Murphy v. Copeland, 51 Iowa 515

Murphy v. Copeland

51 Iowa 515 | Iowa | 1879

Adams, J.

i. degb: <ieconstruction oi' — If the banks of a stream can be regarded as extending to the middle, so that the words “up the west bank” mean the same as the words up the east hank would, then the words west hank, as a call in the deed, lose all significance. But we are not allowed to divest any words of a deed of all significance, if it can be avoided. It is true, if we consider the first line as commencing in the middle of the stream, and the third as ending in the middle, there would be a repugnance in the calls. But while the language used would, if strictly construed, make the first line commence, and the third end, in the middle of the stream, it seems manifest to us, in view of the words used — “up the west bank” — such was not the understanding of the parties. The construction which would make the first line commence, and the third line end, in the middle of the stream, is rather technical than otherwise. The words, taken in their common import, do not necessarily mean that. The words up the west bank, taken in their common import, do necessarily mean that the stream was excluded.

Without doubt, where a tract of land is described simply as bounded by an unnavigable stream, it would extend to the middle, but this tract is not so described, and we cannot so construe the description without doing violence to those words which we think the parties must have used with the clearest appreciation of their force and significance.

We think the court erred in its construction.

Reversed.