Norfolk City v. Cooke

• Decision Date: 13 April 1876
• Citation: 68 Va. 430
• Parties: NORFOLK CITY v. COOKE.
• Court: Virginia Supreme Court

68 Va. 430

NORFOLK CITY v. COOKE.

Supreme Court of Appeals of Virginia.

April 13, 1876

Absent, Staples J.

1. The city of Norfolk is the owner of the ground which she has not disposed of, covered by water, lying between Parker street and the portwardens line, both as riparian proprietor and as having had long possession thereof; and the city may maintain an action of unlawful entry and detainer, against any intruder upon said water lots.

2. A patent for land constituting a part of the bed of a navigable river, conveys no title to it.

The case is stated by Judge Christian, in his opinion.

W B. Martin, for the appellant.

W H. C. Ellis, for the appellee.

OPINION

CHRISTIAN J.

This is a writ of error to a judgment of the corporation court of the city of Norfolk.

The action was unlawful entry and detainer, brought by the city of Norfolk to recover of the appellee Cooke, the possession of a certain water lot described in the summons. A jury being waived by the parties, and all matters of law and fact being referred to the court, a judgment was entered for the defendant, the appellee here. To this judgment a writ of error was awarded by this court.

The only question we have to determine is, whether upon the facts disclosed by the record, the city of Norfolk had the right of possession to the water lot described in the summons; and whether upon these facts, the action of unlawful entry and detainer can be maintained.

The material facts shown by the record are as follows: The house of burgesses by an act passed in the first year of the reign of George III, and to be found in 7 Hen. Stat. §§ 4, 5, pp 435-6, declared that certain land in the borough of Norfolk, then known as the Fort land, should be vested in certain persons named in said act, as trustees and directors who should hold the same in fee simple, for the purpose of enlarging and securing said land, and erecting thereon a wharf and warehouses; and upon certain conditions the trustees were to convey the same to the county or borough of Norfolk. By another act 7 Hen. Stat. §§ 3, 4, 5, pp. 511-12, the trustees were required to convey to the borough of Norfolk to the exclusion of the county. A third act (8 Hen. Stat. pp. 269-70,) reciting that the trustees formerly appointed had formed themselves into the Town Point Company, perpetuated the succession of said trustees.

In July 1792 the Common Hall of Norfolk borough had the Town Point or Fort lands surveyed, and laid off into lots and streets. A copy of this plat was filed in the clerk's office of the borough. This plat was recognized, together with the port warden line, established by the act of 1801, as an official map of the borough of Norfolk, in Harris' case, 20 Gratt. 833.

In 1792, James Taylor and others, trustees of the Fort lands, or Town Point Company lands, in consideration of £ 2,000, the amount of advances made by them, conveyed by deed, bearing date August 1st, 1792, the said lands to the mayor, recorder, aldermen and common councilmen of the city of Norfolk, in fee simple.

The deeds filed, and the authentic map of this property recognized by this court in Harris' case, supra, show that the Fort land, or the Town Point property, extended westward to Parker street, the western limit of Parker street being the limit of the survey, investing the city of Norfolk with the title of the property to the line.

This plat shows that the city of Norfolk had extended its streets as occasion required, and sold or leased water lots down to Parker street, and without dispute extended the streets of the city to Parker street. Much of the land conveyed and claimed by the city of Norfolk was covered by water at high tide; but up to the line of Parker street there is no dispute as to the title of the city of Norfolk both to the lots and the streets running towards Elizabeth river down to Parker street.

As to the streets, Main, Kelly and Water streets, which bisect Parker street, running towards Elizabeth river, it is clear the city of Norfolk has the right--both under its charter and on well settled principles of law--the right to extend these streets out into the water as far as the port warden line.

According to the recognized plat of the Fort or Town Point lands, the city of Norfolk has the title to this property to the western boundary of Parker street, and the fee simple title to this street is in the city of Norfolk.

The city of Norfolk has, for many years, claimed title, and exercised acts of ownership over the water lots lying west of Parker street, having, in 1841, sold one of these lots to Hardy & Bros., who built wharves thereon, and hold possession of the same under title derived from the city of Norfolk; and in 1867 having leased the other lot, which is a part, if not the whole, of the water lot in controversy to William and J. J. Swaine, whose interest in the same was sold under execution, and purchased by Chamberlaine and Grandy for the sum of $500. Afterwards, it seems, Chamberlaine and Grandy surrendered to the city all their interest in said water lots.

In November 1873, the defendant, Cooke, obtained from the commonwealth a patent for the water lot lying between Parker street and the port warden line, and adjoining the lot sold to the Hardys, it being the same lot which had been leased to the Swaines, and purchased by Chamberlaine and Grandy, and by them surrendered to the city of Norfolk. Under this patent Cook entered and had built a small house on piles, and was in possession of it when this action was brought. His claim of title and his possession is under and by virtue of this patent.

Upon these facts, the question we have to determine is, whether the city of Norfolk can maintain against Cooke the action of unlawful entry and detainer, and is entitled to recover against him in this action. The corporation court decided that question in favor of the defendant; and it is this decision we now have to review.

First as to Cooke's title: we think it is clear that the grant of the commonwealth is void. The patent conferred on Cooke only such title as was in the commonwealth. The lot called for in the patent was the bed of a navigable river, and was incapable of being granted to any individual. See Horne v. Richards, 4 Call. 441-449; Meade v. Haynes, 3 Rand. 33-36; French v. Bankhead, 11 Gratt. 169; Code 1873, chap. 62, § 1, p. 604; chap. 108, § 4; §§ 42, 43, 867. But although Cooke's patent is void, and he is a mere trespasser, yet being in possession, he cannot be turned out unless it can be shown that the city of Norfolk has the right of possession as against him. While it is not necessary in this action to show a fee simple title to the property in controversy in the city of Norfolk, it is essential at least to show the right of possession even against an intruder. This brings us to the consideration of the important question in the case, viz: whether the city of Norfolk has the right of possession to the water lot in controversy against the defendant, Cooke; or, in other words, whether the action of unlawful entry and detainer can, upon the facts of this case, be maintained against the defendant who has no...