33 Wis. 260 | Wis. | 1873
The sole question in this case is upon the meaning and effect of the words, the meander line of said river, occurring in the description of the land conveyed by the plaintiff to Fletcher in 1855, and which description, or that part of it material to our present inquiry, was as follows: “ Thence due south, parallel with the west line of Division street in Jackson’s plat of said city, to Fox river, thence northwesterly and along the meander line of said river to the southeast corner of lot No. five.” The plaintiff showed title under a patent from the United States, of a tract of land bordering upon the Fox River, a navigable stream, the line of which land on that side, had been meandered accoi’ding to the laws and regulations of congress governing the survey and subdivision of the public lands. Subsequently the plaintiff conveyed a portion of the same tract to Fletcher by the deed containing the above description, and Fletcher afterwards conveyed to the defendants, who now claim and hold under the same conveyance. The premises in controversy, to which the plaintiff claims title under the patent, but of which the defendants are in possession
The court is of opinion that the defendants take to the river or actual water line, and do not stop at the meandered line according to the position assumed by the plaintiff. This conclusion is based upon two or three considerations which appear to us to be quite controlling and decisive of the question.
The first is, that the meandered line of land bordering upon a navigable stream or river is never considered the boundary line of the government subdivision on the side next to the river, but that the purchaser from the government takes to the margin of the stream or water’s edge, and becomes the unqualified owner of all land lying above ordinary high-water mark of the stream. Railroad Co. v. Schurmeir, 7 Wal., 272 ; Wis. Riv. Imp. Co. v. Lyons, 30 Wis., 61; Arimond v. Green Bay and
, The second and all controlling consideration in our judgment is that which arises upon the call in the description, “ to Fox River." The starting point named in the deed being first found by the surveyor, he is to proceed thence along the line indicated, and not to pause in his progress until he reaches Fox river, which can mean nothing less than the water’s edge or high-water mark of the stream. This is the most material, certain and prominent object referred to in describing the location and quantity of the land granted; and it seems scarcely necessary to 'advert to the rule which gives controlling effect to such objects or calls. The line measures to the river, and that must govern in this case, unless overcome by other words of description or objects designated of superior in fluence, of which the deed contains none. The words relied upon for this purpose, to control the survey and cut short the line, are those which immediately follow, namely; “thence northwesterly and along the meander line of said river.” It is assumed or argued in support of this position, that the “ meander line ” of the river here spoken of, and the meandered line of the government survey, are identical, and that the parties to the deed so
A third consideration which may be properly alluded to as having a very considerable influence over our conclusion, is the strong improbability under the circumstances that the parties themselves to the deed, at the time of its execution and delivery, contemplated any such construction as is now attempted to be put upon it by the plaintiff. It seems clear from all the facts as we understand them, from the conduct of the parties both at the time of the making of xhe deed and afterwards, and especially from the silence and acquiescence of the plaintiff for many years in the title and right of possession asserted by the grantees under the deed, that the claim now set up by him is an afterthought, suggested most likely from subsequent reading of the deed, and very probably long subsequent to its execution and
By the Court. — Judgment affirmed.