Thurston v. City of Portsmouth

• Decision Date: 08 March 1965
• Citation: 140 S.E.2d 678,205 Va. 909
• Court: Virginia Supreme Court
• Parties: Elizabeth P. THURSTON v. CITY OF PORTSMOUTH.

Page 678

140 S.E.2d 678

205 Va. 909

Elizabeth P. THURSTON v. CITY OF PORTSMOUTH.

Supreme Court of Appeals of Virginia.

March 8, 1965.

William L. Parker, Norfolk (William L. Parker, Jr., Norfolk, on brief), for appellant.

William B. Spong, Jr., Portsmouth (Michael A. Korb, Jr., City Atty., Cooper, Spong & Davis, Portsmouth, on brief), for appellee.

Before EGGLESTON, C. J., and BUCHANAN, SNEAD, I'ANSON and CARRICO, JJ.

CARRICO, Justice.

This controversy arose out of the following situation:

The Seaboard Air Line Railway Company, by deed dated March 20, 1909, acquired from The Atlantic Coast Terminal Company, Incorporated, certain parcels of land in the city of Portsmouth, together with all riparian rights appertaining thereto. The land so acquired bordered on Crawford's Bay, a part of Elizabeth River, a navigable tidal estuary of the Chesapeake Bay.

By deed dated December 14, 1933, Seaboard conveyed to H. B. Wilkins a portion of the land acquired by it from the Terminal Company. The Wilkins parcel was described as being 40 feet wide and 117 feet long and having as its northern boundary the line of mean low-water of Crawford's Bay. The deed contained the following crucial reservation and exception:

'The parties of the first part hereby expressly reserve and except from this conveyance all the riparian rights appertaining or in anywise belonging to the said property * * *.'

Elizabeth P. Thurston, the complainant, has become the owner of the parcel of land conveyed by Seaboard to Wilkins. The city of Portsmouth, the defendant, has become the owner of the riparian rights reserved and excepted in the deed from Seaboard to Wilkins.

The complainant filed a bill of complaint against the defendant in which she alleged that the reservation and exception in the Seaboard-Wilkins deed was ineffective because riparian rights 'can only exist as appurtenant to property above the line of mean low-water'; that Seaboard had conveyed all of the upland to Wilkins and had retained no land to which the riparian rights could attach; that she, therefore, as successor to Wilkins, owned the riparian rights; that the defendant was depositing fill on the bed of Elizabeth River for the construction of a roadway between her property and the river, in violation of her riparian rights, and that as a result she would sustain irreparable damage. She prayed for an interpretation of the Seaboard-Wilkins deed and an injunction restraining the defendant from constructing the roadway.

The defendant filed a demurrer to the complainant's bill, alleging that the same was not sufficient in law. The demurrer was sustained by the chancellor and a final decree was entered dismissing the bill. The complainant was granted an appeal.

The reservation and exception in the Seaboard-Wilkins deed is the focal point of the issue in this cause. If the reservation and exception was effective to divest the property of the complainant of the riparian rights once appurtenant thereto, then the complainant has no standing to maintain this suit. If she is to prevail, she must rely on the strength of her own title and not upon any alleged weaknesses in that of the city.

The sole question to be determined, therefore, is whether riparian rights, of the character here involved, may be severed and held separately from land to which they were originally appurtenant.

The right of a riparian owner to the benefits resulting from his ownership of land on navigable water is recognized both by statute and by case law.

At common law, the title of such an owner extended only to high-water mark. But an Act of Assembly adopted in 1679 (2 Hen.Stat. 456) established that 'every man's right, by virtue of his partent, extends into the rivers or creeks so far as low watermark.'

The present day statutes continue to recognize such right and to define the extent of its exercise, Code, § 62-2, the descendant of the act of 1679, provides that, subject to the provisions of § 62-1, 'the limits or bounds of the several tracts of land lying on * * * bays, rivers, creeks and shores, and the rights and privileges of the owners of such lands, shall extend to low watermark, but no farther, unless where a creek or river, or some part thereof, is comprised within the limits of a lawful survey.'

Code, § 62-1 provides that the ungranted beds of bays, rivers, creeks and the shores of the sea shall be the property of the Commonwealth but 'may be used as a common by all the people of the State for the purpose of fishing and fowling, and of taking and catching oysters and other shellfish.'

From the early case of French v. Bankhead, 11 Grat. (52 Va.) 136, this court has respected and given full effect to these legislative pronouncements of the rights of riparian owners. In the French case, it was said that such owners 'shall have, possess and enjoy exclusive rights and privileges to and along the shores' of the waters bordering their land 'down to ordinary low water mark. By the common law, the title of the proprietor extends to the ordinary high water mark. The shore, or that space alternately covered and left dry by the rise and fall of the tide, being the space between high and low water marks, was in the king for the use of the public. The law of Virginia, so far at least as relates to the soil, has, as appears by the act [of 1679], been altered; and the limits or boundaries of the land extend over and include the shore, by operation of law.' 52 Va., at pp. 159-160.

In Taylor v. Commonwealth, 102 Va. 759, 47 S.E. 875, the rights of a riparian owner were delineated as follows:

'First. The right to be and remain a riparian proprietor and to enjoy the natural advantages thereby conferred upon the land by its adjacency to the water.

'Second. The right of access to the water, including a right of way to and from the navigable part.

'Third. The right to build a pier or wharf out to navigable water, subject to any regulations of the state.

'Fourth. The right to accretions or alluvium.

'Fifth. The right to make a reasonable use of the water as it flows past or laves the land.' 102 Va., at p. 773, 47 S.E., at p. 880.

The gist of the complainant's argument is that, by nature, the rights just described 'are easements appurtenant to lands, of value only to the owner of the land' which cannot be converted into easements in gross by any attempted separation of the ownership of the easements and their dominant tenements. The complainant asserts that 'a reservation of such rights in a conveyance * * * would be void, as repugnant to the grant.'

But is this the true nature of riparian rights? Are they mere easements and subject to the same rules as to severability as are such easements? The answers to these questions have already been provided by our earlier decisions.

In Peek v. City of Hampton, 115 Va. 855, 859, 80 S.E. 593, 594, it was said that a riparian right is 'not a mere easement to pass over the water or a privilege to use the surface, but [is] property in the soil under the water.'

In Hite v. Town of Luray, 175 Va. 218, 226, 8 S.E.2d 369, 372, it was said of riparian rights that they 'are in no sense easements, but are qualified property rights incident to the ownership of the soil through or by which the waters of a stream flow.'

A 'riparian right is property, and is valuable.' Taylor v. Commonwealth, supra, 102 Va., at p. 771, 47 S.E., at p. 880. Such a right is a proper subject for protection by injunction. Carpenter v. Gold, 88 Va. 551, 553, 14 S.E. 329. Injury thereto entitles the owner to damages. Peek v. City of Hampton, supra, 115 Va., at p. 859, 80 S.E. 593. And if such a right is sought for public use, it may be taken by eminent domain. Town of Purcellville v. Potts, 179 Va. 514, 522, 523, 19 S.E.2d 700.

It has long been assumed, and specifically recognized, in Virginia, that riparian rights may be severed from the land to which they were once appurtenant and dealt with separate and apart therefrom.

In Waverly, etc., Co. v. White, 97 Va. 176, 33 S.E. 534, 45 L.R.A. 227, the very riparian rights here in question were involved in an earlier dispute. An apportionment of such rights among the owners of land bordering Crawford's Bay was ordered. The case recognized the right of each abutting owner to the soil between ordinary high- and low-water mark. Of special interest to the question at hand is the following statement in the opinion:

'* * * We do not, of course, mean to say that the operation of the grant may not be so limited to highwater mark as to exclude riparian rights as incident to it; but * * * the intention so to do must be clear and manifest upon the face of the deed. * * *' 97 Va., at p. 180, 33 S.E., at p. 536.

In the case of Ficklen v. Fredericksburg P. Co., 133 Va. 571, 112 S.E. 775, it was held that a riparian right 'could be separated from the land, and that it was susceptible of partition in kind between * * * [the coproprietors thereof].' 133 Va., at pp. 595, 596, 112 S.E., at p. 783.

In Hite v. Town of Luray, supra, the principle of severability was even more clearly enunciated. There the...