Providence Forge Fishing & Hunting Club Inc v. Miller Mfg. Co. Inc

• Decision Date: 12 January 1915
• Citation: 117 Va. 129,83 S.E. 1047
• Court: Virginia Supreme Court
• Parties: PROVIDENCE FORGE FISHING & HUNTING CLUB, Inc. v. MILLER MFG. CO., Inc., et al.

83 S.E. 1047

117 Va. 129

PROVIDENCE FORGE FISHING & HUNTING CLUB, Inc.

v.MILLER MFG. CO., Inc., et al.

Supreme Court of Appeals of Virginia.

Jan. 12, 1915.

1. Waters and Water Courses (§ 111^*) — Riparian Owner—Boundaries.

An owner of land adjoining an inland fresh-water lake or pond, or an artificial pond created by damming an ordinary stream, takes to the center, though the rule does not apply to the great navigable lakes.

[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. 114, 121, 122; Dec. Dig. § 111.*]

2. Waters and Water Courses (§ 111*) — Construction of Deed—Land Bounded by Pond.

A deed describing land as bounded on the east by the "Providence Forge mill pond" did not exclude any part of the pond from the conveyance, but the grantee took to the center.

[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 120; Dec. Dig. § 111, *]

3. Adverse Possession (§ 60*)—Requisites —Hostile Possession.

The acts of an owner of land adjoining a fresh-water pond in fishing and hunting on the pond, and in renting boats to others for use on the pond, and a predecessor's instruction to his agent not to permit any one else to boat or fish on the pond without his permission, were not inconsistent with, or hostile to, the rights of other adjoining owners using the pond for boating and fishing when they desired to do so, and hence created no title by adverse possession.

[Ed. Note.—For other cases, see Adverse Possession, Cent. Dig. §§ 282-312, 323, 328; Dec. Dig. § 60.*]

4. Adverse Possession (§ 36*)-Requisites —Exclusive Possession.

Such acts did not indicate an intention to appropriate land, but only its products, and did not constitute an exclusive possession, and hence created no title by adverse possession.

[Ed. Note.—For other cases, see Adverse Possession, Cent. Dig. §§ 139-143; Dec. Dig. § 36.*]

5. Appeal and Error (§ 1033*)—Harmless Error—Decree.

On a bill to remove an alleged cloud from title to real estate, a decree fixing the middle of a pond as the boundary line, if erroneous, was to the advantage of the plaintiff, and hence he could not complain thereof.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dee. Dig.' § 1038.*]

Appeal from Chancery Court of Richmond.

Bill by the Providence Forge Fishing & Hunting Club, Incorporated, against the Miller Manufacturing Company, Incorporated, and others. Decree for defendants, and plaintiff appeals. Affirmed.

John A. Lamb, S. A. Anderson, and Brockenbrough Lamb, all of Richmond, for appellant.

S. O. Bland, of Newport News, for appellees.

HARRISON, J. The bill in this cause, which was filed by the appellant, Fishing and Hunting Club, seeks to have removed an alleged cloud from its title to certain real estate, and to that end to have rescinded and annulled a certain deed dated February 16, 1911, from Amelia Binns Stringfellow and others to the appellee the Miller Manufacturing Company, Incorporated.

The controversy inaugurated by this proceeding involves the title to an artificial pond approximately one mile and a quarter long and a quarter of a mile wide, formed by the damming of a natural stream. This pond has existed for many years, and is connected with a gristmill located at the southern extremity of the pond. A number of streams run into the pond, or Mirror Lake, as it is sometimes called, chief among them being Rumnor's stream, which is seven or eight miles long and enters the pond at its northern end. Adjoining the pond on the easterly side are the properties of the appellant, formerly known as "Providence Forge, " and the property of one Falstrom. Adjoining the pond on the west is the property of the Binnses, appellees, known now as Pearson's, and the "Sycamore Springs" property. Appellant claims the entire pond—the water, the soil under the water, all the trees in the pond, the sole right of fishing in the pond, all rights of property therein, and all land on both sides of the pond which would be under water if the water of the pond were raised to a level with the height of the dam.

Appellees insist that the decree of the chancery court of the city of Richmond should be affirmed, holding that a line extending through the center of the pond is the dividing line between the lands of the contestants, the appellees claiming to said center line the water in the pond, the soil under the water, the trees in the water, the exclusive right of fishing, and all other property rights, except the right to interfere with the use of the water for mill purposes.

Authority of the highest character is abundant that an adjoining landowner on an inland fresh-water lake or pond takes to the center; the same rules applying in such cases as apply in cases of streams. Of course, the rule does not apply to the great navigable lakes to which all those reasons apply which apply to the sea itself. Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. SOS, 35 L. Ed. 428. A fortiori is it true that the adjoining landowner will take to the center of an artificial pond, like that under consideration, which is created by damming an ordinary stream, unless he has excluded himself from such right by deed or contract.

In Farnham on Waters, § 869, the author says:

"The rules with respect to boundaries upon artificial ponds are very similar to those governing boundaries on the streams on which the ponds are raised. If the pond is created by the damming back of the water of a natural stream, a...