102 Ga. 404 | Ga. | 1897
This litigation arises out of a dispute between the proprietors of adjoining tracts of land over the boundary between their respective 'possessions. The land of the defendant Boardman is described in his deeds as being bounded on the. south by “McCall’s mill-pond.” Under this description of his southern boundary, Boardman claims that his title extends to the center of the pond, through which he claims there flows a well-defined current. On the other hand, the plaintiff claims that Boardman’s title extends only to the high-water mark of the pond. It is admitted by both parties that the plaintiff’s ancestor, under whom both of them claim, had title to all the land adjacent to and covered by. “McCall’s mill-pond,” as well that portion now owned by Boardman as that part owned by the plaintiff; that the title to .all of, said land is now in the plaintiff, except in so far as it was divested by the deed of Sarah McCall and E. J. Davis to Henry B. Davis, dated Aug. 15, 1883, conveying the land now owned by Boardman to Henry B. Davis, from, whom Boardman derives his'title,, and that Boardman has title to all the land covered by said deed. The evidence shows that H. B. Davis conveyed the land covered by his deed to H. T. Powell, on Aug. 18, 1886,' and on May 10, 1887, Powell made a deed to the same to, Boardman, the defendant. Each of these 'three .deeds purports' to convey thirty acres of land, more or less, the southern boundary of which is described as being “McCall’s'm'ill-pohd.” • According to the evidence, there' is no .perceptible.^current in the pond, when, the water is -up, but when the" water is;:down there is;
We think that this view is not only supported by the weight of authority, but also by sound reason. If the common-law rule which is applied to land bounded by a stream is applicable to land bounded by a lake or pond, then every lake or pond which is surrounded by separate tracts of land, belonging to different'owners, some of which abut upon it at each end and some at each side, will have to be supplied with at least two imaginary threads of streams, which will intersect each other at right angles in the center of the body of water, and the side-lines projected into the water to find afilum aquse for one proprietor will intersect the similar outgoing lines of another proprietor; and if there are several of such tracts at each end and several at each side, the side-lines of one proprietor may intersect those of several other proprietors, so that land under water may be included within the lines of two, three, or even more ostensible owners. Let us suppose, simply for the sake of easy illustration, that there is a natural lake or pond which is perfectly square, currentless, and the marginal lines of which run with the cardinal points of the compass. A. owns all the land which abuts upon the lake at the north, B. all that touches it at the south, and O. and D. respectively own all the land at the east and west sides of the same. The land of each of the four proprietors- is described as being
In State of Indiana v. Milk, 11 Fed. Rep. 389, Gresham, J., well and forcibly states the reasons why the common-law principle relative to land bounded by a stream is not applicable to land described as being bounded by a lake or pond. He says: “ Non-navigable streams are usually narrow, and the lines of riparian owners can be extended into them at right angles, without interference or confusion, and without serious injustice to any one. It was therefore natural, when such streams were called for as boundaries, to hold that the real line between opposite shore-owners was the thread of the current. The rights of riparian proprietors in the bed of the stream, and in the stream itself, were thus clearly defined. But when this rule is attempted to be applied to lakes and ponds, practical difficulties are encountered. They have no current, and being more or less circular, it would hardly be possible to run the boundary lines beyond the water’s edge, so as to define the rights of shore-owners in the beds. Beaver Lake is seven and a half miles east and west, and less than five miles north and south. Extending the side and end lines into the lake, there being no current, when would they meet? This rule is applicable, if at all, whether there be one or more proprietors. I do not think that the mere proprietorship of the surrounding lands will, in all cases, give ownership to the beds of non-navigable lakes and ponds, regardless of their size. It would be unfair and unjust to allow a party to claim and hold against his grantor the bed of a lake containing thousands of acres, solely on the ground that he had bought and paid for the small surrounding fractional tracts—the mere rim.” We think it is very unreasonable to presume that on,e owning a large pond- and all the land under and around its waters, who sells and conveys to another a small tract of the surrounding land, intends, by designating the pond as one of its boundaries, that his grantee shall take all the land beneath the water between the shoreline of the premises conveyed and the center of the pond. This-
"We are aware that the Supreme Court of the United States, in Hardin v. Jordan, 140 U. S. 371, a case which went up from the northern district of Illinois, in an elaborate and carefully prepared opinion, held that, “By the common law, under a grant of lands bounded on a lake or pond which is not tidewater and is not navigable, the grantee takes to the center of the lake or pond, ratably with other riparian proprietors if there be such”; and that this was the law of Illinois, “notwithstanding the opinion of its highest court in Trustees of Schools v. Schroll, 120 111. 509.” Three of the Justices, however, dissented from this ruling, holding that “the question how far the title of a riparian owner extends is one of local law,” and that the Supreme Court of the United States was bound by the decision of the Supreme Court of Illinois in Trustees of Schools v. Schroll, which Mr. Justice Brewer, who delivered the dissenting opinion, termed, “the distinct and well-considered, as it was also the unanimous decision of the highest court of the State.” He further said: “We do not think it sufficient to overthrow the force of this decision, to-say that the common law of England was different, a proposition which, in passing, we may say we doubt.” We have carefully read and considered the opinion of the majority of the court in Hardin v. Jordan; and with all due deference to so high an authority, for which we have the greatest respect, we must say that we are" not convinced that the common law was as therein stated. While the opinion shows that the case received a careful investigation and consideration, as, from the. high character of the court which rendered it, one would naturally have presumed, no case decided by an English court
In the further discussion of the subject, the learned Justice cites the case of Bristow v. Cormican, supra, as being “directly in point,” and of which he says: “Of course this decision has not the controlling authority which it would have if it had been made prior to our Revolution. But it is the judicial decision of the highest authority in the British empire, and is entitled to the greatest consideration on questions like this, of pure common law.” Undoubtedly the decision of the highest court of the British empire, on a question of pure common law, is entitled to great consideration in this country, even though,, by reason of its having been rendered since the American Revolution, it is not to be. considered here as a controlling precedent, upon the question involved. But, as we have said, we do not think that the precise question which we are considering was passed upon- by the House of Lords in that case.. There the plaintiffs “brought trespass against the respondents to assert a ¡several fishery in Lough Neagh. ’The plaint contained three.
A case much more in point is that of Johnson v. Bloomfield; Ir. R. 8 C. L. 68, which the Supreme Court of Ohio, in Lembeck v. Nye, 47 Ohio St. 336, in discussing the rule with reference to land bounded by non-navigable lakes, cites as authority for the statement that “In England the rule is to limit the
The rulings of those of our American State courts, which have held that the grantee of land described as being bounded by a lake or pond takes title to the center of the water, have not been reached by following any like rulings made by the
We believe that the question should be viewed rather from a practical, common-sense standpoint than from a purely technical one; and that if the prominent, tangible characteristics of the thing named as a boundary, taken as a whole, are those of a lake or pond and not those of a stream, and it is commonly known and designated as a certain lake or pond, and it has been in existence in this condition long enough to have become what may be termed a permanent body of water with well-defined boundaries, the law applicable to lakes and ponds should be applied to it, even though there may be some evidence of a current in it. We can readily see how a little stream, by means of a dam placed across its current, checking its onward flow and causing its accumulated waters to spread out above the
It is true that courts which have refused to apply the principle usque ad filum aquse to natural lakes and ponds have held that it is applicable to those that are artificial. We apprehend that this distinction is based upon the presumption that the natural ones are permanent, while the artificial ones are but of a temporary character. This is correct as a general rule, and the presumption upon which it is based is good as a prima facie one; but every natural lake or pond is not permanent, nor is every artificial one necessarily of a purely temporary character. It was said, in a leading case, that “Where an artificial pond is raised by a dam, swelling a stream over its banks, it would be natural to presume that a grant of land bounding upon such a pond would extend to the thread of the stream upon which it is raised, unless the pond had been so long kept up as to become permanent, and to have acquired another well-defined boundary.” Waterman v. Johnson, 13 Pick. 265. In Wood v. Kelley, supra, it was held, that where a conveyance bounded land upon a fresh-water pond which had been permanently enlarged by means of a dam at its mouth, the title extended to the low-water mark of the pond in its enlarged state. In the case at bar, it is not clear from the evidence in the record whether there is a stream flowing from a higher level into the pond, or whether it is simply fed by springs arising in its
As the defendant in error has raised the dam somewhat since this litigation began, we will say that, under the description in the deeds, Boardman’s land extends to the low-water mark of the pond as it existed before this was done.
Judgment reversed.