Town of Ravenswood v. Flemings

• Decision Date: 07 July 1883
• Citation: 22 W.Va. 52
• Parties: TOWN OF RAVENSWOOD v. FLEMING.
• Court: West Virginia Supreme Court

22 W.Va. 52

TOWN OF RAVENSWOOD v. FLEMING.

Supreme Court of West Virginia.

July 7, 1883

Submitted Jun. 22, 1882.

(WOODS, JUDGE, absent.^[1])

1. The Ohio river is navigable and is a public highway in the highest and broadest intendentment possible. (p. 56.)

2. Riparian owners of land on the Ohio river, as against the State of West Virginia, hold their titles only to ordinary high-water-mark. (p. 69.)

3. The bed, banks and shores of the Ohio river are held by the State in trust for the public. (p. 69.)

4. It is compentent for the Legislature to confer on municipal corporations, in aid of the navigation of said river, the exclusive right to construct wharves within their corporate limits between ordinary-high-water-mark, and low-water-mark without compensation to the adjacent lot-owner for the land so taken for that purpose. (p. 69.)

5. The act of the Legislature denying the right of a riparian owner in an incorporated town or city without the consent of the council of said town or city to build a whart, pier or bulkhead on the space adjacent to his lot between ordinary high-water-mark and low-water-mark is constitutional. (p 70.)

6. Where a lot-owner under such circumstances does attempt to erect such wharf, & c., without the consent of the council of the city or town, the city or town may enjoin him from so doing. (p. 69.)

The facts of the case are stated in the opinion of the Court.

Robert White and R. S. Brown for appellant.

N Fitzhugh for appellee.

JOHNSON PRESIDENT.

The town of Ravenswood was chartered by the Legislature of the State of Virginia by an act passed, March 10, 1852. Said charter was amended by the Legislature of West Virginia by an act passed February 25, 1868. By both of said acts, § 4 act of 1852, and § 22 act of 1868, authority was given to said town to construct landings, wharves and docks. Within the limites of the corporation, as defined by said charter, the defendants, F. F. and G. P. Fleming, commenced building a wharf and landing opposite to their lot within said corporation, claiming the right to do so as riparian owners, without the consent of the town-council of Ravenswood. The council of said town directed the said obstruction to be removed, and when the officers of the town attempted to execute said order they were resisted by the defendants, who also sued out a peace-warrant against said officers, who were required by a justice to give bonds to keep the peace. Thereupon the town of Ravenswood on the 31st day of July, 1880, filed a bill before the judge of the fifth judicial circuit praying an injunction against the defendants, restraining and enjoining them from the construction of said wharf, & c., which was granted. The bill sets out the provisions of the act incorporating the plaintiff and the amendment to said act, and states, that the defendants are commencing to construct the wharf, & c., within the boundary of said incorporated town, without the consent of its council; that said wharf, & c., is being constructed between high-water and low-water marks on the Ohio river, which is a navigable river; " that all of said river front between high-water-mark and low-water-mark, as well as the bed of said river, belonged to the commonwealth of Virginia, when said town was laid out; that the said Ohio river was and is a public, navagable river forming the boundary-line between Virginia and Ohio; and that the State of West Virginia on its formation succeeded to the public rights in the bed and the banks of the Ohio river formerly held by Virginia, including the sovereign right to hold, construct or grant to others the franchise in making public wharves and landings thereon; and that the said State of West Virginia did in due form, by act of its Legislature, grant such right and franchise to hold, build and keep such public wharves and landings to the plaintiff, within the corporate limits of said town," & c

The defendants answered and claimed, that the patent under which they claim called for an object " on the Ohio river and to run with the meanders thereof," that the patentee by virtue of said grant became and was vested with the full ownership and fee simple of the said tract of land, and that the boundaries thereof extended to and ran along with the middle of the Ohio river, ad medium filum equae, and that no Legislature of the State of Virginia or of this State has ever lessened or destroyed the rights of the said patentee, and that any attempt by legislation or otherwise, if any were ever made, to take away, lessen or destroy the rights lawfully conferred by said patent would be unconstitutional, illegal and void; that the rights of the original patentee have come down intact to this day, and now belong to and are vested in the riparian owners, who hold under said patent. The defendants in their answer admit, that by the act of 1868 their land was taken into the corporate limits of the town, but insist that " the mere fact that they and their land were taken into the corporation did not strip them of their property and vest it in the town without condemnation and without compensation. This would have been to violate the Constitution, and to invade the most sacred rights of property. The town in its bill seems to rely greatly on the twenty-second section of the act of 1868, as authorizing the conversion of private property to public uses without any compensation, but that section only authorizes the town to erect wharves on land, which does or shall belong to said town." Respondents insist, that they have the full and sole right to enjoy the said bank of the river to low-water-mark, subject only to the unobstructed navigation of the river; that they have a right to make their own landing on their own land at their own cost, provided that they do not obstruct navigation. They pray, that the injunction be dissolved and the bill dismissed.

The pleadings therefore show, that the plaintiff, the town of Ravenswood, was incorporated and entrusted with the power of building wharves, & c.; that within the limits of said town and without the consent of the town-council of said town, between high-water-mark and low-water-mark on the Ohio river, the defendants, who owned a lot on said river, commenced and claimed the right to complete the construction of a wharf and ice-harbor in front of this lot, claiming the right so to do as riparian owners. On the 11th day of September, 1880, the cause was heard by the circuit court of Jackson county, and the injunction was idssolved. From this decree the Town of Ravenswood appealed. The Town of Ravenswood here insists, that the injunction should have been perpetuated; and the defendants insist that the decree was proper and should be affirmed. The pleadings raised the question of the dedication to the town of the plat of ground on which the defendants were building their wharf, & c., but in the view which we take of the question involved that point is wholly immaterial. Elaborate briefs of learned counsel on both sides have been filed, which have greatly aided us in arriving at a conclusion.

It is insisted by counsel for the appellees, that the Ohio river is not a navigable river according to the common law definition of the term; that only arms of the sea and streams, where the tide ebbs and flows, are by common law deemed navigable; and streams above the tide-water, though navigable in fact are not navigable in law. For this Middleton v. Pritchard, 3 Scam. 510, and Morgan v. Reading, 3 Smedes & M. 366 are cited. The decisions in these cases and in a number of others do so hold, but against the great weight of authority as well as against reason. It is true, that " the only waters recognized in England as navigable were the tide-waters, yet the reason of the rule would apply equally to waters in fact navigable above the flow of the tide that reason being, that the public authorities ought to have entire control of the great passage-ways of commerce and navigation to be exercised for the public advantage and convenience. The confusion of navigable with tide-water streams found in the monuments of the common law long prevailed in this country, notwithstanding the broad differences existing between the extent and topography of the British island and that of the American continent. It had the effect for two generations of excluding the admirality jurisdiction from our great rivers and inland seas; and under the like influence it laid the foundation in many States of doctrines with regard to the ownership of the soil in navigable waters above tide-water at variance with sound principles of public policy." Barney v. Keokuk, 94 U.S. 338.

In the Genesee Chief v. Fitzhugh, 12 How.443, it was held that the admirality and maritime jurisdiction granted to the Federal government by the Constitution of the United States is not limited to tide-water, but extends to all public navigable lakes and rivers, which are used for commerce between different States or with foreign nations. In this case Chief Justice Taney, who delivered the opinion of the court said: " The courts of the United States naturally adopted the English mode of defining a public river, and consequently the boundary of admirality jurisdiction. It measured it by tide-water, and that definition having found its way into our courts became after a time the familiar mode of describing a public river, and was repeated as cases occurred without particularly examining, whether it was as universally applicable in this country as it was in England. * * The description of a public navigable river was substituted in the place of the thing intended to be described, and under the natural influence of precedents and established forms, a definition originally correct was adhered to and acted on after it...