
    *Home v. Richards, and e Contra.
    [April, 1798.]
    (2 Am. Dec. 574.)
    
    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.
    
      
      Navigable Rivers — Power of Commonwealth to Grant Bed. — Por the proposition that, the bed of a navigable river is in the commonwealth and cannot be granted, the principal case is cited and approved in Com. v. Garner, 3 Gratt. 695, 707; foot-note to French v. Bankhead, 11 Gratt. 136; Norfolk City v. Cooke, 37 Gratt. 433; Ravenswood v. Flemings, 22 W. Va. 64; Barre v. Flemings, 29 W. Va. 319, 1 S. E. Rep. 734.
    
    
      
      Grant of Right of Way — What Passes. — For the proposition that, the grant of a right of way does not convey the soil but only the right to pass over,, the principal case is cited and approved in western Union Tel. Co. v. williams, 86 Va. 700, 11 S. E. Rep. 106 See also, Bolling v. Mayor, 3 Rand. 563.
    
    
      
      Nonnavigable Streams — Ownership of Bed. — The proprietors on opposite sides of a nonnavigable stream own to the middle of the bed. For this proposition the principal case Is cited and approved in Western Union Tel. Co. v. Williams, 86 Va. 700, 11 S. E. Rep. 106; Hodges v. Seaboard, etc.. R. Co., 88 Va. 667, 14 S. E. Rep. 380. See also, Hayes v. Bowman, 1 Rand. 417; Mead v. Haynes, 3 Rand. 33.
    
   *ROANE, Judge.

The deed to Hunter conveyed a fee simple in all the lands it professed to grant; but those were the enumerated parcels only, and not any others. The parties, however, appear to have afterwards thought that there would be a convenience in continuing the road from Vicaris’s island to the forge; and therefore the memorandum was made; but that stipulated for a right of way merely, and did not convey the soil; which consequently passed by the deed to Richards. It is said, in opposition to this, that the plat annexed to Hunter’s deed passed the lands contained within the lines there laid down; and that these comprehend the land claimed by Richards as the place for erecting his mill: but that is an unreasonable construction, and would take in part of Dixon’s other lands; which I presume would hardly be contended for. As Richards’s grant extends to the edge of the river, he necessarily has the land on one side of it; but it is not clear to whom the bed of the river belongs; for it is not stated, in the proceedings, whether the stream is navigable in' those parts or not. If it be, it is plain that the bed is not in the appellants, as the soil of navigable rivers cannot be granted: And if it be not navigable, then the bed is not comprized, in terms, in the deed to Hunter, and the contiguous land, upon the main, did not belong to him; so that either way the appellants are not entitled to it. The bed must therefore be either in Richards, as proprietor of the main land, and consequently owner to the middle of the river, or in the commonwealth, as a public highway for all the community: which last is probably the case. But the enquiry is unimportant; for Richards, whether the bed be in himself or in the commonwealth, may, in either event, exercise full dominion over the place through which the right of passage is claimed, although the appellants will be entitled to redress, if the way should ever be refused them. There is then, no objection to Richards’s petition upon the score of title to the land where he purposes to erect his mill. And, upon the merits, independent of the title, I think he has the best claim to preference; not ^only, because his land is of greater extent, and situated on the main, which seems more consistent with the views of the legislature; but because his adversaries have two mills in the neighborhood already, which looks like monopoly. I think therefore that Richards ought to have leave to build his mill; for if the exceptions to the inquisition were more substantial than the appellants’ counsel represents them to be, they are all released. Whether the appellants should have leave to build a mill upon their petition also, may depend upon evidence not before the court; and therefore, if they wish for an opportunity to procure it, I am disposed to indulge them; but, in the mean time, I think the judgment in the other case ought to be affirmed.

CARRINGTON, Judge.

Hunter himself seems to have been of opinion that he had the privilege of a road only; and the claim to the soil appears to have been an after thought. Richards’s land, by the terms of his deed, extends to the water’s edge; and, although it is subject to Hunter’s right of way, that does not prevent him from the use of the land in every other respect; for if Hunter’s representatives are, at any time, obstructed in the enjoyment of their privilege, they will be entitled to redress by a suit for compensation in damages, or for some reasonable provision for a passage, and not to the exclusive occupation of the soil, in this particular place. There is consequently no objection to the petition of Richards upon that ground. The bed of the river is probably in the commonwealth, and therefore could not be conveyed. But it is not necessary to decide that question in this case; for as the bed is not comprized in the deed to Hunter, it must be in Richards as owner of the land on one side, if the river be not navigable ; or in the commonwealth, if it is; and either will authorize the application of Richards. As to Home’s petition, but little was said about it. He shews no title to any thing but the rocks; which were probably conveyed for a particular purpose, namely, that of being removed, in order to be used as materials *for building at some other spot, and not as a site for erecting a mill; and, if so, the appellants have nothing to rest upon. But I give no opinion upon that point now, and shall be ready to hear further evidence upon it. In the mean time, however, I think the judgment in the other case ought to be affirmed.

PENDLETON, President.

The objections to the inquisition are so far from being substantial, that they scarcely amount to informality: But be that as it may, matters of form are all released, and therefore the objections fail. Whether the court could have directed a jury to try the title, I shall not decide until the argument in the case of Wood v. Boughan, is over: but, if they had the power, they were clearly not obliged to exercise it; and therefore, the exception upon that ground, cannot be sustained. The observation of the counsel, that the law violates private rights and should he construed strictly, has but little weight with me; for none of the private rights assailed by the act, are in controversy. It might have applied to Mortimer, or to the appellants, if their lands would be overflowed by the erecting of Richards’s mill; but nothing of that sort appears, and therefore the observation falls to the ground. These works are of importance to the public; and should be favoured when not inconsistent with private rights, in the view of the legislature. The real question, then, in this case is, Whether Richards is well founded in his application for leave to build a mill? and that depends upon the rights of the parties. His title to the land on which he means to erect his mill, is clear; for the deed to Hunter only grants certain enumerated parcels, of which the land of Richards is not one, and the memorandum and plat do not change the nature of the conveyance; as the first merely stipulates for a right of way, and the latter, the limits within which it is to be enjoyed; but neither passes the soil. A right of way then, is all that the appellants have; and what is the effect of such a privilege? Although Hunter’s representatives may have *a right to point out a particular way, having due regard to convenience, yet that does not hinder the proprietor from exercising his rights as owner of the land. Whenever a request for the way is made, the claims of the appellants may be discussed, and the location of the road settled; but, in the meantime, Richards is entitled to the full exercise of his rights, as proprietor of the soil. This brings us to enquire to whom the bed of the river belonged. It is not stated in the proceedings, whether the stream, at this place, is navigable or not; but it is certain that the bed was either in Dixon, or the commonwealth. If in Dixon, he did not mean to convey it to Hunter; for his grant was only of the rocks, the islands, and perhaps the land under the rocks, but not the bed of the river: and if so, then it was embraced by the grant to Richards, or else it is in the commonwealth, as a public highway, never granted, because incapable of being appropriated to the use of a single individual. But it is altogether immaterial, whether the bed was in the commonwealth, or in Richards: for, in either case, the latter, owning the contiguous land, was authorized to apply to the court for leave to build a mill. As to the petition of Home, upon the records, taken separately, there would appear to be no reason to oppose it; but, taken together, it does not seem either necessary, or reasonable, to erect both mills. In questions concerning the grant of a privilege, diffusion into several hands, instead of a monopoly in one, is desirable: and, therefore, as Hunter’s representatives appear to have two mills in that neighbourhood already, I think Richards’s should be preferred. But I do not, by this, mean to preclude the appellants; for, if they can shew the propriety of granting them leave to build another mill, I shall be ready to hear them. I think proper to mention, however, that I also have some doubts whether the deed to Hunter passed the land under the rocks; which appear to have been conveyed for the purposes of masonry and objects at other places, instead of a site for a mill; and if so, the petition, in this case, is entirely defeated, as the petitioners would not be the owners *of the land on either side of the stream; and, therefore, could not satisfy the requisitions of the act of assembly.

The judgment, in the case of Richards’s petition, is to be affirmed, and the other case continued.

Judgment, in the case of Richards’s petition, unanimously affirmed.

In the case of the petition of Hunter’s representatives, PENDLETON, President, delivered the resolution of the court as follows :

Home v. Richards, was thought to have been settled by the former decision; but the parties desired to be heard on the evidence; and the only question now is, whether the mill would be injurious? The witnesses are divided; and the county court and district court, sitting in the neighbour-hood, have both decided that it would; and there is nothing before this court to contravene that opinion. Therefore, the judgment of the district court must be affirmed.

Judgment, in the case of Hunter’s representatives, affirmed. 
      The principal case is cited in City of Petersburg v. Applegarth, 38 Gratt. 344.
     