Title to land bordering on a navigable stream extends to low water mark subject to the rights of the public to navigation and fishery between high and low water and in the case of land abutting on creeks and non-navigable rivers to the middle of the stream, but in the case of a non-navigable lake or pond where the land under the water is owned by others, no riparian rights attach to the property bordering on the water, and an attempt to exercise any such rights by invading the water is as much a trespass as if an unauthorized entry were made upon the dry land of another.
Appellee husband (Frank Miller), with others including his brother (Rufus Miller), owned lands on a creek and organized a corporation to which they leased so much of the lands as would be covered by the backing up of the water as a result of the construction of a dam they proposed to erect across the creek. The dam was built, forming an artificial lake. Corporation granted to husband the exclusive right to fish and boat in the artificial lake. Appellee granted to decedent a one-fourth interest in husband's fishing, boating, and bathing rights and privileges. Decedent died. Executors of brother's estate granted a license to appellant purporting to grant to appellant permission to use the lake. Appellee and his wife filed a bill in equity seeking an injunction to prevent appellant from using the lake. The trial court issued the injunction.
Can an easement in gross be established by prescription?
Judgment affirmed; appellee husband acquired title to boating and fishing privileges by grant and he and decedent to bathing rights by prescription; he made a valid assignment of a one-fourth interest in rights to decedent; but the rights could not be commercially used and licenses granted without appellees' consent.
In the present case it seems clear that it was not the intention of Frank Miller to grant, and of Rufus Miller to receive, a separate right to subdivide and sublicense the boating, fishing and bathing privileges on and in Lake Naomi, but only that they should together use such rights for commercial purposes, Rufus Miller to be entitled to one-fourth and Frank Miller to three-fourths of the proceeds resulting from their combined exploitation of the privileges. They were to hold the rights, in the quaint phraseology of Mountjoy's Case, as "one stock." Nor do the technical rules that would be applicable to a tenancy in common of a corporeal hereditament apply to the control of these easements in gross. Defendant believes that, as a tenant in common of the privileges, Rufus Miller was entitled to their use, benefit and possession and to exercise rights of ownership over the same, including the right to allow third persons to use the same, subject only to the limitation that he must not interfere with the rights of his co-tenant. But the very nature of these easements prevents their being so exercised because of the legal limitations upon their divisibility - that they should be utilized in common, and not by two owners separately. Moreover, the court was also was of the view that this was evidently the intention of the brothers.
Thus, the court is of the opinion (1) that Frank Miller acquired title to the boating and fishing privileges by grant and he and Rufus Miller to the bathing rights by prescription; (2) that he made a valid assignment of a one-fourth interest in them to Rufus Miller; but (3) that they cannot be commercially used and licenses thereunder granted without the common consent and joinder of the present owners, who with regard to them must act as "one stock." It follows that the executors of the estate of Rufus Miller did not have the right, in and by themselves, to grant a license to defendant.