13 A. 789 | N.H. | 1887
Having succeeded to Corson's rights under the conveyance of 1848 which makes the cove a boundary, the plaintiff became a riparian proprietor thereon through the conveyance to himself, and under the well established rule of law, that where a deed or grant of land is bounded upon a river not navigable, the boundary line extends to the thread of the stream, unless there is a reservation to the contrary, his ownership extended to the centre of the cove. It only remains, therefore, to determine the manner in which the side lines of his lot shall be protracted or extended into the water.
In respect of this matter, the defendants properly concede that the lines must be run now the same as if no filling had been done; but they contend that, as the cove is found by the case to be a portion of the Cocheco river, the side lines of the plaintiff's lot should be extended from the stake and ring-bolt bounds at right angles with the course of the river to its thread (in accordance with the general rule in the case of unnavigable streams, to extend the side lines of the riparian proprietors to the centre of the stream from the termini on the bank at right angles with the general course of the stream, unless varied by the terms of the conveyance under which the proprietors hold), and as the course of the Cocheco is found to be directly south, the true line, therefore, should extend directly west from those bounds to the thread of the river itself.
This contention cannot be supported. Its obvious effect would be to deprive the plaintiff of any water-front on the cove between the bounds named, in direct conflict with the terms of the deed of 1848, which expressly mentions the cove as the water boundary of the lot. This of itself is a sufficient answer to the contention. But aside from its conflict with the deed, it conflicts no less *418
directly with the principle of equality which invariably obtains in the apportionment or division between conterminous proprietors or owners of land bounding upon water. The objects to be kept in view, in such cases, are, to give to each proprietor a fair share of the land, and to secure to him convenient access to the water; and so, in respect to alluvion and flats, in all cases when practicable, every proprietor is entitled to a frontage of the same width on the new shore as on the old shore, and at low-water mark as high-water mark, without regard to the side lines of the upland, unless referred to as guides in particular grants, or established as boundaries by the agreement or conduct of the conterminous proprietors, or the acts of public authorities. Gould on Waters, s. 162, and cases cited. When the general course of the shore approximates a straight line, the division is made among the proprietors by lines perpendicular to the general course of the original bank, or of the original mark of the shore. Ib., s. 163; Batchelder v. Keniston,
The principle involved in the present case is very much, if not precisely, the same as that involved in the apportionment of alluvion, or the division of flats; and being of opinion that the land formed by the filling may, in the situation and circumstances of the case, properly be regarded as if it were an alluvial formation, and as this view will also lead to an equitable result between the parties, no reason is perceived why the same rules should not obtain here as were recognized in Deerfield v. Arms and Batchelder v. Keniston, supra. Applying those rules to the cove as if it were a river, the portion of the land in controversy which the plaintiff is entitled to recover will be ascertained, and judgment will be accordingly.
Case discharged.
CARPENTER, J., did not sit: the others concurred. *419
