Daniels v. Cheshire Railroad

20 N.H. 85 | Superior Court of New Hampshire | 1849

Wilcox, J.

The deed of the plaintiff has the effect of conveying to the defendant all the land included within the boundaries which it describes, whether that land is covered by water or not. The western boundary being the bank of Connecticut river, the land which that water covers at its ordinary height is not comprised in the grant, which extends to the water, and no farther. Rix v. Johnson, 5 N. H. 520; 3 Kent 434.

The written contract, of which the construction is brought in question in this case, required the defendants to cause to be measured all the land conveyed, “ lying on both sides of Cold river,” and to pay the plaintiff a sum to be ascertained by the result of that measurement.

“Land” is a word to which the law assigns a technical meaning : and that is the comprehensive one already referred to, which does not discriminate between that which is and that which is not covered with water. And ordinarily a grant of land upon both sides of an inland stream not navigable, would extend on each side to the thread, and comprehend of course the whole bed of the river.

But in cases in which it is apparent that parties do not intend to use, in a technical or legal sense, a word which has one, and in which the settled rules of legal construction do not require such a meaning to be attached to it, the court will inquire what meaning the parties attached to the word. And this inquiry may ordinarily be satisfied by referring to the position and circumstances in which the parties stood, when they made use of the word in question. De Longuemere v. N. Y. Fire-Ins. Co., 10 Johns. 120.

The deed having conveyed all the land within certain limits, the defendants agreed to measure, not the land conveyed, without restriction, but the land upon both sides of Cold river. "We think it apparent that they intended the same as if they had said, those parts of the land conveyed which lie upon each side of that part of it over which Cold river flows. This was what the defendants undertook to be caused to be measured, and not the “ said land,” without qualification or reservation. The instruction given to the jury was, therefore, in this particular correct.

In limiting the land subjected to be measured, to include only such parts of the land conveyed as were fit for cultivation, we think the court erred. All the land conveyed lying upon either side of Cold river, which we have seen extended to the Connecticut river, was, by the terms of the contract, to be measured. No other restriction, except that which is implied hy its location upon the sides of Cold river, is to be found in the provisions of the contract subjecting “ said land” to be measured.

For this reason the verdict must be set aside and a

New trial granted.