34 Conn. 462 | Conn. | 1867
The objection that the action is misconceived, urged by the defendant, was not made in the court below, and for that reason has not been considered.
Three questions were distinctly made by the requests of the plaintiffs, and are presented by the pro forma negative charge of the court for our consideration. They are resolv
1. First, then, we are to enquire whether the plaintiffs had title as alleged. It is not material to a determination of this question that we should regard any of the deeds prior to that of J. D. Warren to Anness. Warren, as assignee in insolvency, had all the title of George E. Waring, and if, as the plaintiffs claim, Waring owned the land covered by the pond, and Warren’s deed to Anness conveyed the title to the thread of the stream, the title is in the defendant and not in the plaintiffs. The question hinges therefore on the true construction of the deed of Warren to Anness, and whether it did or did not convey a title to the thread of the original stream.
The language of the deed in respect to the eastern boundary next the pond is “East by the pond.” The pond is an artificial one, created by a dam across the stream. The dam was erected and the pond made soon after the town was settled, and more than two hundred years ago; and being near the centre of the town, and very valuable, will undoubtedly be kept up at the same point as long as water runs and the country is inhabited.
It is well settled that where land is bounded, in a deed, in general terms, on or by a river or stream not navigable, the grant extends to the centre of it; and that where so bounded on or by a natural pond, the grant extends to its low water margin only. But the law is not so well settled where the pond is artificial, made by the erection of a dam across a stream, and the expansion of it- over the adjoining lands. There are a few cases in this country in which the court adopted the rule that where the grant is bounded on or by an artificial pond, and not expressly or by clear implication by the margin of it, the grant extends to the original thread of the stream as if no pond existed. A majority of the court are disposed to follow those decisions and adopt that rule. But it seems to me that the rule is an arbitrary one, and in a
2. In relation to the second question, we are all of opinion that it must be answered affirmatively, and that the plaintiffs had an interest in the ice, and a right to have it remain where it was, which the law will protect. The defendant, it is conceded, could not have diverted the water, if liquid, in any