OWNERSHIP OF BEDS AND BANKS OF STREAMS IN WEST VIRGINIA
By Charles McElwee, Esq.

I.
Landowners who take for granted that they own the beds and banks of streams that flow through their property will be surprised to learn that the State of West Virginia, through its Public Land Corporation (P.L.C.), has publicly stated that it owns them. In fact, the P.L.C. has claimed that it owns the beds and banks of all recognized rivers and streams in West Virginia, even though some of them may be intermittent.
II.
The P.L.C. stakes its claim of ownership primarily on the 1956 decision of the Supreme Court of Appeals of West Virginia in Campbell Brown & Co. v. Elkins, 93 S.E.2d 248. To the extent that Campbell Brown provides any support for the P.L.C.'s position, it is limited to the State's ownership of the beds and banks below the low-water mark of one class of streams -- those that have served or are capable of serving "as a means of transportation and commerce," or that are "in fact navigable for boats and lighters, and susceptible of valuable use for commercial purposes. . . ." Such streams, which are deemed to be navigable, comprise the smallest number of streams in West Virginia. Campbell Brown's holding has no applicability whatever to streams with lesser flows, sometimes referred to as floatable and non-floatable, which comprise the great majority of West Virginia's watercourses. Moreover, Campbell Brown was wrongly decided.
Campbell Brown involved a controversy between the Public Land Corporation and Howard Elkins as to the ownership of the bed and banks of a segment of the Guyandotte River in Lincoln County. The P.L.C. claimed ownership on the basis of its navigability; Elkins on the basis of mesne conveyances from Samuel Smith who had acquired title by Letters Patent from the Commonwealth of Virginia in 1796 and 1797. The court resolved the issue in favor of the P.L.C., holding that "the bed of the Guyandotte River, as well as other navigable streams within the boundaries of West Virginia, between the low water marks thereof belongs to the State of West Virginia." 93 S.E.2d at 266. The only authority cited by the court for this statement, which it characterized as an "axiom," was Town of Ravenswood v. Fleming, 22 W.Va. 52 (1883).
Town of Ravenswood was cited by Campbell Brown for two propositions: (a) that an act of the Virginia Assembly adopted in 1780 (10 Hen. St., ch. 2, p. 226) and the Virginia Codes of 1819, 1849, and 1860 showed that Virginia "has always asserted the right in its exercise of sovereignty to control the bed, shores and banks of all the navigable waters within the commonwealth"; and (b) that the West Virginia Constitutions of 1863 (Art. I, §1) and 1872 (Art. II, §1) evidence an intent that the State "would have control of the streams lying within the boundaries of the State." Id. at 262-63. (Emphasis added). Both statements are incorrect.
The Virginia Act of 1780 and post-1802 codes and the referenced sections of the West Virginia Constitutions of 1863 and 1872 had no applicability whatever to the pre-1800 Commonwealth grants to Samuel Smith. The 1780 Act related solely to lands "in the eastern parts of the commonwealth" and the codes were not retrospective as to grants made prior to 1802 in the western parts of the commonwealth. Barre v. Flemings, 1 S.E. 731, 733, 738 (W.Va. 1887), which was not cited by Campbell Brown, stated that the 1780 Act "had no reference to lands west of the Alleghanies" and "[t]he only [Virginia] statute relating to the rivers in this state is the act of January 15, 1802. . . ," which that same court said was not "retrospective . . . as to grants theretofore issued and then in force."
If by "control" the Campbell Brown court meant that the West Virginia Constitutions of 1863 and 1872 evidence an intent that the State owns the beds and banks of all streams in West Virginia, then the court was plainly wrong. First of all, the only stream mentioned in Art. I, §1 of the 1863 State Constitution is the Ohio River and the only streams mentioned in Art. II, §1 of the 1872 State Constitution are the Ohio and Big Sandy Rivers. Secondly, the obvious purpose of the referenced sections of the two State Constitutions was to define those parts of the Commonwealth of Virginia that would constitute and form the State of West Virginia (see first sentence of Art. II, §1 of the 1872 State Constitution), and to specify the counties of which the beds, banks and shores of the Ohio and Big Sandy Rivers would be a part. Thirdly, the State could not claim for itself ownership of beds and banks of streams that were then owned privately under Virginia law without compensating the owners.
After citing Town of Ravenswood, the Campbell Brown court stated: "This axiom [that the State owns the beds of all navigable streams in West Virginia] is true unless the Samuel Smith grants contained in the Letters Patent, dated June 29, 1797, and June 13, 1796, respectively, covering, as alleged in the answer, portions of the counties of Cabell, Wayne, Putnam, Logan and Mingo, serve to vest in the defendant by mesne conveyances, as alleged in the answer, as a riparian owner, title to the bed of the Guyandotte River where the defendant is such owner." 93 S.E. 2d at 266. After posing the question, the court immediately responded: "After a careful consideration we are of opinion that the defendant is not entitled to prevail on the ground of the allegation as to the Samuel Smith grants [of 1796 and 1797] contained in the defendant's answer." Id. at 266-67. The court thereupon quoted the Virginia Act of January 15, 1802 and pt. 2 of the syllabus to the case of Norfolk City v. Cooke, 27 Grat., Va. 430 (1876). The 1802 Act declared that "no grant issued by the register of land office for [the banks, shores and beds of the rivers and creeks in the western parts of this commonwealth, which were intended and ought to remain as common to all the good people thereof], either in consequence of any survey already made, or which may hereafter be made, shall be valid or effectual in law to pass any estate or interest therein." The Norfolk City syllabus point reads: "A patent for land constituting a part of the bed of a navigable river, conveys no title to it."
The same court that decided Campbell Brown had earlier concluded that the Act of 1802 was not to be retrospectively applied "to grants theretofore issued and then in force." Barre v. Flemings, 1 S.E. at 738. The Samuel Smith grants involved in Campbell Brown were issued in 1796 and 1797. The Norfolk City case, from which the Campbell Brown court quoted, had no relevance whatever to non-tidal waters or to pre-1802 grants of land in West Virginia for it involved a Commonwealth patent issued in 1873, long after the General Assembly had in 1780 and 1792 prohibited the further granting of the beds and shores of rivers and creeks "in the eastern parts of this commonwealth, which have remained ungranted by the former government, and which have been used as common to all the good people [of the commonwealth]." Barre v. Flemings had earlier recognized the irrelevance of Norfolk City to the question of the ownership of the beds and banks of navigable rivers in West Virginia because it was "controlled by a statute relating only to the tide-water section of Virginia." 1 S.E. at 735. Surprisingly, the Campbell Brown court made no reference to Barre v. Flemings, which was not only a later and companion case to Town of Ravenswood, but which repudiated or clarified much of what was said in Town of Ravenswood.
While the length and intricacy of the Campbell Brown decision, and especially its focus on the navigability of the Guyandotte River, command submission to its results, a painstaking review of the opinion reveals that the court was light-minded in its analyses and plainly wrong in its conclusions. It should be reversed. The court's holding that the bed and banks of the Guyandotte River in Lincoln County belonged to the State constituted an unlawful taking of Howard Elkins' property without just compensation.
III.
According to the then laws of England and of Virginia, the State of West Virginia does not own the beds and banks of any stream, whether navigable-in-fact or not, that flows into the Ohio River and which were included within property granted by the English Crown or the Commonwealth of Virginia to private landowners prior to the Virginia Act of 1802.
The State of West Virginia also does not own the beds and banks of a stream, which is neither a river nor a creek, that flows into the Ohio River and which were included within property granted by the Commonwealth of Virginia to private landowners after the Virginia Act of 1802.
In order for the State, through its P.L.C., to maintain under the Virginia Act of 1802 a claim of ownership of beds and banks of rivers and creeks which were included within property granted by the Virginia Land Office to private landowners after that date, a host of legal and factual issues would have to be resolved in the State's favor. Some of those issues are (1) whether the reservation contained in the 1802 Act is void for indefinitiveness? (2) whether the Land Office in making the grant interpreted the 1802 Act as having no application to the portion of the stream conveyed; (3) whether the stream at issue is a river or creek under the 1802 Act?; (4) whether the adjective clause in the 1802 Act commencing with the words "which were intended" is restrictive or non-restrictive (the Virginia General Assembly in adopting the 1849 Code construed the clause as being restrictive); (5) if the clause is restrictive, whether the portion of the river or creek conveyed had been used as a "common" prior to 1802? (6) is the public's right to use beds and banks of rivers and creeks reserved as common by the 1802 Act limited to fishing, fowling and hunting?; (7) did the Commonwealth of Virginia and the State of West Virginia, respectively, relinquish any reserved title it may have had under the Act of 1802 to the beds and banks of rivers and creeks by virtue of the Va. Code of 1860 (Sec. 41, p. 542) and the W.Va. Constitution of 1872 (Art. 13, Sec. 3; repealed effective July 1, 1993)?
Endnotes
1. This article, which is an abridgement of a much longer paper on the subject, relates only to ownership of the beds and banks of streams in West Virginia that flow into the Ohio River. It does not relate to the ownership of the beds and banks of streams that flow eastward into the Chesapeake Bay, nor to rights and interests in, or federal regulation of, waters, including wetlands. The space allotted for this article will not permit citation to extensive supporting authority for many of the propositions stated.
2. Mr. McElwee is with the Law Firm of Robinson & McElwee, LLP, Charleston, West Virginia
3. The Public Land Corporation is a unit of the Division of Natural Resources and is vested by statute "with the title of the state of West Virginia in public lands, the title to which now is or may hereafter become vested in the state of West Virginia by reason of any law governing the title of lands of the state [except] those lands for which title is specifically vested by law in other state agencies, institutions and departments." W.Va. Code, §20-1A-1.
4. In an article entitled "Streambed Ownership in W.Va." which appeared at page 33 of the June 1994 issue of Wonderful W.Va. Magazine, James H. Jones, Administrator, Office of Real Estate Management of the West Virginia Division of Natural Resources, stated:

Today, there are approximately 9,000 recognized rivers and streams in the state, even though some of them may be intermittent at times, totaling some 34,000 miles of riverbeds and streambeds. The title of these is held for the State of West Virginia and administered by the Public Land Corporation. That totals up to more than 100,000 surface acres of rivers and streams in the state.

Emphasis added.

In a meeting which the author had with Mr. Jones in March 1999, he somewhat limited the breadth of the sweeping statements he had made in the June 1994 article quoted above. In the March meeting, he stated that it is the "policy" of the P.L.C. that it owns the beds and banks of all perennial and possibly all intermittent streams except for the beds and banks of nonnavigable streams that flow eastward into the Chesapeake Bay, which were conveyed to private landowners by the Commonwealth of Virginia prior to 1863. With the exception noted, Mr. Jones stated that the P.L.C. believes that if a stream is shown on a topo map, has a name or is known locally by a name, or has a flow more of the year than it is dry, it is a perennial stream, the bed and banks of which are owned by the State up to the normal flow line. Even if a stream flows less than six months a year so as to be an intermittent stream, the P.L.C. believes that the State may own its bed and banks.