Taylor v. Commonwealth

Decision Date16 June 1904
Citation47 S.E. 875,102 Va. 759
PartiesTAYLOR . v. COMMONWEALTH et al.
CourtVirginia Supreme Court

NAVIGABLE WATERS — LAND BELOW LOW-WATER MARK—OWNERSHIP—RIGHTS OF RIPARIAN PROPRIETOR.

1. Code 1887, § 1338, declaring that all the beds of the bays, rivers, creeks, and shores of the sea not conveyed by special grant shall continue and remain the property of the commonwealth, and may be used as a common by all the people of the state for the purpose of fishing, fowling, and catching oysters, etc., is not an arbitrary assumption of title on the part of the state, but is declaratory of the common law.

2. The title to the bed of a navigable river between low-water mark and the line of navigability is not in the adjacent riparian proprietor, but in the state for the benefit of its citizens, and the riparian owner merely has certain rights beyond low-water mark, such as the right to build wharves, of access to the water, and the right of way over it.

2. See Navigable Waters, vol. 37, Cent Dig. § 241.

3. Acts 1899-1900, p. 797, c. 757, leasing a tract of land lying under the waters of the York river below low-water mark, including an artesian well thereon, is not objectionable as interfering with any of the rights of the adjacent riparian proprietor.

4. Code 1887, § 2137, authorizing the assignment to riparian owners for their exclusive use of a tract of land fronting on the stream, not exceeding one-half acre, for use as oyster-planting ground, does not permit the right to receive such land to be exercised in a capricious and arbitrary manner so as to injure others, but requires the right to be exercised in the manner least injurious to others, if that can be accomplished without wrong to the riparian owner.

Appeal from Circuit Court of City of Richmond.

Action by one Taylor against the commonwealth and others. Prom a judgment for defendants, plaintiff appeals. Affirmed.

McGuire & Riely and Robert Stiles, for appellant.

William A. Anderson, Atty. Gen., and Isaac Diggs, for appellees.

KEITH, P. Appellant filed her bill in the circuit court of the city of Richmond, in which she states that she is the owner in fee simple of a tract of land in Gloucester county known as "Rosewell, " containing 250 acres, fronting on York river, being a portion of a tract which was the property of her father, now deceased, allotted to her by a decree of the circuit court of Gloucester county. That as riparian proprietor her rights in the soil under the waters of York river extend to the channel or navigable portion of the river; and that from the original grant from the English crown of this land, down to and including the lifetime of complainant's father, the proprietors of Rosewell had been in the habit of leasing the oyster lands upon their water front That the last person who held such a lease from the proprietor of Rosewell, while still occupying the relation of tenant to complainant, accepted from the commonwealth a subsequent lease of the flats, or oyster-planting grounds, in front of Rosewell. That about the year 1892. while said lessee was occupying the Rosewell flats, under the circumstances above set out, an artesian well was sunk between low-water mark and the channel or navigable portion of York river, and on the land of which complainant claims she is the owner and riparian proprietor. That the water from this well has mineral properties of great value, and that the lessee and others united in the formation of a company for the purpose of selling the water, which company was grant ed a charter by the circuit court of the city of Richmond in March, 1896, under the style of the "Colonial Water Company, " since which time it has sold great quantities of water without the consent of complainant. That the Colonial Water Company occupies and claims to hold the ground on which the well is located by virtue of the oyster lease above set forth, but that said lease conveys to the water company no title to the ground. The bill further shows that at the session of 1899-1900 the General Assembly passed "An act to lease for a term of years ten acres of land lying under the waters of York river, below low water mark, in the county of Gloucester, including an artesian well thereon, and to provide for a survey of same and for fixing the price to be paid therefor per annum; and to permit said company to erect buildings and make improvements thereon, and to provide for the determination of all proper questions which may arise between the parties to any suit brought under this act." Acts 1899-1900, p. 797, c. 757. That, acting under the provisions of this statute, the Colonial Water Company has caused a survey and plat to be made by the county "surveyor of Gloucester county of 10 acres of the land of complainant, including the well-that is to say, the land of which complainant is the owner and riparian proprietor — and that the company has caused that survey and plat to be returned to the clerk's office of Gloucester county, and posted a notice at the front door of the courthouse on the 4th of May, 1900, to the effect that said survey and plat had been filed in compliance with the provisions of the act of Assembly aforesaid; but that in fact the survey, plat, and notice are erroneous, and do not comply with the requirements of said act That complainant is advised that the act aforesaid authorizes the lease of 10 acres of land, including the artesian well, only on the condition that it shall be determined by the court that the commonwealth is the owner of the land, and that the private rights of no person shall be infringed upon. That it in plain terms declares it to be the purpose of the sovereign power of the state that the private rights of complainant shall not be interfered with or infringed upon, whether the commonwealth be or be not the owner of said land. That, even though the commonwealth be the owner, it by no means follows from the act that a lease may be made to the Colonial Water Company, because it is expressly provided by its terms: First, that no natural oyster-bed rock or shoal shall be included in said 10 acres of land; second, that the private rights of no person shall be infringed upon; and, third, that navigation in York river shall in no manner be obstructed or impeded. That it further declares that complainant's rights of every character, existing at the time of its passage, whether as owner of the land, riparian proprietor, or otherwise, shall be respected, and shall be paramount aud superiorto any rights which can by any possibility be acquired by the Colonial Water Company by virtue of said act. That the commonwealth is not the owner of the land in controversy, but that, on the contrary, complainant is its sole owner, including said artesian well; and, further, that, even though the commonwealth were such owner, the private rights of complainant would be grossly interfered with and infringed upon by any lease made under said act of March 5, 1900. That, without waiving any of her said rights, attention is called to the fact that at the time of the passage of the act of March 5, 1900, and for a long time previous thereto, complainant had, and still has, the statutory right to select any portion of the oyster-planting ground fronting on Rosewell, whether occupied by another person or not, and have same assigned to her exclusive use, provided only that said assignment does not exceed half an acre. See section 2137, Code 1887, as amended by Acts 1893-94, p. 842, c. 743. That complainant has never relinquished, and now claims, the right to have assigned to her, under said statute, one-half an acre of said ground, including the Colonial well; and further claims that the lease of 10 acres of land, as provided by the act of March 5, 1900, cannot be granted without infringing upon this and other rights of complainant, none of which she relinquishes, but all of which she claims and insists upon.

The prayer of the bill is that the well and the water therefrom be declared the property of complainant; that it be decreed that no lease can be made under the provisions of the act of March 5, 1900; that th? lease under which the Colonial Water Company claims to hold said well conveys no title to it whatsoever; and that said company may be compelled to surrender the possession thereof to complainant; and for general relief.

To this bill the commonwealth of Virginia and the Colonial Water Company were made parties defendant, and filed their demurrer upon the following grounds:

First. The bill alleges that the plaintiff is the owner in fee simple of the soil of the bed of York river, between low-water mark and toe channel or navigable part of said stream, while the "demurrants insist that toe right of plaintiff extends only to low-water mark, and that she has no interest in the soil or the bed of said river, but that the soil of said bed is the property of the state of Virginia, so declared by statute, and the state, through the Legislature, has the authority to rent portions of the said bed to the demurrant or any one else."

Second. That, if plaintiff has any right whatever in the soil of said river between low-water mark and the channel or navigable portion of said river, it is only the right to pass over the surface of the water in boats, vessels, or river craft, or to erect wharves, piers, or bulkheads opposite her said land; provided the navigation be not obstructed nor the private rights of any person be otherwise injured thereby; and that, should the plaintiff undertake to construct or build any such wharf, pier, or bulkhead from her shore to a point of navigability, she would be required to so construct them as not to interfere with the said well or the demurrant."

Third. That "the bill alleges that the plat, notice, and proceedings under the act of March 5, 1900, are erroneous, and do not comply with the requirements of the law; that these acts were performed by the county surveyor, and are presumed to be correct, and...

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    ...capacity. Steele v. Sanchez, 72 Iowa, 65, 33 N. W. 366,2 Am. St. Rep. 233;Brandt v. McKeever, 18 Pa. 70;Taylor v. Commonwealth, 102 Va. 759, 47 S. E. 875,102 Am. St. Rep. 865; Lord Adv. v. Wemyss (1900) H. L. App. Cas. 50. See, also, Gould on Waters, § 10. In such cases it is held that ‘the......
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