The Fairmont West Virginian. (Fairmont, W. Va.) 1904-1914, 1905-12-22
WHO owns COAL
UNDER STREAMS
IMPORTANT DECISION just REhi
nERED sS ATTORNEY GEN
ERAL NAY.

CHARLESTON. Dee. Some time
ago Governor Dawson saw items ia
the newspapers about proposed coal
mining operations under the bed of the
Ohio river. Believing that this coal
is the properly of the state. he address,
ed letter of inquiry to Attorney Gen
eal, and requested the Attorney
General tc take the necessary steps
TO protect the property OF the State. At
torney General May answered the Gov
enor's letter as follows:
q have the honor to answer your
letter Of July 9th enclosing cliI,-
ping from local newspaper relative
to the ownership of the beds and navi-
gable streams in this State.
Does the land under naviGable wat
ers in this State belong, first, to the
Federal Government, second, to the
State, and. third to the Riparian own
ers?
THE fact that stReam is navlgable
does not. ipso facto, give the land un-
der it to the general government but
the government and the public at large
the right of passage and commerce
over the waters, an easement for trav-
Ell, trade and maritime communication
between the States and Nations. The
right was granted by the States in the
clause of the constitution giving the
Federal Government admiralty and
maritime Jurisdiction, which was held
by Chief Justice fancy, in the Genes
see Chief Case (12 Howard, 43S) to ex-
tend to all nnvigable rivers in the
Union.
The United States agreed that so
much of the bed, banks and shores
of the Ohio river were heretofore ap-
portloned to Virginia, with Jurisdiction
and rights of property, should be vest
ed in West Virginia, on June goth, 1863,
when she was admitted into the Union.
with that clause in her constitution,
and our present Constitution. that pro
Yides that the State Of West Virginia
includes bed bank and shores Of the
Ohio riye- and so much OF the Big
Sandy River as was formerly included
in the Commonwealth of Virginia
"Then, do the river beds belong to
the State or to the abutting land own
ers?
an England the crown owned the
beds OF all navigable streams, but all
navigable streams were also tide water
streams, and .navigable' and tide wat
er' were synonymous terms. The
stateshave conflicting doctrines. In all
States land under non-navigablc
streams belong tc the riparian proprie-
tors or other individuals. In some OF
the States the riparian owners have
the property n the land under the nav
igable streams to low water mark; in
others the English doctrine pre-
walls. In the case ni
Bare v. Fleming, 20 W. Va. S14, Judge
Snyder held, after reviewing the au-
that the riparian owner along
the banks of the Ohio river owned only
to low water mark, subject to the ease
ment of the public for navigation and
commerce.
'In RavensN cod v. Fleming, % W.
Va. 81, our Supreme Court held that
the riparian land owner along the Ohio
river as against this State hold their
title only to the ordinary high water
and that the bed, bank and shores OF
the said river are held by this State in
trust for the public; but as against
airy stranger, who is not navigating
the river or exercising some public
privilege incident to the navigating a
stream, they could maintain
trespass against any one cutting tlnl-
her, removing dliftwood, coal, etc, that
might lodge thereon.
"In 1857 the Confederate Congress
passed an act making all the naviga
bic rivers leading into the st. Lawrence
and Mississippi rivers common high
ways Of the citizens Of the United
States forever.
"In 1902 the Legislature Of Virginia
passed an act citing that many per-
sons had located upon, and thereby
had laid claim on the beds. banks and
shores Of the rivers and creeks in the
western part CT the Commonwealth;
and enacting that no grant from the
land Office heretofore or hereafter
made should be valid to pass any es'
tate therein.
THE ownership of the bed Of the
Ohio river below low water mark has
been judlcially determined to belong 10
The State; and following the principles
Of law enunciated, / am OF the opinion
that the beds OF the other navigable
streams in this State, below low water
mark, and consequently all the coal
and other minerals hereunder, belong,
prima facIe. to the State; an owner.
ship which could not only be defeated
by an express alienation OF its title
either by the mother State
before It's formation, or by some act OF