Leake v. Richardson

• Decision Date: 28 April 1958
• Docket Number: No. 4776,4776
• Citation: 103 S.E.2d 227,199 Va. 967
• Parties: SUE S. LEAKE, ET AL. v. FANNIE RICHARDSON, ET AL. Record
• Court: Virginia Supreme Court

Page 227

103 S.E.2d 227

199 Va. 967

SUE S. LEAKE, ET AL. v. FANNIE RICHARDSON, ET AL.

Record No. 4776.

Supreme Court of Appeals of Virginia

April 28, 1958.

R. Harvey Chappell, Jr. (Christian, Barton, Parker & Boyd; Norris, Richardson, Foster & Clarke, on brief), for the appellants.

C. Jackson Simmons and W. B. McLeod (Dunton, McLeod & Simmons, on brief), for the appellees.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

The bill in this cause filed by Sue S. Leake, H. Godwin Jones, Homer S. Wilson, Jr., and W. M. Bridgeforth, against Fannie Richardson and J. L. Bromley, prayed for a declaratory judgment declaring Sue S. Leake the absolute and exclusive owner of Ball's Mill Pond in Lancaster County and the water and fishing rights therein; that an injunction be awarded against the defendants restraining them from going upon, keeping boats on, or fishing in the waters of the said pond; and for damages for trespass and removal of fish therein. Mrs. Richardson and Bromley answered and denied the contention of the complainants.

By leave of Court, Warner Ball, James Ball, Mary Ball Snead, Eoline Ball Jesse, Thomas F. Ball, Sr., Louise Ball Hamilton, William J. Dann, Jr., Flementine P. Dann, and Albert E. Dann, II, were allowed to intervene as defendants. They filed answers denying the claims of the complainants, and cross-bills asserting claim of fee simple title to the center of the said mill pond adjacent to their respective lands. Complainants answered the cross-bills denying the claims therein asserted.

The trial court heard the evidence ore tenus and, for reasons stated in a written opinion, held that complainants had not established ownership of the water and submerged land of the pond either by record title, adverse possession, or prescription. It decreed that the defendant landowners and Sue S. Leake were, respectively, the fee simple owners of the submerged land and waters of Ball's Mill Pond, which lie adjacent to their respective tracts of land bordering said pond and extending between their side lines to the approximate center thereof. The complainants appealed.

Ball's Mill Pond is located in Lancaster County, and comprises an area of approximately 19 1/2 acres. The pond, irregular in shape, extends north and south with an arm to the east, and is fed by several fresh water streams, notably from the east and the north. It is entirely surrounded by dense woods and weeds. It is not known whether the mill dam, which is located near the southwestern end of the pond, was formed naturally or by artificial means. Prior to 1929, a water grist mill was operated at the dam. The only building near the edge of the pond is a cabin, used as a club house from time to time, on the land of the complainant, Leake. A road runs from the public highway to that land. It appears that formerly the public road passed over the dam; but about 1926, it was abandoned and a new and improved public road was built which now passes through the land of Leake and on a bridge across the stream flowing from the pond, west of the abandoned road. There is some evidence that roads lead to one or two parcels of land of other landowners adjoining the pond but do not extend to the waters.

The only questions presented on appeal are whether Sue S. Leake and her predecessors in title acquired Ball's Mill Pond by adverse possession, and whether she and her predecessors in title acquired exclusive fishing rights in the said pond by prescription. Complainants have abandoned any claims to a record title in Mrs. Leake or her predecessors and to damages against defendants.

By deed dated May 15, 1929, H. D. Eichelberger conveyed the following described property to David H. Leake:

'* * * (All) that certain parcel of land, situated in White Chapel District, Lancaster County, Virginia, adjoining the lands of Joseph Peirce (Known as 'Ball's Quarter') and others, together with all improvements thereon and appurtenances thereto belonging, also all machinery, fixtures and personal effects contained in the mill, said parcel of land bounded and described as follows: Beginning at A, a red oak, marked on the edge of the mill pond, and running S-84-W, 13 chains to B, a cedar stob, thence S-10 1/2-E. 7.75 chains to b, edge of Mill stream, thence N-52-E. 14.58 chains to the beginning, and containing five acres more or less, upon which is situated the water grist mill known as 'Ball's Mill'; together with the unqualified and absolute right to maintain and have the dam and pond adjoining the above described tract of land, to the exclusive use and benefit of the party of the second part, his heirs and assigns forever.' (Emphasis added.)

On July 26, 1956, after the death of Leake, the land and pond described above were conveyed by his executors to his widow, Sue S. Leake.

Mrs. Leake, by writing dated September 14, 1956, renewed and extended the right formerly granted by her husband to the complainants, Wilson, Bridgeforth and Jones, to use Ball's Mill Pond cabin and premises, with their families and invitees to the exclusion of all others.

The same general description of the five acres in the deed to Leake is found in the following deeds in his chain of title: Deed of February 10, 1927, from Paul L. Ruehrmund and wife to Harry D. Eichelberger; deed of May 4, 1925, from J. M. Dozier and wife to Paul L. Ruehrmund; deed of December 26, 1923, from Paul L. Ruehrmund and wife to J. M. Dozier; and deed of December 14, 1923, from L. T. Rock to Paul L. Ruehrmund, in which the emphasized portion of the description in the deed from Eichelberger to Leake first appears.

The next link in the chain of title is a deed dated August 14, 1902, from Alex Stronach, et al., to L. T. Rock. In it appears, in lieu of the emphasized portion of the deed from Eichelberger to Leake, the following language:

'And the said parties of the first part hereby agree that the party of the second part shall have the right, so far as they can grant it, to raise the dam of the said mill known as Ball's Mill Pond not more than two (2) feet.'

The chain of title of the defendants, William J. Dann, Jr., Flementine P. Dann, and Albert E. Dann, II, to 1223 acres of land was traced to a deed dated August 14, 1902. In the several deeds, the land was described as bounded 'on the south by Ball's Mill Pond' or by 'Ball's Mill Pond and Mill Stream.'

Warner Ball, James Ball, Mary Ball Snead, Eoline Ball Jesse, Thomas F. Ball, Sr., and Louise Ball Hamilton inherited from their father, W. Ball, 59 acres, more or less, on the south side of the pond described in a deed dated June 13, 1895, from Elizabeth J. Kemm to W. Ball, as follows:

'* * * known as Kemms, * * * and more particularly described as follows: bounded on the North and West by Ball's Mill Pond * * *.'

By deed dated April 1, 1926, Fannie Richardson, daughter of Susan B. Rock, acquired from her brothers and sister their three-fourths interest in 121 acres described as bounded on the north by Ball's Mill Pond, which the four children inherited from their mother. Mrs. Susan B. Rock acquired the property by deed dated May 18, 1881.

It was stipulated that the title of each of the defendant landowners was not in issue, and that in the deeds in their respective chains of title their lands were described as bordering on Ball's Mill Pond as far as the records of the County of Lancaster exist.

The defendant, J. L. Bromley, owns no property adjoining Ball's Mill Pond.

George W. Clark, the first witness introduced by the complainants, testified that he had lived on the 5 1/2 acres of the Leake tract about two months before it was sold to Leake; that Eichelberger, the former owner, had let him have the tenant house and garden on the premises free of rent under an agreement that he, Clark, would 'see after the pond and keep anybody from fishing in it,' without permission from Eichelberger; and that he stayed there about eight years and never had any trouble with anybody trying to fish without permission.

After acquiring the property, Leake continued the employment of Clark as caretaker upon the same terms. Clark said that during this period of employment, no one except Leake kept boats on the pond; that he never walked around it because of the density of the woods; and he knew of no roads or trails to the waters of the pond other than the one on the Leake property. Clark was employed by the State Highway Department, went to work at half-past six in the morning and returned after five p.m. While he was away, his wife and infant son were the only ones on the premises. It was possible to see only the front portion of the pond from the house where he lived; no one could see the surface of the branches of the pond; and there was no one to stop people from fishing on such waters during the day. He never noticed people fishing from the shores, and never used the pond for himself, except, perhaps, six times during the eight years he was caretaker and had never forbidden anyone to fish there.

In the early summer of 1936, Clark moved from the premises and a month or so later, he was succeeded by W. J. Barton as tenant and caretaker. Barton stayed on the premises until 1951, rent free, under the same directions given Clark. He went around the pond frequently, but never saw any evidence of persons engaged in fishing on the pond or from its shores. On one or two occasions, he had observed people fishing from the dam and chased them away. He said there were no boats on the pond except those belonging to Leake and the latter's friends; and that there was no practical way to get a boat to the pond other than proceeding along the public highway near Leake's property. He could not see the entire pond from his house. He worked as a day laborer for other people at different jobs, painting, lumbering, and highway work, a part of the time at a place distant from the County of Lancaster. He left the premises between 5:30 and 6:00 a.m., and returned...