igable lake lying north of the tract but no mention of the lake is made in the description, and, at the ordinary stage of water, does not touch the lake. In fact, the nearest approach of the lake, at low-water mark, to the tract, is 1.70 chains. At highwater mark, the lake just cuts across the northwest corner of the tract a few feet. The question is: Can the owner of the tract claim riparian rights?

This problem is mostly a matter of construction. The words of the description are plain and unambiguous and indicate that the owner of the property can claim only the distance set forth in his description. If the wording of the description was, in part, "north 7.25 chains to lake," it would indicate that the parties fixed the lake as the boundary, and such owner would, in that event, be entitled to follow the shore of the lake northerly as it receded or dried up. The annexed figure will give a general idea of the situation. Fig. 99.86

$502. Tract bounded on a private way.-The courts of the several states do not agree on the rule to be followed in such cases. The weight of authority is clearly to the effect that, unless the description clearly indicates a different construction, the court will hold the grant extends to the center of the private way. The Connecticut court takes the opposite view and holds that a tract of land designated by metes and bounds, describing one side as bounded "on Seery Place," which was simply a private way, the grantee took to the side of the way only. The Supreme Court of Massachusetts holds that the grant would carry to the center of the private way. In fact, that court makes no difference in construction of descriptions bounding on a private or public way. The

86 Ante § 283.

87

87 Seery v. City of Waterbury, 82 Conn. 567, 18 Ann. Cas. 73.

88

89 Fisher v. Smith, 9 Gray (Mass.) 441; McKenzie v. Gleason, 184 Mass. 452, 69 N. E. 1076, 100 Am. St. 566.

courts of Maine agree with the Connecticut court.' The Connecticut court, in the case cited above, says: "There is

Lake

Puckaway

Low Water Mark

89

High Water Mark

1.375

no statute or judicial precedent which governs, nor any general custom of which we can take judicial notice. The ques

89 Ames v. Hilton, 70 Maine 36.

tion is one also not settled by the common law. It is therefore our duty to answer it by the choice of the rule which, in our judgment, is best calculated to do justice in cases of this character. This we have done. We adopt that rule which does not raise, in case of a boundary on a private way, the presumption which obtains in case of one on a highway.” In our judgment, it is largely a question of intention of the parties. In finding that intention, of course, the court would consider all of the surrounding circumstances.

§ 503. Private grant interpreted favorable to grantee.-A private grant is to be interpreted favorable to the grantee and where the garntee in a private conveyance is the owner of the bed of a tidal stream, designated as a boundary of the land granted, the conveyance will be held to extend to the thread of the stream." 90 And where a creek is made a boundary of the land conveyed, and the calls of conveyance ascend the creek, the line ascending the creek follows the thread of the stream, and the courses and distances must yield to the actual line of the creek." In Illinois, grants of land to a stream carry title to the thread of the stream unless restricted by the wording of the grant, and it is said, that "Grants of land bounded on streams, carry the exclusive title of the grantee to the center of the stream, subject to the rights of navigation in the public." But in case of a parcel bounded by a lake or pond, the grantee takes to low-water mark." Where the description in a transfer is "according to a certain plan or recorded plat," that plat or plan is a material part of the description and unless there be fraud or mistake, such plan or plat will control."

92

90 Freeman v. Bellegarde, 108 Cal. 179, 41 Pac. 289, 49 Am. St. 76.

91 Freeman v. Bellegarde, 108 Cal.

179, 41 Pac. 289, 49 Am. St. 76.

92 Trustees of Schools v. Schroll,

120 Ill. 509, 12 N. E. 243, 60 Am. Rep. 575.

93 Trustees of Schools v. Schroll, 120 Ill. 509, 12 N. E. 243, 60 Am. Rep. 575.

94 McCormick v. Huse, 78 III. 363.

§ 504. Meaning of words in deed-"To the pond, etc."— A deed described the boundary of certain land as "running to the pond, to a stake and stones." Held, that this restricted the grantee to the "stake and stones," if they, or their original location could be ascertained; if not, then the grant extended "to the pond."95 A grant of land extending to a monument standing on a bank or margin of a river, goes to the thread of the river, unless the terms of the grant denote an intention to stop at the margin."

96

If, in a deed, the boundary line on one side of the land conveyed as running from a given monument easterly to a creek parallel with the south line of another tract of land, and such southern line of the other tract of land is not a straight line, but meanders, then the boundary line described in the deed will run parallel with the other line in its meanderings, and not straight, and parallel with its general course. The word. "easterly," when used alone means due east but it may mean something else as shown by the context, and will then mean what the qualifying words make it mean.

§ 505. When the construction of a deed is doubtful.When the construction of a deed is doubtful great weight is to be given to the construction put upon it by the parties, especially in doubtful questions of boundaries, which must be presumed to be within their knowledge. When both parties, therefore, agree as to the boundaries and lines of a lot, they must be taken to be the true boundaries and lines unless the contrary can be clearly shown.98

When a wall dividing two city lots and standing four inches on each lot has existed for sixty years and a part of it has been treated as a party wall by the owners of both lots, it will be presumed, in the absence of evidence to the contrary, to

95 Robinson v. White, 42 Maine

209.

96 Robinson v. White, 42 Maine, 209, 66 Am. Dec. 274.

97 Fratt v. Woodward, 32 Cal. 219, 91 Am. Dec. 573.

98 Stone v. Clark, 1 Metc. (Mass.) 378, 35 A. Dec. 370.

have become a party wall throughout its length and the owner of either lot may strengthen and repair the foundation of the wall and build the wall higher than the adjoining house." It is but natural that the meaning given to an instrument by the interested parties should have great weight with the court in cases of doubt. It is a practical construction placed on the language used.

§ 506. Boundary between riparian owners a fresh water stream. When the boundary between riparian owners is a fresh water stream, the middle thereof is the lineal partition between them, unless by the express terms of the grant to the first possessor this conclusion of law is excluded. Still as we have seen, a slight variation in the language used would change the meaning. If the boundary was one running to the "side of a stream," it would, unless modified by the context, be limited to the side."

$507. Monuments may yield to courses and distances.It is laid down that "Courses and distances which enclose the particular land may prevail over monuments, where the latter would defeat the grant." This is an extreme case and indicates that the court disregarded the general rule only because an adherence thereto would defeat the grant." In the case of White v. Luning, the monument referred to in the description in the deed or patent was given as being a "fence," i. e., the call in one course, being "to a fence." Evidently in this case there was an error in such call, and the two calls were inconsistent. In that event, the court should take the more reasonable as indicated under all of the circumstances.

99 Fleming v. Cohen, 186 Mass. 323, 71 N. E. 563, 104 Am. St. 572. Muller v. Landa, 31 Tex. 265,

98 Am. Dec. 529.

2 Ante § 486.

3 Ante § 486.

4 White v. Luning, 93 U. S. 514, 23 L. ed. 938.

"Whitney V. Detroit Lumber Company, 78 Wis. 250, 47 N. W. 425; Moran v. Lesotte, 54 Mich. 90, 19 N. W. 757.