Ours v. Grace Property, Inc.

• Decision Date: 11 December 1991
• Docket Number: No. 20157,20157
• Citation: 412 S.E.2d 490,186 W.Va. 296
• Court: West Virginia Supreme Court
• Parties: Jack R. OURS, G.R. Ours, Jr., and Addie M. Ours, Petitioners Below, Appellees, v. GRACE PROPERTY, INC., A West Virginia Corporation, Respondent Below, Appellant.

Page 490

412 S.E.2d 490

186 W.Va. 296

Jack R. OURS, G.R. Ours, Jr., and Addie M. Ours, Petitioners Below, Appellees, v. GRACE PROPERTY, INC., A West Virginia Corporation,

Respondent Below, Appellant.

No. 20157.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 24, 1991.

Decided Dec. 11, 1991.

[186 W.Va. 297] Syllabus by the Court

Where ownership of the land underlying a man-made lake is clear and distinct, the owner of a portion of the lake bed has the exclusive control and use of the water above the portion of the lake bed that he owns. Further, the owner has a right to exclude others, including other adjoining owners of the lake bed, by erecting a fence or other barrier to prohibit others from utilizing the water which overlies his property.

John G. Ours, Petersburg, for appellees.

Clyde M. See, Jr., See, Walter & Krauskopf, Moorefield, for appellant.

WORKMAN, Justice:

This case is before the Court upon an appeal from the October 4, 1990, final order of the Circuit Court of Hardy County which granted a permanent injunction in favor of the appellees. This injunction enjoined the appellant, Grace Development Company (hereinafter referred to as Grace), from using a road constructed by Grace on the land owned by the appellees, without the appellees' permission, ¹ and prohibited the appellant from using the water overlying the land owned by the appellee. The appellant contends that the lower court committed the following errors: 1) the court erred in adopting the view that Grace is entitled to use only the portion of the surface water of Shook's Run Lake which overlies Grace's land; 2) the court erred in not giving the proper force and effect to the easements granted to the surface waters of Shook's Run Lake; and 3) the court erred in not giving the proper force and effect to the riparian rights of Grace as these rights relate to Shook's Run Lake. After reviewing all matters of record in this case, we find no errors were committed by the lower court and we therefore affirm.

The facts of this case center upon a man-made lake, commonly known as Shook's Run Lake, which is located behind Shook's Run Dam. The land underlying the lake is entirely privately owned by the appellant and the appellees. It is undisputed that a majority of the land underneath the lake, approximately 98%, ² is owned by the appellees. The appellant owns a small narrow strip of the lake located in the southeastern corner which constitutes only about 2% of Shooks Run Lake.

Further, the facts indicate that the construction of the dam which created the lake was made possible when each party separately conveyed an easement to the Potomac Valley Soil Conservation District (hereinafter referred to as Potomac Valley). The respective easements provided for the "construction, operation, maintenance and inspection" of a flood retarding dam; for the "flowage of any waters in, over, upon or through" the flood control dam; and for the "permanent storage and temporary detention, either or both, of any waters that are impounded, stored or detained" by the flood control dam.

The appellant is a corporation of approximately 400 shareholders which acquired ownership of some 12,000 acres of land in 1986 including 2% of Shook's Run Lake. The property was acquired so that its shareholders, shareholders' families and guests could use the land for hunting and other recreational purposes. Pursuant to the rules of the corporation, shareholders were informed that "[a] small section of the shoreline of the Shook[']s Run Lake is on the [corporation's] property," and that "[s]hareholders, family members and guests may fish from the shoreline owned by the corporation or from boats that are launched from the shoreline owned by the corporation. (Please remember that the other owners of the shoreline have the same rights)."

Accordingly, members of the corporation began using not only that shoreline owned by the corporation, but the entire shoreline. Moreover, members began using their boats over the entire lake, and also tied or moored the boats, when not in use, to the appellees' shoreline, without the appellees' permission.

Finally, in the summer of 1989, the appellant built an access road to the southeast corner of the lake. Approximately 50% of

[186 W.Va. 299] the road was built on the appellee's property without the appellee's consent. Based upon these facts, the appellees' sought and obtained a permanent injunction against the appellant.

COMMON LAW v. CIVIL LAW

The issue of who has control over the use of surface waters above a lake bed owned by two or more adjoining land owners is one of first impression for this Court. The appellant maintains that the lower court erred in adopting the view that Grace is only entitled to use that portion of Shook's Run Lake which overlies the land owned by Grace. The appellee, on the other hand, argues that the trial court was correct in concluding that the appellees have the exclusive right to use the surface water over their land.

A split of authority exists among the jurisdictions which have dealt with this issue. The majority of courts have followed the common-law rule. Under the common-law rule, the owner of a portion of the land underlying surface waters has the exclusive right to control the water above that property. Beacham v. Lake Zurich Property Owners Ass'n, 123 Ill.2d 227, 122 Ill.Dec. 14, 16, 526 N.E.2d 154, 156 (1988). Consequently, the owner of a portion of a lake bed has the right to exclude others, including any other owners of the lake bed, from using his property. Beacham, 122 Ill.Dec. at 16-17, 526 N.E.2d at 156-57 (citing Medlock v. Galbreath, 208 Ark. 681, 187 S.W.2d 545 (1945); Lanier v. Ocean Pond Fishing Club, Inc., 253 Ga. 549, 322 S.E.2d 494 (1984); Sanders v. De Rose, 207 Ind. 90, 191 N.E. 331 (1934); Baker v. Normanoch Ass'n, Inc., 25 N.J. 407, 136 A.2d 645 (1957); Commonwealth Water Co. v. Brunner, 175 A.D. 153, 161 N.Y.S. 794 (1916); Smoulter v. Boyd, 209 Pa. 146, 58 A. 144 (1904); Taylor Fishing Club v. Hammett, 88 S.W.2d 127 (Tex.Civ.App.1935); Wickouski v. Swift, 203 Va. 467, 124 S.E.2d 892 (1962)).

Other jurisdictions have adopted a civil-law rule. Utilizing this rule, the owner of part of the land underlying a lake has the right to the reasonable use and enjoyment of the entire lake. Beacham, 122 Ill.Dec. at 17, 526 N.E.2d at 157 (citing Duval v. Thomas, 114 So.2d 791 (Fla.1959); Beach v. Hayner, 207 Mich. 93, 173 N.W. 487 (1919); Johnson v. Seifert, 257 Minn. 159, 100 N.W.2d 689 (1960); Snively v. Jaber, 48 Wash.2d 815, 296 P.2d 1015 (1956)). The states which have adopted the civil-law rule have been concerned with promoting the recreational use and enjoyment of lakes, have an extensive number of lakes with recreational value, or have been concerned with attempts to establish and obey definite property lines where several adjoining owners are involved. See Beacham, 122 Ill.Dec. at 17, 526 N.E.2d at 157; Johnson, 100 N.W.2d at 696; Duval, 114 So.2d at 795.

The Supreme Court of Appeals of Virginia, in the Wickouski case, had to determine a case factually analogous to the present one. In that case, the Swifts and Wickouskis were co-owners of a portion of a pond. The Swifts sought to keep the Wickouskis from boating, trapping and fishing on their portion of the land and from inviting others to use their part of the pond. 124 S.E.2d at 892.

In Wickouski, the pond at issue was a nonnavigable body of water created by a dam. Further, the title to and boundaries of the surface and submerged property were not in dispute. Finally, the majority of the pond and the land underneath it, or approximately 28 acres, was owned in fee simple absolute by the Swifts, with the Wickouskis owning approximately 1.3 acres of land covered by the pond. Id. at 893.

The court, following the common-law rule, held that "the complainants [Swifts] have exclusive control and use of the waters above their portion of the bed of the pond, and ... they have the right to erect a fence on their boundary line across the pond to prohibit others from boating, fishing and trapping on their property." Id. at 895.

Similarly, the facts of this case quite clearly demonstrate that the appellees own the majority of the land beneath Shook's Run Lake. Moreover, a clear harm will be inflicted upon the appellees' use and enjoyment Based upon these facts, we also choose to follow the common-law rule in holding that where ownership of the land underlying a man-made lake is clear and distinct, the owner of a portion of the lake bed has the exclusive control and use of the water above the portion of the lake bed which he owns. Further, the owner has a right to exclude others, including other adjoining owners of the lake bed, by erecting a fence or other barrier to prohibit others from utilizing the water which overlies his property.

[186 W.Va. 300] of their property if the appellant is permitted to have control over the entire lake based upon a mere 2% ownership of the lake. This harm arises from the appellant's disproportionate amount of potential...