Reelfoot Lake, riparian rights focus of lawsuit battles for years
By: John Brannon Messenger Staff Reporter
By JOHN BRANNON
Messenger Staff Reporter
Reelfoot Lake and riparian rights.
In the lyrics of a pop song of yesteryear, “you can’t have one without the other.” Or so it would seem.
Three lawsuits filed in U.S. District Court the last 10 years lend credence to the observation.
Two were settled out of court. The third is awaiting trial by jury.
Jackson attorney Charles Barnett III contends the general public does not understand riparian rights.
“We don’t have a problem with the idea that people can have riparian rights,” he said.
Barnett represents the Tennessee Wildlife Resources Agency and Tennessee Wildlife Resources Commission in a lawsuit filed Nov. 13 by Natalie Hornbeak-Denton and Ann Hornbeak, co-owners of Acorn Point Lodge, which is located on the south shore of Reelfoot Lake.
He also represented the state in the two other lawsuits.
“A riparian right simply means that if you own (land) to the bank or a stream or lake, you have a right of access,” he continued. “If the stream or lake or a river erodes your property, you lose. If there’s a build-up of your property, you gain.”
However, he said ownership of the lake bottom is not a riparian right. It was at one time, after strong earthquakes of 1811-12 shook the New Madrid zone, dropped the landscape several feet, allowing waters of the Mississippi River to flow in and form what we know as Reelfoot Lake — an area of about 25,000 acres.
For years, some property owners asserted that portions of their land lay under the waters of Reelfoot Lake. And since they owned the property, they had private property rights. Some of them sold their underwater properties to an outfit known as the West Tennessee Land Co.
Then in the first decade of the 20th Century came a lawsuit brought by the State of Tennessee. It was styled as “State vs. West Tennessee Land Co. et al (and others).
Barnett said the lawsuit was brought “for the express purpose of establishing public ownership of the lake.”
In April 1913, the Tennessee Supreme Court handed down its ruling.
But what does that have to do with a lawsuit filed almost 100 years later?
From the case file
The words of attorneys, Joe McCaleb of Hendersonville and Joseph Johnston of Nashville, in the latest lawsuit, provide insight. We quote:
“In 1913, the Tennessee Su-preme Court held that although Reelfoot Lake is a navigable stream, meaning that private ownership of either its waters or the land (under it) is not permitted, those landowners whose titles include land derived from 1788 Doherty grants from North Carolina prior to the formation of Reelfoot Lake, land now submerged by the lake, would be entitled to their land’s use and enjoyment so long as they can reasonably identify it and fix its boundaries.
“Title and ownership over a Doherty grant carries with it the exclusive right of fishing in the waters over these grants.”
What is a Doherty grant?
In 1788, when Tennessee was still a territory and part of the State of North Carolina, land grants were made to a Col. George Doherty in recognition for his service in the Revolutionary War.
The attorneys for Mrs. Hornbeak-Denton and Ann Hornbeak aver that forebears of the Hornbeak-Denton family acquired ownership of land grant No. 35 on which today rests Acorn Point Lodge on the south shore of Reelfoot Lake. “Their family has owned and possessed this land since 1907. … This property has been surveyed. … Plaintiffs and (their ancestors) have paid Obion County property taxes every year since 1907.”
No distinction is made be-tween taxes paid on shoreline property and taxes underneath the waters of Reelfoot Lake.
The plaintiffs (Mrs. Hornbeak-Denton and her daughter, Ann Hornbeak) assert their property extends 171 feet, give or take a few feet, into the waters of the lake. Hence, their claim of certain riparian rights.
Cause to rejoice
Barnett said in its day, the 1913 Supreme Court decision was big news. A follow-up lawsuit of condemnation brought by the state was apparently settled.
A weekly newspaper — The Union City News Banner — gave it front page coverage. As quoted from its Jan. 9, 1914, article:
“The people of Obion County and all of West Tennessee will be rejoiced to learn that attorneys for the State of Tennessee, in a lawsuit of condemnation brought by the State against West Tennessee Land Co., have compromised the case.
“It will be remembered that the juries of view, named by the Circuit Court, allowed the Land Company $22,500 for that part of the Doherty grants lying in Obion County and $15,000 for that part lying in Lake County. By the terms of the compromise, the state is to pay the Land Company $25,000 and the possession of the Doherty grants passes to the people and State of Tennessee.
“That ends a tragic and remarkable chapter that opened up when the remarkable man, James C. Harris, began buying up the various Reelfoot Lake grants. The News Banner felt that Reelfoot Lake could not in the nature of things be private property, that it belonged to the whole people and the matter would never be settled satisfactorily ’til the people came into their own.
“That beautiful day has now dawned and Reelfoot Lake in its entirety subject to the J.C. Burdick four-year lease on the Doherty grants belongs to the people of Tennessee to do as they please.”
“In the 1913 decision, the court said the lake belongs to the public,” Barnett said. “Also, insofar as a few properties was concerned, it came from the Doherty grant that (the landowners) retained some rights to fishing that section of the lake. And the court went on to say, in the same (order), ‘but if the state wants to get rid of those rights, all it has to do is use the power of eminent domain and pay people for it.’
“That article came when the state settled the lawsuit. It took all the lake bottom rights. They no longer exist.”
Barnett said the Doherty grants and the low water mark of Reelfoot Lake “confuse the issue and mislead the public.”
“In that court decision of 1913, the Doherty grant (landowners) had a limited right in the lake. But what people don’t understand is that the state bought and paid for those grants,” he said. “And the next thing they don’t understand is that the ordinary low water mark is not the lowest that anybody’s seen Reelfoot Lake at or how low the lake gets. The ordinary low water mark is the ordinary water mark. It’s the same as the ordinary pool level, which is 282.2 feet (mean sea level, or “msl”). When a drought occurs, Reelfoot Lake gets much smaller; when there’s a flood, it gets bigger.
“The ordinary low water mark is defined as when there’s no drought or flood. That’s the benchmark. Someone can say, ‘We cut logs when the water was down, we’ve seen the water even lower.’ Well, that’s not the ordinary low water mark. That’s the extraordinary low water mark. The ordinary low water mark was set back in the 1930s.”
Published in The Messenger 12.13.07