Welles v. Bailey

• Decision Date: 31 January 1887
• Parties: WELLES v. BAILEY and others.
• Court: Connecticut Supreme Court

10 A. 565

55 Conn. 292

WELLES

v. BAILEY and others.

Supreme Court of Errors of Connecticut.

January Term, 1887.

Appeal from superior court, Hartford county

LOOMIS, J. This case involves the application, in circumstances somewhat peculiar, of the principle of accretion and reliction growing out of changes in the bed of the Connecticut river. About the year 1700, the Connecticut river, between the towns of Wethersfield and Glastonbury, flowed at a certain point in two channels, with an island known as "Wright's Island" between them. By the year 1700 the east channel had been left by the river, which now ran wholly in the west channel. The land left by this reliction in the east channel passed into private ownership, (the history of the matter being unimportant,) and in the year 1802 Samuel Welles, the ancestor of the plaintiff, acquired by purchase a strip in the old channel, containing about four acres, bounded west upon its center line, east upon sundry former riparian proprietors, and south upon a part of a lot known as the "Benton Lot," and which is now owned by the defendants. There was no northern limit of this lot given by the deed, but it was described as bounded, "north by bounds unknown." It in fact extended on the north to the line of the river, which by a gradual change of its bed was working to the southward and eastward, and beginning to encroach upon the lot at that end. By a gradual change of its bed the river has made a sweeping curve, until in 1885, when the present suit was brought, it had worked its way through the entire Welles lot, and a large part of the Benton lot south of it, replacing on its other side by alluvial deposit the Welles lot and a large part of what was the Benton lot, leaving between the Welles lot and the present channel a quantity of land within the original limits of the Benton lot. The point that arises in the case is as to the right to that part of the original Benton lot which now lies between the Welles lot and the river, but entirely on the other side of the river from that on which it originally lay. As the river changed its bed to the eastward and southward, it encroached, as has been stated, upon the Welles lot, which had originally reached it at its north end, until its whole width was within that lot; and before the south end of it had disappeared the north end had begun to emerge on the west side of the river, which by its bend was now running at this place in a south-westerly direction; and when the southern end of the lot was washed away, and the Benton lot began to be encroached upon, a considerable part of the Welles lot, so far as original boundaries are concerned, had been restored on the west side of the river. Precisely what would be the right of the original owner to this restored land, as between himself and other proprietors who might claim it by accretion, it is not necessary for us to consider, for it is conceded that the plaintiff and those under whom he claims have been for a long time in possession of this restored land, and hold an undisputed title to it.

It is not necessary for us, in our inquiry into the rights of the parties, to consider whether the Connecticut river is at this point in law a navigable or non-navigable river. It is in constant use for purposes of navigation, and the tide slightly ebbs and flows there, which would seem to make it at common law a navigable river, and especially would it be so under the rule generally adopted in the states of the Union, though never formally adopted in this state, that rivers that are navigable in fact are so in law. The only difference between the rights of riparian owners in the one case and the other is that in a non-navigable river the title of the riparian proprietors extends to the middle of the stream, while in navigable rivers it extends only to the line of high water. The law of accretion and reliction, which is the only...