179 Iowa 1097 | Iowa | 1917
“Now therefore, in consideration of the above payment,
Other provisions have no bearing on this controversy. Plaintiff caused a survey to be made, and on May 31, 1915, notified the defendants that, as a result of the survey, there was a shortage of 2.77 acres, and compensation at $160 per acre was claimed. No survey was made in behalf of defendants. The object of this action is to recover that amount on the bond. The plat below indicates- the location of the land, and the survey as made at the instance of plaintiff:
The defendant pleaded: (1) That the stream, being the White Breast Creek, formed the boundary between this land and that beyond; (2) that the language of the deed described the land as extending to the water’s edge when at ordinary height; (3) that the survey was not of the land described in the deed, but only part of it; (4) that there, were in fact 55 acres in the land conveyed; (5) that the two strips indicated on the plat had been acquired by the grant- or by adverse possession, and that, by mutual agreement, these were to be included as part of the land sold. The deed described the land conveyed as:
“The north 25 acres of the southwest quarter of the northeast quarter, except commence at the northwest quarter thereof, thence south 3 rods, thence east 54 rods to
The descriptions in the chain of title had been the same since 1889. The land across the creek immediately to the . north had been owned and conveyed to and by different grantors, as follows: . ¡
“That part of the northwest quarter of the northwest quarter north of the main channel of White Breast Creek.”
As the strips of land shown on the plat were expressly excepted from the conveyance, and have never been transferred to plaintiff, and defendant was not shown to have acquired title thereto by conveyance or by adverse possesssion, this portion of the defense' -required no consideration. Bút two questions remain: (1) The meaning of that portion of the description reading “all that part of the northeast quarter of the northwest quarter lying and being on the right bank of White Breast Creek (or in the bend thereof) ;”and (2) whether, even though this mean all land to the water’s edge, and therefore there were substantially 55 acres in the tract, this will relieve defendant of liability, in view of the conditions contained in the bond. Other errors are assigned, but not included in the brief points. !
I. The land immediately beyond that in controversy was described as north of the main channel of the stream and, under such description, in the absence of language indicating otherwise, extended to the center of the creek, such center constituting the boundary. City of Denver v.
“It has been said that the reason why a deed bounding only on a stream of water carries title to the center is that the stream thus defined is supposed to be a line without Avid tli in the center of the stream, and not a space having Avidth and extent as appearing upon the face of the earth. There is a reason, however, Avhich goes deeper than merely presuming that the stream is a line. The presumption is that no land is left without private ownership, and that the boundaries of. the owners on opposite sides of the stream are in contact Avith each other; and the only place Avhere they can touch without injustice to either owner is at the center of the stream. The ‘center of the stream/ referred to .in the rule which extends the boundary of land bordering on a nonnavigable river from the bank of it to the center of the stream, means the center of the whole stream, and not the center of that portion of a stream parted by the presence of an island therein which runs between the island and the land on the bank of the river. The rule applies to land of any tenure, Avhether freehold, copyhold, or leasehold. To retain title to the bed of the stream in the grantor, the intention to do so must be clearly expressed. This may be done in various ways, and the question Avhether or not it has been done will depend upon the language of the conveyance and the particular circumstances of the case.” 3 Farnham on Waters, p. 2510, Section 852.
The land in controversy is described as all of the quarter section “lying and being on the right bank of White Breast Creek.” Is the boundary of the land, so lying on the bank, at the top of the bank, the Avater’s edge, or the center of the stream? The deed does not express or suggest any intention of reserving or excepting from the operation of the conveyance the narroAv strip betAveen the top of the bank
So, too, for like reason, the description in a deed of a boundary as the bank of a stream, or as beginning at a defined point on the bank and running along a nonnavigable stream, is presumed to run along the center of the stream, if the grantor’s title so extends. Kent v. Taylor, 64 N. H. 489 (13 Atl. 419); Gould on Waters, Section 197 et seq.
The language of the description may be such as to limit the boundary to a line on the bank or to the margin of the stream, but nothing of the kind is to be implied from the description in question. 3 Farnham on Waters, Section 857. In Murphy v. Copeland, 51 Iowa 515 (58 Iowa 409), the language employed in the conveyance was such that the boundary was found to be the edge of the stream at low water. Here, the boundary is not indicated save by the location of the land, and we are of opinion that the true boundary is that of the adjoining land, i. e., the center of the stream.