Medlock v. Galbreath

• Decision Date: 07 May 1945
• Docket Number: 4-7638
• Citation: 187 S.W.2d 545,208 Ark. 681
• Parties: Medlock v. Galbreath
• Court: Arkansas Supreme Court

187 S.W.2d 545

208 Ark. 681

Medlock v. Galbreath

No. 4-7638

Supreme Court of Arkansas

May 7, 1945

Appeal from Lawrence Chancery Court, Eastern District; J. Paul Ward Chancellor.

Affirmed.

D Leonard Lingo and Cunningham & Cunningham, for appellant.

Blackford & Irby, for appellee.

OPINION

Robins J.

Appellees, commercial fishermen, obtained in the lower court decree enjoining appellants from interfering with appellees in pursuing their fishing operations in Portia Bay, in Lawrence county, Arkansas. Appellants ask us to reverse this decree.

Portia Bay is a body of water about one hundred twenty-five yards wide and three and a half miles in length. It lies in the form of an almost complete circle, and several small creeks empty into it. It has an outlet, through which water runs practically all the year, by way of a small creek, into Black River.

Appellants, who are brothers, own the east half of section 28, and a strip of land one chain wide off the east side of the east half of the west half of section 28, in township 17 north, range 1 west, in Lawrence county. The greater part of Portia Bay is situated within said section 28. In the government survey Portia Bay was not meandered and the lines of the sub-divisions were run across the stream. Appellants, under their deed, have title to the bed of that part of Portia Bay that is contained within their land lines.

Appellants urge that the evidence adduced in the lower court shows that Portia Bay is not a navigable stream, and that they, being the owners of a part of the bed of the stream, have a right to control that part of the surface of the water of said stream that lies above the bed of the stream owned by them. With both these contentions we agree. Without reviewing the evidence, we deem it sufficient to say that the proof in this case clearly establishes that Portia Bay is not a navigable stream either from a technical or practical standpoint. Appellants have title to the bed of part of this stream, and they undoubtedly have the ownership and control of that part of the surface of the bay that lies above the portion of the bed of the stream that is owned by them.

We think the rule laid down by the Supreme Court of Pennsylvania, in the case of Smoulter v Boyd, 209 Pa. 146, 58 A. 144, 66 L. R. A. 829, 103 Am. St. Rep. 1000, applies here. There was involved in that case a controversy between adjoining riparian owners as to right to use the surface of a non-navigable lake or pond. Aaron Boyd owned 215 acres, and the lands described in his deeds covered a portion of the bed of the lake. Boyd constructed on the surface of the lake along his land lines a boom of heavy logs fastened together at the ends by iron links and erected thereon a barbed wire fence. Suit was brought by Smoulter and other owners of part of the lake to enjoin the maintenance of this boom and fence. The Supreme Court of Pennsylvania reversed the decree of the lower court granting the injunction and held that Boyd's grant of land in the bed of the lake gave him title ad coelum et ad inferos and that therefore, the waters on his land were subject to his use and enjoyment, and concluded its opinion as follows: "Each of the parties owns his land in fee, and included in that ownership is the right to the use of the water while it is on the land. Any use of it for boating purposes by another is an infringement of the rights of property vested in the owner...