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under the above ordinance of 1647, the flats do not pass, in the absence of an expressed or implied intention to the contrary, if the granted premises are bounded by the "beach," 2 "shore," "flats," by the high-water mark,5 by a "cliff," "marsh," or on a "way," or "street," extending along the edge of the water.8 In Doane v. Willcutt, the land was bounded by the sea or beach," and this description, referring both to the water and the land, was held to convey the shore to low-water mark.

66

§ 200. Upon the same principle, a deed conveying land adjoining a private fresh-water stream may so refer to the bank or margin of the water as to make that a monument. Thus, in Hatch v. Dwight, in Massachusetts, the description was: Beginning at the end of a dam, running up the river two rods, and so round to the bank of the river; and it was held that the bed of the stream did not pass. In Bradford v. Cressey, in Maine, where a line was to run to a creek, thence "on the west bank of said creek," the river was held to be

1 Hathaway v. Wilson, 123 Mass. 359; Doane v. Willcut, 5 Gray, 328; Chapman v. Edmands, 3 Allen, 512; Lufkin v. Haskell, 3 Pick. 355.

2 Niles v. Patch, 13 Gray, 254; Tappan v. Burnham, 8 Allen, 65; East Hampton v. Kirk, 68 N. Y. 459; 6 Hun, 257.

8 Storer v. Freeman, 6 Mass. 435; Chapman v. Edmands, 3 Allen, 512; Montgomery v. Reed, 69 Maine, 510.

4 Storer v. Freeman, 6 Mass. 439; Saltonstall v. Long Wharf, 7 Cush. 195; 9 Gray, 524.

85.

of land bounded by a way or street, that such way or street exists, even when the land is below high-water mark. Parker v. Smith, 17 Mass. 412.

95 Gray, 328; Storer v. Freeman, 6 Mass. 439; 9 Gray, 525; Boston v. Richardson, 105 Mass. 351.

10 17 Mass. 289; Boston v. Richardson, 13 Allen, 155.

11 45 Maine, 9; Bradley v. Rice, 13 Maine, 198; Hathorn v. Stinson, 10 Maine, 224; Lincoln v. Wilder, 29 Maine, 169; Stone v. Augusta, 46

5 Lapish v. Bangor Bank, 8 Maine, Maine, 127; Brown v. Chadbourne, 31

Baker v. Bates, 13 Pick. 256; East Hampton v. Kirk, 84 N. Y. 215. 7 Rust v. Boston Mill Corporation, 6 Pick. 166. See Brumagim v. Bradshaw, 39 Cal. 34.

* Codman v. Winslow, 10 Mass. 149; Charlestown v. Tufts, 111 Mass. 348; Cook v. Farrington, 10 Gray, 70; Commonwealth v. Alger, 7 Cush. 53, 77. A covenant is implied, in a deed

Maine, 9; Erskine v. Moulton, 66 Maine, 276; Nickerson v. Crawford. 16 Maine, 245; Dunlap v. Stetson, 4 Mason, 349; Jackson v. Halson, 5 Cowen, 216; Hayes v. Bowman, 1 Rand. 417; Daniels v. Cheshire Railroad Co., 20 N. H. 85. See Buck v. Squires, 22 Vt. 484; Cole v. Haynes, Id. 589; Sanders v. McCracken, Hardin, 258.

excluded. So, in Child v. Starr,1 in New York, it was held that a boundary line running "eastwardly to the Genessee River, thence northwardly along the shore of said river," conveyed no part of the bed of the stream beyond low-water mark, the controlling words being "along the shore of said river." In Lamb v. Rickets, in Ohio, the deed called for a corner on the bank of a stream, thence south, thence east, thence north to the bank of the stream, "and with the course of the bank to the place of beginning," and the low-water mark of the stream was held to be the boundary. In Rockwell v. Baldwin,3 in Illinois, boundaries "to the west side of Cedar Creek, thence down the west line of said creek to the north line of said quarter section," were held to be limited to the bank of the creek. In Cook v. McClure, in New York, it was held that a line commencing at "a stake near the high-water mark" of an artificial pond, and running thence "along the high-water mark of said pond to the upper end of said pond," was a fixed boundary, and that the grantee could not claim accretions. If the deed contains a double description "along the river" and "a marked line," the river, being a natural boundary, will control the marked line.5

14 Hill, 369; 5 Denio, 599 (overruling s. c. 20 Wend. 149); Halsey v. McCormick, 13 N. Y. 296; Yates v. Van De Bogert, 56 N. Y. 526; Sizer v. Devereux, 16 Barb. 160; Seneca Nation v. Knight, 23 N. Y. 498; Bissell v. New York Central Railroad Co., 23 N. Y. 64; Kingsland v. Chittenden, 6 Lans. 15; Varick v. Smith, 9 Paige, 547; Ex parte Jennings, 6 Cowen, 536, and note; Kingman v. Sparrow, 12 Barb. 201; Hammond v. McLachlan, 1 Sand. (N. Y.) 323; Paul v. Carver, 26 Penn. St. 203; Cox v. Freedley, 33 Penn. St. 129; Bishop v. Seeley, 18 Conn. 393.

211 Ohio, 311, 325; Hopkins v. Kent, 9 Ohio, 13. In the earlier case of McCulloch v. Aten, 2 Ohio, 309, 425, where the call was for "a white oak on the south-east bank of G. creek, thence down said creek, with

the several meanderings thereof," the low-water mark was treated as the boundary. See this case explained in Benner v. Platter, 6 Ohio, 504, 508. In Benner v. Platter, it was held that a call in a survey for an unnavigable stream is a call for the main branch of such stream, and the boundary is the middle of the stream. See, also, as to boundaries upon streams having different branches or forks, Doddridge v. Thompson, 9 Wheat. 469; Graves v. Fisher, 5 Maine, 69; Carter v. Oldham, Hughes (Ky.) 345; Johnson v. Brown, Sneed (Ky.) 49.

3 53 I. 19. See, also, Murphy v. Copeland, 51 Iowa, 515; Grand Rapids Railroad Co. v. Heisel, 38 Mich. 62, 72; Smith v. Ford, 48 Wis. 117. 4 58 N. Y. 437.

5 Lynch v. Allen, 4 Dev. & Bat. 62.

§ 201. In Bowman v. Farmer, in New Hampshire, the deed described one line as "beginning at the mouth of Black Brook, on the south side of the brook, and running from thence up said brook due west until it strikes the common land," and it was held that the brook, which was very crooked, was not designated as a boundary with sufficient certainty to control the point of the compass stated to be due west. In Thomas v. Godfrey,2 in Maryland, a patent calling for the main falls of a river, and thence "with the main falls by a direct line to the first bound tree," was held not to follow the meanders of the stream.

§ 202. By the common law, parishes or towns upon tide waters extend, like private estates, only to the high-water mark, unless proved by grant, prescription, or usage to include the shore. When separated by a fresh-water river, its thread is prima facie the boundary between them, and the same rules of construction apply as in the case of a grant from one individual to another.5 Between nations, the thread of a boundary river, whether tidal or fresh, is presumably the line of separation, although the use of the whole river for the purpose of navigation, trade, and passage may be common to both nations.

18 N. H. 402. See, also, Massengill v. Boyles, 4 Humph. 205; 11 Humph. 112. The phrase "up the brook," if not controlled by other terms in the deed, calls for a line following the windings of the stream. Jackson v. Louw, 12 Johns. 252; Budd v. Brooke, 3 Gill, 198.

2 Thomas v. Godfrey, 3 Gill & J. 142; Smallwood v. Hatton, 4 Md. Ch. 95, 99; Hammond . Ridgely, 5 H. & J. 245. In Corsey v. Hammond, 1 H. & J. 190, it was left to the jury to decide as to the construction of the deed.

8 Hale, De Jure Maris, c. 4; Hargrave's Law Tracts, 27; Reg. v. Musson, 8 El. Bk. 900; Bridgewater Trustees v. Bootle, L. R. 2 Q. B. 4; 7 B. & S. 348; Boston v. Richardson,

But when one State, being

105 Mass. 358; Pratt v. State, 5 Conn. 390; Hayden v. Noyes, Id. 395.

4 Rex v. Landulph, 1 M. & R. 393; State v. Gilmanton, 14 N. H. 467; Boscawen v. Canterbury, 23 N. H. 188; State v. Canterbury, 28 N. H. 195; Crosby v. Hanover, 36 N. H. 404; Plymouth . Holderness, cited 28 N. H. 217; Ipswich, petitioners, 13 Pick. 431; Cold Spring Iron Works v. Tolland, 9 Cush. 492; Boston v. Richardson, 13 Allen, 146, 157. See Thomaston v. St. George, 17 Maine, 117.

5 Granger v. Avery, 64 Maine, 292; Perkins v. Oxford, 66 Maine, 545.

6 Ante, § 64; The Schooner Fame, 3 Mason, 147; Wheat. Elements Int. Law, 346; Wheat. Law of Nations,

the owner of the territory upon both sides of a river, grants to another State a portion of it bounded by the river, it retains the soil of the river bed, and the grantee takes only to low-water mark. This depends, however, upon considerations derived from the law of nations, and not from the rules of municipal law governing common assurances of estates.2

§ 203. The proprietors of lands upon a natural fresh-water lake or pond, which is public by reason of its size, and the waters of which rise and fall at different seasons of the year, hold to low-water mark, and grants bounded by such waters extend to that line. The great lakes of the North appear to be less subject than streams and smaller lakes to an appreciable rise and fall of the water produced by a wet or dry season or by spring freshets. In the case of Seaman v. Smith, in Illinois, it was held that the boundary of land

577. See Missouri v. Iowa, 7 How. 660; 10 How. 1. The eastern boundary of Iowa, declared by statute to be "the middle of the main channel of the Mississippi River," and the western boundary of Illinois, declared by another statute to be "the middle of the Mississippi River," are the filum aquae, the middle of the main stream of the river and not the middle of the deep water used by vessels. Dunleith Bridge Co. v. Dubuque County, 55 Iowa, 558.

1 Handly v. Anthony, 5 Wheat. 374; Howard v. Ingersoll, 13 How. 381; Alabama v. Georgia, 23 How. 505; Commonwealth v. Garner, 3 Gratt. 655.

265, explained in Paine v. Woods, 108 Mass. 160, 170; West Roxbury v. Stoddard, 7 Allen, 158, 167; Fay v. Salem Aqueduct Co., 111 Mass. 27, 28; Mill River Woollen Manuf. Co. v. Smith, 33 Conn. 463; State v. Milk, Chicago Legal News (1882), p. 262.

4 See Seaman v. Smith, 24 Ill. 521, 523. In Rice v. Ruddiman, 10 Mich. 125, 138, Christiancy, J., said: “The rise and fall of Lake Michigan, and other great lakes of the same chain, is not a tide occurring at regular intervals, like that of the ocean, nor does it arise from the same cause. And though it is probable their waters may be slightly affected by lunar attraction, and a very minute tide may

2 Boston v. Richardson, 13 Allen, perhaps be detected by a long and

146, 157.

3 Canal Commissioners v. People, 5 Wend. 423, 446; Wheeler v. Spinola, 54 N. Y. 377; Champlain Railroad Co. V. Valentine, 19 Barb. 484; Fletcher v. Phelps, 28 Vt. 257; Jakeway v. Barrett, 38 Vt. 316, 323; Austin v. Rutland Railroad Co., 45 Vt. 215; Mariner v. Schulte, 13 Wis. 692; Wood v. Kelly, 30 Maine, 47, 55; Waterman v. Johnson, 13 Pick. 261,

careful course of observation with accurate instruments, yet the court must judicially notice that it must be too slight to be recognized by ordinary observation, and to serve any practical purpose in determining the extent of riparian ownership. These facts were judicially noticed in Lorman v. Benson, 8 Mich. 18."

5 24 Ill. 521. See, also, Delaphine v. Chicago Railway Co., 42 Wis. 214,

described in a deed which called for Lake Michigan as a line was the line of the water as it usually stands when unaffected by storms or other disturbing causes. If an artificial pond, like a mill-pond, is created by expanding a flowing stream by a dam, the title of the riparian owner extends prima facie to the centre of the pond as it did previously in the case of the stream, unless the pond has been so long kept up as to become permanent and to have acquired another well-defined boundary.1 And if what was originally

225; Sloan v. Biemiller, 34 Ohio St. upon by the parties as the marginal 492. line of the pond referred to in the deed. The full court, in the judgment delivered by Chief Justice Shaw, after stating the general rules of law, that, when the description of a boundary in a deed had a definite legal meaning, parol evidence was inadmissible to control it; that, by legal operation, a boundary by the sea or salt water gave a title in the soil to low-water mark; a boundary upon a river not navigable, to the thread of the stream; upon a large natural pond, having a definite low-water line, to that line; and upon an artificial pond raised by a dam swelling a stream over its banks, to the thread of the stream, unless the pond had been so long kept up, as to have become permanent and to have acquired another well-defined boundary; expressed an opinion that under the peculiar circumstances of the case, the parol evidence was rightly admitted, and held that there was no ground in point of law, or upon the evidence in the case, upon which the respondents could claim that the grant did not extend, in the direction of the pond, as far as the barrier. Upon that case, it is to be observed: first, the ruling at the trial, that the boundary was primâ facie to be considered as the highwater mark of the pond, as artificially raised, was inconsistent with the opinion of the full court; second, the only point necessarily involved in the decision was, that the grant was not ex

1 Phinney v. Watts, 9 Gray, 269; Paine v. Woods, 108 Mass. 160, 170; Waterman v. Johnson, 13 Pick. 261; Wheeler v. Spinola, 54 N. Y. 377; Robinson v. White, 42 Maine, 209; Hathorn v. Stinson, 10 Maine, 224, 238; 12 Maine, 183; Bradley v. Rice, 13 Maine, 198, 201; Wood v. Kelley, 30 Maine, 47; Lowell v. Robinson, 16 Maine, 357, 361; Mansur v. Blake, 62 Maine, 38; Primm v. Walker, 38 Mo. 94, 98. In Paine v. Woods, 108 Mass. 160, 170, Gray, J., states and interprets the earlier Massachusetts case of Waterman v. Johnson, 13 Pick. 261, as follows: "Waterman v. Johnson, 13 Pick. 261, was the case of a complaint under the mill act for flowing land described in the deed under which the complainant claimed title as bounded by 'Jones River Pond,' a large natural pond, which before the date of the deed had at times been raised to a certain line by means of a dam of permanent materials, adapted in its ordinary use to raise the water to that line. The judge at the trial ruled that the high-water mark of the pond as thus extended would prima facie be considered as the boundary of the complainant's land; but admitted parol evidence to show, and the jury found, that at the time of the conveyance a certain natural bank or barrier, which was not thus overflowed, and which the natural pond had never overflowed, was intended and agreed

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