Home v. Richards

Navigable Rivers — Power to Grant Bed.'* — The bed of a navigable river is in the commonwealth and cannot be granted. Grant of Right of Way — What Passes.† — The grant of a right of way does not convey the soil; but the privilege of a way, to be conveniently located, only. Rappahannock- To What Point Navigable. — The river Rappahannock is probably a navigable river at Falmouth. Nonnavigable Streams — Ownership of Bed.‡ — In a river navigable, the owner of the soil on one side is proprietor of the bed to the middle of the stream.

In 1795, Adam Hunter and Patrick Home, as executors and devisees of James Hunter, deceased, and James Hunter, another of the devisees of the said James Hunter, deceased, petitioned the county court of Stafford for leave to build a mill “on their own land, lying on the waters of the Rappahannock, and to build a dam to abut upon a rock within fifty yards from the north side of said river, the said fifty yards being either the property of the said devisees, or of the commonwealth.” The jury reported that the rock is about five and twenty jrards from the north bank of the Rappahannock river; and that the erecting of the mill would not be detrimental to the health of the neighbours, nor would overflow the adjoining lands, nor injure the mansion house, curtilage, office or garden of any person, nor obstruct ordinary navigation, or the passage of fish. This petition was opposed bjr William Richards; and upon the 12th of October, 1795, the county court, on consideration of the petition, “and the evidence produced,” refused leave to build the mill; from which judgment, the petitioners appealed to the district court; where, all errors in point of form being released by the parties, and the cause agreed to be tried upon its merits, the judgment of the county court was affirmed; and from the judgment of affirmance, the petitioners prayed an appeal to the court of appeals. In 1796, William Richards, as owner of the land on one side of the river Rappa-hannock, the bed whereof he stated to be in the commonwealth, petitioned the county court of Stafford for leave to build a mill, and that an acre *'of Mortimer’s. land, situate in the said county, in an island in the river opposite to the petitioner’s land, on the north side of the north, bed of the river, might be condemned as an abutment for a dam to the mill. The jury, upon the writ of ad quod damnum, reported the acre, and stated that the lands, above and below would not be overflowed ; that fish of passage would not be obstructed, as the dam would cross but a small part of the river; and that the neighbors would not be annoyed by the stagnation of the waters. Patrick Home and Adam Hunter, as devisees of James Hunter, opposed the petition, and filed three bills, of exceptions, two of which were unimportant, and the third stated, that Richards, to prove his title to the land on one side off the river, offered, 1. A grant from the proprietors of the Northern Neck to Martha Vicaris, for 1260 acres of land, on the north side of the Rappahannock. 2. A deed from Martha Todd to John Dixon for 900 acres of land on the north side of the river, beginning at the upper end of an island; thence various courses to the river side; thence along the river, according to its meanders, including several islands, particularly the first mentioned is land, called Vicaris’s island, to the beginning. 3. Another deed from Todd to Dixon for the same land. 4. A deed from Dixon to John Richards, for all that parcel of land adjoining Falmouth, near the saw mill, joining several lines of Carter, bo'unded by those of Lewis on the west, and of James Hunter on the south, the courses as follows: beginning -■, containing 300 acres more or less, with all the islands and lots, except those where the warehouses stand, and sundry others sold before in the town of Pal-mouth. S. The will of John Dixon in 1762, which devises the upper moiety the 900 acres, including the island called Vicaris’s island, to his son John Dixon. 6. The will of John Richards, which devised the 300 acres to his son William Richards, the petitioner. The bill of exceptions further stated, that the defendants Home and Hunter, in order to prove that Richards did not own the land upon one side of the river, *and that the bed of the river was not in the commonwealth, offered in evidence, 1. The patent to Vicaris for the 1260 acres. 2. A deed from John Dixon, in 1768, to James Hunter, for “all that parcel or slipe of land lying in King George county, on the flats of Rappahannock river, beginning at the edge of the river at the mouth of the said Dixon’s mill run, on the upper side thereof, at the point of a large rock, thence running up the river to the foot of the hill opposite to the lower end of Vicaris’s island, thence back from the river a sufficient distance to make a road of a proper width for two waggons to pass each other, thence keeping the same distance from the river down a parallel course with the river to the said mill run, so that the distance between the river and the back line shall, in no place, exceed the distance that is between the spring below the overseer’s house, and the river, which spring, and the wood that is in the said slipe of land, the said John Dixon, for the consideration aforesaid, doth hereby bargain and sell unto the said James Hunter, his heirs and assigns, all his right and title to certain rocks and islands in the river aforesaid, to the extent of fifty yards from the river side, to begin from the upper side of Fal-mouth ferry, and to go as far up the riveras to the smooth water between Vicaris’s island and the main land in King George county, but so as not to extend into Vicaris’s island, for the purpose of rendering the said river navigable for batteaux, by a canal to his, the said James Hunter’s, forges, reserving to the said John Dixon, the free use of the said canal for the service of his plantation, and liberty to have access to the river for the benefit of the water at all convenient places within the bounds aforesaid: to have and to hold the said parcel or slipe of land, rocks and islands herein described, and intended to be conveyed under the reservations aforesaid, to the said James Hunter, his heirs and assigns, forever.” To which deed there is a memorandum annexed, setting forth as follows: “It is the true intent and meaning of the parties, that the said James Hunter and his heirs, shall have the ^privilege of extending the waggon road from the bottom of the hill opposite to the lower end of Vicaris’s island, as far as the forge; and that exclusive of the within consideration, the said John Dixon, while the said James Hunter’s mill is kept up, to grind toll free, when required, all the wheat and corn used in the said John Dixon’s familj’ while he resides in Fredericksburg or King George county, and also to grind, at the said James Hunter’s mill, toll free, or the use of the plantation in King George county, adjoining Falmouth, while himself or family possess it, and no longer.” The probate of this deed in the general court, is as follows: “This indenture and the memorandum of livery of seizin, thereunder written, were proved by the oaths of George Mitchell, Henry Mitchell and Neil M’Coul, witnesses thereto, and together with the plat annexed, are ordered to be recorded.” The plat consists of a sketch of the river, and a line parallel to it at eight poles distance. The parallel line is terminated at one end, by a line from a rock on the main land, to a rock in the river nine poles distant from the water’s edge; and at the other, by a line from the main land to some rocks one pole distant from the water’s edge, where Hunter’s and Dixon’s lands join, containing about nine acres of land and ten acres of rocks, &c. The same witnesses attest the deed and the plat. 3. A deed from Thornton to James Hunter for an acre of land a few yards from Vicaris’s island. 4. The will of James Hunter under which the petitioners claimed. 5. A deed from Dixon to James Hunter for seven acres of land; a waggon road or highway from Falmouth to Hunter’s iron works, through the lines of Dixon from which the seven acres are taken as the road now lies; and a lot in Falmouth. A witness proved that there was a sufficient distance for a road between Richard’s foundation for his mill, and the river. The county court,' in April 1797, granted leave to Richards to build the mill; from which judgment, Homes and Hunter appealed to the district court; where, the parties having released all errors as to form, the judgment of *the county court was affirmed; and from the judgment of affirmance, Homes and Hunter appealed to the court of appeals. Both causes were argued together in the court of appeals. For the appellants it was contended, that the circumstances of the case were so complicated, that a jury ought to have been empanneled to fay the title. That as the deed and memorandum were both upon the same paper, the memorandum was to be taken as part of -the deed, Dougl. 10; and consequently that the land upon the main as 'described in the memorandum and plat passed by the deed to Hunter; and defeated the pretensions of Richards. That, if Richards had been proprietor of the land on one side of the river, he would not have been entitled to petition, as the bed was neither in himself, nor in the commonwealth. That the inquisition was defective, and did not conform to the directions of the act of assembly; for it merely states that the neighbours would not be annoyed by the stagnation of the waters ; but says nothing as to their health ; nor the manner in which the obstruction to fish of passage was to be prevented. For the appellees, it was said, that, if Richards’s mill would be convenient, it ought to be granted; for a man, having lands on one side of the river only, may build a mill. That the land upon the river belonged to Richards, and not to Hunter; for the deed to Hunter did not convey the land, but merely a right of way, 3 Bac. Ab. 54; 2 Stra. 1004: which did not include the soil, but a right to compensation, if refused. That the court were not bound to empanel a jury to try the title, although it might not have been error, if they had done so. That the bed of the river was in the commonwealth, as it was a navigable stream; and therefore incapable of being granted to an individual. Cur. adv, vult.