Union Sand & Gravel Co v. North-cott

• Decision Date: 09 November 1926
• Docket Number: (No. 5743.)
• Parties: UNION SAND & GRAVEL CO. v. NORTH-COTT et al.
• Court: West Virginia Supreme Court

135 S.E. 589

UNION SAND & GRAVEL CO.

v.NORTH-COTT et al.

(No. 5743.)

Supreme Court of Appeals of West Virginia.

Nov. 9, 1926.

(Syllabus by the Court.)

Litz, P., and Woods, J., dissenting.

Appeal from Circuit Court, Cabell County.

Suit by the Union Sand & Gravel Company against Mamie Northcott and others, partners, etc., for an injunction and for damages. From a decree for plaintiff, defendants appeal. Affirmed.

Northcott & Yost and Livezey & McNeer, all of Huntington, for appellants.

George S. Wallace and L. L. McClure, both of Huntington, for appellee.

MILLER, J. [1] Complainant, claiming right and title to. Racoon Island, situate in the Ohio River about six miles below the City of Gallipolis, in the State of Ohio, upon a bill filed in the Circuit Court of Cabell County, obtained an injunction perpetually restraining and inhibiting defendants, and each of them, their officers, agents and employees from trespassing upon or removing any sand and gravel from said island above the low-water elevation, as shown on Government Chart No. 76, filed as Exhibit No. 3 with plaintiff's amended bill, and above the exterior line in red as shown on Merrick's Exhibit No. 2; also a decree against the defendants for the sum of $288.00, the value at three cents per cubic yard, for 9, 600 cubic yards of gravel actually removed therefrom. It was from this decree that the final appeal was taken by defendants, and now before us for review.

It is a concessum that, aside from the incidental questions, the issues presented by the pleadings, and the determination of the plaintiffs right to the relief prayed for, and granted, are:

"1. Has the plaintiff by reason of its ownership of Racoon Island any title to the sand and gravel bar surrounding the same, between high and low water marks?

"2. If the first question be answered in the affirmative, where, under the existing conditions, in said river, is low-water mark located, and was it properly located by the final decree with reference to Government Chart No. 76?"

In deraignment of Its title to Racoon Island plaintiff alleged in its original bill that its immediate source of title was a deed dated September 16, 1924, from Moses T. Epling recorded in Mason County, West Virginia, December 17, 1924; that title reverted back for its remote and ultimate source of title, to a decree and deed originating in a suit instituted in 1S78 by one F. A. Guthrie, Commissioner of School Lands of Mason County, to sell said Racoon Island as waste and unappropriated land of the State. The bill does not allege the name of the purchaser nor the date of the deed, but there was introduced in evidence a part of the record in the suit of Guthrie, School Commissioner, including an order therein, of April 21, 1879, showing that the purchaser was one Lewis J. Cook, his compliance with the terms of sale, confirmation thereof, and directing the commissioner, upon payment of the residue of the purchase money, to execute and deliver to him a proper deed, conveying to him all the right, title and interest of the State in and to said lands. There was also introduced in evidence a decree, purporting to have been made in another chancery suit, brought by E. L. Meade, against L. J. Cook, to subject said Racoon Island as Cook's property to the payment of a judgment of plaintiff against him, and in which it was found that Cook was entitled to a deed for said island, and appointing one Gibbons special commissioner to execute and deliver to him a deed therefor, and decreeing the same to be sold by one Gunn, special commissioner, to satisfy said judgment. Another order entered in said cause, on May 7, 1889, introduced in evidence, shows payment and satisfaction of said judgment and a direction that the cause be retired from the docket.

Another fact respecting the title not cover ed by any pleading, but appearing in the record as evidence, is that this island tract was delinquent for taxes in 1916, purchased by the State, and was again proceeded against, and sold by B. H. Blagg, Commissioner of School Lands, in 1924, in which proceeding, Epling and Sheppard. in whose name the delinquency occurred, disclaiming in favor of plaintiff in this suit, appeared and filed their answer; and plaintiff appeared also, and by answer or petition claiming the rights of redemption, was on its motion permitted to redeem the property from said forfeiture. A certificate of the clerk of the county court, also filed in the cause, shows that the property was regularly taxed from 1890 to and including 1924, and that there was no intervening delinquency of sale of the property except for the year 1916, already alluded to.

While these facts respecting the title to Racoon Island thus appear in the record, no real objection to plaintiff's right thereto is interposed, except the broad proposition contended for, that the commissioner of school lands had no jurisdiction or authority to proceed against said tract, in so far at least as the said title related to any part of the island below high-water mark, and included between that level and low-water mark delineated on the Government Chart No. 76, referred to in the decree; defendants' major proposition being that at the time said school commissioner's proceedings were begun and continued, all the sand and gravel beds lying between such high-water mark and low-water mark constituted but a part of the bed and banks of the Ohio River, which were not subject to entry, or sale or disposition thereof for the benefit of the school fund, and that the proceedings of the school commissioners were absolutely void, in so far at least as they involved the right and title to the gravel and sand bars below high-water mark; wherefore plaintiff had acquired no title thereto as against defendants or any one else with license or permit to take gravel or sand therefrom.

When so proceeded against in 1878, the land was described as a tract of "about 2 acres of land and sand and gravel bar surrounding same"; and in the commissioner's report to the court, it was represented that the same was subject to sale under section 1, chapter 134, Acts of the Legislature of 1872-73, as waste and unappropriated lands. Said act, in so far as it is applicable here, is as follows:

"1. All waste and unappropriated lands within this state, and all lands in this state heretofore vested in the State of Virginia by forfeiture or purchase at the sheriff's or collector's sale for delinquent taxes and not released and exonerated or redeemed within one year, according to law; all lands heretofore or hereafter purchased for this state, at a sale thereof for taxes, ana not redeemed within one year, according to law; and all lands forfeited to this state for the failure to have the same entered upon the books of the assessor and charged with the taxes thereon, as provided for by law, shall, as far as the title thereof shall not be vested in junior grantees or claimants under the provisions of the Constitution and laws, be sold for the benefit of the school fund, in the manner hereinafter prescribed."

By section 3 of the same act, however, it is provided that:

"It shall be the duty of the surveyor of each county in this state, as soon as the same shall come to his knowledge, to report to the commissioner all waste and unappropriated lands in his county, except the lands under the bed of the Ohio River, subject to sale under the provisions of this chapter."

And in connection with this statute our attention is directed to the provisions of Section 1, Article 2, of the Constitution, descriptive of the territory of the State, as including—

"the bed, bank and shores of the Ohio River, and so much of the Big Sandy River as was formerly included in the Commonwealth of Virginia; and all territorial rights and property in, and jurisdiction over, the same, heretofore reserved by and vested in, the Commonwealth of Virginia, are vested in and shall hereafter be exercised by, the State of West Virginia. And such parts of the said beds, banks and shores as lie opposite, and adjoining the several counties of this State, shall form parts of said several counties respectively."

The only other statute having special application to the question in hand, and one much relied on by defendants, is an act of the General Assembly of Virginia, of January 16, 1802, 2 Va. Statutes at Large, p. 317, quoted by Judge Snyder in full in Barre v. Fleming, 29 W. Va. 314, 317, 1 S. E. 731, 733, providing, after the preamble:

"That no grant issued by the register of the land office for the same, either in consequence of any survey already made, or which may hereafter be made, shall be valid or effectual in law to pass any estate or interest therein."

And in his opinion Judge Snyder goes into the history of the common law, and of the various statutes and judicial decisions, state and federal, affecting the rights of the public and of riparian owners of land bordering upon the Ohio River and other waters of this State and of the United States, which need not be repeated here. The grant involved in that case was one to General Washington, antedating said act of 1802, and was held not to be affected by the statute. But in the same connection Judge Snyder expresses doubt as to whether the statute was intended, or should be construed as denying the right to grant the banks and shores along any part of the Ohio River; the doubt, however, is to be interpreted with reference to the kind of a case he then had under consideration. That case involved the question whether the defendants, the Flemings, were entitled to an abatement of the purchase money on a lot in Ravenswood purchased from plaintiff, because in Town of Ravens-wood v. Flemings, 22 W. Va. 52, 46 Am. Rep. 485, they had been perpetually enjoined from erecting a wharf thereon for their private business without the consent or permission of the municipal authorities, their deed purporting to convey the lot bounding the same on the river to...