Camden v. Creel, 4 W. Va. 365

Camden v. Creel

4 W. Va. 365 | W. Va. | 1870

Maxwell, J".

This cause turns entirely upon the construction to be given to the calls of the grant to "William Harts-horne, of the 129 acre tract of land.

The calls are for the land as lying on the north side of Hughes’ river, beginniug at a black oak on the south bank of said river, thence crossing the river to the north side thereof, thence by certain courses and distances to a gum and two beeches, thence S. 8°, E 68 poles to two sugar trees and a buckeye on the north bank of said river, the same course continued 10 poles further, making in the whole 78 poles, to the south bank of said river, thence up the same with its meanders 492 poles to the beginning.

The question is, how does the line run from the point at the end of the said ten poles on the south bank of the river to the beginning corner ? It appears from the evidence in the case that when the river was about belly deep to a horse, the black oak, beginning corner, was five rods and some links from the edge of the water, and that the point on the south bank of the river at the end of the said ten poles from the two sugar trees and buckeye on the north bank was, at the same time, about six poles from the edge of the water.

There is no doubt where the commonwealth or an individual having title to lands lying on both sides of a water course, not navigable, grants the lands lying on one side thereof and bounded thereby, that the grantee gets by such grant a moiety of the bed of the water course, unless the grant clearly excludes such construction of it. Hayes vs. Bowman, 1 Randolph, 417; Mead vs. Haynes, 3 Randolph, 33; Crenshaw vs. The Slate River Co., 6 Rand., 245; Buckley vs. Blackwell, 10 Ohio Reports, 508; Hopkins vs. Kent, 9 Ohio Reports, 13.

No case has been cited where the calls are to cross the water course, as in the case under consideration. We are therefore left to decide this case without either guide or restraint. If calls for the north side of the river as a boundary would have given the grantee title to the middle of the river, something more must have been intended by *367calling for the south bank of the river. In the view I take of the language used, in the survey, I have no difficulty in determining what was intended. The language of the survey is, “to the south bank of said river, thence up the same with its meanders 492 poles to the beginning.” I understand this language, “thence up the.same,” to mean up the south bank to the beginning. It seems to me this view is sup-poi’ted hy the fact that the call at the lower point is not for timber that might have stood accidentally at that place, but is for a point that is about the same distance from the river that the beginning corner stands.

My conclusion is that the line should he run from the lower point on the river bank to the beginning corner along the south bank of the river, taking care to keep the line run the same distance from the water in the river, when at ordinary stage, that the beginning corner and the lower point on the river bank are from the water at the same stage; State of Alabama vs. State of Georgia, 28 How., 505.

It follows, therefore, that the decree complained of .will have to be affirmed, with damages and costs to the appellee.

Brown, P., concurred in the judgment.

Decree affirmed.