
    Railroad Company v. Platt et al.
    
      Conveyance of land — Boundary line coincident with a stream — How established from description in conveyance.
    
    A conveyance of lands situated upon a navigable stream, the description being by courses and distances from a fixed monument and establishing a boundary line coincident with the line of navigation, conveys the grantor’s title as far as the central thread of the stream.
    ( Decided June 25, 1895.)
    Error to the Circuit Court of Lucas county.
    January 17, 1876, Platt et al. brought ejectment in the common pleas court of Lucas county to recover the subaqueous ground lying between the former and present dock lines along the Maumee river and in front of a part of lot 11 in the city of Toledo. Each party asserts title in fee to such ground, and their rights depend upon the following material facts as shown by the pleadings and the stipulations upon which, the cause was submitted in the common pleas:
    In 1852, Harriet O. Hall was the owner in fee of lot 11 which included the premises in controversy. August 9, 1852, the Lake Shore company (its predecessor) commenced proceedings in the probate court to appropriate lands for railroad purposes The appropriation by metes and bounds carried the line of the company’s property thus acquired to the former dock line which was approximately parallel with the shore line and where there was available, for purposes of navigation, a depth of water somewhat exceeding nine feet. The company at once took possession of the lands acquired for landing, dock and terminal purposes (for which purposes they had been acquired), and built its dock upon the line established.
    June 21, 1855, Mrs. Hall executed to the company a deed for the same property for the express purpose of assuring its title. The description in this deed also carried the line to the former dock line, and granted the premises described “with all privileges and appurtenances to the same belonging.”
    The company took possession and constructed the docks necessary for traffic in connection with boats navigating the river and lakes, upon the dock line, which was established by authority.
    September 10, 1869, Mrs. Hall conveyed to Platt et al. a number of tracts of land, including lot 11, but expressly “reserving that portion of tract 11 which lies northwesterly of the center of the river road, the same being now in possession of the railroad company, ’ ’ such reservation including the premises now in controversy.
    Thereafter the dock line was changed for the purpose of accommodating vessels of greater draught, and the railroad company docked out to the new line thus established, completing the reconstruction of its dock in July, 1873.
    April 13, 1874, Mrs. Hall, by quit claim, granted to Platt et al. all her interest in lot 11.
    
      In the court of common pleas, Platt et al. recovered, and that judgment was affirmed by the circuit court.
    
      E. I). Potter, Jr., and George O. Greene,for plaintiff in error.
    The plaintiff! in error claims that by the original appropriation proceedings in the probate court of' Lucas county, Ohio, in August, 1852, and the subsequent deed made by Hall and wife to the railroad company in 1855, it, the railway company, became vested with the title in fee to the' bank of the river; also the land above the bank; also the shore of the river; and also the bottom of the river to the navigable waters-thereof.
    That by virtue of said deed from Hall and wife to the railway company in 1855, the plaintiff in error became vested with the fee of this land to the center of the stream, subject to the public right of way. That such was the manifest intention of the parties appropriating the land, as well as that of the owners in deeding the land in 1855, to the railroad. Morgan v. Mason, 20 Ohio, 410.
    We say in this case from the nature and position of the thing conveyed by Hall and wife to the railway company and the subsequent reservation in the deed made by Hall and wife to the defendants in error, clearly show intention on the part of Hall and wife that the fee of the property in question to the center of the Maumee river, should and did pass to the railway company.
    On the rule of law that one who owns land abutting’ and bounding- on the navigable rivers of this state owns to the center of the stream, we cite: Gavitt v. Chambers, 3 Ohio, 496; Walker v. Board of Public Works, 16 Ohio, 543; Lamb v. Ricketts, 11 Ohio, 316; Renner v. Platter, 6 Ohio, 510; Hopkins v. Kent, 9 Ohio, 14; Watson v. Peters, 26 Mich., 508; Luce v. Carley, 24 Wendell, 450; June v. Purcell, 36 Ohio St., 396; Day v. Railroad Co., 44 Ohio St., 406.
    The unlimited and uninterrupted right of access to all parts of the river in front of the property conveyed to the railway company is in law carried by the deed. There are no apt words in this deed to the railway company showing any intention on the part of those grantors to exclude the plaintiff in error from the use, occupation and enjoyment of the bed of the river, lying in front of the prenr ises conveyed. Norcross v. Griffith, 65 Wis., 599; Goodin v. Canal Co., 18 Ohio St., 169; 65 How. Prac. Rep., 211; Rippe v. Railroad Co., 23 Minn., 18; 1 Rorrer on Railroads, 402; Bridge Co. v. Paige, 83 N. Y., 178; Smith v. Rochester, 92 N. Y., 465; 3 Am. and Eng. Railroad Cases, 226; Kent v. Taylor (N. H.), 419; O'Donnell v. Kelsey, 10 N. Y., 412; Washburn E. & S., 105; 22 Am. and Eng. Railroad Cases, 90; Summer v. Leaton (N. J.), 19 Att., 884; Richardson v. Prentiss, 48 Mich., 88.
    The defendants in error having knowledge of and permitting the plaintiff in error to take actual possession of the property in dispute and improve it at a large expense and outlay, and the same being a part of its right of way and terminal property in Toledo, with main and side tracks thereon, and necessary in the daily use and operation of its road, should not be permitted to maintain an action of ejectment for the sathe, but their remedy if they have one, is by action at law to recover the value of the property taken. • Goodin v. Canal Co., 18 Ohio St., 169; Pryzbylowicz v. Missouri River Co., 17 Fed. Rep., 492; 3 McCrary, 586; Chicago v. Tayler, 22 A. & E. R. R. Cases, 123; Railroad v. 
      Kamlah, 28 A. & E. R. R. Cases, 250; Lawrence v. R. T., 30 A. & E. R. R. Cases, 309; Railroad v. McBroom, 33 A. & E. R. R. Cases, 90; Railroad v. Nye, 113 Ind, 223; Rairoad v. Redick, 17 A. &. E. R. R. Cases, 107; Cincinnati v. Kemper, 2 W. L. B., 5.
    All the owners of lot 11 were also all the owners of lot 13, and they ought not to be permitted to reap the benefit of Platt’s act or deed and then turn around and seek to avoid the effect of it. That the retention or reaping’ the benefits of a transaction by the principals, constitutes an acquiescence as effectual as the most formal authorization in advance or the most formal ratification afterwards. A different result would be a reproach to our jurisprudence. People’s Bank v. National Bank, 101 U. S., 181; Bigelow on Estoppel, 423; 7 Wallace, 592; 69 Pa. St.. 426; Weeden v. Railroad, 14 Ohio, 563; Winponny v. French, 18 Ohio St., 469.
    
      Frank II. Ilv/rd, for defendants in error.
    Assuming that Hall owned lot 11, bounded on the west by the Maumee river, what is the exact boundary line which the call of a river for such a purpose in a conveyance fixed ? It is well settled that such a call carries the boundary to the centre of the river, where it is not a navigable stream, at common law. But this is only in those eases where the river eo nomine is made the boundary. It is based upon the presumption that such was the intention of the parties to the conveyance — the ground that the grantors, ordinarily, would not care to retain the bed of the river, having parted with the upland — with its riparian rights, and that the grantee would naturally desire all the rights which, would come to him as the owner of the soil oyer which the water flows. But this is a mere presumption, which may be rebutted by any circumstances showing a contrary intent. It therefore resolves itself in each case into a question of the interpretation of the conveyance, in order that the intention of the parties may ..be ascertained. Boston v. Richardson, 13, Allen, 134; Luce v. Carley, 24 Wendell, 453; Mott v Mott, 68 N. Y., 254; Bank v. Nichols, 64 N. Y., 70; Kingsland v. Chittenden, 6 Lansing, 20; Cove v. White, 20 Wis., 454; Walker v. Board of Public Works, 16 Ohio, 540.
    In the late case of June v. Purcell, 36 Ohio St., 397, the doctrine is stated as well settled in Ohio that a grantee taking' land bounded by a river takes usque adfilum.
    
    Where any one who is the owner of the soil under the water by virtue of his grant being extended to the centre of the channel, when it is bounded by the river, he can dispose of this land under the water just as any other land he owns. He may divide it into water lots and sell them. He may convey it separately from the upland or he may sell part of it with the upland, and retain the balance, or convey it to a third party. What he has done is a question of interpretation of the conveyance from which the intention is to be derived. Gould oaa Waters, 45; Bradford v. Cressy, 45 Me., 13; Hatch v. Dwight, 17 Mass., 298; Storer v. Freeman, 6 Mass., 440; Tuler v. Hammond, 11 Pick., 213; Child v. Starr, 4 Hill, 374; Bradish, Pres., 4 Hill, 382; 3 Kent’s Commentaries, 434; Den v. Wright et al., 1 Peters, C. C., 69; 26 Mich,, 617; Chicago v. Rumsey, 87 Ill., 351; Jackson v. Hathaway, 15 Johns., 453; Trustees v. Schroll, 120 Ill., 321; The Text in Tyler on Boundaries, 123; Hall on. Seashore, 155; Moses v. The Eagle & Phoenix Mfg. Co., 62 Georgia, 456; Rivas et al. v. Solary, 18 Fla., 124.
    A riparian owner in Ohio owns to the centre of the river to which his lands are adjacent. The submerged land to that centre he owns in fee, as he does the upland. He can convey the soil under water just as he can any other land he owns ; what he has conveyed in any given case is a question of interpretation of the conveyance. If he bounds the land by the river eo nomine the g-rantee takes to the thread; if he conveys by metes and bounds the title of the grantee is limited by the boundaries fixed. His grant cannot be construed to extend beyond the boundaries, any more than if the land conveyed was dry land. Having’ definitely determined the boundaries so that any man can ascertain them, there is no room for construction or legal intendment.
    Section 9 of the act of February 11, 1848, confers the power of appropriation which the railroad company had in this case. . Iron Railroad Co. v. Ironton, 19 Ohio St., 299; Walsh v. Barton, 24 Ohio St., 28; Platt v. Railroad Co., 47 Ohio St., 336; Gilbert on Tenures, 75; 1 Redfield on Railways, 240; Mott v. Mott, 68 N. Y., 254.
    We will consider the American authorities upon the subject of rights in waters, and, first, of the right to build wharves on soil owned by the state or public.
    (1) This is a franchise which the adjacent owner enjoys from the state, subject to the public right of navigation. East Haven v. Hemingway, 7 Con., 202 ; Cohen v. Anton Awl, 52 Cal., 398; Hamlin v. Fairport Mfg. Co., 141 Mass., 37; Parker v. Rogers, 9 Oregon, 189; Houck on Rivers, 187; Wharf Case, 3 Bland, 373; Grant v. Davenport, 18 Iowa, 340; Negle v. Ingersol, 7 Pa. St., 201.
    (2) The rule in Ohio: The question has never been determined in this state. Sloan v. Benmiller, 34 Ohio St., 512; Dutton v. Strong; 1 Black, 31; Austin v. Rutland Railroad Co., 45 Vt., 242.
    (3) Consider now the ground on which it is held that the adjacent owner may build wharves where he holds the title to the soil to the centre of the river. The doctrine seems to be well established that his right depends upon the ownership of the soil, which he may exercise by carrying out the wharves to the point of navigability, subject to the supervision of the state or municipality and without making obstruction to navigation. Houck on Rivers, 188; Wood on Nuisances, sec. 490; Attorney Gen. v. Lonsdale, 9 Eq., 389; 6 Wait’s Actions and Defenses, 367; Jeffersonville v. Railroad Co., 27 Ind., 100; 1 Dillon on Mun. Corp., (3d ed.) 1155; Nicoll v. Gardner, 13 Wend., 289; Hogan v. Campbell, 8 Porter, 34; Norfolk v. City, 27 Grattan, 435 ; Del. ds Hudson Co. v. Lawrence, 2 Hun., 186; Middleton v. Pritchard, 3 Scammon, 521; Chicago v. Laflin, 49 Ills., 176; Rice v. Huddiman, 10 Mich., 141; Ryan v. Brown, 18 Mich., 207; Walker v. Board of Public Works, 16 Ohio, 544: Hickok v. Hine, 23 Ohio St., 528.
    But there is no authority for asserting this as a principle in cases where the owner of the land takes to the thread of the river which bounds it. The only authorities referred to are four, in the state of Wisconsin. Deitrick v. Railroad Co. 42 Wis., 265; Delaplain v. Railroad Co. 42 Wis., 226, Stevens v. Reiley, 44 Wis., 305; S. C., 46 Wis., 231; Cohn v. The Wausea Boom Co., 47 Wis., 322.
    
      We remark of the ease (I), the question was not involved of the ground upon which the right to erect wharves rests; (2), it was not a ease where the owner of the adjacent lands held to the thread of the river; (3), if presented, the question as to an undisputed riparian right, viz.: the right to enjoy the flow of the river, which, it is not disputed in this case, is in the plaintiff in error; (4), the point urged in the argument was that there was a difference between these natural rights, in a bank bounded upon tidal waters where the owner took to high water mark, and in a bank on a river above the tide where the proprietor owned the soil to the thread of the river. The ease simply holds that owners of the bank on tidal waters are not deprived of riparian rights, because they do not own the soil beyond the margin of the shore.
    Our conclusions are supported by the recent case of Lembeck v. Nye, 47 Ohio St., 336, where the exact question presented here arose. It is true that the case grew out of a dispute between parties who owned land bounding upon a non-navigable inland lake, and those who claim to own the bed of the lake. But the supreme court applied to the conveyances, bounded by such lake, the same rule which 'had been applied to navigable and non-navigable streams by the supreme court of the state, viz., that where one of the calls is a bounded land upon such stream, it carried the ownership of such land to the middle of the stream. So far, therefore, as the rig’ht of one owning- lands bounded by the Maumee river is concerned, it is the same as that of one owning land bounded by Chippewa Lake. People ex rel. v. Jones, 112 N. Y., 603.
    It is objected that an action of ejectment will not lie against the defendant, because it is a railroad company which has entered upon the land in controversy, for a public purpose, and it would be inequitable to permit a recovery of the land when defendant has spent large sums of money upon it with the consent and acquiescence of the plaintiff. The Ohio eases which hold this doctrine all relate to the right of way. Hornback v. Railroad Co., 20 Ohio St., 82; Railroad Co. v. Lewton, 20 Ohio St., 401; Gordin v. Railroad Co., 18 Ohio St., 169.
    Under these circumstances it cannot be maintained that the defendants in error have estopped themselves from insisting upon their right to recover their land. This case is very similar to Railroad Co. v. Robbins, 35 Ohio St., 538.
   Shauck, J.

. At the dates of the appropriation by the company and the subsequent grant of June 21, 1855, Mrs. Hall, the grantor, and the railway company, the grantee, were alone interested in what is now the subject of controversy. In the practical interpretation of its rights, acquired by the appropriation and the grant, the company took actual possession not only of the bank of the stream but of so much of the river as might be necessary to reach the established dock line at a depth of water of nine feet.

By the deed of September 10, 1869, Platt et al. acquired no title to the premises in controversy, for they were expressly excepted from the operation of the deed. Not only so, but by the terms of the reservation or exception, the grantees were notified that the grantor had, by a former conveyance, granted to the company the premises now in controversy. ■

The exception was not of “so much of -tract 11 as the railroad company now occupies,” but it was of “that portion of tract 11 which lies northwesterly of the river road, the same being now in possession of the railroad company.” This was express notice to the grantees that the company was in possession not only of the bank of the stream but all that portion of tract eleven which lay between the bank and the central thread of the stream.

On April 13, 1874, when the defendants in error received from Mrs. Ha'll the quit-claim under which they now assert title,'they found that the company had extended its docks over the.disputed premises to the newly established dock line. This had been done in the assertion' of the rights acquired by virtue of the appropriation and the deed of June 21, 1855, and with the acquiescence of Mrs. Hall to whom these parties now look as the common source of title.

The defendants in error took nothing by the quit-claim, because, not only the terms of their former deed, but the actual possession of the company, affected them with notice of the rights now asserted by the company, which rights their grantor could not then contest, since she had acquiesced in the company’s possession continuously from the date of the appropriation.

But from a consideration of the rules which prevail in the construction of grants of this character, we think the premises in controversy passed to-the company by the terms of the deed of 1855. It is true of that 'deed, as well as of the previous-proceedings to appropriate, that the Maumee river was not named as the boundary of the lands appropriated or conveyed. But by the strictest construction that could be placed upon the deed it conveyed not only the land upon the bank of the stream, but all that lay between the water’s edge and the original dock line projected where a depth of nine feet of water was available for the purposes of navigation. The terms oh the grant do not admit of any broader claim on behalf of the grantor than that she did not expressly convey to the central thread of the stream. If title to the subaqueous lands, lying between the former and present dock lines, remained 'in her, it was by virtue of a presumption operating in her favor, notwithstanding the location of the lands expressly granted, .the obvious -purposes of the grant and the limited and incidental use of which alone the lands in controversy are susceptible.

The lands were acquired by the company for landing, dock and terminal purposes. That these purposes were within the contemplation of all the parties is indicated by the location of the lands upon a navigable stream and the express grant of that portion of the stream which was necessary to make the grant available for that purpose.

The ground in controversy is insusceptible of absolute and unqualified dominion, being incidental to the shore and subject to the public right to navigate the stream. Because of the permanent character of the riparian and public rights involved, the case is broadly distinguishable from those of grants bounded on streets and highways which may be abandoned and their sites thus restored to a condition in which they may be subject to absolute and unqualified dominion. For the same reason the case is distinguishable from those of grants of lands bounded by swamps, ponds and lakes that are not navigable and are subject to drainage. The use of the stream for the purpose of navigation was not only within the contemplation of the parties to the deed from Mrs. Hall to the company)", but it was the principal and most obvious element of the value of the lands expressly granted.

These considerations would seem to justify the presumption that a g’rant of this character is to the central thread of the stream unless apt terms are employed to limit it.

And such appears to be the settled view of the courts of the country. Well considered cases in which this doctrine is held are Gavit v. Chambers, 3 Ohio, 496; Walker v. Board of Public Works, 16 Ohio, 543; June v. Purcell, 36 Ohio St., 396; Watson v. Peters, 26 Mich., 508; Luce v. Carley, 24 Wend., 451; Norcross v. Griffiths et al., 65 Wis., 599; Yates v. Milwaukee, 10 Wall, 497; County of St. Clair v. Lovingston, 23 Wall, 46.

To the application of this doctrine it is quite immaterial whether the .stream be named as a boundary of the lands granted or there be a description by courses and distances from a fixed monument whereby a line is established coincident with the stream. The doctrine regards the substance of the grant and not its form. Watson v. Peters, County of St. Clair v. Lovingston.

It is true that the common law regarded only those streams as navigable which are subject to the ebb and flow of the tides; and, in this view, the difference between riparian and littoral titles becomes unimportant, since they alike terminate at the water’s edge, the title to the residue of the alveus being in the public. While this view has been taken in some of the American cases, it cannot be regarded as the view generally received. Nor could it avail the defendants in error. The manifest result of these cases is that riparian and aivean rights are inseparable, whatever may be the nature or extent of those rights. Al vean rights appertain to the riparian title and do not depend upon title to the subaqueous land.'. That such rights are incapable of severance from the riparian title to which they are incident was distinctly held in Lake Superior Land Co. v. Emerson, 38 Minn., 406. The conclusion reached in that case was adversely criticised by the same court in Hanford v. St Paul & Duluth R. R. Co., 43 Minn., 104, where it was considered that the rights may be severed if they are of such a nature that they may be enjoyed separately from the adjacent land to which they were originally appurtenant. It was accordingly held that submerged lands lying between the high land upon the shore and the line of navigation might be severed from' such high land; and that conclusion would result from the consideration that such submerged lands, being susceptible of reclamation without interference with public rights, might become the subject of the riparian title to which access to and use of the navigable waters would attach as an incident. But it was not there held that one may own thatwhich he cannot enjoy.

Since a plaintiff in ejectment must recover, if at all, by virtue of his own title, the contention of the defendants in error would not be aided by the conclusion that the lands in controversy are incapable of private ownership.

Confining ourselves to the requirements of the ease, we conclude that the lands in controversy passed to the plaintiff in error by the deed from Mrs, Hall because they were not by clear and apt terms excepted from its operation, and for the additional reason that, it being an express grant of her lands to the line of navigation, with all the privileges and appurtenances to th e same belonging, the right asserted by the grantee is necessary to satisfy the express terms of the deed. Gould on Waters, section 179; Wood on Nuisances, section 491; Morgan et al. v. Mason, 20 Ohio, 402.

The views expressed in Lembech v. Nye, 47 Ohio St., 336, were not intended to have, and cannot have, any application to a case of this character. The lands there in controversy lay under water that was not navigable. By the clear terms of the syllabus the case was limited to lands thus situated; and in the principal opinion prominence is given to the consideration that the lake there in controversy was susceptible of private ownership, and the views here expressed were recognized as controlling in cases of navigable streams.

1 It is not necessary to consider the evidence offered by the plaintiff in error, in support of its plea of estoppel, as the right for which it contends is fully established by the stipulations.

Judgments of the Circuit Court and Court of Common Pleas reversed, and judgment for plaintiff in error.  