5 Denio 599 | Court for the Trial of Impeachments and Correction of Errors | 1846
When this case was formerly before the court, the plaintiffs sought to recover by virtue of a title supposed to have been derived under a deed from N. Rochester to W. Cobb, for mill lot No. 12. And for the purposes of the trial which then took place, it was admitted by both parties, that the premises in controversy, a part of the alveus or bed of the stream of the Genesee river adjacent to mill lot No. 12, belonged to Carroll, Fitzhugh and Rochester, in August, 1817. The deed to Cobb described the easterly boundary line of the lot as running along the shore of the Genesee river; and the plaintiffs claimed that such a boundary carried them to the middle of the
The fact that Cobb went into possession of the premises in controversy, under the supposition that he had obtained a title to the same by his deed, did not authorize a Wrongdoer who had no title to enter upon the possession of his assignee and oust the latter therefrom. And if the defendants did not own the premises, they were wrongdoers in reference to the prior possession of Starr, although they supposed that by the legal construction of the deeds through which they claimed title, such deeds would cover' the premises. The decision of the judge who tried the cause, was therefore erroneous, if the defendants did not succeed in showing a good paper title to the premises through the deed to Allen for 100 acres of land, as referred to and excepted in the conveyance from Gorham & Phelps to Hunt and others in 1790.
It was admitted upon the trial, that at the time of the conveyance to Hunt and others, Gorham & Phelps, the grantors, owned the premises which purported to be granted by that deed. And that they also had title to the 100 acres therein excepted, and referred to, as having been deeded to Allen, at the time of the conveyance to him. But I can see no principle upon which we can give a more extended construction to either of those conveyances, for the purpose of including that part of the alveus or bed of the Genesee river, than we have heretofore
It must be recollected, that the supposed deed to Allen was not produced by the defendants, upon the trial; and that there was no evidence of its existence, other than this reservation or exception in the subsequent deed of 1790, to Hunt and others. Of course there was nothing beyond the language of the reservation itself to raise a presumption that the 100 acres of Allen was not restricted in its river boundary to the bank of the river, in the same manner as the 20,100 acre tract out of which that 100 acres was excepted and reserved. Indeed such a presumption would make the exception more extensive than the grant. But Lord Coke says an exception is always of a part of the thing granted. And in this case I think it would be doing violence to the language of the conveyance to Hunt and others, to suppose the whole of the 100 acres which had been previously conveyed to Allen, was not included with
There was no evidence on the trial that Rochester, Fitzhugh and Carroll, or any persons claiming under them, ever had possession of any part of the alveus or bed of the river, at the place in question, or any where else, claiming the same under and through the deed referred to in the conveyance to Hunt and others, previous to the possessions of Cobb and Starr. On the contrary, it appears from the map which was given in evidence upon the trial, that Allen’s mill stood some little distance back from the margin of the river, and that the water which supplied that mill while in the hands of Williamson, was taken from the river above the south line of the 100 acre lot. It is probable, therefore, that no person had ever erected a dam in the
For these reasons I think the judgment of the supreme court is erroneous and should be reversed.
The premises in question are part of the bed of the Genesee river. The plaintiffs have shown no paper title, but rely on a possession thereof admitted to have been commenced in the fall of the year 1819, by William Cobb, and to have been continued by him and the plaintiff Starr, to whom it was transmitted, from that time till the entry of the defendants. This possession is sufficient to entitle Starr to recover, unless the defendants have shown a better right. (See cases cited in Cowen and Hill’s Notes to Phil. Ev. note 309, pp. 353, 354.)
It is claimed by the defendants that the premises ar.e part of a tract, of one hundred acres, conveyed by deed to Ebenezer Allen. This deéd was not introduced, nor is there any evidence of its existence or of what particular premises it purported to convey, except as contained in a conveyance from Gorham and Phelps to Ebenezer Hunt and others, dated the eighth day of November. 1790. It becomes necessary, therefore, to examine this conveyance with some particularity. It grants “ a certain tract of land and water in the Western territory so called, it being part of the western territory lately ceded by the state of New-York to the commonwealth of Massachusetts, in township, No. 1 in the short range, so called, situate on the west side of the Genesee river (then) in the county of Ontario, (but now a part of Monroe county) containing twenty thousand one hundred acres,” beginning at a marked beech post standing on. the bank of said river,” and then, after running around three sides of the tract (designating each corner by a monument) “ to a white oak tree ” marked, &c. runs “ on the hank of said river,
Again. The terms “the said Allen’s mills to be the centre of the eastern boundary,” clearly, as I think, establish the fact that the bed of the river tvas not intended to be included. It is shown that this mill stood several rods from the river, but if
.Prior to the year 1819 the title to lot number 12 was in Nathaniel Rochesterand this lot extended east, as the defendant contends, to the thread of the Genesee river. In that year he.'conveyed different portions of the lot to Cobb and Morgan, which embraced the whole width of the lot on the west end. The eastern lines of those lots are described as running “ along the shore of said river to Buffalo street.” The question, whether these east'lines run along the thread of the stream, and thus extended the lots east to that point, has been settled in this court. In the case of Child v. Starr, (4 Hill, 369,) a construction has been put upon the language of those deeds in this respect; and it must now be considered as the settled law of the case, that the rights of the grantees in those deeds are limited to the shore of the river.
This is admitted by the plaintiffs; and they do not seek to recover in this suit by virtue of any right acquired under those deeds; but they take the ground that the title of Rochester himself never extended any further east than the east lines of the lots he conveyed to Cobb and Morgan, or the shore of the river, and as they have proved a prior possession beyond those lines, under claim of title, they insist that that possession will entitle them to recover in this suit, because the defendants, as they claim, have no title whatever: ' Whether Rochester had title to the bed of the river, east of the premises conveyed to Cobb and Morgan, is therefore the question to be decided in this case.
In the deed of partition between Carroll, Fitzhugh and Rochester, this lot No. 12 is conveyed to Rochester, and is described as bounded “by the Genesee liver on the east.” This description will extend the title of Rochester to the middle of the stream, provided their joint title extended so far east; for all the authorities concur, that when the premises conveyed are described as bounded by a stream of water, the legal presumption is that the grantor intended to convey to the middle
Phelps & Gorham, were the owners of a large tract of country lying upon both sides of the river; and they conveyed' to one Allen one hundred acres lying on the west side of the river, which the defendant alleges embraced the premises in question. We have no particular description of the premises conveyed to Allen, nor is" there any evidence of such a conveyance, except that contained in a reservation, to be found in a deed from Phelps & Gorham to Ebenezer Hunt and others, of a 20,100 acre tract “ situate on the west side of the Genesee riverand which embraced the one hundred acres before sold and conveyed to Allen. That reservation is in these words, “ reserving out of the abóte described land one hundred acres, which is conveyed by deed to EbeneZer Alien, and to be laid out in a square form as near as the traverse Of the river will admit '; and the said Allen’s mill to be thé centre of the eastern boundary.” It is clear that in locating this one hundred acres, we have no very certain land marks to direct us. It- must, however, be on the river side of the tract, for on one side the line is to be regulated by the traverse of the river; that is, it is to follow its windings. And Allen at the time had a mill upon his hundred acres, which is a point well known, and the north and south lines were to be equally distant from that mill.
The counsel for the plaintiffs contends that as the eastei'n boundary Of this larger tract is described as being “ on the bank of the river,” which description the authorities agree Will exclude the bed of the river; and as the one hundred acres is excepted from the larger tract, the east line of the latter cannot be extended to the middle of the stream. If, as is contended, the one hundred acres must be taken from the larger tract, and that tract is limited to the bank of tire river, it follows necessarily that the one hundred acres can extend no farther east. If we had the description contained in the deed of the one hundred acres before us, and that limited the east line to the bank
At the time that Allen bought of Phelps & Gorham, they owned the bed of the river, as well as the land on the margin; and it is sufficiently obvious, from the language of the reservation in Hunt’s deed, that they intended to sell and convey to Allen, and that he intended to buy a site for a mill, to be propelled by the waters of that river. The land then at that time was wild and uncultivated, and as one object of Allen was to purchase a mill site, no presumption can reasonably be indulged, that the parties intended to limit the grant to the bank of the river. Indeed, the presumptions, I think, should be all the other way, while there is no particular description requiring a more limited construction. It should appear from the deed, that the parties intended to exclude the bed of the river from its operation, by the use of such terms in the description of the premises as have been held by the court, to confine the grant to the bank or shore, or the court should presume that the grant extended to the middle of the river. Otherwise one object of the purchase will be defeated. If Allen’s title extended only to the bank of the river, he would fail to secure thereby the use of the water of the river for his mill. Hence, I think it is not enough to refer to the description contained in tiie conveyance of the larger tract, from which the one hundred acres were excepted, and insist upon applying that description to Allen’s deed; but the plaintiffs should also show that Allen, by the terms of his deed, was confined to the bank of the river.
In my judgment the conveyance to Allen vested in him the title to the middle of the Genesee river; and if so, the case shows that the defendant now holds that. title. I think the judgment should be affirmed.
Barlow, Johnson and Talcott, Senators, delivered written opinions in favor of a reversal of the judgment of the supreme court, concurring in the views entertained by the chancellor. ’
On the question being put, “ Shall this judgment be reversed ?” the members of the court voted as follows:
For reversal: The Chancellor, and Senators Barlow, Beers, Deniston, Deyo, Johnson, Lott, Sanford, J. B. Smith, Talcott, Williams, Wright—12.
For affirmance: Senators Hard, Porter, Putnam, S. Smith, Spencer—5.
Judgment reversed, and venire de novo ordered.