118 Ky. 745 | Ky. Ct. App. | 1904
Lead Opinion
Opinion of the court by
Affirming.
The question to be determined in this case is whether the spring known in the record as the “Blue Lick Spring” is on the land of appellant or that of appellee. Both parties claim under Robert Sanders, who died about the year 1850. After his death, in a suit to settle his estate, 80 acres of the improved land was laid off as dower to his widow, and the remainder of the tract was sold for the payment of debts. Appellant claims under the purchaser at the decretal sale. Appellee claims a part of the boundary laid off to the widow for her dower. The court ordered all of the land sold at the decretal sale, except that set apart to the widow for dower. So the controversy here turns upon what was set apart to the widow for her dower. The boundary of this land, as given in that proceeding, is as follows: “Beginning at the mouth of the lane near the bank of Eagle creek; thence with the lane N., 55 W., 105 poles, to a stake opposite the house; thence S., 25 1-2 W., 12 poles, to a stake; thence S., 87 W., 28 poles., to a large elm tree in the bank of Lick creek; thence down said creek, with its meanders, S., 21 W., 48 poles; S., 63 W., 14 poles; N., 73 W., 16 poles, to a stake on the bank of the creek; thence S., 34 E., 120 poles, to a beech, elm, and sycamore in the bank of Eagle creek; thence up Eagle creek, with its meanders, N., 63 E., 10 poles; N., 30 E., 58 poles; N., 58 E., 40 poles; N., 41 E., 36 poles, to the beginning.” The spring in controversy is in the bed of Lick creek, and near the bank next to appellee, or the dower land, which for
In 3 Washburn on Real Property, side page 632, it is said; “In respect to streams and rivers which are not navigable — that is, in which the tide does not ebb and flow —the rule seems to be universal that describing land as running to the stream or the bank, and by it or along the stream or the bank, extends to the middle or thread of the stream — the filum aqua — unless there is something in the description clearly excluding the intermediate space between the edge or bank of the stream and its thread.” So in 5 Cyc., the rule is thus expressed: “A grant or conveyance of land bounded by a non-navigable stream carries with it the bed of the stream to its center, unless a contrary intention is manifest from the grant or conveyance itself.” Page 897.- “The stream, or other body of water, and not the meander line, as actually run on the ground, is the boundary.” Page 899. “The mere mention, of a monument on the bank of a stream as the place of beginning or end of a line is not of itself sufficient to control' the ordinary presumption that the grantee will hold to the thread of the stream, or in the case of navigable rivers in
Judgment affirmed.
Rehearing
On rehearing by
The plaintiff in her petition set out that she owned a tract of land which embraced the entire bed of Lick creek. The defendant denied the allegation of the petition, but did not make her answer a counterclaim. The spring which was in controversy lay on the defendant’s- side of the creek. The circuit court dismissed the plaintiff’s petition, .and that judgment was affirmed by this court on the ground that the center of the stream was the dividing line between the parties. There is not a syllable in the record to show that the defendant has any title beyond this line. There is nothing in the record upon which a judgment in favor of the plaintiff beyond this line could be predicated. The answer was not made a counterclaim, and there was no proof of any trespass by the defendant beyond the center line of the stream. The judgment in favor of the defendant simply establishes the center of the stream as the dividing line be
Petition overruled.