2 N.H. 369 | Superior Court of New Hampshire | 1821
The dispute in this case is concerning an island in Sugar river. The demandants claim it as original proprietors of the town in which the island is sit uated. The tenant claims a portion of it as part of lot No. 46 in said town, to which lot he and his immediate grantors have shewn a legal title derived from the demandants. It is admitted, that said lot was conveyed as bounding south on Sugar river, and that more than half of the water in said river runs on the south side of this island.
The first question is, whether on these farts the island would pass under the deed through which the tenant claims. The general principle on this subject is laid down with much clearness by Sir Matthew Hale, de jurt marts et bra-chiorum ejusdém, (p. 5.) “ fresh rivers, of what kind soever, “ do of common fight belong to the owners óf the soil adjacent, so that the owners óf one side have of common “ right the proprietary of the soil, and consequently the “ right of fishing usqua ad filum, aqua ; and the owners of “ the othfer side the right of soil of ownership and fishing “ unto the filum aqua on their side.” To the same point, Vid. Burr. 2162.—12 Mod. 510—Holt 499.-6 Mass. Rep. 438, Storer vs. Freeman.—14 ditto 150.—12 ditto 311.—7 ditto 498.—6 John. 133.—12 ditto 255.—17 ditto 210, People vs. Platt.—3 Caines 319, Palmer vs. Mulliken.— 5 Hall's Law Journal, “ Batturefi passim.—Taylor’s Rep. 136, Hammond vs. M'Laughlin.—1 Maul & Selw. 656, arguendo.
The centre, or thread of the river, being either the centre in respect to the whole quantity óf fcatér,' or to: the whole width of the stream ; and, in either of those views, the cen-tre in this case being south of the island, the title to the island -would seem to have passed by the deed under which the tenant claims.
The next inquiry is, whether this principle is of necessity altered, whenever an island is situated in the stream ; and whether in such case the owners of the adjoining land do not of cotomon right own beyond the centre of that part of the stream which runs on their side of the island. The elementary writers lay down bo such qualification of thé general principle. Nor is any such qualification found in the nature of the case. For the stream asa monument is described as the whole stream and not a part of it. The right to the centre of it is to the centre of the whole stream and not a part of it. Islands, too, are so different in size ; and in some streams so changeable and difficult to fix are tl-eir boundaries and location, in consequence of high floods and long droughts,(!) that, any attempt to make them an exoeption from the general principle would be impracticable ;
.The following authorities seem to imply, that islands constitute no necessary exception to the general principle, and, Under that principle, are owned by the person who owns the land on that side of the river to which they are nearest. Just, Inst. b. 2, t. 1, s. 22.—14 Mass. Rep. 150, Lunt vs. Holland.—5 Wheat. 374, Hardly vs. Anthony.—2 Bl. Com. 261.-Bracton b. 2, ch. 2.
It remains then to ascertain whether this general principle could in the present case have been controlled or limited by the parol evidence offered on the part of the demand-ants. We say parol evidence; for the plan and survey are not here as in some states(l) annexed to the deed ; or by law made a guide to its construction ; and if in this case they had been they would prove nothing in opposition to the inference from the general principle ; because the island was so syiall as not to appear on the plan at all, and the stakes in the survey were doubtless set on the margin of the north branch of the river, as monuments between the lots east and west, and not to limit the lot on the south. 7 Mass. Rep. 498. King vs. King.—Taylor 136.—12 John. 252, Jackson vs. Hathway.
Again, the declarations of the former owners of lot 46 were not competent in the view with which they were offered as evidence of title in the demandants in contradiction 4.0 their deed, through which the tenant claims. Because an unambiguous expression in a deed cannot be contradicted by parol evidence of any kind. And when such declarations are competent, it is when they are offered, diverso intuitu, to show the character of a possession, [if title is claimed under it] whether adverse or not, (Comp, 621.—1 Es. Ca. 485.-4 Mass. Rep. 707.—1 John. 159.—4 ditto 230.-5 ditto 157-15 ditto 237-16 ditto 302) and whether limited by more or less confined boundaries. 2 D. & E. 53.—15 Mass. Rep. 152.—6 John. 21.—13 ditto 346.—1 Caines 359, But
There is, however, one view of the case, in which the testimony might be competent; and we are disposed to get at the whole merits of the case if possible. The south boundary of the lot is called Sugar river. The identical monument or boundary referred to in a deed is always a subject of parol evidence ; and when disputed, it is always left to the jury to say which was the actual monument intended. Thus there may be two trees of a similar species and with similar marks ; two similar stakes not far distant from each other, or two rivers of the same name; and which was intended by the deed would be settled by parol evidence, on the ground that it is a latent ambiguity.
In the present case the island may have been of such length and so near the centre as to cause the stream on each side of it singly to be considered and called in common parlance, Sugar river, and not branches or parts of Sugar river. The island, also, may have been so large and of such soil as to be very valuable, and the consideration paid to the de-mandants may have extended only to the worth of the lot, independent of the island. The lots in that range may have possessed an uniform number of acres, and this one have had its complement without including the island.
These and various other imaginable circumstances, coupled with the declarations and acts of the successive owners, might satisfy a jury, that the parties in the deed, by the phrase “ Sugar river,” intended only that portion of it on the northern side of the island. Vid. 2 Inst. 282.-Phil. Ev. 419, and cases cited.—16 John. 23, Livingston vs. Ten Brock, and cases cited.
Under this view of the case, we think some of the evidence rejected may have been competent; and, therefore, order
Jl new trial.
19 John. 313, Ely vs. Adams.