John G. Ours, Esq.
Petersburg, West Virginia 26847
Counsel for Appellees
Clyde M. See, Jr.
See, Walter & Krauskopf
Moorefield, West Virginia 26836
Counsel for Appellant
JUSTICE WORKMAN delivered the Opinion of the Court.
Where ownership of the land underlying a man-made lake is
clear and distinct, the owner of a portion of the lake bed has
the exclusive control and use of the water above the portion of
the lake bed that he owns. Further, the owner has a right to
exclude others, including other adjoining owners of the lake bed,
by erecting a fence or other barrier to prohibit others from
utilizing the water which overlies his property.
This case is before the Court upon an appeal from the
October 4, 1990, final order of the Circuit Court of Hardy County
which granted a permanent injunction in favor of the appellees.
This injunction enjoined the appellant, Grace Development Company
(hereinafter referred to as Grace), from using a road constructed
by Grace on the land owned by the appellees, without the
appellees' permission,See footnote 1 and prohibited the appellant from using
the water overlying the land owned by the appellee. The
appellant contends that the lower court committed the following
errors: 1) the court erred in adopting the view that Grace is
entitled to use only the portion of the surface water of Shook's
Run Lake which overlies Grace's land; 2) the court erred in not
giving the proper force and effect to the easements granted to
the surface waters of Shook's Run Lake; and 3) the court erred in
not giving the proper force and effect to the riparian rights of
Grace as these rights relate to Shook's Run Lake. After
reviewing all matters of record in this case, we find no errors
were committed by the lower court and we therefore affirm.
The facts of this case center upon a man-made lake, commonly known as Shook's Run Lake, which is located behind Shook's Run
Dam. The land underlying the lake is entirely privately owned by
the appellant and the appellees. It is undisputed that a
majority of the land underneath the lake, approximately 98%,See footnote 2 is
owned by the appellees. The appellant owns a small narrow strip
of the lake located in the southeastern corner which constitutes
only about 2% of Shooks Run Lake.
Further, the facts indicate that the construction of the dam
which created the lake was made possible when each party
separately conveyed an easement to the Potomac Valley Soil
Conservation District (hereinafter referred to as Potomac
Valley). The respective easements provided for the
"construction, operation, maintenance and inspection" of a flood
retarding dam; for the "flowage of any waters in, over, upon or
through" the flood control dam; and for the "permanent storage
and temporary detention, either or both, of any waters that are
impounded, stored or detained" by the flood control dam.
The appellant is a corporation of approximately 400 shareholders which acquired ownership of some 12,000 acres of land in 1986 including 2% of Shook's Run Lake. The property was acquired so that its shareholders, shareholders' families and
guests could use the land for hunting and other recreational
purposes. Pursuant to the rules of the corporation, shareholders
were informed that "[a] small section of the shoreline of the
Shook[']s Run Lake is on the [corporation's] property," and that
"[s]hareholders, family members and guests may fish from the
shoreline owned by the corporation or from boats that are
launched from the shoreline owned by the corporation. (Please
remember that the other owners of the shoreline have the same
Accordingly, members of the corporation began using not only
that shoreline owned by the corporation, but the entire
shoreline. Moreover, members began using their boats over the
entire lake, and also tied or moored the boats, when not in use,
to the appellees' shoreline, without the appellees' permission.
Finally, in the summer of 1989, the appellant built an
access road to the southeast corner of the lake. Approximately
50% of the road was built on the appellee's property without the
appellee's consent. Based upon these facts, the appellees'
sought and obtained a permanent injunction against the appellant.
The issue of who has control over the use of surface waters above a lake bed owned by two or more adjoining land owners is one
of first impression for this Court. The appellant maintains that
the lower court erred in adopting the view that Grace is only
entitled to use that portion of Shook's Run Lake which overlies the
land owned by Grace. The appellee, on the other hand, argues that
the trial court was correct in concluding that the appellees have
the exclusive right to use the surface water over their land.
A split of authority exists among the jurisdictions which have
dealt with this issue. The majority of courts have followed the
common-law rule. Under the common-law rule, the owner of a portion
of the land underlying surface waters has the exclusive right to
control the water above that property. Beacham v. Lake Zurich
Property Owners Ass'n, 123 Ill.2d 227, 122 Ill. Dec. 14, 526 N.E.2d
154, 156 (1988). Consequently, the owner of a portion of a lake
bed has the right to exclude others, including any other owners of
the lake bed, from using his property. Beacham, 522 N.E.2d at 156-57 (citing Medlock v. Galbreath, 208 Ark. 681, 187 S.W.2d 545
(1945); Lanier v. Ocean Pond Fishing Club, Inc., 253 Ga. 549, 322
S.E.2d 494 (1984); Sanders v. De Rose, 207 Ind. 90, 191 N.E. 331
(1934); Baker v. Normanoch Ass'n, Inc., 25 N.J. 407, 136 A.2d 645
(1957); Commonwealth Water Co. v. Brunner, 175 A.D. 153, 161 N.Y.S.
794 (1916); Smoulter v. Boyd, 209 Pa. 146, 58 A. 144 (1904); Taylor
Fishing Club v. Hammett, 88 S.W.2d 127 (Tex. Civ. App. 1935);
Wickouski v. Swift, 203 Va. 467, 124 S.E.2d 892 (1962)).
Other jurisdictions have adopted a civil-law rule. Utilizing
this rule, the owner of part of the land underlying a lake has the
right to the reasonable use and enjoyment of the entire lake.
Beacham, 526 N.E.2d at 157 (citing Duval v. Thomas, 114 So.2d 791
(Fla. 1959); Beach v. Hayner, 207 Mich. 93, 173 N.W. 487 (1919);
Johnson v. Seifert, 257 Minn. 159, 100 N.W.2d 689 (1960); Snively
v. Jaber, 48 Wash.2d 815, 296 P.2d 1015 (1956)). The states which
have adopted the civil-law rule have been concerned with promoting
the recreational use and enjoyment of lakes, have an extensive
number of lakes with recreational value, or have been concerned
with attempts to establish and obey definite property lines where
several adjoining owners are involved. See Beacham, 526 N.E.2d at
157; Johnson, 100 N.W.2d at 696; Duval, 114 So.2d at 795.
The Supreme Court of Appeals of Virginia, in the Wickouski
case, had to determine a case factually analogous to the present
one. In that case, the Swifts and Wickouskis were co-owners of a
portion of a pond. The Swifts sought to keep the Wickouskis from
boating, trapping and fishing on their portion of the land and from
inviting others to use their part of the pond. 124 S.E.2d at 892.
In Wickouski, the pond at issue was a nonnavigable body of water created by a dam. Further, the title to and boundaries of the surface and submerged property were not in dispute. Finally, the majority of the pond and the land underneath it, or approximately 28 acres, was owned in fee simple absolute by the
Swifts, with the Wickouskis owning approximately 1.3 acres of land
covered by the pond. Id. at 893.
The court, following the common-law rule, held that "the
complainants [Swifts] have exclusive control and use of the waters
above their portion of the bed of the pond, and . . . they have the
right to erect a fence on their boundary line across the pond to
prohibit others from boating, fishing and trapping on their
property." Id. at 895.
Similarly, the facts of this case quite clearly demonstrate
that the appellees own the majority of the land beneath Shook's Run
Lake. Moreover, a clear harm will be inflicted upon the appellees'
use and enjoyment of their property if the appellant is permitted
to have control over the entire lake based upon a mere 2% ownership
of the lake. This harm arises from the appellant's
disproportionate amount of potential usersSee footnote 3 of the lake in relation
to the appellant's ownership. Finally, there is nothing in the
record which would indicate that when the appellees granted the
easement which allowed for the construction of the dam, that the
lake was going to bring a substantial number of recreational users
onto their land.
Based upon these facts, we also choose to follow the common-law rule in holding that where ownership of the land underlying a
man-made lake is clear and distinct, the owner of a portion of the
lake bed has the exclusive control and use of the water above the
portion of the lake bed which he owns. Further, the owner has a
right to exclude others, including other adjoining owners of the
lake bed, by erecting a fence or other barrier to prohibit others
from utilizing the water which overlies his property.
Since the common-law rule was applied in issuing the
injunction against the appellant, we find no error was committed by
the trial court.
The next assignment of error involves whether the trial court
gave the proper force and effect to the easements granted to the
surface waters of Shook's Run Dam. The appellant maintains that
the provisions of the easement granting Potomac Valley the right to
operate and maintain the dam gives Potomac Valley an easement over
the entire lake and therefore, appellees cannot renounce, rescind
or alter the rights granted under the easement to Potomac Valley.
Moreover, since Potomac Valley does not restrict the uses of the
lake, neither can the appellees.
In contrast, the appellees contend that the trial court made
no error in finding that Potomac Valley acquired no right to convey
to any other person or entity any right or interest beyond that
acquired by it, by virtue of the easements. The appellees argue
that the only right acquired by Potomac Valley was simply the right
to construct and maintain the flood control project.
It is evident from the easement granted to Potomac Valley by
the appellees that nothing more than the right to construct,
operate and maintain a dam located on the appellees' and the
appellant's property was acquired by Potomac Valley. The
appellant's attempt to persuade this Court to find anything more
than this acquisition by Potomac Valley is tenuous at best.
The language granting the easement specifically states that
the appellees as grantor
do hereby grant, bargain, sell, convey and release unto Potomac Valley Soil Conservation District . . . an easement in, over and upon a portion of the following described land . . . for the purposes of: For or in connection with the construction, operation, maintenance, and inspection of a floodwater retarding structure, designated as site [No.] or #1 in the plans for South Fork . . . Watershed, to be located on the above described land; for the flowage of any waters in, over, upon, or through such structure; and for the permanent storage and temporary detention, either or both, of any waters that are impounded, stored or detained by such structure.
However, the appellees specifically restricted the grant of
this easement in the following provision:
There is reserved to the Grantor, his
heirs and assigns, the right and privilege to
use the above described land of the Grantor at
any time, in any manner and for any purpose
not inconsistent with the full use and
enjoyment by the Grantee, its successors and
assigns, of the rights and privileges herein
Consequently when these provisions are read together, it is
obvious that the appellees did not grant to Potomac Valley any
right to convey to any other person or entity the right to use the
appellees' property for anything other than constructing,
maintaining and operating the dam. Thus, we affirm the lower
court's ruling on this matter.
The last issue raised by the appellant is whether the lower court erred in not giving the proper force and effect to the appellant's riparian rights as those rights relate to Shook's Run Lake. The appellant maintains that since it owns a portion of the shoreline of the lake it has the right to use all the water of the entire lake for recreational and other purposes without regard to the ownership of the lake bed. The appellees, however, maintain that riparian rights deal with the rights of shore owners of navigable streams and waterways and natural lakes, not man-made lakes or impoundments where the boundaries of land underlying the
water, prior to the water being impounded, were known to the
"[R]iparian rights do not stem from the ownership of the lake-
bed but from shore ownership. . . ." Johnson, 100 N.W.2d at 694.
Thus, a riparian owner is one who bases his right to use a lake
upon the fact that his land abuts upon the lake. 78 Am. Jur. 2d
Waters § 260 (1975 and Supp. 1991). Moreover, the general rule is
that riparian rights do not ordinarily attach to artificial bodies
of water which necessarily includes a man-made lake. See Publix
Super Markets, Inc. v. Pearson, 315 So. 2d 98 (Fla. App. 1975),
cert. denied, 330 So.2d 20 (Fla. 1976).
It is clear from the facts before this Court that riparian
rights are not involved since the lake is man-made and since claim
to ownership in the lake is based upon deeds acquired by each of
the parties which granted the respective parties a portion of the
Therefore, we adhere to the general rule that:
'[i]n cases where various parts of the soil
under a private lake are owned by different
persons, and in which it does not appear that
ownership was based on riparian rights, it has
generally been held that each owner has
exclusive rights to the use of the surface of
the water over his land, or at least that the
owner of a larger portion can exclude from it
the owner of a small portion.'
Wickouski, 124 S.E.2d at 894 (quoting Annotation, Rights of
Fishing, Boating, Bathing, or the Like in Inland Lakes, 57 A.L.R.2d
569, 592 § 10 (1958)).
Based upon the foregoing opinion, the decision of the Circuit
Court of Hardy County is hereby affirmed.
Footnote: 1It is clear from a review of the petition that the appellant does not dispute this portion of the judge's ruling. Assignments of error not argued on appeal are deemed waived by this Court. Syl. Pt. 6, Addair v. Bryant, 168 W. Va. 306, 284 S.E.2d 374 (1981).
Footnote: 2The appellant concedes that a majority of the land underneath the lake is owned by the appellees, but maintains that the exact percentage of ownership can only be ascertained by having the land surveyed. The appellees' ownership percentage is based upon the description of their property found in their deed to the property.
Footnote: 3The facts before the trial court indicated that Grace already has 400 members who would have access to the lake and this does not include family members and guests.