# State ex rel. Cates v. West Tennessee Land Co.

> Tennessee Supreme Court · April 15, 1913 · 127 Tenn. 575

URL: https://www.frixlaw.com/law-library/cases/8300923

## Case

- **Full name:** State, ex rel. Charles T. Cates, Jr., Attorney-General v. West Tennessee Land Company
- **Court:** Tennessee Supreme Court
- **Decided:** April 15, 1913
- **Citations:** 127 Tenn. 575
- **Precedential status:** Published
- **Opinion:** Dissent by Neil
- **Judges:** Lansden, Neil
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8300923

## Opinion text

MR. Chief Justice Neil
delivered a dissenting opinion as follows:
The bill in this case was filed by the State to remove is a cloud from its title the claim of title and ownership held by the defendant, ffhe chancellor sustained! *602 a demurrer to certain parts of the bill, and subsequently dismissed the whole bill, upon the bill, answer, and proof in the cause. Prom this decree the State appealed to the court of civil appeals, and in that court the decree of the chancellor was affirmed. The case was then brought to this court on the writ of certiorari, and is now before uy on errors assigned here.
I shall not take up the errors in the form in which they are assigned, but shall merely respond to the questions raised.
1’. As to the Doherty grants: It appears from the bill that the defendants claim title to a large part of the lake under these grants, and that they were issued by the State of North Carolina in 1788, which was before the territory now covered by Reel foot Lake was ceded to the United States, and before the State of Tennessee was created, or became a body politic. It also appears from the bill that Reelfoot Lake was not formed until the winter of 1811-1812, and was then formed by an earthquake or series of earthquakes, which caused the land to sink and to-fill with water.
The parts of the bill to which the demurrers were directed, which the chancellor sustained, contained the following allegations, viz.: “That said Doherty grants were never in fact surveyed, as required by law;” that “for more than seventy-five years Doherty and those claiming under him, not only set up no claim to said land, but paid no taxes thereon, and abandoned the game;” “that said lake is a public body of water; that it *603 is both navigable in law andi.in fact, so that it, belongs to your orator in trust for all the people of the State.”
The ground of demurrer directed tso the charge, of the bill respecting the absence of a survey was properly sustained by the chancellor. Upon the issuance of a grant, all of the prerequisites must be presumed to have taken place. Overton’s Lessee v. Campbell & Lackey, 5 Hayw., 188 -189, 9 Am. Dec., 780 ; Callaway v. Sanford, 35 S. W., 775 ; Stockard v. McGary, 120 Tenn., 180 , 109 S. W., 507 .
As to the point that the grants were abandoned, there is no charge of any fact in the bill, except as quoted that those claiming under Doherty, “not only set up no claim to said land but paid no taxes thereon,” for more than seventy-five years. That an abandonment cannot be predicated upon such facts is fully shown in Phy v. Hatfield, 122 Tenn., 696 , 126 S. W., 105 , 135 Am. St. Rep., 888 , 19 Ann. Cas., 374. It is shown in that case that a perfected title cannot be abandoned, and that certainly the failure to pay taxes would not be evidence of such abandonment. Moreover, we may add that, if the rule claimed in the bill had any existence in fact, many hundreds of thousands of acres of land in this State owned in the mountains by nonresidents would long since have been forfeited to the State. On the contrary, this court has without exception enforced such claims when they were otherwise sound, although taxes, had not been paid and the owners had paid no attention to the lands for a long series of years. The demur-. *604 rer directed to this part of the bill was therefore properly sustained .by the chancellor.
The chancellor also rightly sustained the demurrer to that part of the bill which asserted in behalf of complainant any rights in the property covered by the Doh-erty grants on the ground that the lake is a body of water navigable both in law and fact, and belongs to the State in trust for the benefit of all its people. The ground of the demurrer was that the bill shows on its face that these Doherty grants were issued long before Reelfoot Lake was formed, and those under whom defendant claims had thus acquired title thereto before the creation of the lake.
It seems to require no argument to sustain the validity of the demurrer. The State of Tennessee never had title at any time to .the lands .covered by the Doherty grants; defendants deriving their title from the State of North Carolina, before, the State of Tennessee came-into existence. I. know of no law by which the happening of an earthquake can- immediately transfer title from one person to another, or by which title can be. deraigned from an earthquake. Of course, the earthquake could have no effect on the title. The land was still there. It was not destroyed. It was simply lowered a few feet beyond its former level, and covered with water, and can be identified by the lines of the. grant. The fact that land is covered by water does not preclude private ownership therein. The rule is recognized in numerous cases in this State, and everywhere else, thgt land covered by *605 a stream which is not “navigable in law” is subject to private ownership. So tbe mere fact of land being covered. by water is no impediment to ownership. It is true that, if the stream which covers the land is one which at the time falls within the description of water navigable in law, it is not subject to grant by the State, and the bill in the present case does charge that the lake is a body of water navigable both in law and fact, and for the purposes of the present discussion that fact must be taken as true. But title cannot be changed by the submergence of land through the agency even of a body of water navigable in law. Submergence does not give title. The land remains the property of the original owner nevertheless.
It was suggested in the argument at the bar that the happening of the earthquake and the consequent lowering of the surface of the land, and the subsequent covering of the bed thus formed by the inflowing of water, would have the same effect as an avulsion. I do not think that the law of avulsion could be applied to such a situation. An avulsion occurs when a river suddenly and violently changes its bed and makes for itself a new channel. The subject is illustrated and discussed at length in State v. Pulp Co., 119 Tenn., at pages 102 to 109, inclusive, 104 S. W., 437 . It also seems to apply to a case where the sea violently takes land from the shore. It is difficult to see — indeed, impossible as it seems to me — how such instances could be applied to the action of an earthquake in making a lake in the *606 manner already stated.' But let us suppose that the principle is the same; still an avulsion does not change title. This clearly appears from the authorities quoted on pages 102 and 103 of 119 Tenn., 104 S. W., 451, in State v. Pulp Co. We quote as follows, using a quotation made in the case last mentioned drawn from Harg. Law Tracts, 15:
“ ‘If a subject hath land adjoining the sea, and the violence of the sea swallows it up, but so that yet there be reasonable marks to continue the notice of it, or though the marks be defaced, yet if by situation and extent of quality and bounding upon the firm land the same can be known, though the sea leave the land again, or it be regained by art or industry, the subject doth not lose his property; and accordingly it was held by Cooke and Foster, M., 7 Jac. C. B., though the inundation continue for forty years. If the marks remain or continue, or extent can reasonably be certain, the case is clear, Id., 15.'
“The case of the Town of Shinbridge, in 18 Hen., III, is stated on page 16: ‘The river Severn had gained upon the town of Shinbridge so much that its channel ran over part of the Shinbridge lands, and lost part thereof unto the other side (Aure), and then threw it back to Shinbridge. It shall not belong to Aure, neither was it at all claimed by the king, though Severn be in that place an arm of the sea; but it was restored to Shinbridge as before. The propriety of the soil was not lost to the owners who had it before.’ .
*607 “ ‘The soil under the water must needs be of the same propriety as it is when it was covered with the water.' If the soil of the sea while it is covered with water be the king’s, it cannot become the subject’s because the water has left it. But when the land, as it stood-covered with water, did by particular usage or prescription belong to a subject, then recess'us maris, so far as the. subject’s particular interest went while it was covered with water, so far the recessus maris, vel brachii ejusdem belongs to the same subject.’ Id., 31.”
To the same effect is the following:
“Where considerable quantities of soil aré, by a sudden action of the water, taken from the land of one, this is called avulsion; but the ownership is not lost, though the surface earth is transported elsewhere; and it may be reclaimed, and the ownership reasserted. Thus, lands dedicated and accepted, subject to the trust impressed on them or remaining forever unoccupied by buildings, included all the land between the west line of Michigan avenue and the shore of Lake Michigan as it was when such lands were platted; and the title to such portion thereof as was subsequently carried away and submerged by the waters of the lake, and thereafter reclaimed by artificial means, was not lost, but by such reclamation thereof the city completely reasserted its title thereto as such title stood at the time of such dedication. City of Chicago v. Ward, 169 Ill., 392 , 48 N. E., 927 , 932, 38 L. R. A., 849, 61 Am. St. Rep., 185 .” 1 Words and Phrases, 655, 656.
*608 Certainly a bill to' remove as a cloud the title claimed by one whose land had become thus submerged could not be entertained, as no transfer of title can be made by an avulsion, any more than it can be made by an earthquake.
Prom what has been said, I think there can be no doubt that the Doherty grants must be treated as having been finally and correctly disposed of in the disposition made of the demurrer, and that in no event can complainant have any relief in respect thereof. However, I shall presently treat the case as if no demurrer had been filed on this subject, and, viewing the Doherty grants as simply a constituent part of the whole bed of the lake, and the lake as a single entity, shall cite another principle equally as conclusive as to the whole lake.
But before going to this subject it is necessary to refer to a demurrer filed to certain parts of the bill attacking the Caldwell grants, which cover the rest of the bed of the lake.
2.' This demurrer was to so much of the bill as charged in substance that these grants were void because entered by Caldwell when he was deputy entry taker. The bill did not allege that Caldwell actually made the entries himself, or negative the fact that the entry taker-himself was present and sanctioned such entry, or that the entry was made under the direction of such principal entry taker. Of course, the mere fact that the entries were made while Caldwell was deputy entry taker would not vitiate them. Besides, the statute does *609 not in terms apply to a deputy entry taker, but only to the entry taker himself; that is, the statute making entries void when made by the entry taker. Berry v Waggoner, 13 Lea, 591 . That case holds also that an entry taker is competent to make an entry for his deputy, and that an entry made by the deputy in his own name, but under the direction of the principal, would not be void, but only voidable at the instance of another enterer before grant, and not by an enterer and grantee, subsequent to the grant. But even if the act referred to could be held to include the deputy entry taker, 1 add further, and as conclusive of the whole matter, that, by chapter 175 of the Acts of 1857-58, which was several years after the Caldwell grants were issued, it is provided: “That all entries of lands made by any of the entry takers, south and west of the congressional reser vation [line] be and the same are hereby legalized and made valid.” But it is objected by the State that this statute does not specifically mention entries made' by the deputy entry taker. Such an entry would be within the reason and spirit of the act, and would be covered by it. Knox v. Emerson, 123 Tenn., 409, 415 , 131 S. W., 972 ; Wright v. Cunningham, 115 Tenn., 445 , 91 S. W., 293 .
8. I shall now recall the well-recognized general division of waters into, firstly, those which are navigable in law; secondly, those which are navigable in fact;¡ thirdly, those which are merely floatable streams. We have á body of law ua>aa tbi* subiect embraced in Elder *610 v. Burrus, 6 Humph., 358 ; Stuart v. Clark’s Lessee, 2 Swan, 9 , 58 Am. Dec., 49 ; Sigler v. State, 7 Baxt., 493 ; Holbert v. Edens, 5 Lea, 204 , 40 Am. Rep., 26 ; Goodwin v. Thompson, 15 Lea, 209 , 54 Am. Rep., 410 ; Railroad v. Ferguson, 105 Tenn., 552 , 59 S. W., 343 , 80 Am. St. Rep., 908 ; Webster v. Harris, 111 Tenn., 668 , 69 S. W., 782 , 59 L. R. A., 324; Miller v. State, 124 Tenn., 293 , 137 S. W., 760 , 35 L. R. A. (N. S.), 407, Ann. Cas., 1912D, 1086, to which I think little need be added. These cases, when taken all together, clearly and accurately define the three classes so that they may be recognized.
I pause at this point to emphasize the . importance of ascertaining and stating clearly the rules on this subject which hare been formulated by this court, and of adhering to them, and the danger of changing or modifying them at this late day. The importance of the matter consists in the fact that they are primarily and chiefly rules of property which determine the ownership of the land constituting the bea of every stream in the State, and hence are the foundations of many thousands of titles.
Here it is necessary to discuss the cases above cited, and refer to certain underlying principles.
A most noteworthy fact is that the question of navigability is always raised in the class of cases we have before us for the purpose of determining the susceptibility to private ownership of the land on which the waters rest or over which they flow, or as incident to such asserted ownership, the uses of the watercourses, *611 or tlie right to the taking of fish therein. When this fundamental purpose of the inquiry is kept in mind, much of the uncertainty and difficulty of the subject will disappear.
The real inquiry then is, always, whether the land under such and such water can be the subject of private ownership. Under the common law it was held that land underlying streams or rivers was subject to private ownership, except that lying under streams wherein the tide ebbed and flowed. Such streams, so far as the influence of the tide extended, were said to be navigable in law, of which fa-'. of course, the court could taire judicial notice. This o«»;rt in Elder v. Burrus, supra, hold the common-law rule inapplicable to this State, since we had no tidal rivers, and adopted the rule of the civil la w instead, which left the question of navigability open to proof in each case. \
In that case the contest was over an alleged shortage in land sold by the acre lying on Cumberland river. “It was agreed,” says the statement of facts preceding the opinion, “that the Cumberland was a navigable river, a great highway, and the chief outlet and inlet of commerce for the middle part of Tennessee, and also that it was not a tide water.” The trial judge charged: “That when a deed called for running to Cumberland river, thence up the river, the location of the line should be at the center of the river and not at low-water mark.” The correctness of this charge was the matter up for determination, .It was..conceded by the. court. that un *612 der the common law this would have been a correct charge as to land lying on any river above tide water; but it was held that the tide-water criterion was not the proper one to use in this State for the purpose of determining what streams are navigable in law, since Tennessee has no such streams. The reasons were elaborated as follows:
“The insular position of Great Britain, the short course'? of her rivers, and the well-known fact that there are none of them navigable above tide water but for very small craft, well warrants the distinction there drawn by the common law. But very different is the situation of the continental powers of Europe in this particular. Their streams are many of them large and long, and navigable to a great extent above tide water, and accordingly we find that the civil law, which regulates and governs those countries, has adopted a very different rule as to what are or are not navigable streams, and by it all rivers, even above tide water, provided they are navigable for ships or boats, are considered as public property.
“Now, these principles of the common [and] civil law are not in conflict with one another; they are both right and proper for the countries to which they are made to apply. In England there are no streams navigable above tide water; but the reverse is true of the Continent, and the eiid designed to be effected, both by the common and civil law upon this subject, is identical, viz.;. That navigable rivers shall not become pri- *613 yate property, but shall belong to the community at large. If the local situation of the Continent of Europe required an extension of the construction of what was necessary to constitute a navigable river, and prevented ■its restriction to tide water, much more so does that of our own country, and particularly the valley of the Mississippi. Our rivers are of immense extent and size, and navigable for thousands of miles above their mouths. So, to adopt the English principle that no river is a navigable river above the ebb and flow of the tide would be to declare that there is no river navigable in the valley of the Mississippi, and that the Mississippi, Missouri, Ohio, and Tennessee do not belong to the public, but are the property of individual owners of land upon their margins — an absurdity too monstrous to be thought of. Shall it be held that the interest of the communityi of England requires that their navigable streams should! belong to the crown as public property, but that in all the States bordering on the Mississippi and its mighty1 tributaries, these great and important highways, by! which such an amount of merchandise of every kind' and description is annually sent to market, shall belong to private individuals because the. tide does not ebb and flow in them? Surely not, unless' we are compelled' by positive law so to maintain.
“Upon what principle can it be contended that, thei I rule of the common law of England, as to what makes' .a navigable river, is obligatory in the State of Tennessee? 'I trust I have shown satisfactorily that it is one not! .adapted to our position.” •'
*614 It is perceived that the court did not undertake a definition of what would constitute a navigable stream (that is, one navigable in law) under the rule of the civil law. The view of the court on this question can only be inferred from the reference made to the great rivers, Mississippi, Missouri, Ohio, and Tennessee, and the previous expression: “We find that the civil law which regulates and governs those countries has adopted a very different rule [from the rule of the common law] as to what are or are not navigable streams, and by it all rivers, even above tide water, provided they are navigable -for ships or boats, are considered as public property” — and the expression: “Our rivers are of immense extent' and size, and navigable for thousands of miles above their mouths.”
The next case, Stuart v. Clark’s Lessee, supra, is, I think, our leading case on this' subject, the opinion in which was written by one of our greatest and most accurate judges. The contest in this case was over the ownership of an island in Nolachucky river. If the river was one navigable in law, the- grant which called to begin at the bank of the river, running thence various courses and distances to a stake on the'bank of the river, at a different point, then up the different meanders of the river to the place of beginning, would run only to the margin of the river, and would not take in the island; on the other hand, if the river was not one navigable in law, the grant would run to the center of the stream and take in the island. In order to settle the question it became necessary, therefore, for the court, *615 to establish a criterion for. determining when a river is navigable in law and when not so navigable. After referring to the principles settled in Elder v. Burrus , and to certain cases in Pennsylvania, North 'Cárolina, and South Carolina, the court proceeded to a discussion of the question. Before reproducing that discussion, T think that a reference to what was said concerning the North Carolina and South Carolina decisions will enable the court’s views to be better understood. It was said that it was settled in North Carolina that the ebbing and flowing of the tide was not the sole test of a navigable river; “that if a river be deep enough for sea vessels.to navigate, to and from the ocean, it is a navigable stream, and the boundary of the adjacent land is not the thread or middle of the channel. Wilson v. Forbes, 2 Dev. (13 N. C.), 30; Ingram v. Threadgill, 3 Dev. (14 N. C.), 59. In Collins v. Benbury, 3 Ired. (25 N. C.), 277, 38 Am. Dec., 722 , the court said a navigable stream existed when the waters were sufficient in fact to afford a common passage for people in sea vessels. The same general doctrine has been held in South Carolina. Cates’ Ex’rs v. Wadlington, 1 McCord, 580 , 10 Am. Dec., 699 .” The court then proceeded :
“It is to be remarked that the only change of the common law, effected by the adoption of the rule of the civil law with us, is the substitution of a new and more appropriate criterion of a navigable river; and that is, not the flow and reflow of the tide, but simply the fact whether the river, in the ordinary state of the water, *616 is capable of and suited to the usual purposes of navigation. In all other respects, the principles of the common law, regulating and defining the respective rights of the public and of the riparian proprietors in rivers of whatever character, remain unchanged, and are to be applied by our courts.
“But it is to be borne in mind that, although we have adopted a new test of the navigableness of rivers, different from that of the common law, still, the term ‘navigable,’ as applied to streams, is no less a word of technical meaning than at common law; and the distinction between the technical sense of the term and its common acceptation is important to be kept in view, in enquir-ling into the respective rights of the public and the riparian owners, in reference to the property in the soil, as those set forth in the opinion of the court in Webster v. Harris, supra, with the following exceptions : It is made to appear more clearly in the present case that the water touching the shore of the lake on all sides and separating the shore from the deep basins within is very shallow, and another exception which I shall presently mention. It is shown that near the shore i all around the water is very shallow, only a few inches in depth, except at two or three places, where it is perhaps four feet deep. It is more than 100 feet at every' point to deep water, and very much more than that before either of the open basins, within the lake is> *645 reached; so that it would be impossible to launch any boat applicable to rivers of the first class as defined in Stuart’s Lessee v. Clark . This consideration alone would mark the water as belonging to the second class, and hence not navigable in law.
The evidence shows that the lake is of a very irregular shape, at some points only two miles in width, at others seven or eight miles, sprawled upon the earth like water splashed on a rock, and extending itself in numerous sinuosities and angles or inlets, the latter of which are separated by peninsulas or tongues of land. In length it is about fifteen miles. It is described by the witnesses as presenting the appearance of a deadening in a forest; by others as having the similitude of water covered with the masts of ships. All over it, except in the recessed basins, which are themselves unconnected, and not much more than a mile each in extent, some much less, and five or six in number, there are trees still standing, and the snags of those which have fallen, and under the water thousands of stumps of trees that are not visible from the outside, but are a few inches under the surface. It would be impossible even for a steamboat of the light draft applicable to rivers of the second class, under the rules laid down in Stuart v. Clark's Lessee, supra, to navigate this lake, unless a lane should be cut out for it, or roadway, by removing the stumps standing under the water. Right ihere should be mentioned the second exception above .referred to. It was made to appear that a float road, as ¡it is called, in the record, was cut out by one H. M. Wii- *646 son across the lake at one point, by sawing off the stumps under the water to a depth sufficient to allow the floating of a considerable raft of logs. This was done at small cost. The evidence on the subject was introduced ii this case and relied on by the State to discredit the position, taken in Webster v. Harris, that the cost of remov ing the obstructions from the lake would be so ■ greai as that the outlay would not correspond to the benefit,' to be obtained thereby — so great, indeed, as-that it-wouK require the great resources of the federal govemmeii' to make the attempt successful. I do not think thal the evidence proves the point. Cutting out a lane ir the manner stated, a few yards wide, is one thing, am' removing all the obstructions from a lake fifteen mile; long, and of the width and shape already indicated, would be quite another. No figures are given upon - thi;-latter aspect of the case; nor are any figures given upon the expense of deepening'the lake, and making of sufficient depth its many miles of shallow water at the short all around it. And if this could be done, would it ever be done? A striking fact about this case is that the navigability of the lake is not thought of at all for its own sake, but it is sought to prove that it is navigable in law- — that is, like a first-class river — not for the purpose of having the lake cleaned out, or of ever using' i t as a navigable body of water, but solely for the purpose of .getting possession of the fishery rights and hunting1 rights on the lake, on the theory that, if liavigable ini law, the. bed of the lake and the waters resting thereon belong to the State in trust for all the people, and can *647 not be, and conld not be, granted to private persons; hence that the defendants’ grants were and are inoperative.
It is insisted, however, that the channels of Reelfoot river, or creek, and the channel of Bayou de Chién, are still distinguishable in the lake, and also the channel made by their junction, in the lake; that these channels are free of stumps and trees, and are broad enough and deep enough for the passage of large boats. It is true that the outline of the channels of these drowned streams can still be distinguished within the lake by sounding with pole or paddle, and noting the stamps of trees under the water lining the banks, although nothing oí this can be seen on the surface of the lake, which presents the appearance of a single sheet of water, the drowned streams having no current. It is true that these channels are from sixty to ninety feet wide, that they range in depth from seven to ten or eleven feet deep, and that there are only a few stumps in them. There are, however, a good many fallen trunks of trees in them here and there, and in the channel of Bayou de Chien there is an obstruction for about 100 yards of its length that reduces its depth according to the weight of the testimony to about twelve or fifteen inches, and at points to a depth less than this. It also appears that at the lower end of the lake the channel of the united stream is lost before the bank is reached, and opposite this place, according to the weight of the evidence, the water does not exceed at the bank four feet in depth, and there are stumps between the end of the channel *648 and the bank. So that this channel is cut off at the south by shallow Avater and stumps. Likewise at the northern end, where Reelfoot river enters the lake, tin water is shallow; also where Bayou de Chien enters th< lake on the north. It thus appears that the channels of deep water are as effectually cut off from the bank by shallow water and by stumps as the deep basins are. Therefore the existence of these channels does not simplify the situation at all. No ship or boat of the firs! class,- as required by the rules laid down in Stuart v. Clark’s Lessee, supra, could pass into these channels So the situation remains as found in Webster v. Harris, supra. So far as the water is fitted for navigation ni all, it is fitted only for boats of the. second class, thor of light draft, which can run over the sunken stump-And it has been proven that it is not even fitted for these. Some years ago a faithful effort was made to use such a small steamer on this water, Avith the result that it soon sank. It was used on three trips across the lower end of the lake, threading its way with the greatest difficulty, requiring more than a day to cover seven or eight miles, and finally sank on the third trip. The witnesses do not say what special thing caused it to sink, but refer it to the general difficulties of navigation in the lake. However, some of the witnesses, in; speaking of the difficulties of such navigation, say that the stumps would tear the wheels from a boat. There is a little gasoline launch which operates on the lake, carryimr tAventv or twenty-five passengers; but the witnesses say this does not draw any more water than a *649 large skiff. I do not think any one can soundly reach a conclusion that this- water is capable of being navigated by such vessels as are referred to in Stuart v. Clark’s Lessee, supra, the capability for the hearing of which is used in that opinion for marking watercourses of the1 first class; that is those navigable in law. The effort-is rather to show that it can support small boats of light1 draft, such as are “used in commerce,” on the theory ■ that, if a stream of water is large enough- and deep' enough to permit the use of any boat which is used in commerce, that stream is one which falls within the1 designation of a stream navigable in law. I have already shown the fallacy of this view under the rules laid down, in our cases.
We have been referred to decisions holding" in sub-“ stance that, although there are obstructions at places* here and there in a river that have to be removed before) the river, navigable at other places, can be made navigable for its whole length (as where a river is navigable for the most part, but there are reefs or other obstructions at intervals, where portage has to be employed to transfer freight from a point above the obstruction to a point- below), such obstructions do not destroy the navigability of the river. I see no objection to this view. A navigable river is a highway, just as a road or street is a highway, and it can be no impeachment of a highway as such that obstructions may have to be removed before its whole length can-be utilized. But who would think of calling á dense forest a highway, because it is possible to ¡cut down the trees, dig. *650 up the stumps, smooth the space thus created, and make it into a useful roadway, or highway? A strip through a forest might, in the manner stated, with sufficient labor and the application of proper materials, be converted into a turnpike, or a macadam road. It is true that through this forest there must have run at that time the two streams already mentioned. But who can know at this date, 100 years later, how deep they were, or whether they were capable of bearing boats of any kind? Their present depth indicates nothing on this head, because these channels are filled, not with their own waters, but with the waters of the lake. These two streams, as they now appear on the outside of. the lake to the north, are so shallow as that they cannot have borne any craft except canoes or skiffs. The evidence shows by immediate inference that in the winter of 1811-12, when the earthquake lowered the land on which the lake now rests, the land was covered with a dense forest, with here and there an open space. The trees stood up in the water, after the ground sank in which they were rooted, like the trees in a forest. The number of trees and their height can only be inferred at this length of time from what we know of the heavy timber growth in the Mississippi bottom, and from the thousands of stumps with which the bottom of the lake is now studded. Old men, witnesses in the case, tell us that when' they knew the lake sixty and seventy years ago. there was a great deal more timber standing in it above the water than there is now, and a great many more bodies of trees that had been broken off and were *651 resting upon the surface of the lake. This was say thirty or forty years after the earthquake, but would .represent'the condition of the lake about the time the Caldwell grants were made. Could any one with any show of reason call such a scope of country a highway? It is true that it was possible to cut down all of the trees and grub up all of the stumps, take them out of the water, and transport them to the firm ground on the outside, and the water would be left, oyer which water craft might be floated. So would the ground be left on which forest trees had stood, after the removal of the trees, and wagons and other land vehicles might run over it. But in the former case no more than in the latter could the scope of country so covered with trees be regarded as a highway before the removal of the trees and the construction of the road. I emphasize the idea or thought contained in the word “highway,” because that is the point of view from which the sovereign regards it as a trust for the people: The seas and the oceans are called the highways of the nations. Our navigable rivers are designated in this State and in others as highways. A sovereign may either own the highway or have a mere easement of passage; so it is as to rivers. The great rivers are owned as highways for the benefit of the people. In lesser rivers, capable of such service, the sovereign owns an easement of passage for the benefit of the people. So, the sovereign may own a great roadway through the country — that is, on the ground— end may have an easement of passage merely in others. But a standing forest cannot be called a roadway. *652 whether the trees stand clear in the earth, or their roots and parts of their boles or bodies stand immersed in water. I know of no ease in the books that gives-a hint that such a combination of water, stumps, and trees, to say nothing of a great sandbar, vast accumulations of mud, and thick growth of aquatic planto, can be called a highway.
Before passing from this part of the case I should notice the fact that complainant cites a number of federal cases on the subject of the navigability of streams, and gives the dimensions of a number of very small craft •that are subject to the jurisdiction of the United States .courts in the regulation of interstate commerce. These cases and the craft referred to have no bearing, as I think, upon any question- in this case. The determining ■principle on which such cases proceed is the capacity of ithe stream, no matter how small or how great, for the (purposes of interstate, commerce. But, as already pointed ■out, the purpose of making inquiry as to the navigability, ■and the grade of it, or degree, in the class of cases we .have before us, is totally different; that is, to ascertain .the ownership of the underlying earth as a basis for the assertion of the rights appertaining thereto. The soundness of the view here stated is recognized-in the most recent decision of the supreme court of the United States in the case of Donnelly v. United States, 228 U. S., 243 , 33 Sup. Ct., 449, 57 L. Ed., —. I hardly need add that the case of Illinois Central R. R. Co. v. State of Illinois and City of Chicago, 146 U. S., 387 -476, 13 Sup. Ct., 110, 36 L. Ed., 1018 , has no application, as *653 that case concerned land under the waters of Lake Michigan, one of the great inland seas of our country.
7. It is insisted that the rights of fishery do not go with the soil, even if that belongs to the defendant. The authorities are directly to the contrary.
It was said by Chancellor Kent:
‘'It, was a settled principle of the common law that the owners of land on the banks of fresh water rivers, above the ebbing and flowing of the tide, had the exclusive right of fishery, as well as the right of property, opposite their respective lands ad filum medium aquae, and where the lands on each side of the river belong to the same person he had the exclusive right of fishery so far as his land extended along the same. The right existed in rivers of that description, though they might be of the first magnitude, and navigable for rafts and boats, though they are subjected to the jus publicum, as a common highway or easement for navigable purposes.” Comm. (12 Ed.), vol. 4, p. 412.
Washburn says:
“At common law the right to take fish belongs so essentially to the right of soil in streams where the tide does not ebb and flow that, if the riparian proprietor oto upon both sides of the stream, no one but himself may come within the limits of his land and take fish there.’? Easements and Servitudes (4 Ed.), p. 561.
Farnham says:
“When the soil over which the water runs and the water itself belongs to the same person, the owner cannot be correctly said to have a right of fishery,' because *654 the land and its profits are so completely identified as his inheritance that they cannot be separated. Therefore the fishery is included in land and water; and since, in the absence of express reservation, land includes water, a grant of land will include both water and fishery.” Farnham on Waters, p. 13T6. “Again, since the right to fish follows the title to the soil, there is no public right of fishery in a lake the title to the bed of which is in private ownership.” Id., 1427.
G-ould says:
“Where a fresh, navigable river is held to be private property, the crown or State and the public have no rights in it which are not connected with navigation.” Gould, Waters (2d Ed.), sec. 46, p. 109.
We are referred to Willow River Club v. Wade, 100 Wis., 86 , 76 N. W., 273 , 42 L. R. A., 305, as laying down a different doctrine, and so it docs. That case holds that, although the riparian owner owns the land lying under a stream of water, yet the fishing rights in the water belong to the public, and not to such riparian owner, although, as we infer, he might own both sides of the stream. This is not the common law, and cannot be followed in this State. We are also referred to Lamprey v. State, 52 Minn., 181 , 53 N. W., 1139 , 13 L. R. A., 670, 38 Am. St. Rep., 541 . That case, while adhering to the common-law rule that fisheries.in streams navigable in law belong to the public, and fisheries navigable in fact-belong to riparian owners,- yet states a test of. navigability in law wholly at variance with our cases, and to adopt jyhich would overrule them all. Um *655 der the Minnesota rule of navigability in law, very inferior streams would be entitled to that distinction— probably any stream that could float a commercial log, or could be used for any purposes of commerce. In Tennessee the division of streams into those navigable in law, those navigable in fact, and those merely floatable is clearly marked, as I have already shown, and I need not recur to that subject.
We are referred to the case of Peters v. State, 96 Tenn., 682 , 36 S. W., 399 , 33 L. R. A., 114, for the proposition that the State has the right to fisheries in lakes. This contention is a misunderstanding of that case. It appeared that two persons owned a lake in Lauderdale county, one person about 1,000 acres, and another forty acres; the forty acres being an arm of the lake. The case dealt with an act which made it unlawful for any one to seine for fish in any of the streams, lakes, rivers, or ponds in this State, or to take fish in any way, except by rod, line, or trot line. It is provided, however, that the act does not apply to private ponds. Peters, who owned the larger-part of the lake, was indicted for seining in this lake. His defense was that it was a private pond, and that the act did not apply. The court held that, inasmuch as another person owned an arm or part of the lake, it was not a private pond in the sense of the act, because the fish could run from one part of the lake to the other, and that neither of the owners would have the right to take fish in the interdicted manner; that, if such conduct were allowed, either might gather all of the fish into his part of the lake and destroy *656 them, to the hurt of the other.. In addition, it may be said that the statute in question would be equally appli cable iO‘ streams which, under the law of this. State, are unquestionably not navigable in law, but only navigable in fact, as to the latter class of which streams it is held that the soil under them belongs to the riparian owners and under the common law the fishing privileges; yet the legislature might lawfully prevent any one from seining in any such streams, indeed, in those which are not even floatable, but mere creeks, on the grounds stated in the opinion just referred to as to the running- of fish up and down stream in the waters flowing over the lands of different owners.
We are also referred to the case of State v. Ashman, 123 Tenn., 654 , 135 S. W., 325 . That case treated the constitutionality of an act prohibiting nonresidents from engaging in the business of taking pearl mussels or other shellfish for profit in the waters of this State, without first obtaining a permit or license from the clerk of the county court of the county where such waters are located, and payment of the privilege tax imposed upon nonresidents engaged in that business. This case did not'-concern the rights of any ripárian owner, or any person claiming a right to the soil under the water, and is- inapplicable to the present controversy..
8. It is insisted that, because for a great number of years people'' hunted and fished at will over the lake, it may be for forty or fifty years,, until in 1902 the West Tennessee Land Company united all titles in itself, and -a dew years'afterwards undertook, to. prevent the incur *657 sions of trespassers, a dedication arose in favor of the public. This question is also closed against complainant’s contention by authority. Albright v. Cortright, 64 N. J. Law, 330, 45 Atl., 634 , 48 L. R. A., 616, 81 Am St. Rep., 504; Cobb v. Davenport, 32 N. J. Law, 369. In the first of these cases a like use of a lake for sixty years was held not to carry a dedication. The first-named case; referred to the second as the leading case in New Jersey on this subject and stated its substance as follows:
“The plaintiff claimed to own a natural, nontidal lake in Morris county, called ‘Green pond.’ The actio*» was; trespass for breaking his close and fishing .in water that covered his land. The defendant pleaded the general' issue, denying that the plaintiff had an exclusive right.' to fish in said pond, set up the statute of limitations' and license from the plaintiff, and also alleged a prescriptive right to fish, by virtue of certain grants to. persons under whom the defendant claimed. A verdict 1 was rendered for the defendant, which was set aside on rule to show cause. The supreme court held that the! plaintiff had proved his title, and that the defenses bv¡ way of limitations, license, and prescription were not; sustained. Among the legal conclusions to be drawn from this case are these: That the soil under a fresh water pond in New Jersey is not in the State, but is in private ownership; that the exclusive right of fishing therein is prima facie in the owner of the soil, but may j be acquired separate from the ownership of the soil;! that the right of the public to fish in private waters! cannot be claimed by custom, or established by proof of *658 customary right; and that such right can be acquired only by grant or prescription, and must be prescribed for in a que estate. The following extract from the opinion will show both how strong was the proof of user in that case, and how closely the facts resemble those now in view: ‘The evidence in this case shows that the public in general, for a period of forty years and upwards, were accustomed to fish in the pond in question without hindrance or molestation, and the permission to do so was neither asked nor granted; that the fishery was never used by its owners, either before or since the plaintiff acquired title, as a source of pecuniary profit, but that every one, without regard to residence or tenure of lands, was permitted to fish in all parts of the pond at will, and whenever his inclination prompted him to do so; and that this privilege was exercised under prevalent impression that the fishery, in the language of one of the witnesses, was a free fishery. And it is a noticeable fact in the case that, although the witnesses who fished in the pond testify that they did so under a conviction of their right, yet no one claimed -a right personal to himself, or other than such as it was thought. belonged to the public in general. This evidence tends merely to establish a customary right in all the inhabitants and frequenters in that locality to fish in these waters, if a right to fish could be established by proof of custom. But the right of fishing, being a profit a, prendre in another’s soil, as distinguished from an easement, cannot be claimed by custom, but must be prescribed for in. a que estate. ... . The defendant' *659 cannot justify under a custom, nor will proof of a custom sustain a plea of prescriptive right, because the two rights, though they may coexist in the same land, are of a completely different nature.’ The defendant subsequently applied for leave to file an additional plea justifying the alleged.trespass on the ground that the fishery had become public by dedication. Leave was granted in order that the question might appear on the record, and the plea was then, after argument, struct out. The opinion is reported in Cobb v. Davenport, 33 N. J. Law, 223, 97 Am. Dec., 718 . The conclusions expressed by the court are that the right to fish and tahe fish in alieno solo is not an easement, hut is a profit a pendre. and can be acquired only by grant or prescription, which must be pleaded; that such a right, so universal and un - qualified as to subsist in the entire public, cannot hr gained by custom or prescription; and that the doctrine of dedication to public uses does not embrace a claim of this character.”
To same effect is Lembeck v. Nye, supra.
We are referred to Stump v. McNairy, 5 Humph., 363 , 42 Am. Dec., 437 , for the principle that, when the public has used for purposes of navigation a waterway for twenty years under a claim of right, it acquires an easement therein for the purpose indicated. The principle is sound, but has no application to a claim of fishery rights in the public, as shown in the New Jersey cases above referred to, reported in 64 N. J. Law, 330, 45 Atl., 634 , 48 L. R. A., 616, 81 Am. St. Rep., 504 , and Limbeck v. Nye, supra. The public, by hunting and fishing *660 at will in the outlying waters of an owner thereof, would no more acquire title to the waters or the right to fish or hunt thereon than the act of the same'public in picking blackberries, or hunting hickory nuts/'or shooting game on a man’s outlying land, would give title to the land.
In what has been said I have considered .all of the contentions of the parties, and reached the conclusion, soundly, as I believe, that the State is not entitled' to any relief in the present case. In my judgment, the best solution of the controversy would be to permit the case of Webster v. Harris, supra, to remain undisturbed as a rule of property controlling the special piece of property involved in this controversy. It is true, as I believe, that that case was placed upon an erroneous theory; but of this the State cannot complain, because, as a result of the application of such theory, a declaration has been made in behalf of the citizens of the State to the effect that the lake is a body of water navigable in fact, and also that it cannot be drained. As a consequence of treating the lake as a body of water navigable in fact (and one not navigable in law), the bottom of the lake is as susceptible of private ownership as if the true theory, that lakes are susceptible of private1, ownership, had been applied; but an additional right, which under the true theory would not belong to the public, was declared by the opinion — that is, the right, of Ihe public to navigate it. Also, as stated, it is declared that the lake cannot be drained. This latter nrop-osition was placed on the ground that persons who own *661 property bordering on the lake had rights of navigability in respect thereto. Ajs stated, I am of the opinion that that case has become a rule of property as to this particular property, and for the reasons given the State cannot complain, and the defendant is not complaining, and, indeed, could not, it seems, because it bought the property on the faith of that decision, and therefore in subordination to the rights therein declared.
It is urged in behalf of the State, in view of the annual catch of fish, which is very large, and of the great number of ducks and geese annually killed on the lake, that this body -of water should belong to the State, for the pleasure and profit of all of its citizens who may desire to resort thither. To this I agree. The State should buy it from the owners by private purchase, or, failing in that, should condemn it and pay for it, just' as it obtains any other private property which it needs. But inasmuch as this property, under the principles of law which I have discussed, is capable of private ownership and was sold, part of it by the State of North Carolina more than 100 years ago, and the rest of it more than sixty years ago, to private persons under whom; defendants claim and hold the title, it is not just that! the State should retake it without paying therefor a, value ascertained by contract or proper adjudication.
For the reasons stated, I am of the opinion that the bill should be dismissed, at the cost of the State.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8300923. Public record. Not legal advice.