Williamsburg Boom Co. v. Smith

• Decision Date: 21 October 1886
• Citation: 1 S.W. 765,84 Ky. 372
• Parties: WILLIAMSBURG BOOM CO. v. SMITH.
• Court: Kentucky Court of Appeals

1 S.W. 765

84 Ky. 372

WILLIAMSBURG BOOM CO. v. SMITH.

Court of Appeals of Kentucky.

October 21, 1886

Appeal from Whitley circuit court.

William Lindsay, for appellant, Williamsburg Boom Co.

The doctrine of Chancellor KENT, that "a grant of land bounded on rivers, or upon the margin of the same, above tide-water, carries the exclusive right and title to the center of the stream, unless the terms of the grant clearly denote the intention to stop at the edge or margin of the river," is the rule in Kentucky, (Berry v. Snyder 3 Bush, 266, and Miller v. Hepburn, 8 Bush, 326;) the dicta in the early case of Sanders v McCracken, Hardin, 266, and Fleming v. Kenney, 4 J J. Marsh. 157, being overruled. This doctrine is supported by Jones v. Soulard, 24 How. 63, and Banks v. Ogden, 2 Wall. 67.

As regards the land on the south side of the river, the right to keep and maintain the mill carries with it the right to use the river front in receiving and storing the logs. Thurman v. Morrison, 14 B. Mon. 296. Riparian rights do not attach to the ownership of the bed of the river, but to the ownership of the banks or shores. Gould, Waters, 275, 276. These riparian rights are the same whether the title extends to the center of the stream or not. Yates v. Milwaukee, 10 Wall. 504.

C. W. Lester and Hargis & Eastin, for appellee, John Smith.

HOLT J.

It is the rule of the common law that the right of land-owners bounding upon tidal waters extends only to ordinary high-water mark, and that the bed beyond it belongs to the sovereign or state, for the use of the public; but grants of land upon navigable rivers, above tide-water, vest the right to the soil ad filum aqua in the grantee, unless the terms of the grant clearly show an intention to stop at the margin of the river, subject, however, to the right of the public to use it as a highway; and the proprietor has a right to use the banks and water in any way not inconsistent with the public easement. The courts of most of the states, as well as the supreme court of the United States, have followed this rule, and it has been adopted in this state. Berry v. Snyder, 3 Bush, 266.

The patent to Charles Gatliff upon the north side of the Cumberland river, for 100 acres, issued in 1801, and that of James Gatliff, for 125 acres, opposite to it, upon the south bank, dated November 24, 1815, each call for the river and its meanders; and thereby the right to the soil under the water (conceding that public policy did not forbid its appropriation) vested in each grantee, upon his side of the river, to its thread or center, subject, of course, to the public easement in it as a highway. The patent to Andrew Craig of 1837 appropriated the bed of the river only, save a small portion of V-shaped land running back from it at one point, and which is not in contest; and to the extent that this patent conflicted with the two above named it is void, because it embraces land previously patented.

The appellee, John Smith, claiming under it, brought this action of ejectment against the Williamsburg Boom Company to recover the bed of the river between two certain points, and between which the Charles Gatliff patent called for the meanders of the river upon the north side, and the James Gatliff patent upon the south side. It appears that the boom company have leased from the present owners of the Charles Gatliff land the banks along it to low-water mark, they supposing that they owned only to that point, and not to the thread of the river, because of the Andrew Craig patent; and that it has erected upon that side of the river large log booms, to receive the logs which come down the river, until they can be manufactured into lumber by the Cumberland River Lumber Company; its mills being located upon the opposite side of the river, and it being a large stockholder in the boom company. These booms are not fastened to the bottom of the river. They are movable structures, made of logs, and held in place by ropes or "sheers," fastened to...