Reichert v. Ellis Ferry Co.

• Decision Date: 11 March 1919
• Citation: 211 S.W. 403,184 Ky. 150
• Parties: REICHERT v. ELLIS FERRY CO.
• Court: Kentucky Court of Appeals

211 S.W. 403

184 Ky. 150

REICHERT v. ELLIS FERRY CO.

Court of Appeals of Kentucky.

March 11, 1919

Rehearing Denied May 20, 1919.

Appeal from Circuit Court, Ballard County.

Action in trespass by the Ellis Ferry Company against Amelia Reichert. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.

J. B Wickliffe, of Wickliffe, and Sanders E. Clay, of Danville for appellant.

W. A Anderson, of Wickliffe, for appellee.

SAMPSON J.

Accretions which have formed on the Kentucky side of the stream in Ballard county, opposite the confluence of the Ohio and Mississippi rivers, are the subject of litigation in this action. It is claimed by appellee, Ellis Ferry Company, that since it acquired title, in 1880, to a small strip of land more than 227 acres of land have been formed adjacent to it on the river front; but this is denied by appellant, Mrs. Reichert. The Ferry Company and Mrs. Reichert claim title under a common source, the Ronald survey and patent. The lands claimed by the appellee, Ferry Company, lie on the river front, and between the river and the lands of appellant, Mrs. Reichert. The deed under which the Ferry Company claims, omitting the unimportant parts, is as follows:

"This deed, made and entered into this the 19th day of February, 1880, between W. G. Bullett and the city of Paducah, in the state of Kentucky, and Powhatan Ellis, of the county of Gloucester, state of Virginia, parties of the first part, and the Ellis Ferry Company, a private corporation, created by an act of the General Assembly of the commonwealth of Kentucky, and located in Ballard county, state of Kentucky, party of the second part, witnesseth: That the parties of the first part have bargained, sold, * * * in consideration of the sum of one thousand dollars, * * * to the said parties, * * * five acres (5) of land to be located by the parties of the second part hereto on the waters of the Ohio river within lots three (3) and four (4) designated by the commissioner in the consolidated cases, * * * together with the water line and all water privileges and riparian rights fronting and binding on the Ohio river and Mississippi river of said lower half of said tract of land patented to Elizabeth K. and Nancy Ronald, together with all and singular the appurtenances and privileges thereunto in any use belonging. To have and to hold the same to the said party of the second part or assigns forever."

Powhatan Ellis, Jr., one of the heirs of the Ronald estate to whom the commissioner of the Ballard common pleas court conveyed certain lands belonging to that estate, conveyed to the vendor of appellant three tracts which adjoin and partly surround the lands claimed by the Ferry Company, and described in the foregoing deed. Ellis' deed to the vendor of Mrs. Reichert contains in part the following description:

"Thence west with the said fifty-acre tract to the Ohio river; thence down the river to a large cottonwood and cottonwood pointer on the center line dividing the lower half of said Ronald survey."

The said conveyances also called for the Ohio river at other points. From these deeds it appears that appellant owns to and with the Ohio and Mississippi rivers, which means to the center of these streams; but it is not necessary to, nor do we, pass upon the proprietorship of the lands or accretions, which are not included in the deed to the Ferry Company.

This action in trespass was instituted by the Ferry Company to recover the 5-acre tract and all accretions formed in front of it, and the water line mentioned in the deed, amounting to several hundred acres, and $10,000 value of timber alleged to have been taken by appellant. The trial court, treating the water line described in the deed for 5 acres as a grant of a fee instead of an easement, submitted the question of ownership by adverse possession of all the lands formed by accretion west of the river front, as it existed in 1880, to the jury, and the jury, rejecting appellant's claim by adverse possession returned a verdict for the Ferry Company for all said accretions--227 acres.

While the Ferry Company claims under Ellis by deed anterior to his deed to appellant's vendor, nevertheless the deed to appellant's predecessor in title extended to the river front. By a well-established rule a deed calling for a stream, which does not manifest a different purpose, conveys to the center or thread of the stream, and the owners of the property in controversy in this case, as...