Wood v. Chi., R.I. & P.R. Co.

• Decision Date: 22 March 1883
• Citation: 60 Iowa 456,15 N.W. 284
• Court: Iowa Supreme Court
• Parties: WOOD AND OTHERS v. CHICAGO, R. I. & P. R. CO.

60 Iowa 456

15 N.W. 284

WOOD AND OTHERS

v.CHICAGO, R. I. & P. R. CO.

Supreme Court of Iowa.

Filed March 22, 1883.

Appeal from Wapello district court.

Action to recover possession of certain land in the city of Ottumwa. The land in question is a part of the bed of the Des Moines river between high and low water mark on the north side. The defendant, and those under whom it claims, have maintained and operated a railroad across the land since 1859. When the land was first thus occupied the Des Moines river was, in contemplation of law, a navigable stream, and remained so until 1865, when, by act of congress, it was declared non-navigable. The plaintiffs are the owners of the land lying north of the river at the place in question, and extending to the river. There was a trial to a jury, and verdict and judgment were rendered for the defendant. The plaintiffs appeal.J. W. Dixon and H. B. Hendershott, for appellants.

Stiles & Lathrop, for appellee.

ADAMS, J.

The road was constructed by the Keokuk, Fort Des Moines & Minnesota Railroad Company. The defendant claims under it. The river being a navigable stream at the time that company entered upon the land and constructed its road, its occupation was rightful so far as the riparian proprietorswere concerned, and remained so, at least, until the stream was declared non-navigable. So far we think that there is no reasonable ground for controversy. Tomlin v. Railroad Co. 32 Iowa, 106. During that time, at least, the riparian proprietors owned the fee only to high-water mark. The plaintiffs, then, cannot complain unless the act of congress had the effect to extend their rights. The plaintiffs contend that it did have such effect by giving them the fee to the middle of the stream. The court held otherwise, giving an instruction in these words: “It is claimed by the plaintiffs that since said conveyances were executed (being those under which they claim) the said river has been by act of congress declared non-navigable, and that the plaintiffs, by reason of their ownership upon the bank of said stream since said act was passed, own to the center of the stream. But upon this point the court instructs you that the said act of congress, declaring the said river non-navigable, would not extend the former boundaries of the plaintiff's land. When the said Wood received his deed it gave him no right beyond ordinary high-water mark, and it was the same as though so expressed in the deed, and the said act of congress would not have the legal effect to extend his boundaries as claimed by the plaintiffs, and the plaintiffs claiming through him, and deriving their right from his title, are limited to high-water mark.” The plaintiffs assign the giving of this instruction as error.

The plaintiffs contend that it is not true that the deed under which they claim gave their ancestor no right beyond high-water mark. They contend that he had rights beyond high-water mark as a riparian proprietor, and that, too, though the stream was navigable; citing Musser v. Hershey, 42 Iowa, 361;Railroad Co. v. Schurmer, 7 Wall. 287; and Yates v. Milwaukee, 10 Wall. 504. In the last case MILLER, J., said: “This riparian right is...