing upon the property in dispute. The defendants appealed.

As it appears from the maps, the surveyed area of Big Lake embraces many thousand acres. It lies in the basin of the St. Francis river, and well-authenticated accounts say that the sinking of the earth's surface resulting in the formation of the lake was caused by the New Madrid earthquakes of 1811 and 1812. It is quite certain that Little river, which enters at the north and has outlets at the south, pursues a well-defined channel along the western margin of the lake basin, and that the bed of the lake, so called, is marked by many stumps and fallen trees of kinds that are indigenous only to the uplands. When the survey of this section of the country was made by the national government in 1834, the surveyor's lines meandered the outer margin of the lake. The deeds to the complainants covering the strips of land along the meander lines also purported to convey to them as accretions the lands within the lines to the thread of the stream known as 'Little River.' The controlling questions in the case are: Is Little River a distinct stream running along the western margin of the lake basin, and is it navigable or unnavigable? Where are the thread of the stream and the eastern line of its bed? Is Big Lake a part of Little river, and is it navigable, or is it in such condition that it should be said to have become through accretion or reliction a part of the surveyed lands along the eastern meander line? A solution of these questions determines the rights of the contending parties.

Ulysses S. Bratton and Harry H. Myers, for appellants.

John I Moore and J. F. Gautney (W. J. Driver and A. G. Little, on the brief), for appellees.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

HOOK Circuit Judge, after stating the case as above, .

The shores of navigable waters and the soils under them were not granted by the Constitution to the United States, but were reserved to the states respectively; and the new states upon their admission to the Union have the same rights in respect thereof as the original states. As to lands bounded on unnavigable waters the United States assumes the position of a private owner subject to the general law of the state so far as its conveyances are concerned. In either case the question whether the title to the soil under the waters passes to the grantee of the shore land is determined by the law of the state where the land lies. Hardin v. Shedd, 190 U.S. 508, 519, 23 Sup.Ct. 685, 47 L.Ed. 1156, and cases there referred to.

In Arkansas a riparian owner takes all accretions, whether the water course be navigable or not. Warren v. Chambers, 25 Ark. 120, 91 Am.Dec.538, 4 Am.Rep. 23. His title extends to the thread of an unnavigable stream. In the case of a navigable stream the title to the bed is in the state, for the use of the public, and the riparian proprietor owns only to high-water mark or the limit of the bed. The bed of the river is that soil so usually covered by water that it is wrested from vegetation and its value for agricultural purposes is destroyed. It is the land upon which the waters have visibly asserted their dominion, and does not extend to or include that upon which grasses, shrubs, and trees grow, though covered by the great annual rises. Railway Co. v. Ramsey, 53 Ark. 314, 13 S.W. 931, 8 L.R.A. 559, 22 Am.St.Rep. 195, following Howard v. Ingersoll, 13 How. 381, 14 L.Ed. 189. See, also Houghton v. Railroad, 47 Iowa, 370.

To meet the test of navigability as understood in the American law a water course should be susceptible of use for purposes of commerce or possess a capacity for valuable floatage in the transportation to market of the products of the country through which it runs. It should be of practical usefulness to the public as a public highway in its natural state and without the aid of artificial means. A theoretical or potential navigability, or one that is temporary, precarious, and unprofitable, is not sufficient. While the navigable quality of a water course need not be continuous, yet it should continue long enough to be useful and valuable in transportation; and the fluctuations should come regularly with the seasons, so that the period of navigability may be depended upon. Mere depth of water, without profitable utility, will not render a water course navigable in the legal sense, so as to subject it to public servitude, nor will the fact that it is sufficient for pleasure boating or to enable hunters or fishermen to float their skiffs or canoes. To be navigable a water course must have a useful capacity as a public highway of transportation. Toledo Liberal Shooting Co. v. Erie Shooting Club, 33 C.C.A. 233, 90 F. 680; Moore v. Sanborne, 2 Mich. 520, 524, 59 Am.Dec. 209; Morgan v. King, 35 N.Y. 454, 458, 91 Am.Dec. 58; Brown v. Chadbourne, 31 Me. 9, 1 Am.Rep. 641; Griffith v. Holman, 23 Wash. 347, 63 P. 239; Wethersfield v. Humphrey, 20 Conn. 218; Rowe v. Granite Bridge, 38 Mass. 344; Gaston v. Mace, 33 W.Va. 14, 10 S.E. 60, 5 L.R.A. 392, 25 Am.St.Rep. 848; Neaderhouser v. State, 28 Ind. 257; Rhodes v. Otis, 33 Ala. 578, 73 Am.Dec. 439; ...