23 Vt. 319 | Vt. | 1851
The opinion of the court was delivered by
This is a case, which comes into this court on exceptions to the decision of the county court, in accepting a report of referees. The referee states the facts proved in the case, and says, that he intended to decide according to law. This brings the case precisely within the rule laid down in Johns v. Stevens et al., 3 Vt. 308.
The only remaining question in the case is, whether the referee mistook the law; for if so, the judgment of the county court should, have been against the sufficiency of the report. We are unable to say, that he did mistake the law. The case is so peculiar, that any decision upon it will not be likely to establish any general rule. And we are not able to agree, that it has effected any injustice in the particular case.
I should myself have preferred a somewhat different rule, — one which should have divided the land made by accretion between the parties, according to the general rule of the civil and common law in regard to alluvion formed by gradual accretion. I understand that rule to be, to give, as nearly as can well be done, to each proprietor, that portion of the alluvion, which is formed upon his portion of the shore. If, therefore, alluvion were forming upon the shore of a stream, belonging to different proprietors, we should expect that it would naturally fall, in some proportion, either equal, or unequal, to both proprietors. But the rule adopted by the referee in this case gave the whole alluvion to the defendant, and, as I understand the case, gave also to the defendant a portion of what was originally the plaintiff’s land.
This result is allowed, for the reason that the corner near the butternut tree was intended to be a moveable corner. That was the opinion of the referee, and of a majority of this court. To me it seems, that, the east line of the plaintiff’s and defendant’s land running in the middle of the stream, as all agree, the corner was a fixed point in the stream, opposite the butternut, — which is referred to as a monument, indicating where the real corner was to be found, since no nearer permanent monument was to be found; and that
If this be so to be regarded, then the receding of the middle line of the stream, while it gave more land to both parties, could not have the effect to change what was once the plaintiff’s to the defendant’s,'or vice versa, because they were both upon the same side of the stream. And all that could be required is, that the accretion should be divided between these parties according to some equitable rule.
But if the words of these deeds, or what is the same thing, if their legal construction fixes this corner in the middle of the stream, at that point which is nearest the butternut, then there is no more ground of complaint, that by the alluvion the plaintiff has lost a portion of his land, than there is in every case, where one loses land by alluvion. And that this has gone to the defendant is no more, in this view of the case, a just ground of complaint, than it is for the opposite owner, that Ms land has gone, by the same process, into the defendant’s hands. It is the result of the legal construction of his title deeds, and of the course of nature, — both of which are contingencies, which every one must be subject to. And this, in the opinion of the majority of the court, is the true state of the case.
Judgment affirmed.
