water, conveys prima facie to the centre of the creek;1 and if a wharf on the shore be granted, it will carry with it, as parcel of the granted premises, the grantor's flats towards the lowwater mark, unless limited by special words.2 A grant of "a piece of flats below high-water mark, to set a shop upon, not exceeding forty feet in width," conveys flats of that width to low-water mark. A creek or natural channel, from which the tide does not ebb, limits the right to the adjoining flats.4 § 196. In the case of non-tidal waters, also, a deed which describes the land as bounded by the water conveys prima facie as far as the grantor owns.5 Thus, the term "river," when employed to designate a boundary by land-owners whose title extends usque ad filum aquae, means in law the centre of the stream. This rule applies to a grant from the 1 Boston v. Richardson, 13 Allen, 146, 155; Harlow v. Fisk, 12 Cush. 302; Chapman v. Edwards, 3 Allen, 512. 2 Central Wharf v. India Wharf, 123 Mass. 561, 566; Wood v. Commissioners of Bridges, 122 Mass. 394; Doane v. Broad Street Association, 6 Mass. 332; Storer v. Freeman, 6 Mass. 435; Ashby v. Eastern Railroad Co., 5 Met. 368; Wheeler v. Stone, 1 Cush. 313; Ammidown v. Granite Bank, 8 Allen, 285; Commonwealth v. Alger, 7 Cush. 53, 90; Jackson v. Boston & Worcester Railroad, 1 Cush. 580; 2 Dane Abr. 690, 700; 9 Gray, 524. See Gerrish v. Gary, 120 Mass. 132; Adams v. Frothingham, 3 Mass. 352; Palmer v. Hicks, 6 Johns. 133; Hodge v. Boothby, 48 Maine, 71; Brookhaven v. Strong, 60 N. Y. 56. 5 Wright v. Howard, 1 Sim. & Stu. 190; Wishart v. Wyllie, 1 Macq. H. L. 389; Tyler v. Wilkinson, 4 Mason, 397; Thomas v. Hatch, 3 Sumner, 170; Jackson v. Hathaway, 15 Johns. 447; Varick v. Smith, 9 Paige, 547; 5 Paige, 138; Walton v. Tifft, 14 Barb. 216; Demeyer v. Legg, 18 Barb. 16; Hammond v. McLachan, 1 Sand. 323; Herring v. Fisher, Id. 344; Jackson v. Louw, 12 Johns. 252; People v. Law, 34 Barb. 494; Wetmore v. Law, Id. 515, 519; Grove v. White, 20 Wis. 425; Arnold v. Elmore, 16 Wis. 509; Newhall v. Ireson, 8 Cush. 595; Waterman v. Johnson, 13 Pick. 261; Buck v. Squires, 22 Vt. 484; Stanford v. Mangin, 30 Ga. 355; Williams v. Buchanan, 1 Ired. 535; Rix v. Johnson, 5 N. H. 520; Hammond v. Ridgeley, 5 H. & J. 215; Kingsland v. Chit 3 Adams v. Frothingham, 3 Mass. tenden, 6 Lans. 15; Muller v. Landa, 352. 4 Sparhawk v. Bullard, 1 Met. 95; Lufkin v. Haskell, 3 Pick. 355; Walker v. Boston & Maine Railroad, 3 Cush. 1; Attorney General v. Boston Wharf Co., 12 Gray, 553; Porter v. Sullivan, 7 Gray, 441. 31 Texas, 265. See Union Pacific Railroad Co. v. Hall, 91 U. S. 343; Thomas v. Hatch, 3 Sumner, 170; Norris v. Hall, 1 Mich. 202; Richardson v. Prentiss, 48 Mich. 88. 6 Ibid. Crown,1 a State,2 or the United States, and to navigable as well as unnavigable fresh streams where the soil of navigable fresh rivers is held to be private property. In New York it is held that legislative grants of islands in navigable fresh rivers are not conclusive against the application of the common-law rule to such rivers; but in Pennsylvania and other States, such grants have been regarded as strong evidence in favor of the public character of these streams. The rule extending the grantee's title to the centre of the stream applies also when the granted premises are bounded by a ditch or canal made through the grantor's land; by a mill-pond, created by damming a fresh-water stream, or by an artificial raceway.10 It applies to city lots bounded upon streams.11 Even a marsh or swamp may constitute a welldefined boundary of a tract of land, and the thread of the channel or stream flowing through it, if any, may be regarded 1 Lord v. Commissioners of Sidney, 12 Moo. P. C. 473. 2 Boston v. Richardson, 105 Mass. 351, 355; 13 Allen, 156; Lunt v. Holland, 14 Mass. 149; Cold Spring Iron Works v. Tolland, 9 Cush. 492; Claremont v. Carlton, 2 N. H. 369; Ex parte Jennings, 6 Cowen, 518; Arthur v. Case, 1 Paige, 447; Coovert v. O'Conner, 8 Watts, 470; Hayes v. Bowman, 1 Rand. 417, 420; Browne v. Kennedy, 5 H. & J. 195; Baltimore v. McKim, 3 Bland Ch. 453; Ridgeley v. Johnson, 1 Bland Ch. 316, n.; Camden v. Creel, 4 W. Va. 365. 3 Middleton v. Pritchard, 3 Scam. 510; Morgan v. Reading, 3 S & M. 366; Steamboat Magnolia v. Marshall, 39 Miss. 109; Gavit v. Chambers, 3 Ohio, 495; Hendricks v. Johnson, 6 Porter, 472; Jones v. Soulard, 24 How. 41. 4 Ante, c. 3; Dwyer v. Rich, Ir. R. 4 C. L. 424. 5 Ex parte Jennings, 6 Cowen, 548, and note; People v. Canal Appraisers, 17 Wend. 571; 13 Wend. 355; Commissioners v. Kempshall, 26 Wend. 404. 6 Ante, § 65. Ante, c. 3. 8 Boston v. Richardson, 13 Allen, 155; Lawson v. Mowry, 52 Wis. 219; Warner v. Southworth, Conn. 471; Agawam Canal Co. v. Edwards, 36 Conn. 476; Goodyear v. Shanahan, 43 Conn. 204, 210; Cansler v. Hender son, 64 N. C. 469; Hoff v. Tobey, 66 Barb. 347; 56 N. Y. 633. 9 Phinney v. Watts, 9 Gray, 269; Waterman v. Johnson, 13 Pick. 261; Paine v. Woods, 108 Mass. 160; Bradley v. Rice, 13 Maine, 198; Lowell v. Robinson, 16 Maine, 357; Mansur v. Blake, 62 Maine, 38; Wood v. Kelley, 34 Maine, 47; Nostrand v. Durland, 21 Barb. 478; Bartholomew v. Edwards, 1 Houst. (Del.) 17; Mill River Co. v. Smith, 34 Conn. 462; Kingsland v. Chittenden, 6 Lans. 15; Primm v. Raboteau, 56 Mo. 407. 10 Dunklee v. Wilton Railroad Co., 24 N. H. 489; Smith v. Ford, 48 Wis. 115, 163; Pettibone v. Hamilton, 40 Wis. 402. 11 Watson v. Peters, 26 Mich. 508. as the boundary line. If the land on both sides of a river is owned by tenants in common, and they make partition according to its course, each takes to the thread of the stream.2 The fact that the quantity of riparian land called for in a deed is satisfied by the dry land does not limit the boundary to the bank. The presumption that a conveyance to the centre line was intended does not arise when land is bounded by a body of water contained in an artificial reservoir constructed for purposes not connected with the premises conveyed, and when such a presumption would be inconsistent with the uses for which the reservoir was created.4 § 197. If the intention to limit the title to the bank does not appear from other terms in the instrument, a description of a riparian estate, by which a line runs to a monument on the bank, and thence "by," "with," "along," or "on" the river, carries title to the thread of the stream, and thence follows the meanders thereof, the monument merely determining the direction of the line towards the river. When 1 Brumagim v. Bradshaw, 39 Cal. 34; Felder v. Bonnet, 2 McMullan (S. C.) 44; Stapleford v. Brinson, 2 Ired. 311; Brooks v. Britt, 4 Dev. 481; Spruell v. Davenport, 1 Jones, 203; Burnett v. Thompson, 6 Jones, 210; 7 Id. 407. 2 King v. King, 7 Mass. 496. See Morrill v. Morrill, 5 N. H. 134; Hanson v. Willard, 12 Maine, 142; Smith v. Smith, 10 Paige, 470; Cooper v. Cedar Water Power Co., 42 Iowa, 398. 3 Dwyer v. Rich, Ir. R. 4 C. L. 424. Hoff v. Tobey, 66 Barb. 347. Child v. Starr, 4 Hill, 369, 375; 20 Wend. 149; Jackson v. Snow, 12 Johns. 202; Mott v. Mott,.68 N. Y. 246; Howard v. Ingersoll, 13 How. 381, 422; Johnson v. Pannell, 2 Wheat. 206; Littlepage v. Fowler, 11 Wheat. 215; Pike v. Moulton, 36 Maine, 309; Bradford v. Cressey, 45 Maine, 13; Low v. Tibbetts, 72 Maine, 92; Robinson v. White, 42 Maine, 209; Grant v. White, 63 Penn. St. 271; Smallwood v. Hatton, 4 Md. Ch. 95; Thomas v. Godfrey, 3 Gill & J. 42; Wood v. Appal, 63 Penn. St. 210; Motley v. Sargent, 119 Mass. 231; Dunlap . Stetson, 4 Mason, 349; Thomas v. Hatch, 3 Sumner, 170; Hughes v. Providence Railroad Co., 2 R. I. 508; Berridge v. Ward, 10 C. B. N. S. 400; Kimball v. Kenosha, 4 Wis. 321; Goodeno v. Hutchinson, 54 N. H. 157; Reed's Petition, 13 N. H. 381; Rix v. Johnson, 5 N. H. 520; Leigh v. Jack, 28 Am. L. Reg. 540, and note; Paine v. Woods, 108 Mass. 160, 171; Walker v. Shepardson, 4 Wis. 486; Sizer v. Devereux, 16 Barb. 160; Coovert v. O'Conner, 8 Watts, 470; Bishop v. Seeley, 18 Conn. 393; McCullough v. Wall, 4 Rich. (S. C.) 84; Jackson v. Louw, 12 Johns. 252; Jones v. Pettibone, 2 Wis. 308; Weakly v. Legrand, 1 Tenn. 265; Buck v. the line along the river is to run a stated distance, the meanderings of the stream are to be followed until the required distance, reduced to a straight line, is attained.1 In Luce v. Carley,2 in New York, where the description began at a "tree standing on the east branch of the Onondaga River," and after giving other courses and distances, proceeded west "to the east bank of the river; then south along the Onondaga River to the first-mentioned bounds," the grant was held to extend to the centre of the stream. In Cold Spring Iron Works v. Tolland,3 in Massachusetts, the corner was a tree on the bank, but the land was described as bounding on the river, the centre of which was held to be the boundary line. In Newton v. Eddy, in Squiers, 22 Vt. 489; Marsh v. Burt, 34 Vt. 289; Morrow v. Willard, 30 Vt. 118; Maynard r. Weeks, 41 Vt. 619; Buckley v. Blackwell, 10 Ohio, 508; Massengill v. Boyles, 4 Humph. 205; Burns v. Greaves, Cooke (Tenn.) 75; Elder v. Burrus, 6 Humph. 364; Martin v. Nance, 3 Head, 649; Stuart v. Clark, 2 Swan, 9; Sandifer v. Foster, 1 Hay. (N. C.) 237; Hartsfield v. Westbrook, Ibid. 258; McPhaul v. Gilchrist, 7 Ired. 169; Cansler v. Henderson, 64 N. C. 469; Rogers v. Mabe, 4 Dev. (N. C.) 180; Smith v. Auldridge, 2 Hay. (N. C.) 382; Conder v. Coor, Ibid. 183; Slade v. Neal, 2 Dev. (N. C.) 61; Bruce v. Morgan, 1 B. Mon. 26; Calk v. Stribbling, 1 Bibb, 122; Horton v. Roscoe, 3 Hawks, 21; Morgan v. Livingston, 6 Martin, 19. See Hoboken Land Co. v. Kerrigan, 31 N. J. L. 16; Higbee . Camden Railroad Co., 20 N. J. L. Eq. 435; Fleming v. Kenny, 4 J. J. Marsh, 158; Hills v. Houston, 4 Sawyer, 195; Granger v. Swart, 1 Woolw. 88; Babcock v. Utter, 1 Abb. (N. Y. App.) 27; 1 Keyes, 115, 397. A grantee of land, who takes a deed bounding by a river, is not estopped thereby to set up a title afterwards acquired by disseisin in land extending beyond the thread of the stream. Kinsell v. Daggett, 11 Maine, 309. See Corning v. Troy Iron Factory, 40 N. Y. 191; 34 Barb. 529. 1 Hicks v. Coleman, 25 Cal. 142; Sanders v. Morrison, 2 Mon. (Ky.) 110; Johnson v. Brown, Sneed (Ky.) 50; Galveston Co. v. Tankersley, 39 Texas, 651; Yoder v. Swope, 3 Bibb, 205. When the tract is bounded by a navigable stream, the distance upon the stream will, it is said, be ascertained, in the absence of other controlling facts, by measuring in a straight line from the opposite boundaries. People v. Henderson, 40 Cal. 29, 32. 2 24 Wend. 451; Seneca Nation v. Knight, 23 N. Y. 498; Halsey v. McCormick, 3 Kernan, 297; County of St. Clair . Lovington, 23 Wall. 46, 64; Jones v. Soulard, 24 How. 44. See Hughes v. Providence & Worcester Railroad, 2 R. I. 515; Stiles v. Curtis, 4 Day, 328; Peck v. Smith, 1 Conn. 103. 39 Cush. 492; Knight v. Wilder, 2 Cush. 210; Newhall . Ireson, 9 Gray, 262; 13 Gray, 263; Beahan v. Stapleton, 13 Grey, 427; Morrison v. Keen, 3 Maine, 474; Mayo v. Quimby, 3 Dane Abr. 4; Ipswich, petitioners, 13 Pick. 431. 4 23 Vt. 319; Morrow v. Willard, 30 Vt. 118. Vermont, the land was described as bounded "easterly on a creek, and down said creek to a small butternut tree, which is the northeast corner of said lot," and the corner was held to be at the centre of the stream opposite the tree. § 198. The thread of a private stream is the line midway between the banks at the ordinary state of the water, without regard to the channel or the lowest and deepest part of the stream, and if the land upon one side is gradually and imperceptibly wearing away, and soil is deposited upon the other, it is the thread of the stream for the time being, and not that which existed when the opposite owners acquired their titles, which forms the boundary between their estates.2 In those States in which navigable fresh-water streams are held to be common property, like tide waters, no description in a private grant can carry the grantee's title beyond the line of low-water mark.3 And if such a grant is bounded by a great pond or lake, which is public property, it extends to that line.4 § 199. If the conveyance does not bound the land by the water, but refers to the shore or the land under the water as the boundary, it does not pass such shore or land. 1 Hopkins Academy v. Dickinson, 9 Cush. 552; Boscawen v. Canterbury, 23 N. H. 188; Plymouth v. Holderness, cited 28 N. H. 217. Niehaus v. Shepherd, 26 Ohio St. 40; ante, § 166; Primm v. Walker, 38 Mo. 94, 98; Mincke v. Skinner, 44 Mo. 92. 3 Martin v. Nance, 3 Head, 649; McManus v. Carmichael, 3 Iowa, 1; ante, c. 3; Wood v. Appal, 63 Penn. St. 210. 4 Canal Commissioners . People, 5 Wend. 423, 447; Ledyard v. Ten Eyck, 36 Barb. 102; Champlain Railroad Co. v. Valentine, 19 Barb. 484; Wheeler v. Spinola, 54 N. Y. 377; Waterman v. Johnson, 13 Pick. 261, 265; West Roxbury v. Stoddard, 7 Thus, Allen, 158, 167; Paine v. Woods, 108 5 Boston . Richardson, 13 Allen, 154; 105 Mass. 351; Hatch v. Dwight, 17 Mass. 289; 9 Gray, 524; Jones v. Soulard, 24 How. 41; Bradford r. Cressey, 45 Maine, 9; Dunlap v. Stetson, 4 Mason, 349; Nickerson e. Crawford, 16 Maine, 245; Clement . Burns, 43 N. H. 616; Sanders v. McCracken, Hardin (Ky.) 258. |