11 N.H. 530 | Superior Court of New Hampshire | 1841
In this case both parties claim by conveyance from John Kilton. The deed from John Kilton to the tenant, is the older deed, and the land conveyed is described as being about thirty acres, beginning at a given monument, and running certain courses and'clisterices 11 north-east ward! y to the river; thence up the river to the third range;" thence up the road to a certain line ; thence by various courses to the bound began at.
This description clearly bounds the party upon the river, and such boundary, above tide water, uniformly passes the title to the middle of the stream, including the water, the bed of the river, and all islands, unless there be an express reservation, or an immemorial usage to the contrary. 2 Hil. Ab. 126; 3 Kent's Com. 428; King vs. Smith, Doug. 441; 2 N. H. Rep. 369, Claremont vs. Carlton.
The islands in controversy are situated nearest the bank of the river where the premises conveyed to the tenant lie, and the title in the islands passed to the tenant by the ordinary legal effect of the grant, unless they are brought within some exception to the general rule.
It is contended that the title in the islands did not pass, for the reasons that such was not the intention of the parties, and that a location of the land was made not including them. Evidence to control the deed to this extent is admissible only on the ground of a latent ambiguity in the deed. The only ambiguity alleged is an uncertainty involved in the meaning
The plaintiff, however, contends that where the parties give, at the time, an actual construction to the term, limiting it to the margin of the river, it either shows such an ambiguity in the use of the term as will leave it open to explanation, or the court will limit the grant to such boundary, on the ground of an agreed line mutually established under the deed.
But the evidence in our opinion does not sustain either point taken. The possession of the islands was conflicting and uncertain, and shows no definite construction of the parties as to the bounds of the grant.
For several years after his purchase, the tenant improved the westerly side of the islands, except that part of the lower island which was not cleared. John Kilton, a few years before leaving town, in 1829, cleared the alders from part of the lower island; he also occitpied a part of the main land belonging to the tenant, but on what contract did not appear. It would seem probable the whole might have been permitted under some license from the tenant. There is clearly nothing in the evidence showing an agreed, or an acknowledged line between the parties, or that the occupation was designed, or recognized by them as the limit of the grant. For some eight years past the occupation has been wholly by the tenant.
The declarations of the tenant show no agreed line, but a conflicting claim. He said that his deed covered the islands, but, at the same time, according to the statement of the witness, that he thought John Kilton would hold them. He also said, on another occasion, that he thought John Kilton honestly owned the great island, but the stream around the small island was so small it could not be called an island ; and afterwards, on acquiring title on the opposite side of the river, that he thought he could then hold the islands, as his deeds were both bounded on the river.
Under such evidence our opinion is that the boundary fixed under the settled legal construction of the term, river— must remain as the true boundary betwixt these parties, and that the islands, for aught that now appears, passed by the deed from Kilton to the tenant.
The verdict must, therefore, agreeably to the conditions on which the case is drawn, be set aside, and
Judgment entered for the tenant.
