Town of Middletown v. Sage

| Conn. | Jul 15, 1830

Bissell, J.

The demanded premises consist of an island formed upon the bed of Connecticut river, within the last thirty years. The plaintiffs claim to recover them, on the ground that they are the owners of the soil and bed of the river, at the place where the island has arisen. It is admitted, that the river is here navigable, and an arm of the sea ; and the controversy turns, entirely, upon a construction of the patent from the governor and company of the colony of Connecticut, to the proprietors of commonand undivided lands of the town of Middletown, dated the 11th day of March 1685-6; as the same is explained, by a deed from sundry native Indian proprietors, dated the 24th day of January 1672. Did the title to the soil and bed of the river pass, by either, or both of these instruments?

The patent of the governor and company of the colony of Connecticut conveys all the lands within the following abutments, viz. “on Wethersfield bounds, on the North; on Farmington bounds, and the commons, on the West; on Haddam bounds, on the South; and on the wilderness, on the East. The breadth is from Wethersfield bounds, on the North, full four miles South of the meeting-house of Middletown, and to run the whole breadth on the West side of Connecticut river, five miles from the said North and South line; and on the East side of Connecticut river, their bounds to run full six miles from the said river, the whole breadth, from Wethersfield bounds to Haddam bounds.” It might admit of a serious question, whether the river is, or was intended to be, embraced within the boundaries mentioned. It is, however, unnecessary to decide that point; for admitting it to be so embraced, still it is clear, that, upon a sound construction of the grant, no title to the soil and bed of the river, was conveyed. This instrument conveyed the land within the described boundaries, “ together with all the woods, uplands, arable lands, meadows, pastures, ponds, havens, ports, waters, rivers, islands, fishings, huntings, fowlings, mines, minerals, quarries and precious stones, upon or within the said tracts of land, with all other profits and commodities thereunto belonging, or in any wise appertaining.” Upon comparing the terms of this grant with that of the colony of Connecticut to the town of New-Haven, as reported in the case of East-Haven v. Hemingway, 7 Conn. Rep. 186. they will be found so nearly alike, as to render that case entirely decisive of the present. It would, indeed, seem impossible to make a distinction between the cases. And it can be only necessary here, to refer to the opinion of the Court in that case.

It has, however, been said, in the argument, that the patent from the governor and company of the colony of Connecticut, is a mere confirmation of the title derived from the native Indian proprietors; that the deed from those proprietors is now before the Court; and that this deed clearly conveys the title to the soil and bed of the river. To this argument, a satisfactory answer maybe given in the language of the Chief Justice, in the case of East-Haven v. Hemingway. He says, that this patent “ is not only a confirmation but a grant.” “At the same time,” he adds, “it must be admitted, the principal, if not the sole object of the grant, was to confirm, to the proprietors, the title to their lands, derived from the natives, which they had not the legal capacity to sell, and of which the proprietors had been in the quiet possession, for many years.” 7 Conn. Rep. 198, 9.

But a recurrence to the grant from the native proprietors, will, I think, most satisfactorily shew, that the plaintiffs’ case is far from deriving any aid from that source. The lands conveyed, thereby, are thus described: “on Wethersfield bounds on the North; on Haddam bounds on the South; and to run, from the great river, the whole breadth, towards the East six miles, and from the great river towards the West, so far as the general court of Connecticut hath granted the bounds of Middlesex to extend.” Is not all title to the river expressly excluded, by the very terms of this grant? And was not such manifestly the intent of the parties? To me it seems difficult to conceive of any phraseology better adapted to express that intent. Again; The Habendum is in these words: “To have and to hold, the before mentioned tract of land, as it is bounded, with all the meadows, pastures, woods, underwood, stones, quarries, brooks, ponds, rivers, profits, commodities and appurtenances whatsoever belonging thereunto.” Now, it is exceeding clear, that by none of the terms here used, was the soil of the river conveyed. See East-Haven v. Hemingway, and the cases there cited.

The island in question, being formed upon the bed of a navigable river, the title is, prima facie, in the state. Lord Hale says: “As touching islands, arising in the sea, or in the arms, or creeks, or havens thereof, the same rule holds, which is before observed, touching acquests, by the reliction, or recess of the sea, or such arms, or creeks thereof. Of common right, and prima facie, they belong to the crown; but where the interest of such districtus maris, or arm of the sea or creek, or haven, doth, in point of propriety, belong to a subject, either by charter or prescription, the islands that happen within the precincts of such private propriety of the subject, will belong to the subject, according to the limits and extent of such propriety.” De Jure Maris, pars 1. cap. VI. (Harg. L. T. 36.) The plaintiffs having failed to show such a propriety in themselves, they cannot recover.

I would not advise a new trial.

Peters and Daggett, Js. were of the same opinion. Hosmer, Ch. J. being an inhabitant of the town of Middletown, and therefore interested, and Williams, J., having been of counsel in the cause, gave no opinion.

New trial not to be granted.