121 Va. 79 | Va. Ct. App. | 1917
delivered the opinion of the court.
This is an action of ejectment brought by Ann E. Mars-ton against A. W. Jennings. We will hereinafter designate these parties, respectively, as plaintiff and defendant, in accordance with their positions in the circuit court. There was a judgment below for the plaintiff upon a demurrer which she interposed to the evidence, and thereupon the defendant brought the case here upon a writ of error.
No effort was made by the plaintiff to trace title to the Commonwealth, and the first question presented for our decision is whether the title under which she claims is shown to have been derived, as she contends, from a source common with that of the defendant.
The tract of land described in the declaration is known as the “Badkins Tract,” and its southern boundary, as called for in all of the deeds in evidence describing the same, is the “Cranston Mill-pond.” This pond or darn has been down for a number of years, and the stream which formerly flowed into and made it now runs through the land once constituting its bed. The land in actual dispute lies between the middle thread of the stream and what was formerly the edge of the pond on the side next to the “Bad-kins Tract.” (The plaintiff’s ultimate contention, denied by the defendant, is that the deeds under which she claims and which call for the pond as a boundary carry her title to the center of the stream.)
The plaintiff’s documentary title, so far as shown, is as follows: (1) Deed of trust (to secure a debt), dated January 20, 1886, from A. EL and Charles Cranston (alleged common grantors) to E. B. Ratcliff, trustee," (2) Deed, dated October 6, 1890, (consummating a foreclosure and sale under the trust deed), from H. B. Ratcliff, trus
Having traced her own title as above, the plaintiff then introduced two deeds in the defendant’s chain of title which, with their recitals and certain oral and undisputed evidence, show that the defendant’s title was derived from Charles Cranston in his own right and as the survivor of his brother, A. H. Cranston. These two deeds, so far as they are material in this connection, were as follows: (1) Deed, dated January 15, 1913, from Charles Cranston and wife to the Cambridge Manufacturing Company for “a certain water grist-mill formerly known and called Bush’s mill * * * and the mill-pond which, by estimation, is ninety acres of land, be the same more or less, covered with water, and about thirty-five acres of land, be the same more or less, being a portion of the hundred acres belonging to said mill property.” The deed contains no further description of the ninety-acre tract, but describes the thirty-five acres by metes and bounds; (2) Deed, dated April 28, 1914, from Cambridge Manufacturing Company to A. W. Jennings, the defendant in this case. This deed conveyed the ninety acres and the thirty-five acres .by substantially the same description as above; and each of the two deeds warranted the title generally as to the latter, and specially as to the former tract. It is under the conveyance of the ninety acres that the defendant claims title to the land in controversy.
It will thus be seen that the title of the plaintiff and defendant, respectively, is each derived from the same grantors, Charles and A. H. Cranston; but at this point the question arises, whether conveyances from the same grantor of separate tracts of land, although they be adjoining tracts, necessarily constitute, in contemplation of
The oral evidence.of the defendant, which was not objected to, shows that Charles and A. H. Cranston derived their title to the “Badkins Tract” from one source and to the mill-pond tract from another source, and that they had disposed of their interest in the former before they acquired their interest in the latter.
The fact that the Cranstons conveyed the mill-pond tract to the Cambridge Manufacturing Company with special warranty is plausibly accounted for by the testimony of Charles Cranston himself, who says that the ninety-acre tract was conveyed by special warranty because of an adverse claim which had been asserted thereto by a third party who does not appear to, at any time, have had any interest in or claim to the “Badkins Tract.”
The established and familiar general rule is that in an action of ejectment the plaintiff must recover upon the strength of his own title, which he must connect with the Commonwealth, or with a common source with that of the defendant. There are exceptions to the rule but this case does not fall within any of them. The defendant, for example, was not a mere trespasser or intruder but held a deed for the land under which he was exercising the acts of ownership and possession resulting in this suit.
Having reached the conclusion that the plaintiff failed to make out a prima, facie case entitling her to recover, it becomes unnecessary to go at length into a discussion of the further question whether the deed under which she claims the “Badkins Tract” should be construed to extend to the edge or the middle of the stream. She claims to the middle, and the defendant claims between the middle and what was formerly the northern edge thereof. That the question of
We may add, however, that there was evidence tending to show that the former owners of the “Badkins Tract” had never in fact owned or claimed further than the edge of the pond; and that the southern boundary of that tract was indicated by an old and marked line following the high-water mark of the pond bed. In this state of the case, it by no means follows, as a matter of law, that the deed to D. W. Marston extended further than the northern edge of the pond. Riparian owners (on non-navigable streams) are presumed to own to the middle thread of the stream; and when they do own to the middle and convey by a deed calling for the stream as a boundary, they are conclusively presumed in law to convey to the middle, unless they expressly exclude that presumption by words in the conveyance. The presumption of ownership to the middle of the stream, however, is a rebuttable presumption, and yields to proof that the edge of the stream is the true boundary line. When this latter fact affirmatively appears, there can be no presumption that a deed calling for the stream was intended as a conveyance to the middle. A grantor is not presumed to intend to convey more than he owns.
For the foregoing reasons the judgment of the circuit court will be reversed, and this court will enter up judgment for the defendant upon the demurrer to the evidence.
Reversed.