Webb v. Board of County Commissioners

257 P. 966, 124 Kan. 38, 1927 Kan. LEXIS 173

• Court: Supreme Court of Kansas
• Decided: July 9, 1927
• Docket: No. 27,335
• Status: Published

Opinions

The opinion of the court was delivered by

Marshall, J.:

The plaintiff sued to recover for gravel taken from the Neosho river to be used on public roads in Neosho county. Judgment was rendered in favor of the plaintiff, and the defendant appeals.

The cause was tried without a jury, and findings of fact and conclusions of law were made as follows:

“The issues submitted to the court in this case pertain to the navigability of the Neosho river. If the court finds under the facts submitted and the law that the Neosho river is a. navigable stream then and in that event the judgment and verdict must be in favor of the defendant, otherwise it would be in favor of the plaintiff.

“1. The Neosho river where it passes through or by the lands in litigation in Neosho county, Kansas, is a meandered stream, and the lands were described in the patents, at least part of them, as lots along said river.

“2. In early days there were used on said river at one or more places ferry boats. This was before the county had been supplied with bridges.

“3. The evidence shows that in early days some logs were floated or rafted in parts of the river to a mill or mills located on said stream.

“4. Light boats, some run by motor power, have been used on the river for the transfer of passengers for pleasure and to a very limited extent for hire.

“5. There was evidence introduced showing that at one time while the river was at ordinary height a boat traversed the river from Oswego, Kansas, to Humboldt, Kansas.

“6. In ordinary times, or ordinary stages of the water in the Neosho river, at the points in question light boats could be transferred but could not be transported any great distance up or down the river at such ordinary times without being pushed or helped over the riffles.

“7. The riffles are very shallow, and many of them, in said river as it runs through Neosho county.

“8. The Neosho river has never been used for the transportation of the products of the country along said river in Neosho county, Kansas, such as corn, wheat, oats, hay, cattle, hogs, or other stock.

“9. The Neosho river as a watercourse through Neosho county, has never been susceptible of use for the purpose of commerce and has not possessed a capacity for valuable floatage in the transportation to market of the products of the country through which it runs, and has never been of practical usefulness to the public as a highway in its natural state.

“10. It is admitted by the defendant that quantities of gravel were taken from the lands of the plaintiff, but not in the quantity nor value as alleged by him.

“11. The court finds the amount of gravel taken as follows, and of the value of 8568.60 at ten cents per yard.

“Conclusions of Law.

“1. Although the Neosho river is a meandered stream through Neosho county, Kansas, at the points where the gravel was taken from the lands in litigation, yet in its capacity for transportation of passengers, goods, and merchandise not being practicable, the Neosho river is not a navigable stream in fact, and the riparian owners along said stream own the land to the thread or' center of the stream.

“2. Judgment will be rendered for the plaintiff in the amount of 8568.60', and that the plaintiff recover his costs.”

1. The principal question to be determined in this action concerns the navigability of the Neosho riyer in Neosho county.

In 29 Cyc. 289 it is said:

“Water is navigable in law, although not tidal, where navigable in-fact, and is navigable in fact where it is of sufficient capacity to be capable of being used for useful purposes of navigation, that is, for trade and travel in the usual and ordinary modes.”

In Kregar v. Fogarty, 78 Kan. 541, 96 Pac. 845, this court declared that “the fact that a government surveyor meandered the banks of a-river is evidence that the river was navigable, but is not conclusive of that fact,” but that “there is no legal fiction that a stream not navigable in fact is still to be held navigable as a matter of law” (p. 547).

In Oklahoma v. Texas, 258 U. S. 574, 586, the supreme court of the United States used the following language:

“Navigability in fact is the test of navigability in law, and that whether a river is navigable in fact is to be determined by inquiring whether it is used, or is susceptible of being used, in its natural and ordinary condition as a highway for commerce; over which trade and travel are or may be conducted in the customary modes of trade and travel on water.”

2. Did the plaintiff own the land to the thread of the Neosho river? In Kregar v. Fogarty, 78 Kan. 541, 549, 96 Pac. 845, this court said:

“Under the common law of this state the title of a riparian owner upon unnavigable waters extends to the thread of the stream.”

In Piazzek v. Drainage District, 119 Kan. 119, 237 Pac. 1059, this court said:

“The terms ‘public waters’ and ‘navigable waters’ are ordinarily synonymous. The term ‘private waters’ is ordinarily used to designate nonnavigable waters. The title to the beds of nonnavigable rivers is in the riparian owners and not in the state.” (Syl. J 1.)

In Railroad Company v. Schurmeir, 74 U. S. 272,287, the supreme court of the United States said that “proprietors, bordering on streams not navigable, unless restricted by the terms of their grant, hold to the centre of the stream.” That rule was followed in Kirby v. Potter, 138 Cal. 686, 687, and that language was there quoted.

Neither Kregar v. Fogarty nor Piazzek v. Drainage District conflicts with Wood v. Fowler, 26 Kan. 682; Dana v. Hurst, 86 Kan. 947,122 Pac. 1040; State, ex rel., v. Akers, 92 Kan, 169, 140 Pac. 637; or Winters v. Myers, 92 Kan. 414, 140 Pac. 1033. What was said in the four last-mentioned cases concerned either the Kansas or Arkansas rivers, both of which were then or had been declared navigable streams. The meandering of those streams by government survey was considered as evidence to assist in determining whether or not they were navigable. That fact marks the distinction between Kregar v. Fogarty and Piazzek v. Drainage District and the present action on the one side and Wood v. Fowler, Dana v. Hurst, State, ex rel., v. Akers, and Winter v. Myers, on the other side. The contest in Kregar v. Fogarty involved the title to the bed of the Smoky Hill river near Fort Riley at a place where the river had been meandered in the government sürvey. The court held that the river was not navigable, and stated that the right of the riparian owner extended to the thread of the stream. The determination of the present controversy is controlled by Kregar v. Fogarty.

The judgment is affirmed.