Wickouski v. Swift

• Decision Date: 23 April 1962
• Docket Number: No. 5398,5398
• Court: Virginia Supreme Court
• Parties: ANDREW P. WICKOUSKI, ET AL. v. RUSSELL O. SWIFT, ET AL. Record

Page 892

124 S.E.2d 892

203 Va. 467

ANDREW P. WICKOUSKI, ET AL. v. RUSSELL O. SWIFT, ET AL.

Record No. 5398.

Supreme Court of Appeals of Virginia

April 23, 1962.

DuVal Q. Hicks, Jr. (Frank B. Beazley; Peyton Farmer; Hicks, Gouldman & Cox; Mahon & Farmer, on brief), for the appellants.

Julien J. Mason, for the appellees.

JUDGE: SNEAD

SNEAD, J., delivered the opinion of the court.

Russell O. Swift and Charlotte R. Swift, his wife, co-owners of a portion of a pond, filed a bill in chancery against three brothers, Andrew P., Joseph and Michael Wickouski, also co-owners of a portion of the pond, and against Michael Kulynych, owner of another portion of it. Complainants prayed that an injunction be issued enjoining and restraining the defendants from boating, trapping, fishing and from inviting others to fish on their portion of the pond and that the complainants be permitted to erect a fence across the pond to prohibit boats from entering their portion of it. On November 20, 1959, a temporary injunction was issued substantially as prayed for in the bill, which remained in effect until the case was heard ore tenus and decided. By decree dated March 4, 1961, the injunction was made permanent and complainants were authorized to erect a fence across the pond at their northern boundary line. The entry of this decree gave rise to this appeal.

The nonnavigable pond, known as 'Cosby's Pond', is a long, narrow body of fresh water situated near Guinea in Caroline county, contains 30 acres, more or less, and has been in existence for a number of years. There is a dam at the south end and its waters back upstream in a northerly direction for a distance of over a half mile. Its width between the east and west banks averages about 100 yards, and it is fed by several streams.

The titles to and boundaries of the surface and the submerged lands owned by the litigants are not here in dispute. Complainants own in fee simple 5 1/2 acres, more or less, of surface or high land and approximately 28 acres of submerged land, which they acquired from Atwill R. Melton and Virginia Melton, his wife, by deed dated June 2, 1952. The larger area of surface land consists of an arm bordering on the pond near the southwest end which extends southwestwardly to a public road and is 210 feet wide where it abuts. The balance of the surface land consists of a narrow strip south of the dam which extends northwardly on both the east and west sides of the pond to the location of the northern line of their property, which is the dividing line between complainants' property and that of defendant Kulynych. In other words, the Swifts own surface lane entirely surrounding the pond except at its north end, where the northern boundary of their land coincides with the southern boundary of the land of Michael Kulynych.

Michael Kulynych is the fee simple owner of 1.3 acres of land covered by the waters of the pond and also surface lands which abut it, which properties were conveyed to him by C. Lee Flippo and others by deed dated July 31, 1956. North of and adjoining Kulynych's section of the pond is another 1.3 acres of land covered by the waters of the pond owned in fee simple by the Wickouski brothers which they acquired from the Flippos by a separate deed on the same date. They also were conveyed surface lands which abut this parcel.

The remaining small portion of the pond is east of defendants and north of complainants. Its owner was not made a party to this cause.

The waters on the Swift and Kulynych sections of the pond are 'boatable' and a large part of the Wickouski section is likewise 'boatable'; the balance of their portion is covered by lily pads.

The record shows that the defendants, their licensees and invitees have fished from boats on the Swifts' portion of the pond from time to time. The Wickouskis admitted that they had trapped fish in their section of the pond, but denied having done so on the section owned by the Swifts or that owned by Kulynych. Swift found fish traps in his section of the pond since 1956, but did not know who placed them there. All defendants claim the right to boat and fish on the entire pond, but not the right to 'touch complainants' bed or banks' without their consent.

The dominant question presented for our consideration is whether complainants have exclusive control and use of the waters over their portion of the bed of the pond and have the right to erect a fence on their boundary line across the pond.

In Providence Forge Club v. Miller Co., 117 Va. 129, 131, 83 S.E. 1047, we said:

'Authority of the highest character is abundant that an adjoining land owner on an inland fresh water lake or pond takes to the center, the same rules applying in such cases as apply in cases of streams. Of course, the rule does not apply to the great navigable lakes to which all those reasons apply which apply to the sea itself. Hardin v. Jordan, 140 U.S. 371, 11 Sup.Ct. 808, 35 L.Ed. 428. A fortiori is it true that the adjoining land owner will take to the center of an artificial pond, like that under consideration, which is created by damming an ordinary stream, unless he has excluded himself from such right by deed or contract.'

Later in Improved Realty Corp. v. Sowers, 195 Va. 317, 323, 78 S.E.2d 588, we stated:

"* * * In the case of inland lakes where the titles of the several riparian owners include the land covered by water, they may, as a general rule, together with their lessees and licensees, use the entire surface of the lake for boating and fishing, so far as they do not interfere with the reasonable use of the water by other riparian owners.' 22 Am. Jur., Fish and Fisheries, § 21, p. 682. Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808, 35 L.ed. 428 at p. 436; Taylor Fishing Club v. Hammett (Tex. Civ. App.) 88 S.W. (2d) 127, 130; Annotation, 5 A.L.R. 1056.'

The rule was approved in the recent case of Leake v. Richardson, 199 Va. 967, 977, ...