State v. Gilmanton

9 N.H. 461 | Superior Court of New Hampshire | 1838

Parker, C. J.

The facts necessary to a decision in this case are not fully stated.

The rule for the construction of grants bounding on rivers, is stated in Prop’rs of Claremont vs. Carleton, 2 N. H. R. 369—Where a grant is made extending to a river, and bounding upon it, the centre of the stream is the line of the boundary, if there is no limitation in the terms of the grant itself.

But in relation to grants bounding on ponds, lakes, or other large bodies of standing fresh water, that principle does not apply, but the grant extends only to the water’s edge. Such seems to have been the construction of the legislature in this state, as appears from the annexation of islands, in lake Win-nipissiogee, to the towns adjacent, and from a grant of one stated in the case. And such is laid down as the rule in New York, by Mr. Chancellor Walworth. 5 Wend. 447, Canal Com'rs vs. The People. Vide, also, 6 Cowen 545, note.

If, therefore, the line of the township of Gilmanton, running from Barnstead, as stated in the case, strikes a river, and the boundary is then upon a river, the grant extends to the thread of the river : but if it strikes any large body of standing water, by whatever name it is called, it will go only to the water’s edge, and be there bounded, there being nothing in the terms of the grant to show that it was to be extended further.

The controversy between the parties here seems to be, whether the water upon the westerly boundary, and particularly at the place where this bridge is built, constitutes a river. A portion of a river may be designated as a bay. It is not the less a river on account of such name. On the other hand, bays may be connected with rivers in such way as to form a body of standing water, extending inland, and not be considered part of the river.

The water from the lake, which forms a junction with the Pemigewasset river, has generally been known as the Win-nipissiogee river. In the course of that distance, however, there are large bodies of water denominated bays. There is no pretence that any of these are arms of the lake. They are on a lower level. But they may be lakes of themselves, in which case there are in fact two or more rivers ; or they may in some instances be mere enlargements of a river.

It is stated in the case that there is a current at the place where the bridge is situated. This would indicate that the boundary at that place is a river. If so, its being designated as Sanbornton bay would of course make no difference.

As there is a controversy as to the facts of the case, we think it proper to discharge the statement, and transfer the case for trial, to ascertain whether the water of the boundary, and particularly at the place in question, is a river or not. The whole character of the water on that boundary may be of importance in the construction of the grant.