Reelfoot Lake Navigable Waters - Tennessee Jurisprudence On Real Estate

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Tennessee Jurisprudence on Real Estate

Copyright 2004, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
Chapter 51: Waters and Watercourses
V. NAVIGABLE WATERS.
1 TENN. JURIS., Waters and Watercourses, Contents
Contents
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A. NAVIGABILITY OF RIVERS.
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1 TENN. JURIS., Waters and Watercourses, § 14
§ 14. Definitions.
"Navigable rivers" are rivers which are in fact capable of being navigated, in the ordinary state of the water, ascending
and descending, by vessels employed in the ordinary purposes of commerce, regardless of the mode of propulsion.n7
The ordinary low-water mark is the usual and common or ordinary stage of the river when the volume of water is not in-
creased by rains or freshets occasioned by melted snow on one hand or diminished below such usual stage or volume by
long continued drought to extreme low-water mark.n8
A "landing" implies a place where vessels can be moored and loaded or discharged.n9
Under both the Code Napoleon and the English common law recognized in the United States, "alluvion" is an im-
perceptible increase of the earth on the shore or bank of a navigable river, which is so gradual that no one can say how
much is added at any one moment of time.n10 The "alluvion" refers to the deposit of earth on the shore or bank of a
navigable river, while the word "accretion" denotes the act by which the deposit is made, although the terms are fre-
quently used synonymously.n11
FOOTNOTES:
(n1) Footnote n7. State v. West Tenn. Land Co., 127 Tenn. 575, 158 S.W. 746 (1913); Miller v. State, 124 Tenn. 293,
137 S.W. 760 (1910).
(n2) Footnote n8. Goodall v. Herbert & Sons, 8 Tenn. App. 265 (1928).
(n3) Footnote n9. Waite v. O'Neil, 76 F. 408 (6th Cir. 1896).
(n4) Footnote n10. Cunningham v. Prevow, 28 Tenn. App. 643, 192 S.W.2d 338 (1945), commented on in 19 Tenn.
L. Rev. 862.
(n5) Footnote n11. Cunningham v. Prevow, 28 Tenn. App. 643, 192 S.W.2d 338 (1945), commented on in 19 Tenn.
L. Rev. 862.
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§ 15. Test of Navigability.
The common-law rule is that all tidewater rivers, or those in which the tide ebbs and flows, are navigable to the extent
of the flow and reflow of the tide, but so far only as the influence of the tide extends.n12 However, this test is not ap-
plicable to American streams, because the adoption and application of such a test would render some of the largest and
most useful streams nonnavigable.n13 The test of the navigability of a stream in the legal, technical sense of the term
and by the civil law is whether it has the capacity and suitability for the usual purposes of navigation.n14
In Tennessee, the term "navigable" has, in law, a technical sense, to be distinguished from its common acceptation,
and, when applied to streams in its legal and technical sense, means such as are capable, in the ordinary state of water,
of navigation, ascending and descending, by such vessels as are employed in the ordinary purposes of commerce,
whether foreign or inland, and whether steam or sail vessels. Nevertheless, a river not navigable in a legal sense, may
yet be navigable in the common acceptation of the term, as where, in certain stages of the water, it may have sufficient
depth for flatboats, rafts, or small vessels of light draft.n15 The test of "navigability" is whether there is in the stream a
capacity for the use for the purpose of transportation valuable to the public, and it is not necessary that the stream
should have a capacity for floatage at all times of the year, nor that it should be available for use against the current as
well as with it, but if in its natural state and with its ordinary volume of water either constantly or at regularly recurring
seasons, it has such capacity that it is valuable to the public, it is sufficient.n16 A stream is not navigable in the legal or
ordinary sense which is not of sufficient depth naturally for valuable floatage, such as rafts, flatboats, and small vessels
of lighter draft than ordinary.n17
If a body of water has sufficient capacity in depth, width and volume to be legally navigable, it is a navigable
stream, whether actually used for navigation or not; and the fact that a legally navigable stream contains stumps and
trees, so as to prevent its present actual navigation, will not prevent it from being a navigable stream or lake.n18 Thus a
stream, navigable in fact, does not require legislative act to give it a navigable status.n19 The stream need not be peren-
nially navigable in order to constitute a "navigable stream" but if navigable at certain seasons, the general rule is that the
seasons of navigability must occur regularly and be of sufficient duration to serve a useful public purpose for commer-
cial interaction.n20
Whether a fresh water stream is navigable is always a question of fact.n1
FOOTNOTES:
(n1) Footnote n12. Stuart v. Clark's Lessee, 32 Tenn. (2 Swan) 9 (1852); Sigler v. State, 66 Tenn. (7 Baxt.) 493 (1874);
Elder v. Burrus, 25 Tenn. (6 Hum.) 358 (1845). See Allison v. Davidson, 39 S.W. 905 (Tenn. Ch. App. 1896).
(n2) Footnote n13. State v. West Tenn. Land Co., 127 Tenn. 575, 158 S.W. 746 (1913).
(n3) Footnote n14. Webster v. Harris, 111 Tenn. 668, 69 S.W. 782 (1902); Sigler v. State, 66 Tenn. (7 Baxt.) 493
(1874).
(n4) Footnote n15. Stuart v. Clark's Lessee, 32 Tenn. (2 Swan) 9 (1852); Webster v. Harris, 111 Tenn. 668, 69 S.W.
782 (1902); Sigler v. State, 66 Tenn. (7 Baxt.) 493 (1874); Holbert v. Edens, 73 Tenn. (5 Lea) 204 (1880); Elder v. Bur-
rus, 25 Tenn. (6 Hum.) 358 (1845); Allison v. Davidson, 39 S.W. 905 (Tenn. Ch. App. 1896).
(n5) Footnote n16. American Red Cross v. Hinson, 173 Tenn. 667, 122 S.W.2d 433 (1938).
(n6) Footnote n17. Irwin v. Brown, 3 Tenn. (Shann.) 309, 12 S.W. 340 (1889); Allison v. Davidson, 39 S.W. 905
(Tenn. Ch. App. 1896).
(n8) Footnote n19. Southern R.R. v. Ferguson, 105 Tenn. 552, 59 S.W. 343 (1900).
(n9) Footnote n20. American Red Cross v. Hinson, 173 Tenn. 667, 122 S.W.2d 433 (1938).
(n10) Footnote n1. Generally. Southern R.R. v. Ferguson, 105 Tenn. 552, 59 S.W. 343 (1900); Miller v. State, 124
Tenn. 293, 137 S.W. 760 (1910).
Illustrative Cases. A stream which is not capable of navigation in ordinary stages of the water is not navigable because
it is capable of floating logs for short periods when swollen by heavy rains. Allison v. Davidson, 39 S.W. 905 (Tenn. Ch.
App. 1896).
A stream that in the spring and winter, when there was a good tide, was navigated occasionally by a steamer for a dis-
tance of 20 miles, was a navigable stream. Southern R.R. v. Ferguson, 105 Tenn. 552, 59 S.W. 343 (1900).
Reelfoot Lake was a navigable stream in the strict, technical, legal sense although no appreciable area has a greater av-
erage depth than ten feet. State v. West Tenn. Land Co., 127 Tenn. 575, 158 S.W. 746 (1913).
For an early case holding land covered by Reelfoot Lake to be subject to grant, see Webster v. Harris, 111 Tenn. 668, 69
S.W. 782 (1902).
Wolf River is not navigable within the sense of the definition of a navigable stream, because it cannot be navigated prof-
itably for commercial purposes, ascending at any time, and can only be used, descending, for the transportation of logs
and rafts for short periods of time, ten or twelve days in each year. Miller v. State, 124 Tenn. 293, 137 S.W. 760 (1910).
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§ 16. Right of Navigation.
The right of navigation may be acquired by dedication by the continued and undisturbed use by the public for twenty
years or more.n2 Though the title to the bed of a stream which is navigable not in the legal, but only in the ordinary
sense, is in the riparian owners, yet the public has a right to the free use and enjoyment of such a stream for the purposes
of navigation to which it is adapted.n3
The drainage law authorizing the establishment of levee and drainage districts for the drainage and reclamation of
wet and swamp lands does not undertake to authorize any interference with the free and public use of navigable waters
over which Congress has control and does not attempt to confer upon the State courts the authority to change or alter
such navigable waters.n4
FOOTNOTES:
(n1) Footnote n2. Stump v. McNairy, 24 Tenn. (5 Hum.) 363 (1844).
(n2) Footnote n3. Webster v. Harris, 111 Tenn. 668, 69 S.W. 782 (1902).
(n3) Footnote n4. Bigham v. Powers, 124 Tenn. 553, 137 S.W. 1110 (1911). See T.C.A., " 69-6-101 to 69-6-1303.
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B. OWNERSHIP AND USE.
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§ 17. Where Legally Navigable.
Waters navigable in the legal sense belong to the public.n5 On the other hand, a body of water which is navigable but
not necessary for commerce may be privately owned, subject to a right of access in the public. A lake or stream which is
considered unnavigable may be privately owned and controlled.n5.1 With the exception of how the court defines "nav-
igable waters," the principles of the common law, regulating and defining the respective rights of the public and of the
riparian proprietors in rivers of whatever character, remain unchanged and are to be applied by the courts.n6 If a water-
course is navigable in the legal sense, the soil covered by the water, as well as the use of the stream, not only belongs to
the public, but is not subject to entry or grant as other land.n7 The bed of a navigable river occupying the place of ri-
parian land which had disappeared by erosion belonged to the public, and the river was a public highway.n8 However,
when the stream suddenly abandons its bed and seeks a new one, the title to the bed remains in the state.n9
The public has right of fishing and hunting in streams where the water and lands thereunder are publicly owned.n10
Congress authorized the development of public recreation at water resource projects and the United States Army Corps
of Engineers is charged with the administration of federally owned lands surrounding water resource development pro-
jects.n11
State grants for lands lying upon navigable streams extend to ordinary low-water mark only, and the title to the bed
of the stream remains in the state.n12 A grant of the bed of the Mississippi, although dry from a sudden change in its
course, cannot be made by the state without legislative authority.n13 The state cannot grant lands lying under a legally
navigable lake; for it holds such lands and the waters of the lake in trust for all the people, and neither the water nor the
land underlying it is susceptible of private ownership.n14 The fact that land was submerged by a legally navigable lake,
created by an earthquake, after the land was granted by the state, would not deprive the owners of their title to the land,
if it can be reasonably identified.n15
Alluvial soil added by a navigable river to riparian land belongs to the riparian landowner.n16 Land formed gradu-
ally below low-water mark becomes the property of the adjoining owner.n17 The title to riparian land on a navigable
stream is extinguished by erosion, and if new land is thereafter formed by accretion to a portion of the land that was not
lost by erosion, the owner holds the new formation not by his original title but under the law of accretions.n18 The
reason for the rule that boundary lines upon navigable streams may be changed by erosion and accretion and proprietors
separated by the stream may lose or gain land is that the loss or gain is so gradual and imperceptible that it is impossible
to identify and follow the soil lost or to prove where that gain came from.n19 Original lines of land on a navigable
stream which disappear by the gradual and imperceptible process of erosion cease to exist, and thereafter the relation-
ship of all riparian lands and the river must be determined from the then conditions, both as to the actual then riparian
lands and the river frontage, and not from previous conditions or previous relationship of the riparian lands and the
river.n20 There can be riparian rights in a non-navigable body of water. Under the rules pertaining to appurtenances,
the conveyance of upland by the owner of both the upland and the adjacent water transfers the riparian rights absent an
express provision to the contrary.n20.1
The owners of the banks of streams not navigable in a legal sense take title to the center of the water, subject to the
public easement for purposes of navigation, but as to streams navigable in a legal sense, the call in a grant for such a
river, or for a point on its bank, and thence up or down with its meanders, carries title at most only to low-water mark.n1
Stream water, which does not leave the channel of a navigable river or which returns to the stream after overflowing its
banks, is not "errant water" in which a riparian owner can acquire no vested rights.n2
Riparian rights are vested rights and include the right to future alluvia, the right to access to the navigable part of
the river upon the front of the ripa, and the right to make a public or private landing, wharf, or pier.n3 A riparian owner-
's wharf may extend out to the edge of navigability; but this is a relative term,n4 but this does not mean that every ri-
parian owner may wharf out to the channel where there is only a narrow channel in the harbor, regardless of his interest
in reaching it or the obstruction to general navigation which he thereby causes.n5 Riparian ownership is subject to con-
sequences of improvement in navigation.n6
A riparian owner cannot recover damages for injury merely incidental to another owner's reasonable use of the wa-
ters of a stream.n7 The right of each of two riparian owners on a navigable stream qualifies that of the other owner, and
the question in an action by a lower against a higher proprietor for damage to the plaintiff's land because of the defend-
ant's use of the water is not merely whether the plaintiff suffered damage, but whether the defendant's use of the water is
reasonable and consistent with its enjoyment by the plaintiff under all circumstances.n8 Where a manufacturer was par-
tially responsible for the silting of a bay, the fact that partially developed residential subdivision owners required each
purchaser to deposit a sum to be used in the removal of silt did not prevent the owners, who were otherwise entitled to
recover from the manufacturer for silting attributable to the manufacturer, from making such recovery.n9 Where natural
erosion and activity of a manufacturer in running water through old settling basins each contributed to the silting of a
bay, where the property owners were entitled to recover from the manufacturer for the manufacturer's silting of the bay,
the rule permitting approximation of damages if a right of recovery is shown but damages cannot be ascertained with
precision was applicable.n10
The navigation easement vested in the federal government by virtue of the commerce clause in the constitution is
not, as against riparian lands, an easement which other agencies or individuals may assert, or under which they may find
shelter for consequence of their trespasses.n11
FOOTNOTES:
A body of water which is essentially valuable to commerce is considered "legally navigable," belongs to the public and
cannot be privately owned. The Pointe, LLC v. Lake Management Inc., 50 S.W.3d 471 (Tenn. Ct. App. 2000).
(n2) Footnote n5.1. The Pointe, LLC v. Lake Management Inc., 50 S.W.3d 471 (Tenn. Ct. App. 2000).
(n3) Footnote n6. Bunch v. Hodel, 793 F.2d 129 (6th Cir. 1986).
(n4) Footnote n7. Cunningham v. Prevow, 28 Tenn. App. 643, 192 S.W.2d 338 (1945).
(n6) Footnote n9. Stockley v. Cissna, 119 F. 812 (6th Cir. 1902).
As to rights of owner of part of bed of navigable lake to fish, see Fish and Fisheries.
(n8) Footnote n11. Center Hill Defense Fund v. United States Army Corps of Eng'rs, 886 F. Supp. 1389 (M.D.
Tenn. 1995).
The United States Army Corps of Engineers may lease federally owned land at water resource development projects to
state or local governments, charitable groups, or private businesses. Center Hill Defense Fund v. United States Army
Corps of Eng'rs, 886 F. Supp. 1389 (M.D. Tenn. 1995).
Inasmuch as the lake has capacity for navigation in the technical sense, the rights of the public attach to it, to its use, and
to its fisheries, so that it is incapable of private ownership, and the state owns it in trust for all the people and cannot ali-
enate it. Bunch v. Hodel, 793 F.2d 129 (6th Cir. 1986).
(n18) Footnote n20.1. The Pointe, LLC v. Lake Management Inc., 50 S.W.3d 471 (Tenn. Ct. App. 2000).
(n19) Footnote n1. Elder v. Burrus, 25 Tenn. (6 Hum.) 358 (1845); Martin v. Nance, 40 Tenn. (3 Head) 649 (1859);
Stuart v. Clark's Lessee, 32 Tenn. (2 Swan) 9 (1852); Posey v. James, 75 Tenn. (7 Lea) 98 (1881); Goodwin v.
Thompson, 83 Tenn. (15 Lea) 209 (1885); Goodall v. Herbert & Sons, 8 Tenn. App. 265 (1928); Parmelee v. Herbert &
Sons, 13 Tenn. App. 101 (1930).
Under Tennessee law, an owner of land adjacent to a nonnavigable stream may own the stream bed, but where the
stream is navigable his ownership may not extend below the low-water mark. Hurley v. American Enka Corp., 93 F.
Supp. 98 (E.D. Tenn. 1950).
A riparian owner on navigable stream owns only to the low-water mark. Tallassee Power Co. v. Clark, 77 F.2d 601 (6th
Cir. 1935).
(n20) Footnote n2. Tallassee Power Co. v. Clark, 77 F.2d 601 (6th Cir. 1935).
The rights of a riparian proprietor whose land is bounded by a navigable stream are defined as access to the river from
the front of his lot; the right to make a landing, wharf, or pier for his own use, or for the use of the public, subject to
such general rules and regulations as the General Assembly may see proper to impose for the protection of the rights of
the public, whatever those may be. Waite v. O'Neil, 76 F. 408 (6th Cir. 1896); Yates v. Milwaukee, 77 U.S (10 Wall.)
497, 19 L. Ed. 984 (1870).
(n22) Footnote n4. Patton-Tully Transp. Co. v. Memphis Power Boat Club, 251 F. 856 (6th Cir. 1918).
(n23) Footnote n5. Patton-Tully Transp. Co. v. Memphis Power Boat Club, 251 F. 856 (6th Cir. 1918).
(n24) Footnote n6. Franklin v. United States, 16 F. Supp. 253 (W.D. Tenn. 1936), aff'd, 101 F.2d 459 (6th Cir.), 308
U.S. 516, 60 S. Ct. 170, 84 L. Ed. 439 (1939).
(n27) Footnote n9. Wilson v. Farmers Chem. Ass'n, 60 Tenn. App. 102, 444 S.W.2d 185 (1969).
(n28) Footnote n10. Wilson v. Farmers Chem. Ass'n, 60 Tenn. App. 102, 444 S.W.2d 185 (1969).
(n29) Footnote n11. Hurley v. American Enka Corp., 93 F. Supp. 98 (E.D. Tenn. 1950).
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§ 18. Where Navigable in Ordinary Sense.
The ownership of their beds is in the riparian proprietors, though the public have an easement therein for the purposes
of transportation and commercial interaction.n12 If, in its natural state, the volume of a stream is such that the stream
can be used profitably for commercial purposes in the transportation of the products of the forest, mines, tillage of the
soil, or other articles of commerce, the public has an easement of highway therein, which the riparian proprietors cannot
in law unreasonably obstruct; but the stream must be of sufficient size to float, by the force of the current, and without
the aid of persons traveling upon the banks, crafts and rafts sufficiently large to make the business profitable, and it is
not sufficient that loose logs or lumber can be floated down the stream when at flood; for streams of that character are
not subject to the public servitude, but are private property, absolutely and exclusively owned by the riparian proprietor-
s.n13 The public easement is subject to the rights of the riparian owners, including a reasonable use for power; for the
riparian proprietors have rights in such streams as valuable and sacred as that of the public, and these respective rights
of the public and the riparian proprietors must be reconciled and so used and exercised as not unreasonably to interfere
with and obstruct each other, so that both can be enjoyed and neither be unnecessarily or unreasonably obstructed or
destroyed; and the public, in exercising its rights in it, must do so with unusual care not to interfere with those of the ri-
parian proprietors.n14
The center of a privately owned stream is usually the boundary line of adjoining lands.n15
Land, which in its natural state was not covered with a navigable body of water when granted, retains its character
of private property, when by force of nature thereafter exerted, it becomes submerged by a navigable body of water.n16
Where a public service corporation acquired the fee title to riparian lands along a river and constructed a dam which
caused the formation of a lake, the corporation's lands covered by the waters of the lake remained the lands of the cor-
poration, and the owners of houseboats could not moor them above those lands.n17 Where owners of houseboats
wrongfully moored them in a lake over the riparian lands of a public service corporation permanently or semi-perman-
ently, the owners of the houseboats were committing a continuing trespass which a court of equity would enjoin at the
instance of the corporation.n18 A license of the Federal Power Commission authorizing a public service corporation to
construct a dam but requiring the corporation to allow the public reasonable access to and the use of project waters for
navigation and recreational purposes did not entitle owners of houseboats to place them in the lake over the riparian
lands of the corporation.n19
FOOTNOTES:
(n2) Footnote n13. Miller v. State, 124 Tenn. 293, 137 S.W. 760 (1910). See Sigler v. State, 66 Tenn. (7 Baxt.) 493
(1874); Stuart v. Clark's Lessee, 32 Tenn. (2 Swan) 9 (1852); Elder v. Burrus, 25 Tenn. (6 Hum.) 358 (1845); Webster v.
Harris, 111 Tenn. 668, 69 S.W. 782 (1902).
(n3) Footnote n14. Miller v. State, 124 Tenn. 293, 137 S.W. 760 (1910).
(n4) Footnote n15. Webster v. Harris, 111 Tenn. 668, 69 S.W. 782 (1902). See Boundaries.
(n5) Footnote n16. Tapoco, Inc. v. Peterson, 213 Tenn. 335, 373 S.W.2d 605 (1963).
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§ 19. Beaches, Sandbars and Islands.
Landowners cannot recover for sand or gravel removed from below the ordinary low-water mark of a navigable
river,n20 nor can he recover for damages occasioned to a bathing beach because of dredging gravel from the channel of
a navigable stream.n1
The owner of an island in a navigable river cannot recover for the value of sand wrongfully taken from land sub-
merged by the construction of a government dam, such land being government property, taken by eminent domain, for
which the government was liable in damages.n2 Although a river was not navigable at all seasons and under all condi-
tions at the point involved, the owners of farm lands on an island in the navigable portion of the river were not entitled
to recover damages from a power company for injury to such lands by interference with a ford giving access to the is-
land because of the increased flow of water in the channel after the construction of the defendant's dam.n3
The burden of proof to show damages from dredging the channel of a river is on the complainant.n4 Evidence as to
the effect of ice and ice floes on the banks of the river is admissible as it showed the effect of the forces of nature on the
banks of the river and the witness' knowledge of the matter.n5 An instruction that if they found dredging was done
through mistake, the measure of damages should be the value of the gravel prepared for market less the cost of prepar-
ing it, but if they found it was done maliciously, then the measure of damages should be the value of the gravel as pre-
pared for market without deducting the cost of preparation is proper.n6
FOOTNOTES:
(n1) Footnote n20. Goodall v. Herbert & Sons, 8 Tenn. App. 265 (1928).
(n2) Footnote n1. Parmelee v. Herbert & Sons, 13 Tenn. App. 101 (1930).
In an action by a riparian owner to recover damages occasioned to her bathing beach because of the removal of gravel
from a navigable river, she was not entitled to damages to the bathing beach below the ordinary low-water mark.
Parmelee v. Herbert & Sons, 13 Tenn. App. 101 (1930).
(n3) Footnote n2. Stanton v. Herbert & Sons, 141 Tenn. 440, 211 S.W. 353 (1918).
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C. OBSTRUCTION TO NAVIGATION.
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§ 20. Railroad Bridges.
Navigable streams are highways aside from statutes declaring them so and obstructions are forbidden by common
law,n7 but where a stream is entirely within the territorial limits of Tennessee, it is within the power of the legislature of
the state to authorize the construction of a bridge, notwithstanding it might work inconvenience to the right of naviga-
tion.n8 If a bridge is erected over a navigable stream, it must be sufficiently elevated as to admit of the safe and con-
venient passage of such boats or vessels as are most advantageously used for the conveyance of travelers or freight upon
the river or watercourse spanned by the bridge, or if not thus constructed, there must be a draw of such size and struc-
ture as not materially to infringe the right of free and unobstructed navigation.n9
Authority to throw a bridge over a navigable stream must be confined to the limits and conditions of the grant.n10
Authority to obstruct navigable streams with permanent structures is not conferred by a charter giving a railroad author-
ity to "build bridges."n11 The obstruction is lawful when caused, in the construction of a bridge across a navigable
stream by a railway company under the authority of its charter, by the placing in the stream of such temporary structures
as are absolutely essential, and without which the work could not be accomplished.n12 Such temporary and necessary
obstruction of navigation is not within the prohibition of the statute which provides that no milldam, fish trap, bridge, or
other improvement shall be allowed so as to interrupt or in any way injure or impair the navigation of any navigable wa-
tercourse of the state.n13 However, where a railroad company, authorized by charter to build a bridge over a navigable
stream, with the proviso, that the navigation of said stream not to be thereby obstructed, a temporary obstruction is an
obstruction within the meaning of the charter, for which the company would be liable to any person damaged
thereby.n14 A prescriptive right to obstruct a navigable stream cannot be acquired.n15
FOOTNOTES:
(n3) Footnote n9. Southern R.R. v. Ferguson, 105 Tenn. 552, 59 S.W. 343 (1900). See T.C.A., ' 54-13-210.
(n4) Footnote n10. Memphis & O.R.R. v. Hicks, 37 Tenn. (5 Sneed) 427 (1858); Southern R.R. v. Ferguson, 105
Tenn. 552, 59 S.W. 343 (1900).
(n6) Footnote n12. Cantrell v. Railway Co., 90 Tenn. 638, 18 S.W. 271 (1891); Memphis & O.R.R. v. Hicks, 37
Tenn. (5 Sneed) 427 (1858).
(n7) Footnote n13. Cantrell v. Railway Co., 90 Tenn. 638, 18 S.W. 271 (1891). See See T.C.A., ' 54-13-102.
(n8) Footnote n14. Memphis & O.R.R. v. Hicks, 37 Tenn. (5 Sneed) 427 (1858).
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§ 21. Actions.
Whether an erection in a navigable stream, be a nuisance is a question of fact for the jury to determine, and if the navig-
ation be not impeded by the erection, or if the public advantage greatly overbalance the inconvenience produced, it is
not a nuisance.n16 The burden of proving an obstruction of a navigable stream lawful is upon the party causing the ob-
struction.n17 No amount of benefit conferred upon an indefinite number of private individuals, or upon a local com-
munity, can be admitted to countervail the public injury and inconvenience resulting from the obstruction of a navigable
river; and, therefore, it is error to admit evidence of the supposed public benefit derived from the use of the obstruction,
and in submitting to the jury to determine whether such benefit countervailed the injury to the public, occasioned by the
obstruction.n18
The measure of damages in an action by a steamboat company against a railroad company for obstructing a navig-
able stream is the expenses incurred by making a fruitless trip and not the profits that might have been made on the
trip.n19
A federal district court had power to enjoin industrial plants from violation of the statute making it unlawful to de-
posit any refuse in the navigable waters of the United States.n20
FOOTNOTES:
(n1) Footnote n16. Pilcher v. Hart, 20 Tenn. (1 Hum.) 524 (1840).
(n2) Footnote n17. Cantrell v. Railway Co., 90 Tenn. 638, 18 S.W. 271 (1891).
(n3) Footnote n18. Gold v. Carter, 28 Tenn. (9 Hum.) 369 (1848).
(n4) Footnote n19. Memphis & O.R.R. v. Hicks, 37 Tenn. (5 Sneed) 427 (1858).
(n5) Footnote n20. Bass Anglers Sportsman's Soc'y v. Scholze Tannery, Inc., 329 F. Supp. 339 (E.D. Tenn. 1971).
See 33 U.S.C.S. " 407, 411, 413.
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§ 22. Criminal Prosecution.
Conservation organizations did not have standing to bring an action against alleged industrial polluters to recover penal-
ties or injunctive relief for the alleged violation of statutes relating to deposit of refuse in navigable waters; the exclus-
ive power of the Department of Justice to enforce the statutes precluded any private civil action, including qui tam ac-
tion, for recovery of an informer's moiety.n1 For an informer to recover in a qui tam action to recover one half of the
fine imposed on a polluter in a prosecution for a violation of the statutes relating to deposit of refuse in navigable wa-
ters, a criminal proceeding must be instituted against the polluter, a conviction obtained and a fine imposed as punish-
ment.n2
The evidence was deemed insufficient to show an unlawful obstruction of a stream navigable only for floating logs
by the erection and maintenance of a milldam by a riparian proprietor.n3
In the trial of a case under an indictment against a riparian proprietor for obstructing the navigation of a stream,
where the evidence shows or tends to show that such stream is not navigable in the legal sense, the trial judge should
charge the jury concerning the respective and reciprocal rights of the public and the accused defendant as such riparian
proprietor in the stream.n4
FOOTNOTES:
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Part 9: Public Lands and Rights of Way

Reelfoot Lake Navigable Waters - Tennessee Jurisprudence On Real Estate

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Reelfoot Lake Navigable Waters - Tennessee Jurisprudence On Real Estate

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1 of 10 DOCUMENTS

Tennessee Jurisprudence on Real Estate

Chapter 51: Waters and Watercourses

1 TENN. JURIS., Waters and Watercourses, Contents

Tennessee Jurisprudence on Real Estate

Chapter 51: Waters and Watercourses

1 TENN. JURIS., Waters and Watercourses, § 14

Tennessee Jurisprudence on Real Estate

Chapter 51: Waters and Watercourses

1 TENN. JURIS., Waters and Watercourses, § 15

§ 15. Test of Navigability.

Tennessee Jurisprudence on Real Estate

Chapter 51: Waters and Watercourses

1 TENN. JURIS., Waters and Watercourses, § 16

§ 16. Right of Navigation.

B. OWNERSHIP AND USE.

Tennessee Jurisprudence on Real Estate

Chapter 51: Waters and Watercourses

1 TENN. JURIS., Waters and Watercourses, § 17

§ 17. Where Legally Navigable.

Tennessee Jurisprudence on Real Estate

Chapter 51: Waters and Watercourses

1 TENN. JURIS., Waters and Watercourses, § 18

§ 18. Where Navigable in Ordinary Sense.

Tennessee Jurisprudence on Real Estate

Chapter 51: Waters and Watercourses

1 TENN. JURIS., Waters and Watercourses, § 19

§ 19. Beaches, Sandbars and Islands.

Tennessee Jurisprudence on Real Estate

Chapter 51: Waters and Watercourses

1 TENN. JURIS., Waters and Watercourses, § 20

§ 20. Railroad Bridges.

Tennessee Jurisprudence on Real Estate

Chapter 51: Waters and Watercourses

1 TENN. JURIS., Waters and Watercourses, § 21

Chapter 51: Waters and Watercourses

1 TENN. JURIS., Waters and Watercourses, § 22

§ 22. Criminal Prosecution.

Part 9: Public Lands and Rights of Way

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