Louisville Sand & Gravel Co. v. Ralston

• Citation: 266 S.W.2d 119
• Court: United States State Supreme Court (Kentucky)
• Decision Date: 19 March 1954
• Parties: LOUISVILLE SAND & GRAVEL CO. v. RALSTON et al.

Page 119

266 S.W.2d 119

LOUISVILLE SAND & GRAVEL CO. v. RALSTON et al.

Court of Appeals of Kentucky.

March 19, 1954.

Robert P. Hobson, Woodward, Hobson & Fulton, Louisville, for appellant.

Evan Harrod, Turner & Turner, Newcastle, for appellees.

MILLIKEN, Justice.

The problem presented on this appeal is the exact location in the Ohio River of the dividing line between property owned by private riparian owners and that property between the northern low watermark and the 'thread of the stream' which is deemed unappropriated land belonging to the state.

We are asked to determine the meaning of the words 'thread of the stream' as applied to the Ohio River, and to declare whether the property rights of riparian owners extend to the middle of the river (at normal stage) opposite their land or to the center line of the main channel. The appellant, Louisville Sand and Gravel Company, has a lease from Trimble County for dredging sand and gravel 'north of the thread of the stream' as authorized by KRS 56.220. The appellees, L. G. Ralston and wife, owners of 141 acres bordering the river, obtained judgment for $601.20 against the company for dredging on their land. The company had dredged south of the middle of the river but north of the center line of the main channel which was close to the Kentucky shore at this point. No dredging was done south of the center line of the main channel. Because of the import of the question involved, we granted an appeal in conformity which Section 745 of the Civil Code of Practice.

The pioneer case in Kentucky, Berry v. Snyder, 3 Bush 266, 66 Ky. 266, decided in 1867, arose in Jamestown (now Dayton), Campbell County, and involved the 1,000-acre patent of 1787 by the State of Virginia to James Taylor as assignee of George Muse. As a Virginia patent, 'issued before the separation of Kentucky from her, the rights of the patentee vested under the laws of Virginia, and are protected by the compact between her and her daughter, Kentucky; * * *. The terms of the original grant by Virginia to James Taylor do not exclude the land between ordinary high water mark and middle of the main channel; therefore, the grant conveyed the land to the middle of the main channel of the river, and, consequently, all accretions belonged to the riparian owner as an incident to his title.' The real issue in the Berry case was the ownership of a sand bar admittedly south of both the main channel and the middle of the river, and, as a consequence, it was not necessary for the court to distinguish the two or to locate and define the meaning of 'thread of the stream.' In fact, the court quoted with seeming approval Chancellor Kent's rule that 'where a stream is used in a grant as a boundary or monument, it is used as an entirety to the center of it, and, to that extent, the fee passes.' In a dissenting opinion, Judge Robertson declared: 'In my judgment, therefore, it was not necessary in this case to decide whether the patent to Taylor * * * extends to the middle thread of the river or only to low watermark and, consequently, wanting time for the full and thorough investigation which such a question eminently deserves, I preferred to forbear an unnecessary decision, by a divided court, of a doctrine so important and hazardous as that of the constructive extent of Taylor's grant.' In his dissent, Judge Robertson contended that the state owned the bed of the river and that the land of the riparian owners extended only to the low watermark on the Kentucky side of the river, a viewpoint later widely adopted in this country.

Our decisions subsequent to Berry v. Snyder, above, help little in the case at bar. In Willis v. Boyd, 1928, 224 Ky. 732, 7 S.W.2d 216, 218, we said, 'It is well known that our state boundary is along the north bank of the Ohio river at low-water mark. Nevertheless, in construing patents to the Kentucky mainland adjoining that river and calling for the shore line as a boundary, our decisions are uniform in holding...