6 Lans. 15 | N.Y. Sup. Ct. | 1872
The determination of this case depends upon the construction which shall be given to
Where a line is given in a deed as running from one monument to another, it is always presumed to be a straight line, unless a different line is described in the deed, so that by ascertaining the monuments at. the angles of a parcel of land, the boundary lines can at once be determined. (Allen v. Kingsbury, 16 Pick., 238, 239 ; Wash. R. P., 631.) In this case the deed to the plaintiffs calls for a line running from the center of the mill-dam through the center of the millpond to the road. The direction of this line will be fixed when it is ascertained what is meant by the words “ through the center of the mill-pond,” and when fixed will determine whether the locus in quo is embraced within it or not. We think the deed itself furnishes evidence which makes it reasonably certain that the partiés intended a line which should divide the water surface of the pond, as it was when Core was the owner, equally. The grantors convey the lands under water as the same were conveyed to them by Core and wife, and the parties mutually covenant in substance that an equal water surface shall always be preserved on each side of said line. The conveyance from Core and wife to Storms was made seven years before the deed to the plaintiff. Any change in the pond, produced while Storms was the owner, therefore, cannot affect his grant to the plaintiff. The line in question is described in both deeds in the same language. The deed from Core and wife to Storms also conveys the lands covered by the portion of the mill-pond thereby conveyed. It furthermore recites an agreement between the parties that the grantors are to sell “ the other and southerly half of said mill-pond,’' and contains a mutual covenant that the owner of eacli half
The rule contended for by the counsel for the defendants, .that a grant of land bounded upon a stream extends, to the middle thereof, has no application to this, case. That rule'.can be applied only when the grant is in terms bounded upon the pond or the stream which runs, through it generally. In such a case, it will be extended to the center.or thread of the.streana. But .such rule, being founded upon the presumed intention of the- grantor, can never, even in. such.a. case, be applied when such presumption is repelled by the language.used in the conveyance. (Child v. Starr, 4 Hill, 373; Herring v. Fisher, 1 Sand. S. C. R., 348; id., 323; Bissell v. N. Y. C. R. R. Co., 23 N. Y. R., 64; Bradley v. Rice, 13 Me., 201.) In.the case before us,, as we have seen, there is no boundary, on the pond generally,
The judgment therefore must be affirmed, with costs.
Judgment affirmed.