1.(31 !3_ . ,^! IGM i(5 \om ^^OFCALIFO/?^ %ii]DNvsoi^ ^aaAiNnmv^ ^-tfOJITVDJO^ ^.^ojr % ^4 \WEUNIVERS'//) ^OFCAIIFO/?^ ^OFC/ ^ ilil- ^.: vsoi^^ aiAlN.liV\ 'JlJJi^ViUl 'Ji' A TREATISE ON THE Law of Boundaries and Fences INCLUDING THE Rights of Property on the Sea-Shore and in the Lands of Public Rivers and other Streams, AND THBl LAW OF WINDOW LIGHTS. By ransom H. TYLER, Covnaclor-at-Law, Author of "American Ecclesiastical Law," " Commentaries on the Law of Infancy and Coverture," "A Treatise on the Remedy by Eject- ment, and the Law of Adverse Enjoyment," "A Treatise on the Law of Usury, Pawns or Pledges, and Maritime Loans," etc., etc. ALBANY: \^iil.l.iam: GrOXJiaiD &c so IT. 1876. ^ T Entered according to act of Congress, in the year eigiiteen liundred and seventy -fonr, by WILLIAM GOULD & SON, in the office of the Librarian oi Congress, at Washington. PREFACE. The 2Towing importance of the subjects treated in tlie following pages makes it probable, in the judgment of the writer, that a work devoted especially to their consideration will be found convenient and useful, and may meet with favor fi-om the legal profession. It has been often and truly observed, that a large proportion of the litigation in this country respect- ing the title to real property arises in cases of disputed bound- aries ; and yet, hitherto, the law by which such questions are governed has remained scattered through innumerable volumes, the most of which are inaccessible to the major part of the pro- fession. It is obvious, therefore, that a work in which the law upon the subject is all brought together, and within reasonable limits, must be desirable to the practitioner, and be the means of much saving of time and expense. So, also, litigation and dispute are constantly arising in respect to the maintenance of fences in the country, and, from an excusable want of familiarity with the law upon the subject, the most capable lawyers find it necessary in most cases, when applied to, to consult statutes and digests to a tedious degree, in order to be able to give the appropriate advice. The same remark, therefore, may be made in respect to this as to the subject of boundaries : a book in Avhicli the law relating to fences is concisely exhibited cannot fiiil to be convenient and acceptable to the practitioner. And, finally, the rules and regulations relating to the right to window lights, oi' the right to light and air, so important )^ the old world, arc h»rf/fi iOv/r»r^,-f» 4 PliEFA CE. l)econ]inp; of no inconsiderable interest on tins side of the Atlan- tic, and this interest mnst necessarily increase with the growth and age of the country. Even at the present, grave questions, involving the right to light and air, are often presented to the courts for adjudication, making it desirable that the law upon the subject should be ready of access, and reasonably well understood. Notwithstanding their importance, no American Work lias been heretofore produced in which any of these subjects has been specially treated, and the object of the fol- lowing pages is to supply this supposed want. There have been published two or three very small English books upon the subject, but they are so tilled with the consideration of the local policy of Great Britain that they are really of little or no value to the American practitioner. What I have found in those works, however, which I deemed of any service, I have freely extracted and incorporated into my own work ; endeavoring to give, in all cases, the proper credit. But what is much more important, I have made it a point to consult all the American statutes and judicial decisions upon the subjects treated, and especially those of the most recent date, and then state the law, as it is settled, in plain, clear and concise lan- guage, so that the same may be com])rehended without refer- ence to other authority. It has been my aim to produce a book which shall not only be convenient, but which may be depended upon ; and, to this end, I have spared neither labor nor ])ain8 in searching for the latest authorities, and have endeavored to extract the doctrine of the cases with scrupu- lous care. I believe that my labors will be appreciated by the courts and the profession, to whom they are confidently committed. May, 1874. TABLE OF CONTENTS. PART I. OF THE LAW OF BOUNDARIES CHAPTER I. Definition of the term Boundary— Preliminary observations in respect to the subject of Boundary— General principles applicable to the descrip- tion of Boundaries ■^ ' CFIAPTER II. The rights of property on the sea-shore— How the same may be affected by grants or prescriptions— The Law of Boundary witii reference to these rights— What is the Boundary of private property bordering on the sea, 31 CHAPTER III. The rights of property on navigable rivers where the tide ebbs and flows — The Law of Boundary with reference to these rights— The Rules appli- cable to the Boundary of private property bordering on navigable rivers, 40 CHAPTER IV. The riirhts of property on unnavigable rivers where the tide does not ebb and flow— The Rules of Law applicable to tlie Boundary of private pro- perty bordering on these strejuns — The Common-law Doctrine as to what are unnavigable rivers, and where the same is recognized— Law of Boun- dary in respect to artificial water-courses 49 CHAPTER V. The Law of Boundary in respect to lal;es and poc^— Rules applicable to lands adioining these bodies of fresh water wher^ie Boundary is limited to the margin of the lake or pond "^'* Q TABLE OF CONTENTS. CHAPTER YI. PAGE. The Law of Boundary in respect to islands— Principles on which the ownership of newly-iormed islands is to be determined 73 CHAPTER YII. The Law of Boundary as affected by Maritima Incrementa, or increase of land by the sea. and the Rule in respect to Alluvion and Reliction— How Alluvion and Reliction are to be divided among the parties entitled to them— The Rule in respect to Avulsion 81 CHAPTER VIII. The Law of Boundary as relates to sea-walls, embankments, purprestures, and the like— The Rule as applied to navigable streams— The Scottish and Roman Laws upon the subject— Duty of preserving sea-walls, and the like CHAPTER IX. The Law relating to Boundary of Lands upon Roads and Streets— Rule in respect to public and private ways the same— Presumptions as to waste lands adjoining highways— Law of Boundary in respect to ditches and walls 95 •103 CHAPTER X. Rules for the construction of grarts in respect to Boundary— Principles governing the descriptive language of deeds of real estate — The aids which may be resorted to in the construction of conveyances of laud. . . 118 CHAPTER XL, Construction of Particular Conveyances in respect to Boundary — Illustra- tions of the Rules of Construction by the cases considered — Cases mis- cellaneously stated 133 CHAPTER XII. Further cases passed upon by the Courts, giving construction to particu- lar conveyances in respect to Boundary —Cases miscellaneously stated. . . 1-15 CHAPTER XIII. Further cases passed upon by the courts giving construction to particular conveyances in respect to Boundary — Cases miscellaneously stated 156 CHAPTER XIV. Further cases passed upon by the courts, giving construction to particular c(»nvoyauccs in respect to Boundary — Cases miscellaneously stated 107 TABLE OF CONTENTS. CIIAFTER XY. PAGE, Further cases passed upon by the courts, giving construction to particular conveyances in respect to Boundary— Some cases, both English and American— Cases miscellaneously stated l'^9 CHAPTER XVI. Further cases passed upon by the courts, giving construction to particular conveyances in respect to Boundary — Cases in the American courts miscellaneously stated ^'^^ CHAPTER XYIL Still further cases passed upon by the courts, giving construction to par- ticular conveyances in respect to Boundary— Cases miscellaneously stated 203 CHAPTER XVin. Cases passed upon by the courts relating to Boundary of lands adjoining the sea and rivers, and other bodies of water and streams— Cases miscel- laneously stated *^" CHAPTER XIX. The Rules in respect to Boundaries of States and Territories, Counties and Towns— Some adjudicated cases referred to— Jurisdiction in such cases, 233 CHAPTER XX. Remedies and proceedings to determine unsettled Boundaries— When the question may be settled at law— Statutory tribunals to settle Bound- aries—The French and Roman codes- Legal remedies in the American Stales— Settling disputed Boundary by Parol Agreement 244 CHAPTER XXL Remedies and proceedings to determine unsettled Boundaries in a Court of Eouitv— Jurisdiction in such cases— Cases in which jurisdiction has been entertained "^"^^ CHAPTER XXII. Remedies and proceedings in Equity to determine unsettled Boundaries of land— Certain rules held to apply to all cases of confusion of Bound- ary—Cases in which Equity jurisdiction has been denied 2G9 CHAPTER XXIII. Tlie methods by which the Boundary of lands is established— The evi- dence in cases relating to Boundary of real property— Construction of grants — Parol evidence in cases of uncertainty ^ft ambiguity— Practical location of Boundary '^° TABLE OF COXTENTS. CHAPTER xxiy. PAOB. Evidence in Boundary cases— Usage and hearsay testimony — Declarations of parties to grunts and deceasetl witnesses 294 CHAPTER XX Y. Evidence in Boundary cases — Judgments and otlier adjudications — Posses- sion and acts of ownership 307 CHAPTEPv XXVI. Rules relating to trees and hedges on the Boundaries of property — The ownership of trees wliose roots extend into, or whose branches overhang, the laud of the adjacent proprietor — Tiie property in the fruit of such overhanging brandies — Remedies in such cases 318 CHAPTER XXVII. The Law relating to the Boundaries of parishes — Some points of interest respecting Boundaries not hereinbefore distinctively noted — The points promiscuously stated 328 PART II. OF THE LAW OF FENCES CHAPTER XXVIII. Wliat constitutes a Fence— Xo obligation at Common Law to maintain Fences— How the subject is regulated— Some points relating to the obli- gation to repair Fences 341 CHAPTER XXIX. Rules in respect to the erection of Fences— The ownership of Fences and other incidents — Cimscquence of the neglect to keep Fences in repair — ■Who may take advautujje of a defective Fence 351 TABLE OF coy TENTS. CIIAPTEH XXX. PAGB. Statutes of the several States respecting Fences — Laws of New York — Rules respecting division Fences — Presumptions where the sufHciency of a Fence conies in question — Pleadings in such cases 3G1 CHAPTER xxxr. Statutes of the several States respecting Fences — Laws of New York — Sufficiency of Fences in the State, how determined — Powers of the elec- tors of the towns in such cases 371 CHAPTER XXXII. Statutes of the several States respecting Fences — Laws of New York — Obligations of railroad companies in respect to Fences — Consequences of neglect 380 CHAPTER XXXIIL Statutes of the several States respecting Fences — Laws of New York — Rules lelating to encn^achments by Fences upon highways — Fence-view- ers and their duties and powers — Some points relating to Fences, miscel- laneously stated — Fences in the city of New York — Impounding of animals trespassing upon Fenced inclosures 390 CHAPTER XXXIY. Statutes of the several States respecting Fences — Laws of Maine — The Fence-viewers and tlieir powers and duties — Rules respecting partition Fences — Railway companies to Fence tlieir roads — Decisions of the courts upon the subject — Laws of New Hampshire — Regulations con- cerning partition Fences — Certain provisions of ihe Statute similar to the Maine Statutes — Decisions of the courts on the subject of Fences. . . 399 CHAPTER XXXV. Statutes of the several States respecting Fences — Laws of Vermont — Rules relating to partition and other Fences — Railroad corporations required to Fence tlie sides of their roads — Decisions of the courts respecting Fences in the State— Laws of IMassacliusetts — Rules relating to partition Fences, and the decision of the courts concerning the same. . 411 CHAPTER XXXYI. Statutes of the several States respecting Fences — Laws of Rhode Island — Lawful Fences tlierein — Rules relating to partition Fences — Rule relating to water Fences— Laws of Connecticut — Rules in respect to line or parti- tii)n Fences — Decisions of the courts upon the subject — Fences along the sides of railways — Rule respecting th^|iencing of homestead — Fencing of common lands 423 2 10 TABLE OF COXTENTS. CHAPTER XXXYIL PAGE. Stnlutes of tlie several States respecting Fences — Laws of New Jersey — What are lawful Fences in the State — Rules in respect to division Fences — Road and street Fences in the township of Linden — Powers of the township committees — Laws of Pennsylvania — What inclosurestobe Fenced iu the State — Rules in respect to partition Fences — Party walls and Fences in Philadelphia — Laws of Delaware — Rules in respect to partition and other Fences in the State — Laws of ]\Iaryland — No general rules in respect to Fences iu the State — Laws of Virginia — What is a law- ful Fence in the State — Laws of West Virginia — AVhat is a lawful Fence in the State, and rules respecting division Fences therein 438 CIIAPTEPw XXXYIII. Statutes of the several States respecting Fences — Laws of Ohio — Laws of Michigan — Laws of Indiana — Laws of Illinois — Statutes and decisions of the courts upon the subject of Fences 448 CHAPTER XXXIX. Statutes of the several States respecting Fences — Laws of Wisconsin — Laws of Minnesota — Laws of Iowa — Statutes and decisions of the courts, 459 CHAPTER XL. Statutes of the several States respecting Fences — Laws of Missouri — Laws of Kansas — Laws of Nebraska, Nevada, Oregon and California — Statutes and decisions of the courts upon the subject of Fences in those States. . 472 CHAPTER XLI. Statutes of the several States respecting Fences — Laws of North Carolina, South Carolina, Georgia, Florida and Alabama— Statutes and decisions of the courts upon the subject 480 CHAPTER XLII. Statutes of the several States respecting Fences— Laws of Kentucky, Ten- nessee, Mississippi, Louisiana, Arkansas and Texas. Statutes and deci- sions of the courts upon the subject 496 CHAPTER XLin. The rights and liabilities of landlords and tenants in respect to Fences on the demised property— Rights of the tenant in hedges, bushes and other Fences on the demised property— Liability to repair Fences as between landlord and tenant- Covenants to keep Fences in repair 504 TABLE OF CONTENTS. 11 P»AK.T III. OF THE LAW OF V/ I N D O VsT LIGHTS. CHAPTER XLIV. Importance and nature of the right to light and air— Suggestions in respect to the right of prospect or view, and pure air— Right to Window Lights the same in city and country FAei. 515 CHAPTER XLY. The methods by which the riglit to Window Lights may be acquired— The English authorities upon the subject, and the English Prescription Act. . 521 CHAPTER XLYI. Rules respecting the right to Window Lights in the American States- Decisions of the courts of New York and Massachusetts upon the subject of light and air 531 CHAPTER XLVII. Rules respecting the right to Window Lights in the American States — Decisions of the courts in Elaine, Vermont and some others of the ITnited States, upon the subject of light and air— Doctrine of the authorities ... 543 CHAPTER XLVIII. The extent of the right to Window Lights— The general rule upon the sub- ject—How the right may be lost— The right under special coven^ints. ... 553 CHAPTER XLIX. The remedies for injuries to the right to Window Lights— The remedy by action at law-Remedy by suit in equity-The evidence in such cases. . . 56C INDEX TO CASES CITED. A. PAGE. Abbott V. Al)bott 129 Abbott V. Pike 204 Abergavenny v. Thomas 262 Adams V. Boston Wharf 229 Adams v. Frothinjjham 42, 232 Adams v. McKenney 444 Adams v. Pease 76 Adams V. Rivers 106, 149 Adams v. Rockwell 289, 290 Adams v. Saratoga and W. R. R. Co .. 106, 149 Adams v. Van Alstyne 347 Agawam Canal Co. v. Edwards. 221 Aiken V. Ketchum 326 Alabama v. Georgia 220, 239 Aldeii V. Nooncn 201 Aldred's Case 517 Ale.vaiider V. Lively 286 Alger V. Pool 418 Allen V. Kingsbury 132 Alton. City of, v. 111. Transp. Co 124 Aramidown v. Ball 176 Ammidown V. Granite Bank 175 Anderson v. James 152 Andre v. N. VV. R. R. Co 471 Andrews V. Todd 158 Anonymous 318, 358 Anthony V. Ilaney 325 Arnold V. Mundy 33, 34 Arthur v. Case 563 Ashley V. Eastern Railroad.. 175, 228, 229, 231 Aston V. Lord Exeter 262 Atkins V. Chilson 540 Atkins V. Holton 270, 280 Alt. Gen. v. Boston Wharf 228, 229 Att. Gen. v. Bowyn 261 Att. Gen. v. Chambtrlain 273, 278 Att. Gon. V. Chambers 34, 37, 95, 273 Att. Gen. V. Doughty 517 Att. Gon. V. Drummond 295 Att. Gen. V. Farmcn 39 Att. Gen. v. Fullerton 262, 263 Att. Gon. V. nammer 37 Att. Gen. v. Jones 37^ 294 Alt. Gen. V. Lonsdale 98 Att. Gen. v. Nichol 564 Att. Gen. v. St. Anbin 253 Att. Gen. v. Stephens 203 PAGE. Att. Gen. v. Stowell 507 Auburn and C. P. R. Co. v. Douglas 534 Austin V. Carter 41 Avery v. Baum 282, 293 Aycock V. Railroad Co 489 Aylesworth v. Chicago, etc., R. R. Co 471 Aylesvvorth V. Harrington 450. 451 B. Babcock v. Utter 147 Back V. Stacey 552, 567 Badger V. S. Y. R. Co 44 Bailey v. Appleyard 525 Bailey v. Bryan 487 Bailey v. White 180 Baird v. Fortune 284, 295 Bakery. Boles 232 Baker v. Lakeman 41 9 Baldwin v. Brown 293 Ball V. Cox 3.37 Ball V. Hubert 44 Ball V. Woodward 124 Banks V. Am. Tract Society 537 Banksv.Ogden 111,170 Bardwell v. Ames 76 Barker V. Bates 41 Baring v. Nash 280 Barnard v. Martin 128 Barney V. Miller 129 Barnum V. Van Dnsen 434 Barrett v. New Orleans 86 Barry v. Garland 206 Bartholomew v. Edwards 168 Bartlett v. Hubert 334 Basingstoke v. Bolton 267 Batcheklerv. Keniston 90 Bates V. Bower 206 Bather & Simpson's Case 327 Baton's Case 356 Battiskill v. Reed 356 Beal V. Gordon 129, 162 Beaufort V. Mayor of Swansea 361, 294 Beaufort V. Smith 113 Bechtel V. Neilson 460, 464 Bedford, Duke of, v. British Museum 560 Bceson V. Patterson J30 Beldcu V. Seymour 338 INDEX TO CASES CITED. 13 PAGE. Belfast Dock, in re... 36. 37, 119, 294, 309, 317 Belkuap V. Belknap 5()3 Bell V. Savage 211 Bellas V. Cleaver 334 Bennison v. Cartwrisht 5-1 Benson v. Baldwin 2ti7, 280 Berridge V. Ward 104, 3:3-2 Berriman v. Peacock 50t) Bethje v. Houston, etc., R. R. Co 504 Bickett V. Morris 49, 98, 100 Birdv.Smith ^ Birmingham v. Anderson 169 Bishop V. Bishop 397 Bishop V. Seeley 194 Bit^sell V. N. Y. Central R. R. Co 107, 142 Bissell V. Southworth 425 Bladen's Lessee V. Cockey 304 Blain V. Smith 337 Blain v. Taylor 344 Blain's Lessee V. Chambers 171 Blake V. Doherty 285 Blakeley v. Bestor 133, 20U Blanchard v. Porter . 59 Blissv. Hall 520 Blundell v. Cotterall 34 Boardman v. Reed's Lessees 29S Bolton V. Lawn . . ' — 336 Bolton V. Simpson .• 268 Bond V. Fay 165, 173 Bonney v. Morrill 168 Booth V. Wilson 359 Boston V. Richardson 110, 113, 118, 126 Bosworth V. Sturtevant 132 Boteler V. Spellman 260 Bott V. Burnell 129 Bouvcrie v. Prentice 267 Bowery v. Pope 528 Bowie's Case 507 Bowman's Devisees v. Wathen 59 Bownv. Hill 561 Boyd V. Dowie 264, 266 Boyle v. Tamlyn 343, 349 Boy n V. Brown 526 Brabant v. Wilson 261 Bradbee v. Christ's Hospital 355 Bradbury v. Gilford 404 Bradford v. Cressy . 221 Bradley v. Gill 526 Bradley v. Rice 72 Bradley v. Wash., Alex., etc., S. P. Co 122 Brady v. Ball 4.52 Brain v. Harris 207 Brainardv. Boston, elc, R. R. Co 168 Brandt ex dem. v. Ogden 297 Bratton V. Clawson 1*3 Brewster v. De Frcmery 510 Bridgewater v. Booth 40 Bridgewater v. Edwards 267 Bridgewater Trustees v. Bootle-cam-Lina- ^ ere 330, 332 PAGE. Bridgman V. Jennings 312 Brimmer v. Long Wharf 230 233 Brisco V. Lomax 305, 308 Brittin v. Van Camp 440 Broadwater v. Blot 359 Broadwell v. W ilcox, 469 Bronk v. Becker 3t)4 Brousou V. CotHn 344 Brooks v. Allen 46:3 Brown v. Burringtou _. 510 Brown v. Edson 3:57 Brown v. Gregg 98 Brown v. Mil waukie R. R. Co 465 Brown v. Scofield 62 Brown v. Windsor 354 Brown's Case 356 Brownlow v. Met. Board of Works 98 Bruffv. Mali 389 Brundage v. Warner 526 Brunswick v. Dunning 33S Bryan V. Kortright 395 Bryan v. Whitler ... 526 Buchanan v. Moore 300 Buck V. Squires 198 Buckman V. Buckman 108 Buckmaster v. Cool 456 BuUard V. Harrison 117 Bullock V. Wilson 54 Burchfield v. Northern Central R. Co 786 Burleson v. Teeple 471 Burlingame v. Robbing 302 Burnett v. Thompson 187 Burnham v. Onderdonk 367 Bart V. Brainard 342, 360, 377 Bute V. Glamorganshire C. Co 260 Butler V. Barlow 46i Butt V. Imperial Gas & Coke Co 518 c. Calhoun V. Price 166 Calkins V. Lavelle 121 Calkins v. Matthews 479 Call v. Lowell 2.30 Calmady v. Rowe 36, 37, 295 Calvert V. Fitzgerald 186 Camden v. Creel 160 Campbell V. Johnson 1:30 Campbell's Case 446 Canal Appraisers V. The People 51, 150 Canal Commissioners V. The People 64 Canal Trustees V. Haven 217 Canefox v. Crenshaw 473, 474 Canfuran v. Pres. Cong. Cedar Spring 305 Cansler v. Henderson 161 Cantrell v. Alderholt 491 Carlisle v. Graham 92 Carnarvon v. Villebois 313 Carpenter v. Halsey 397 Carrig v. Dee 543 Carruthers v. HoUis »• • • • 359 14 INDEX TO CASES CITED. PAGE. Carson v. Blazee 53 Case V. Haight 563 Catev.Cate 410 Cates V. Wadlington 55 Cau!k V. Everly 510 Cecil V. Pacific R. R. Co 474 Chambers v. Matthews 440 Champlain and St. Lawrence R. R. Co. v. Valentine 06 Champlin V. Bendleton 108 Chandler V. McCord 131 Chapman v. Cumberland Treasurer 425 Chapman V. Edwards 231 Chapman v. Excelsior, etc., Co 183 Chapman V. Kimball 42, 43 Chapman v. N. Y. Central R. R. Co S85 Chapman V. Spencer 272 Chapman v. Wilbur 236 Chase V. White 246, 287 Chatham v. Brainard 108 Chcetham V. Hampson 505, 507 Cherryv.Boyd 301 Cherry V. Stein 545 Cheshire V. Shutesbury 192 Chicago and A. R. R. Co. v. Canffman 456 Chicago, B. and Q. R. R. Co. v. Cauftman, 456 Child V. Starr 150, 154 Chinan V. Cooke 312 Chryi^larv. Westfall 363 Church V. Holland 79 Churchill V. Evans 343 Churchill v. Reamer 121 Clanrickard v. Sidney 128 Clansey v. Iloudlitte 231 Claremont v. Carlton 285 Clark V. Adams 413 Clark V. Brown 367, 396 Clark V. Clark 553 Clark V. Rochester, L. and N. F. R. R. Co., 385 Clark V. Taber 336 Clark V. Yonge 273 Clayes v. Sweetser 199 Clayton V. Cookes 262 Clayton v. Corby 350, 558 Cleaveland V. Flngg 201 Cleaveland V. Smith 191 Clement v. Canfield 383 Ckris V. Tieman 547 Cleveland v. Cleveland Ill Cleveland, C. and C. R. R. Co. v. Elliot.... 449 Clifton V. O Wynne 259 Cllmer V. Wallace . 473 Cloiigh V. Bowman 12.3, 284, 284 Clowyers v. Sawyers 600 CoBig V. Taft laS Cochico Co. V. Whittler 120 Cocker V. Cowpcr 526 Corknll v. McC^ulnn 189 Codman v. Evans 113, 125, 186 Codinnn V. Winslow 41, 230, 233 FAOB. Colden V. Eldred 370 Colesv. Wooding 300 Collier v. Pierce 541 Collins V. Benbury 56 Collins V. Dorchester 422 Comerford v. Dupuy 485 Comes V. Minot 141 Commissioners of Canal Fund v. Kempshall, 52, 65, 150 Commissioners of Hom. River v. Withers, 57 Commonwealth v. Alger 229-231 Commonwealth v. Charleetown 34, 41 Commonwealth v. Fisher 54 Commonwealth v. Roxbury 231, 2.32 Compton V. Richards 530 Comstock V. Des Moines, etc., R. R. Co ... 471 Conkliu V. Parsons 463 Connecticut v. Pennsj'lvania 2S8, 299 Constable's Case 37 Cook V. Bubcock 204 Cook V. Fan-ington . . 178 Cook V. Green 103 Coombs V. Coether 310 Cooper V. Hubbuck 524 Cooper V. Marshall 327 Coot V. Morea 452 Corbitt V. Porter 353, 357 Corkhill V. Landers 255 Corlis V. Little 440 Corning v. Troy Iron, etc.. Nail Fac 294 Corwin v. N. Y. & Erie R. R. Co., 375, 384, 369 Coster V. Peters 137 Cotching V Bassett 527 Cottle V. Young 157 Cox V. Freedley 213 Cox V. Ja*nes 155 Cox V. Pryor 528 Cox V. Rcbbius 440 Cracknell v. Mayor of Thetford 98 Craft V. Yeaney 216 Crocker v. Bragg 78 Crowell V. Maughs 337 Cubitt V. Porter 118 Cunningham v. Dorsey 545 Cunningham v. Robinson 337 Currier's Co. v. Corbitt 531 Curtis V. Ayrault 120 Curtis V. Curtis 274 Curtis V. Francis 210, 228, 229, 231, 232 Cutler V. Tufts 129 Cutts V. Hussey 34, 405 Cutts V. King 204 D. Daggett V. Willey 297 Dall V. Brown 201 Dana v Middlesex Bank 192 Daniel Ball, The 47 Daniel V. Wilkin 314 Dauner v. South Carolina R. R. Co 490 INDEX TO CASES CITED. J5 PAGE. Dany ill v. tJpton M2 Davenport v. Brownie}' 2(i2 Davies v. Williams. 32" Davis V. Blackwall R. Co 351J Davis V. Builiugton, etc., R. R. Co 471 Davis V. Campbell 415 Davis V. Hawley 212 Davis V. Marshall 526 Davis V. Rainsford 30, 120, 312 Davis V. Townsend 254 Dawes v. Prentice 228 Dean v. Eklridj,'e 367 Dean V. Sullivan R. R. Co 410 Deerfield v. Ames 75, 91, 228. 229 Deering v. Long Wharf 230, 231 De Levillain v. Evans 159 Den V. Sasser 300 Den V. Southard 297, 300 Den V. Van Ilouton 161 Dendj'v. Simpson 116, 180 Denmeyer v. Legg 148, 149 Dent V. Auction Mart Co . . . 525, 552, 555, 556 558 Depew V. Board of Trustees, etc 45 De Veney v. Gallagher 161, 265 Devonshire V. Ilodnett 317 Dewey v. Chicago, etc., R. R. Co 471 Dexter v. Bruce 421 Dexter, etc., Co. v. Dexter 183 Deybell's Case 2.36 Deyo v. Stewart 366 Dickerson V. Stoll 266 Dikerman v. Taylor 211 Dillingham V. Smith 65 Dixon V. Clow 397 Doane v. Broad St. Association 175, 231 Doanev. Wilcntt 232 Dobson V. Finley 117 Dodd v. Holme 355 Doe V. Bird 358 Doe V. Ilampson 115 Doe V. Kemp 114, 317 Doev. Lakin 312 Doe V. Martin 284 Doev. Pearsey... 103, 352 Doev.Porter 129 Doev.Reed 345 Doev.Rice 124 Doev. Roberts 313 Doe V. Thompson 119, 132 Doe V. Wilmington, etc., R. R. Co 159 Doev. Wilson 608 Donegal V. Lord Templemore.... 294, 309, 317 Douglas v. McCausland 512 Drake V. Curtis 229,231 Dreer V. Carskadden 334 Drew V. Spaulding 410 Dubois V. Deaver 322, 323 Dudley v. Elkins Sajk Dula V. McGhee TO PAGE. Dnncombe's Case 118 Dunham v. Wilkins 145 Dunham v. Williams 109, 127, 134 Dunklee v. Wilton R. R. Co 63 Dunlop V. Stetson 231 Dunnv. English 120 Durantv. Riddell 547 Durell V. Pritchard . 505 Dutton V. Strong 65 Dyke v. Dunston 325 Dysart v. Leeds 442 Dyson V. Leek 191 E. Eames v. Patterson 400 Earl V. Lewis 314 Early v. Fleming 473 East Haven v. Hemingway 42, 43 Eaton V. Knapp 197 Eaton V. Rice 409 Edgarton v. Moore 429 Ela v. Card 128 Elder v. Bnrns 56 Ellis v. Carey 55 Ellisv. Ellis 401 Ellis V. London and S. W. R. Co 326 Ehvood V. Bullock Ill Emerson V. Taylor 91, 228, 230 Emerson V. White 119 Enright v. San Frarcisco, etc., R. R. Co... 486 Estep V. Estep 510 Esty V.Baker 172 Evans v. Curloy 208 Evans v. Jayne 443 Evans v. Rees 309, 310 Evans V. Taylor 313 Evans' admr. v. Temple 178 Ewing V. Burnet 120 F. Fairbanks v. Chllds 407 Fairot v. Mettler 510 Fame, The 237 Farisv. Philan 159 Farmer's Heirs v. Mayor of Mobile 298 Fay V. Prentice 356 Fentiman v. Smith 526 FoofFeesof Heriot's Hospital v. Gibson 559 Ferris v. Van Buskirk 362 Field V. Huston 130 Field v. Proprietors, etc 421 Fifty Associates v. Tudor 541 Finlay v. Cook 137 Fisher V. Carter 80 Fisher V. Farmers' Loan Co 405 Fishery. Smith 109, 113 Fishmongers' Co. v. East India Co 517, 521 Fitch v. Comrs. Highways 392, 394 Fitzgerald v. Lord Norbnry 260 Fitzpatrick v. Robinson 34 16 IXDEX TO CASES CITED. PAGE. FHzwater v. Stout 444 Flonigau v. Philadelphia 54 Fletcher v. Phelps C5, (17 riit'ht V. Thomas 524 Flora V. Corbeau 526 Floyd V. Uice... 292 Foley V. VVy eth 501 Ford V. Lacey 93 Foreman v. Sandefur 286 Fought V. Holway 172 Fox V. Burton 427, 429 Foy V. Neal 123 Franklin V. Wells 425 French v. Carhart 131 French v. Pearce 124 Frewen V. Phelps 523 Fiilwood V. Graham 338 Furman V. Reed 313 G. Gale V. Abbott 524, 560 Gallup V. Mulvah 408 Gano V. Aldridge 164 Gardner v. Newburgh 563 Garritt v. Sharpe 555 Gavit V. Chambers 60 Gayford v. Nicholls 356 Gear V. Bariium 127, 157 Geast V. Barker 273 George v. Thomas 265 George v. Wood 178 Georgia, etc., R. R. Co. v. Anderson 492 Gerbcr v. Grabel 508 Gorman Mutual Ins. Co. of Ind. v. Grim... 132 Oerrith v. Clongh 85 Gilbert v. Peteler 535 Gibson v. Bogy 122 Gibjion 7. Brockway 171 Gibfon V. Smith 188 Gibson v. Tyson 122 Gibson V. \'aughn 338 GilVord V. First Pres. S., Syracuse 505 Glusby V. Morris 126 Glave V. Harding 530 Glidden v. Towle 408 Glover V. Shields 139 Glynn v. Scowen 202 Godfrey v. Littel 259, 263, 272, 278 (•o(lmaiiche8tcr v. Phillips 116 Gooch V. Stephenson 400 Ooodday v. Mickell 330 OcMxlwin V. Appleton 2.'J6 (torinan v. Pacific R. R. Co 473 Ooiirdin V. Javis 19;j Oourloy v. Duke of Somerset 512 Gove V. Hichnrdaon 293 Gove V. White 127, 167 Oownr V. Kyre 507 Grant V. lUack 164,214 Gratz V. Hoover . 203 PAGE. Gray v. Couvillon 336 Gray V. Deliice 227,228 Gray v. Waterman 4.56 Gray v. West 3.52 Great Falls Co. V. Worster 301 Green v. Bales 256 Greggv. Gregg 444 Gregor V. Stratton 4.30 Grierson V. Eyre 262, 2S0 Griffin V. Bixby 322 Griffin v. Martin 376, 377 Griffith V. McCulIum 391 Grove V. Drummond 193 Gunn V. Chelsea 231 Gwinn v. Ditto 498 H. Haight V. Keokuk 59 Haines V. Kent 452 Hale V. Clark 396 Hall V. Davis 336 Hall V. Pickering 210 Halsey V. McCormick 84, 86, 150, 154 Hamilton v. Caywood 283 Hammond v. Bradstreet 311 Hammond V. McLachlan 126, 149 Hammond v. Zehner 5-34 Hamner v. Smith 121 Hancock v. Wilson 120 Handly's Lessee V. Anthony 78, 239 Handman v. Bowen 367 Hannum V. Kiugsiey 216 Harbridge v. Warwick 525 Hardcastle v. Shaf ter 253 Hardenburgh V. Lockwood 378 Haring V. Van Hauten 315 Harlow v. Fisk 220, 231 Harlow v. Lyme Regis 34 Harlow v. Rogers 326 Harlow V. Stinson 405 Harmer's Heirs V. Morris 286 Harris V. Sturdivant 403 Harrison v. Brown 460 narrower v. Retson 391 Harvey V. Graham 188 Harvey v. Mitchell 119 Harwood v. Oglander 273 Hastings V. Stack 293 Hathorn V. Stinson 64 Havens V. Dale 1.30 Haverstick v. Sipe 544 Ilawesvilie v. Lander 127 Hawkins V. Shippam 341,526 Hayes V. Aiken 176 Haywood v. Edwards 333 Headam v. Rust 456, 4.57 Heath v. Coltenback 469 Hedge v. Sims 285 Henly v. Mayor of Lyme 102 Henry v. Dubuque, etc., R. R. Co 469 INDEX TO CASES CITED. 17 PAGE. Honry v. Levert 494 Heroic! v. Myers 471 Heron's Case 110 Herrick v. Sixby 129 Herring V. Fisher 149, 1!)" Herring V. Wiggg 288 Herz V. Union Bank of London 529 Hewitt V. VVatkins 307, 395 Hicks V. Coleman 177 Hicks V. Hastings 273 Higby V. Bidwell 300 Hill V. Barclay 512 Hillv.Draper 315 Hill V. West 174 Hine v. Munson 437 Hine v. Wooding 434 Hinnian v. Chicago, etc., R. R. Co 471 Hitchings V. Warner 511 Hobokeu Land, etc., Co. v. Kerrigan 100 Hodges V. Horsfall 312 Hoff V. Tobey 135 Hoffman v. Armstrong 322, 326 Holder v. Chambrey 207 Holder v. Coates 319 Holford V. Bailey 37 Holladay V. Marsh 342, 369, 374, 377 HoUaday v. Svvailes 457 Holleubcck V. Rowley 109 HoUis V. Goldfinch 44, !15 Hollister V. HolliBter 431, 4.35 Holmes V. Billingham 103, 113 Holmes V. Seeley 117 Home V. Memphis, etc., R. R. Co 500 Hopkins Academy v. Dickinson, 50, 77, 83 91 Hopwood V. Schofleld 501 Hough tailing v. Hough tailing 526 Houghton V. Butler 327 Houx V. Seat 473, 474 Hovey v. Sawyer 182 Howard V. IngersoU 56, 79, 338, 339 Howard V. Robins 391 Howell V. Salisbury 358 Howell V. Saule 187 Howell's Lessee V. Tilden 304 Hubbard v. To wn 544 Hubbell V. Peck 427 Huffman v. McCrea 286 Hughes V. Keene 525 Hunt V. Johnson 290, 314 Hunt V. White 259 Huntington V. Whaley 335 Kurd V. Rutland •& B. R. R. Co 412 Hutchina V. Dixon 124 Huichinson v. Carpenter 5.57 Hutchinson v. Maius : 353 I. Hia V. Hannibal, etc., R. R. Co 474 Idev. Pearce 181 3 PAGE. Illinois Central R. R. Co. v. Arnold 457, 4;.8 Illinois Central R. R. Co. v. Swearinguu... 45S Illinois Central R. R. Co. v. Whelen 458 Indianapolis, etc., R. R. Co. v. Caldwell... 463 Indianapolis, etc., R. R. Co. v. Kennedy .. 453 Indianapolis, etc., R. R. Co. v. Lowe 454 Indianapolis, etc., R. R. Co. v. Meek 45' Ingilby v. Shaf to 268 Ingraham V. Wilkinson 75 Ingram V. Threadgill 45, 56 Ipswich Docks V. St. Peters 330 Ipswich, Ex parte 189 Irvin V. Fowler 526 Irwin V. Simpson 313 Ives V. Kimball 204 Jackson V. Anderson 108 Jackson v. Beach 121 Jackson V. Blodgett 123 Jackson v. Boston .& W. R. R. Co 231 Jackson v. Bowman 290 Jackson V. Brownson 508, 509 Jackson v. Camp . . 119' Jackson V. Clark 119,282 Jackson V. Corlear 291 Jackson v. Dieffendorf 290- Jackson v. Eager 254 Jackson V. Ilalstead 79 Jackson V. Hathaway 126, 149 Jackson v. Ives 338 Jackson v. Lawton 283 Jackson v. Loomis 119 Jackson v. Louw 149 Jackson V. Marsh 282 Jackson V. McCall . 290 Jackson v. McConnell 338 Jackson v. Moore 119 Jackson V. My*rs. 121 Jackson V. Newcastle. 554, 557, 565, 568' Jackson v. Parkhurst 288 Jackson V. Sprague 388' Jackson v. Tibbitts 122' Jackson v. Van Antwerp 191 Jackson v. Vedder 290' Jacomb v. Knight 529' Jamaica P. Aqueduct v. Chandler 113i James v. Plank 558- Jamison v. Petit 255' Jamison v. Scammon 410' Jeffersonville, etc., R. R. Co; v. Applegate, 4,531 Jeffursonville, etc., R. R. Co. v. Brevoort.. 453i Jeffersonville, etc., R. R. Co. v. Dougherty, 453- Jeffersonville, etc., R. R. Co. v. Sweeney.. 453'' Jenkins v. Bushley 26S Jenks v. Morgan 212; Jennings, Ex parte 14>: Jenny v. Brook 506- l»^sson y. Gifford 561 ^ohns V. Davidson 79, 80- 18 INDEX TO CASES CITED. PAGE. Johnson V. Garrett li'-^ Johnson v. l^ynor 212 Johnson v. Simpson 1-9 Johnson V. Wing 451 Johnson v. Wyatt 519 Johnston v. Jones 91 Jones V. Bird 35(j Jones V. Boston M. Corp 228 Jones V. Central R. R. & B 492 Jones V. Cowman 150 Jones V. Goulard 87 Jones V. Holstcin — 141 Jones V. Hood 497 Jones V. Johnston !•! Jones V. Jones 326 Jones V. Parkill 366 Jones V. Petlibone til Jones V. Soulard 239 Jones V. Tapling 519 Jones V. Tibbetts 401 Jones V. Williams 317, 327, 328, 561 Jones V. Witherspoon 487 Jordan V. Deaton 333 • Jordan v. Mussy 208 K. Kayner v. Timerson Kea V. Robeson Keith V. Bradford Kellogg V. Brown . . Kellum V. Smith Kempston v. Butler Kennebeck Ferry V. Bradstreet Kerwhacker v. Cleveland, C. & C. R. R. Co., Kctcham v. Stolp Kimball v. Schoff Kimball V. Semper KIneaid v. Dormey King V. Large .• King V. Trafford 97, Kingman v. Sparrow 67, 150, Kingston v. Homer Kinney v. Farnsworth Kip V. Norton 290, Kirkpatrick V. Kyger Klein v. Gohrung Knight V. Ilcaton Knight V. New Orleans, etc., R. R. Co Knight V. Wilder Knowles v. Richards Knowlton v. Smith Knox V. Mayor of N. Y Knox V. Tucker Kraut V. Crawford ICrnso V. Scripps 140 131 415 431 355 353 230 449 457 185 177 255 544 100 218 36 300 291 189 547 414 503 228 517 333 112 404 a5 199 L. LnfTerts V. Hannibal, etc., R. R. Co 475 Lnmar v. MInter J95 Ijimb V. Hickg 418-420 L«nipman V. Milks 634 PAGE. Lane V. Gary 394 Langlois v. Buffalo & R. R. R. Co 389 Lapish V. Bangor Bank 2;}0, 231 Larkin v. Taylor ; 478 Lavillabeuve v. Cosgrove 547 Law V. Hempstead 190 Lawrence V. Combs 410 Lawrence v. Hay nes 288 Lawrence v. Obee 556 Laws V. N. C. R. R. Co 489 Lebeau v. Bergeron 3-36 Ledyard v. Ten Eyck 67 Lee V. Alston 507 Leeds v. Earl of Strafford 261 Leeds v. New Radner 274 Leonard v. White 174 L'Estrange V. Rowe 36, 294 Lethulier V. Castleman 257, 260 Libby v. Tolford 510 Liggins V. Inge 5.56 Lilley's Lessees v. Kintzmiller 304 Lincoln V. Wilder 1,32, 133, 197 Linscott V. Fernald 285 Lisbon v. Bowdoin 246 Literary Fund v. Clark 191 Little V. Lathrop 342, 404, 405 Littlefleldv. Littleflcld 217 Liverpool Wharf v. Prescott 333 Livettv. Wilson., 37 Livingston V. Ten Broeck 123, 124, 295 Llewellyn v. Borderly 268 Lock v. St. Paul & P. R. R. Co 466 Lock wood V. N. Y. & N. H. R. R. Co 1 58 Logan V. Gedney 485 Lokerv. Rolle 268, 276 Loudon V. Pewterers' Co 524 Long V. Fitzsimmons 510 Long Island R. R. Co. v. Conklin 120 Longley v. Hilton 400 Long's Lessee v. Pallelt 304 Long V. Wagoner 128 Lonsdale v. Nelson 326, .327 Lonsley v. Hayward .329 Loomis V. Jackson 1.32 Loomis V. Wilber 508 Lord V. Comrs. of Sidney 103, 119 Lorman v. Benson 61 Lougher v. Williams 511 Louisville & P. R. R. Co. v. Ballard 498 Lovat V. Lord Ranelagh 512 Lowry v. Inman 326 Lozier v. N. Y. Central R. R. Co 149 Luce 7. Cnrloy 106, 1. 50 Lufkin V. Haskell 2.32 Lylc V. lUchards 312 Lyman v. Gipson 422 LjTiian V.Hale 321 M. McCanuon v. Sinclair 41, 333 IXDEX TO CASES CITED. 19 PAGE. JlcCay V. California, etc., R. E. Co 485 McCayv. Wait 508 McClurev. Little S.'ie McCormick v. Barnum 291 McCormick v. Tate 456, 457 McCoy V. Galloway 301 WcCoy V. Hutchinson 33S McCreatly V. Thomson 545 McCulloughv. Wainwright 94 McCullongh V. Wall 55, 77 McDowell V. N. Y. Central R. R. Co 383 McEwen V. Bulkley 184 McGlashen v. Tallmadge 510 Mcintosh V. Tower • 511 Mclver's Lessee v. Walker 283 McKay V. Woodle 488 McManiis v. Carmichael 59 McManus v. Finan 470 McMillen V. Wilson 496 McMnrry V. Spicer 284 McPhaul V. Gilchrist 193 Macon &W. R. v. Davis 492 Madden v. Tucker 184 Magdalen College v. Athi^l 260 Magrahem v. Adams 288 Mahon v. Brown 533, 534 Makepeace V. Bancroft 125, 130 Malcolmson V. O'Dea 31 Maltby V. Dihel 479 Mankato V. Willard 126 Manley V. St. Helen's Co 102 Mann v. Stephens 559 Manter v. Picot 182 Mariner v. Schul.te 61, 184 Marsh V. Burt 110, 127, 179 Marsh V. Stephenson 214 Marshall v. Ulleswater S. Nav. Co 38, 70 Martin v. Goble 555 Martin v. Headon 519, 557 Martin v. Waddell 33, 34 Martyn v. Knollys 358 Mason V.White 200 Massy v. Goyder 354 Mather v. Sharp 609 Matson v. Calhoun 474 Matts V. Hawkins H8, 352, 357 Maye v. Tappan 334 Mayhew V. Norton 230-232 Maynard v. Esher 544 Maynard v. Weeks 162 Mayov. Blount 130 Mayor v. Eslava 46 Meath, Bishop of, v. Winchester 310 M el vi n V. Marshall 303 Memphis, etc., R. R. Co. v. Blakeney 502 Menkius v. Blumenthal 336 Menzies v. Broadalbane 96 Merriman v. Russell 26C Metcalfe v. Beckwith 257, 259, 2V PAGE. Metcalfe v. Bcnthuysen 288 Metropolitan Ass. v. Patch 501 Middleton V. Pritcliard 35, 43, 120 Miller V. Cheney 121 Miller V Faudye 324 Miller V. Lapham 558 Miller v. Warrington 272, 279, 280 Millett V. Fowle 205 Milligan v. Wekiuger 444 Mills V. Catlin 123 Millsv. Holton 505 Mincke v. Skinner 162 Minor v. Delano 416 Minot V. Curtis 330 Misner v. Lighthall 456 Missouri v. Iowa 241 Missouri v. Kentucky 243 Mobile, etc., R. R. Co. v. Maloue 495 Monmouth Canal Co. v. Hill 44 Monongahela Bridge Co. v. Kirk 54 Monro v. Tayne 269 Montgomery v. Wilmington, etc., R. "R. Co, 489 Montgomery's Lessee v. Dickey 304 Moore v. Griffin 225, 231 Moore v. Rauson 557 Moore v. Sanborne 60 Moore v. Sweet 346 More V. Massiui 223 Moreland v. Baker 102 Morgan V.King 63 Morgan v. Reading 50, 57 Morgan v. Scott ?5 Morris v. Ld. Berkeley's Lessees 521 Morrison v. Marquardt 549 Morrison v. N. Y. & N. H. R. R. Co 385 Morse v. Boston & Maine R. R 416 Morse v. Read 405 Morss v. Jacobs 302 Morss V. Salisbury 302 Morton v. Moore 163 Mosher v. Berry 198 Mott V. Comrs. of Highways 392 Moulton V. Libby 230 Mulford V. Le Franc 124 Muller V. Lander 161 MuUer v. Strieker 545 Mumford v. Brown 510 Mumford v. Whitney £26 Munch V. N. Y. Central R. R. Co 385 Mundell v. Perry 338 Munger v. Tonawanda R. R. Co 375 Mnnro v. Allaire 123 Murchin v. Black 354, 531 Murly V. McDermott 357 Murrray v. Hall 357 Murray v. S. Carolina R. R. Co 490 Murry v. Sermon 92 Myers V. Dodd 452 Myers v. Gummel 533 20 INDEX TO CASES CITED. N. Nnpierv. Buhvinkle 546 Kashville & C. R. R. Co. v. Peacock 495 Needham V. Judson 216 Needham v. Pryor's Lessee 283 Nelson v. Stewart ^^ Newcastle v. Broxton 296, 310 Newell V. Hill 358, 415 Newball v. Ireson 109 New Ipswich Factory v. Batchelder 63 Newman v. Foster 286 Newton v. Eddy ^^ Newton V. Pryor 119,206 Nilesv. Patch 231 Norris' Appeal 252 Norris v. Baker 328 Norris V. Le Neve 259, 266, 280 Northern Ind. R. R. Co. v. Martin 4r)3 Norway, The, v. Jenson 237 Noye V. Reed 352, 357 O. Oat V. Middleton 443 O'Banuon v. Louisville, etc., R. R. Co 498 O'Farrallv. Simplot 468 O'Hara v. Strang 260 Ohio, etc., R. R. Co. v. Buubaker 4.08 Orendorf v. Steele 218 Osborn v. Coward 286 Otis V. Smith 1^4 Overton v. Davisson 303 Owen V. Bartholomew 285 Paddock v. Pardee 205 Page V. HoUingsworth 452 Page V. Olcott . • • 408 Painter v. Reece 442 Paldeu V. Bastard 531 Palmer v. Fletcher 528 Palmer v. Sil verthorn 442, 443 Palmer v. AVetmore 538 Park V. Pratt 166 Parker v. Foote 533, 534, 5.36, 551 Parker v. Frarainghara 192 Parker v. Rens. & Saratosa R. R. Co 386 Parker v. Smith 232, 553 Parkhnrstv. Smith 122 Parks V, Loomls 213 Pnmaby v. Lancaster Canal Co 102 Parry v. Crandall 224 Pur-onsv. Miller 12:1 Partridge v. Luce 225, 231 Putrhln V. Dobbins 560 Patrick V. Collorick 325 Palt.-n V. Stltt 119, 120, 138 PatiiTcuu V. Gelston 84 P8tt<'r»on V. Tra»k 198 Fatten V. Alexander 187 Payne V. RogurB 606 PAGE. Pearson V. Spencer 531 Peasleev. Gee 123 Peckhamv. Henderson 390 People V. Brnse 236 People V. Canal Appraisers 62 People V. Central R. R. Co. of N. J 242 People V. Gutcbess •'3 People V. Henderson 22t People V. Kerr 107 People V. Law 107, 151 People V. Williams 394 Penn v. Lord Baltimore, 255, 266, 269, 273, 279 Penruddock's Case 328 Perkins v. Perkins 363 Pernam v. Wood 338 Perrin v. N. Y. Central R. R. Co 144 Perry V. Fitzhowe 326 Perry v. Pratt 250, 265 Pettit V. Shepard 152 Petty V. Booth 123 Peyton V. Ayres 121 Peyton V. Mayor of Loudon 354 Phelps V. Wait 389 Phillipsv. Bowers. .♦ 109,213 Phillips v. Hudson 275,312 Phillips v. Hunger 510 Phillips V. Oyster 470 Phinnoy v. Watts 71,181 Pickard v. Collins 53 Pickering V. Badd 327 Pickering v. Kimpton 263 Pickett v. Metropolitan R. Co 328 Pierce V. Farmer 131,209 Pierre V. Fcrnald 543 Pipe V. Fnlcher 311 Piper v. Richardson 228, 229 Pitman v. Albany 247 Pitts V. Gaw 203 Pisley V. Clark 99, 100 Plasterers' Co. v. Parish Clerks' Co 524 Plaxton v. Dare 309 Plummer V. Beutham , 525 Puler V. N. Y. Central R. R. Co 383 Pollard V. Hagan 33, 34 Pollard V. Scott 311 Polus V. Henstock 348, 349 Pomf ret v. Ricrof t 529 Poole V. Fleeger 234 Porter v. Aldrich 415 Porter v. Sullivan 227-229 Potter V. Parry 344 Powell V. Salisbury 360 Powers V. Silsby 301 Powley V. Walker 507 Pratt V. Woodward 163 Prescott V. Hawkins 265 Prescott V. Mudgett 400 Preston V. Bowman — 119, 282 Pride v. Sweet 286 Pringle v. Warnliam KS IXDEX TO CASES CITED. 21 PAGE. Proctor V. Pool 130 Proprietors of Center St. Church v. Machias II. Co 16T PuLTslej' V. Anderson 394 Pyer V.Carter 354 Q. Queen v. Strand Biet Pub. Works 104 R. Raiford V. Miss., etc., R. R. Co 501 Ralston V. Miller 2!)8 Riin{,'ler V. McCreight 442 Ratcliff V. Commonwealth 447 Rayleyv.Best 280 Ejiynor v. Timerson 119 Redding's Lessee v. McCubbin 804 Reed v. Jackson 308 Reed V. Langford 288 Reed V. McCorvet 293 Reedv. Spicer 129 Regina v. Bedfordshire 306 Regina v. Board of Works 832 Regiua V. Milton 307, 311 Regina v. Mussou 39, 3;}2 Regina v. Mytton 309 Regina v. United Kingdom Tel. Co Ill Regina v. Watson 338 Rcidv. Scheuck 28S Relyeav. Beaver 323, 5.89 Rienshaw v. Beau 555 Rex V. Ellis 37 Rexv. Gee 39 Rex V. Hermitage 350 Rex V. Hordon-on-thc-Hill 526 Rex V. Pagham Comrs 96, 98 Rexv. Pappineau 327 Rex V. Pedley 561 Res V. Traffon 97, 100 Rexv. Watts 505 Rexv. Wharton 76 Rexv. White HI Res V. Yarboroiigh 81 Rhode Island V. Massachusetts 244 Rhpdes V. Otis 55 Rice V. Ruddiraan 65 Rice V. Worcester 109, 110 Richards v. Rose 631 Richardson V. McDougall 369 Richardson v. Milburn 446 Richardson v. Miller 346 Richardson V. Pond 542 Rider v. Thompson 229, 2:« Right V. Raynard 360 Ril)()n V. Hobart 562 Riviere v. Bower 530 Roberts v. Rose 327 Robertson v. McNiel 254 Robeson v. Lewis |^ Robinson v. Hodgson 259 PAGE. Robinson v. White 221 Rockwell V. Adams 287 Rockwell V. Baldwin 159 Rogers V. Sawin 542 Rogers v. While 330 Rohrer v. Rohrcr 442 Roper V. Williams 560 Rosewell v. Pryor 528, 561 Ross V. Reddick 2:ifi Rous V. Barker 262 Rowbotham v. Wilson 527 Rowe v. Brenton . 314 Russellv. Handy 469 Russell V. Sheatou 505 Russeirs Admr. v. Malouey 333 Rust V. Boston Mill Corp 228-230,232 Rust V. Low 315, 346 Rutherford V. Aikin 509 Rutherford v. Tracy 157 Ryan v. Rochester & S. R. R. Co 363 Ryder v. Bentham 566 s. Sackville v. Mihvard 360 Safkin V. Haskell 41 Safretv. Hartman 187 Salisbury v. Andrews 176 Salisbury v. Great N. R. Co 114 Salmon V. Benesley 328 Salter's Co. v. Jay 525 Saltonstall v. Long Wharf 226, 2:31 Sanborn v. Clough 185 Sanborn v. Fellows 408 Sanford v. Haskell 403 Sanset v. Shepherd 86 Saxton V. Bacon 414 Sayer v. Pierce 272 Schnare v. Gehmau 470 Schools V. Risley 87,229 Schoonmaker v. Davis 151 Schreiber v. Crew 56" Schurmeier v. St. Paul, etc., R. R. Co 61 Scoons V. Morrill 103 Scott V. Dickinson 417 Scratton V. Brown 40 Seaman v. Smith 65 Seamour V. McGinnis 194 Searby v. Totenham R. Co 352 Sears V. Charlemout 417 Seaward V. Malotte 132 Seeley v. Peters 456 Scllick V. Adams ^54 Seneca Indians V. Knight 127, 148 Seneca V. Knight ^-"^ ShadwcUv. Hutchinson 525, 561 Sharp V. Curtis 429 Shaw V. Griffin 415 Shcpard V. B., N. Y. & E. R. R. Co... . 382, 368 Shepherd v. Hoes 3.2 Shepherd v. Thompson 301 22 INDEX TO CASES CITED. PAGE. Sherman v. McKeon 107, 126, 137 Shone V. London City R. Co 567 Shriver v. Stephens 443 Shrunk v. Schuylkill Co K Shuts V. Baldwin's Lessee 171 Sibley V. Howen 109 Sikes V. Chicago, etc., R. R. Co 464 Simmons V. Norton 507 Simm's Lessee v. Dickson 283 Simper V. Foley •• 558 Simpson V. Dendy 104, 115, 180, 317 Sinjjlcton v. Williamson 300 Skinner v. Wilder 321 Smart V. Council of Dundee 95 Smith V. Carroll 472 Smith V. Causey 495 Smith V. Chapman 207, .301 Smith V. Chatham 119 Smith V. Devon 518 Smith V. Hamilton 255 Smith V. Hosmer 409 Smith V. Howden 113 Smith V. Keurick 325 Smith V. Levinus ^ Smith V. Martin 176, .303 Smith V.Maryland 33 Smith V. Slocumb 181 Smith V. Stair 95 Smith V. State . 161 Smith V. St. Louis 86 Smith V. Strong 128 Solomon v. Vintners' Co 354 Somerset v. Fogwell 37 Southwell V. Thompson 268 Sparhawk v. Bullard 42, 228, 229 Sparhawk v. Twitchell 415 Sparks V. Hess 170, 184 Sparrow v. Kingman 218 Spaulding v. Warren 3-37 Spear V. Coate 304, 305 Si)eer v. Crawler 257, 259, 271 Spiller V. Scribner 172 Sproiil V. Foye 162 Squire V. Campbell 517 Siwus V. Hudson Kivcr R. R. Co 383 Stackpoole V. Healy 374 StatTi)rd V. IngorsoU 367 Stalkup V. Bradley 500 Staiibcry v. Nelson 2:36 Stanford v. Manikin 169 Stanford V. Taylor 208 Sinnliy v. White 316 Star V. Uokesby 341, 313 Stark V. Coffin 127 Slate V. Allen 488 Slate V. Boll 488 State V. Brown 221 Stall? V. Clements 11.3 State V. Dunwell 2:16 Statu V. Gilmanton 64, 70 PAGE. State V. Graham 488 State V. Headrick 488 State V. Jersey City 46 State V. Lamb 488 State V. Perry 487 State V. Tootle 2.36 State V. Williams 488 Stedman v. Smith 357 Steel V. Pickett 115 Stephens v. Shriver 442 Stevens v. Patterson, etc., R. R. Co 48 St. Louis, etc., R. R. Co. v. Linden 458 St. Luke's V. St. Leonard's 259, 275 StoU V. StoU 558 Stone v. Augusta 184 Stone V. Boston Steel & Iron Co 227 Stone v. Clark 124 Stoner v. Shugart 457 Storer V. Freeman a4, 35, 41, 230,231 Story V. Odin 5:J9 Stranger, The, v. Rowe 37 Stroud V. Springfield 301, 303 Stuart V. Clark 44, 56 &tv.art V. Coulter 266 Studwell V. Ritch 433 Sturgeon's Lessee v. Waugh 304 Sturtevent V. Merrill 404 Suffield V. Brown 354,530 Surget V. Settle 286 Suttonv. Cole. 330 Suydam V. Moore 389 Swanborongh v. Coventry 530, 541 Sweet V. Holland 103 Swick V. Sears 123 Talbot V. Blacklege 469 Talcott V. Stillman 431 Talmadge v. Rens. & Sar. R. R. Co 387 Tapling v. Jones 523, 557 Taylor v. Davey 310, 3.33 Taylor v. Parry 115 Taylor v. Whitehead 117, 50!» Tenant v. Goldwin 529 Tenant v. Hampleton 285 Tennyv. Beard 190 Terrett v. N. Y. & B. S. S. & L. Co 153 Terry v. Chandler 256 Terry v. N. Y. Central R. R. Co 364, 387 Tewkesbury v. Bucklin 409 Teynham v. Herbert 272 Thayer v. Arnold 342,345, 415 Thayer v-. Bacon 3-35 Thomas v. Jenkins 305 Thomas v. Thomas .349 Thompson v. N. Y. & Harlem R. R. Co. . . . 388 Thompson v. Wilcox 110 Thorndike v. Richards 130 Thornton v. Foss 228, 231 Toddv.Flight 505 INDEX TO CASES CITED. PAGE. Toledo, etc., R. R. Co. v. Arnold 458 Toledo, etc., K. R. Co. v. Cole 458 Tomklns V. Vintroiix lt)2 Tonawauda R. R. Co. v. Muuger Zli Towuseud v. Hoy t 282, 290, 293 Townsend v. McDonald 63 Tracy v. Troy & B. R. R. Co 383, 386 Treat V. Chipman 230 Treat V. Strickland 303 Trice v. Hannibal, etc., R. R. Co 474 Trothe v. Simpson 357 Trown v. Chadwick 353 Truscott V. Merchant T. Co 525 Tubbs V. Gatewood 123 Tucker v. Meeks 129 Tucker v. Needinan 356 Tuckerv. Riiukin 392 Tulk V. Moxhay 559 Tupper V. Clark 413 Turner v. Spooner 657 Tyler v. Hammond 109, 174 Tyrrwhitt v. Wynne 115 u. Underbill v. N. Y. & Harlem R. R. Co 384 Union Canal Co. V. Landis 54 Union Pacific R. R. Co. v. Rollins 479 United States v. Appleton 550 Valentine V. Piper 229, 231 Van Bergen v. Van Bergen 563 Vance v. Fore 130-132 Van Deuscn v. Young 509 Vandewerker v. The People — 236 Van Olinda v. Lathrop 109 VanSlyck V. Suell 370 Van Wyck v. Wright 132 V'arick V. Smith 153 Vasquez v. Richardson 210 Venango, etc., Oil Co. V. Lewis 287 Vicksburgh & J. R. R. Co. v. Patten 502 Virginia v. West Virginia 243 Vivian V. Carapron 512 Vorhees v. De Meyer 337 Vorhees v. Martin 394 Voce V. Bradstreet 195 Vowles V. Miller 351 Voyer V. Voyer 358 w. Wagner v. Bissell 469 Wakev. Congers 251, 2.08 Wakeman v. West 312 Walcott V. Robbins 276 Walker v. Board of Public Works 60 Walker v. Boston & M. R. R 228, 229 Walker V. Cay wood ^^392 Walker v. Chichester 34^ 490 PAGE. Walker V. Pearson, 210 Walker V. Shepardson 49, 61 Walkerv. Sherman 397 Walker v. Watrous 493 Wallace v. Fee 146 Wallace v. Maxwell 338 Walsh V. Hill 229 Walsh V. Ringer 189 Walters v. Pfeil a55 Walton V. Tift 219 Wardv. Ncal 546 Warner v. Southworth 117, 352, 426 Warren v. Blake 165 Warren v. Sabin 363 Waterman v. Johnson 71, 125, 2S5 Waterman v. Sohn 318, 358 Waterpark V. Fennell 295 Weatherby v. Ross 557 Wcjiver V. Robinett 337 Webber v. Clossin 404 Webber v. Eastern R. R 109, 125 Weld V. Hornby 124 Wellfleet V. Truro 168 Wellsv. Beal 479 Wells V. Howell 360, 372 Wells V. Jackson, etc., Co 292 Wells V. Ody 553. 561 Western V. McDermott 344 Western v. Sampson 230 West Hartford Ecc. Soc. v. First Baptist Church, West Hartford 248 West Roxbury v. Stoddard 70, 71, 73 Wetherbee v. Dunn 277 Wetmore v. Atlantic W. Lead Co 86 Wetmorev. Law 127,150 Wetmore V. Story 131 Wetmore v. Tracy 391 Whalen v. Blackburn 464 Whaley v. Dawson 2t>l Wheeler V. Howe 358 Wheeler V. Stone 229, 230 White V. Bass 530 White V. Godfrey 110, 163, 214 White V. Hill 114 White V. Scott 380 White V. Warner 512 White V. Williams 156 Whitfield V. Berdit 507 Whitfield V. Brodenhammer 487 Whitfield V. Weedon 507 Whitman v. Gibson 559 Whitney v. Olney 1"0, 174 Whitney v. Smith 286 Whitstable, Free Fishers of, v. Foreman. . 39 Whitstal)le, Free Fishers of, v. Gann 39 Whittier v. Johnson 407 Wigfordv. Gill 353 Wiggin V. Baptist Society 410 Wild V. Holt 115 Wilder v. Wilder 41£ 24 INDEX TO CASES CITED. PAGE. SVildman v. Taylor 131 Wilkinson V. Abbott 312 Williams v. Mich. Central R. R. Co 451 Williams V. Safford 116,117 Willis V. Parkingon 2U3, 279 Willoughby v. Carlton 395 Wills V Walters 343, 496, 497 Wilson V. Forbes 45, 56 Wilson V. Inloes 202 Wilson V. Townsend 553, 565 Wilson V. Tronp 122 Wilson V. Wilmington & M. R. R. Co 490 Wiltshire V. Sidford 353, 355 Winchester V. Hees 211 Winnipisseogee, etc., Co. v. Perley 124 Winslow V. King 113, 182 "Winsldw V. Patten 225 Winsmorc v. Greenbank 328 Winterbottom V. Lord Derby 328 Winters V. Jacobs 470 Winth V. Carpenter 262 Wise V. ■Wheeler 171, m"*, Wishart V. Wyllie fls PAGE. Wiswell V. Marston 164 Witt V. Jefcoat 55 Wolfe V. Scarborough 308 Wood V. Jones 194 Wood V. Kelly 72, 221 Wood V. Leadbetter 526 Woodman v. Lane. . 130 Woodman V. Smith 215 Wooster v. Butler 300 Wright V. Evans 564 Wright V. Howard 49 Wright V. Wright 432, 433, 437 Wuesthoff V. Seymour 158 Wyatt V. Great W. R 326 Wyatt V. Harrison 351 Y. Yates V. Harris 312 Yates V. Jack 525, 555, 556 Yorborough v. Abernathy 338 York V. Davis 408 York, Mayor of, v. Pilkington 272 Young V. Sutton 381 The 'Law of Boundaries, Fences and Windo^v Lights. P* A R, T I. OF THE LAW OF BOUNDARIES. CHAPTER I. DEFINITION OF THE TERM BOUNDARY — PKELIMINAKY OBSERVATIONS IN RESPECT TO THE SUBJECT OF BOUNDARY GENERAL PRINCIPLES APPLICABLE TO THE DESCRIPTION OF BOUNDARIES. The word boundary, as it will be used in the following pages, signifies the line which fixes the limits of any specified territory, or piece or parcel of land or real estate, or it may be defined to be the ascertained limits of adjoining lands owned by difterent proprie- tors. The meaning of the term as explained in Biirrill's Law Dic- tionary is, " a line or object indicating the limit or furthest extent of a tract of land or territory. A separating or dividing line between countries, States, districts of territory, or tracts of land, consisting sometimes wholly of one or more natural objects, as a river, a chain of lakes, etc. ; sometimes of artificial erections, as a stone wall, fence, and the like ; sometimes of an imaginary line drawn from one principal terminus to another, and indicated along its course by prominent natural or artificial objects standing or erected upon it at intervals, and sometimes of all these in combina- tion." After citing authorities, the definition is farther continued : " A line or connected series of lines going around a territory or tract of land and inclosing it on all sides. A tract or country may be said to be bounded by a single line running in various direc- tions from one point to another, so as to surround it, but it is more common to use the plural loundaries as descriptive of a series of lines of various lengths, traced out either by natural objects or by courses and distances, or by both, running in various directions from one point to another; &\\d\ j^oints (sometimes called in sur- veys corners, and anciently hutts) being usually designated by some conspicuous object, as a rock, a tree, a stake, a heap ot stones, etc." (1 BarriWs Law Dictionarij, title Boundary). Obviously, the line which marks the confines or division of two contiguous or adjacent estates is the boundary of such adjoin- ing estates. A boundary may be known by taking a line between, two fixed points or objects, or it majjlfoe marked by stakes erected at inter 28 -^-i^' OF BOUNDARIES. vals, and at the discretion of any of the proprietors may be perma- nently distingnished or fenced by a wall or a chain, according to the nature of the soil. The word fence is properly applicable to the inclosnre of lands by walls, chains or hedges, for the purpose of agricultural inijirovement, or of preventing trespass (1 Furlong's Landlord and Tenant^ 69G). To render a thing capable of being appropriated, it is not strictl}^ necessary that it should be inclosed, or capable of being restrained within artificial bounds, or such as are different from its own existence; it is sufhcient if the compass and extent of it can be determined {Sohidtes on Aquatic Rights, 118). As a general rule, the boundar}^ between the lands of adjoining owners is to be settled by the conveyances under which they hold. Exceptions exist in some cases of practical location and the like, but ordinarily resort must be had to the written or documentary evidence of the title. And here it may be observed that words in an instrument of grant, as elsewhere, are to be taken in the sense which the common usage of mankind has applied to them in reference to the context in which they are found. For example, if lands granted are described as bounded by a house, no one would naturally suppose that the house was included in the grant ; but if the land granted is described as bounded by a highway, it would be equally unnatural to suppose that the grantor designed to reserve to himself the right to the soil ad medium filmn, for the simple reason that in a majority of cases the fee of the land cov- ered by the road would be of no possible use to one having no interest in the adjacent soil. The rule upon this subject has been thus judicially stated: " Whenever land is described as bounded by other land, or by a building or structure, the name of which, according to its legal and ordinary meaning, includes the title in the land of which it has been made a part, as a house, a mill, a whaif, or the like, the side of the land or structure referred to as a boundary is the limit of the grant; but when the boundary line is simply by an object, whether natural or artificial, the name of which is used in ordinary speech as defining a boundary, and not as describing a title in fee, and which does not in its descrip- tion or nature include the earth as far down as the grantor owns, and yet which has width, as in the case of a way, a river, a ditch, a wail, a fence, a tree, or a stake and stones, then the center of the thing so running over or standing on the land is the boundary oi RULES OF CONSTRUCTION. 20 the lot granted" {The City of Boston v. Richardson, 13 Allen's jR., 14:4:, 154). This is the general rale of construction, and it was well illustrated in the elaborately considered case in Massachusetts in which it is thus stated. Another general rule of construction is, that definite boundariea given in a deed will limit the generality of a term previously used, which, if unexplained, would have included a greater quantity of land. And when the boundaries mentioned in a deed of convey- ance are inconsistent with each other, those are to be retained which best subserve the prevailing design manifested on the face of the deed ; and the least uncertainty must yield to the greater certainty in the description. Again, every call in the description of the premises in a deed must be answered if it can be done ; and the intention of the parties is to be sought by looking at the whole, and none is to be rejected if all the parts can stand consistently together. If there be a precise and perfect description, showing that the parties actually located the land upon the earth, and ano- ther, general in its terms, and they cannot be reconciled to eacli other, the latter should yield to the former. But when there is inaccuracy or deficiency in the particular description, the one which is general often becomes important, and renders that clear which, without it, would be obscure and uncertain. These general principles are well understood, and have been so frequently recog- nized by the courts, that the citation of authority need not be made. In locating lands the following other general rules are resorted to, and usually in the following order : First, natural boundaries. Second, artificial marks. Third, adjacent boundaries. Fourth, course and distance. Neither rule, however, occupies an inflexible position; for,. when it is plain that there is a mistake, an inferior means of location may control a higher. When land is located, the line is to be run according to the boundary, and the boundary is to be observed, though the courses are different. But when there is some doubt about the natural boundaries, and this doubt can certainly be removed by artificial marks, the latter will have effect, although of inferior degree. And where no monuments are named in a grant, and none are intended to be afterward desig- nated as evidence of the extent of it, the distance stated therein must govern the location. In accordance with the principle of construction that what ia most material and most cerifin in a descrij3tion shall prevail ovei gQ LAW OF BOUNDARIES. that which is less material and less certain, it is a general rule that course and distance must yield to natural and ascertained objects ; as a river, a stream, a spring or a marked tree ; or, in other words, that com-se and distance must yield to natural, visible and ascertained objects. The rule, however, that monuments con- trol in boundaries is not inflexible ; and in a case where no mis- take can reasonably be supposed in the courses and distances, the reason of the rule will fail, and the rule itself will not be applied. As an illustration, the Supreme Judicial Court of Massachusetts long since decided that a line of " one foot and three inches," in describing land on one of the main streets of Boston, should con- trol the boundary mentioned {Davis v. Rainsford, 17 Mass. B., 207). But where the boundaries of land are fixed, known and unquestionable monuments, although neither courses nor distances nor the computed contents correspond, the monuments must govern. The authorities upon this point are very numerous, and they are so uniform that they need not be cited. Preference is said to be given to monuments because they furnish greater cer- tainty of description. And, also, because such preference is most beneficial to the grantee in giving him more land. These monu- ments may be either natural or artificial objects ; but natural objects are preferred over artificial ones, simply because they are reo-arded, as a rule, to be more lasting and permanent. A false or mistaken particular in a conveyance may be rejected, where there are definite and certain particulars, suflicient to locate the grant, But prima facie, a fixed visible monument can never be rejected as fiilse or mistaken, in favor of mere course and dis- tance, as the starting point, when there is nothing else in the terms of the grant to control and override the fixed and visible call. The general rule that courses and distances must yield to natural or artificial monuments or objects is upon the legal pre- sumption that all grants and conveyances are made with reference to an actual view of the premises by the parties. And where the grammatical sense of the words is not in harmony with the obvious intention of the parties, one word will be substituted for another for tlie purpose of giving effect to such intention. And still another general proposition may be stated in connection with this stibject, which is, that the description of boundaries in a deed ■ is to be taken most strongly against the grantor. This is a well settled rule, and is uniformly applied. PROPERTY ON THE SEASHORE. 31 These are the only observations relating to the question of boundary of a preliminary nature which it is important to make The uli of construction as applied to different conveyances, and Itspecies of evidence proper in cases of boundary, will be more elaborately considered in subsequent chapters. CHAPTER II. rru.. T^TPHTS or PROPERTY ON THE SEA-SHORE — HOW THE SAME MAY L iXlED bTgRANTS or PRESCRIP-nONS -THE LAW OF BOUNDARY WH REFERENCE TO THESE RIGHTS -WHAT IS THE BOUNDARY OE PRIVATE PROPERTY BORDERING ON THE SEA. In order to be able to determine the boundary of lands upon the sea-shore and other navigable waters, it is requisite to under- stand the law in respect to the soil under these waters. By the law of nature, the air, running water, the sea, and consequently the shores of the sea, are common to all mankind. No one, there- fore, is forbidden to approach the sea-shore, provided he i-espects habitations, monu.nents and buildings, which are not, like the sea subject only to the law of nations. Tins k the rule of he civil law upon the subject {Institutes, lih. 11, tit. i, p. 1). And by the same authority, it appears that the use of t^ie sea-shore is as public, and as much subject exclusively to the law o nations as tlie sea itself, so that any person would seem to be at liberty to place on it a cottage to which he may retreat, or to dry his _ne s there, and haul them from the sea ; for the shores may be said to be the property of no man, but are subject to the same law as the sea itself and the land or ground beneatli it. That is to say, this is the rule laid down in the Institutes {Instit., lih. 11, tit. \,p- 5). The law of England upon this subject differs somewhat trom the civil law. By the former, the soil of the sea, of estuaries and of navigable rivers was originally in the crown, and the law is th? same now, except in those cases where it can be proved to have been transferred to a subject {Hale de Jure Maris, 12 2o ; Malcolmson v. O'Dea, 10 House of Lords Cases, 593). But the rule in Scotland is different. There, the sea-shore is^ not as m England, held to be property reserved to the sovereign, but is presumed to be granted ^ part and pertinent of the adjacent 32 LAW OF BOUNDARIES. land, under the burthen of the crown's right, as trustee for the public use {Bell on Law of Scotland, 251). The law of the American States upon this subject is the same as that in England. That is to say, by our law, whatever soil below low-water mark is the subject of exclusive propriety and ownership belongs to the State on whose maritime border, and within whose territory it lies, subject to any lawful grants of that soil by the State, or the sovereign power which governed its terri- tory before the declaration of independence. This doctrine was distinctly declared by the Supreme Court of the United States in a case decided in 1842, wherein the claim was for lands lying beneath the navigable waters of the Earitan river and bay, where the tide ebbs and flows, and the principal right in dispute was the property in the oyster fisheries in the public rivers and bays of East Xew Jersey. The rules of the common law were elabor- ately examined and commented upon, and the remarks of Hale when speaking of the navigable waters, and the sea on the coasts within the jurisdiction of the British crown, were referred to and approved, wherein it is said : " That although the king is the owner of this great coast, and, as a consequent of his propriety, hath the primary rights of fishing in the sea and creeks, and arms thereof, yet the common people of England have regularly a lib- erty of fishing in the sea, or creeks, or arms thereof, as a public common of piscarry, and may not, without injury to their rights, be restrained of it, unless in such places, creeks or navigable rivers, where either the king or some particular subject hath gained a propriety exclusive of that common liberty" {Hale's Treatise de Jure Maris, Ilargrave's Laio Tracts, 11). This principle stated by Hale is not questioned by any English writer upon the subject. But the question as to the power of the crown since Magna Ciiarta to grant to a subject a portion of the soil covered by the navigable waters of the kingdom, so as to give him an immediate and exclusive right of fishery within the limits of Iiis grant, is not entirely free from doubt, although Chief Jus- tice Taney, who delivered the prevailing opinion of the court in tlie case under consideration, thought the question must be regarded as settled in England against the right of the crown since Magna Cliarta to make such a grant. The point, however, did not arise in the case, and the learned chief justice remarked : " And wc the more willingly forbear to express an opinion on this PROPERTY OX THE SEA-SHORE. 33 Bul)ject, because it has ceased to be a matter of much interest in the United States. For when the Revobition took phice, the people of each State became themselves sovereign ; and in that character held the absolute rio-ht to all tlieir navigable waters and the soils under them for their own common use, subject only to the rights since accorded b\' the constitution to the general gov- ernment " (Jlarthi V. Waddell, 16 Peters' i?., 367, 410). The court seem to have adopted the doctrine of a case previously decided by the Supreme Court of New Jersey, in which it was held that navigable rivers, where the tide ebbs and flows, and the ports, bays and coasts of the sea, including both the waters and the land under the water, are common to the people of New Jersey {Arnold v. 2Iunday, 1 IIalsted''s B., 1). And the same general doctrine has been subsequently affirmed by the Supreme Court of the United States. It was held in 1845, that the shores of navigable waters and the soils under them were not granted by the Constitution of the United States, but were reserved to the States respectively ; and that the new States have the same rights, jurisdiction and sovereignty over this subject as the original States {Pollard v. Tlagan^ 3 Iloward^s P., 212). And in a more recent case the same court held that whatever soil below low-water mark is subject to exclusive ownership, belongs to the State within whose limits it lies ; and that the State may make regulations concerning its use and concerning any fishei'ies upon it {S/'iit/i V. Maryland., 18 IIoio. P., 71). It is, therefore, well settled, that the sea and its arms ai-e peculiarly and pre-emiently in the State, in respect to their uses; all of which, at common law, are public, and they are held by the sovereign power for the public benefit, that is to say, navigation, fishing, the moving of vessels, which is subject to the jus preventionis { Vide Atujell on Tide-waters, 158). The rule which governs in respect to the sea and the soil under- it applies also to the shore. AVhat constitutes the shore is dif- ferent under different systems of law. By the civil law, the shore' extends as fjir as the greatest winter flood runs up. But this is not the doctrine of the common law upon the subject. By that,, the shore is that portion of the land adjacent to the sea that is between ordinary high-water and low-water mark, and which iS' alternately co^-ercd and left dry by the ordinary flux and reflux of .he tides ( Vide Hale de J^fte Marisy 12 ; Hall on Sea shore, 8 ;. 5 34 LAW OF BOUNDABIES. Blundell V. Catterall, 5 Barn. c6 Aid. It, 292 ; Earveij v. Mayor of Lyme Regis, 4 L. R., Exc/i., 260). The line of deiiiarkation between the sea-shore and the land of the adjoining proprietor above is the line of the medium high tide between the springs and the neaps. This was so decided by the High Court of Chancery of England some twenty years ago, after much discussion, in a case in which Lord Chancellor Cran- wortli was assisted by Mr. Justice Maule and Mr. Baron Alderson. His lordship, in rendering his opinion, said : " The principle which gives the shore to the crown is, that it is land not capable of ordinary cultivation or occupation, and so is in the nature of unappropriated soil. Lord Hale gives, as his reason for thinking that lands only covered by the high spring tides do not belong to the crown, that such lands are, for the most part, dry and manior- able ; and, taking this passage as the only authority at all capa- ble of guiding us, the reasonable conclusion is that the crown's right is limited to land which is, for the most part, not dry or maniorable. The learned judges, whose assistance I had in this very obscure question, point out that the limit indicating such land is the line of the medium high tide between the springs and the neaps. All land below that line is more often than not covered at high water; and so may justly be said, in the language of Lord Hale, to be covered by the ordinary flux of the sea,^ This cannot be said of an}-- land above that line ; and I therefore concur with the able opinion of the judges, whose valuable assistance I had, in thinking that medium line must be treated as bounding the right of the crown" {2'he Attorney- General v. Chatnbers, 4 De Gex, McN. cC' Gordon's R., 206, 217, 218 ; S. C, 27 Eng. Law and Eq. R., 242). The common-law doctrine, as to what constitutes the shore of the sea, is recognized in the American States ; and it has been repeatedly held that the sea-shore is that ground which lies between the ordinary high-water mark and low-water mark ; or, in other words, the space between high and low-water mark {Storer v. Freeman, 6 Mass. R., 435, 439 ; Cutis v. Ilussey, 3 IShepley'^s R., 237). And it has been before shown, that the com- mon-law rule, that all the shore below ordinary high-water mark belongs to the sovereign power of the State {vide Mai^tin v. Wad- dell, 16 Peters'' R., 367; Pollard v. IIagan,2, How. R., 212; Arnold v. Mundy, 1 HaUt. R., 1 ; Commonwealth v. Charles- PROPERIY ON THE SEA-SIIOIiE. 35 toion, 1 PicTcerhufs R., 180, 182 ; Storer v. Freeman, 6 JIass. B., 435, 438). This, clearly, is the doctrine in respect to tlie sea and all arms of the sea; and it has been held tliat the same doctrine applies also to navigable rivers. But at common law only arms of tlie sea, and streams where the tide ebbs and flows, are deemed navi- gable. Streams above tide-water, although navigable in ftict, are not deemed navigable in law. The title of a riparian proprietor of land, bounded by a navigable river or the sea, extends only to high-water mark ; that is to say, this is the rule at common law {Middleton v. Pritchard, 3 Scammoii' s R., 510). What is regarded as hio-h-water mark is the line of the medium high tide between the springs and the neaps, and does not extend to land overflowed only at high spring tides. It has sometimes been questioned whether private individuals can gain a right to the soil of the sea-shore, either by charter or grant, or by long continued possession. Says Mr. Hall, in the appendix to his work on the Sea-shore: " It may be a question whether it ought ever to have been in the power of the crown to alienate by grants to individuals any portions of the sea-shore of the realm ; and it may be still more questionable whether such alienation ought ever to have been presumed in a court of law, when no grant whatever could be produced. It may be thought that prescription, or presumption of law, ought in no case to be allowed to prevail against the title of the crown to so important a trust, confided by the law to its charge for the good of the com- monwealth. If the king were to make the sea-shores of the realm a source of private sale and profit, he would be acting con- trary to the trust for which the ownership of the sliore was vested in the crown by the common law. Still less, therefore, ought pri- vate individuals to be aided, by presumption of law, in their claims upon the shore when the crown and public are both thereby greatly impoverished" {IlaWs Essay 07i Sea-shore, 296). Mr. Hall was a legal writer of considerable repute fifty years ago ; and even now his work on the Rights of the Crown and Privileges of the Subject in the Sea-shores of the Realm, is regarded as very good authority, although some of the rules governing the subjects which he there discusses have been somewhat modified, if not entirely changed, since his treatise was written. For example, it is now well settled that tire shore may belong to a private indi- 35 LAW OF BOUNDARIES. vidual, and that the soil of the sea-shore may he acquired in the same manner that other rights in real property are gained. The shore may belong to a private individual in gross, which possibly mav suppose a grant before the time of memory, or it may be part and parcel of a manor, subject in all cases to the rights which the public possess of using the shore for the purpose of fishing ; fur it was under this burden while in the hands of the sovereign, and will, therefore, remain so in the hands of its grantee, unless the latter can establish an exclusive right of fishing in himself, arisino- from a grant or long continued enjoyment ( Vide Hale de Jure Maris, 26, 27; Fltzpatrich v. Rohlnson, 1 Hudson dc Broo'kes B., 585). But all grants of the sea-shore by the crown of England to a subject must have had a date anterior to the sta- tutes now existing, restraining the alienation of crown lands {Hall on Sea-shore, 118). It has been held, however, that juries must be directed to presume an ancient lost grant from the crown from luns continued acts of ownersliip exercised on the sea-shore by the adjoining proprietor {Mayor of Kingston v. Homer, 1 Coiojper'^s JR., 102, 215 ; In re Belfast Dock Act, 1 Irish Eq. B., 128 ; Be AUton''s Estate, 5 W. B., 189; 1 Taylor'' s Evidence, Uh ed., I-IOV The acts which are relied upon as evidence of a lost grant of the shore are commonly the facts of constantly and usually fetching gravel, and sea- weed and sea-sand, between the high-water and low-water mark, and licensing others to do so ; inclosing and embanking against the sea, and the enjoyment of what is so inclosed ; the enjoyment of wrecks happening upon the sand ; the presentment and punishment of jpurpresture in the Court of the Manor, and the like {Hale de Jure Maris, 27; vide Calmady V. Bowe, 6 Com, Bench B., 861 ; Duke of Beaufort v. Mayor of Sicansea, 3 Exchequer- B., 413; Le Strange v. Boioe, 4 Eoster c& Fin. B.. 1018 ; Bhear on Water, 89). But it has been held that if the acts are not continuous, but only occasional, and have always been the subject of dispute, they will not form a sufficient ground for presuming a lost grant; and it has been held that the mere user of the sea-shore by the turning on of cattle, although without interruption for the period of sixty years, was not such an act of ownership as to raise a presumption of title in the owner of the cattle, inasmuch as the sea-shore is propert}' of such a nature that it cannot be easily protected against intrusion ; and even if it could, it would not be worth the trouble and expense of fencing PROPERTY ON THE SEA-SIIORE. 37 it. Knowledge or acquiesceuee on the part of the person inter- ested in resisting the right claimed, or perseverance in the assei^ tion and exercise of the riglit in the face of opposition on his part, mnst be proved in such case to enable the claimant to establish Ins title {Livett v. Wiho7i, 3 Bing. JR., 115; Attorney- General v. Chanihers, 4 De G. & J.'s B., 55). The shore has been held to pass under a grant of the wastes of a manor. In a recent case there was a grant in fee of all coals and coal mines found or to be found within the commons, waste lands, or marish grounds within the lordship of E., with full power and authority to dig, search for, and sink pits, and open the mines in all places convenient within the said commons, waste grounds and marishes, for the getting of coal within the lordship. The shore was part of the manor, and it was held that the coals under the shore passed to the grantee, and that the word " waste" was a sufficient description of the soil between high and low-water marks {The Attorney-General v. Hammer,^ Jurist, If. S., 751, ajid vide Attorney- General v. Jones, 33 Law Journal, Exchequer, 219). It seems that the shore may also pass under the word '■^ripa or bank," or under the words "anchorage and groundage" {In re Belfast Dock Act, 1 Irish Eq. R., 12S, 140; V//d Stranger v. Roive, 4 Fos. ds Fin. R., 104S; CalmaJy v. Roice, 6 Com. Bench R., 891). And according to Lord Hale and Lord Coke, where there has been a grant by the crown to the lord of a manor or other person of the rights to take wreck, there is a ji;;'m« facie presumption that the sea-shore itself was also intended to pass, inasmuch as a ship cannot be a wreck, within the legal meaning of the term, without being cast upon the land, and that between high and low-water mark {Ilale de Jure Maris, 27; Constables Case, 5, Colce's R., 107 ; Calmady v. Roive, supra ; Rex V. Ellis, 1 Maule & Selw. R., 662 ; vide Round on Riparian Owner's, 14). According to other writers, however, the right to wreck is merely a franchise, carrying with it no right to the soil or shore {Phear on Water, 52 ; Hall on the Sea-shore, 81-99). According to the latest English authorities the riglit to a several fifcliery lyrima facie imports the ownership uf the soil of the sea, or river where the right of fishing is exercised {Somerset v. Fog- loell, 5 Barnwell dc CresweWs R., 875; Ilolford v. Bailey, 8 Queen's Bench R., 1000 ; S^C, 13 ih., 427). This is regarded by a modern elementary writer as opposed to sound principles, and 38 i^TF OF BOUNDARIES. he expresses the opinion that the decisions which la_y down this doc- trine will be overruled should the point come before a court of appeal for consideration [Paterson on the Fishing Laivs, 65). And some remarks have been made in a recent case before the English Queen's Bench in favor of the adoption of a different rule than that which connnonlv prevails upon the subject. Lord Chief Justice Cock- biirn, in the course of his opinion in the case, observed : " It is admitted on all hands that a several fishery may exist indepen- dently of the ownership of the soil in the bed of the water. Why, then, should such a fishery be considered as carrying with it, in the absence of negative proof, the property in the soil ? On the con- trary, it seems to me that there is every reason for holding the opposite way. The use of water for the purpose of fishing is, where the fishing is united with the ownership of the soil, a right inci- dental and accessory to the latter. On a grant of the land the water and the incidental and necessary right of fishing would necessarily pass with it. If, then, the intention be to convey the soil, why not convey the land at once, leaving the accessory to follow \ Why grant the accessory that the principal n^ay pass incidentally ? Surely such a proceeding would be at once illogical and unlawyer- like. The greater is justly said to comprehend the less, but this is to make the converse of the proposition hold good. A grant of land carries with it, as we all know, the mineral which may be below the surface. But who ever heard of a grant of the mineral carrying with it the general ownership of the soil ? Why should a different principle be applied to the grant of a fishery, which may be said to be a grant of that wdiich is above the surface of the soil, as a grant of the mineral is a grant of that which is below it? Nor should it be forgotten that the opposite doctrine involves the startling and manifest absurdity that should the water be diverted by natural causes or become dry, the fishing, which was the pri- mary and principal object of the grant, would be gone, and the property in the soil, which only passed incidentally and as acces- sory to the grant of the fishery, M'ould remain" {Marshall v. Ulleswater Steam Navigation Co., 3 Best di; Smith'' s Ji., T32, 748; S. C, 6 ib., 570; vide Hall 07i Sea-shore, 4:5-81). This is certainly sound reasoning and correct doctrine, and although the decision does not necessarily overrule the other authorities upon the subject, the doctrine of the remarks of the learned chief jus- tice must ultimately be the doctrine of the courts. PROPERTY ON THE SEA-SHORE. 39 It is said by a very respectable Englisli writer : •' It must be remembered that the soil of the sea is not susceptible of transfer till it becomes convertible or derelict " {Schultes on Aquatic Rights, 110). In snj)port of this proposition Mr. Schultes refers to Bacon's Abridgment, title " Prerogative," B, where a case is quoted in which there was a grant by the crown of the manor of Holbeck, with its appurtenances. In the letters-patent were the following words: N^ecnon totuni ilUidfandum, et solum, et terres sicas con- tUjiie adjacent, to the premises, quae sunt aqun. cooperta, vel quae in posterum de aqua possunt Tecuperarl, etc., non obstante non nomlnando valorem qualltatem sive quantitatem, etc. Some 100 ot" acres having been recovered from the sea, it was a question whether they passed by the patent. Notwithstanding the strong language of the grant, the court held that the patent as to those 100 acres which became derelict was void {The Attorney- General v. Sir Edioard Farmen, 2 Levins' R., 171). This is a very early case, and the doctrine of it has not always been adopted by the courts, for it seems by the later authorities that in some cases a subject may have a right to the soil of the sea when covered with water. It was said by Erie, Ch. J., in a late case decided by the English Common Bench, that the soil of the sea-shore to the extent of three miles from the beach is vested in the crown, and that there is no rule of law which prevents the crown from grant- ing to a subject that which is vested in itself ( The Free Fishers of Whitstable v. Gann, 11 Coin Bench R., N'. S., 387; vide Same V. Foreman, 2 Law R., C. P., QS^', S. C, 3 ih., 578). And according to Lord Hale, as understood by Mr. Angell, " those parts of the sea which may require a naval armament to protect them do not lie within the extent of private acquisition or possession " ( Vide Angell on Tide-waters, 286 ; Hale de Jure Maris, 32). As the sea-shore may be part of a manor, so it may be parcel of a vill or parish, and evidence for that will be the usual perambula- tions, common reputation, known metes and bounds, and the like {Ilale de Jure Maris, 27). But it is held by the court tliai, p>rima fade, the sea-shore is extra-parochial {Regina v. Jfusson, 8 Fills i& Blackburn'' s R., 900 ; S. C, 4 Jur., JSf. S., Ill ; and vide Rex V. Gee, 1 Ellis cfc Ellis' R., 1068). It may, then, be affirmed that it is a settled principle in the laws of this country and of England that tlie right of soil of owners of land bounded by the sea, e^ which is the same, on navigable rivers ^Q LAW OF BOUNDARIES. where the tide ebbs and flows, extends only to high-water mark, and that the shore below common, but not extraordinary high-water mark, belongs to the State as trustee for the public. In England the crown and in this country the people have the absolute pro- prietary interest in the shore of these waters, though it may by grant or prescription become private property (3 Kent's Com., 1th ^ed., oU, 515). But the grantee of such shore will not take a Hxed freehold, but one that shifts as the shore recedes or advances {Scmtton V. Brown, 4: Barn, cfc Ores. B., 485). So that in all cases where the land of a private individual is bounded upon the sea, prima facie, the boundary is the shore at ordinary high-water mark. CIIAPTEPw III. THE RIGHTS OF PROPERTY ON NAVIGABLE RIVERS WHERE THE TIDB ESIiS AND FLOWS THE LAW OF BOUNDARY WITH REFERENCE TO THESE RIGHTS THE RULES APPLICABLE TO THE BOUNDARY OF PRI- VATE PROPERTY BORDERING ON NAVIGABLE RIVERS. The Siime principle which governs the question of boundary of property adjoining the sea, applies to arms of the sea, estuaries and navigable rivers below tide- water. And, therefore, it has been recently decided by the English Court of Queen's Bench, that where a navigable river divides two parishes, the boundary of each parish is presumed, until the contrary be shown, to coin- cide with the line of the medium high tide on each bank. The bed of the river was conserpiently declared to be extra-parochial {Trustees of the Dalce of Brid'jewater v. Booth,"! Best dc Smith'' s B., 34:8 ; S. C, 2 Laio R., Q. B., 4). This, however, is merely a vrima facie presumption, and it seems that evidence may be pro- duced to show that the bed of the river belongs to both or per- haps wholly to one of the adjoining parishes. In a recent case in the English Court of Quccirs Bench, it appeared that the pier at Rothcrhithe rested on wooden piles fixed in the bed of the river between high and low-water mark ; that, in beating the bounds of the parish of Rothcrhithe the authorities were accustomed to proceed along the embankments, wharves or other shores of the river Thames ; while in the adjoining parish of Bermondsey the LAXDS ON NAVIGABLE niVEES. 4L autlioritios ■^eut along the middle of the river. The parish of liotherhithe had never done or exercised any parochial acts of authority beyond the enibankinents. The question of the liability of the pier to be rated to the relief of the poor having- come before the court on a special case stated for their opinions, Lord Campbell said: " At nisi prlas I should direct a jury to presume from the circumstances of this case that the land on which the pier is built was within the parish of Rutherhithe. Where the beaters of the boundaries go as near the extremities of the parish as the nature of the land will admit of, what more is necessary ? They assume that it is well known that the parish extends to the middle of the river, and so the authorities of Rjtherhithe (though other parishes act ditl^erently) content themselves with keeping along the dry land, and the acts of the Bsrmondsey authorities are rather against those in fovor of the exemption claimed by the defendants, as showing that other neighboring parishes on the Thames extend to the middle of the river" {McCaiinon v. Sinclair^ 2 Edis & Ellis'' B., 53 ; S. C, 5 Ju,\, N. S., 1,022 ; .S'. C, 28 Law J., M. a, 2-t7). The rule that the land of an individual bounded upon a navi- gable river, below tide-water, extends only to common high-water mark, is not alsolute, but it may be shown by competent evidence that the individual is the owner of the shore extending down to low-water mark. This doctrine, however, is not confined to boundaries upon navigable rivers, for the ordinary rule may be varied by evidence in cases of boundaries upon the sea itself, as well ; for example, it has been held by the Supreme Judicial Court of Massachusetts, that by a usage in that State (founded on a colony ordinance of IGil, ancient charter, l-iS) which has the force of common law, the owner of lands bounded on the sea or salt water shall hold to low-water mark, so that he does not hold more than 100 rods below high -water mark, and saving the rights of othei's to convenient ways (Stone v. E/'eenum, G Mass. 12., 435 ; Austin V. Carter, 1 ib., 231 ; Coniinonivealth v. Charlestown, 1 Pick. R., 180 ; Barker v. Bates, 13 ib., 255). It has been held, however, that this rule does not extend to a grant of a piece of land entirely covered at high-water {Sufkin v, Haskell, 3 Pick. P., 356). And where land is granted as bounded on a way, which way adjoins the sea-shore, it has been held that the usage does not apply {Codman v. Wi7islow, 10 Jfass. P., 146). But a proprie- 6 42 LAW OF BOVSB ARIES. tary grant, in 16S0, of " a piece of land below liigli-water mark, to set a shop upon, not exceeding forty feet in width," was cou Btrued to extend to low-water mark {Adams v. Froihijigham, 3 2fass. IL, 350). It may be added in this connection, that the ebb of tliu tide, where from natural causes it ebbs the lowest, and not the average or common ebb, is to be taken as the low-water mark {Sjjarhawk v. Bidlard, 1 21et. B., 95). At an early day the Supreme Court of Connecticut laid down the rule, in unqualilied terms, that the proprietor of land adjoin- in" to a navigal)le river has the exclusive right to the soil, between high and low-water marks, for the purpose of erecting wharves and stores thereon. This was declared in giving con- struction to a grant, involving the shores of Dragon river at a point where the tide ebbs and flows, and the question evidently turned upon the language of the grant ; and the court did not design to hold that the common-law doctrine that, prima facie, the title to all parts, the arms of the sea and navigable rivers, to high-water mark, is in the sovereign of the State ; for the rule was expressly recognized by the chief justice, in delivering the opinion of the court (and it was, therefore, argued as an undoubted consequence), that the State "may grant the property of the soil between high and low-water mark to a subject or coi-poration " {East Haven v. Hemingway, 7 Conn. B., 186, 198) ; and three yeai-s later, the same court declared the common-law rule upon the subject to be applicable in that State. Daggett, J., who delivered the opinion of the court, said : " The doctrine of the common law is that the right to the soil of the proprietors of land on navigable rivers extends only to high-water mark; all below is puhlici juris, in the king, in England. That is the law in Con- necticut ; for we liave no statute abrogating it. It was the law brought by onr ancestors ; it is our law ; the soil being not indeed owned ])y the king, but by the State" {Chapman v. Kimhall, 9 Conn. R., 38, 40). So far as the question of houndar/j is con- cerned, therefore, the common law is in force in Connecticut ; but the rights of the proprietor of lands to the shores of the sea or a navigable river have been somewhat extended in that State ; for it was laid down in the case of Chapman v. Kimball, that the adjoining proprietors have the right to the shore, subject to the paramount right of the public. The judge said: "The usage of the owners of land to high-water mark to wharf out against their LANDS ON NAVIGABLE RIVERS. 43 own land lias never been disputed. The interests of navigation have been subserved, and the consequences have been altogether salutary. On the death of the owner to high-water mark, his estate in the shore and the erections upon it has descended to his heirs. This is our common law, founded on immemorial usage {East Haven v. Jlemhigtvay et al., 7 Conn. R., 186, and the cases there cited ; Chapman v. Kimball, 9 Conn. li., 41, 42) ; and Judge Swift, long before that time, said, in his System: 'All adjoining proprietors, on navigable rivers and the ocean, have a right to the soil covered with water as far as they can occupy it ; that is, to the channel, and have the exclusive privilege of wharf- ing and erecting on the front of their land' (1 Swifi's System, 341). But in his Digest, written nearly thirty years after, he states the law to be that ' the ocean, navigable arms of the sea and navigable rivers, as far as high-water mark, belong to the public; and the proprietors of the adjoining land own to high- water mark ' " (1 Swift's Dig., 109). A river may be navigable below the ebb and flow of the tide, in the sense of the common law, and, in fact, navigable above the ebb and flow of the tide ; but not so in accordance with the rules of the common law. So that the question of boundary, in respect to lands adjoining such river, would have to be determined by one principle above, and another below, tide-water. Even the Missis- sippi river, navigable for a large class of vessels for thousands of miles above tide-water, according to some decisions, is not regarded in law navigable. So that a grant of land, lying upon that river, by the United States, without reservation, passes to the grantee a title to the middle thread of the current, the same as in the case of grants bounded upon the smaller rivers of the country ( Vide Middleton v. Pritchard, 3 Scam. R., 510). The common-law criterion of a navigable stream is the flow and reflow of the tide ; the civil-law criterion is the capability and suitableness of the stream to the purposes of navigation, in the ordinary state of the water. In the State of Tennessee the civil- law criterion has been adopted. But in all other respects the principles of the common law, regulating and defining the rights of the public and the riparian owners, remain unchanged. And it has been declared by the Supreme Court of the State that a river may be navigable, in the ordinary acceptation of the term, and yet not navigable in^ legal, or common-law sense ; and such 44 LAW OF BOUyDARIES. is a river or stream of sufficient depth, iiatnrallv, for valuable floatage, sucli as rafts, flat-boats, and small vessels of lighter draft than ordinai-y. It was further declared that, if a river or water course be navigable in a legal sense, the soil covered by the water, as well as the use of the stream, belongs to the public. If it be navigable only in the ordinary sense, the ownership of the bed of the stream is in the riparian proprietors, and the public have an ease- ment therein for the purposes of transportation and commercial intercoui-se. If the stream be so shallow as to be unfit for such purposes of transportation and commerce, the right both of pro- perty and use is wholly and absolutely in tlie owners of the adjoining land {Stuart v. Clark, 2 Sivaii's R., 9). By the civil law a public river is defined as one which is per- ennial, or ever flowing, and which is also capable of navigation. The use of the bed of such a river is in tlie public; but the soil itself belongs to the owners of the banks on each side. By the civil law the public liaye a right of towiiig and mooring boats, and of h>ading and unloading their goods on the banks of a public rWer {Digest, lib. 43, tit. 12; List., lih, II, tit. 1, 4; vide San- dars' histitutes, lib. 2, tit. 1, i2). Xo such rights as these, how- ever, are recognized at common law, except by well established usage; and then they are held to exist {Ball v. Herbert, 3 Term R., 253 ; Badger v. "s. T. R. Co., 1 EUis d; K R., 347 ; Mon- moiith Canal Co. v. Hill, 4 HurUtone <& Norman'' s R., 427 ; Hol- lis V. Goldfinch, 1 Barn. & Cres. R., 205). It has been held by the Supreme Court of Indiana that there are two classes of streams within and bordering on that State, which are called navigable streams and public highways. One class is only navigable for certain kinds of craft, and is not visited by vessels from the navigable waters of other States, but the other is navigable for such vessels. The State has exclusive jurisdiction over the first class, and may authorize the streams of which it is composed to be obstructed k^r the public good, and no action can be sustained therefor except ])rivate property be taken or injured. Over the streams of the second class, in the absence of congressional interference, the State has a like jurisdiction, so. far as those streams are within her territorial limits ; but the national legislature may interfere and deprive the State of this jurisdiction. A State cannot seriously obstruct the navigation of those streams, which are chan- nels of inter-State trade, as congress has interfered to regulate com LANDS ON NAVIGABLE EIVERS. 45 mei'ce upon them {Dej^ew v. The Board of Trustees^ etc., 5 Indlai^a li., 8). These are important distinctions; but as there ai-e no com- mon-law navigable rivers in the State of Indiana, tlie question of houndary is determined by one rule in respect to all lands adjoin- ing the rivers of sucli State, and that is the one applicable to non- navigable rivers by the common law. In the State of New York three classes of rivers in and border- ingnpon the Stateare recognized by the courts ; those which are navi- gable at common law or below tide-water, thooe which are not navi- gable at common law but are nevertheless navigable in fact -aw^ hyq, declared to be public highways, and those which are in no sense navigable or public highways. The people in their sovereign corpo- rate capacity own the beds of all navigable waters within the State. They are held for the common benefit, and to promote the con- venience and enjoyment of all the citizens, but not in the manner the capitol and public buildings are owned. The State may authorize the erection of wharves upon the shores of those waters by private individuals, but it can only do so to promote the common benefit and enjoyment {Smith v. Zeviniis, 8 JV. Y. R., 472). The boundary of lands owned by private individuals bordering on these waters is the line of high-water mark. The State exercises certain rights and functions over the rivers of the State which are not navigable, but are declared neverthless highways; but the cpies- tion of boundaiy in respect to these and those which are in no sense public is precisely the same. The rule in those cases will be frequently referred to. In the State of North Carolina it is held that the ebb and flow of the tide is no rule for determinina; whether a river is navigable or not, and the ordinary rules for fixing the boundary of private lands adjoining what is called navigable rivers in that State are not fully recognized by their courts. It has been accordingly declared by the Supreme Court of the State that a stream eight feet deep and sixty yards wide, with an unobstructed navigation for sea vessels to the ocean, is a navigable stream, and its edge at low-water mark is the boundary of the adjacent land ( Wilson v. Forhes, 2 Dev. i?., 30 ; Ingram v. ThreadgUl, 3 ih., 59), while in the State of Alabama it is held that the " navigable waters " within the State have been dedicated to the use of the citizens of the United States, so that it is not competent for congress to grant a right of property in the#ame to individuals; and further, that 46 LAT\' OF BOCyD ARIES. the "navigable waters" embrace all the soil witlnn higli-water mark {The Mayor v. Fslava, 9 Porter's i?., 577). To state the rule in a few %vords, it may be affirmed that by tlie common law, which is generally in force in this country, the alveus or bed of all navigable rivers as far as the tide ebbs and flows is vested in the State, subject to the public rights of naviga- tion and fishing. In determining the line of demarkation between the property of the State in the soil of a navigable river and the property of the riparian owners on each side of the stream the same rule is to be applied as in case of property bounding on the sea-shore ; consequenth^ the property of the State will not extend beyond tlie line of the medium high tides throughout the year, so tliat lands of a private individual bounded upon a navi- gable river below tide-water extend to ordinary higli-water mark, and high-water mark is, prima facie the boundary line. All below high-water mark belongs to the State {State v. Jersey City., 1 Dutcli€r''s R., 525). This is the ordinary or general rule, which may be waived or varied by usage or other evidence in certain cases. The common law, governing the right of property in rivers and streams, has long been settled. The law of maritime and fluvial property and rights, as laid down by the great authority in the law. Lord Chief Justice Hale, in his tract, De Jure Maris, has been uniformly and repeatedly recognized and followed in the courts of Westminster Hall ; and very often the same rules have been adopted by the courts of this country. The question as to what should be regarded a navigable river in this countiy has been very recently considered by the Supreme Court of the United States, although the case before the court involved simply the construction of an act of Congress in which the term is used. The court expressly declared, however, tliat the doctrine of the common law, as to the navigability of waters, has no application in this country. Here, it was said, the ebb and flow of the tide do not constitute, as in England, any test at all of tlie navigability of waters. The test by which to determine the navigability of our rivers is found in their navigable capacity. Those rivers are public navigal)le rivers, in law, which are navi- gable in fact. Rivers are navigable in fact when they are used, or are susceptible of being used in their ordinary condition as highways for commerce, over which trade and travel are or may LAXDS ON NAVIGABLE FIVERS. 47 be conducted in the customary modes of trade and travel on water; and it was further dechired that the}^ constitute navigable waters of the United States, within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form, in their ordinary condition by themselves, or by uniting with other waters, a continued highway, over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water. It was accordingly held that Grand river, in Michigan, is a navi- gable water of the United States from its mouth, in Lake Michi- gan, to Grand Rapids, a distance of forty miles ; being a stream capable of bearing for that distance a steamer of one hundred and twenty-three tons burden, laden with merchandise and passengers, and forming, by its junction with tlie lake, a continued highway for commerce, both with other States and with foreign countries {T/ie Dcmiel Ball, 10 Wall. 7?., 557). This does not necessarily settle the rule oi houndat'i/ in respect to such rivers; but the case has an important bearing upon that subject. Of common-law right, the property of the soil, and of all aquatic privileges for fisheries, etc., in the shores and arms of the sea, and in navigable rivers in which the tide flows, is in the sovereign ; while all the uses and enjoyment are public and common. The presump- tion of the law is always that this origiiuil right continues, unless the contrary is shown by express proof of private right by grant or prescription. It is clear, upon any view of the law, that the ori- ginal or the presumptive right of the people to the property of the navigable rivers and their beds does not prevent actual appro- priation of proprietary interests in them to private citizens by f;:rants. Therefore, a subject may have a right in creeks or arms of the sea by charter or grant ; and the sovereign power may, also, "grant that very interest itself, viz., a navigable river; that is, an arm of the sea, the water and soil thereof." The statutes of some of the States adopt the saine principle ; for example, the statute of New York, which authorizes the commissioners of the land office to make, in their discretion, grants of land under water in all the navigable rivers in the State, and in the bay and harbor of New York (1 R. S., 208 ; 1 Statutes at Large, 208). It may be added that rivers, where the tide ebbs and flows, probably do not belong to the public, only in those parts which are navigaUe. So that the owners of lands adjoiiing a river below the ebb and flow of 48 LAW OF BOUXD ABIES. the tide, if navigable, are bounded, jprz/na facie, by the line of high-water mark ; but if not in fact navigable, then they may be presumed to own to the center of the stream. In respect to the title to tlie bed of the stream, the Supreme Court of New Jersey lias recently decided that the State is the al)solute owner of all navigable waters within the territorial limits of the State, and of the soil under such waters ; and that tlie legis- lature may, therefore, lawfully grant any portion of such soil, lying below high-water mark, to any person without making com- pensation to the adjacent riparian proprietors. The court further decided that a statute, giving to a railroad company the right to construct their road along a navigable stream, and to acquire the rights of the shore owners, does not confer upon such company the right to take the lands of the State lying below high-water mark. And the general doctrine was declared that the owner of lands, lying along tlie bank of a navigable stream, may, by the local custom of New Jersey, acquire title to the land in front of liim by reclaiming and improving the same. But that the title to such land does not rest in the riparian proprietor until the land is actually reclaimed ; and, as the custom rests in mere license, revocable at the pleasure of the legislature, the latter may grant such land to a stranger at any time before the same is reclaimed and annexed to the upland {Stevens v. Faterson, etc.. Railroad Company, 34 N. J. Law R., 532). This seems to be in accord- ance with the doctrine laid down by Lord Hale, where he says : " There be some streams or rivers that are private, not only in propriety or ownership, but also in use ; as little streams, and rivers that ai-e not a common passage for the king's people. Again, there be other rivers, as well fresh as salt, that are of common or public use for carriage of boats and lighters ; and these, whether they are fresh or salt, whether they flow and reflow or not, are, jyrlma facie jmblici juris, common highways for man or goods, or both, from one inland town to another. Thus, the rivers of Wey, oi Severn, of Thames, and divers others, as well above the bridges and ports as below, as well above the flowings of the sea as below, and as well where they have come to be of private propriety as in what part they are of the king's propriety, are public rivers juris publicV^ {De Jure Maris, Pars Prima, ch. 3). LANDS ON UNXAVIGABLE RIVEES. 49 CHAPTER IV. THE EIGHTS OF PROPERTY ON UNNAVIGABLE RIVERS WHERE THE TIDE DOES NOT EBB AND FLOW THE RULES OF LAW APPLICABLE TO THE BOUNDARY OF PRIVATE PROPERTY BORDERING- ON THESE STREAJVI8 THE COMMON-LAW DOCTRINE AS TO WHAT ARE UNNA- VIGABLE RIVERS, AND WHERE THE SAME IS RECOGNIZED LAW OF BOUNDARY IN RESPECT TO ARTIFICIAL WATER-COURSES. The rule in respect to the Ijonndary of property adjoining rivers which are not navigable by the common law, or rivers above tide- water, is different from that which prevails in respect to rivers below the ebb and flow of the tide. At common law a riparian proprietor, bounded by a stream above the ebb and flow of the tide, though navigable in part, owns the land to the center or' thread of the stream, and the public have the right to use the stream for the purposes of navigation ; but in otlier respects the right of the proprietor to the soil is perfect. In other words,, opposite riparian proprietors, on a stream in which the tide does not ebb and flow, own I'espectively to the center of the stream ; but neither can, by constructing docks or making excavations on his side, abridge the exercise of the rights of the opposite owner ( Wall:er v. Shejmrdso?!.^ 4 Wis. 12., 486) ; that is to say, where a private or a tideless river separates the lands of two riparian owners, the line of demarkation between the two estates is pre- sumed, jprima facie, to coincide with the Qnedium filum of the stream ( Wright v. Iloioard, 1 Simons & Siuarfs JR., 203 ; Schultes on Aquatic Rights, 136). It was observed, by Lord Cran worth, in a leading case in Eng- land, that " the soil of the alveus is not the common property of the two proprietors, but the share of each belongs to him in seve- ralty ; so that if, from any cause, the course of the stream should he permanently diverted, the proprietors on either side of the old. ;hannel would have a right to use the soil of the alveus, each of them, up to what was the mediuyn filum aquw, in the same way as they were entitled to the adjoining land " {Bichett v. 3lor)-is, 1 Zaw M., Sc. App., 58). And the Supreme Judicial Court of Massachusetts has recently held that if the course of a river, not navigable, changes and cuts off a point of land on one side, making an island, such island still b^ongs to the original owner. In such 7 50 LAW OF BOUXD ARIES. ease, if the old bed of the river (being gradually diverted bv the current) fills up, and new land is formed, such newly-formed land belongs to the o])posite riparian proprietors, respectiveh', to the thread of the old river ; and if new land be formed in the river above such island, independent of the island, and not by a slow, gradual and insensible accretion to it, such new land above belongs to the opposite riparian proprietors, respectively, to the Jiluin aquce, or thread of the river. The thread of the river, in such case, would be the medium line between the shores or natural water-line ou each side at the time the new land was formed, without regard to the channel or deepest part of the stream {Trustees of Ilo^hlns Academy v. Dickinson^ 9 Gushing' s B., 544). Chancellor Kent lays down the rule that grants of land, bounded on rivers, or upon the margins of the same, or along the same, above tide-water, carry the exclusive right and title of the grantee to tlie center of the stream, unless the terms of the grant clearly denote the intention to stop at the edge or margin of the river; and the public, in cases where the river is navigable for boats and rafts, have an easement therein or a right of passage, subject to the jus piiblimim, as a public highway (3 Kerifs Com., ^th ed., 515, 516). This is the common-law doctrine, and is recognized in most of the States. It has been held, even in the case of the Mississippi river, that the common laM', and not the civil law, governs, and the magnitude of tlie river does not aifect it. It was declared that the Mississippi river, above the ebb and flow of the tide, is not navigable in the sense of the common law, and tlie rights of the riparian owner go to the middle of the river; that the act of Congress, establishing the Mississippi river as the western boundary of the Mississippi territory, and adopting the common law for the government of that territory, fixed the mid- dle of the river as the boundary line ; and that the rights of ripa- rian proprietors on the east shore of the Mississippi, therefore, must be determined by the common law. Nor are their rights as to the soil therein, or to the use of the bank of the river, aflected by the act of Congress making that river '" a common highway, free to every citizen, without tax or duty ;" so decided in the same case {Morgan v. Beading, 3 Smedes ct' Marsh. B., 366). The question has been much discussed as to whether the rule of the common law prevails in this country, that grants of lands, bounded on rivers and streams above tide-water, extend usqu6 LAM)S ON UiXNAVIGABLE RIVERS. 51 filum aquce I but, as before intimated, it has been decided in most of the States that sucli is tlie hxw here. A well considered case came before the old Supreme Court of the State of New York, involving the right to the soil under the waters of the Mohawk- river, near where it falls into the Hudson. The court held that the soil under the river belongs to tlie owners of the adjoining banks ; and the case was then taken to the Court of Errors on writ of error, where tlie whole question was ably discussed by counsel, and elaborately considered by different members of the court ; but the decision was based upon tlie construction of the grant under which the claimant held the adjoining bank, and the question was thus left open as to whether the common-law rules of property, as to the fresh-water rivers of the State, are applica- ble here or not. Tracy and Beardsle^^, senators, argued with great ability that the great fresh-water streams of this country are not subject to the principle of individual appropriation, as applied by the common law of England ; while the late chancellor of the State maintained that the doctrine of the common law, vesting the sovereign with the ownership as well as the jurisdiction of tide-water streams, making other large rivers public only as to their nses, but private as to all proprietary interests, and regard- ing the ebb and flow of the tide as the criterion of original or pre- scriptive rights of property, ^vas, at the period of our separation from the British crown (as it still is), the undisputed law of Eng- land, is the recognized doctrine of this country ; and that the connnon law of England, since the occupation of the country by the English, has been the law of the land {The Canal Ajypraisers V. The People, 17 ^Yend. R., 571, 574, 590). At a later date, however, the question was squarely presented to the late Court of Errors of the State of New York, and it was decided that fresh-water rivers, to the middle of the stream, belong to the owners of the adjacent banks. But if they are navigable, the right of the owners is subject to the servitude of the puWiG interest for passage or navigation. Verplanck, senator, said : " If this is (as I think it is) still an open question, I must then hold that the ancient rule of proprietary interest in rivers and streams, when undisturbed by positive grant or prescription, and the flow of the tide as the criterion of that interest, either in the people or in individuals, whatever objection there may be to the policy of the rule, having ^en part of the common law at the 52 LAW OF BOUNDARIES. erection of the State into an independent sovereignty, was adopted with the rest and remains the law till repealed. " If it be argued, as was eloquently and ably done, that the reason of the rule does not apply to the. rivers of this State, and that the rule is not only arbitrary but impolitic, I must reply, that we have no proof whatever that this rule of the common law was ever abrogated or rejected by our colonial legislature or judiciary — that by our successive State Constitutions we adopted so much of the common law of England as formed the law of the colony in 1775 {J}>r. Y. Constitution of 1777, art. 35 ; Amended Const., art. S, § 13) as ' the law of the State, subject to such alterations and pro- visions as the legislature shall, from time to time, make concern- ing the same.' We then took that body of laws as a whole, and as being in the main suited to our wants and habits, though prob- ably recjuiring legislative alteration as to many of its rules and doctrines unsuited to our government and condition. These were left to be amended by legislative enactment and not by judicial repeal. * ^ * I am therefore of opinion that, by the com- mon law still remaining the unrepealed law of this State, the legal title to the portion of the Genesee river where the waters were temporarily diverted by the construction of the aqueduct was in the proprietors of the adjacent banks, subject only to the uses of navigation so far as those waters were capable of it, and to the riglits of other proprietors, above or below, to the use of the stream" {The Commissioners of the Canal Fund v. Kemjyshall, 26 Wend. E., 404, 417, 418). So it is very evident that the question depends essentially as to whether the common law of England upon the subject is recog- nized as the law of the State or not. If it is, then the rule is as lias been stated ; if it is not, the rule may be different. Streams of water have been divided into several distinct classes : 1. Arms of the sea, in which the tide ebbs and flows. These belong to the public. 2. Streams whicii are navigable for vessels, boats, lighters, and, as it has also been held, for rafts. In these the peo- ple have the right of eminent domain for the purposes of naviga- tion and commerce; and the riparian owner has only a qualified right to the bed of the stream, and the water which flows over it, subordinate to the superior rights of the public. To this clas? may, perhaps, be added such streams as have been declared by statute to be public highways. 3. Streams whicli are so small, LANDS ON UNNAVIGABLE RIVERS. 53 sliallow or rapid, as " not to afford a passage for thelliufs people,'' as Lord Hale expresses it ; such streams as are not navigable for boats or vessels or rafts. These are altogether private property. The Hudson river has been said to furnish an example of each of these classes of streams, in different parts of its course. That part of its course iu which the tide ebbs and flows belongs exclu- sively to the public. Another portion is navigable for vessels and boats ; and in that the riparian owner holds a qualified property subject to the public use. Another portion higher up is not navi- gable at all, and that is private property. Prima facie, all above the ebb and flow of the tide, the adjoining proprietors own the soil under the waters of tha river, although the rule may be changed by evidence, as has been before shown. This is the doctrine adopted by the courts of most of the American States. In such cases the courts uniformly consider the terra 'Miavigable " as technical when applied to rivers, and that fresh-water rivers above the flow of tide are not navigable within the meaning of the common law. Hence they assert and carry out the principle, that where lands are owned by the same individual on each side of a fresh-water river, he owns the bed of the river, and if bounded on one side of the river he owns to the center. This is certainly the doctrine in regard to individuals as between each other, and the highest courts of several of the States have held that the same doctrine applies in all cases where the State is a party, except in those instances where the State, in granting lauds on navigable fresh-water rivers, or even those not navigable, niny have studiously avoided granting the river itself or the bed of the river, anticipating that the same might be wanted for public pur- poses. The States, however, are by no means unanimous in respect to the rule. For example, the courts of Pennsylvania have long since declared and held, that the great rivers of that State are not subject to the common-law rule, that owners on the banks have the' right of soil and the right of fishing to the middle of the streani. In other words, it is held that the commondaw doctrine, that fresh-water rivers belong to the owners of the banks, is not applied to the Susquehanna and other large rivers of Pennsyl- vania. Such rivers are declared to belong to the State, and no exclusive rights of fishuig have been granted by the State to the owners along their banks {Carson v. Blazee, 2 Binneifs R., 475 ; Shrunk v. Schwjndll Company, 14 Senj. cfe RawUs R., 71). And 54 LAW OF BOUNDARIES. it lias been especially declared that all below liigh-water mark, in the channel of the Susquehanna, is a public highway, and that the State may improve it by damming or otherwise ; and if a spring below high-water mark ^s covered by such improvements, the owner is not entitled to damages (Commonwealth v. Fisher, 1 Penn. B., 462). It has been quite recently held by the Supreme Court of the State of Pennsylvania that all rivers and streams of water that are sub- ject to tides, or capable of being navigated in the common sense of the term, in such State are treated as navigable ; and that grants of the adjoining soil are not usque adjiluin viedhi'in aqucBj but only to low-water mark, the soil and water formed between the lines that describe low water being retained as eminent domain for the use of all citizens, and that the right of navigation in all such navi- gable waters is the paramount public right of every citizen {Flan- agan V. Philadelphia, 42 Penn. P., 219). And in a niore recent case, the same court held that the Monongahela river at Pitts- burg is, by the settled law of Pennsylvania, navigable ; and that the soil in the bed of the river up to low-water mark, and the river itself, are as much the property of the State, as in England a tide- water river is the property of the crown {Monongahela Bridge ComiKiny v. Kirh, 46 Penn. R., 112). In some of the Pennsylvania cases the doctrine underwent a very elaborate dis- cussion, and it was declared that the great rivers of America are so different from those of England, that the same dehnition of a navigable river cannot properly be applied to both, and the courts seem to be unanimous in the opinion that the English distinction, that the character of navigability depended upon the quality of the water, fresh or salt, is wholly inapplicable to the principal rivers of that State ; that the only test was, whether the river was or not actually navigable ( Vide also Bird v. Smith, 8 Watts'' P., 43-i; Union Canal Com.pany v. Landis, 9 ih., 22S). So, also, in the State of Alabama the courts hold that every water-course in the State, which is suitable for the ordinary pur- poses of navigation, whether above or below tide-water, is a public highway ; and that the owners of land bounded thereon have no right of soil to the bed of the stream below low-water mark {Bul- lock V. Wilson, 2 Porter's P., 436). But the courts hold that the 071US is on the party, claiming it to be so, to prove that a stream above tide-water is navigable, and, therefore, open to the public. LANDS ON UNNAVIGABLE RIVERS. 5 J And, upon this point, the (luestions dechired to be are whether it isiit for vahiable floatage ; whether the public generally are inter- ested in transportation on it ; whether its capacity for floatuig continues long enough to make it beneficially useful to the public, and to iinportant public interests; whether it has been generally used for important floatage ; how it has been treated by govern- ment surveys; whether it will be valuable for future public use; and that whether a stream is navigable is a question of law, after the facts as to these points are ascertained {Rhodes v. Otis, 33 Ala. 12., 578). On these principles the Supreme Court of the State has held that Murder creek, near Fort Crawford, in Cone- cuh county in that State, is not a navigable stream; it appearing that such creek is not affected by the ebb and flow of the tide, has never been declared a public highway by legislative authority, and was not treated as a navigable stream by the United States engineers; although it appeared in evidence that within the last twenty years keel boats, loaded with cotton, had been several times' floated down it during the winter season {Ellis v. Carefj, 30 Ala. R., 725). It may be also interesting to note that the game court has held that the bank of a river is that space of rishig ground above low-water mark which is usually covered by high water, and the term, when used to designate a precise line, is vao-ue and indefinite {Howard v. Ingersoll, 17 Ala. R., 780). The Circuit Court of South Carolina, at an early day, held, after stating the rule of the common law, that in England no river is considered navigable except where the tide ebbs and flows, that that rule would not do in that State, where the rivers are naviga- ble several hundred miles above the flowing of the tide. But it was declared, nevertheless, that the claims of the owners of land adjacent to a river extend to the center of the bed of the stream, subject to the use the public may make of the waters for the pur- poses of navigation {Gates v. Wadlington, 1 IlcCord's R., 580). And the courts of the same State held, at a much later day, that a grant or conveyance of land bounded by a river, not technically na^'vigable, extends to the medium filum aqxm, unless the terms used^in the writing clearly denote the intention to stop short of that line {McCullough v. Wall, 4 Richardson's R., 68). It seems that Pond Branch, in the State of South Carolina, by an act ot the legislature, passed^ 1853, became a navigable stream {Witt x Jefcoat, 10 Rich. Laio R., 388). 56 LAW OF BOUyDARIES. In the State of North Carolina the Supreme Court has repeat- edly held that the ebb and How of the tide, according to the rule of the common law, is no rule for determining whether a river is navigable or not; but that waters which are sufficient in fact to afford a common passage for people in vessels are to be taken as "navigable;" and in one case one of the judges, in commenting upon the applicability of the common-law rule to the navigable waters of that State, pronounced it inapplicable; and remarked that, by the rule of the common law, Albemarle and Pimlico sounds, which are inland seas, would not be deemed "navigable" waters, and would be the subject of private property ; but that, in fact, it made no difference whether there is or ever was any tide in Albemarle sound ( Vide Collins v. Benhury, 3 IredeWs li., 277; Wilson v. Forbes, 2 Dev. i?., 30; Ingrahaiti v, Threadgill, 3 ih., 59). The Supreme Court of Tennessee holds that the owner of land on a navigable stream in that State, above tide-water, has the title to ordinary low-water mark, and not to the center of the stream. Judge Turley, in delivering the opinion of the court in one case, said: "All laws are, or ought to be, an adaptation of principles of action to the state and condition of a country, and to its moral and social position. There are many rules of action recognized in England as suitable which it would be folly in the extrenie, in countries differently located, to recognize as law; and, in our opinion, this distinction between rivers ' navigable' and ' not navi- gable,' causing it to depend upon the ebbing and flowing of the tide, is one of them. The insular position of Great Britain, the short curves of her rivers, and the well-known fact that there are none of them navigable above tide-water but for very small craft, well warrants the distinction there drawn by the common law. But very different is the situation of the continental powers of Europe in this particular. Their streams are, many of them, large and long, and navigable to a great extent above tide-water; and, accordingly, we find that the civil law, which regulates and governs those countries, has adopted a very different rule" {Elder V. Burns, 6 Tlampli. /?., 358, 36G ; Stuart v. Clark, 2 Su)a7i'i The courts of the State of Mississippi, at an early day, in the cas€ before referred to declared that the common law, and not the civi] law, governs in the case of the rivers of that State, and that the mag LAXBS ON UXXAVIGABLE RIVERS. 57 nitude of the river does not affect the question ; that the Mississippi river, above the ebb and flow of the tide, is not navigable in the sense of the common law, and the right of the riparian owner goes to the middle of the river, subject, of course, to a right uf passage in the public {Morgan v. Heading, 3 Smedes (& Marsh. It., 336). But at a much later date, the High Court of Errors and Appeals, of the same State, limited the doctrhie to the cases of private indi- viduals, and declared that it was not easy to understand how a man can be said to have a property in water, light oi- air, of so fixed and positive a character as to deprive the sovereign power of the right to control it for the public good and the general con- venience. It was said that such a right exists as to individuals, and it cannot be interfered with by them. But that the State, by virtue of her right of eminent domain, has the paramount right to control and dispose of everything, within her limits, which is not absolute and exclusive private property, to the promotion of the public good, and even to take private property for the same pur- pose, on rendering just compensation ; and it was expressly declared that the doctrine that the rule of the common law is not applicable to our large public rivers used for navigation, — that the rio:hts of the owners of the lands bounded by such streams are subordinate to the right and power of the State to use and appro- priate them to the public good in promotion of navigation, and that sucli rivers, whether tide- waters or not, are, as to the juris- diction and power of the State, to be considered as navigable i-ivei-s, — is supported by sound reason, and should be established as the law of the land. It was said that whilst the right of property exists in the individual, in relation to the streams of water exclu- sively his own, such as springs or small water-courses in the inte- rior of his lands, and bounded by them on both sides, and whilst it may exist in reference to public rivers, as against the interference of private individuals, it cannot be admitted to prevail as to public rivers and highways used for navigation, against the paramount^ jurisdiction of the State {Commissionei^s of Ilomoehitio River v. Withers, 29 Miss. R., 21). A case came before the Supreme Court of Iowa, at an early day in the history of the State, in which the whole subject under con- sideration was learnedly discussed and the authorities reviewed. Judge Woodwam, who delivered the opinion of the court, stated three propositions which he deemed to be established : First 58 LAW OF BOUNDARIES. Although the ebb and flow of the tide was, at common Liw, the most usual test of navigabilitj', jet it was not necessarily the only oi%e. Second. However the truth may be upon the above propo- sition, the test is not applicable to the Mississippi river. Third. The common consequences of navigability attach to the legal navi- gability of the Mississippi. After examining the authorities upon the first point, the judge says : " However the truth may be upon the first proposition, the flow and reflow of the tide is not appli- cable to the Mississippi as a test of its navigability. And, third, the common-law consequences of navigability attach to the legal navigability of the Mississippi river. The arguments and autho- rities upon these two propositions being in a great measure iden- tical, they must be considered together. The thought has been before suggested, that, as a real and virtual test, the tide is a merely arbitrary one, and is not supported by reason ; since many waters where the tide flows are not in fact navigable, and many where it does not flow are so. It is navigability in fact which forms the foundation of navigability in law; and from the fact follows the appropriation to public use, and hence its publicity and legal navi- gability. It is true that this legality attaches to some waters which do not possess the requisite quality in fact ; but this arises from their relation to the high seas and to admiralty, and from the difliculty of making our bounded exceptions. It is impossible to bring the mind to an approval, when we attempt to apply it to the rivers of this country, stretching up to 3,000 miles in extent, flowing through or between numerous independent States, and bearing a commerce which competes with that of the oceans — a test which might .be applicable to an island not so large as some of our States, and to streams whoso utmost length was less than 300 miles, and whose outlet and fountain, at the same time, could be within the same State jurisdiction. In England, or in Great Britain, the chief rivers are the Severn, Thames, Kent, Ilumber, and Mersey ; the latter of which is about fifty, and the first about 300 miles in length, and of this (the Severn) about 100 miles eon- Bists of the British channel. The world-renowned Thames has the diminutive proportions of 200 miles ; and of even these lengths not the whole is navi^ible. Thus it will be seen that the chief rivers of srood old Euii-land i-ano;e in extent with our Connecticut, Merrimac, Hudson, Allegany, Monongahela, Cfedar, Iowa and Des Moines, and bear a proportion of one to twenty LANDS ON UNNAVIGABLE EIVERS. 59 when compared with the greater rivers of this continent." And the court lield that a riparian owner has not such property in or possession of a sand-bar below high-water mark in the Mississippi river, though within the medium fit am (Kjuce, as will enable him to maintain trespass against one removing the sand ; though he may have some rights in the premises, peculiar to himself and not common, for the violation of which an indictment or action on the case might lie, and it was declared that if the riparian owner does not own to the medium filum aquce^ he owns only to high-water mark, though doubtless witli some qualified rights to low-water line {MoMcuius v. Ganiilchael, 3 Clarice's li., 1). And in a later case the same court held, that the proprietor of land upon the bank of, and adjacent to, the Mississippi river does not own to the mid- dle of the main channel of the river, nor to low-water mark, but to high-water mark only ; that is, he owns to the edge of the bank, and the whole bed of the river is in the public {Ilaujht v. Keokuk, 4 Iowa i?,, 199). The doctrine of the common law is not fully recognized in the State of Ohio. The late Mr. Justice McLean, many years ago, care- fully considered the doctrine in a case before him in the Circuit Court of the United States, wherein the controversy was in relation to the rights of the riparian owner upon the Ohio river. The learned justice said : " We apprehend that the common-law doctrine as to the navigableness of streams can have no application in this country, and that the fact of navigableness does in no respect depend upon the ebb and flow of the tide. Where a stream which is clearly not navigable forms the boundaries of proj)rietors on each side of it, under the common law each may claim to the middle of the stream. But this right cannot be exercised to the injury of other rights of the same nature. On navigable streams, the riparian rights cannot, we suppose, extend generally beyond high-water mark " {Bowman- 6 Devisees v. Wathen, 2 Mg Leungs R., 376). Of course, all of the rivers in or bordering upon the State of Ohio are tar beyond the influence of tide, and yet the most of them are regarded as navi- gable. The Supreme Court of tiie State has declared that in Ohio the land between high and low-water mark, on navigable rivers, belongs to the riparian proprietors {Bkmchard v. Porter, 11 Oldo R., 138). And in a later case the same court held, that the legislatolfe cannot, by declaring a river navigable which is not so in fact, deprive the riparian proprietors of their right to the CO LAW OF BOUNDARIES. nse of the water for hydraulic and other purposes without render- ing them compensation. And further, that he who owns the land on both sides of a navigable river owns the entire river, subject only to the easement of navigation ; and he who owns the land upon one bank only, owns to the middle of the main channel, subject to the same easement ( Walker v. The Board of Public Works, 16 Ohio E., 540 ; vide also Gavlt v. Ghamhers, 3 Ham. i?., 495). It has been declared by the Supreme Court of Michigan that the common-law rule, that those rivers only are subject to the servitude of the public interests which are of public or common use for carriage of boats and lighters, and for transportation of property, has been enlarged in this country, and, in nearly all the States, has been extended so as to be adapted to the necessities of trade and commerce, and to embrace rivers upon which, in their natural state, there is capacity for valuable floatage, irrespective of the fact of actual public use or the extent of such use. The fact that a floatable sti'eam has not been used by the public, or has only been used by persons following a particular occupation, does not deprive such stream of its public character. Although, in some of the States, it was said, usage and custom have been regarded as the foundation of this public right in fresh waters, in the new States of the Union, from necessity and the nature of things, such cannot be the foundation of public right. The true test in determining the right of public use in fresh-water streams, as public highways, is whether a stream is inherently and in its nature capable of being used, for the purposes of commerce, for the floating of vessels, boats, rafts or logs. Where a stream possesses such a character, the court held, the easement exists, leaving to the owners of the bed all other modes of use not inconsistent with it {Moore v. Sanborne, 2 Mich. li., 519). And in a later case the same court declared that although, in England, in the com- mon-law sense of the term, those streams only are navigable in which the tide ebbs and flows, yet all rivers and streams above the ebb and flow of the tide, which are of sufflcient capacity for useful navigation, are public rivers, and subject to the same gene- ral rights which the public exercise in highways by land, and which they possess in navigable waters. But it was held that the common-law principle, that the soil under such tidcless public rivers, to the thread of the stream, is in the owner of the adjacent LAXDS O.Y UNXAVIOABLE RIVERS. 61 bank, prevails in the State, and is applicable to the Detroit river {Loi'man v. Benson^ 8 Mich. It., 18). The Supreme Court of Minnesota has recently held that the act of Congress of May IS, 1700, providing that all navigable rivers, within the territory to be disposed of by that act, shall be deemed to be and remain public highways, is merely a declaration of the common law, and not a niodillcation of it. And it was further held that the tact, that rivers are and must re;i:ain public high- ways, is not inconsistent with the view that riparian owners have the fee of the bed of the stream {Schu7V)ieier v. St. Paid, etc., Railroad Comjpany, 10 Minn. IL, 82). In the State of Wisconsin it has been declared that a riparian proprietor, bounded by a stream above the ebb and flow of the tide, but navigable in part, owns the land to the centre or thread of the stream, and the public have the right to use the stream for the purposes of navigation ; but in other respects the right of the proprietor to the soil is perfect ( Walker v. Shejxirdson, -i Wis. R., 486). But in a later case the doctrine was qualified, to the extent of declaring that purchasers of land lying on the banks uf a stream above the ebb and flow of the tide, when bounded by the stream, ai'e 2)resiimed to run to the centre of the streim {Mariner v. Schulte, 13 Wis. R., G92 ; and vide Jones v. Peitihone, 2 ih., 308). The subject under consideration has ]-ecently been before the Court of Appeals of the State of New York, where the whole doc- trine applicable to navigable streams was elaborately and learnedly discussed by Davies, J., who argued that the common-law rules, determining what streams are navigable, are not applicable in this country ; and it was held that the Mohawk river is a navigable stream, and that the title to the bed of the river is in the people of the State. After examining the decisions of and the discussions in the courts of England and the American States upon the topic at great length, the learned judge said : " We have now ascertained the doctrine of the common law, and that of the civil law, upon the subject now under consideration, and have traced the same to their respective sources. We have seen, in applying the princi- ples of the common law to the waters of this continent, how great has been the embarrassment of courts and judges and text-writers ; how variant has been the conclusions reached by them, and how eontradictoTy and unsatisfactory have been the reasons for the results arrived at. * * * We have examined carefully the (32 i^TF OF BOUNDARIES. judicial discussion of this doctrine, culminating in the decision by the court of ultimate appeal in this State, repudiating its applica- bility to the rivers of this State, and establishing the latter doc- trine of the civil law" {The Peojple v. Tlie Canal Appraisers^ 33 N. Y. E., 461, 499, 500). The same doctrine had been before held by the present Supreme Court in a case involving the rights of parties to navigate the Canisteo river, in the county of Steuben. Johnson, J., who delivered the opinion of the court, said : " That this river was a public highway at common law, as it has always been understood and applied in this country, is abundantly estab- lished by the evidence in this case. Not only in this State, but in all our sister States, these great natural channels and avenues of commerce, whenever they are found of sufficient capacity to float the products of the mines, the forests or the tillage of the country through which they flow to market, have always been adjudged by our courts to be subject to the rights of passage, independent of legislation. The common law of England upon this subject, from its utter want of fitness and adaptation to the condition of things here, in our extended territory, with its numerous inland lakes and countless streams, caj)able of floating the products of the country hundreds and thousands of miles from the ebb and flow tide-water, has never been adopted; or, if adopted, it has been in a form modified and improved to fit the condition of the country and the wants of its inhabitants" {Browne v. Scojield, 8 Barlj. i?., 239, 243, 244). This case was decided over twenty years ago, and the remarks of Judge Johnson are eminently sound and per- tinent ; and, from the high standing of the learned judge as a jurist, they have had great influence in the subsequent judicial decisions upon the subject in the State. Some seventeen years afterward the question was again before the same court at special term, in respect to the rights of the public in the Seneca river, when E. Darwin Smith, J., among other things, said : " Rivers navigable in fact, in all countries, belong to the public. This is so by the common law, by the civil law, and by the French Code. * * * The State, doubtless, may retain the bed of streams where it has the title ; and by grant or patent, in express terms, lias bounded the grantee by the shore, as it did, or is claimed to have done, with the Mohawk river. In such case, as the primary source of title, it grants what it pleases, and conveys no more. * * * By declaring a stream a highway, as in this case, and LANDS ON UNNAVIGABLE RIVERS. ()3 as has been done with most of the streams of this State, whicli . could, at any time and in any stai^e of the water, be navigated with rafts, floats or small boats, the State does not acquire any title to the bed of the stream, or any higher or other riglit than it possesses in or over ordinary highways upon land. But in respect to all fresh-water streams which are navigable in fact, like the Niagara, the St. Lawrence, the Genesee, and Oswego, below the falls, in these rivers the rights of the public are very different. Such streams are public and belong to the State; as much so, doubtless, as the Hudson, where the tide ebbs and flows; and as much so as the great lakes in the interior of the State" {The People V. GiUchess, 48 Barh. B., 056, 666-668). It has been recently declared by the Court of Appeals of the State of New York that the rule of the common hiw, as to what degree of capacity renders a river navigable in fact, should be received in this country, with such modifications as will adapt it to the peculiar character of our streams, and the commerce for which they may be used {Morgan v. King, 35 N. Y. Ji., 451). So, it may be confidently atiirmed, that the doctrine of tlie common law iTpon this subject is not now fully recognized in the State of New York, and that the proprietors of lands upon some of the rivers , of the State have less rights in tlie bed of the streams than was formerly supposed. But, after all, the question depends very much upon the terms of the grant under which the title is claimed; and the construction put upon these documents will be considered in a subsequent chapter. Still, it is of great importance that the general law upon this subject should be well understood, as that will aflbrd a rule by which tlie rights of riparian owners must in many cases be determined. The doctrine of the common law is fully recognized in Massachusetts, and, perlmps, a majority of the Atlantic States; while in New York, and the most of the remain- ing States, it is substantially discarded or received with modifica- tions and limitations. It may be added that the rule, in respect to lands bounded upon a natural water-course, applies also to lands bounded upon an artificial one, unless the same has been changed by some special custom or agreement. Prima facie, the law which governs in the case of the one will apply to the other ( Vide Tovmsend v. McDonald,^ N. Y. P., 381, 391 ; DunBee v. Wilton P. P. Co., 24 N. H. P., 506 ; New Ipswich Factory v. Batcheldor^ 3 64 LAW OF BOUNDARIES. ih., 190). It is sometimes difficult to determine whether tlie object of the boundary is an artificial water-course ; but when it is settled that the object upon which the land is bounded is, in fact, a water-course^ there is no distinction between natural and artificial ones. In either case, the presumption is that the adja- cent proprietor has title to the centre of the stream, although this presumption is not a jpresuraptio juris et de jure, but yields to evidence displacing the grounds on which it rests. CHAPTER Y. THE LAW OF BOUNDARY IN RESPECT TO LAKES AND PONDS — RULES APPLICABLE TO LANDS ADJOINING THESE BODIES OF FRESH WATER WHERE THE BOUNDARY IS LIMITED TO THE MARGIN OF THE LAKE OR POND. The rule of the common law of England, which presumes the boundary line of two estates separated by a tideless navigable river to coincide with the iiiedium Jilum of the stream, does not apply to the great fresh-water lakes of this country. In the language of the late Chancellor Walworth, in an opinion delivered in the late Court of Errors of the State of New York, " Our large fresh-water lakes or inland seas are wholly unprovided for by the law of England. As to these, there is neither flow of tide nor tliread of the stream ; and our local law appears to have assigned the shores down to the ordinary low-water mark to the riparian owners, and the beds of the lakes, with the islands therein, to the public" {The Canal Commissioners v. The People, 5 ^Yend. JR., 423, 447). And it was declared many years ago, in a case before the Supreme Court of Maine, that the law of boundary, as applied to rivers, would no doubt be inapplicable to the lakes and other large natural collections of fresh water within the ter- ritory of the State {Flathorn v. Stinson, 1 Fairf. R., 238). The Supreme Court of the State of New Hampshire has held that where a grant runs to and is bounded upon a lake or large body of standing fresh water, the grant extends only to the water's edge {State v. Gllmanton, 9 iV. //. E., 461). A similar doctrine has been expressly laid down by the Supreme Coui-t of Vermont ; and it was held that the rule, that a grant buu;uled bv a la!rietor would go to the thread of the stream " (/.'/v^^/Zcy v. Rice, 13 Mai?ie R., 198). Sufficient has been said in this place, perhaps, to show the principles upon wdiich the boundary of lands upon fresh-water lakes and ponds is determined. The doctrine will be further illustrated when the construction of grants of land adjoining such PROPERTY IN ISLANDS. 73 bodies of water shall be considered, wliicli will be attended to in a subsequent chapter. The whole subject, of course, depends much upon the size, shape and depth of the lake or pond, and the manner in which it is formed. In the State of Massachusetts great ponds, containing more than ten acres, which were not, before the year 1647, appropriated to private persons, were, by the colony ordinance, made i)ublic, to lie in common fur public use. This ordinance applied to all those ponds, whether at that time included within the territory granted to a town or to any body of proprietors for the plantation of a town, or not then granted by the government of the colony, if they had not then been appropriated to particular persons, either by the freemen of the town or by the general court {Vide West Eoxhury v. Stod- dard, 7 Allen's B., 158). The question, therefore, is easily deter- mined in Massachusetts; but in most cases the matter must be decided upon established principles and judicial authority. CHAPTER VI. THE LAW OF BOUNDARY IN Rp:SPECT TO ISLANDS PRINCIPLES ON WHICH THE OWNERSHIP OF NEWLY-FORMED ISLANDS IS TO BE DETERMINED. The question of property in islands must be settled upon prin- ciples discussed in preceding chapters. It has been shown that the common law recognizes an important distinction, as to the use of waters and the property of the soil, between rivers or waters navigable, and tliose which are not navigable. The former invari- ably and exclusively belong to the public, unless acquired from it by individuals under grant or prescription. The latter are held to belong to those whose land borders on the waters ; so that they liave the exclusive right of fishing in front of their own land, and have a property in the bed or soil of the river under the water, subject, however, to an easement or right of passage up and down the stream in boats or other craft for purposes of business, con- venience or pleasure. This is called in the civil law a servitude, which is quite consistent with the right of property. There appears, Ig^vever, to be an important difference between the common and the civil law, in regard to the rights of the ]>ublic 10 74 LAW OF BOUyDARIES. and individuals, upon this subject. By the former, the right of the king or the public is limited to those places, whether bays, coves, inlets, arms of the sea or rivers, in which the tide ebbs and flows, this being the common-law definition of navigable waters ; whereas, by the civil law, all rivers properly so called, even above tide-water, provided they are navigable by ships or boats, or, per- haps, any other floating vehicle, are considered as public property. The doctrine of the common law, in this respect, is recognized to the fullest extent in some of the American States: the doctrine of the civil law in others ; and in still others, the doctrine of the common law is received, restricted and modified, so as to meet the exigencies of the case. Accoi-ding to the rule, everywhere adopted in this country and in England, if an island rises in the sea, it belongs to the sovereign or the public, though by the civil law it belongs to the discoverer or first occupant. If an island be formed in a navigable river, the same rule of the common law gives it to the sovereign, but the civil law to the owners of the land on each side. Should the island, however, arise in an unnavigable river, both the civil and the common law agree in assigning it to the adjoining proprietors. If the medium filum of the stream bisects the island equally, each proprietor will take an equal share ; but if unequally, then the larger share will belong to him to whose land it is nearest. But should the island arise, not in the middle, but entirely on one side of the stream, then the whole of tlie island will belong to the owner of the land on that side. This is the general rule upon the subject, and it is usually applied by all the courts of this country. In all cases where the title to the soil under the water is in the public, a newly-formed island in such body of water belongs to the public, as in the case of the sea, navi- gable rivers and the large fresh-water lakes of this country. And in all cases, where the soil under the water belongs to the riparian proprietors bordering upon the water, the newly-formed island in such body of water will belong to the riparian owner. That is to say, the doctrine which governs in respect to the soil under the water, will control in respect to the island formed in such water. The owner of the soil under the water, by the general laws of pro- perty, becomes entitled as of right to all accessions. The doctrine of the courts upon the subject will be understood by a brief reference to authorities. A leading case in the State of Massachusetts came before the Supreme Judicial Court of the PROPERTY IN ISLAXDS. tO State in 1S26, which involved the right to an island in the Eiver Pawtueket. This case recognizes the rule of the common law, that the property in the soil of rivers not navigable, subject to public easements, belongs to those whose lands border upon them ; and from this right of property in the soil in the bed of the river the court deduce the right of property in an island, which gradu- ally arises above the surface and becomes valuable for use as land. Assuming the thread of the river as it was innnediately before such island made its appearance, this rule assigns the whole island or bare ground formed in the bed of the river, if it be wholly on one side of the thread of the river, to the owner on that side ; but if it be so situated that it is partly on one side and partly on the other of the thread of the river, it shall be divided by such line, and held in severalty by the adjacent proprietors. This is clearly the doctrine of the case, and it was held that the dividing line between the adjacent proprietors will- run in the same numner as if there were no island in the river {IngrahaTn v. Wilkinso7i, 4 Pick, i?., 268). The doctrine was again recognized by the same court, nine years afterward, when it was held that where an island is so formed in the bed of a river, not navigable, as to divide the channel and lie partly on each side of the thread of the river, it will be divided betw^een the riparian proprietors of the of)posite sides of the river according to the original thread of the river. So held in respect to an island formed by alluvial deposits in the Deerfield river in the central part of the State, and a tributary of the Connecticut {The Inhalntaiits of Deerfield v. Arms^ 17 Pick. P., 41). And the doctrine was again approved by the same court in 1852, in which it was held that if the course of a river not navigable changes, and cuts off a point of land on one side, mak- ing an island, such island still belongs to the original owner. In such case, if the old bed of the river, being gradually deserted by the current, fills up and new land is formed, such newlj'-formed land belongs to the opposite riparian proprietors respectively, to the thread of the old river. And if new land be formed in the river above said island, and not by slow, gradual and insensible accretion to it, such new land above belongs to the opposite ripa- rian proprietors to the filum aqum or thread of the river. The thread of the river in such case was held to be the medium line betweeij^he shores or natural water-lines on each side at the time the new land was formed, without regard to the channel or deepest 76 LAW OF BOUXD ABIES. part of the stream. The land in controversy was newly-made land, formed in what was formerly the bed of the Connecticut river, lying between the towns of Hatfield and Hadley. The land had been graduallj^ formed in consequence of a change in the bed of the river. On the east side of the river was a tract of land known as the school meadow land, bounded formerly by a curved line projecting considerably into the river. As long ago as 1805 or 1806, the water in high freshets began to find its way across the school meadow land. This increased from year to year, until the current was formed that way ; and in 1825, a great portion, if not the main bodj' of the stream passed that way, thus making a more direct line across, instead of following the former bend of the river. This continued to increase until it became the main channel and the current through the old passage ceased. The new channel, thus formed, cut off and insulated the most projecting part of the school meadow land ; the part thus left remained unchanged in position and became an island, forming the, right bank of the new stream as far as it extended. The question was as to the title of this island thns newly formed, and Shaw, C. J., who delivered the opinion of the court, among other things, said: "It has been repeatedly settled, both in this State and in Connec- ticnt, that the Connecticut river, though valuable for the purposes of boating and rafting, yet, so far as riparian proprietorship is concerned, is considered a river not navigable, as that term is used in the common law" {Adams v. Pcese, 2 Conn., 481 ; Bardwell v. Ames, 22 Pick., 333). The general rule, as a rule of the common law of England, was long since laid down as unquestionable by Lord Holt, who says, in the case of Rex v. Wharton {Holt, 499), that a river, of com- mon right, belongs to the proprietors of the land between which it runs, to each that part nearest his land. * * * And the same rule has been repeatedly declared and adjudged in this com- momwealth. It is derived mainly from the rule, that the riparian proprietor is owner of the soil under the water, and by the general law of property becomes entitled as of right to all accessions. * * * It may be added here, on the authority of Lord Hak3 that he derives the title to islands, in creeks or havens or arms of the sea, froni the right of property in the soil under the water, stating that this \s> prima facie and of common right in the king; yet if, in point of propriety, it doth belong to a subject, will PROPERTY IN ISLANDS. 77 belong to the subject. This is applicable, by strict analogy, to the case of a river not navigable, where the right of property is admitted to be in the riparian proprietor ad filum aqum. * * * Now, as to this island, it is not newly made, but a portion of the old school meadow land, and is, as it was before, the property of the demandants." In the final disposition of the case, the court hiid down the rules first stated, with the express approval of the other Massachusetts cases referred to {Trustees of Ilopkms Academij v. Dick'mson, 9 Gush. B., 5U, 547, 550, 551). This is also the doctrine as laid down by the courts of South Carolina. In a recent well-considered case in that State it was held that islands in rivers fall under the same rule, as to owner- ship of the soil and its incidents, as the soil under water does ;^ if not otherwise lawfully appropriated, they belong to the riparian proprietor on one side, or are divided in severalty between the proprietors on both sides, according to the original dividing line, ovjili/jn aquce, as it would run if the islands were under water. Thejilum aqucB is ascertained by measurement across from ordi- nary low-water mark on one side to the same on the other side, without regard to the channel or depth of water. When the island is appropriated, the boundary is then midway between that and the main land. And it w.vi held, in the same case, that a grant or conveyance of land, bounded by a river not technically navigable, extends to the medium /Zww aqum, unless the terms used in the writing clearly denote the intention to stop short of that line {McCullough v. Wall, 4 Rich. R., 68). And Chief Justice Shaw remarked, in the case in the 9th of Gushing, that, " in ascertaining the thread of the river, it will be proper to take the middle line between the shores upon each side, without regard to the channel or lowest and deepest part of the stream. And in ascertaining the shores, or water lines on each side, to measure, it will be proper to find what those lines are when the water is in its natural and ordinary stage, at a medium height, neither swol- len by freshets or shrunk by drought." The old Supreme Court of the State of New York decided that, when the water of a river is divided by an island, so that only one-fourth of the stream descends on one side of the island, and the residue on the other, the owner of the shore where the largest quantil^ of water flows is entitled to the use of the whole water flowino;'' there: and the owner of the other shore has no right to 78 LAW OF BOUNDARIES. place obstructions at the head of the island to cause one-half of the stream to descend on liis side of the river. This is an interestins: case, but it does not directly involve the title to the island; or, there is no reference to that in the decision of the court [Crocker V. Bragg, 10 Wend. E., 260). The Supreme Court of the United States decided, at an early day, that the boundary of the State of Kentucky extends only to low-water mark on the western or north-western side of tlie Rivei Ohio, and does not include a peninsula, or island, on the western or north-western bank, separated from the main-land by a channel or bayou, which is filled with water only when the river rises above its banks, and is at otlier times dry ; and tlie rule was declared that, where a river is the boundary between two nations or States, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when, as in the case before the court, one State (Yirginia) is the origiiuil proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly-erected State extends to the river only, and the low-water mark is its boundary, Mr. Chief Justice Marshall delivered the opinion of the court, and said : " If a river, subject to tides, constituted the boundary of a State, and at flood the waters of the river flowed through a narrow channel, round an extensive body of land, but receded from the channel at ebb, so as to leave the land it sur- rounded at high water connected with the main body of the coun- try, this portion of territory would scarcely be considered as belonging to the State on the opposite side of the river, although that State should have the property of the river.- The principle that a country bounded by a river extends to low-water mark — a principle so natural and of such obvious convenience as to have been generally adopted — would, we think, apply to that case. "We perceive no sufflcient reason why it should not apply to this" {Ilandifs Lessee v. Anthony, 5 WheatoubS R., 374). And the same high court held, in a much later case, in which it appeared that, at the cession from Georgia to the United States, in 1802, of all the land " west of a line beginning on tlie western bank of the Chattahoochee river," and running thence up the said River Chat- tahoochee and along the western bank thereof, that Georgia retained the bed of tlie river as far as the natural line, marked by the action of the running water, dividing the bed of the river PROPERTY IN ISLANDS. '9 from the western bank, and that Georgia retained the hand west of this line as far as the top of the bluff on the western bank ; thereby declaring the doctrine that where a power is possessed ot a territory embracing a river, and grants all of the same lying on one side of the river to another power, making the river the boundarv, the first power retains the entire river, unless the same is expressly relinquished {Iloioard v. Ingersoll, 13 How. U.6. R 38 1) These principles, of course, would determine the rights to an island for.ned in the midst of a river constituting the bound- ary between two States, because it is well settled that the tit e to the island must depend upon the question of the ownership ot the soil in the bed of the river at the time the island was torined The old Supreme Court of the State of New lork held that a crant of a river, eo nomine, will not pass the soil of the river, or an island within it. Woodworth, J., delivered the opinion of the court, and said: "AVith respect to tlie island, the plamtifE s righ depends on the expression of the original lease. The tarm demised lies on the south side of, and adjoining the river. The last course but one extends to the river; thence up the said river as it winds and turns (including the same) to the place of beginning. _ The question is, what do these words grant? It is laid down in Co Lit. 4, b, that 'if a man grant aquain suam, the soil shall not pass; but the piscary within the water passeth tl.ei-ewitli. The Tame rule is recognized in Com. Dig., Grant {E. 5). No rigl t, then to the island was acquired ; and all testimony, as to the defendant's possession of that part of the premises i" ^^^estion, w.^8 properly excluded" {Jaohson v. Ilalstead, 5 Cow. Ji., 216, 2U . If the island was fairly embraced within the limits of the grant, of course the title to it would be in the grantee, the s.^ne as though it consisted of the original bed of the river ( nde Church y. Holland, U Mass. B., 149 ; Johns v. I)avidson, 15 / enn. It., ^^The Supreme Court of Pennsylvania has held that title to islands lyinc within the Kiver Susquehanna, or its branches, cannot be acqirired by actual settlement and improvement ; but by the Penn- sylvania act of March 6tli, 1793, directing the sale ot certain islands in the Susquehanna, or its branches, an improver had two years to obtain a warrant and have a survey made, and in case of hisj.ec.lect for that time the island was subject to application by anf otlier person ; and though it was incumbent on the improver 80 . L^^" OF BOUNDARIES. to state the nature of bis improvement, and wlien and by whom it was made, tbis was not necessary in the application of anotber wbo applied for tbe island more tban two years after the improver had neglected to make application for it. Wliere the Mifflin and Huntingdon join at tbe Juniata river, at their southern points of junction, tbe courts hold that their respective boundaries do not extend usgue ad jilum, aqucB ; but tbe whole bed of the Juniata river from tliat point up to Jack's Narrows is in Mifflin county, and tbe islands in the river belong to the latter county [Johns v. J)avidso7i, 16 Penn. R., 512). It will be borne in mind that the doctrine in Pennsylvania, in respect to the title in the beds of tbe rivers of that State, is some- what different from the rule at coinraon law, or of that which is recognized in most of the other States. But the ownership of newly- formed islands in the rivers of that State is determined by the same principles as are held to govern in other States ; that is, the title to tbe island will be in the owner of tbe soil under the river where tbe island may be formed. At no time in the history of Pennsylvania, either before October 13, 1760, or since, have islands in her large rivers been open to settlement on tbe same terms with fast land generally. They could only be settled on agreed terms with tbe proprietors {Fisher v. Carter, Wallace, Jr. i?., 69). But this doctrine has no necessary bearing upon tbe question of boundary as affected by newly-formed islands in tbe rivers of tbe State. When islands de novo arise, it is either by the recess or sinking of the water, or else by the exaggeration of sand and rubbish, which, in process of time, grow firm land envi- roned with water, and frhna facie and of common right they belong to the proprietor of tbe bed on which they are formed. RULES IN RESPECT TO ALLUVION. 81 CHAPTER VI r. THE LAW OF BOUNDARY AS AFFECTED BY MARITIMA INCREMENTA, OR INCREASE OF LAND BY THE SEA, AND THE RULE IN RESPECT TO ALLUVION AND RELICTION HOW ALLUVION AND RELICTION ARE TO BE DIVIDED AMONG THE PARTIES ENTITLED TO THEM — THE RULE IN RESPECT TO AVULSION. The rule in respect to the title to maratlma incremental or increase of land by the sea, has been much discussed by elemen- tary writers, and is well settled by the courts. This increase is of three kinds, one of which, tliat lyer insuloB productionem, or islands, was considered in the last preceding chapter. Two other species, strictly embraced in this branch, remain to be considered ; that is, increase jjer 2?rojectione?7i vel alluvlonem, or alluvion, and increase per relictionem vel desertioiievi.^ or reliction. These belong to the sovereign oj- the owner of the land adjacent, accord- ing to circumstances, which must be noticed. The increase j^er- alluvionem, according to Sir Matthew Hale, is, where the sea, by casting up sand and earth, by degrees increases the land, and: shuts itself out further than the ancient bounds went, which is very usual. This he says belongs to the crown, and the reason he gives for the rule is, " because in truth the soil, where there is now dry land, was formerly part of the very fimdis viaris ; and consequently belonged to the king." " But indeed," he adds, " if such alluvion be so insensible that it cannot be by any means found that the sea was there, idem est nan esse et non apparere ; the land thus increased belongs, as a perquisite, to the owner of the land adjacent" {Hale de Jure Ifaris, i^art 1, ch. 4, § 2). This is undoubtedly a correct view of the case. Where the increase arises from the sudden recession of the water, the ground, which, is termed derelict land, will go to the crown or to the public, and; not to the adjoining owner. But where the accretion is made so gradually and imperceptibly that no one can perceive how much, is added in any one moment of time, then the increase goes to the owner of the adjoining land though the right to the shore may remain in the sov^ereign ( Vide Rex v. Yarhoroxbgh., 3 Barn, di • Ores. 7?., 91; S. 6% 5 Bing. 7?., 163; S. C, 10 Eng. C. L. R.,. 19). ji^he case of Rex, v. Yarhorcnigh was taken to the House of i LorcRand was there affirmed (2 BligK's R., N'. S., 147 ; S. C, J.> 11 32 L^W OF BOUNDARIES. Bow's R., N. S., 176). It involved the right of soil connected with tide-water, but the discussion was of much interest upon the general subject of the right of accretions connected with fresh water lakes and rivers, as well. The counsel for the crown quoted the passage from Lord Hale's De Jure Maris, hereinbefore given, and Abbott, C. J., who delivered the opinion of the Court of King's Bench, said: "In these passages. Sir Matthew Hale is speaking of the legal consequence of such an accretion, and does not explain what ought to be considered as accretion insensible or imperceptible in itself, but considers that as being insensible, of which it cannot be said, with certainty, that the sea ever was there. An accretion extremely minute, so minute as to be imper- ceptible even by known antecedent marks or limits at the end of four or five years, may become, by gradual increase, perceptible iby such marks or limits at the end of a century, or even of forty or fifty years. For it is to be remembered, that if the limit on one side be land, or something growing or placed thereon, as a tree, a house or a bank, the limit on the other side will be the sea, which rises to a height varying almost at every tide, and of which the variations do not depend merely upon the ordinary course of nature at fixed and ascertained periods, but in part also upon the strength and direction of the wind, which are different almost from day to day. And, therefore, these passages from tlie -work of Sir Matthew Hale are not properly applicable to this question. And, considering the word 'imperceptible,' in this issue, as connected with the words ' slow and gradual,' we think it must be understood as expressive only of the manner of the accre- tion, as the other words undoubtedly are, and as remaining imper- ceptible in its progress, not imperceptible after a long lapse of time. And taking this to be the meaning of the word ' imper- ceptible,' the only remaining point is, whether the accretion of this land might properly, upon evidence, be considered by the jury as imperceptible. No one witness has said that it could be perceived, either in its progress, or at the end of a week or a month. One witness, who appears twice to have measured the land, says 'that, within the last four years, he could see that the sea had receded,' but he did not say how much ; the same witness said, ' that it certainly had receded since he measured it last year,' but he did not say how much ; and, according to his evidence, the gain in a period of twenty-six or twenty-seven years was, on the RULES ly RESPECT TO ALLUVIOX. 83 average, about five yards and a half in a year. Another witness speaks of a gain of 100 to 150 yards in fifteen years ; a much greater increase than that mentioned by the first witness ; and this second witness adds, that during the hist five years there had been a visible increase in some parts of from thirty to fifty yards. Upon the evidence of this witness, it is to be observed, that he speaks very loosely, the difterence between 100 and 150 in fifteen years, and between thirty and fifty in five years, being very great. The third witness said there had been some small increase in every year. The fourth witness said, ' the swarth increases every year gradually, ?ix\^ perhaps it had gathered a quarter of a mile in breadth in some places within his recollection, or during the last fifty-four or fifty-five years, and in some places it had gathered nothing.' And this was the whole evidence on the subject. We think the jury might, from this evidence, very reasonably find that the increase had not only been slow and gradual, but also ' imper- ceptible,' according to the sense in which, as I have before said, we think that word ought to be understood." In connection with the question of alluvion, it is important to understand the mean- ing of this word " imperceptible," and these observations of Chiet Justice Abbott are therefore quite pertinent, as giving the legal interpretation of the word. Alluvion is defined by the French law to be an "increase of land, which is made by degrees {i^eu a pen) on the shores of the sea, of navigable and other rivers, by the earth which the w^ater brings there " {Guy of s Repertcdre Universelle, 113); and this is substantially the same as the word is defined by the Koman and Spanish laws, and perhaps it may be regarded as a very fair interpretation of the term. According to the definition which has been given of alluvion, an imperceptible accretion means one which is imperceptible in its progress, and not one which is imperceptible after a lapse of time ; and, therefore, although the quantity of land gained from the sea may eventually be very great, the sovereign or the public will not be entitled to it if it was added insensibly and by slow degrees. By alluvion, as used in law, is meant such slow, gradual and insensible accretion that it cannot be shown at what time it occurred {Trustees of Hopkins Academy v. Dickinson, 9 Gush. B., 551). This is the rule of the common law upon the subject ; an^hat of the civil law is the same. The latter gives it as fol- lows : " That ground which a river has added to your estate by 84 LAW OF BOUNDARIES. alliivion becomes your own by the law of nations ; and that is said to be alluvion whicli is added so gradually that no one can judge how much is added in each moment of time" {Coop. Inst.y tit. 2, § 1 ; Angell on Watercourses, § 53). Says Mr. Phear, an English elementary writer : " Where a stream changes its course by slow and imperceptible steps the riparian proprietors are obliged to accept the consequent alteration in their boundaries ; but where the sliifting is sudden and well marked the original '/nedluvi filum continues to be the border line, and the stream, so far, passes entirely within the land of the one proprietor {Harg. Tracts, Be Jure Maris, cap. 1 ; 2 Bla. Com., 262). If an island is formed by natural causes the property in it remains apportioned in the same manner as was, before its appearance, the property in the soil on which it stands (2 Bract., lib. 2, cap. 2, *Y 2 ; 2 Bla. Com., 2Q1; Sch^dtes, US). * * * The large size of the rivers in America, and their enormous power of denudation and deposi- tion, have given this point a pre-eminence in that country which it does not possess here ; and, accordingly, it will be foimd to have received in the American text-books much more elabo- rate treatment than it requires in England" {Phear Bights of Water, 12). AVhat, then, is usually understood by the word alluvion is the gradual accumulation of alluvial deposit upon the banks of a river or the sea ; and a man's land is said to be added to by allu- vion where the accretion is made so gradually and imperceptibly that no one can perceive the moment when the addition %vas made. That is to say, in order to acquire title to land as alluvion it is necessary that its increase should be imperceptible; that the amount added in each moment of time should not be perceived. "Where the change is so gradual as not to be perceived in any one moment of time, the proprietor, whose land on the bank of a river or the sea is thus increased, is entitled to the addition ( Vide Halsey v. McCormick, \S N. Y. B., 147). The authorities upon the subject are numerous and decisive. The courts of Maryland have held that lands formed by accre- tion lielong to the riparian proprietor, and cannot be granted by the State as vacancy {Patterson v. Gelston, 23 Md. B., 432). To the same effect is a decision by the Supreme Court of Pennsyl vania, by which it was held that the accretions to land from a river belong to tlie riparian owner, and that such accretions are RULES IN RESPECT TO ALLUVIOX. 85 justl}' included in describing the quantity of tlie land {Morgan v. Scott, 26 Penn. R., 51). And the Supreme Court of Iowa has recently affirmed the same doctrine, holding tliat land formed by alluvion on a navigable river between the meander line and the water's edge belongs to the owner of the adjoining land {Krant v. Crawford, 18 Iowa R., 549). These were cases of alluvion in the true sense in which the word is used. And the Supreme Court of New Hampshire has recently made a decision, holding that, where the channel of a river has been gradually changing for years by wearing away the bank on the defendant's side, and by adding and forming accretions upon the opposite shore, owned by the plaintiff, by slow and imperceptible degrees, the channel, as so changed, must be regarded as the rightful and accustomed channel, for the time being, as between the different parties ; and that such accretions become the property of the land-owner upon that side of the river, and are as much entitled to protection as his original inclosure {Gerrish v. Clough, 48 N. H. i?., 9). So, also, the Supreme Court of Missouri has very recently decided tliat a riparian proprietor of land in St. Louis, whose lot is bounded on one side by the Mississippi river, is entitled to alluvial accre- tions formed upon the sliore as far as the middle thread of the river {St. Louis Public Schools v. Plsley, 40 Mo. P., 356). There is no question as to the doctrine, where the accretions are formed by slow and imperceptible degrees, so as to answer to the legal definition of alluvion. Whether there is any distinction between the case of alluvion formed by natural or artiUcial means, the decisions are not entirely decided. But the better opinion is that if, by some artificial structure or impediment in the stream, the current should be made to impinge more strongly against one bank, causing it imperceptibly to wear away, and causing a corresponding accretion on the opposite bank, the riparian owner would be entitled to the alluvion thus formed, especially as against the party M'ho caused it; as was well suggested by Pratt, J., in giving the opinion of the court in a case decided by the New York Court of Appeals, if the accretion was formed under all the circumstances necessary to constitute it alluvion, it can hardly be supposed that n person could successfully resist the otherwise valid claim of the riparian o\yj»r, by alleging his own wrong, by showing that the accretion would not have thus formed if he had not himself wrongfully 8(3 LAW OF BOUNDARIES. placed impediments in the stream {Ealsey v. McCormicJc, 18 iT. Y. E., 147, 150). And the present Supreme Court of the State of Xew York has held that, where artificial accretions are made to the bank of a public highway, extending to a river, they become part of such highway ; but when added to a portion of the bank, over which no such right of passage existed, they are a gain to the adjoining proprietor, and not subject to a right of use or passage in consequence of the right of navigation which previ- ously existed through displaced waters ( Wettnore v. The Atlantic White Lead Co., 37 Barh. E., 70). The Supreme Court of the United States have lately held that alluvion attaches only to the land bordering on the streams from which the alluvial soil is derived ; and where such land has been sold, the original estate of which it formed a part has no right of alluvion {Sauset v. Shepherd, 4 Wallace's E., 502). And the Supreme Court of Mississippi has also lately decided that the principle by which the right to alluvion is determined is that the riparian proprietor, who is liable to loss by floods, is entitled to the increase which may result from the like cause. And it was held that, where a lot was originally granted, bounding on a street, although the grant describe this front as facing on the river, tlie grantee is not a riparian proprietor, and, as such, enti- tk'd to alluvion formed on the opposite side of the street {Smith V. St. Louis, 30 21o. E., 290). It has been recently decided by the Supreme Court of Louisi- ana that the alluvion belongs to the owner of the soil situated on the edge of the water, whether it be a river or a creek, and whether the same be navigable or not ; but he is bound to leave public that portion of the bank which is required by law for the public Tise {Barrett v. New Orleans, 13 La. An. E., 105). The eastern line of the city of St. Louis, as it was incorporated in 1S09, is as follows: From the Sugar Loaf due east to the Missis- sippi ; "from thence, by the Mississippi, to the place first men- tioned." The Supreme Court of the United States held that tlie last case made the city a riparian proprietor upon the Mississi-ppi ; and, as such, it was entitled to all accretions as far out as the middle thread of the stream. And it was declared that this rule, 60 well established as to fresh-water rivers generally, is not varied l)v the circumstances that the Mississippi, at St. Louis, is a great ai'.il public water-course; and that the rule, with respect to tide RULES IN RESPECT TO ALLUVION. 87 water rivers, where the tide ebbs and flows, does not apply tc such a case as that stated {Jones v. Goulard, 24 How. li., 41). And in this connection it may be convenient to have it noted tliat the Supreme Court of the United States have very recently Iield that the act of Congress of June 13, 1S12, reserving certain hinds in St. Louis for the benefit of the public schools of that city, was not intended to reserve lands made by accretion to^ lots bor- dering on the river, which were inhabited, cultivated and pos- sessed by persons at the time of the cession of 1803, and which have since continued to be so inhabited {Schools v. Risley, 10 WaU. B., 91). In matters respecting alluvion, it is obvious that the first ques- tion to be settled is whether the accretions are in fact alluvion or not. If they have been made by a lateral increase, that is, by impercej)tible degrees, so that no one can know how much was added in each moment of time, the law declares the accuninla- tions to be alluvion ; and when this is so determined, the rule is well settled that the alluvion belongs to the proprietor of the land at the edge of the water. If the additional soil was made suddenly, and not by imperceptible degrees, it is not alluvion, and belongs to the owner of the bed of the stream, or the soil under the water where it originally flowed. It will be pertinent and useful to insert in this place an extract from some very learned observations made by the late Edward Livingston, a distinguished jurist and statesman, in a controversy in the" early part of the present century, respecting the title which lie had acquired to some lands at New Orleans, formed by gradual deposits from the annual inundations of the Mississippi river, and called the Batture. It was contended, in opposition to Mr. Liv- ingston's claim, that the alluvion must be formed slowly and imperceptibly, so that the time of the incorporation of each part with the original soil cannot be discovered ; and that the land in question was not alluvion because its increase was perccptihle. This was what elicited the reply which is contained in the para- graph quoted. Mr. Livingston said: "When the ingenious coun- sel can analyze the different deposits, separate the sands of the Eed river, the rich mould of the Mississippi from the clay and other various soils which the Mississippi receives from a thousand ^•ibutary streams, — when he can dive into its turbid eddies, watch he moment of the previous deposit, and date the existence of each i 88 i^TF OF BOUNDARIES. stratum of its increase, — then this first branch of the authority he has cited {quantum quoque teniporis moinento adjicientur) may be applicable to his cause" (2 IlalVs Law Journal^ 307, 327, 328). Mr, Livingston eventually sustained his claim to the land, though tlie ''law's delay" was such that the fruits of his victory were not fully realized in his own lifetime, " There are three successive stages in the formation of alluvium, viz., the crumbling of the mineral crust of the earth, by the action of tides, currents, streams and atmospheric agency ; the transpor- tation of the loosened fragments, and their deposition in the form of alluvion at the bottom of rivers, lakes, estuaries and the ocean. " The mineral substances of most rocks have a tendency to com- bine with the oxygon of the atmosphere, under particular condi- tions of heat, moisture and electricity; carbonic acid and water are absorbed by many rocks ; vicissitudes of temperature tend to expand, contract, split and disintregate rocks; lightning often shivers a rock into innumerable fragnients ; every shower of hail or rain works off fragments more or less numerous from the sur- face of rocks ; so that by these combined agencies of air, moisture, carbonic acid, heat, electricity, hail and rain, there is a constant wearing of the substance of solid rocks. It is true that these agencies work very slowly when the bulk of the rock is considered ; but as time, in geological phenomena, is reckoned by ages or centuries instead of by years, this slowness does not throw any improbability over the alleged action of meteoric fires on solid rocks. " Another kind of agency is the power of a running stream to wear avay the banks and rocks jvgainst wliich it rubs. The force of water, when directed against any obstacle in its course, is very considerable, even by its own weight alone, especially if it be flowing over a highly inclined surface; but its destructive power is greath' augmented if it be loaded with sand and gravel, * * * The formation of valleys by the erosive power of running ■water is another cause of the accumulation of alluvium. * * * Among the Alps, gorges have been scooped out to the depth of 600 or 700 feet by the action of running water alone. Such tacts as these are sufficient to show that a rapidly flowing river exerts a powerful disintregating force. " The wearing and transporting powers of rivers depend upon the volume of water, the quantity and size of tlie solid matte RULES IX RESPECT TO ALLUVIOX. 89 saspended and the velocity with which it moves. * * * The tortuous courses of rivers wliere they are cut through solid rock, as in the case of the Moselle, whose banks are sometimes 600 feet high, are among the strongest proofs of the destructive power of running water ; for no sudden deluge, however powerful, could have scooped out such a trough ; and that a cleft of such a nature sliould be occasioned by any disruption of the earth's crust is not less improbable. More sudden, and therefore more striking, instances of the waste of the land occur where a river flows through a lake, and by its wasting action causes a breaking down of the barrier. " The distance to which the detached fragments are carried depends upon the volume of water, and the nature of the ground over which it flows. The torrents from tlie south-western Alps, rushing over a steep uninterrupted slope, transport large blocks to the sea ; but a river that runs througli a long stretch of level country deposits the grosser matter in the upper part of its course, and carries to its mouth only that which is more easily held in suspension. The larger stones, after being detached from their parent rock, have therefore to undergo an immediate process of abrasion, by being rubbed against each other in the bed of the. stream, before their particles are finally committed to the deep. If a river pass through a lake in its course, the solid matter will be deposited in that trough until it has filled it up ; and if the lake be very large even the lighter particles will have time to fall, and tlie water will flow out clear from the other extremity. * * * In a mountainous country, where the land rises rapidly from the shore, the rivers descending over a steep bed sweep all the contents into the sea. If the neighboring sea be deep, and the tides be strong, an estuary or inlet is formed at the mouth of the river; that is, the sea forms a deep indentation into the land of a triangular shape. If, on the other hand, a low shelving shore, and the absence of strong tidal currents, favor the gradual and tranquil deposit of the solid matter brought down b}^ the river, an extensive level of alluvial land is formed. * * * Such, then, are the numerous modes in which alluvium is formed, and fitted to become the basis of a rich vegetable soil, by converting into dry land tracts which were before covered with water" {Rational Cyelopmlia, vol. 1, tit. ^'' Alluvium''^). Perhaps these smements may be regarded as more scientific, than anything 12 90 i^ir OF BOUNDARIES. else, but tliey will help to enable one to determine what is legal alluvion in a given case. In determining tlie manner in which land formed by alluvion in a river is to be divided among the several riparian proprietors entitled to it, the courts have established well-defined rules. A case has but just been decided by the Supreme Judicial Court of New Hampshire, which involved the right to land formed by alluvion, on the bank of a river not navigable, by the gradual wearing away of the opposite bank. The court declared that in such a case the ordinary rule for dividing the alluvion among the riparian owners entitled to it, is to ascertain the length of the old shore line, and of the part of it belonging to each proprietor ; then measure off for each proj^rietor a part of the new shore line in proportion to what he held in the old shore line ; and then draw lines from the boundaries at the ancient bank to the points of division on the new shore as thus ascertained. In this way, it was said, if such land is formed in the bend of a river, and the new shore line is just one-half the length of the old one, each pro- prietor will take of the new shore line just one-half the extent of his former shore {Batchelder v. JTenisten, 51 J^.Il.R., 496; S. 6*1,7 Alh. L. J., 317). At an early day, the Supreme Judicial Court of Massachusetts adopted the following rule upon the subject : 1. To measure the whole extent of the ancient banks or line of the river, and com- pute how many rods, yards or feet each riparian proprietor owned on the river line. 2. The next step is, supposing the former line, for instance, to amount to 200 rods, to divide the newly-formed bank or river line into 200 equal parts, and appropriate to each proprietor as many portions of this new river line as he owned rods on the old ; when, to complete the division, lines are to be drawm from the points at which the proprietors respectively bounded on the old, to the points thus determined, as the points of division on the newly-formed shore. The new lines thus formed, it was said, will be either parallel, or divergent, or con- vergent, according as the neio shore line of the river equals, or exceeds, or falls short of the old. The court said, however, that the rule may require modification, perhaps, under particular cir- cumstances. For instance, in applying the rule to the ancient margin of the river, to ascertain the extent of each proprietor's title on that margin, the general line ought to be taken, and not RULES IX RESPECT TO RELICTION. 91 tlie actual length of the line as that margin, if it happens to he elongated by deep indentations or sharp projections. In such a case, the court declared it should be reduced by an equitable and judicious estimate to the general available line of the land upon the river {Deerfield v. Ames, 17 Pick. R., 45, 46). The same court reaffirmed the rule in a more recent case, wherein Shaw, C. J., said : " The effect of this rule is, to give to each proprietor a length on the new water-line proportioned to his length on the old water-line, whether the one be longer or shorter than the other " {Trustees of Hopkins Academy v. Dickinson, 9 Gush. 7?., 544, 553). And the Supreme Court of tlie United States have declared their adherence to the same rule. In a late case before that dis- tinguished court, Mr. Justice Swayne, speaking of the rule laid down in the l7th Pickering, said : " With the qualification stated, it may be considered as embodying the views of this court upon the subject" {Johnston \. Jones,! BlacFs 12., 209, 223 ; vide also Jones v. Johnston, 18 IIoiv. U. 8. R., 150 ; Emer- son V. Taylor^ 9 Greenl. R., 44 ; Newton v. Eddy, 23 Vt. R., 319). The subject of reliction is closely allied with that of alluvion, and both subjects are governed by similar rules. The word relic- tion signifies land left permanently uncovered by the retreat of the sea or other water, and the principles of law which have been considered with respect to encroachments by the land upon the water apply also to the converse case of encroachments by the water upon the land. Therefore, if the sea rises gradually and imperceptibly, the proprietors whose lands are submerged have no remedy against the sovereign, whose property will conse- quently extend as tar as the new high-water mark {In re The Hull and Selhy RailvKty Company, 5 Mees. <& Welsh. R., 327). But if the encroachment of the water is sudden and violent no change of property takes place, and therefore, upon the recession of this water after the inundation, every owner will take his land again if it can be known by its boundaries {Schultes, 122; Inst., lib. II, tit. 1, 24 ; 1 Thomas Co. Litt., 47, 7i.). If the water in a navigable lake recede gradually and insensibly, the land gained belongs to the adjacent riparian owners. But if the reliction be sudden, the increase belongs to the State. So held in a case in North Carolina, wherein it was proved that the lake, upon which W the lands in question were bounded, was navigable; and Hall, J., 92 LAW OF BOUXDARIES. % in delivering the opinion of the court, said : " If the recession of the lake was sudden and sensible, the land which it had covered, and which, by its dereliction, became dry, would not be and onght not to be included in the defendant's grant. But if the water receded gradually and insensibly, the lake ought to be considered one of the defendant's boundaries. It is, therefore, necessary that the fact be found whether the waters of the lake receded imper- ceptibly or not from the land in dispute; because on that ques- tion the rights of the parties depend" {Murry v. Sermon, 1 Hawks' i?., 56). From these principles it follows that if a navigable river slowly and imperceptibly changes its course, the boundaries of the pro- perty adjoining the banks will gradually shift with the new chan- nel ; but that if the change be sudden, no alteration of the bounda- ries will take place. If a navigable river suddenly forsakes its natural channel and flows in another bed, the old bed will, by the law of England, belong to the crown, on the same principle as land suddenly relicted by the sea ; but, by the civil law, it will belong to the owners of the land on each side, in the same man- ner as an island formed in a navigable river. According to the civil law, the river bed follows the condition of the river and becomes public ; or, rather, the use of it becomes public, while the property in the soil remains to its former owners {Sandars^ Inst., lib. II, tit. 1, 22). By the common law, also, it would seem that the ownership of the new bed is not altered, but remains in its former proprietors, subject to public uses ( Vide The Mayor of Carlisle v. Graham, 4 L. R. Exch., 361). Should the river after- ward resume its old channel, the strict rule of the civil law assigns the new bed to the owners of the adjacent lands ; though in reason and equity it should be returned to its former owners, if they are known ; and by the common law there can be no doubt that the ownership of the new bed will remain in those to whom it belonged before any change in the river took place, unless the alteration in the new channel has been so slow and gradual that the original boundaries have been lost {Ilale De Jure Maris, 5, 6, 11, 13, 16 37). And if a private stream, which is the boundary between the lands of two proprietors, gradually and imperceptibly changes its course, the proprietor whose ground is encroached upon can claim nothing from his opposite neighbor ; but the boundary line between them will shift with the gradual change of the river. RULES IN RESPECT TO RELICTION. 93 If, however, the course of the river is diverted bj some sudden catastrophe, no change of property will take phice, and the medium Jilum of the old river will continue to mark the limits of the two estates {Vide SchuUes, 121; F'ord v. Zacei/, 2 Ju?\ N. S., 684). The exact language of the civil law upon the subject is this : '' If a river, entirel y forsaking its natural channel, hath begun to flow elsewhere, the first channel appertains to those who possess the lands close to the banks of it, in proportion to the extent of each man's estate next to such banks ; and the new channel par- takes of the nature of the river and becomes public. Aud if, after some time, the river returns to its former channel, the new channel again becomes the property of those who possess the lands contiguous to its banks" {Just. Inst., lib. II, tit. 1, § 23). And this doctrine is certainly very reasonable, and does not appear to be at variance with that of the common law; but, it is believed, that it can be clearly inferred from the principles of that law, applicable to public rivers. The law relating to alluvion and reliction is very succinctly stated by Judge Blackstone. He says : " As to lands gained from the sea, either by alluvion, by the washing up of sand and earth,- 60 as in time to make tei'ra jinna, or by dereliction, as when the sea shrinks back below the usual water mark ; in these cases the law is held to be that, if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining. For de tninimis nan curat lex j and, besides, tliese owners being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is, therefore, a reciprocal consideration for such possible charge or loss ; but if the alluvion or dereliction be sudden and considerable, in this case it belongs to the king ; for as the king is lord of the sea, and, so, owner of tlie soil while it is covered with water, it is but reasonable he should have the soil when the water has left it dry ; so that the quantity of ground gained and the time during which it is gained are what make it either the king's or the subject's property. In the same manner, if a river, running between two lordships, by degrees gains upon the one, and thereby leaves the other dry, the owner who loses his ground thus imperceptibly has no remedy ; j^iut if the course of the river be changed by a sudden and violent nood, or other hasty means, and thereby a man loses his ground, 94 LAW OF BOUNDARIES. it is said that he shall have what the river has left in any other place as a recompense for this sudden loss" (2 Black. Com., 262). Mr. Schnltes, in his able treatise on Aquatic Rights, draws the conclusion, " that all islands, relicted land, and other increase arising in tlie sea and in navigable streams, except under local circumstances before alluded to, belong to the crown ; and that all islands, relicted land, and the soil of inland ui^navigable rivers and streams, under similar circumstances belong to the proprietors of the estates to wliich such rivers act as boundaries ; and hence it may be considered as lire', that all islands, sand beds or other parcels of agglomerated or concreted earth which newly arise in rivers, or congregate to their banks hj alluvion, reliction or other aqueous means, as is frequently observed in rivers where the cur- rent is irregular, such accumulated or relicted property belongs to the owners of the neighboring estates" (Sc/iidtes 07i Aquatic Bights, 138). It may be convenient to understand the meaning of the phrase " bank of a river," or " bank of a stream." The courts have decided that a bank is the continuous margin where vegetation ceases ; the shore is the sandy space between it and low-water mark. That is to saj', such has been held to be the rule in Penn- sylvania {McCtdlough V. Wainwright, 14 Penn. li., 171). By the civil law if a piece of land is torn by the violence of a stream from one man's land and carried to the land of another, it remains the property of its former owner, if it can be detached from its resting phice ; but if it is allowed to remain for so long a time tliat it unites with the neighboring soil, and the trees which it sweeps away with it take root in the ground, it will be lost to its former owner, and become the property of him to whose land it has been carried {Inst., lih. II, tit. 1, 21). This is called avulsion, and the rule of the civil law in relation to it would seem to be as applicable to the common law as to the civil law. It has been suggested, however, that an equitable action will lie in such case to recover the value of the piece of ground so carried away and united with the neighboring land {Vide Colguin^s Siimmary^ % 981). SEA-WALLS AND THE LIKE. 95 CHAPTER YIII. THE LAW OF BOUNDARY AS RELATES TO SEA-WALLS, EMBANKMENTS, PURPRESTURES, AND THE LIKE THE RULE AS APPLIED TO NAVIGA- BLE STREAMS THE SCOTTISH AND ROMAN LAWS UPON THE SUB- JECT DUTY OF PRESERVING SEA-WALLS AND THE LIKE. Although the subject of encroachinents upon lands belonging to the public or individuals, or upon the sea or other navigable waters, is not directly involved in the question of boundary, yet it is so closely related to it that a brief reference to it may pro- perly be made in this place. By the rule of the civil law the interdictum utile lies against any one who projects a mole into the sea at the suit of persons who are thereby injured, but if no one sustains any injury he who builds on the sea-shore or projects a mule into the sea is protected {Digest, 43, 8, 3). And by the same law it is said that to repair and strengthen the baidvs of a public river, so long as the navigation is not hindered, is most useful {Dig., 43, 15, 1). In Scotland, it has been held that the owner of property adjoining the sea-shore may prevent the encroachments of the water by artificial operations, and even by such means gain upon the sea, although some doubt has been thrown upon the accuracy of these decisions by Mr. Bell in his Commentaries on Scotch Law. The decisions of the courts, how- ever, carry the doctrine to the extent stated ( Vide Smith v. Earl of Stair, G BeWs Appeal Cases, 487 ; BelVs Com., 723). But the rule is not extended so far by the common law, or the law of England. There can be no doubt that by the law of England encroachments cannot be made on the property of the crown or its grantee {Todd v. Dunlop, 2 Roh. Scotch App., 333 ; Smart v. Council of Dundee, 8 Bro. Par. Cases, nle. The defendants having violated the rights of the plaintiff, and flowed his land to his damage, law and justice alike require that they should pay that damage " {Plx- ley v. Clarh, 35 W. Y. E., 520, 529-532). So it seems that a man may raise an embankment on his own property to prevent the encroachments of the sea, even though it may have the effect to impose a burden upon the adjoining proprietor ; but the rule does not apply in the case of embankments by the side of a river or other inland stream. When it is said that proprietors along the banks of a private river are entitled to the bed of the stream as their property xisque ad viediuiiti filum, it does not by any means follow that that property is capable of being used in the ordinary way in which so much land uncovered with water might be nsed ; but it must be used in such a manner as not to affect the interest of riparian proprietors in the stream. Now, the interest of a riparian proprietor in the stream is not only to the extent of preventing its being diverted or diminished, but it would extend also to prevent the course being so interfered with or affected as to direct the current in any different way that might possibly be attended with damage at a future period to another proprietor. Tliis is the doctrine laid down by Lord Westbury in a case before referred to, and it is in accordance with the authori- ties {Blchett v. Morris, 1 L. 7?., Sc. Aj)p., 61). The Lord Chancellor of England, in a case in the House of Lords, on appeal from the Court of Session in Scotland, laid down the law upon the subject thus : " But let us see what is said on this subject by the institutional writers on the Law of Scotland. Erskine, in his Institutes, is distinct, as it appears to me, and precise upon the subject. He says : ' AVhere a river threatens an alteration of the SEA-WALLS AND THE LIKE. 101 present channel, by which damage may arise to the proprietor of the adjacent or opposite ground, it is lawful for him to build a bulwark rij)ce muniendce causa, to prevent the loss of ground that is threatened by that encroachment ; ' so that the proprietor whose lands are threatened to be washed away may, for the pur- pose of protecting his own property in a case of that description, raise a bank for his own security; but this bulwark must be so executed as to prejudice neither the navigation, nor the grounds on the opposite side of the river ; 'and as a guard against these consequences, the builder, before he began his work, was obliged by the Roman law to give security. Nothing, therefore, can be more distinct and precise than the language of Erskine, in his Institutes, with respect to this particular case. lie says : ' You may protect your own property from destruction ; ' so you may by the law of England; but he says in distinct terms: ' Though the river threatens to change its channel, and to encroach upon your land, you cannot protect yourself to the prejudice of the opposite proprietor.' Lord Stair, in his Institutes, though not so clear and precise, yet in general terms, confirms that which is laid down by Erskine in his Institutes. The language of the Roman law, according to the passage cited in the case, confirBis the same doctrine. * * * It appears to me that that passage (and there are others to the same effect in the Digest) confirms the opinion laid down by Erskine in his Institutes, with respect to the law of Scotland, in confifmation of which lie refers to the Roman law. It is true that passages may be found in the Digest, appearing to have a contrary tendency, but I think they may be all reconciled; or, consider the subject in this light, that these passages to which I am now alluding have reference to accidental and extraordinaiy casualties, from the flood suddenly bursting forth, and they go to this, that in such a ease the parties may, even to the prejudice of their neighbors, for the sake of self-pre- servation, guard themselves against the consequence ; perhaps in this way, the difi'erent passages in the Digest may be reconciled " {I^ex V. Traford, 1 Barn, cfe Ad. 7?., 87-1). But it is not impor- tant to the objects of this discussion that the subject be further pursued in this place. The subject, to the extent to which it has been considered here, has a close relation to the question of boundary, but the further consideration of it may not be required. In England the preservation of walls and embankments by the 102 i^TF OF BOUNDARIES. sea-sliore and navigable rivers, and tlie removal of obstructions in public rivers, devolve, for tlie most part, on the commissioners of sewers, whose duties and liabilities are determined bj certain acts of Parliament called statutes of sewers. In this country the mat- ter is in the hands of Congress and the State Legislatures, and provision is made by legislative enactment. But an individual, corporation or locality may be liable to repair a sea-wall by pre- scription or custom. Therefore, where the owners of the estate, which a man has, have time out of mind repaired the wall, he will be bound. And where there is a custom in the locality that all those whose lands abut upon the sea shall do the repairs (which is called the custom of frontages), those who have lands fronting the sea will be liable {Carlis on Seioers, 115, 116; Glhhon on Dilapidations, 348, 349). A person may, likewise, be bound by reason of a condition annexed to his estate ; or by covenant, which will bind his heirs, if expressly mentioned, but only to the extent to which they have assets by descent {Henley v. Mayor of Lyme, 5 Bing. B., 91 ; S. C, 3 Barn. & Ad. B., 77). And it has been held that a public company, exercising statutory powers for its own profit, may be obliged to repair sea-walls, to clear away obstructions to navigation, and the like {Barnaby v. Lancaster Canal Company., 11 Adolpfms <& Ellis B., 223 ; Majiley v. ^S"^. Llelen^s Company, 27 L. J., ExcJi. B., 159). A purchaser of lands situated below the level of the sea is bound to inquire how all the defenses, necessary for the protection of the property against the encroachments of the sea, are maintained, and if the vendor lias entered into covenants respecting the sea-walls and sewers the purchaser will be bound. It would seem, however, that a covenant to repair a sea-wall would run with the land, and would, therefore, bind a purchaser, even without notice, express or implied {Moreland v. Baker, 6 L. B., Eg., 252). LANDS ON ROADS AND STREETS. 103 CHAPTER IX. rilE LAW RELATING TO BOUNDARY OF LANDS UPON ROADS AND STREETS RULE IN RESPECT TO PUBLIC AND PRIVATE WAYS TUB SAME PRESUMPTIONS AS TO WASTE LANDS ADJOINING HIGHWAYS — LAW OF BOUNDARY IN RESPECT TO DITCHES AND WALLS. Where a road divides two estates, whether freehold, copyhold or leaseliold, the presumption is that tlie soil of the road, witli the minerals under it, usque ad medium filiun vice^ and the waste lands and trees by the sides thei-eof, belong to the adjoinino^ own- ers. This has been the rule, as recognized by the English coui-ts, time out of memory ; and the same rule is universally adopted in this country. A person holding lands bounded upon the high- way is \\e\di prima facie to own to the center of the road. This presumption is allowed to prevail upon grounds of public conve- nience, and to prevent disputes as to the precise boundaries of property ; and it is based on the supposition that when the road was originally formed the proprietors on either side each contri- buted a portion of his land for the purpose {Holmes v. Belling- ham, 7 J. Scott's i?., N. S. , 329, 336). And this supposition, that the proprietors on either side of a highway contributed a portion of his land for the road when it was formed, is based upon the doctrine that there is no presumption that a highway was made before the time of legal memory, so as to vest the soil of it in the lord of the manor; so declared in several leading English cases ( Vide Doe v. Pearsey, 7 Barn. & Cres. B., 304 ; Cooke v. Green, 11 Price'' s i?., 736 ; Scoones v. Morrell, 1 BeavaiUs i?., 251). Upon this ground, a conveyance of land described as abut- ting on a road passes a moiety of the soil of the road to the grantee, unless there be something in the context to exclude this construction. Sir J. Coleridge remarked, in a case before the House of Lords, in which the boundary of lands upon a creek was involved : " If lands granted were described as bounded by a house, no one could suppose the house was included in the grant ; but if land granted were described as bounded by a highway, it would be equally absurd to supj)ose the grantor had reserved to himself the right to the soil ad medium filum, in the far greater majority of cases wholly unprofitable " {Lord v. The Cotnmlss'ioners foi 104 LAW OF BOUNDARIES. the City of Sidney, 12 Moore's P. C, 473). And in a leading case before the English Court of Common Pleas, the land was described as " bounded by Hall lane," and it was held that the grantee w^as vested with the soil of Hall lane nsqrte ad filum vice; or in other words that a moiety of the land in Hall lane passed by the conveyance, though it w\is not necessary to include any portion of the lane to make up the quantity of land specified in the grant {Simpson v. Dendy, 8 Eng. C. B. E., iT. S., 433). And in a late case before the same learned court, after the examin- ation of many authorities, the doctrine was fully recognized, and it was held that, where a piece of land which adjoins a highway is conveyed by general words, the presumption of law is, that the soil of the highway usque ad medium filum passes by the con- veyance, even thongh reference is made in the conveyance to a plan annexed, the measurement and coloring of which would exclude it. The counsel for the advei-se party expressly admitted the general doctrine, but contended that the language of the con- veyance excluded the highway, because that which was intended to be conveyed was precisely defined. But the court held, that admeasurements, accompanied by a reference to a colored plan in Avhich no part of the road was included, were not sufficient to rebut the presumption that a moiety of the road was intended to be conveyed {Berridge v. Ward, 10 Eng. C. B. R., N. S., 400 ; and vide The Queen v. Strand District Board of Works, 4 Best c& Smith's E., 548, 553). The same doctrine with respect to the conveyance of lands bounded upon a road has been repeatedly recognized by the Amer- ican courts. In a late case decided by the New York Court of Appeals, it was declared that a deed bounded on a highway j^W??? a facie carries the title of the grantee to the center of the road, on the assumption that the grantor owns it ; but, as was remarked by Porter, J,, who delivered the opinion of the court: "The j^re- sumption in fovor of an adjacent proprietor, and of his successors in interest, is not a prcsumptio juris et dejure., but yields to other evidence displacing the grounds upon which it rests." And the learned judge continued : "The effect, in tliis respect, of a given deed, depends on the actual state of the title. A conveyance, bounded on a village street, would ordinarily include the soil to the center; but it would be otherwise M'ith a like conveyance bounded on one of the streets in the upper part of tlie city of LANDS OX ROADS AND STREETS. IQj Kew York, where the right of soil is vested in the public authori- ties. So, the same language in a deed of lands bounded on a river, which would embrace half the bed of a stream not naviga- ble, would carry the title, in a different case, only to the line of low- water mark. In the present instance, tlie presumption in favor of the adjacent owners was repelled by affirmative and decisive proof that the fee of the road-bed was not vested in them or in the parties through whom their title was derived." The doctrine of the precise case was held to be, that where the land covered by the road-bed belonged to the government, and not to the owners of adjacent lands, as in the case of the ancient road from Flatbush to Brooklyn, a deed bounding lands upon such highway carries title only to the road-side. So, notwithstanding the general rule, if it appear that the soil of the road was not owned by the grantor, the terms of a deed bounding upon the highway are satisfied by a title extending only to the road-side {Dunham v. Williams, 37 ]Sf. Y. R., 251, 252). The present Supreme Court of the State of New York, some years since, held that M'here the owner of real estate in a villaire lays out a street through the same, and divides the land on each side of it into village lots, which he sells to individuals in fee, • counnencing his boundary at a stake in the line of the highway, but not including the highway by express terms, the respective grantees take to the center of the highway' ; and the doctrine was expressly declared that the grantee of a lot bounded on a street prima facie takes to the center of the street ; and to prevent the grant having this effect, it was said that there must be language expressly excluding the street. It w^as further declared that, in the city of New York, the legal title to the soil of the streets is vested in the corporation ; but that in other parts of the State the legal presumption is that the fee is in the owner of the adjoining lots. And it was observed by Judge Willard, who delivered the opinion of the court, that this presumption in respect to the fee of the land of the roads and streets of the towns and cities of the State, excepting the city of New York, had always been the law as understood and expounded by the courts of the State ; and the learned judge referred to a large number of authorities in which the legal presumption was held to obtain in accordance with his statement. It was thought by the court that the boundary of land upoli a highway stands upon the same footing at common 14 J[Q6 " LAW OF BOUNDARIES. law as a boundary upon a stream above tide-water, in which latter case the old Supreme Court of the State had held that, where the grant is so framed as to touch the water of the stream, and the parties do not expressly except the stream, one-half of the bed of the stream is included by construction of law, with the declara- tion that if the parties mean to exclude it, they should do so by express exception {Luce v. Carley, 24: Wend. R., 451, 453). This doctrine Judge Willard indorsed, and said that no case in this State, holding a contrary doctrine, had been brought to the notice of the court {Adams v. Saratoga and Washington Railroad Compamj, 11 Barh. R., 414). The Court of Appeals of the State reversed the judgment of the Supreme Court in this case, and ordered a new trial, on the ground that certain evidence offered on the part of the defendants, which was excluded at the circuit, should have been received. It is understood that the reversal does not affect the authority of the case upon the points herein stated ( Vide Adams v. Saratoga and Washington Railroad Company, 10 N. Y. R., 328 ; and vide Adams v. Rivers, 11 Barh. R., 390). The same question came before the present Supreme Court of the State of Kew York, at a Special Term, in November, 1860 ; and it was decided, after full argument by very able connsel, that where premises, conveyed by deed, are bounded, in general terms, by a street, the grant extends to the middle of the street ; and this, whether the land be situated in the country or in a city. Hoge- boom, J., who held the court, remarked that such was conceded to be the rule as to land in the country, and he thought it equally applied to urban territory. The learned judge said : " The reason is substantially the same, as applied to a road in the country or a street in the city ; that is, the intervening strip was originally taken, or supposed so to be, for public purposes, from the owners on opposite sides of the street or highway ; taken only for public purposes, and only so much of it, both in regard to the quality and duration of the estate, as was supposed to be required for the public use, and is to be returned to the respective proprietors when the public have no further use for it ; or else it was founded upon principles of public policy, based upon the supposed incon- veniences or impropriety of having so long and nai-row a strip of land or body of water the subject of a distinct and separate owner- ship from that of the adjoining territory on either side" {The LANDS ON ROADS AND STREETS. ] 07 Peojple V. Law^ 34 Bar!), i?., 494, 501). This case, altlioiigli a Special Term decision, was referred to, with approval, in a late case decided by the Court of Appeals of the State, in which it was held, in respect to a quadrangular lot of land on the soutli-east corner of Bleecker and Grove streets, in tlie city of New York, that, where the description in a deed defines the boundai-y of the premises along the line of a given street, title vests in the grantee to the middle of the street, subject, of course, to the public use of the same as a highway ; recognizing the rule that, where land is bounded on a street, this includes the land to the middle of the street, unless there is evidence on the part of the grantor to exclude the street from the grant {Sherman v. McKeon, 38 N'. Y. B., 266). But the same court had previously held that, by force of the statute of 1S13, the corporation of the city of New York became seised in fee of the land embraced within the streets; although not absolutely as private or corporate property, but in trust for public use {The People v. Kerr, 27 N. Y. II., 188). The fee of the land occupied by the streets of the city of New York being in the corporation, and not in the adjoining owners, of course a deed bounding lands upon one of the streets of that city would not carry title farther than the margin of the street. But the Court of Appeals have held that, as between grantor and grantee, the conveyance of a lot bounded upon a street in a city carries the land to the center of the street. There is no distinc- tion, it was said, in this respect, between the streets of a city and country highways {Bissell v. The New Yorh Central Railroad Comjpany, 23 N. Y. B., 61). This is the rule of construction applied to conveyances of land bounded upon the streets of all the cities, with the exception of a portion of the streets, at least, in the city of New York. Doubtless the inference of law upon this subject, in respect to the streets of the city of New York, would be different from that which obtains in other cities. The general doctrine, however, that lands bounded by the highway extend to the center of the road, or, in other words, that the proprietor of lands adjacent to a highway is prima facie owner of the soil to the center of the road, has been repeatedly recognized and applied by the courts of the State of New York ; and the rule is founded upon the rational presumption that the ground was originally taken from the adjoining owners, and for the sole purpose of being used as a thorous'hfare. 108 LAW OF BOUSDARIES. The adjudged cases in tlie neighboring States upon this subject are, for tlie most part, in harmony with tliose of the State of New York. At a very early day the courts of Connecticut held that the proprietors of land bounded on a highway have, lyrima facie, at least, a fee in such highway, ad medium filuin vice, subject to the easement {Peck v. Smith, 1 Conn. B., 103 ; Chatham v. Brainard, 11 ih., GO). In the latter case the description in the deed brought the grantee to the highway, and it was held that he took to the center of the highway, although the highway was not mentioned as a boundary. The land conveyed was described as bounded ec/6?! on Xvi'^^ws^:^ or common land ; and it appeared that there was a highway there, and the court held that the words " or common land" did not vary the construction; and in a later case the same court held that, where it is the intention of parties to convey land adjoining a highway so as to exclude the highway, such intention must appear in clear and explicit terms ; otherwise the fee passes to the center of the highway. Where it appeared that the south line of the land conveyed was the same as the north line of the highway, although the highway was not mentioned or referred to in the deed, the court held that the fee passed to the center of the highway {Champlin v. Pendleton, 13 Conn. P., 23). In the State of Maine, the Supreme Court has expressly held that a boundary on the highway will carry the grantee to the center of the road. In one case, commissioners, under the direc- tion of the Court of Probate, divided the real estate of a deceased between his heirs, each parcel of which they particularly described. The lands contiguous to the county road were represented as bounded by it, and the court held that the fee of the road, subject to the public easement, w^as thereby divided ; those owning the lots contiguous to it and opposite sides going to the center of tlie road {Bucknam v. Bucknam, 3 Fairf. P., 463). And in a later case the same court held, in general terms, that a grant of land bounded on a highway carries the fee in the highway to the center of it, if the grantor at the time owned to the center, and there are no words showing a contrary intent {Jackson v. Ander- son, 18 Maine P., 76). The Supreme Judicial Court of Massachusetts, at an early day, held that land bounded by a river extends to the thread of the stream ; but with respect to the boundary of a deed upon a road, a different rule was adopted {Sweet v. Holland, ll Mass. P., 149 ; LANDS ON ROADS AND STREETS. 109 and vide Silley v. Ilowen, 10 Pich. Ji., 249 ; T>/Ier v. Hammond, 11 ih., 193 ; Van Olinda v. Lathrop, 21 ih., 292). In the last mentioned case Morton, J., concedes tliat there is a great analogy between a boundary upon a river (which he admits goes to the center or thread of the stream) and upon a highway ; and yet he says that the cases in that State did not, in the latter case, carry the boundary to the center of the road. These cases are believed to be opposed to the current of authorities in New England. And, indeed, the Supreme Judicial Court of Massachusetts, in all the later cases, has recognized the general doctrine that the owner of land adjoining a highway is presumed to own to the center thereof; and that such is the presumption where a deed bounds die estate by or on a public way, unless a contrary intent appears on the face of the instrument. In accordance with this rule, the court held, in a recent case, where a record in the original Book of Possessions of the town of Boston, which book appears to have been made between 1639 and 1G45, of a possession of a house and lot "bounded with the street," that such record shows title in the possessor to the center of the street, even if the possession M-as granted by the General Court or town after the street had been laid out. Gray, J., delivered the opinion of the court, and said: "In some opinions of this court it has, indeed, been implied or asserted that a boundary upon a road or street passed no title in the land under it. But in the more recent decisions the general rule has been repeatedly declared, and must now be regarded as the settled law of this commonwealth, overruling whatever is irreconcilable in the earlier cases, that a deed bounding land gene- rally by a highway, with no restriction or controlling words, con- veys the grantor's title in the land to the middle of the highway {Newhall V. Ireson, 8 Cash., 598 ; ridlUps v. Bowers, 7 Gray, 24-26; Fislierv. Smith, 9 Gray, 444; Ilollenbeck v. Rowley, 8 Allen, 473). And in Bice v. Worcester (1 1 Gray, 283, note) it was held that the title of the owner of land abutting on a high- way must be presumed to extend to the center of the highway, although the way was so ancient that its origin was unknown. These decisions are in accordance wjtli the law as established in other States and in Great Britain. * * * The question whether any grant extends to the side line or the center line of the highway is, doubtless, according to the statement made by Chief Justice Shaw, in Wtbher v. Eastern Bailroad (2 Met, 151), 110 LAW OF BOUNDABIES. and approved by the court in Codman v. Evans (1 Allen, 44:(J), ' a question of construction in each particular case, and depends, as in all other cases, upon the intent of the parties, as expressed in the descriptive parts of the deed, explained and illustrated by all the otlier parts of the conveyance, and by the localities and subject-matter to which it applies.' The owner of land by the side of the hii^hway, and under it to the center thereof, may, of course, by using apt words, limit his grant to the edge of the higli way, and retain his title in the fee of the soil over which the higliway runs. * * * Bnt in the absence of words clearly manifesting an intent so to do, tlie law presumes that he did not intend to reserve the title in a strip of land not capable of any substantial or beneficial use by him, after having parted with the land by tlie side of it, while the highway remains, nor, ordinarily, of any considerable value to him if the way should be discon- tinued, and the ownership of which by him might greatly embar- i-ass the use or disposal, by his grantee, of the lot granted" {City of Boston V. Richardson, 13 Allen'' s R., 146, 152, 153). And in a very recent case, before the Supreme Judicial Court of Massa- chusetts, the general doctrine was again confirmed. It appeared that A. conveyed to W. a lot of land, " situate on the northerly side" of a certain street, and "bounded and described as follows: Beginning at a point on the line of land of B. ; thence by said street north, fifty-eight and three-quarters degrees west, about one hundred feet, to a stake and stones at the corner of land of G. ; thence north, thirty-one and a quarter degrees east, to the river; thence by said B.'s land to the first mentioned bound." The court held that the fee of the land to the center of the street passed to W., it appearing that A. was seised thereof at the time of this conveyance {}Wtite v. Godfrey, 97 Mass. R., 472). And in one of the cases before the same court, hereinbefore referred to, it was held that the title of the owner of land abutting on a higliway must be presumed to extend to the center of the high- way, although the way was so ancient that its origin was unknown {Rice v. Worcester, 11 Grafs R., 283 ; and vide Marsh v. Burt, 34 Vt. R., 289). The Supreme Court of the United States have expressly recognized the general doctrine upon the subject, and especially in a case decided in December, 1864, in which Chief Justice Chase, who delivered the opinion, said : " It is a familiar principle of that law" (the law aj)plicablc to dedications) "that a LANDS OX FOADS AXD STREETS. 'Ill grant of land, bordering on a road or river, carries tlie title to tlio center of the river or road, unless the terms or circumstances of the grant indicate a limitation of its extent by the exterior lines" {Banl's V. Ogdeti, 2 Wall. 12., 57, 68). In respect to the doctrine which is applied to lands bounded upon roads, and to analogous cases, Chancellor Kent says : " It may be considered as the gene- ral rule that a grant of land bounded upon a higlnvay or river carries the fee in the higlnvay or river to the center of it, provided the grantor, at the time, owned to the center, and there be no words or specific description to show a contrary intent" (^dKenfs Com., 433, 434). It should be said that, where a highway passes through an inclosed country, not the formed road merely, whether of pave- ment, gravel or other material, but the whole space from fence to fence is the highway ; and where a highway passes over a com- mon, it frequently extends considerably to the right and left of what may be the ordinary passage ; but the fences themselves are not comprehended in the legal acceptation of a highway. These principles have been settled by the courts in England ( Vide Ehoood V. Bxdlock, 6 Queen'' s Bench R., 383, 409 ; Ilex v. WrigJd, 3 Barn. & Ad. li., %^\', Regina v. United Kingdom Telegraph Company, L. J., M. C. 166 ; S. C, 3 Fos. <& Fin. R., 73). But the width of the road depends upon the provisions of the statute under which it was laid out, unless the same has become a public highway by dedication and use. For example, by the statutes of New York, public roads are required to be not less than three rods in width, and the presumption, doubtless, would therefore be, that the road was of the width prescribed by law. If it should be claimed that the road was of a different width, by prescription or otherwise, it would lay upon the party who set up the claim to prove it ( Vide Cleveland v. Cleveland, 12 Wend. R., 172). When the road has become a public highway by being laid out and opened by the public authorities, the width and location of the same depend upon the provisions of the order laying it out. But wdiere it becomes so by dedication and user, the location and width of it depend upon the fact of travel and actual use. The right acquired by the public where land is appropriated, by dedi- cation, to the purpose of a highway, is the same as where the road is made a public highwa}' b}' action of the public authorities. In either case, the public acquires only the right of way, which is a 112 LAW OF BOUNDARIES. mere easement. The fee remains in those who made the dedica- tion, and the rule of boundary upon one is the same as the other {Knox V. The Mayor^ etc., of New York, 55 Barl. R., 404; S. a, 38 Hoio. Pr. R., 67). The same principles which apply to boundaries on a public road apply also to those on a private road. That is to say, the pre- sumption that the soil of a road usque ad medium, Jilum vice belonc^s to the owners of the adjoining lands, applies equally to a private as to a public road. Said Williams, J., in a late case before the English Court of Common Pleas : " Now, as to the proposition that the presumption which is established in the case of a public road prevails also in the case of a private roaa, I think that is not inaccurate, provided the proposition is confined to the simple case of a private road bare of all other circumstances. If nothing else appears than the existence of a private way run- ning between the lands of two adjoining proprietors, I do not quarrel with the proposition ; for, there being nothing else to guide them to a conclusion, I think the jury may very well pre- sume that the soil of the road belongs half to the one and half to the other. That, like all other presumptions, may be rebutted by evidence of acts of ownership," The learned judge who tried the cause at nisi jpriiis told the jury that there was a presumption, in the case of a private way or occupation road between two pro- prietors, that the soil of the road belongs usque ad ■mediuin Jilum vice to the owners of the adjoining property on either side. In respect to this instruction, Cockburn, Ch. J., abserved : " That proposition, subject to the qualitication which I shall presently mention, and which, I take it, was necessarily involved in what afterward fell fi-oni the learned judge, is in my opinion a correct one. The same principle which applies in the case of a public road, and which is the foundation of the doctrine, seems to me to apply with equal force to the case of a private road. That pre- sumption is allowed to prevail upon grounds of public conveni' ence, and to prevent disputes as to the precise boundaries of pro- perty ; and it is based upon this supposition, — which may be more or less founded in fact, but which at all events has been adopted,— that, wlien the road was originally formed, the proprietor on either side each contributed a portion of his land for the purpose. I think that is an equally convenient and reasonable princi[)le, whether applied to a public or to a pi-ivate road ; but. in the latter LANDS ON ROADS AND STREETS. 113 case, it must of course be taken with tliis qualification, that the user of it has been qua road and not in the exercise of a claim of ownership." Crowder, J., also gave an opinion concurring in the proposition of law, that the rule as to the soil being presump- tively vested in the respective owners of tlie adjoining Islm^^ usque ad medium filum vice, was the same in tlie case of a private road as in that of a public road {llol/nes v. Bellinghctm, 7 Com. Bench B., JSr. S., 328, 336-339 ; S. C, 97 JS'nrj. 0. L. R., 327, 335-338). And in a subsequent case the same court held that the mere fact that a private road leads to the lands of one only of two adjoining proprietors will not be sufficient to rebut tlie presumption of law that each proprietor owns the soil to the center of the road, for it is 2)ei" se no evidence of the soil of the road being vested in the proprietor to whose land it leads {Smith v. Ilowden, 14 Coin. Bench R., N. S., 398). The same doctrine is generally held to obtain by the American! courts. The Supreme Judicial Court of Massachusetts in one case held that a deed of land " bounded on " a private way lead- ing over other land of the grantor to his own dwelling-house jDassed the fee in the land under the way to its center. The court said : " The rule is well settled in this commonwealth, that a deed of land bounded on a highway laid out over land of the grantor passes the fee to the center of the way, when there is nothing in the deed to require the opposite construction. A majority of the court are of the opinion that the same rule extends to private ways " (Fisher v. Smith, 9 Gray's R., iU, 44:4). And the same learned court has approved the principle in subsequent cases (Vide Citij of Boston V. Richardson, 13 Allen! s R., 146, 154 ; Jamaica Pond Aqueduct, 9 ih., 159 ; Winslow v. King, 14 Graifs R., 320). The Supreme Court of the State of Maine, however, has held in one case, that where the proprietor of land grants the right of a private way across it, of a specified direction and width, and after- ward conveys the land on one side of such way, bounding it by the line of the way, tlie grantor of such land takes- no fee in any part of the strip of land covered by the right of way, and further, that by virtue of his deed, the grantee takes in such strip no ease- ment, or right of way by necessity {The State v. Clements, 32; Maine R., 279). But this is contrary, certainly, to the English and Massachusetts decisions ; and the better opinion is that the- presumption that the owner of land by the side of a way owns 15 J. I 4 LAW OF BOUNDARIES. the fee to the middle, should be applied equally to public and pri- vate ways. There can be no good reason why the rule should be ap[)lied to a public, and not to a private way. So that it may be athrmed as a rule of law that the presumption in all cases is, that the soil of a public or private way belongs in equal moieties to the owners of the land on either side. It is a rule introduced for convenience, that there may not be perpetual disputes about triflee? and it is as pertinent in the case of a private as a public way. Where waste lands adjoin a public highway, the presumption of law is that such waste lands and the soil of the highway itself ad medium filum vice belong to the adjoining owners ; but so far ,as waste lands are concerned, the doctrine is of comparatively lit- tle importance in this country, and in England the rule prevails only between the lord and the copyholders and tenants of a manor, or between the grantor and the grantee of an estate. It has no application to the case of persons who claim under the same grantor. And where the lord of a manor had conveyed land to A. and afterward other land to B., and it appeared that a narrow strip of land passed by one or other of the conveyances, but it was doubtful by which, the court held that no presumption arose in favor of A., from the fact that the strip of ground lay between a highway and land wliich was indisputably comprised in A.'s con- veyance ( White V. Hill, 6 Queen's Beiich R., 487 ; and vide Mar- quis of Salisbury V. Great Northern Railway Company, 5 Com. Bench R., N. S., 174). The presumption referred to may be rebutted by evidence show- ing that the ownership of the highway and waste lands is in the lord of the manor, or some other proprietor. Said, Tindal, Ch. J. : " The point to be ascertained is, whether the grantee of the lord inclosed to the edge of his grant, or left an interval between his inclosure and the boundary line of his property. If he inclosed less than the whole extent of his grant, and left an interval, the spot in dispute belongs to the copyholder ; if he inclosed to the extent of his grant, the interval in question belongs to the lord. The legal presumption is in favor of the grantees of the adjoining land, and where the lord claims the interval, he is obliged to show acts of ownership in support of his claim" {Doe v. Kemp, 7 Ring. R., 335). Acts of ownership, exercised not only over the spot in dispute but over other parts of the waste lands of the manor, are a-eceiveable in evidence in support of the lord's rights, if the parts LAXDS Oy ROADS AND STREETS. 115 ^n dispute and the parts over which the acts of ownership have been exercised are so situated that they may fairly be considered as parts of one waste or common (F^W^ Doe v. Eampson, 4 Com. Bench i?., 267 ; Tyrrwhitt v. Wynne, 2 Barn. & Ad. B., 554 ; JloUis V. Goldfinch, 1 Barn. & Cres. B., 205; Wild v. Bolt, 9 Ilees. & Welsh. B., 672 ; Taylor v. Bany; 1 Ilamitng^ & Granger's B., 605). But wliere it is uncertain whether an ancient grant included a piece of waste land between the fence and the road, the English Court of Common Pleas held that evidence of user'l)y the grantee and those claiming under him will be allowed to outweigh^the presumption in favor of the lord, arising from acts of ownership by him on other parts of the wastes of the manor similarly situated {Simpson v. Bendy, 8 Com. Bench B., N. S., 433). , ^ , The origin of these strips of waste land between highroads and inclosures^and the presumption of law as to their being part of the adjoining property, is thus stated by Lord Chief Justice Abbott: "In remote and ancient times, when roads were fre- quently made through uninclosed lands, and they were not formed with that exactness which the exigencies of society now require, it xvas part of the law that the public, where the road was out of repair, might pass along the land by the side of the road. This right on the part of the public was attended with this consequence, that althoucdi the parishioners were bound to the repair of the road, yet, if^an owner excluded the public from using the adjoimng land, he cast upon himself the onus of repairing the road. It the same person was the owner of the land on both sides, and mclosed both sides, he was bound to repair the whole of the road; if he inclosed on one side only, the other being left open, he was bound to repair to the middle of the road; and where there was an ancient inclosure on one side, and the owner of lands inclosed on the other, he was bound to repair the whole. Hence it followed as a natural consequence, that when a person inclosed his land from the road he did not make his fence close to the road, but lett an open space at the side of the road, to be used by the public when occasion required. This appears to be the most natural and satisfactory mode of explaining the frequency of wastes left at the sides of the roads; the object was to leave a sufficiency ol land by the side of a road when it was out of repair" {Steel v. PickeU; 2 StarUeh B., 469). 116 LAW OF BOUNDARIES. Balks are strips of land lying between the lands of private pro- prietors, and are commonly used for turning the plough. Until recently it was supposed that there was no presumption of law that these strips of land belong to the owners on either side. This was so declared by Taunton, J., in one case before the Eng- lish courts {Godmandiester v. Phillips, 4 Adoljph. cfe Ellis R., 560). But the English Court of Common Pleas has recently held that the ordinary presumption is that strips of land lying along a highway, even though indirectly connected with parts of the waste, belong to the owner of the adjacent inclosed land, between which and the actual beaten road they lie, and not to the lord of the manor, especially if the adjacent owner has done acts of ownership without interruption upon the land. It was said that such strips of land might well pass under a conveyance of the adjacent inclosure, though the deed purported to state the quantity of acres, within the fences, that were therein passed, if it had the words " more or less" added {Bendy v. Sim2)son, 10 J. Scott's i?., N. S., 883 ; S. C, 100 Mig. C. L. E., 883). By the civil law a vacant space, called 7nethoria or limitare iter, was ordered to be left between the boundaries of adjoining proprietors. The property in those vacant spaces was in the public ; conse- quently they could not be made the subject of commerce, and were incapable of becoming the property of private individuals ( Vide Colquliouvb s Summary, § 2179). The law is well settled, both in this country and in England, that, if a person — who incloses his land up to a highway, so as to deprive the public of their right of traveling on the adjoining strips of waste land where the road itself is not fit for use — neg- lects to keep the road in repair, passengers may make gaps in the hedges and trespass on his property, so long as they do not ride farther into it than is needful for avoiding the bad way {Heron^s Case, Sir W. Jones, 297; Dunoonibe's Case, 1 Hollers Ahr., 390). In a case before the present Supreme Court of the State of New York it was held that a person traveling on a public highway, which has become founderous and impassable, has a right to remove enough of the fences in the adjoining close to enable him to pass around the obstructions, doing no unnecessary injury; but that he becomes a trespasser if he tears away other fences, and tramples down the herbage in other parts of the close ( Williams V. Saford, 7 Barh. 12., 309). PROPERTY IX PARTY WALLS. 117 But the grantee of a^xn'vaie way, which has become founderons and impassable, caimot, witliout being a trespasser, go in the adjoining close, and thus pass around the obstruction. There are some cases which give countenance to the opinion that the rule, in this respect, is the same in the case of a private as of a public way. This opinion was intimated by Blackstone in his Commen- taries, edition of 1765, and by Chief Baron Comyn in his Digest, title Chemin, D. C. But the authorities cited in support of the opinion do not warrant it; for they all seem to relate to 2JuUic ways only (1 Saunders, 322, a, note 3). The principle, however, does not apply in the case of a private road, because the person using the way ought himself to keep it in repair, and because the grantor of the way gives the grantee a right only over a particular liue of road, and gives him no liberty to break out of it over the whole surface of his close. This has been held in an early case in England, with respect to private ways rendered impassable by the overflow of a river {Taylor v. Whitehead, 2 Doug. R., 749). And the same principle was again asserted in a later English case, in which Lord Ellenborough remarks that the plaintiff has no right to break out of the road and go at random over the whole surface of the close {Bullard v. Harrison, 4 2Iaule & Selwyn^s E., 3S7, 392). The same principle, in respect to private ways, has been recognized, also, by the courts of this country ( Vide IMiaes v. Seeley, 19 Wend. R., 507; Williams v. Safford, 7 Barl. R., 309). Independent of any statutory enactment, where two proprietors are separated by a ditch or a wall, and the owner on one side con- veys his land bounding the grantee on the ditch or wall, the grant is presumed, till the contrary is shown, to extend to the center of the ditch or wall, the same as in the case of land conveyed, bounded on an unnavigable river or highway. In a case decided by the Supreme Court of Connecticut it appeared that a party, having made a ditch six feet wide through his land, conveyed a part of it, bounding the grantee on the ditch ; and the court held that the grant extended to the middle of the ditch ( Warner v. Soutlcworth, 6 Conn. R., 471). The property in a party wall, erected at the joint expense of two proprietors, insures the property of the land on which it stands where the quantity of land contributed by each party is known. There is no transfer of property, but the parties are severally owners of their respective lands as before ; and each, foi 118 LAW OF BOUNDARIES. any injury to the portion of the wall standing on his own soil, has the ordinary remedy {JTatts v. IlawMns, 5 Taunton^ s 12., 20). So tlie presumption, in case of boundary on party walls, is that the wall and the land upon which it stands belong in common to the (5wners of the adjoining premises {Oiilitt v. Porter, 8 Barn. <& Cres. JR., 257). And where a party conveys land, bounding it in the conveyance upon a wall, the presumption is that the grantee takes to the center of the wall {City of Boston v. Richardson, 13 Allen's R., 146, 155). CHAPTEPw X. EULES FOE THE CONSTRUCTION OF GRANTS IN RESPECTT TO BOUNDARY PRINCIPLES GOVERNING THE DESCRIPTIVE LANGUAGE OF DEEDS OF REAL ESTATE THE AIDS AVHICH MAY BE RESORTED TO IN THE CON- STRUCTION OF CONVEYANCES OF LAND. There are some general rules given for the construction of grants of real property which are important to understand. In a late and well-considered case before the Supreme Judicial Court of Massachusetts, the general rule of construction of conveyances of land were thus stated : " Whenever land is described as bounded by other land, or by a building or structure, the name of which, according to its legal and ordinary meaning, includes the title in the land of whicli it has been made a part, as a house, a wall, a whai-f or the like, the side of the land or structure refen-ed to as a boundaiy is the limit of the grant ; but where the boundary line is simply by an object, whether natui*al or artificial, tlie name of Avhich is used in ordinary speech as defining a boundary, and not as describing a title in fee, and which does not in its description or nature include the earth as far down as the grantor owns, and yet whicli has width, as in the case of a way, a river, a ditch, a wall, a fence, a tree or a stake, the center of the thing so running over or standing on the land is the line of boundary of tlie lot granted" {City of Boston v. Richardson, 12> Allen^s R., l-H, 157). This statement presents the general doctrine with terseness and point, and it is well sustained by the authorities. Another rule upon the subject is that words in an instrument of grant, as elsewhere, are to be taken in the sense which the com- CONSTRUCTION OF GRA^TS. 119 mon usagp of mankind has applied to them. If lands granted are described as bounded by a house, no one can suppose the house included in the grant; but if the land granted is described as bounded by a highway, it would be equally absurd to suppose that the grantor has reserved to himself the right to the soil ad medhun jilum^ in the far greater majority of cases wholly unpro- fitable. This last is the illustration given by Coleridge, J., in an important English case; and it is in accordance with judicial opinions {Lord v. The Gominissioners of Sidney, 12 Moore P. C. 6^ 473, 497; vide, also, In re Belfast Dock Act, 1 Irish Eq. li., 128, 140 ; 2 Washburn on Heal Property, 638). Again, in construing conveyances of land, effect is to be given to every part of the description, if practicable ; but, if the thing intended to be granted appears clearly and satisfactorily from any part of the description, and other circumstances of description are mentioned which are not applicable to that thing, the grant will not be defeated ; but those circumstances will be rejected as false or mistaken {Jackson v. Clark, 7 Johns. P., 217 ; Jackson v. Loomis, 18 ih., 81 ; Emerson v. White, 9 Foster's P., 482). And what is most material and 7nost certain in a description shall pre- vail over that which is less material and less certain. Thus, course and distance shall yield to natural and ascertained objects ; as a river, a stream, a spring or a marked tree. Indeed, it seems to be a universal rule that course and distance must yield to natural, visible and ascertained objects {Newton v. Prior, 7 Wheat. P., 10; Preston v. Bowman, 6 ib., 582; Patten v. Stitt, 6 Poh. P., 631 ; Jackson v. Camp, 1 Cow. P., 605 ; Doe v. Thompson, 5 ih., 371; Jackson \. Moore, 6 ih., 706). And a t^ilse or mis- taken particular in a conveyance may be rejected, when there are definite and certain particulars sufficient to locate the grant. But, 'prima facie, a fixed, visible monument can never be rejected as false or mistaken in favor of mere course and distance, as the starting point, when there is nothing else in the terms of the grant to control and override the fixed and visible call. The general rule that courses and distances must yield to natural or artificial monuments or objects is upon the legal presumption that all grants and conveyances are made with reference to an actual view of the premises by the parties thereto {Raynor v. Timerson, 46 Barh. P., 518 ; vide Harvey v. Mitchell, 11 Foster's P., 575 Smith V. Chatham, 14 Tex. P., 322). AYhenever, in the descrip 120 LAW OF BOUXDARIES. tion of land conveyed by deed, known monnments are referred to as boundaries, they must govern, although neither courses nor dis- tances nor the computed contents correspond with such bounda- ries. This has lono; been reo-arded as one of the fundamental rules in the construction of deeds. It is not, however, inflexible ; but, like other rules of law, it must sometimes yield to exceptions. Said the court, in one case, the only reason given, or which can be given, why monuments are to control the courses and distances in a deed is that the former are less liable to mistakes {Davis v. Rains- ford, 17 Mass. JR., 210). The reason elsewhere assigned for the rule is, that parties are presumed to have contracted with I'eference to an actual view of the premises. But this presuinption of law, that, in the conveyance of real estate, the parties contract with reference to the visible physical condition of the property at the time, may be repelled by actual knowledge, on the part of the contracting parties, of facts which negative any deduction to be drawn from the apparent condition. Upon proof of such knov^- ledge, they are presumed to have contracted not solely with refer- ence to the condition of the property, as it would have been pre- sented to a stranger, but as it was known to be by the parties {Simmons v. Cloorum, 47 JSF. Y. li., 3 ; and vide Curtiss v, Ayraxdt, ih., 73). And where the grammatical sense of words is not in harmony with the obvious intention of the parties, the courts do not hesitate to substitute one word for another, for the purpose of giving effect to such intention. A grammatical con- struction must never be allowed to interfere with the intention of an instrument {The Long Island Railroad Company v. Conklin, 32 Barh. 7?., 381 ; Hancock v. Wilsm, 18 Cal. R., 137). But punctuation will be resorted to to settle the meaning of an instru- ment after all other means fail ; although punctuation is a most fallible standard to interpret a writing, and should not be resorted to until all other means fail. The court will fii'st take the instru- ment by its four corners, in order to ascertain its true meaning ; and if that is apparent on judicially inspecting it the punctuation will not be suffered to change it {Erving v. Burnet, 11 Peters'' R., 41). Again, a grant is to be taken most strongly against the grantor; and whei'e a deed may inure in different wa3^s, the grantee is enti- tled to his election which way to take it {Patten v. Stitt, 6 Roh. R. 431 ; Iliddleton v. Pritchard, 1 Scam. R., 510 ; Cocheco Co. v Whittier, 10 A^. H. R., 305 ; I)u?in v. English, 3 Zalr. R., 126). CONSTRUCTION OF GRANTS. 121 Again, it is a cardinal rule in the construction of conveyances ol land, as well as of contracts, that the intention of the parties is to be inquired into, and, if not forbidden by law, is to be effectuated. And a deed will always be expounded so as to give eflect to the intent of the parties {Jackson v. Beach, 1 Johns. Cases, 399 ; Jackson V. Myers, 3 Johns. R., 388). The object of construction is to ascertain the intent of the parties, and when this intent is discovered it governs, unless the language employed renders it impossible to give it effect ( Wolfe v. Scar^horough, 2 Ohio R., N. S., 361). And in the construction of deeds, the cardinal rule is to arrive, if possible, at the true intent and meaning of the grantor, from a fair consideration of the whole instrument, and then to give effect to that intention, if it can be done witliout vio- lating any rule of law; and if the instrument bears upon its face evidence that it was written by a person unskilled in legal techni- calities, a much greater latitude of construction is indulged than when it is formal and technical, and appears to have been drawn by a skillful draftsman {Ilamner v. Smith, 22 Ala. R., 433). But the intention of the parties to a deed is to be accomplished, unless there are expressions in the conveyance which positively forbid it {Peyton v. Ayres, 2 Md. Ch. R., 64). The intent, where apparent and not repugnant to any rule of law, will control technical terms ; for the intent, not the words, is the essence of every agreement. In the exposition of deeds, the construction must be upon the view and comparison of the whole instrument, and with a view to give every part of it meaning and effect {Calkins v. Lavelle, 44 Yt. R., 230). The rule of construction is well settled, that every M'ord in the instrument is to have its effect, if an effect can be given to it not inconsistent with the general intent of the whole instrument, when taken together, and no word is to be rejected uidess there cannot be a rational construction given to the instru- ment with the words as they are found {Churchill v. Reamer, 8 BusJiS R., 256). Too much regard is not to be had 'to the proper and exact signification of words and sentences, so as to prevent the simple intention of the parties from taking effect. And whenever the language used is susceptible of more than one inter- pretation, the courts will look at the surrounding cirenmstancea existing when the contract was entered into, the situation of the parties, and of the sul)jcct-matter of the instrument. To this exter.tj at least, the well-settled rule is, that extraneous evidence 16 122 LAW OF BOUNDARIES. is admissible to aid in the construction of written contracts ( Wil- son T. Tronjy, 2 Coio. 7?., 195, 228 ; ParTdiurst v. Smith, Willes. It., 332 ; Bradley v. The Washington, Alex, and Geo. S. P. Co., 13 Peters' R., 89 ; Gibson v. Tyson, 5 Watts R., 31). A deed must, however, receive its legal construction according to its language and subject-matter {JaeJcson v. Tibhitts, 9 Cow. R., 2-41 ; and vide Gihsonv. Bogy, 28 J/o. R., 478). But where a descrip- tion is employed in a deed, which has not, by statute, usage or judicial decision, acquired a fixed legal construction, or a boundary is referred to which is fluctuating and variable, other means must be resorted to in order to ascertain the meaning and construction of the deed. For example, the word " pond " used in a deed as a description is indefinite. It may mean a natural pond, or an arti- ficial pond raised for mill purposes, either permanent or temporary, and in both cases the limits of such body of water may vary at different times and seasons, by use, or by natural causes, and where the one or t]ie other is adopted as a descriptive limit or boundary, a different rule of construction may apply. A large natural pond may have a definite low-water line, and then it would seem to be the most natural construction, and one which would be most likely to carry into effect the intent of the parties, doubtless, to hold that land bounded upon such a pond would extend to low-water line, it being presumed that it is intended to give to the grantee the benefit of the water, whatever it may be, which he could not have upon any other construction. And where an artificial pond is raised, by a dam swelling a stream over its banks, it would be natural to presume that a grant of land bounded upon such a pond would extend to the thread of the stream upon which, it is raised, unless the pond had been so long kept up as to become permanent, and to have acquired another well-defined boundary. So where such an object is used as a boundary in a deed, accord- ing to a M'ell-established rule of evidence, it is competent to resort to parol proof, showing all the circumstances from which a legal inference can be drawn that one or other line was intended by the ambiguous description used in the deed. The court may be aided in giving construction to the deed by resorting to means out- side of the conveyance itself. Usage cannot be admitted to vary or contradict a deed. But if tlie words of the deed are of uncertain meaning, usage is proper to explain them. Deeds are to be expounded by their terms where COXSTRUCTION OF GRANTS. 123 there is no ambiguity, and neither parol evidence nor usage can be admitted to vary or contradict a written instrument. But if the words used in a deed are equivocal, evidence of usage ouglit to be admitted as the best expositor of the intention of the parties. Of course, if the words are clear and precise, leaving no doubt of the intention of the parties, usage will not aid in the exposition, and ought not to be admitted ( Vide Livingston v. TenJjroeck^ 16 Johns. R., 23 ; Parsons v. Miller, 15 Wend. B., 561), After ascertaining the existing state of things at the time of its execu- tion, the deed must be left to speak for itself {Swiek v. Sears, 1 JlilVs R., 17). And the construction ought to be made on the entire deed, not on any particular part of it ; and such construc- tion should be given that, if possible, every part of the deed may be operative. If a deed, however, cannot operate in the manner intended by the parties, such a construction should be given, tluit it may operate in some other manner {Jackson v. Blodgett, 16 Johns, R., 172). If a general clause be followed by special words, which accord with the general clause, the rule is, that the deed shall be construed according to the special matter {Mwiro v. Allaire, 2 Gaiii's R., 320). But when parts of a particular descrip- tion of land are repugnant, a general description following may be resorted to, and of the conflicting parts of the particular description, that is to be rejected whicli does not concur witli tlie general description {Peaslee v. Gee, 19 JV. H. R., 273). AVhere subsequent words in a deed are of doubtful import, they will not be so construed as to contradict preceding words which are cer- tain. Indeed, as has been before affirmed, in the construction of deeds, if there are two clauses which are inconsistent with eaeli other, the last must give way to tlie first {Petty v. Boothe, Vb Ala. R., 633 ; Tulhs v. Gatewood, 26 Ark. R., 128). But, if the first part of the description in a deed is complete in itself, but further matter of description is added which modifies or controls what precedes it, the latter part is not to be rejected as repugnant ; but the whole language of the deed is to be construed together, if it may be, in order to ascertain the true construction. But where all other means of ascertaining the true construction of a deed fail, and a doubt still remains, that construction must prevail which is the most favorable to the grantee {Clough v. Bowman, 15 N. II. R., 504 ; and vide Mills v. Catlin, 22 Vt. R., 98 ; Foy V. Neal, 2 Strohh. R., 156). And a construction which requires 124 LAW OF BOUNDARIES. that an entire clause of a deed should be rejected, will be adopted only from unavoidable necessity {Citi/ of Alton v. Illinois Trans- formation Company, 12 111. 7?., 38). And it is another rule of construction, that wb.ere the words of a ^rant are ambiguous, the courts will call in aid the acts done under it, as a clue to the inten- tion of the parties. Said Lord EUenborough, Cli. J., in giving his opinion in a case before the English Court of King's Bench: " However formal the words of the ancient deeds may be, they are to be construed, as Lord Coke says, by evidence of the man- ner in which the thing has been always possessed and used" {Weld V. Ilornhy, 7 Fast R., 195 ; arid vide Doe v. Rice, 8 Bing. R., 181 ; Winnijnsseogee, etc., Co. v. Perley, 46 N. H. R., 83 ; Liv- ingston V. Ten Broeck, 16 Johns. 7?., 22). Where a deed does not contain any certain description, but there is a description by circumstances, and all the circumstances may be essential to dis- tinguish the lands intended to be granted, the law requires all the circumstances to l»e proved, and will not suffer any lands to pass except those that fall within the terms of the deed {Bell v. Wood- ward, 46 iT. Id. R., 315). And it is well settled that, in the con- struction of a deed, it is competent for the court to inquire into the intent of the parties ; and in determining such intent, when necessary, to look at their acts under the deed {Mulford v. Le Franc, 26 Cal. R., 88). Particularly when a deed, conveying land, is of doubtful construction as to the boundaries, the con- struction given by the parties themselves, as shown by their acts and admissions, is deemed to be the true one, unless the contrary be clearly shown {Storie v. Clark, 1 Jlet. R., 378). And where the construction of a deed, as to the boundaries, is doubtful, the occupation of the land by the grantee to what he supposed to be the dividing line between his own land and that adjoining, with- out objection from such adjoining proprietor, has been held to be presumptive evidence of the true place of the line {French v. Pearce, 8 Conn. R., 439). As a general rule, \owever, deeds must interpret themselves without reference to che acts of the parties. Their acts themselves do not aid the construction, nor is a party bound by his own construction {JIutchins v. Dixon, 11 Md. R., 29). Another well-settled rule in the construction of deeds is that, where certain monuments are referred to in a description, which do not exist at the time, and afterward the ]3arties, in good faith COXSTRUCTIOX OF GRAXTS. 125 and by mutual agreement, put np monuments as and for those intended in the description, such monuments will be deemed the monuments intended in the description. And this placing of monuments and the consent and agreement of the parties in rela- tion thereto may be proved by parol. This is suggested by Sliaw, Ch. J., in a case in the Supreme Judicial Court of Massachusetts, to illustrate the rule referred to ( Waterman v. Johnson, 13 Pick. i?., 261, 267; and vide Makepeace v. Bancroft, 12 Mass. R., 469). The question whether any grant extends to the side line or the center line of a highway or water-course is, doubtless, according to the statement made by Chief Justice Shaw, in Web- ber V. Eastern llailroad (2 Metcalf, 151), and approved by the Supreme Judicial Court of Massachusetts in Codman v. Eoans (1 Allen, 446), "a question of construction in each particular case, and depends, as in all cases, upon the intent of the parties, as expressed in the descriptive parts of the conveyance, and by the localities and subject-matter to which it applies." The owner of land by the side of a highway, and under it to the center thereof, may, of course, by using apt words, limit his grant to the edge of the road, and retain his title in the fee of the soil over which the highway runs. But in the absence of words clearly manifesting, an intent so to do, the law presumes, as was argued in a case here- inbefore referred to, that he did not intend to reserve the title in a strip of land not capable of any substantial or beneficial use by him, after having parted with the land by the side of it, while the highway remains, nor, ordinarily, of any considerable value to him if tlie way should be discontinued, and the ownership of wdiich by him might greatly embarrass the use or disposal, by his grantee, of the lot granted. Hence, where general terms are used in the description in a deed, the court will construe such general terms in accordance with the rule definitely established ; and, accord- ingly, if the conveyance bounds the land upon a highway or water- course, in general terms, the premises conveyed are presumptively extended by legal operation to the center of the highway, or the thread of the water-course or unnavigable river. This is in accord- ance with well-settled authority. The owner of land on each side of a road, or stream of water not navigable, \&, prima facie, pre- sumed to own to the center, subject to the public right of way. This has been shown in a previous chapter ; and, in the construc- tion of deeds, the general rule in this regard is that, where a deed 126 LAW OF BOUNDARIES. or grant of land is bounded oti a highway, or runs alo7ig a high- way, or where the boundary line runs to a highway, it conveys the land to the center of the road, unless there be decided and con trolling words or specific description, to show the contrary intent. Where the boundary given in a deed has physical extent, as a road, lane, street, fence, creek or nnnavigable river, the grantee presumptively takes to the center of the object so given. This is the general rule or princii^le of construction applied to conveyan- ces {Jackson V. Ilathaioay, 15 Johns. H., 447). The decisions have carried the doctrine so far as to hold that a description which runs to the hank of a creek, and thence along the hank of such creek, carries the grant to the center of the creek. But where the description is expressly limited to the hank^ or where it runs along the side of a road, the grant is held to be restricted, and not to include the land to the center of the road or of the stream. No principles appear to be better settled than these, especially as applicable to country lands; and the Superior Court of the city of New York decided, years ago, that the rule of construction as to the extent to which a grant of land, bounded on a road or creek, carries the rights of the grantee, in respect of the adjacent ground within the road or the creek, applies equally to city lots and to farms in the country {Ilamraond v. McLachlan, 1 Sand. R., 323). And the same general doctrine has been recog- nized by the New York Court of Appeals in a case in which the doctrine of the Superior Court was referred to and impli- edly approved {Sherman v. McKeon, 38 JSf. Y. B., 266, 271). And the Supreme Court of Minnesota has recently declared that it is a rule of public policy, not to be departed from unless the intention of the parties to the contrary is expressed in the most unmistakable language, that a deed of a lot bounded by a street conveys the fee to the center of the street {Mankato v. Willard, 13 Minn. Ii., 13). And to the same effect is the doctrine of a late case decided by the Supreme Judicial Court of Massachusetts, in which it was held that a deed bounding land generally by a highway, with no restrictive or controlling words, conveys the grantor's title in the land to the middle of the highway {Boston V. Eichardson, 13 Alleyi's B., 146 ; and vide Glasby v. Morris, 3 Green's JV. J. i?., 72). Reference may also be made to a late ease decided by the Supreme Court of Wisconsin, in which it was said that, if a highway or river is named in a deed as a boundai-y COXSTRUCTIOX OF GRANTS. 127 of land conveyed, tlie center of such highway or river is to bo understood, unless there are express words limiting the boundary to the bank of the river or the side of the highway ; and wdiere there is a known and well ascertained place of beginning in the description in a deed, that must govern, and the grant must be conlined within the boundaries given {Gove v. White, 20 Wis. li., 425). It has been held by the Supreme Court of Vermont that if the language of a deed, describing land conveyed bounded upon a highway, leaves it doubtful whether the grantor intended the line to be in the center or on the side of the highway, the boundary will be construed to be the center of the road. And the doctrine w-as in terms laid down, that where land is bounded " upon," " on " or "along" a highway, the presumption is that the line extends to the middle of the highway {Marsh v. Burt, 34 Vt. B., 289). And the courts of New York hold to the doctrine, that a convey- ance bounding premises generally on a street, or highway, or stream of water not navigable, carries the fee to the center of the street or stream {People v. Law, S-t Barb. R., 494 ; Wetrn.ore v. Law, lb., 515; Dunhara v. Williams, 36 ib., 136-; /Seneca v. Enight, 23 N. Y. E., 498). Indeed, it has been held by high authority that where land is sold bordering on a highway, the mere fact that it is not so described in the deed will not vary the construction. The grantee takes the fee to the middle of the high- way, on the line of which the land is situated {Gear v. Barnum, 37 Conn. R., 229 : Stark v. Cojjin, 105 Mass. R., 328 ; Llawesmlle V, Lander, 8 Bush's R., 679). But this doctrine, perhaps, has but little to do with the construction to be given to a grant or convey- ance. It is not a rule for settling the true construction of a deed. When a man presents his deed, ordinarily the law nuikes no pre- sumption concerning his title ; he holds by force of his grant ; he goes to the limit which that prescribes, and by that limit he is bounded. If there is anything equivocal in the language of the grant, the courts declare its interpretation. But if the parties have used plain and explicit language — if they have fixed a boundary which no man can mistake — courts have nothing to say about it ; construction in that case has no office to perform, and the law makes no intendment. It may be regarded as a misap- plication of the rule of law concerning highways and unnavigable streams to say that it has anything to do with the construction of a deed, or by way of fixing the boundaries of a grant. The pre* 128 LAW OF BOUNDARIES. sumption in favor of riparian owners, and the owners of lands adjoinini^ a highway, is only indulged in the absence of any direct evidence of the boundary ; it is never used for the purpose of enlarging, qualifying or in any manner affecting the written muni- ments of title, or the limits which they prescribe. And yet it seems pertinent to refer to the presumptions of law in these cases, in connection with the consideration of the rules of construction of grants in respect to boundary of lands conveyed. It is an old maxim that " the scope and end of every matter is principally to be considered ; and if the scope and end of the matter be satis- fied, then is the matter itself and the intent thereof also accom- plished." According to Lord Hobart, " the law, being to judge of an act, deed or bargain, consisting of divers focts, containing the will and intent of tlie parties, all tending to one end, doth judge the whole, and gives evevj part his office to make up that intent, and doth not break the words in pieces" {Clanrichard v. Sidney, Hoharfs 7?., 273, 275). The intent of tlie parties to a deed is to govern the question of boundary, as before suggested ; and it is the duty of the court, when called upon to give construction to a deed, to find by established rules what was the fair, natural and proba- ble intent of the parties to the document. For this purpose, the language employed in the conveyance is first to be resorted to. If the words employed are free from ambiguity and doubt, and express plainly and distinctly the intent according to the most natural import of the language, there is no occasion to look else- where. But where the meaning of words is doubtful, or where it is seen the same words have diflerent meanings, when employed nnder different circumstances or to effect different objects, resort may be had to extrinsic circumstances ; and the courts may seek for that intent in every legitimate way ( Vide Long v. Wagcner, 47 Mo. R., 178). Another rule of construction may be here referred to, viz., that a clear general description of the premises in a deed is not con- trolled by any subsequent expressions of doubtful import in respect to certain particulars {Ela v. Card., 3 N. II. li., 175). But words of general description in a deed are controlled and rendered cer- tain by the particular description of the premises, which the deed purports to convey {Smith v. Stro^ig., 14 Pick. R., 128 ; Barnard V. Martin., 5 N. H. R., 530). If the descriptive words of a deed are wholly without ambiguity, and are followed by a clause repug- CONSTRUCTION OF GRANTS. 129 nant, this second clause must be rejected {Catler v. Tufts., 3 Pick. i?., 272). On the same principle, courses laid down in a deed which are regugnant to the remainder of the description may be rejected, if the remainder contains sufficient that is intelligible and consistent to uphold the deed according to the evident inten- tion of the parties {Beat v. Garden, 55 Maim R., 482 ; Johnson V. Simjjson, 36 iV^. //. B ., 91 ; Reed v. Sjncer, 27 Cat. R., 57). And where several particulars descriptive of the land conveyed by a deed are named therein, some of which are false, if the true are sufficient to designate the land, the false will be rejected {AhoU V. AhoU, 53 Maine R., 356). So, also, if the description of the boundaries in a deed of land equally admits of two con- structions, one of which would make the quantity of land con- veyed agree with that mentioned in the deed, while the other would make the quantity conveyed largely exceed that mentioned in tlie deed, the former construction must prevail {Herrick v. Sixby, Law R., 1 P. C, 430). Where a conveyance contains a. general description of the property, which is definite and cer- tain in itself, and is followed by a particular description, the latter will not limit the grant which is clear by the former. Bat where the general description is indefinite and uncertain, and reference to the particular description must be had to ascertain with cer- tainty the subject of the grant, the whole language must be taken together, and if upon the whole instrument there is sufficient to manifest the intention of the parties with reasonable certainty, that will suffice {Barney v. Miller, 18 loioa R., 460 ; a7id vide Myers v. Ladd, 26 III. R., 415). And general words in a deed,, descriptive of the land conveyed, will not be restrained by restric- tive words, added ex majore cantela, or by affirmative words more restrictive, which have no tendency to make a general description ambiguous and uncertain {Bott v. Burnell, 11 Mass. R., 163). If two clauses in a deed stand in irreconcilable contradiction to each other, the first clause will prevail, and the latter be regarded as- inoperative ; and the law will construe that part of a deed to pre- cede which ought to take precedence, in whatever part of the instrument it may in fact be {Doe v. Porter, 3 Pile's R., IS ; vide- Tucker v. Meeks, 2 Sweeney's R., 736). It is a sound rule, in the construction of a deed, that a perfect description, which fully ascertains the corpus, is not to be defeated] by the addition of a further and false description. But the court 17 130 LAW OF BOUXDARIES. has no right to strike out one part of the description more than another, unless the part retained completely fits the subject claimed, and the rejected part does not ; and unless, further, it appear that the whole description, including the part sought to be rejected, is applicable to no other thing. It must be shown, at least to the degree of moral probability, that there is no cotjus that will answer the description in every particular {Mayo \. Blount, 1 IredelVs B., 283), Where a general description of the land intended to be conveyed is given in a deed, and also the particular boundaries, the latter are to govern {Thovnd'ike v. liichards, 1 Shej)lei/s E., 430 ; Woodman v. Lane, 7 N. II. R., 241). And general words in a deed are never restrained by restrictive w^ords added, when such words do not clearly indicate the intention and designate the grant {Field v. Huston, 8 Shej?. 12., 69). If the description in a deed be so vague and contradictory that it cannot be ascertained what is meant, the deed is void. But different descriptions will be reconciled, if possible ; or, if irreii'.ediable, yet if one of them point out the thing intended, a false or mistaken reference to another particu- lar will not avoid it {Proctor v. Pool, 4 Dev. P., 370 ; vide Camp- hell V. Johnson, 44 Mo. P., 240). When there is a sufficient description of premises set forth in a deed, by giving the particular name of a close or otherwise, a flilse demonstration may be rejected ; but if premises be desci'ibed in general terms, and a particular description be added, the latter controls the former {MaT^epeace v. Bancroft, 12 Mass. P., 469 ; 1 Greenleafs Ev., 301). AVhere there are two descriptions in a deed, one of which is correct and complete in itself, and the other, which is subordi- nate, is not so, the latter will be rejected as surplusage {Myers v. Ladd, 26 III. P., 415). And later words in a deed, which contra- dict the previous, are to be rejected, if they cannot be reconciled with the obvious intent of the instrument {Havens v. Dale, 18 Cal. P., 359). When a deed contains two conflicting descriptions of the granted premises, of equal authority, it seems that the one the more favorable to the grantee will be adopted ( Vance v. Fore, 54 Cal. P., 435). So a deed poll, ambiguous in its terms, in the absence of^any other mode of ascertaining the intent of the party executing it, is to be taken most strongly against the party execu- i:ing it {Beeson v. Patterson, 36 Penn. P., 24). But when there are contradictory descriptions given of a thing, that description CONSTRUCTION OF GRANTS. lai ;vill be adopted which, in its nature, is least liable to be erroneous [2mer V. Cheney, 3 Jones^ Eq. R. 24). If the language ot the instrument is susceptible of more than one construction, the intent of the parties to be collected from the whole instniment must govern ; and, in order to ascertain that intent, the court may take ?uto consideration the extrinsic circumstances authorizing the trans- action, the situation of the parties, and the subject-matter ot the instrument. This is the estabhshed rule of the common^ law and, in respect to conveyances of real estate in the State of TSew \ovk has been declared by statute {French v. Carhari, 1 N. J. A., K-)- The rule that a grant is to be construed most favorably tor the grantee, is inapplicable where the State is grantor ; and it has been held at least in one case, that the rule is also inapplicable where the cn-antor is a corporation holding a street for public purposes, and disposing of the adjacent lots for private nse, and that in such case the boundary of the private property by that held lor public purposes, will be the dividing line between the two, the same as when one lot is bounded by another {Wetmore v. Story, 2'> Barh R 414). When one deed refers to a description m another deed, the description in the second deed becomes a part of the first ( Vance v. Fore, 24 Cal. R., 435 ; and mde Wildman v. Taylor, 4 BenMicfs R., 42). Words indicating quantity in the descriptive part of a deed, when conflicting with words of more accurate description, yield. Quantity is regarded as the least certain mode of describing land, and hence must yield to description by boundaries and distances But still, words indicating quantity are to be regarded as part of the description, and are not qualified by this_ addition of the woi-ds -more or less " {Pierce v. Fanner, 37 Maine R., 63 ; Chandler y IfcCord, 38 ih., 564). In construing a deed, words cannot be transposed in order to give the instrument efficacy, unless there is something which shows that reading the deed as it is, will deteat the intendon, and that by transposing words or sentences, or leav- ing out parts, the deed will be rendered effectual m the manner intended by the parties, though badly expressed. And in constru- ing a deed, a provision relative to one subject cannot be aken from that subject and applied to another, in order to give a ditter- ent meaning to the instrument {Kea y. Boheson, 5 ImL Jiq J.., 373) But^ a boundarv mentioned in a deed may be rejected where it is clear, from all the circumstances of the case, that it 13g LAW OF BOUNDARIES. was erroneously inserted {Bosworth v. Sturtemint, 2 Cush. R., 392). When a line is given in a deed as running from one monu- ment to another, it is always presumed to be a straight line, unless a difierent line is described in the deed, so that by ascertaining the monuments at the angles of a parcel of land, the boundary lines can at once be determined {Allen \.Kingshury^ 16 Pich. B., 23 S, 239). A conveyance is to be construed in reference to its visible locative calls, as marked or appearing upon the land, in preference to quantity, course, distance, map or anything else, as they are more material and certain in their character ( Van Wijck V. Wright, 18 Wend. B., 157 ; Loomis v. Jackson, 19 Johns. B., 44:9; Doe v. Thompson, 5 Cotv. B., 371). It is well settled by the authorities tliat a plat or map, referred to in a deed, becomes, for the purpose of identifying the land, a part of tlie deed itself {Seaward v. Malotte, 15 Cal. B., 304 ; Vance v. i^ore, 24 ib., 435 ; Lincoln v. Wilder, 29 Maine B., 169). The general rule in regard to the construction of the description of the premises in a deed is one of the utmost liber- ality. The intent of the parties, if it can by any possibility be gathered from the language employed, will be efltectuated. And where one deed refers to another for description of the granted premises, reference may be had to the descriptioi» in the latter to aid in the construction of the description of the former {The Ger- man Mutual Insurance Company of Indianapolis v. Grim, 3 All. L. J., 73 ; S. C, 32 Ind. B., 250). A deed must be con- strued, as before stated, so as to carry into effect the intention of the grantor if it can be ascertained ; and if it cannot, then in the manner the most favorable for the grantee, on the principle that a grant is to be taken most strongly against the grantor. The more certain and more prominent of two monuments referred to in a deed, which are incompatible witli each other, must prevail over the other. The rule is quite plain that a general description may be affirmed or restricted by a special one ; but the difficulty con- sists in the application of it, and in determining whether the lan- guage was used in a restrictive sense ; and it is difficult to find any precise rule, furnishing an unerring guide in such inquiry. The leading idea to be obtained from the case is, that what is more certain shall prevail over that which is less so; and the part of a description which the parties must be supposed most fully to understand, will triumpli over that which is more obscure and CONSTRUCTION OF PARTICULAR GRANTS. 133 uncertain {Lincoln v. Wilder^ 29 Maine R., 169). The descrip- tion of land in a deed which seems certain and without ambi- guity, for anything appearing on the face of the deed, is not ren- dered uncertain by extrinsic facts, and parol evidence is not admissible to contradict such description {Bratton v. Clawson., 3 Sirobli. E., 127). It may be added that the construction of a deed from the State or other public body, in respect to the description of the land con- veyed, must be the same as if such description were used in a deed between private individuals. The doctrine of strict construc- tion, as applied to the execution of naked statutory powers, has no application in such case. This doctrine was declared by the Supreme Court of the State of Illinois, in the case of a tax-deed, and it would seem to be reasonable and sound {Blakeley v. Besto)\ 13 III i?., 708). CHAPTER XL CONSTRUCTION OF PARTICULAR CONVEYANCES IN RESPECT TO BOUND- ' ARY ILLUSTRATIONS OF THE RULES OF CONSTRUCTION BY THE CASES CONSIDERED CASES MISCELLANEOUSLY STATED. The rules which have been settled for the construction of grants in respect to boundary, and the principles by which the descrip- tive language of deeds is to be governed, will further appear by the consideration of a few of the leading cases in which particular conveyances have been construed by the courts. The cases will be given without reference to the dates or places where decided. A very recent case came before the Supreme Court of the State of New York, not yet reported, in which the author was engaged as counsel, and which involved the construction of a deed con- veying a parcel of land lying between the Oswego canal and a *' hydraulic canal" in the village of Fulton. The language of the description in the conveyance was as follows : " That parcel of land situate in the village of Fulton, as the same is laid down on Peter Schenck'r, map of said village, made in 1844, with amend- ments in 1S53, now on file in Oswego county clerk's office, viz., Lots 1 and 2, between the mill canal and Oswego canal, on block No. 19." The defendants claimed that the description in the 134 LAW OF BOUNDARIES. deed carried them to the center of the " mill canal ;" and the M'hole case turned upon the construction to be given to tlie descriptive language used in the conveyance. The case was tried before a referee, who decided that the defendants took no title to any part of the mill canal under their deed, and his decision was affirmed on appeal to the General Term. The facts of the case were referred to as tendins; to aid the court in givino; construction to the deed. Talcott, J., who delivered the opinion, said : " "We think the conclusion of the learned referee was correct. As we understand the case, the mills were situated on the westerly side of the canal, and the water contained in the canal could not be used for power on the easterly side. The points of the counsel for the defendants state that ' there was no way of discharging water from the lots on the east side of their mill canal. There was no wall, and no gates on that side, and no reason for any restrictions;' and such we understand to be the conceded tacts of the case. It is, and was, therefore, obvious that this 'mill canal' was merely an artificial reservoir, designed to hold water for the mills, and to be for the use of the mills. It may be conceded that, if the mill canal had been a natural stream of water, the convey- ances in this case wou^d have carried the defendants' title to the filum aquce. This, however, is not always true, even in regard to natural streams. As is said by the Court of Appeals in Dunhar V. Williams (37 JV. Y., 250) : ' The presumption in favor of an adjacent proprietor and of his successors in interest is not a ^^r^- sumjAlo juris et dejure, but yields to the evidence displacing the grounds on which it rests.' It was, therefore, held in that case that the presumption, that a conveyance to the center line is intended, arises only where the grantor is owner of the fee to the center line. Much less does this presumption conclusively arise where the body of water is contained in an artificial reservoir, constructed for purposes wholly irrespective of any connection with the premises conveyed by the conveyances to which the pre- sumption is sought to be applied, and where such a presumption would be inconsistent with the uses and purposes for which it is obvious the way or water reservoir was created. * * * Here the claim of the defendants to go to the center of the mill canal is based solely upon the fact that the map referred to in the con- veyance, under which they claim, represents their premises as run- ning to the westerly bounds of the canal. On the same map the CONSTRUCTTON OF PARTICULAR GRANTS. 135 canal is laid down as the ' mill canal.' It was manifestly an arti- ficial construction, intended solely for the use and benefit of the mills constructed on the west side of the canal ; and the descrip- tion of it as the mill canal was a clear indication that the canal was intended for and appropriated to the mills, and was not intended as a mere boundary or division between the lots lying east and west of it. * * * Since it is established that the presumption of an intent to convey to the center of the object upon which the land conveyed abuts may be refuted by proof of extraneous circumstances, we think the surrounding circumstances which appear in this c^se are sufficient to rebut any presumption that the grantors in the deed, mider which the defendants claim, intended to convey by that deed any rights in the mill canal" {Hqf V. Tohj, G. v., Uh Dej)., 1873). In this case, the premises convej'^ed to the defendant lay upon the east side of the mill canal or reservoir, while the mills were all on the opposite side ; and it may be inferred from the opinion of the court that, had there been no extraneous evidence in the case, the defendant's conversance would have carried them to the center of the canal. It may be stated, however, that the object called a " mill canal " was not a water-course^ either natural or artificial. It was simply an artificial structure in the form of a canal, into which water was taken from a pond created by dam- ming the Oswego river, to be used as a power. It had no outlet except as the water was drawn from different points along the westerly side of it, or as the water might overflow along the same side, when it was not used in sufficient quantities to prevent the overflow. It is doubtful, therefore, whether the same presump- tion would obtain, in such a case, as in case of a natural or artifi- cial water-course. But the circumstances clearly negative any presumption that it was the intent of the grantors to convey to the defendants any rights in the canal, and those circumstances were very properly taken into consideration by the court in giving construction to the descriptive words of the conveyance. A late case before the Court of Appeals of the State of New York, which came up on appeal from the Superior Court of the city of New York, involved the construction of two deeds, upon which the case principally turned. The action was ejectment to recover possession of a quadrangular lot of land on tlie south-east corner of Bleecker and Grove streets in the citv of Xew York. 13G LAW OF BOUNDARIES. being about seventeen feet one inch in front, running back about seventy-four feet ten and a half inches on both sides, and being about thirteen feet seven and three-fourths inches in the rear. The premises were originally in 1810, and prior to 1837, a public higliway, and a part of Grove street, which was north of the ori- ginal city of New York, ?.nd south of the lands laid out on the commissioners' map, being part of what is called Greenwich vil- lage. This statement seems necessary in order to a correct under- standing of the questions involved. The iirst deed calling for construction bounded the premises " northerly by Grove street," but contained a statement of the dimensions of the premises coa- A'eyed, which could he obtained without taking any portion of the street. The court held that this deed carried the grantee to the center of the street, laying down the rule that where a convey- ance of a city lot, describes it as bounded on a street, the con- veyance vests in the grantee a title to the middle of such street, subject to the public easement, unless there is evidence of an intent to exclude the street ; and that a statement of the dimen- sions of the lot is not sufficient evidence of such an intention, but that such statement must be regarded as subordinate to and con- tradicted by the previous reference to the street. Subsequent to the conveyance just mentioned, the city closed the street and legally appropriated it to another use ; after which the owner of the premises, holding under the last-mentioned con- veyance, deeded the land, describing it the same as in the deed imder which he held, with this ditference, that, in one part, the words are " northerly by the late line of Grove street," instead of " northerly by Grove street ; " but the deed contained the state- ment that the premises intended to be conveyed were the same as were conveyed by the deed under which the grantor held. The court decided that this deed did not carry the grantee to the cen- ter of the late Grove street, but to its margin only ; holding in general terms that a conveyance of a lot which was originally bounded by a street, made after that portion of it which was a street has been legally closed and appropriated by the city, describ- ing such lot as bounded by the late line of such street, but to its margin only; and tliat a reference therein to tiie deed under which the grantor derived his title previous to tlie change in the street, as being the same premises thereby conveyed, will be controlled by the specific description. In respect to this, Miller, J,, wha CONSTRUCTION' OF PARTICULAR GRANTS. 137 delivered the opinion of the court, observed : "It is said, that the expressions employed will be presumed to refer to the late center line, in connection with the words after the description ' along and on Grove street.' I think that it will not bear this interpretation. The description evidently makes a distinction between the old line and the new one, and, in stating a line for a boundary, it cannot well be said, tliat the statement of itself makes the center, the line " {Sherman v. MoKeon, 38 N. Y. B., 266, 272). This case is of obvious importance, not only as showing the presumptions which exist in respect to deeds boimding lands upon streets, but also as showing what evidence is required to change such presump- tions. A case lately came before the Supreme Court of the State of New York, involving the construction of a deed describing the premises intended to be conveyed as 200 acres, more or less, in the right of Walton, Kirby and Clopper, in lot No. 1, in the twenty-fourth allotment of the patent of Kayaderoseras. The court held, Kosekrans, J., delivering the opinion, that the descrip- tion contained several particulars, and that no lands could pass by the deed except such as corresponded with all the particulars ; and further, that it was necessary that those claiming under the deed should show that the lands claimed were in lot one, and in that part of the lot to which the right of Walton, Kirby and Clopper extended. That if such right included more than 200 acres, the grantees would have been authorized to have elected which 200 acres in the tract they would take, and such election would have made the grants operative, although the description was so uncertain that, of itself, it would convey nothing {Flnlay V. Cook, 54 Barh. 7?., 9). In a recent case before the Superior Court of the city of New York, the question arose upon a deed which described the boundary of a city lot as running to the westerly line of a street ; thence " northerly along the easterly line " of such street. The question presented was as to whether the deed carried the grantee to the center of the street ; and the court held, in conformit_y to other authorities upon the subject, that it did not; in other words, that such a deed conveys no part of the street adjoining the lot bounded upon it in those words {Coster v. Peters, 5 Roh. R., 192). And in another case before the same court a year later, the descriptive language of a conveyance was considered. The description of 18 138 LAW OF BOUNDARIES. certain premises fronting on Greenwich street, and not on Wash- ington street, as given in a deed thereof by a grantor who owned land extending from one of those streets to the other, commenced at a fixed point on Greenwich street, and then called for seven courses, each running a certain and definite distance, and reaching a certain point therein, said to be eighty-six and one-half feet or thereahouts from Washington street. The court held that, in case they were not identical, the indefinite and uncertain point indi- cated by the term therecibouts, must give way to the more definite and certain point fixed by the courses and distances from Green- wich street. And that inasmuch as the courses and distances from Greenwich street, given in such deed, extended both the north and south lines of the premises conveyed to points nearer to Washington street than those therein stated to be a certain number of feet or thereahouts from the latter street, they must govern, because not only more definite and certain, but more favorable to the grantee {Palton v. Stitt., 6 Rob. i?., 431). In 1860, the Supreme Oourt of the State of New York passed "upon a deed of certain lands to Mary Berger, dated July 17, 1851, by the following description : " All those certain nine lots, pieces or parcels of ground, situate, lying and being on Mount Prospect, in the ninth ward of the city of Brooklyn, and known and designated on a certain map of 151 lots of ground on Mount Prospect, Brooklyn, L. I., made by Jeremiah Lott, surveyor, and dated September 18, 1833, and duly filed in the Kings county clerk's ofiice as and by numbers 140, 141, 142, 143, 144, 145, 147 and 148, including the land adjoining said lots to the center of North street, as laid down on said map, subject to be opened as a public street whenever the owners of a majority of the lots fronting thereon shall decide." The lots conveyed were bounded, by the map referred to, on the west by the Flatbush turnpike, but, between the date of the filing of the map and the giving of the deed, the location of the turn- pike road was altered by the proprietor, so that at the time the deed was given an addition had been actually made to the lots in question, provided the lots were still to be i-egarded as extending to the road ; and the question presented was substantially in respect to this additional land. The court held, in the first place, that the map referred to became a material and essential part of the conveyance, and was to have the same force and effect as if it had been incorporated into the deed. And, in the second place, COI^STRUCTIOX OF PARTICULAR GRANTS. 139 that as the lots conveyed by the map were bounded on the west by the public turnpike road, the effect of the deed was to convey the lands up to the turnpike road, as that existed and was located at the date of the deed; and that the true boundary was to Ije ascertained, not by inquiring where the east line of the turnpike road was on the 18th of September, 1S33, when the map was filed, but on the 17th of July, 1851, when the deed was given ; the idea being that, as the line of the turnpike road had been changed between those dates, the grantor, if lie did not design to convey according to the existing state of things, should have qualified the force of the description on the map by an intimation of the change in his deed. Brown, J., who delivered the opinion of the court, said : " The true boundary is to be ascertained, not by inquiring where the east line of the turnpike was on the 18th of September, 1833, when the map was filed, but on the ITtli of July, 1851, when the deed was given. How can it be otherwise? The deed contained no intimation where the boundary was, but referred to the map for that purpose, which then became a part of the deed. The map bounded the lots upon the westerly side by the Flatbush turnpike road, and thus the grantor adopted the line of the road, as it then was located, as the true boundary. Tliis deed, if there is any uncertainty in the description, is to be taken most strongly against the grantor, and construed most favorably for the grantee. * * * If he had designed to limit his grantee to a boundary short of the line of the road, it was an easy thing for him to have put the limitation in the deed, or qualified the force of the descrip- tion on the map, by an intimation that the turnpike road had been altered. But having conveyed by the map, without limit or quali- fication, and that paper giving the road as the western boundary of the lots, he has parted with the title up to that line as efibctually as if he had given the road as the boundary b}'' express words written in the deed" {Glover y. Shields, 32 Barh. i?., 374, 379-381). This is an important case, and fixes a rule in respect to maps referred to in deeds which is very essential to be remem- bered by convej^ancers. In a comparatively late case before the same court, involving the subject under consideration, the description in a deed com- menced as follows : " Beginning at the north-east corner of lands owned by the party of the first part, and by the line fence running from thence south along the west line of land owned by the party 140 LAW OF BOUNDARIES. of the second part." Under this description the court held that, if it could be clearly proved that such north-east corner and the fence wei-e several chains apart, the latter would be the true start- ing point, being a visible and tangible object. And the general rule was applied, that courses and distances muse yield to natural or artificial monuments or objects {KaynevY. Timersoti, 46 Bar-b. H., 518; vide Thompson v. Wilcox, 7 Lans. li., 276). The same court put a construction upon another conveyance in 1864, unlike any of the preceding cases, and which may be regarded as somewhat particular. The plaintiff and defendant were the owners of adjoining lots, the plaintiff's being the north and the defendant's the south lot. Both parties claimed title from the same sources, the plaintiff's deed being the oldest, but the defendant's lot had been previously contracted to be sold to one Ostrum, who was then in possession under his contract. A brick building stood on the plaintiff's lot, at the date of his conveyance. The description in the plaintiff's deed was as follows : " Thence con- tinuing the same course along the front of said building, seventy- nine feet nine inches, to the corner thereof, being the north line of premises contracted to J. C. Ostrum ; thence easterly along the south side of the h'ick wall of said building, seventy-seven feet, to an alley," with a reservation to the grantor of " the free and. uninterrupted use of the south wall of the Collins' buildings, for the support of the timbers and floors of the store and building adjoining, occupied by J. C. Ostrum, as the same is now used, and the nse of the chimney flues in said wall," etc. The foundation wall of the building on the plaintiff's lot, on the north side, pro- jected about six or eight inches beyond the south face of the brick wall. The plaintiff claimed that his deed carried him to the south line of the foundation wall, instead of the south line of the hrick wall, of his building, and the question for the court was as to the propriety of this claim. A majority of the court, with one judge dissenting, held that the division line between the lots mentioned in the plaintiff's deed was intended to be a straight line from the south-west corner of the huilding to the rear of the lot ; and tliat the terms " corner of the building," and " along the south side of the brick wall," clearly limited the plaintiff's south line to the outer surftice of the brick wall ; and that therefo)-e the plaintiff had no title to the strip of land in suit. The case was ably argued by Johnson, J., who gave the prevailing opinion of the court, who CONSTRUCTION OF PARTICULAR GRANTS. 141 declared that, in his judgment, the conclusion arrived at was clearly to be gathered from the terms of the description in the plaintiffs deed alone. Welles, J., concurred with Johnson, J,, and J. C. Smith, J., dissenting, but with no opinion, and the case does not seem to have been again before the courts {Comes v. Minot, 42 Barh B., 60). A couple of years later, a case came before the same court requiring the interpretation of the description contained in a con- tract, wherein the land sold was described as a lot bounded " on the east by the cove," and also as " being the east part of lot number twenty-one," on a certain map, made by one Webb. Ths cove referred to was made by the water which sets back from the Chemung river, and the question was, whether this description embraced the land on the east side of the parcel described to the edge of the water of the cove, or whether it extended only to the east line of the lot number twenty-one, as laid down on the map. The court held that the cove being mentioned in the contract as the east boundary of the land sold, it could not be controlled or changed by the reference in the contract to the map made by Webb, or by the east line of lot number twenty-one, as laid down on that map; and it was said by Balcom, J., who delivered the opinion, that it was immaterial whether that lot extended as far east as the cove or not, or whether any portion of such lot Liy within the boundaries mentioned in the contract; that these boundaries being marked by known and certain monuments must control in construing the contract. These monuments were visible, and the parties undoubtedly understood that lot number twenty-one embraced all the land within them ; and the fact that such lot did not extend to the east boundary mentioned in the contract was not regarded as controlling, and should not prevent the description from extending to the west edge of the water con- Btituting the cove, and the description was so construed by the 20urt {Jones v. Holstein, 47 Barh. R., 311). The Court of Appeals of the State of New York, in 1861, gave a construction to a deed of land described by the lot number upon a map sijnply. The owner of one-half of a block of land in the city of Rochester, which block was surrounded on all sides by streets opened and used as highways, caused his portion of the block to be surveyed and subdivided into lots, and a map to be made representing such lots as abutting upon a street extending 142 ■ LAW OF BOUNDARIES. from Kent street, one of tlie boundaries of his tract, through the center thereof, and also through the land of adjoining proprie- tors, to another publicly traveled street. This proposed avenue was designated on the map as Erie street, and lots were sold, and the lots described in the deeds in this manner : " Lot Ko. I, section G, according to allotment and survey of part of Frankfort [a por- tion of Rochester including the tract in question] , made by Elisha Johnson ; said subdivision being thirty-three feet front and rear, seventy feet deep ;" but without any mention of or reference to this Erie street by name ; and the depth of the lot was stated by figures on the map, which would not include any portion of the street. The question presented for adjudication in the case was Avhether the deeds conveying these lots on either side of Erie street, in the city of Rochester, before such street became a public high- way, and was opened as such, carried the lands to the center of that street. The Supreme Court held that they did not; but the Court of Appeals reversed the judgment, holding that the grantor had dedicated such street as between him and his grantees; although his map represented it as continuing through the land of an adjoining proprietor, M'hich closed it against any highway in one direction ; and such adjoining proprietor never, in any manner, assented to the continuation of the proposed street, nor was any part of the street adopted as such by the public authorities. It was accordingly held by the Court of Appeals that the grantee of all the lots on both sides of the street thus designated was entitled to the exclusive possession of the proposed street against eject- ment by the grantor. The doctrine of the case is that, as between grantor and grantee, the conveyance of a lot bounded upon a street in a city carries the land to the center of the street ; and that, as between the same parties, the same rule applies, where the conveyance bounds the land upon a street not recognized by the public authorities nor opened, but is only a street by being laid doMm on the map as such, which was made by the grantor, and according to which the conveyance is expressly made. That is to say, the rule of construction in such case is the same, as regards the parties to the deed, as though the street, laid down on the grantor's map, was in fact a public street, opened and used as such {Bissell v. The New York Central Railroad Company, 23 N. Y. R., 61). CONSTRUCTIOy OF PARTICULAR GRANTS. 143 Several years later another case came before the same court, -calling for tlie coustriiction of a deed which bounded the land by a " park." This was an action also involving tlie right to a strip of land in the city of Rochester. The plaintiff was the owner of a small tract of land in that city in 18-19, which he caused to be plotted and divided into lots numbered from one to thirty-six, and caused the map to be filed in the Monroe county clerk's office. An oi^en space was designated on the map, fronting upon what was laid down as " James street " on one side, and bounded on the other three sides by nine of said lots, and described as " Park." The plaintiff conveyed these nine lots, at different times, to difier- ent purchasers, describing them in each conveyance solely by their numbers, and by reference to said map and its place of record. Several of the lots hav^e no means of approach by any public street or private way, except tlirough the space designated as "Park;" and the question presented was whether the plaintiff, in conveying the nine lots wliich abutted on the strip called "Park," by numbei-s, referring to the map, passed the fee in this strip to the grantees, in the same manner and to the same extent as if the strip of land had been dedicated by him as a street for the use of the adjoining lots. The Supreme Court, in which the action was. commenced, held that tlie well-settled rule in respect to bonndary upon streets did not apply to this strip of land called "Park;" declaring, as matter of fact, that when the plaintiff' plotted this tract he intended the space designated as " Park " to be a park, and not to be a mere passageway, leading by and to the adjoining lots, and that sncli continued to be his inteniion when he sold the lots ; that part of his design was to afford access to the contiguous lot ; but that this was subordinate to the principal and leading object of making it a park. But on appeal to the Court of Appeals the judgment of the Supreme Court was reversed, two of the judges dissenting; the majority holding, as law, that the primary and chief design in laying down this space on the map called " Park," and, so far as the case showed, its only design was that the same should be used as a passageway or street ; that, although called a park, it was not a park, and its intended use as a street was beyond question. The doctrine laid down by the Court of Appeals in the case is that, where town lots are sold, and described only by numbers on the recorded map by which they appear to be bounded on a public street or highway, such lots are to be 144 LAW OF BOUJSDARIES. bounded Ly the center of such street. And where the open space on the map, by which only such lots can be approached, is desig- nated as " Park," it is, nevertheless, to be deemed as a designed means of access to such lots, and they are to be bounded by the center of such space. It was further declared that these questions of boundary are to be determined by the palpable intention of the parties, as it appears from all the circumstances. Hunt, J., delivered an able dissenting opinion, in the course of which he said: "A park is essentially different in its nature from a street, and is governed by pi'inciples of a different character. It could, under no circumstances, be considered as a line merely. A street becomes a street, as between grantor and grantee, by being so designated on the map by which the lots are sold. It is quite likely that a park may become a park in the sam-e manner. But there is neither authority or principle for saying that lands may be made a street by designating them as a park. It would be as unreasonable as to attempt to create a park from what the owner should designate upon liis map as a street." But it was declared in the prevailing opinion that a park is, in its strict sense, a piece of ground inclosed for purposes of pleasure, exercise, amuse- ment or ornament ; that this strip was uninclosed — open to the common — and was intended so to remain ; nor was it set apart, either for pleasure-ground or for purposes of exercise, amusement or decoration ; and, hence, for the purposes of the case, it must be regarded as a passageway or street {Perrin v. The New York Central Railroad Co^njxmy, 36 iT. Y. E., 120, 124, 125). In 1861 a case came before the Superior Court of the city of New York, calling for the construction of certain lanffuaffe in a conveyance, wherein the land was described as running " to the side" of the road, and thence "along the side of the road." The question presented was whether the boundary extended to the center of the said road, or only to the edge ; and the court held that the description excluded the road from the conveyance ( Van Amringe v. Barnett, 8 JBo-sw. It., 357). CONSTRUCTION OF PARTICULAR GRANTS. 145 CHAPTER XII. FURTHER CASES PASSED UPON BY THE COURTS GIVING CONSTRUCTION TO PARTICULAR CONVEYANCES IN RESPECT TO BOUNDARY CASE3 MISCELLANEOUSLY STATED. An important case in the Court of Appeals of the State of Kew Yo]-k, hereinbefore referred to in a different connection, may, with propriety, be alhided to again, on account of the precedent it affords upon the question of construing the descriptive language of a conveyance of lands. The deed brought before the court for construction described the land intended to be conveyed as bounded by the road leading from Jamaica and Flatbush to the Brooklyn ferry. The court held, from the evidence in the case, that the grantor in the deed had title to the land conveyed only to the margin of the road ; and the question presented was whether his deed, under the circumstances, should be construed as carrying the grantee to the center of the road. The Supreme Court, where the cause was tried, held that the conveyance extended to the center of the road; but the Court of Appeals reversed the judg- ment, holding that, although the deed, ^m?ia /acie, carried the grantee to the center of the road, on the assumption that the grantor owned it, but when it was shown that this title to the road-bed was in another at the time of the conveyance, the. terms of the deed were satisfied by a title extending to the roadside {Dun- ham V. Wilkins, 37 iV. Y. i?., 251). A very recent case before the same court further illustrates the principles upon whicli the descriptive language in a deed is con- strued, and the manner in which the construction will be modified- by circumstances. According to the memorandum published by the reporter, the conveyance was for a portion of a lot in the citj^ of Rochester, the west boundary of which was giv^en as " the east line of Clyde street." The plaintiff's deed conveyed to him the north half of the lot, and also the northerly half of a dwelling- house situate thereon, described as "fronting on Clyde street," with the land on which it stood, "being about sixteen feet square,, with the appurtenances." The south-west corner of the north half of the house projected about seven feet upon the south half of the lot. The defendant's deed conveyed to him the south half 19 146 LAW OF BOUNDARIES. of the lot, excepting and reserving therefrom the land upon which the plaintitf's half of the dwelling-house stood. At the date of the deeds the west side of the house was upon the east line of Clyde street, as opened and used. Subsequently the city authori- ties changed the street, running the east line thereof to the west- ward four feet ten inches. The plaintiff took possession and inclosed the space thus left in front of his half of the house. The defendant tore down the fence, claiming title as far north as the north line of the south half of the lot, and the plaintiff brought suit for the trespass. Under these circumstances, the question was presented as to the construction to be put upon the conveyances of the respective parties. The Court of Appeals held (affirming the decision of the Supreme Court) that the original title, and the right of possession of the parties, as derived therefrom, extended no farther west than the east line of Clyde street, as it then was. Further, that the language of the description in the plaintiff's deed carried his right to the center of the street ; and when the public abandoned its easement the plaintiff became entitled to the exclusive use of that part of the street abandoned, adjacent to and in front of his half of the house. Andrews and Rapallo, JJ., con- curred in the conclusion, but placed their decision upon the ground that the plaintiff was in possession of the locus in quo, and the defendant had shown no title ; leaving it to be inferred that they did not assent to the construction which the majority of the court put upon the plaintiff's conveyance. The case, however, has full authority as a precedent ( Wallace v. Fee, 50 iV^. Y. 12., 69dt). Another case in the same court was this : An owner of land upon a mill stream, ad medium Jllum aquae, conveyed a parcel of land by metes and bounds, " beginning at a stake and stones on the west bank of the Unadilla river ;" running thence by coui-ses and distances around the farm until it comes again " to the Una- dilla river," and runs " thence down the west bank of the Una- dilla river, as it winds and turns, to the place of beginning." The question in the case, so far as the subject under consideration is concerned, was wliether the grantee, under this conveyance, took to the center of the river; and the court held that he did not. On the contrary, tliat the title to tlie river, and the land covered 'by it, remained in the grantor. Henry R. Sclden, J., who delivered ;the opinion of the court, said, on this point : " The words ' to the COXSTRUCTIOX OF PARTICULAR GRAXTS. 147 Unadilla river,' according to the usual interpretation of such an expression in conveyances, would carry the line to the center of the river; as the general rule is that, where a line touches a river, it goes to the center ; but the words are entirely consistent with an interpretation which should stop the line at the margin or bank of the river; and whether the one or the otlier interpretation should be given to them, must depend upon the apparent inten- tion of the parties, to be determined by reference to tlie other portions of the deed. " The other expressions of the deed, which have reference to the river, I think show a clear intention to limit the operation of the grant to the bank of the river. The starting point is unequivo- cally from 'the bank,' and not from the center of the river; and if tiie last line in the description is confined to the center of the river, it cannot run ' to the place of beginning,' as the description requires ; and if it starts from the center of the river, and runs ' to the place of beginning,' it would neither follow the center of the river nor 'the west bank as it winds and turns,' according to the description of the deed. From the terms of the deed alone I think it must be held to convey the farm to the west bank of the river only, leaving the title to the river and the land covered by it in the "grantors " {BabeocTc v. Utter, 32 How. Pr. 7?., 439, 453, 454; S. \ 1 Keyes li., 397). A case came before the present Supreme Court of the State of :N"ew York, at an early day, involving the question of boundary of lands lying upon a stream or river not navigable. The land claimed was the north half of the stream and falls in the Esopus creek, at a place called "Demeyer's Falls." By the description in the deed under which the claim was made, the boundary line ran " to the said Esopus kill or river ; thence southerly along the said river by a piece of land of Ilendrick Alberse,and by his bounds to said river ; thence along the said kill or river to the creek brook where first began." The court held that this deed carried the grantee to the center of the stream, and declared that the law was\vell established that, where lands are bounded by a stream or river not navigable or above tide-water, the grantee takes iisque filum aq^um, unless the stream or river be expressly excluded from the grant by the terms of the deed. And it was further declared that, in the case before the co^rt, no proof was needed, in terms, as the stream was not navigable or above tide- 148 LAW OF BOUNDARIES. water ; the tact sufficiently appearing from the existence of the fall and dam, and the uses to which they were applied {Demeyer V. Legg., IS Barh. H., 14). And the Court of Appeals, of the same State, at a more recent date, passed upon a similar descrip- tion in a deed, and gave a similar decision. The boundary in the deed began " at a post marked No. 0, standing on the bank of Lake Erie, at the mouth of Cattaraugus creek, and on the north bank thereof;" and then run by several courses and distances, and returned to a post also " standing on the north bank of Cattarau- gus creek ; thence down the same, and along the several meanders thereof, to the place of beginning." It appeared that this bound- ary crossed the creek three times before reaching the last course but one, and that course and distance carried the boundary across the creek for the fourth time. The question in dispute was whether the last course of the boundary carried the grantee to the center of the creek, or only to the bank ; and tlie Court of Appeals, overruling the judgment of the Supreme Court, held that the description included the bed of the stream to tlie center. Corn- stock, Cli. J., who gave the opinion, said : -"In this case the bound- ary begins at a post standing on the north bank of the creek, and it returns to a post also standing on the 'north bank of Cattarau- gus creek;' and proceeds 'thence down the same, and along the several meanders thereof, to the place of beginning.' On the part of the defendant it is claimed that ' down the same,' in this descrip- tion, means down the bank, and not down the creek. But we think this is not tlie fair construction of the language. The words more obviously refer to the creek, which is the immediate antece- dent, than the bank. And, again, the phrase, 'along the mean- ders thereof,' is more descriptive of the windings of the stream than of the irregularities or sinuosities of the bank. Indeed, this word ' meander ' is derived from a winding river in Asia Minor, known by that name in classic history. And, in our language, we say that a stream meanders ; but I think M'e never speak thus of a shore. To speak of a meandering shore would be to use a singularly inapt expression. It may well be added that a strictly shore line upon a river would, in most cases, be extremely diffi- cult to trace. Parties may so restrict their grants if they Avill ; but the restriction ought to be framed in very plain and express. words" {The Seneca JVaiio)i of Indians v. Knight, 23 iV. Y. R 498, 500). COXSTRUCTIOX OF PARTICULAR GRANTS. 149 A very important case was disposed of by tlie present Supreme Court of the State of New York in 1864, involving the construction of the description in deeds bounding lands upon streets in a city. The descriptive language in several different parts was considered, but it is only necessary to repeat the description in one. The action related to a strip of land two rods in width and ninety-nine feet in length, and being the north half of a certain portion of Green street in the city of Lockport. The plaintiff claimed under a convey- ance of lots 205 and 207, which, after referring to the map, bounded them on the east by Lock (formerly West Front.) street sixty-six feet, and " on the south on Green street ninety-nine feet, and being in a body in the corner of Lock street and Green street, containing more or less, according to the aforesaid map, reference being thereunto had." The strip of land was a part of three lots, provided this deed extended to the center of Green street ; and the court held that it did ; and the doctrine was reiterated, that if it is the intention of the grantor, who conveys lots having streets along them, to exclude tlie streets, his description must be clear and certain, showing such intention {Lozier v. The New York Central Railroad Company, 42 Barh. R., 465). A case came before the same court at a little earlier day, calling for the con- struction of a deed bounding the land upon one of the streets of tlie city of New York. The premises were described in the deed as "beginning at the corner formed by the intersection of the easterly line of Greenwich street with the northerly line of Cham- bers street, 109 feet to the said easterly line of Greenvyich street, and thence southwardly along the same, seventy-nine feet and eight inches to the place of beginning." The court held that this description bounded the grantees to the easterly line of Green- wich street, and did not carry them to the center of the street. The well-understood doctrine, however, was expressly recognized by Hogeboom, J., who delivered the opinion of the court, that a description, bounding premises generally on or hj a street or high- way, or stream of water not navigable, unexplained, carries the boundary to the center of the street or highway, or stream of water, and reference is made to Hammond v. McLachlan (1 Sand. R., 323), Herring v. Fisher {lb., 344), Jackson v. Louw (12 Jolms. R., 252), Jackson v. Hathaway (15 il., 447), Adams v. Saratoga and Washington Railroad (11 Earl. R., 414), Adams V. Rivers {Ih., 390), Demeyer v. Legg (18 ih., 14), Ex parte Jen- 150 ^"^^^ ^^ BOU.XDAEIES. nings (6 Coio. R., 518), People v. Seymour {II., 579), Canal Appraisers v. People (17 Wend. P., 571), Commissioners of Canal Fund v. Kempshall (26 /J., 404), Luce v. (7«?'% (24 ib., 451), as authority for the doctrine. But the judge referred to Child V. Starr {HilVs P., 369), Kingman v. Sparrotc (12 ^ar^. i2., 201), Ralsey v. McCormich (13 iV^. y. ^., 296), J'wi^s v. Cowman (2 Sandf. P., 235), as authority for holding that this description in the conveyance before the court did not carry the gi-antees to the center of tlie street, but only to the outer line tliereof {^Veimore v. Law, 34 Barh. P., 515, 519, 520). But at the same term of the court another conveyance came before it for construction, wherein the land was described as " situate, lying and being on the westerly side of Greenwich street," and the east- erly boundary therein was stated as follows : " bounded easterly in part by Greenwich street aforesaid." It was further described as " containing in front on Greenwich street aforesaid, twenty-four feet ten inclies," " and in lengtli on the northerly side, sixty-one feet six inches." And the court held, the same judge writino- the opinion, that this description extended tlie title to the middle of the street, according to the general rule applied in respect to property having similar boundaries. In his opinion. Judge Hofjeboom observed : " It is conceded to be the rule as to land in the country, and I think it equally applies to urban territory. * * " The reason is substantially the same as applied to a road in the country or a street in tlie city ; that is, the intervening strip was originally taken, or supposed so to be, for public pur- poses, from the owners on opposite sides of the street or highway, taken only for public purposes, and only so much of it both in regard to the quantity and duration of the estate as was supposed to be required for the public use, and is to be returned to the respec- tive proprietors when the public have no farther use for it; or else it was founded upon principles of public policy, based upon the supposed inconvenience or impropriety of having so long and narrow a strip of land or body of water the subject of a distinct and separate ownership from that of the adjoining territory on either side. In other words, the owners of the adjoining lands have the entire property in the land, subject to the public ease- ment and rights. It may be true that, as regards lands in the city, the use of the public is more extended and comprehensive than in the country. It is wanted not only as a road for purposes CONSTRUCTION OF PARTICULAR GRANTS. 151 of passage and transportation, but also for sewers, for vaults, for gas-pipes, for water-pipes, and other purposes. But the essential characteristic of both is tlie same, to wit, the public use or neces- sity. So also the country may ultimately become a town, the town may become a city; and it would lead to embarrassment if different'rules of construction were applied to comdry and to the city grants, as well as to difficulty in determining when the actual transmutation from country to city property took place. Whether, therefore, we consider the question as one of naked law upoii the construction to be given to a legal instrument, or as a rule of evi- dence to be applied to those instruments for the purpose ot ascer- tainino- the real intentions of the parties, I think the result will be the same" {The People v. Lcm, 34 Barh. 7?., 434, 501, 502). This case is important not only as a precedent in cases where the boundary in a deed extends to the center of a street or highway, but also as giving reasons why the same rule of construction should be applied to city grants as to grants of land in the country. It is well settled that the rule in respect to land in the country will be applied to urban territory, but the reasons why the sup- posed distinction in such cases should not be recognized, are given with sucli pertinancy and plainnesss, that it will not be amiss to note them. And the same court was called upon, at a much later date, to construe the descriptive words in a conveyance, where the boundary was a range of hills. The grant was for a parcel of land in the old township W Rochester, situate "on the south-east side of the high hills, commonly called the Shawangunk hills." The only bound- arv necessary to notice was in these words : " Tlience runs south- westerly along the top of the said, hills on the south-east side thereot; on the highest part of the steep rocks that point north to Shawangunk aforesaid, as the rocks range," etc. It was held tliat the court was not at liberty to conjecture that the parties to the deed intended to establish the boundary upon a lower elevation, upon the side of the designated hills; and, as the rocks ot the range mentioned were objects which were definite and could be fixed with reasonable certainty, a variation in the coxirse ot the line was not to be regarded, but the true boundary was tlie line alono- the highest point of the steep rocks as they ranged upon the summit of the mountain as it fronts the valley {Sclwonviaker v Davis, 44 Barl). E., 463). 152 L^W OF BOUNDARIES. A case came before the New York Court of Appeals, not long since, involving the construction of a conveyance, which it may be of interest to notice. The language calling for construction in the description was this : " All that certain piece or parcel of land situate in the said town of Niagai-a, being tlie west jpart of lot .No. 76, lying on the easterly side of the Niagara river, contain- ing eighty-live acres, be the same more or less." On the one side it was contended that this description embraced just eighty-five acres of land, located in a certain part of the lot; that the words "more or less " were surplusage, and particularly so here, where the quantity is an essential part of tlie description. But the court held that the description included all the land of the grantor remaining unsold in the west part of the lot designated, as a differ- ent intent was nowhere manifest. Campbell, J., who delivered the opinion of the court, said : " In the deed the lot is referred to as if it were a well-known tract, piece or division of land ; part or division of a larger parcel or tract, that is well known to the parties, the seller and the purchaser. The particular piece or portion is designated, also, as a well-known part or division. The description in the deed is very uncertain and indetinite, but the intent of tlie seller is very manifest. He conveyed the west jmi-t of the lot ; not the west quarter, or third, or half ; not eighty -five acres to be taken from the west part, but i\\Q west j>ttrt itself, whatever that might be in acres; eight-five acres, more or less " {Pettit v. Shepard, 32 N. Y. B., 97, 103). A case came before tlie Superior Court of the city of New lork, in 18G6, in which the doctrine aG to tlie boundary upon streets was fully discussed. The deed calling for construction conveyed to tlie plaintiff's testator a plot of groupd on the southerly side of Stewart street, in New York, and which was described in the deed as running along a certain road " to Stewart street, and thence along the westei'ly side of Stewart street, westerly, etc." The court held, that, under the description, the plaintiff's right extended only to the lino of the southerly side of Stewart street, and not to the center of that street, declaring in terms that when, from the description in a deed, it is manifest that the parties intended to limit or extend the conveyance to the lines of the highway or street, no ]iart of the highway or street passes (A7ider- soii V. James, 4 lioh. 12., 35). In 1835, an important case was decided in the late Court of CONSTRUCTIOX OF PARTICULAR GRANTS. 153 ClianceiT of the State of New York, by Yice-Cliancellor AVilliams, which called for the construction of a grant from the State of lands bounded on the Oswego river, in the present city of Oswego. At the time of the issuing of the patent, the Oswego liver, at ihe point in question, was regarded as navigable, although, of course, above tide-water. The patent from the State for the lot in ques- tion referred for its location to a map on file in the Surveyor- General's office, upon which map the lot was laid down as bounded on the river generally. The vice-chancellor held that the patentee, under this description, was entitled to hold the land to the middle of the stream, declaring that the law might then be considered settled in the State of New York that grants of land, bounded on rivers and streams above tide-water, extend usque ad Jilum aqucB^ and if the stream is, in point of fact, navigable for boats or other craft, the public have a right of passage or an easement, and notliing more ; and that the owner of the adjoining land, or the land bounded on the bank or margin of the stream, has a riglit to nse the land and the water of the stream in any way not incon- sistent with the easement due to the public ( Varick v. Smith, 5 Paige's II., 137). This decision has often been cited in the courts of New York, and always with approval, especially as to the con- struction put upon the language of the patent, and the rights of the patentee under the same, that is to say, the doctrine of the case stands undisturbed. The late Chancellor cf the State, upon a question between the same parties, expressly affirmed the doc- trine ; holding that where the State conveys a lot by its number and reference to a map on file on which the lot is laid down as extending to a stream above tide-water, the eft'ect is the same as though the patent had described the lot as bounded by the stream, and the patentee takes to the center of it ( Varick v. Smith, 9 Paige R., 574). An early case involving a water boundary before the Court of Appeals of the State of New York, may be of interest, though the principles enunciated in it are Avell settled. The oidy ques- tion in the case was as to the location of the southerly boundary line of the plaintiflP's lot. The conveyance, from the source of title under which the plaintiff claimed the premises in controversy, described the land convej^ed as follows: "A lot of land fronting the south side of the turnpike road running easterly by Bennett's mills, and joining the east line of lands belonging to the heirs of 20 154 LAW OF BOUNDARIES. Ricliard W. Pelton, deceased, being five rods east and west in widtli, and running south trom said road to the hank of the Six Mile creeh^'' There was a controversy, not only as to whether the center of the creek or the bank was the boundary, but as to where the bank of the creek was. The court lield tliat the grantee under the deed did not take to the center of the creek, but only to the bank ; that tlie bank intended was the line to which the water would flow at low-water mark, and that such a description included the land to the margin of the stream at low water. And it was declared that the rule which prevails, in this respect, as to grants bounded on the shore or bank of the sea or navigable rivers, is not applicable to streams not navigable {Halsey v. McCormick, 1^ W. Y. R., 296). And a very important case in the late Court of Errors of the State of New York is often quoted as a precedent in these cases. The deed calling for construction by the court conveyed 20,100 acres of land on the west side of the Genesee river, bounding it easterl)' on the hank of the river^ agreeable to the traverse,^'' and reserving " out of the above described lands 100 acres which is conveyed by deed to Ebenezer Allen, and is to be laid out in a square form as near as the traverse of the river will admit, and the said Allen's mills to be the center of the eastern boundary." It was held by the court that the wdiole tract, including the 100 acre reservation, was bounded by the bank of the river and not by the thread of the stream. Several opinions were written by dif- ferent members of the court, and many cases bearing npon the question were considered. The court was not imanimous in the judgment that was ordered, but there M-as a degree of harmony in the doctrines which were laid down {Starr v. Child, 5 Demo's R., 599). The Court of Appeals of the State Xew York have very recently disposed of a case involving the construction of a parti- cular description in a deed. The action was ejectment, and both parties claimed under a common source of title. The defendant's deed was prior to that of the plaintiff, and bounded the land con- veyed on one side " by the south-easterly line or side " of what was formerly known as First avenue in the city of Brooklyn. This avenue had never been opened as a public highway, and liad been discontinued by act of the legislature. The defendant's con- veyance contained this clause also, " together with all the right and CONSTRUCTIOX OF PARTICULAR GRANTS. 155 title of the grantor in and to one-half of the streets and aveniiea by which said lots are bounded." There was no other avenue referred to in the description of the grunted premises, and tlie grantor liad title thereto. The court held unanimously that the defendant's deed carried the title to the center of the avenue {Terrett v. Tlce Neio York and Brooklyn Steam Saw-mill and Lumber Company, 49 N. Y. E., QQQ>). Another late case before the same court was this : The owners of a tract of land caused the same to be surveyed and subdivided into lots for building purposes, and a map thereof to be made, upon which the lots were designated by numbers, and abutted at one end upon a strip designated as an alley, and such owners sub- sequently conveyed one of the lots, describing it by number on a map, specifying the map referred to, and specifying the boundaries as abutting at one end on the nortli line of such alley, as laid down on the map. The court held unanimously that this conveyance gave to the grantee a right of way over the alley to the rear of his lot, as against his grantors and their subsequent grantee of the alley. The judge who delivered the opinion of the court stated that the question whether the lot conveyed was bounded by the north side of or the center of the alley, was not material to the right claimed by the plaintiff in the action, which was a right of way over the alley, and the point was not examined {Cox v. James, 45 iT. Y. E., 557, 561). The last case which it is proposed to consider upon this subject from the Isew York reports is one also very recently disposed of by the Court of Appeals of the State, and was presented thus : The defendant agreed to convey to the plaintiff a house and lot in the city of New York. In the description contained in the con- tract, the lot was stated as " being in depth, on Clinton street, 120 feet, including the stable situated on the rear of said premises." He executed and delivered a deed to carry out the agreement, which followed the description contained in the agreement, except omitting any reference to the stable. It was supposed, at the time of the execution of the contract and deed, that the stable was upon the 120 feet, but subsequentlj' it was discovered that, in order to include the stable, the lot should be 131 feet and ten inches deep. In an action brought by the plaintiff for specific performance, the Court of Appeals held, reversing the order of the Supreme Court at General Term, and aihrming the judgment 15G LAW OF BOUNDARIES. at Special Terra, that under the well-settled rule that, in the con struction of grants, courses and distances must yield to fixed known monuments, the plaintiffs were entitled to a deed that would include the land upon which the stable stood ( White v. Willia7ns, 48 iV. Y. B., 344). CHAPTER XIII. FURTHER CASES PASSED UPON BY THE COURTS GIVING CONSTRUCTION TO PARTICULAR CONVEYANCES IN RESPECT TO BOUNDARY CASES MIS- CELLANEOUSLY STATED. All of the cases heretofore considered under this head have been decided by the different courts of the State of New York. They are, however, of universal application as precedents, as none of them were disposed of in pursuance of any usage or statute. It is proposed now to refer to some leading authorities upon the same subject to be found in the judicial reports of other States and of the Federal courts. These cases will be considered without particular regard to Avhere or when they arose. A recent case came before the Supreme Court of Errors of Con- necticut, involving the boundary of land upon a highway. Tlie petitioner was the owner of a piece of land specifically descrll)ed in the conveyance to him. The land was actually bounded on the west by the higlnvay, although the deed did Tiot in terms bound the same on such highway. The court declared the rule of law to be well established, that a conveyance of land bounded on a piib- lic highway carries M-ith it a fee to the center of the road as part and parcel of the grant. And as it was established that the land in question was in fact bounded upon the highway, the court held that the mere fact that it was not so described in the deed would not vary the construction. In either case, it Avas thought by the court, the presumption tliat it was not the intention of the grantor to withhold his interest in the road to the middle of it, after part- ing with all his right to the adjoining land, M'ould be tiie same. That is to say, unless such intention clearly appeared tlie pre- sumption would ai)ply. The court could see nothing in tlie language of the deed, or in the situation or circumstances of the property conveyed, to warrant the inference that any such iiiten COXSTRVCTTOK OF PARTICULAR GRANTS. 157 tion existed in tlie case, and tlierefore it was held that the grantee in the deed under consideration took to the center of the road {Gear V. Banium, 37 Coiiti. R., 229). The Supreme Court of Missouri has recently made a decision illustrating the rules of construction to be applied to a deed of real estate, which is of considerable interest in a certain aspect of the subject. The language conveying the premises was : " Lot Ko. 3, in- block 87, in the old town of Hudson, now Macon, beginning at the north-east corner; thence west to the alley; thence * * * to the beginning." The description in fact embraced less than lot 3 ; but the court held that the description by lot should prevail over that by courses and distances, and that, therefore, the whole of the said lot 3 was conveyed. This rule of construction the court thought a reasonable one, and one that was generally acquiesced in {Rutlierford v. Tracy, 48 Mo. I/., 326). A late case came befoi'e the Supreme Court of Maine, where both termini of the boundary in a deed were on the westerly side of the road, and it was held that the deed should be construed so as to exclude the road on the east ; that is to say, the deed was construed by the court as bounding the land conveyed by the west- erly side of the road (Cottle v. Young, 59 Maine R.) In a late case before the Supreme Court of Errors of Connecti- cut, where it appeared that a right of way had been granted to a railroad company across certain lands bounded upon a harbor, aiid was described as " extending from said harbor on the west to the land of William 11. ISToble on the east," the court held that the right of way extended across the mud flats west of the land between high-water mark and low-water mark. Seymour, J., who delivered the opinion of the court, said: "The plaintiff is undoubtedly right in the claim that in Connecticut the owners of land bounded on a harbor own only to high-water mark, and that whatever rights such owners have of reclaiming the shore are mere franchises. Where, however, such reclamations are made, the reclaimed portions in general become integral parts of the owner's adjoining lands. By means of such reclamations the line of high- water mark is changed and carried into the harbor, and the ownei-'s lands have gained the reclaimed shore by accretion ; the principles governing the case being the same as those which prevail where the sea recedes gradually by accession of soil to the land. " If the grant had been in terms of a right of way to and from 158 LAW OF BOUNDARIES. the liarbor, the grantees would be entitled to come to the harbor, over whatever intervening accessions of soil might accrue between high and low-water mark. If the line of hio-h-water mark should be changed by natural or by artificial causes, the right of way would follow the changed line of the harbor, and this deed in con- nection with the map show^s that the object of the deed was to enable the grantees to reach the liarbor, and by means of the right of way therein granted to connect their road on the east with the harbor and their road across the harbor on the west " {Lockwood V. The NeiD York and New Haven Railroad Company, 37 Conn. B., 387, 391). An interesting case was recently disposed of by the Supreme Court of New Hampshire, calling for the construction of the descriptive language of a conveyance. It appeared that three successive deeds had been given, " reserving about three-fourths of an acre of land in and about the graveyard on said premises, as now staked out, to be kept for a graveyard lot for the heirs." There was a graveyard on the farm conveyed, about four rods square, inclosed by stone posts and chains. The court held that, if there were no mouuinents on the ground to answer the descrip- tion "as now ttukcd out," so that the land intended to be excepted could not be located without resort to a parol agreement cotem- poraneous with the first deed, tlie exception must fail as to all but the graveyard then on the premises. The court considered the words "as now staked out" to constitute a material part of the description, and, consequently, that the three-fourths of an acre could not be located in a square form about the graveyard {Andrews v. Todd, 50 N. II. B., 565). A conveyance of lands in the State of New Jersey described the premises by courses and distances, with the addition of the words "being the same premises conveyed to K., the grantor, by N., by deed dated," etc. The Court of Chancery of the State held that this conveyance included the whole premises contained in the deed to the grantor, although the specific description omitted a small strip of the land covered by it ( Wtiesthojf v. Seymour, 22 N. J. El. B., ^^). In a conveyance of a town lot in North Carolina, the numbers of the lot upon a plat of the town were given to idehtify it, and a reference was also made to neighboring streets ; but the two parts of the description were inconsistent with each other. The court CONSTRUCTION OF PARTICULAR GRANTS. 159 held that the reference to the streets must give way, for the reason that the lot was the object and not the street. The court further intimated that a description, in pursuance of the primary object for which the lot was mentioned or named, is less apt to be errone- ous than a description by reference to the number or name of the street, as that is incidental, and is a secondary and not the primary object for which the streets were named {^Doe v. Wilmlngtoii, etc., Bailroad Company., 07 iF. C. B., 413). In a case recently decided by the Supreme Court of Illinois, the deed which called for construction bounded the land, l)y monu- ments and courses and distances beyond dispute, " to the west side of C. creek, thence down the west line of said creek to the north line of said quarter section." The court very properly decided that an express grant fixes its own limits, and that the rule that laud bounded by the bank of a stream necessarily excluded the stream itself, applied to this description. It was therefore held that this deed carried the grantee only to the west bank of the creek, and did not give him any right in the bed of the stream {Rochvjell V, Baldwin, 53 III. i?., 19). The Supreme Court of California has lately decided that, where the courses called for in a deed were described as east, west, south and north, and were controlled by otlier well-defined and certain descriptions, in order to harmonize all the calls of the deed these words might be read easterly, westerly, southerly and north- erly. The court was very clear in the opinion that this was tlie proper construction to be put upon the descriptive language of the deed, and it was interpreted in accordance with this view {Faris V. Phelan, 39 Cal. B., 612). And in another case before the same court, involving the construction of the description in a deed of conveyance which ran thus: "All my rights, etc., to a parcel of land situate, etc., being block No. 9, the same on which I now reside. The part thus donated commences at the north-east corner of said block, running twenty-five varas west from said corner ; thence back one hundred varas." The court held this to be a suf- ficient description, and tliat it effectually conveyed a strip ott' the easterly side of the block twenty-five varas wide and one hundred varas deep. {De Levillain v. Evans, 89 Cal. R., 120). A man owning lands on both sides of a stream not navigable, in the State of West Virginia, conveyed a portion of his land on one side of the stream, and bounded it generally by the streanj. The 3 GO LAW OF BOUNDARIES, Supreme Court of the State held that tlie conveyance passed a moietj of the bed of the stream or water-course to the grantee ; declaring that such should always be the construction to be put upon similar conveyances, unless such a construction of the grant be clearly excluded by its own terms {Camden v. Creel, 4 W. Va. B., 365). A very interesting case was lately decided by the Court of Chancery of Kew Jersey, which involved, among other things, the consti'uction to be put upon a conveyance of land ; and although the case did not turn wholly upon the language of the description in the deed, it is of sufficient interest upon the subject of construction to be noted. The owner of adjoining lots in Jersey City, having a fence between them and small houses adjoining, conveyed one lot to A. and tlie other lot afterward to B., without referring in the deed to the fence ; the beginning point in the deed to B. being the north side of South Sixth street, sixty-five feet seven and a half inches east of the north-east corner of South Sixth and Monmouth streets; and that in the deed to A. being forty-three feet nine inches east of that corner; the difference being exactly the width of A.'s lot. An experienced surveyor, accustomed to surveying in Monmouth street, located B.'s lot by running from the east line of that street as it was built upon ; and fixed his west line ten inches west of the fence ; and B. proceeded to build a tliree-story frame dwelling on his lot as thus located. A. did not interfere or give notice not to erect the building on that line until it was nearly finished, when a surveyor employed by him run a line from Monmouth street without reference to -the line of the build- ings thereon, by which he located the line about where the fence had been, making B.'s house ten inches over the line of B.'s lot, as he had located it. The court held that the line upon which B.'s house was erected must be held to be the true line between the lot of B. and that of A. Chancellor Zabriskie, in his opinion, said : " The line located by the complainant's surveyor, parallel to the west side of Monmouth street, and not the diagonal line fi.xed by the surveyor of the defendant, must be taken to be the true line of Monmouth street, as actually located. This is the only monument called for by either deed. Neither deed mentions the fence, or the houses standing on the lots, or the row of eight houses. Bentley and Smith owned both lots, and had the right COXSTRUCTIOX OF PARTICULAIi GRANTS. IGl to make the division line in their sale where they pleased. They may and probably did intend to convey to each a house and lot, as they were built and fenced off. But they have expressed no such intention, but have cliosen to make, and the grantees to accept, conveyances calling for the street as a monument. And it has been held by the Supreme Court that wliere a deed calls for the line of a street as a monument, it shall be held to mean the line as laid out, when not ascertained or acted upon " {De Veneij V. Gallagher, 20 iV"". J. Ch. R., 33, 38 ; and vide Smith v. The State, 3 Zab. E., 130; Den v. Van Ilouten, 2 ih., 61). A case before the Supreme Court of North Carolina recently called for the construction to be put upon the following descrip- tion in a deed : " Tlience 57 E., 3-i poles, with the ditch, to a wil- low stump on the bank of the ditch." The ditch at the beginning was eighteen links, and at the end, two poles wide ; and the wil- low stump was not directly upon the bank, but upon a run which conveyed the water from the ditch. The court held the language of the description to mean through the middle of the ditch to its end, and thence down the run to the willow stump {Cansler v. Henderson, 64 JV. C. R., 469). And the same court held, at about the same time, that a description in a deed of " 752 acres of land, including the land I now live on, and adjoining the same," was too vague to convey more than tlie lands lived on, when the grantor owned much more than 752 acres adjoining the land he lived on. It was declared that, under such circumstances, " adjoin- ing" could not be aided by parol evidence {Robeson v. Lewis, 64 N. C. R., 734). In respect to lands bounded upon a water-course, the Supreme Court of the State of Texas has recently held that, in the absence of all other evidence, where the deed, in defining the boundary of the appellant's land, said "thence down the main channel of the Comal spring," etc., the thread of the stream of the Comal' was the utmost limit of the rights of the appellant {Midler v.. Lander, 31 Tex. R , 265). Two tracts of land in Missouri, conveyed to' different grantees^ by the same grantor, lay upon opposite sides of a pond, througb which a creek flowed at the time of making the deeds. Both of the deeds describing the separate tracts of land gave the' boundary line dividing them Ps "the middle of the natural channel of the creek when the pond is exhausted." The: 21 J^()2 LAW OF BOUXDARIES. \vater in the pond was drawn off or exhausted about eighteen or nineteen years after the deeds were made. The question before the Supreme Court was as to the construction to be given to the phrase " the middle of the natural channel of the creek when the pond is exhausted ;" and it was held that the phrase meant the position of the thread of the creek at the time when the pond was actually exhausted {Mincke v. Skinner, 44 Mo, /?., 92). The Supreme Court of Maine lately had a case before it involving the interpretation of the description in a deed, wherein it appeared that the boundary of- one side of a lot of land conveyed by deed was " by the new county road, leading from " a place named " to" another place named ; and the original location of the road dif- fered from that of the road as actually built and traveled. The court held that the road, as actually built and traveled, must be regarded as the boundary referred to {Sproul v. J^oye, 55 Maine i?., 162). And at about the same time the same court held that courses laid down in a deed, which are repugnant to the remainder of the description, may be rejected if the remainder contains sufficient that is intelligible and consistent to uphold the deed according to the evident intention of the parties {Beal v. Gordon, .55 Maine R., 482). In a case before the Supreme Court of Yermont, where it appeared that the grantor in a deed, one "Weeks, owned the land to and across the Vermont and Canada railroad, and the words of description were: "beginning on the west line of Vermont and Canada railroad and south-east corner of land west of said Weeks, thence south on the west line of said railroad, twenty-eight rods; thence west," etc., the court held that the intention of the parties clearly was, to bound on the west line of the railroad and not on the center line {Maynard v. Weeks, 41 Vt. R., 617). In a case before the Supreme Court of "West Virginia, where a call for a boundary, contained in a deed, was " from the base of the hill to the back line of the survey, such course as will show 500 acres of said tract of 1,000 acres below said division line," the court held that the call for the "back line" would control the call for quantity, and that the line from the base of the hill to the 'back line must be a straight line {Tomkins v. Vintroux, 3 W. Va., R., 148). In the State of Texas, the description in a deed was the follow COySTRUCTTON OF PARTICULAR GRANTS. 163 ino-: "Beo-innino- at the west corner of tlie G. survey, tlience 3. 45° E. to B.'s corner; thence N. 45° E. to B.'s corner on T.'s line ; thence N. 45°, W. to the south boundary line of the E. survey; thence S. 45° W. to the beginning, to include 571 acres of land ; and if said point will not include enough land to make the complement 571 acres, it is to run north on said E. survey for the deficit." The Supreme Court of the State held that this description passed all the grantor's land in the G. league bounded on one side by B.'s line and on the other by T.'s line, and that what it lacked of 571 acres should be supplied from the E. league. And it was further held, that the grantee was not restricted to 571 acres, if the tract described contained more, as it did not appear that the land was sold by the acre, and there were no words expressing an intention to restrict the convey- ance to exactly 571 acres {Johnson v. Garrett, 25 Tex. E. [«?Ap/».], 13). The Supreme Judicial Court of Massachusetts, some time since, decided that a deed of a mill and mill-dam, " with all the rights, privileges and appurtenances thereto appertaining, as mill-yard, timber, stove, iron, stream or streams, including a lot of land lying on the north side of the river and bounded on the west by the highway," did not convey any land west of the highway, and could not be shown to have that effect by evidence that the owner of the mill had been accustomed so to deposit logs for more than twenty years {Morton v. Moore, 15 Graifs R., 573). And the same court decided in another case, where it appeared that A. con- veyed to W. a lot of land " situate on the northerly side " of a certain street, and " bounded and described as follows : beginning at a point on the line of land of B. ; thence by said street nortli fifty- eight and three-quarter degrees west, about one hundred feet, to a stake and stones at the corner of land of G. ; thence north thirty- one and a quarter degrees east, to the river ; thence by said B.'s land to the first-mentioned bound," that the fee of the land to the center of the street passed to W., it appearing that A. M-as seised thereof at the time of this conveyance {White v. Godfrey, 97 Mass. R., 472). In the Supreme Court of the State of Maine, in a case wherein it appeared that the last call in a deed describing the territory in township No. 21 was from an undisputed point of departure, " thence south-westerly by a line to be run between townships No. 164 LAW OF BOUNDARIES. 21 and Xo. 22, to the place of beginning," it was lield that the call repudiated all former lines between the terimni mentioned, and that the line to be run should be the shortest distance between the points named ; and that a subsequent clause " according to a survey and plan of said township by P. and D.," could not control or modity the preceding language. And the court accordingly held that an instruction to the jury that another line, admitted to have been made by the proprietors prior to the date of the deed to the plaintiffs, purporting to be the true line between townships 21 and 22, was the controlling monument answering tlie call, and that the point of departure must be rejected as inconsistent with the other and superior monument referred to in the deed, was erroneous. {Grant v. Blacky 53 Maine i?., 557). "Where a description in a deed was as follows : "A part of frac- tional section number 19, being the half of the west half of the north-west quarter of section number 29, in township 7, south, of range 14, west, containing 40 acres," the Supreme Court of Indi- ana held that, rejecting the words "a part of fractional section number 19," as contradicting a more particular description follow- ing, the conveyance was good to pass an undivided half of the west half of the north-west quarter of the section referred to ; applying the rule of construction, that words of particular descrip- tion will control more general terms of description where both cannot stand together [Gano v. Aldrldge, 27 Ind. B., 294). The Supreme Court of Maine decided that, where land was described in a deed as beginning at a stake and stones and the corner of the grantor's land, thence running in a certain direction on the grantor's land and A. D.'s line, the true corner of the grantor's land, if established, was the point of beginning; and that parol evidence that the stake and stones were in another place was not admissible ; and, further, that the true line between the grantor and A. D, was the true boundary on that side. And it was declared by the court that it was not material that the grantor and former owner of the land adjacent had occupied to tlie stake and stones for ten years, or that, before conveying, the plaintiff, defendant and a surveyor established the stake, etc., as monuments and bounds, and the defendant supposed them to be the true bounds when he took the deed ( Wlswell v. Marston, 54 Maine R., 270). And the same court held, at the same term_ where the owner of land, and a street running through, conveyed COXSTRUCTIOX OF PARTICULAR GRAXTS. 1C5 all the laud south of the southerly Hue of said street to "A.," and at the same time conveyed to " B." all the land north of the south- erly line of said street, that the fee in the land covered by the street passed to " B." And it was farther held that words in the deed to A.'s grantor, " with the buildings thereon," ad haben- dum^ "above granted premises, with privileges and appurtenances thereto belonging," did not pass tlie fee to any portion of the land north of the southerly line of the street ( Wari'eri v. Blal^e^ 5i Maine i?., 276). A deed of land in Massachusetts, in describing the granted pre- mises, after naming a certain monument, added, " thence running southerly by land improved by A. to the road ;" and it appeared that a straight line to the road, running a little east of souih, would include the laud improved by A. in the granted premises; while a line running a little south of west to the corner of the land improved by A., and thence along the line of said land a little east of south to the road, at a point nearly south of the monu- ment, would exclude said land from, the granted premises. Tlie Supreme Judicial Court of the State held that the latter construc- tion was to be adopted as the true one ; and the court declared that, where a description in a deed is clear and unambiguous, the court will put a construction upon the terms used, and will not receive parol evidence to show the intention of the parties and control its legal effect. And, further, that where au}^ part of the description in a deed is inconsistent with the rest, and thus shown to be erroneous, it will be rejected by the court {Bond v, Fay^ 12 AlUrCs B., 86). "Where a boundary line in a deed of land in California was described as commencing at a tree, and " thence running easterly parallel with the southern line of said Antelope ranch, according to the survey of the same made by the United States Surveyor-General for said State, to said Antelope creek," the Supreme Court of the State held that the language was not ambiguous; and that evi- dence aliunde was not admissible to show that a straight line, fol- lowing the general course of the southern boundai-v, was intended. And it was further held that the southern line of Anteh^pe ranch referred to, being a broken line, and there being no nionnniciit referred to at which the line would terminate, the boundary would run parallel with the broken line, and not straight and parallel with its general course {Pratt v. Woodward, 32 Cal. B., 211)). 166 LAW OF BOVNDAEIES. In settlement of a dispute between M. and P. as to the title to a tract of land in Ohio, P. conveyed a part thereof containino; 325 acres to M. ; and two months later M. conveyed to P. a tract which, by the distances given, included part of the land conveyed by P. to M., bnt was described as bounded by " the tract of 325 acres of said M." The Supreme Court of the State, before whom the deeds came for construction, held that the deeds were to be construed together, and that the measurements should be rejected, and the line established by the first deed and referred to by the second should be adopted {Calhouji v. Pi'ice, 17 Ohio St. i?., 96). In a somewhat recent case before the Supreme Court of Ver- mont, where the description in a deed read " east 15 degrees south on said L.'s line," and it was found that L.'s line ran east 13f degrees south, it was held that "on said L.'s line" was the con- trolling description. Tiie variance in the courses between the description in the deed and the actual tact was deemed immate- rial, and was disregarded {Park v. Pratt, 38 Vt. C, 515). A description of lands in the State of New Jersey was given in the deed as beginning " on the south-west side of" a certain highway, and there were no other words in the conveyance to show the intent of the parties ; the courts of the State held that the description excluded the highway, that is, that no part of the highway passed by the deed {Iloboken Land, etc., Company v. Kerrigan, 2 Yroomi's R., 13). And the Supreme Court of the State of Wisconsin has recently declared that, where a highway or river is named in a deed as a boundary of land conveyed, the center of such highway or river is to be understood, unless there are express words limiting the boundary to the bank of the river or the side of the highway ; but that, where there is a known and well-ascertained place of beginning in the description in a deed, that must govern, and the grant must be confined within the boundaries given. The case before the court was this: "Where there was a road three rods wide along the northern line of a sec- tion, and one four rods wide along the western line (the section line in each case being the center of the road), land conveyed by a deed was described therein as " commencing on the road at the north-west corner" of said section, "thence south on the road" runnino: along the west side of said section, "sixteen rods; thence, at right angles with said road, and parallel with the north line of said section, twenty rods to a stake ; thence, at right angles, and CONSTRVCTIOX OF PARTICULAR GRAXTS. \Q)1 parallel with the west Hne of said section, to the road " on the north side of the section ; " thence west, along the line of said road, twenty rods, to the place of beginning, containing tvyo acres ; " by actnal survey it appeared that the stake mentioned in tlie deed was twenty-two rods east of the west line, and seventeen and a half rods south of the north line of said sectiun. The court held that in determining the land conveyed by the deed it was necessary to commence with the intersection of the center lines of said roads, which was the north-west corner of the section — to follow the center line of the west road sixteen rods; to follow a direct line to said stake ; thence a line parallel with the west sec- tion line to the center of the road on the north ; and thence along the center of said road to the place of beginning. And the court declared, in deciding the case, that, in construing the description of land in a deed of conveyance, a section corner mentioned therein will control courses and distances {Gove v. White^ 20 Wis. R., 425). CHAPTER XIV. FURTHER CASES PASSED UPON BY THE COURTS, GIVING CONSTRUCTION TO PARTICULAR CONVEYANCES IN RESPECT TO BOUNDARY CASES MISCELLANEOUSLY STATED. There are still other cases which have been passed upon by the courts, involving the interpretation of the language of particular conveyances in respect to the boundary of lands, and which may very properly be considered. An important case came before the Supreme Court of the State of Maine a few years since, wherein it was held that the line of a parcel of land, to run paralled with and at a specified distance from the south side of a building, should be measured from the corner- board of that side, and not from the outer edge of the eaves {Pro2)rletors of Center St. Church v. Machias Hotel Company, bi 3lame 7?., 413). This establishes a principle of construction which may often be applied, and the doctrine of the case is doubt- less correct. If the boundary was the side of the building, over which the eaves projected, ]>robably the courts would hold that the parties intended the outer edge of the eaves to be the line 168 LAW OF BOUyDARIES. The same court held, about the same time, that the word "from '* an object, or " to" an object used in a deed exchides the terminus referred to. To illustrate ; the case in the deed was expressed as follows : " Thence easterly, about thirty-five feet, to land now or formerly owned by I. B. ; thence by I, B.'s land," etc. ; and pre- viously thereto, the grantor in such deed had conveyed to I. B., by deed of M-arranty, not recorded, a two-foot strip of land off from the side of his land adjoining I. B.'s land; and it was held that it would not be presumed that the grantor intended fi-aud upon his prior grantee, and the description was held to exclude the two-foot strip ; I. B. not owning it the less because his deed was unrecorded {Bonyiey v. 3IorrfU, 52 Jfaine 7?., 252). The Supreme Judicial Court of Massachusetts has held that a deed of land bounded "easterly by said thirty-foot street by a line which is parallel with and 190 feet distant from B. street,-' B. street being 160 feet eastwardly from the thirty-foot street, con- veyed no part of that street {Brahiard v. Boston, etc., B. B. Co., 12 Gixiifs B., 407). And the same court has since held that a point of land, described in a deed as being "five rods due south of B.'s south-east corner bound," was to be located by measurement from the south-east corner of the land actually owned by B., when such corner was difterent from the corner of land occupied by him ( WeUfieet v. Ttuto, 9 Allen's B., 137). The Supreme Court of Delaware, in a case before it invohnng the construction of a conveyance, held that the words in a deed, " together with all and singular the mill, house, mill-dam, races, flood-gates, mill-wlieels, stones, hoppers, bolting charts and cloths, waters, water-coui-ses, and other appurtenances," did not pass the title to the bed of the mill-pond {^Bartholomew v. Edwards, 1 Houston's B., 17). Where a description of lands in a mortgage deed was in the words '^ the south-west quarter of section 31, etc., and also the following tract adjoining the above-described tract on the west ; to wit, forty rods in widtii off" of the east side of the north-east quarter of section 36, etc., which said tract extends forty rods in width as aforesaid, and from the north line to the south line of said last-mentioned quarter-section;" the Supreme Court of Indi- ana, before whom the conveyance came for interpretation, held tiiat the tract forty rods wide was conveyed which adjoined iha first-mentioned section on the west, and disregarded the other CONSTRUCTION OF PARTICULAR GRANTS. 169 description, where the tract forty feet wide off of the east part of the north-east quarter of section 36 did not adjoin said south-west quarter of section 31 on the west {Gray v. Stien, 24 Ind. 7?., 174). The Supreme Conrt of Georgia decided that a deed of hind describing the granted premises as " lying and being on the we^t side" of a river which was not navigable, conveyed the title to an island in the river, which was situate west of the main channel {Sta'nford v. Mangin, 30 Geo. R., 355). In this case the general doctrine in cases of land bounded generally upon an unnavigable river or stream was applied, although the language of the descrip- tion was somewhat different from the other cases referred to wherein the doctrine has been applied. The Supreme Court of Pennsylvania held, in a case where it appeared that a portion of land, on the bank of a navigable river, was marked in the town plan as " a beach," and dedicated to pub- lic use, and certain lots thereon were conveyed by deeds, which called for the " beach of the river" as one of theii- boundaries, that in construing other deeds for lots, which in terms were bounded by " the river," they were to be so far controlled by the town plan as to fix the '-beach," and not the river, as the real and proper bonndary ; and in the same case the general rule was laid down, that where a map or town plan, made by the proprietor of lands on which a town is located, is referred to in a deed by the proprietor, for one or more of the town lots, it becomes a material and essential part of the conveyance, and has the same force and effect as if incorporated into the deed {Birmingham v. Anderson, 48 Penn. R., 253). Some very important principles in respect to boundary were recently settled by the Supreme Court of the United States. In the case before the court, it appeared that a proprietor who had dedicated a street to the public use, without granting the fee, con- veyed a lot bounded on the street, and the street was bounded on the opposite side by Lake Michigan. The court held that the grantee took the fee to the center of the street upon the side adjoining the land conveyed, su])ject to the right of way. But, as to the" side of the street bounded on the lake, the grantee took nothing by his deed beyond the center, while the fee of the half bounded by the lake remained in the proprietor, subject to the easement. And it was further held that, where a lake boundary BO 'limits a street as to reduce it to less than half its regular width, 22 170 i^TT OF BOUNDARIES. the street so reduced must still be divided by its center line between the grantee of the lot bounded by it and the original proprietor ; and further, that accretion, by alluvion, upon a street reduced by a lake boundary to less than half its regular Avidtli, belongs to the original proprietor of the lot ; in whom, subject to the public easement, the fee of the half of the lake remains. The decision of the case involved these several questions, and they were carefully examined by Chief Justice Chase, who gave the opinion of the court, and were settled as above stated {Banks v. Ogden, 2 Wall. B., 57). Another important case was disposed of by the same court, at the same term, involving principles which are important to be noted. The conveyance before the court for interpretation was of a division or branch of a canal, " including its hanks, margins, tow-paths, side-outs, feeders, basins, right of loay, dams, loater- power, structures, and all the appurtenances thereunto belonging." The court held that adjoining parcels of land belonging to the grantor, which were necessary to the use of the canal and water- power, and were used with it at the time, but which could not be included in any of the terms above, in italics, passed by the convey- ance. The opinion of the court was delivered by Mr. Justice Field, and, as he gives very clear reasons for the ruling, and refers to author- ities upon the point, it may be well to give an extract from his opin- ion. He says: " The objection that the deed does not cover the pre- mises in controversy rests upon the fact that it does not convey the parcels of land, for which the action is brought, by specific desig- nation and description. Such designation and description, though usual, are not always essential. Land will often pass by other terms. Thus, a grant of a messuage, or a messuage with the appurtenances, will cany the dwelling-house and adjoining build- ings ; and also its orchard, garden and curtilage {Shepard's Touch- stone, 94). The true rule on the subject is this: that everything essential to the beneficial use and enjoyment of the property desig- nated is, in the absence of language indicating a different inten- tion on the part of the grantor, to be considered as passing by the conveyance {Sparks v. Hess, 15 California, 196). Thus, the devise of a mill and its appurtenances was held by Mr. Jus- tice Story to pass to the devisee not merely the building, but all the land under the mill and necessary for its use, and commonly used with it ( Whitney v. Olney, 3 Mason, 2S0). So a convey- CONSTRUCTION OF PARTICULAR GRANTS. 171 ance ' of a certain tenement, beinf;^ one-lialf of a corn-mil], situ- ated' on a designated lot, 'with all the privileges and appurte- nances,' was held by the Supreme Court of New Hampshire to pass not only the mill, but the land on which it was situated, together with such portion of tlie water privilege as was essen- tial to its use {Gilsoii v. Brockway., 8 Neio Hampshire, 4Go). And the exception of a factory from a mortgage deed was held, by the Supreme Court of Massachusetts, to extend to the land under the factory, and the water privilege appurtenant thereto. See, also, to the same effect. Wise v. W/ieeler (6 Iredell, 196) ; and Blaine's Lessees v. Chamhers (1 Sergeant & Rawle, 169). * * * This language is comprehensive enough to carrj' the several par- cels of land described in the declaration " {8hnts v. Seidell's Lessee, 2 Wall. B., 177, 187, 188). It was ably argued by counsel in this case that the court could not hold that the deed carried the land in question, except by holding that it passed by the word "appur- tenances ;" but it does not appear that the decision was placed upon that view. Reference was made by counsel to the well- settled doctrine " that lands will not pass by the word appurte- nances;" and then he proceeded: " To insist that the particular tracts described in the lease are appurtenant to some one or more of the things sold by the State would be even more absurd than to maintain that land can be appurtenant to land. It would be maintaining that land can be appurtenant to a mere easement, a right of way, a water-power, or a stream of water, natural or arti- ficial. The lands demised cannot be '' appurtenanV io the hed of the canal, nor to its hanks, nor its hasins, nor its toio-paths, nor its side-cuts, nor W.^ feeders, nor its hasins, nor the right of way, nor the dams, nor the water-power, nor the structures, specilied in the act." This reasoning is very good if it was pertinent to the case in hand. But the court was of the opinion that the parcels of land in question passed by the deed, and the reasons are assigned in the extract from the opinion above quoted. A case was decided by the Supreme Court of Maine, wherein it appeared that A. conveyed to B. a portion of a lot of land of a certain width, and extending so far in length "as will make pre- cisely twenty acres;" and immediately afterward A. and B., by mutual agreement and survey, marked the lines and curves of the granted premises by spotted trees and stakes. The next year A. conveyed to C. the remainder of the lot, more or less, bounding' 172 LAW OF BOUNDARIES. it on the east " by the west line of B.'s land." B. and C. occu pied their several pai'cels, according to the line marked b}' A. and. B., fo,r about twenty-live years. In the mean time B., by the decision of a lawsuit between him and a third party, had his lot widened on one side four rods, and, in consequence, relinquished two rods on the other side. C, without an^' suit, conformed his lines to B.'s new ones. But the division line between B. and C, and their occupation of their respective parcels, continued as before. In an action, brought by C.'s grantee, to recover of B.'s grantee all of the original lot except twenty acres, the court held that the parties intended, in the conveyance from A. to C, to bound the land conveyed by the well-known marked line then existing, and not by an imaginary M-est line of B.'s land, to include therein "precisely twenty acres" {Fought v. Ilohoay^ 50 Maine IL, 24). And the same court, in giving construction to a deed conveying a grist-mill, with the land and privileges, where it was situated, " necessarj^ for and attached to said grist-mill, hereby meaning to convey all tiie lands and mill privilege (not heretofore sold by us) on the farm connected with said grist-mill and privi- lege," held that the eifect of the deed was to convey all the land and privilege Hot before sold by the grantor, and connected with the mill and privilege, and not merely what was strictly necessary for and attached to the mill. But it was said that if the parties had, by their acts and occupation, treated the grant as embracing not all the lands and privilege on the dam not previously sold, but all the lands and privilege connected with the grist-mill not previously sold, the court would not interfere to control their con- struction {Esty V. Baker, 50 Maine Ji., 325). The Supreme Court of Vermont has held that a deed which described the land conveyed as " lots No. 22 and 23, in the second division of lots in said Chelsea, and is all and the same land which we now occupy and improve as our home-farm," passed the whole of the land occupied as " our home-farm," although a part of it was not included in said lots No. 22 and 23 {Sjjlllery. Scrih- ner, 36 Vt. B., 245). The Supreme Judicial Court of Massachusetts disposed of a case in which the construction of a deed of land was involved, where the deed, in describing the granted premises, after naming a cer- tain monument, added: "thence running southerly l)y land improved by A. to the road," and it appeared that a straight line to COKSTRUCTIOJSr OF PARTICULAR GRANTS. 173 the road, running a little east of south, would include the land improved by A. in the granted premises, ^vhile a line running a little south of west, to the comer of the land improved by A., and thence along the line of said land a little east of south to tlie road, at a point nearly south of the monument, would exclude said land from the granted premises. The court held that the latter con- struction was to be adopted as the true one, and the case was accordingly decided upon that view {Bond v. Fay, 8 Allen's R., 212). And the same distinguished court disposed of another case at the same term, which involved the rights of a grantee in a deed depending entirely upon the proper construction to be put upon the conveyance. The deed was for a certain lot of land, with a store thereon, " together with all the rights, easements, privi- leges and appurtenances thereto belonging, and now enjoyed therewith; being the same premises which A. B. conveyed to me." The question arose upon the words quoted, and the court held that the deed did not include a lot of land in the rear of the described premises, which was not conveyed by A. B. to the gi-antor, although it appeared that the grantor owned tlie same, and had built thereon a store, connected with the store on the described premises by a covered bridge, and had agreed with the owners of adjoining lots that such rear store should not be rented or occupied by any person, except the owner or occupants of the front store, as an appendage to the same, and that no building should ever be erected upon such rear lot, except of a specified heio-ht. Chapman, J., delivered the opinion of the court, in the course of which he enunciated principles and referred to authorities which are important to note. He says : '^ The last clause excludes the demanded premises: for it is conceded that the deed of Dwight and others did not include them. If, therefore, they passetl by the mortgage, it must be under the clause granting all the 'rights, easements, privileges and appurtenances thereto belonging, and now had and used and enjoyed therewith.' The questfon arising in this case is, whether the premises were con- veyed by these words. All these words have a well-defined legal feign iiication. The word 'rights,' as applied to property, refers to the free use, enjoyment and disposal of it (1 Bl. Com., 13S). It also includes the estate in esse in conveyances {Co. Litt., 345 J.). It is often included in the word ' title,' which is the more general word {Il>j. Such being its definition, it cannot be construed to 174 i^TF OF BOUNDARIES. include an additional tract of land. The next word used is ' ease- ments,' and it is contended that the fee of land passes by this word. If the demanded premises are included, it must be by virtue of the phrase ' privileges and appurtenances.' The last word is the one relied on by the tenants. It is conceded that geneially one tract of land cannot pass as an appurtenance to another tract. This point is discussed in Leonard v. White (7 Mass., 6). And in Tyler v. Hammond (11 Plclc., 124), Wilde, J., says it is well set- tled that land cannot pass as appurtenant to land. The technical signification of the word 'appurtenances' is not large enough to include a distinct parcel of land, which is not described in the deed. In construing a deed, the courts seek to ascertain the intention of the grantor, and construe his language most strongly against him- self ; but the intention is to be gathered from the language of the instrument, and the words he uses are to be taken in their usual legal signification, unless it appears from the connection in which they are used that he has attaclied a different meaning to them. It has accordiiigly been held that, in a devise, land may pass under the word 'appurtenances,' the intention of the testator being gathered from all parts of his will, and from his own habits in respect to the use of the property {Otis v. Smith, 9 Pid\, 923). The courts seem to regard a will as different from a deed. It is so in two respects : 1 A testator is not presumed to use language as accurately as a grantor ; 2. A will is presumed to dispose of all the estate of the testator, and, if there is no other disposition of the fee of that which is given as an appurtenance, a presumption is raised that the word was intended to include the fee. " But it is also true that, in a grant, the words will be construed according to the intent of the parties as manifested by the whole instrument, and the word 'appurtenances' is subject to tliis rule of construction ; so that, if it is apparent to the court that the grantee used it to express an idea different from its technical sig- nification, they will construe it accordingly {Whitney v. OIney, 3 Mason, 280. and cases cited; 2 Washburn on Heal Prop., 627). In Hill V. West (4 Yeates, 142) this principle of interpretation was carried so far, in respect to a deed made in 1704, that city lots, laid out under Penn's survey in the Liberties of Philadelphia, were held to pass as appurtenant to a large tract of land in the county at a considerable distance from them. But the case was peculiar, and is valuable only as an extreme illustration. Where COKSTRUCTIOX OF PARTICULAR GRAXTS, 175 it is not clear that a grantor used a technical word in an unusual sense, it is just toward all parties to presume that he used it in its ordinary and technical sense. "It is held that flats may pass, in the partition of real estate by commissioners, under the phrase 'a wharf and dock, with all the privileges and appurtenances thereto belonging' [Doane v. Broad Street Association, 6 Mass., 332). But the court did not regard the wharf as land, but as a structure erected on the land ; so that land might pass with it as appurtenant to it, on the same ground that it will pass with a mill or messuage. In that case it was clear, from the return of the commissioners, that they intended to assign the flats with the wharf. In Ashley v. Eastern Railroad (5 Met., 368) a deed of a wharf is held to convey the adjoining flats as appurtenant. But in all these cases the land passes M'itli the thing described as parcel rather than appurtenant (2 Washburn on Real Prop., 627). The deed of mortgage conveys the land with the new store thereon ; and it is neces- sary to consider whether the store on the land mortgaged was 60 connected with the store on the demanded premises that it can be regarded as parcel of it, and to pass together with the land on which it stood. * * * y{\q fact that the back store could not be approached for ordinary use, except through the front store, has some tendency to show that he intended to convey both. ' But this fact is not sufficient to control the language of the deed ; especially as he had provided a passage- way to the back store independently of the front store, though the purposes for which he might approach it and occupy it were very limited. Such a restriction upon its use may aff'ect its value, but that consideration is not very important in construing the deed. There is nothing, either in the words of the instrument or the situation of the property, to control the express declaration that the property conveyed by the mortgage was the same that Messrs. Dwight and others conveyed to him" {Ammidown v. Granite Bank, 8 Allen's R., 285, 290-293). But the same dis- tinguished court held, at the same term, that a deed of a certain described lot of land, "together with all the dwelling-house and building, with the appurtenances, situate thereon or thereto belonging; to have and to hold the above granted premises, with the privileges and appurtenances thereto belonging," included a small lot of land adjoining the granted premises, which waa 17(> LAW OF BOUyDARIES. liabituallj used with the dwelling-house, and was reasonably necessary to be lield in connection with it. Chapman, J., also delivered the opinion of the court in this case, and said: "AVe must apply to this deed the well-established rule of construction stated in Salishury v, Andreios (19 Pick., 253), that every word shall be presumed to have been used for some purpose, and shall have some force and effect if it can. According to the strict tech- nical signification of the word, land cannot be appurtenant to a bank. But where a bank is conveyed with its ' appurtenances,' the word must refer to land if it have any meaning ; and the grantor must liave used it to indicate land. The older authorities on this subject are collated in Smith v. Martin (2 Saund., 400, note)] and they hold that at least the garden, curtilage and cose adjoining the house will pass. Strictly, they pass as parcel of the house. The modern authorities are at least no more strict in their definitions of the word appurtenances than the more ancient ones. Such being the rule of construction, it must be held that the demanded premises passed with the house ; for they consisted of a small close or curtilage adjoining it, prepared with considera- ble pains to be used with it, habitually used with it, and reasonably necessary to be held in connection with it and with the passage in the rear, which was appurtenant to the estate " {Ammidoion v. Ball, 8 Allen's R., 293, 295). A case recently came before the Supreme Court of North Caro- lina, turning upon the proper construction to be put upon the language in a conveyance. The beginning corner of the deed was on a private avenue, and the other calls of the deed came back to the mouth of the avenue, and " thence down the said avenue to the beginning, reserving forever twenty feet for my avenue." The court held that this reservation explained the meaning of the grantor to be to run to the middle of the avenue, and thence down it in the middle to a point opposite the begin- ning ; thence to the beginning {Hayes v. Askew, 8 Jones Lam li., 226). And the same court held that, where the second call of a boundary is clearly established, the first may be ascertained by running the course reversed, and measuring on it the distance called for. In the deed before the court a white was called for as a corner, and a white-oak was pointed out nearl}' in the course, by a marked line leading to it; and there were other cir- cumstances going to show that this white-oak was the white CONSTRUCTION OF PARTICULAR GRANTS. 177 called for as the corner. The court held that it was a proper question to leave to tlie jury, whether the white-oak was, in fact, the corner intended {Dohson v. Finley, 8 Jones Law R., 495). A case was lately decided by the Supreme Court of California, wliere the deed described the land conveyed as one league in amount, and bounded on one side by a stream not navigable ; on the second side by a line starting from the river, in the direction of a line directly crossing the line of the river ; on the third side, by a line that ran one league parallel with the river; and on the fourth side by a line that ran parallel with the line on the second side. The court held that the first line was to follow the mean- derings of the river until a point in the river was reached one league distant, when reduced to a straight line, from the point of beginning ; that the second and fourth lines were to run parallel with each other, at right angles with such straight line, and that the third line was to run parallel with the river in all its niean- derings {lUcU v. Coleman, 25 Cal. R., 122). And the same court disposed of anotlier case, wherein it appeared that a deed conveyed nine leagues of land, commencing at a point on a certain river, " two leao-ues in length along said river below a point on the same made by the intersection with the river of the lower or southerly boundary line of a tract of land on said river known as the rancho of Larkin's children ; thence running southerly (its eastern boundary for the whole length being said river) nine leagues, more or less," etc., reciting that the whole of the B. grant was intended to be conveyed, " with the exception of a tract of two leagues in length, along and with said river, on the upper or northerly part of said" B.' grant. The court held that the two leagues along, the river should be measured in a straight line, and not by follow- in The court held, 1. That the words " belonging thereto" referred to the house, and not to the grantor. 2. That the words " out- buildings thereon" meant the out-buildings on "the land used \vith" the house. 3. That a barn was one of the out-buildings, and that the deed convej'ed such barn and the land on which it stood ( Woodman v. Smith, 53 Maine R., 70). In a late case before the Supreme Judicial Court of Massachu- setts, it appeared that A. conveyed a lot of land to W., "situate on the northerly side" of a certain street, and "bounded and described as follows: beginning at a point on the line of land of B. ; thence by said street north Hfty-eight and three-quarters degrees west, about one hundred feet, to a stake and stones at the corner of land of G. ; thence north thirt^'-one and a quarter degrees east to the river; thence by said B.'s land to the first mentioned bound." The court held that the fee of the land to the center of the street passed to W., it appearing that A. was seised thereof at the time of this conveyance {White v. Godfrey^ 97 Mass. R., 472). And the same court, very lately, disposed of another case involving the construction of a deed, which was somewhat peculiar in its phraseology. The deed under which the claim arose first clearly described all the boundaries of " one piece of land lying the south side of the count}'^ road," on both sides of a certain river, bounded on one Cole's land on the west, by a definite line on the south, and by one Bartlett's land on the east. The deed then added, " all the land situate and lying north of the road aforesaid, bounded north of the lines of Matthew Clark's land, and west on" another road distinctly identified. Upon ap[)lying the deed to the land, as shown on the plan presented, the court was of the opinion that, taking the whole deed together, the words "bounded north of the lines of Matthew Clark's land" defined the northern boundary of the premises granted. This was thought to be so obviously the only construction which would make the whole description coherent, that the court was ready to hold, if necessary, that the word " of," in this clause of the deed, had been used in its obsolete, but perfectly grammatical, meaning of " by," as in the familiar examples — "run of men" — "led of the spirit" — "tempted of the devil;" although the court more naturally inferred that the scrivener, in writing the description in the deed, had inadvertently used the preposition "of," instead of the word " in," as he did in the next followino: clause. The court 216 LAW OF BOUyDARIhS. therefore held that the deed in question included only lands lying compactly together, and not the outlying lot farther to the north, which was separated by the land of Matthew Clark's lines from the other lands described {Ilamium v. Klngsley, 107 Mass. R., 355). And in another late case, before the same court, wherein it appeared that a part of the description of a boundary was : " Commencing at a point 250 feet north-westerly from Washing- ton street, on the line of a private way, and running north-west- erly, * * * easterly, * * * southerly, * * * west- erly by the fence, * * * and continuing in the same direc- tion until it comes to said private way or point of beginning," the court held that the east line must be continued on the line of the fence, though it thereby struck the private way at a point nearer than 250 feet to the street {Needham v. Judson, H)l Mass. i?., 155). In a late case, decided by the Supreme Court of Pennsylvania, it appeared that a grantor conveyed a subdivision of his land by deed, reciting the last line as identical with his eastern boundary; but, by mistake, the line was located 200 perches west of it. The court hehl that the calls in the deed were controlled by the line as located; and declared that the mistake did not injure tlie grantee, he having received all tlie land he had purchased {Craft v. Yeaney^ QQ Penn. R., 210). CHAPTER XYIII. TASES PASSKD UPON BY THE COURTS RELATING TO BOUNDARY OF LANDS ADJOINING THE SEA AND RIVERS, AND OTHER BODIES OF WATER AND STREAMS CASES MISCELLANEOUSLY STATED. It may be convenient to have the leading cases which have been decided by the courts, in which particular conveyances have been construed in respect to the boundary of lands upon tlie sea and other bodies of water and streams, grouped togetlier in one place ; and this chapter will, therefore, be devoted to an examina- tion of those cases, but without regard to the chronological order in which they occurred or the places where they were decided. It will have been observed, however, that a few of such cases are LAyDS WITH WATER BOUXD ARIES. 217 noted in precedino- cliapters. Some t^venty years ago, a case was decided by the Supreme Court of xMuine, wl>erciu it appeared ■ that hind was descril)ed in a deed as containing two and a halt acres of salt marsh, and as being within the following bounds : Be-inning at a corner by the beach, and running by a given Imo to a creek" and by the creek to a certain marsh, and then by the marsh to a ditch, and then by the ditch to the beach, and ruunmg by the beach to the place begun at. The court held that the land granted adjoined upon the land washed by the waves ot the sea althouo-h the quantity of land within the boundaries exceeded that named'in the deed, and although the ditch did not extend the whole distance to the beach. And the court further held that the word "beach" must be construed to designate land washed by the sea, and to be synonymous with " shore " {Llttlefield v. Lit- tlefidd, 28 Maine i?., 180). ^ 'jn a case decided by the Supreme Court of Illinois, several years since, it appeared that in a grant, by the United States, ot land bordering on a stream not navigable, laid down upon the minutes of the surveyor in his ofhce as meandering, but there M-as no marked line upon the plat by which the grant was made limiting the grant to the margin of the stream. The court held tliat the grantee took to the center thread of the stream, and that the meandered line, run for the purpose of determining the quan- tity of the land in the fraction, was not a boundary. And the general doctrine was laid down, that the grantee of land, border- in.^ on a stream not navigable, takes to the center of the stream, mdess there is an express reservation confining him to the margin ; and that he is entitled to recover damages against a party who, to his injurv, diverts the water passing over his land from its natural channel "(Canal Trustees v. Haven, 5 Gllmaii's R., 5i8). ^ A case was decided by the Supreme Court of the State ot New York soon after the present judiciary of the State went into effect' involvin- the construction of the language in a grant from the State Th^e patent issued by the State described the land granted as running " north twenty-three degrees east to J^ie river and thence down along the said river," etc. The court held that, in the absence of any circumstances to control the construction, and to show the actual intention of the parties to be otherwise, this description would afford presumptive evidence of a design to carry the north line of the lot to the middle of the river. 13ut 28 218 LAW OF BOUND ABIES. that it was only presumptive evidence which was liable to be overcome by evidence of a different intent. And in this case, the court was of opinion there was evidence to show that the princi- ple of riparian ownership was not intended to apply to the patent nnder consideration, and that the grant did not, therefore, carry the grantee to the thread of the stream {Orendorf v. Steele, 2 Barh. E., 126). And in a later case before the same court, wherein it appeared that a grant of land from the State described the land to be located as " all that square mile beginning at the mouth of a creek nearly opposite to the head of Grand Isle on the easterly side of the outlet of Lake Erie," and the northern boundary was to run " westerly to the waters of the said outlet, and thence along the same to the place of heginning; it was held that the language employed denoted an intention to stop at the edge or margin of the river. But it was also held in the case that the common-law rule, as applied to the construction of descriptions in a deed bouudiag the premises by, or along, or upon a river, has no application to lands bounded by the Niagara river, because that river turins a natural boundary between this country and a foreign nation {Kingman v. Sparrow, 12 Barh. R., 201). The case had been before decided by the old Supreme Court of tlie State, atid then taken to the Court of Appeals, where the judgment of the Supreme Court was reversed, and a new trial granted, but not on the ground of error in the construction of the grant in the particu- lars indicated, but upon other grounds entirely ; the question of construction, as discussed by the present Supreme Court, does not seem to have been passed upon by the Court of Appeals in any way whatever {Sparrow v. Kingman, 1 K. Y. B., 2-42). And the case, as decided in the 12th of Barbour, has been several times referred to as authority by the Supreme Court, and the construc- tion there put upon the language of the description contained in the grant is doubtless correct. Anotlier case before tlie present Supreme Court of New York, involving the interpretation of a conveyance bounding land upon the Hudson river, was elaborately discussed and carefully con sidered. The deed passed upon by the court described the west line of the premises conveyed as running south " to the north bounds of Hudson river, thence easterly along the said river, so as to include so much of the island as is situated within lot ISTo. 2, which island lies near the said north bounds of Hudson river," etc. LAiWDS WITH WATER BOUNDARIES. 210 The court held that this boundary carried the grantee to the cen- ter of the main channel of the river, and not merely to the bank. The land conveyed was situated upon the river above tide-water, and where the river was not actually navigable. Willard, J., in delivering the opinion of the court, said: "At common law, a grant of land bounded upon the sea-shore, or upon a stream or arm of the sea, where the tide ebbs and flows, conveys to the grantee only that part of the bank which is not covered by the water at the ordinary flood tide. It does not carry with it the lands under the water, the island in the stream, or the right of fishery. In order to pass these, the terms of the grant must be so clear and explicit as to leave no manner of doubt as to the intention of the grantor to part with those rights. But the rule is directly the reverse as to those grants which are bounded on rivers and streams above tide-water. In such cases, if the grant is bounded on the stream,, or along the same, or on the margin thereof, or on the hanh of the river, or where any other words of similar import are used, it legally extends to the middle or thread of the stream ; and not only the bank but the bed of the river, and the island therein, and the exclusive right of fishing, are con- veyed to the grantee, unless they are expressly reserved, or the terms of the grant are such as to show a clear intention to exclude them from the general operation of the rule of law. * * * The case under consideration does not foil under any of those which restrict the boundary to the bank, and exclude the river. The west line of the lot runs north till it strikes ' the north hounds of Hudson river, thence easterly along the said river, so as to include so much of the island as is situated in lot No. 2.' Even the words along the said river, axe prima facie suflicient to indi- cate the center of the stream as the line. The words so as to include the island, etc., were inserted, lest a doubt might be enter- tained as to which channel of the river would be meant by the words along the said river. The word 'bounds' of the river, in this deed, do not indicate the bank or shore of the river, but the center" ( Walton v. Tift, 14 Barh. R., 216, 218-221). An interesting case was decided by the Supreme Court of the United States, a fewjears ago, involving the division line between the States of Alabama and Georgia, the principles of which may be applied in some cases of private property bounded upon rivers and other unnavigable streams. In the boundaries of these States, 220 LAW OF DOLWDARISS. as fixed by the contract of cession from the United States, the fol- lowing clause gave rise to the dispute: " A line up said river and along the western bank thereof." Tlie court held this to include the bed of the river; and the bed of the river was defined to be that portion of tlie soil which is alternately covered and left bare as tliere may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during the entire year, without reference to extraordinary freshets of the winter or spring, or the extreme droughts of summer or autumn. That is to say, the court held that the western line innst be traced on the water-line of the acclivity of the western bank, and along that bank where that was defined ; and in such places on the river where the western bank was not defined (where it ran into great swamps) it must be continued up the river on the line of its bed, as that was made by the average and mean stage of the water, as was before stated. And the court laid down the rule in the case, that a contract of cession between States or the United States and a State, as it respects their respective rights in a dividing river, must be interpreted by tlie words of it, accord- ing to their received meaning and use in the language, as collected from judicial opinions concerning the rights of persons upon rivers, and the writings of publicists in reference to the settlement of controversies between nations and States as to their ownership and jurisdiction on the soil of rivers within their banks and beds ; which authorities are to be found in cases in our own country, and in those of every nation in Europe {Alabama v. Georgia, 23 IIoic. i?., 505). A late case before the Supreme Court of the State of Maine, involving a water boundary, was this : By a deed of a parcel of land, the east line of which was described, "thence east until it strikes the creek on which the mill stands, thence south-westerly on the west bank of said creek" (which was a small unnavigable fresh-water stream). The court held that by this deed the g^rantee was restricted to the bank of the creek ; that such grant did not extend to the center or thread of the stream, unless there were, in the deed, other words indicating that such was the intention of the grantor. And the court reiterated the rule that, wliei'e a grant is bounded upon a non-navigable fresh-water stream, a high- way, or ditch, or party-wall, and the like, such stream, highway or other object is deemed to be a monument, located equally upon LAynS WITH WATER BOUNDARIES. 221 tlie land granted and tlie adjoining land, and the grant extends to the center of snch monument {Bradford v. Cressey^ 45 Maine i?., 9). And the same court decided an earlier case, in which it appeared that the boundary described in the deed was, running " to the pond to a stake and stones." The court held that the grantee was restricted to the stake and stones, if they could be found, or their original location, but if neither could be identified then " to the pond." And the court laid down the well-settled rule, that natural monuments must control both course and dis- tance. And further, that where land is bounded upon a pond, if it is in its natural state, the grant extends only to the water's edge ; but the rule is otherwise, where the pond is an artificial one {Rolj'insoii v. ^Vhite, 42 Maine B., 209). And in a still earlier case before the same court, the conveyance under consideration bounded the land intended to be granted, generally, on a fresh- water pond, which it appeared had been enlarged by means of a dam at its mouth, and the court held that the deed conveyed the land as far as the low-water mark of the pond, in its enlarged state ( Wood v. J{elley, 30 Maine E., 47). An important case came before the Supreme Court of New Jerse}', a few years «ince, in which it appeared that the deed of the land intended to be conf eyed described the lot as lying " in the vicinity of and on the margin of New York bay." The court decided tliat the conveyance made the bay a boundary, and con- stituted the grantee a shore owner {State v. Brown, 3 Butcher's i?., 13). The Supreme Court of the State of Connecticut recently decided a case involving the construction of conveyances bounding pre- mises on a canal. It appeared that two persons were owners of land in severalty, situated upon both sides of a canal ; and they made an exchange, by which one party conveyed to the' other all his land east of the canal, and the latter conveyed to the former all his land west of the canal. The land conveyed by the respect- ive deeds was bounded "on said canal." The court held that the intention of the parties, as shown by the language of the deeds and the circumstances of the case, was clearly apparent, that tlie center of the canal was to be taken as the dividing line between them, and the conveyances were so construed {Agawam Canal Comipany v. Edwards, 36 Conn. B., 476, 500). , And the Supreme Court of California, in the year 1869, decided 222 Z A TV OF BOUNDARIES. a case calling for the construction to be put upon the language of a patent, in which the land was described as " bounded on the south by the sea-shore, on the north by the foot of the ledge ol mountains," etc. The patent was for a confirmed Mexican grant of land, and referred to a decree of court, and the plat and survey of the Surveyor-General, giving courses and distances, which decree bounded the land on the sea-shore on one side ; but the calls and plat of the survey extended from the interior to the sea- shore, and then extended along the sea-shore in places at and below tide to a point on the shore, and the patent granted the land described in the survey. The court construed the patent as conveying the land only to the high-tide line along the shore. Rhodes, J., delivered the opinion and said : " To ascertain the land granted, the several portions of the patent must be read and construed together. The land confirmed is bounded on the south by the sea-shore ; and the land included within the line of survey will also be held to be bounded on the south by the sea-shore, unless the calls imperatively demand other boundaries. When the decree of confirmation fixes the exterior bounds of a rancho, whether it is one granted within specified boundaries, or one of a specified quantity within a large area, the presumption is that the lines of the survey coincide with, or at least do not extend beyond, the exterior limits or bounds of the decree ; for the survey is not an independent act, but is an act performed under the decree, and preparatory to its being carried into efiect by a patent. Courts will give effect to every part of the description of premises in a deed or grant, if it is possible, consistently w^ith the rules of law ; but if this cannot be done, they reject that which is repug- nant to the general intent of the instrument. It appears by the plat that, following the courses and distances of the survey, por- tions of the sea will be included in the lines of the rancho. This is inconsistent with the calls of the decree r-f confirmation, which confirms a tract bounded by the sea-shore. It is a general rule in the construction of grants and deeds of conveyances, containing descriptions of premises, one part of which is inconsistent with or. repugnant to another, that visible local objects or monuments, mentioned in the conveyance, will control both courses and dis- tances. The survey mentions the sea-shore as the termination of the fourth course, and the twelfth course commences at the sea- shore; but at the intermediate stations no visible object nor anj LAXDS WITH WATER BOUNDARIES. 223 momiiiient, eitlier natural or artificial, is meutioned. The call for the sea-shore, as the northern boundary, must be regarded as the more definite and certain, 'and will prevail over a call for a new station,' and over the courses and distances" i^More v. llassini, 37 Cal. Ji., 432, 436, 437). In a later case, decided by the same court, the description of the land in the deed before the court was as follows : " Commencing at low-water mark in range with a ditch in the line of land occupied by John C. Piercy, running southerly along said ditch to its most southern extent, about one hundred and forty rods; thence westerly along said ditch ten rods to a line of fence; thence westerly along said fence to Zcu'-water mark, in range with said fence and the west bank of a small creek, running into tlie bay ; thence eastwardly along loiv-water mark to the place of beginning, about forty-five rods." Comparing tliis description with the actual location of the land, it appeared that if the starting call in the deed was taken, and the lines traced from that point, nearly all the land would consist of marsh and mud flats, lying below high-water mark ; and " that the most southern extent " of the ditch on the line of Piercy's land would not be reached ; that no cross-ditch, ten rods in length, would be found for a southern boundary, and no fence would be found extending back to the bay from the west end of a cross-ditch, and no mouth of a small creek emptying into the bay for a north-east corner. But by taking the starting point at ///^A-water mark, all was con- sistent and right. The court held that the description should be construed by substituting the starting call in the deed hig/i, instead of low-wntcv mark. Sanderson, J., delivered the opinion of the court, and, among other things, said : " We do not question the rule upon which counsel relies, that, where there are conflicting calls, those which, from their nature, are less liable to mistake must control those which are more liable to mistake ; or that if the starting call is flxed, certain and notorious, and there is a con- flict between it and other calls, the latter must generally give way to the former; but the rule does not go to the extent of declaring that all the other calls, although agreeing among themselves, shall be set aside solely because they do not agree with the first. As a general proposition, it is undoubtedly true that mistakes are less likely to occur in relation to the starting point than in respect to the succeeding calls; but this proposition, as we think this case shows, connot be accepted as universal. It undoubtedly applies 224 LAW OF- BO USD A HIES. with full force when the starting point is fixed, certain and noto- rious, as in the case of a well defined monument, and the succeed- ing calls are courses and distances, or even monuments, which are conflicting or ill defined ; but when the succeeding calls are as readily ascertained, and are as little liable to mistake, we consider them of equal veracity with the first; and when they all conflict with the first, and agree with each other, their united testimony must control. It is true that ' low-water mark ' on Mission bay is more permanent and lasting than a ' small ditch or furrow ;' but both being found upon the ground when looked for, the testimon^y of the latter is quite as reliable as that of the former {Piercy v. Crandall, 34 Cat., 334). In conclusion, upon this branch of the case we deem it proper to say that, in the construction of written instruments, we have never derived much aid from the technical rules of the books. The only rule of much value — one which is frequently shadowed forth but seldom, if ever, expressly stated in the books — is to place ourselves as near as possible in the seats which were occupied by the parties at the time the instrument was executed ; then, taking it by its four corners, read it " ( Walsh V. JIUl, 38 Cal E., 481, 486, 487). And in a still later case, before the same court, a construction was given to the language of a statute which described the territory as " beginning at the stakes monument ; thence in a straight line to a point on the San Joaquin river seven miles below the mouth of the Merced river." The court held (the stream being declared navigable by statute) that the measurement should be made by the meanders of the river, and not in a direct line. And it was also declared that the same would be the rule where distance is called for upon a traveled highway. Temple, J., delivered the opinion of the court, and said : "There seems to be no conflict whatever in the authorities, that, where a certain distance is called for from a given point on a navigable stream to another point on the stream, to be ascertained by such measurement, the measurement must be made by its meanders, and not in a straight line ; and the same rule prevails where distance is called for upon a traveled highway. A difierent rule is sometimes adopted when the stream is not navigable. Where a tract of land is bounded upon a navigable stream, the distance upon the stream will be ascertained — in the absence of other controlling facts — by measuring in a stright line from the opposite boundaries" {People v. Henderson, 40 Cal. R., 29, 32). LANDS WITH WATER BOUSDARIES. 225 In the States of Maine and Massachusetts some rules prevail in respect to the conveyance of " flats," which are peculiar to those States, by reason of an ancient ordinance exclusively applicable to the territory comprising sncli States, known as the "Ordinance of 1647." A case of tliis description was decided by the Supreme Coni't of Maine some twenty years ago, in which it appeared that the owner conveyed a square of land, bounded by the sea, " reserv- ing a street through the square, etc., together with tlie flats, namely, all my rights to the same in front of said square to the channel." The court decided that the flats passed by the deed. And the court declared the doctrine, as being pertinent to the case, that words of doubtful import in a deed of land should be construed most favorably to the grantee ( Winslow v. Patten, 34 Maine i?., 25). And in an earlier case, before the same court, it appeared that the grantee of land was bounded " on the sea." The court held that, under the deed, the grantee owned the flats for one hundred rods, and no more, from high-water mark, if they extended so far {Partridyew Luce, ^Q Maine P., 16). And in an earlier case, before the same court, it appeared that land con- veyed was described as one-half of a particular tract of land, "being that part next to and adjoining a particular" river. The court held that the grant extended to the river, and included the flats, notwithstanding there was a particular description in the deed by which the land was " bounded round by the shore," it being understood that the particular description was used by way of reiteration and affirmation of the preceding general words, and did not, therefore, diminish the grant made by the general words. (Moore v. Grijin, 22 Maine P., 350). But the question as to what boundary will include the adjoin ing " flats," has arisen more frequently in the State of Massachu- setts than in the State of Maine, although the ordinance of 1647 has been extended to the latter State, notwithstanding the terri- tory now constituting the State of Maine was not under the- juris- diction of Massachusetts when it was made. In one case before- the Supreme Judicial Court of Massachusetts,, the deed bounded the land " easterly on the sea or flats." The court held that the- grant passed the flats as appurtenant to the land conveyed. And the court declared that, in construing the deed thus bounding the land intended to be conveyed, a lease for years, made to the grantee by a former proprietor, and continuing at tiie date of tlno- 29 226 LAW OF BOUNDARIES. deed, of a shop standing on tlie land conveyed, and bounded "easterly on tlie sea or flats of the lessor," if admissible in evi- dence, had no tendency to prove that the flats appurtenant to the upland were not included in the deed {Saltonstali v. Long Wharf, 7 Gush. R., 195). The same court, in a much later case, gave construction to the deed to the Hancock Free Bridge Corporation, by tlie proprietors of the West Boston bridge, of their franchise, made pursuant to statute. The deed, in terms, included " all their right, title and interest in and to the causeway, from the westerly .abutment of said bridge." The court held that this deed con- veyed a fee in the flats owned by the grantors, under said cause- way, and under " Little Bridge," a part thereof ; and, therefore, that a subsequent deed from the same grantors of a tract of land, adjoining said causeway on the north, by metes and bounds, " together with all the right, title and interest of said proprie- tors to all the flats adjoining, not previously sold and conveyed," passed no title to the flats south of said causeway and Little Bridge \lIarloio V. Rogers, 12 Ctish. R., 291). And the same court decided another case at tlie same term, involving the construction of a deed wherein the land intended to be conveyed was described as all the land " on the easterly side of a creek, meaning to con- vey all the land between " certain other specified bounds and said creek. The court held that the deed conveyed the flats adjoining to the center of the creek {Tlarloio v. Fish, 12 Cush. R., 302). An important case came before the Supreme Judicial Court of Massachusetts, in 1867, in which some rules were laid down by the court for dividing flats adjoining the sea or tide-water. It appeared that upon a tide-water cove, in which the legal dividing lines of the flats were at right angles with the base line of the cove, three lots of the upland were conveyed by parallel side lines which struck the shore obliquely, the deed of each lot describing it'as having a boundary line of a certain number of feet on the shore, together with flats of that number of feet in width to low- water mark. The side lines, if extended over the flats at right angles with the base line of the cove, would give substantially the specified width of flats; but if extended m the same direc- tion as the side lines of the upland, would give a less width, and would, by means of intersecting the legal boundary of the flats belonging to a neighboring estate, afford to one of the lots ;4?ranted no access to low-water. The court held that the side LAXDS WITH WATER BOUXD ARIES. 227 lines of the flats were not to be extended in the same direction as those of the uphmd. And the foUowing rnle was hiid down : "Where the shore line of a tide-water cove does not depart much from a straight line, the flats may be divided by drawing a base line from headband to headland, and running straight lines at rio-ht angles with the base line from the ends of tlie division lines of the upland to low- water mark, even if the sea never ebbs beyond the base line, provided the situation and shape of the channel are not such as to require a different mode of division. Gray, J., delivered the opinion of the court, and, among other things, said : " In the division of flats between the proprietors of lands on the sea shore no general principle is better established than that by which each parcel of flats, unless affected by the peculiar shape of the shore or the terms of particular grants, is to extend directly towards low-water mark, and to be of equal width throughout. In Gray v. Deluce (5 Cush., 12), Mr. Justice AVilde, speaking for the whole court, declared it to be a general rule, which was intended, though not expressly stated, by the colo- nial ordinance of 1647, ' that in all cases, when practicable, every proprietor is entitled to the flats in front of his upland of the same width at low-water mark as tliey are at high-water mark,' or (which is precisely equivalent) 'of equal width with his lot at high-water mark.' And in Porter v. Sullivan (7 Gray, 443), Chief Justice Shaw said that the flats of each proprietor ' must be in front of the land, that is, directly to the sea from which the tide flows, by lines as nearly as practicable perpendicular to the line shore, or the line of ordinary high-water mark.' * * * Although the proprietor of land bounding on the sea-shore may sell it with or without the adjoining flats, or with such portion as he pleases of the flats which he owns, the presumption is that any deed of a lot of land with the flats adjoining is intended to pass the grantor's actual right and legal title in the flats appurtenant to or parcel of the lot granted ; and it is well settled that the side lines of the upland have no influence in deciding the direction of the dividing lines of the flats, unless referred to as guides in par- ticular grants " {Stone v. Boston Steel and Iron Comjpany, 14 Allen's IL, 230, 233, 234). A very learned and elaborate note is appended to the report of a case decided by the Supreme Judicial Court of Massachusetts in 1857, a liberal extract from which is quite pertinent to .the sub 228 LAW OF BOUNDARIES. ject now under consideration. The learned reporter sajs: " The general rules for the division of flats among coterminous proprie- tors, so far as they can be astertained from the adjudged cases, may be thus stated : " 1st. The intention of the ordinance was, 'if practicable, to give every proprietor the flats in front of his upland, of eqnal width with his lot at low-water mark' (Wilde, J., in Gray v. Deluce, 5 Cash., 12 ; and see Deerfield v. Avies, 17 Fkk., 45). Whether the proprietor of upland, even if bounding on a cove, can claim flats in any other direction than toward low-water mark has not been adjudged. The late Chief Justice Shaw and Samuel Hoar, sitting as referees, awarded that he could ; Cliief Justice Parker and ilr. Justice Wilde were of opinion he could not {clones v. Boston Mill Coiyoration, 6 Pick., 151, 156; Rust v. Boston Hill Cor2?oration, 6 Pick, 161, 167; and see Thornton v. Foss, 26 Maine, 405). " 2d. The nearest channel from which the tide never ebbs, though not adapted to navigation, is the limit {Sjjarhawk v. Bullard, 1 3fet., 107 ; Ashhy v. Eastern Railroad, 5 Met., 370 ; Walker v. Boston and Maine Railroad, 3 Cush., 22, 24 ; Attorney-General V. Boston Wharf, 12 Gray, 27). " 3d. The direction of the side lines of the flats is not governed by that of the side lines of tlie upland {Rust v. Boston Mill Go?'- poration, 6 Pick., 169 ; Pij)er v. Richardson, 9 Met., 158 ; C^lr- tis V. Francis, 9 Cush., 438, 442 ; Emerson v. Taylor, 9 Greenl., 43), unless expressly so agreed by the parties {Dawes v. Pren- tice, 16 Pick., 442). " 4th. Where there is no cove or headland, a straight line is to be drawn according to the general course of the shore at liigli- water, and the side lines of the lots extended at right angles with the shore line {Sparhawk v. Bullard, 1 Met., 106 ; Porter v. S\d- livan, 7 Gray, 443 ; Deerfield v. Ames, 17 Pick., 45, 46 ; Knight V. Wilder, 2 Cush., 210). "5th. Around a headland, the lines dividing the flats must diverge towards low-water mark (Wilde, J., in Gray v. Deluce, 5 Ctish., 12, 13; Shaw, Ch. J.,m Porter v. Sullivan, 7 6^my, 443; Emerson v. Taylor, 9 Greenl., 46). " 6th, In a shallow cove, in which there is nr channel, a base line may be run across the mouth of the cove, and parallel lines drawn, at riffht andes with the base line, from the ends of the division ■LAXDS WITH WATEE BOUKDAEIES. 229 lines of the upland to low-water mark {Gray v, Deluce, 5 Cusli., 12, 13; see Attorney- General v. Boston WJuwf, 12 Gray, 251). '* Tth. A deep cove, out of wliicli the tide entirely ebbs at low- water, is to be divided by drawin<; a line across its mouth, giving to each proprietor a width upon the base line proportional to the width of his shore line, and then drawing straight converging lines from the divisions at the shore to the corresponding points on the base line. This rule (which is substantially that suggested by the magistrates in 1683, ante 521), was hrst reviewed by Wilde, J., in the hypothetical case of a cove the circumference of which was twice its diameter, or deeper than a semi-circle {Rust v. Bos- ton Jim Corporation, 6 Pick., 107, 108). It has since been acted upon in other cjises, the reports of which contain no plan or description of the properties of the cases in question {Sjxirhawk V. Billiard, 1 Met., 107; ^Ylleeler v. Stone, 1 Gush., 323 ; and see Ashhy V. Eastern Railroad, 5 Met., 369, 370 ; Deerfield v. Ames, 17 Pick., 45^ 46). " 8th. The direction of the side lines of flats in a cove may be modified by the course of the channel bounding them, or by the position of other channels between part of that channel and the upland ( Walker v. Boston and Maine Railroad, 3 Gush., 22-24 ; Commonwealth v. Alger, 7 ih., 69 ; Porter v. Sullivan, 7 Gray, 448, 449 ; Attorney-General v. BostonWhai'f, 12 ih., 251). " 9th. It seems that, after passing the mouth or narrowest part of a cove, the lines may diverge, if necessary to preserve the pro- portions of different estates ( Walker v. Boston and Maine Rail- road, 3 Gush., 25). " 10th. An agreement of coterminous proprietors, as to the direc- tion of their boundaries, may be proved or presumed from their acts and those of public authorities {Sparhaick v. Bidlard, 1 3Iet., 95 ; Curtis v. Francis, 9 Cash., 442, 400, 403, 400 ; Adams v. Boston Wharf, 10 Gray, 294 ; Attorney- General v. Boston Wharf, 12 ih., 251 ; Rider v. Thompson, 23 Maine, 243; Treat v. Chip- man, 35 ih., 34). Thus the lines of the flats at the foot of Sum- mer street in Boston have been repeatedly found by juries, under the instructions and with the approval of the court, to be parallel with the line of that street, as established by the select men about 1003 ( Valentine v. Piper, 22 I'ick., 95, 90 ; l*iper v. Richardson, 9 Met, 103 ; Brake v. Curtis, 9 Cash., 447, note). In the large cove to the northward of that street the flats were distributed, 230 LAW OF BOUNDARIES. according to an agreement made 1673, for the erection of a barri- cade ao-ainst the Dutch ; but tlie legal effect of that ao-reeraent has been judicially ascertained {B/'ijmner v. Zo7ig Wharf, 5 Pick.^ 135, 138; WJieeler v. Stone^ 1 Cush., 319, 320; Commonwealth v. Alger, 7 Cush., 73; Colony law ^1681, 5 Mass. Col. Bee, 310, 311 ; Bowditch on Flats, 4). " The ordinance of 161:7 has been extended by usage to Plymouth, to Nantucket and Dukes county, and to Maine, although none of those were nnder the jurisdiction of Massachusetts when it was made {Sullivan on Land Titles, 285 ; Barker v. Bates, 13 Pick., 258, 260 ; Mayhew v. Norton, 17 ih., 357 ; Storer v. Freeman, 6 Mass., 435 ; 2 Dmie Ah., 701 ; Codman v. Winslow, 10 Mass., 11:6 ; Lapish v. Bangor Bank, 8 Greenl., 89, 93 ; ^Veston v, Sam,]?- son, 8 Cash., 354 ; Comnnonwealth v. Alger, 7 ib., 76 ; Moulton v. LiUy, 37 J/a?7ie, 435). "The rule which has been adopted in Maine for the division of flats among coterminous proprietors, in the absence of any agree- ment between them, or any adverse possession, is to draw a base line between the two corners of each lot at the shore, and then run a line from each corner, at right angles with the base line, to low-water mark ; and, if the side lines diverge from or conflict with each other, to divide equally between the two proprietors the land excluded or included by both lines ; and not to allow any subdivision of lots to change the side lines, as required by an earlier division of the npland. How this rule should be applied in a cove so deep as to bring more than two of such side lines into conflict with each other has never been decided {Emerson v. Tay- lor, 9 Greenl., 42 ; Kennebec Ferry v. Bradstreet, 28 Maine, 374 ; Treat v. Chipman, 35 ib., 36; Call v. Lowell, 40 ih., 31), "Seisin of flats follows the legal title, nnlessan exclusive posses- sion is proved {Codman v. Winslow, 10 Mass., 151 ; Brimmer v. Long Wharf, 5 Pick., 135 ; Rust v. Boston Mill Corporation, 6 itb., 171 ; Wheeler v. Stone, 1 Cush., 317). Disseisin of flats may be effected by filling them np, or by building a wharf on them and laying vessels at the end of it {Rust v. Boston Mill Corpora- tion,^ Pidi., 158; Wheeler N.Stone,\ (7m5A., 315, 322); and see Treat v. Clnpnian (35 Maine, 34). But such nse of flats adjoin- ing a wharf does not necessarily exclude their use by othei's Gray v. Bartlett, 20 Pick., 192 ; Peering v. Long Wharf, 25 Maine, 65). Sailing over uninclosed flats, when covered with the LANDS WITH WATER BOUNDARIES. 231 tide, will not constitute disseisin {Brimmer v. Long Wliarf, 5 Plck.^ 139; Drake v. Curtis^ 1 Cash., 415-419; Curtis v. Fran- cis^ 9 i/^., 466), nor will occasionally cnttino; o;rass on them {Com- ononwealth v, Roxbury^ ante, 499 ; Thoniton v. T'oi'^, 20 Maine, 404) ; yet see Glansey v. Houdlitte (39 Maine, 457). " Since the passage of the ordinance a grant of land bounding on tlie sea-shore carries the Hats, in the absence of excluding M'ords (2 Dane Ah., 691, 699 ; Valentine v. Piper, 22 Pick., 44 ; Drake V. Curtis, 1 Cush., 413). But the owner may sell flats or upland separately (2 Dane Ah., 699, 701 ; Storer v. Freeman, 6 Mass., 439; Mayhew v. Marion, 17 Pick., 357; Commonwealth v. Alyer, 7 Cush., 80 ; Porter v. Sullivan, 7 Gray, 445, 447 ; Lapish v. Bangor Bank, 8 Grecnl., 91; Deering v. Zw?^ TF>^a?y, 25 Maine, 64). Flats may pass as appurtenances of a wharf or a messuage (2 Z>«;i€ J.Z>., 690, 700, 701; Doane v. Broad Street Associution, (3 Mass., 333, 334; Ashley v. Eastern Railroad, 5 J/peared tluit the plaintiffs in the Circuit Court instituted an ejectment for a tract of land hekl under a Virginia military land Avarrant, situate south of a line called Mathews' line, and south of Walker's line; the latter being the establislied boundary between the States of Kentucky and Tennessee, as fixed by a com- 30 234 i^TF OF BOUNDARIES. pact between these States, made in 1820. Bj the compact referred to, the jurisdiction over the territory to the south of Walker's line was acknowledged to belong to Tennessee, but the titles to lauds held under Yirginia military land warrants, and grants from Ken- tucky, as far south as " Mathews' line," were declared to be con- firmed ; the State of Kentucky having, before the compact, claimed the right to the soil as well as the jurisdiction over the territory, and having granted lands in the same. The compact of 1820 was confirmed by Congress. The defendants in the eject- ment claimed the lands under titles emanating from the State of IsTorth Carolina in 1786, 1T94, 1795, before the formation of the State of Tennessee, and grants from the State of Tennessee in 1809, ISll, 1812, ISI-I, in which the lands claimed by the defend- ants were situated, according to the boundary of the State of Tennessee, declared and established at the time the State of Ten- nessee became one of the States of the United States. The Cir- cuit Court instructed the jury that the State of Tennessee, by sanctioning the compact admitted, in the most solemn form, that the lands in dispute were not within her jurisdiction, nor within the jurisdiction of North Corolina, at the time they were granted, and that consequently the titles were subject to the compact. The Supreme Court held that the instructions were entirely correct. The decision of the court was based upon the grounds and princi- ples before stated, but there were other ingredients in the case which were thought to be equally decisive of the merits ; but the court declared that it was not necessary to put their decision upon that ground, and enunciated distinctly the doctrine laid down in this point {Poole v. Fleeger, 11 Peters' P., 185, 209.) II. Where the boundary between two States or two nations is a river, the presumption is that the dominion of each extends to the middle of the stream ( YatteVs Law of Nations, 120). And the same, doubtless, is the rule where the boundary is a lake or large fresh-water body, like the great chain of lakes between the middle States and British America, and Lake Michigan, between the States of Michigan and Illinois and Wisconsin. The presumj)- tion in these cases is that the boundary of the State or Territory is along the middle of the river or other body of fresh-water; while, in the case of boundary upon the ocean, the line is at high- water mark. III. The courts will take judicial notice of the boundaries of a BOUJS'DARIES OF STATES AXD THE LIKE. 2S5 State, and of the local divisions of a State into counties, cities and towns ; that is to say, the acts or statutes defining the boundaries of States, counties, cities and towns are cjeuerally regarded as public acts, and courts are bound to take notice of them judicially. The English Court of King's Bench, some fifty years ago, decided that the court would take judicial notice of the general division of the kingdom into counties, because they are continually in the habit of directing their process to the sheriffs of the counties ; and because the counties are mentioned in a great variety of acts of Parliament. But it was declared that the court would nut apply the rule with respect to the local situation of the different places in each county, or with respect to the boundaries of counties or the distances of one county from anotlier. Bayle}^, J., in his opinion, said : " I have before said that this court will take judi- cial notice of the general division of counties; but that cannot be extended to the particular parts of counties and their local situa- tion. We know very well that there are man}' parts of counties separated from the general body of the county. There is a part of the county of Durham which is situated to the north of Nor- thumberland ; and so the parish of Crayke, belonging to the same county, is surrounded by the North Biding of Yorkshire ; and there are many other parts of other counties similarly situated." Holroyd, J., said : "lam of the same opinion. The present objection will be valid, unless the court are bound by law to take judicial notice, not only of every county, but of the local situation of every place in any county ; and I think that they are not bound so to do. I agree that this allegation, taken altogether, must be taken as a positive allegation that the vessel was found •within eight leagues of a part of the county of Suffolk. For, though part of this allegation is under a videlicit, it is, neverthe- less, sufficiently certain. But assuming that to be so, still the court cannot take judicial notice of the local situation of Oxford- ness." Best, J., observed : " It ought to be quite clear, in a case like the present, that a party detaining a prisoner has authority by law 60 to do. It ought, therefore, to appear, on the face of the return, that the case is brought accurately within the provisions of the act of Parliament ; now that has not l)cen done here. We ouglit, it is true, to take judicial notice of the counties of England, and of those which are maritime counties, as being noticed in a varietj 236 i.4Tr OF BOUyDARIES. of acts of Parliament. But we cannot do this with respect eitlier to the local situation of the different places in each county, nor of the distances of one county from another. It seems to me, there- fore, that we cannot take notice, judicially, either that Oxford- ness may not be an isolated part of the county of Suffolk ; or, even if it be part of the body of that county, that it is not within eight leagues of Beachy Head" {DeybeVs Case, 4 Barn. & Aid. R.y 243, 246-248). But, as a general rule, the courts in this country take judicial notice of the boundaries of States, cities and towns. The Supreme Court of Illinois, at an early day in the history of the State, held that statutes defining the boundaries of counties are public acts, and that courts were bound to take notice of them judicially {Hoss V. lieddicTt, 1 Scammon'' s R., 73). And the Supreme Court of Delaware held, in one case, that the courts there will judicially take notice that Camden is in Kent county {T?ie State v. Tootle, 2 HarringtorC s R., 541). The Supreme Court of the State of Hhode Island, not long since, held that courts are bound to take cognizance of the boundaries in fact claimed by the State, and should exercise jurisdiction accord- ingly. But it was declared that where the boundary line of the State is, dejure, is a political question with which the courts will not intermeddle {The State v. Dunwell, 3 R. I. R., 127). The old Supreme Court of the State of Xew York has several times held that courts will take notice of the civil divisions of the State, and the counties iu which the several towns are located ( The PeopU v. Bruse, 7 Cow. R., 429 ; Vanderwerlcer v. The People, 5 Wend. R., 530 ; Chapman v. Wither, 6 IliWs R., 475); while the Supreme Court of Maine has held that courts take notice of the local divisions of the State into counties, cities and towns, but that they are not bound to take judicial notice of the local situation and distances of places in counties from each other {Goodwin v. Appleton, 9 Shep. R., 453). And the Supreme Court of Ohio has held that the subdivisions of the refugee frac- tional township in that State will not be judicially noticed, and that they must, therefore, be set up and proved {Stanlerry v. Nelson, WriyhCs R., 766). But this is really a rule of evidence, and, perhaps, may be more appropriately considered in another place. In respect to the boundary lines of some of the States, the BOUNDARIES OF STATES AND THE LIKE. 237 Supreme Court of Illinois has recently held that as much of Lake Michigan as is included by a line riinniiiig north from the point where the eastern boundary of Illinois strikes the southern bend of the lake to a point in the middle of the lake, in north latitude 42 degrees and 30 minutes, and thence west along that parallel, is undeniably within the limits of Illinois; and it was observed by the court that it was true that no portion of that body of water had been assigned to the counties bordering upon it, or received in any manner the attention of the Legislature, yet it is, neverthe- less, a portion of the navigable waters of the State and of her ter- ritory. Breese, Ch, J., delivered the opinion of the court, and, upon this subject, said : " The counsel for the appellant are surely mistaken when they say this State has no other waters naturally navigable within its territory, except rivers. By the act of Con- gress, prescribing the boundaries of this State, and by the Consti- tution of the State, conformable thereto, it will be perceived no inconsiderable portion of Lake Michigan is within our territorial limits. The maps do not show it ; yet the fact is, nevertheless, so, that so much of the lake as is inclosed by lines, on running north from the point where our own eastern boundary strikes the south- ern bend of the lake to a point in the middle of the lake, in north latitude 42 degrees 20 minutes, and thence west along that par- allel, is undeniably within our limits. It is true, no portion of this vast body of water has been assigned to the counties bordering upon it, or received in any manner the attention of the Legisla- ture. Yet it is, nevertheless, a portion of the navigable waters of this State and of our territory." {The J^orioay v. Jensen, 52 111. B., 373, 380). The Circuit Court of the United States for the district of Maine decided, in 1822, that the true line of territorial boundary between the United States and the English territories, on the bay and waters of the Passamaquaddy, is the middle of the stream, or channel of the river, between the territories of the nation, calcu- lating from low-water mark. And it was held that a different line agreed on by the collectors ot revenue could not be regarded as of any validity. And the doctrine was laid down that, where there is no exclusive occupancy of a river or bay, the law of nations gives to the nation inhabiting each side the right to go to the middle of the stream, calculated from low-water mark, as the limit of its territorial boundary {The Fame, 3 Mason's li., 147). 238 i.4ir OF BOirXDARIES. The Sapretue Court of the United States, in the year 1851, decided tliat, where one sovereign State nialves a cession of land to another, bonnding the grant by a river, and describing the line not only as commencing on the bank, but also as running up the river and along the bank thereof, the latter words, " along the bank," exclude the intendment that would otherwise prevail, that the line should run along the thread of the stream. And it was declared that the limit, on and along the bank of the river, must be where the bank and the water meet in its bed within the natural channel or passage of the river. And it was further decided that the words in such grant, " along the bank thereof," was the controlling call in the interpretation of the cession ; that it excluded tlie idea that a line was to be traced at the edge of the water, as that might be at one or another time, or at low- water or the lowest low-water ; that water was not a call in the descrip- tion of the boundary, though the river was ; and that these did not mean water alone, but banks, shores, water and the bed of the river ; that if water, as one of the river's parts, had been meant, it would have been so expressed ; that the bank was the fast land which confines the water of the river in its channel or bed in its whole width, and that that was to be the line ; that both bank and beds are to be ascertained by inspection ; and that the line was where the action of the water has permanently marked itself upon the bank, rejecting altogether the attempt to trace the line by either ordinary low-water or low-water. And the court observed that these terms are only predicable of those parts of rivers witliin the ebb and flow of the tides, to • distinguish the water-line at spring or neap-tide {Howard v. Ligersoll, 13 Hovj. B., 381, 416). The same court held, at a much earlier day, that, when a great river is the boundary between two nations or States, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when one State is the original proprietor, and grants the territory on one side only, tiiat it retains the river within its own domain, and the newly erected State extends to the river only, and the low-water mark is its boundary. It was accordingly decided that the boundary of the State of Kentucky extends only to low-water mark on the western or north-western side of the River Ohio ; and does not include a peninsula, or island, on the western or north-western bank, separated from the main land by a channel or bayou, which BOUyDARIES OF STATES AND THE LIKE. 230 is filled with water only when the river rises above its banks, and is, at other times, dry. And tlie doctrine was laid down that if a river, snbjeet to tides, constitntes tlie boundary of a State, and at flood the waters of the river flow through a narrow channel round an extensive body of land, but recede from that channel at ebb, so as to leave the land it surrounds at high-water connected with the main body of the country, this portion of territory will scarcely be considered as belonging to the State on the opposite side of the river, although that State sliould have the property of the river. And it was very properly suggested that, in great questions which concern the boundaries of States, where great natural boundaries are established in general terms, with a view to public convenience and the avoidance of controversy, the great object, where it can be distinctly perceived, ought not to be defeated by those technical perplexities which may sometimes influence contracts between individuals {Ilandly's Lessee v. Anthony, 5 Wheat. B., 374). The Supreme Court of the United States have twice adjudged that the western boundary of the State of Georgia is on the west bank of the Chattahoochee river ; that is to say, the State of Georgia, in 1802, ceded to the United States all the land "west of a line beginning on the western bank of the Chattahoochee river," and " running thence up the said River Chattahoochee and along the western bank thereof." The court held that the State of Georgia retained the bed of the river as far as the natural line, marked by the action of the running water dividing the bed of the river from the western bank {Howard v. Ingersoll, 13 IIoio. R., 381). And the same view was taken by the same court in a later case, and the line indicated was declared to be the true boundary between the States of Georgia and Alabama {Alabama V. Georgia, 23 How. R., 505). It has been decided by the Supreme Court of the United States that the eastern boundary of the State of Missouri is the middle of the Mississippi river. The line has not been thus established in a case directly between the State of Missouri and either of the adjoining States; but it has been declared in other cases involving the question {Jones v. Soulard, 2-1 How. R., 41 ; Schools v. Ris- ley, 10 ]Vall. /?., 91). And the same high court has authoritively fixed the boundary line between the State of Missouri and the State of Iowa. The case before the court was substantially the 240 ivlir OF BOUNDARIES. following: The western and north-western boundary lines of the State of Missouri, as described in the first article of the Constitu- tion of that State, were as follows : from a point in the middle of Kansas river, where the same empties into tlie Missouri river, running due north along a meridian line to the intersection of the parallel of latitude which passes through the rapids of the River Des Moines, making said line correspond with the Indian bound- ary line ; thence east from the point of intersection last aforesaid, along the said parallel, to the middle of the channel of the main fork of the said River Des Moines, etc. etc. The Constitution of the State of Missouri was adopted in 1820; but in 1816 an Indian boundary line had been run by the authority of the United States, which, in its north course, did not terminate at its intersection with the parallel of latitude which passed thi-ougli the rapids of the River Des Moines, and, in its east course, did not coincide wuth that pai-allel or any parallel of latitude at all. The State of Missouri claimed that this north line should be continued until it intersected a parallel of latitude which passed through certain rapids in the River Des Moines, and from the point of intersec- tion be run eastwardly along the parallel to these rapids. The State of Iowa claimed that this Indian boundary line was pro- tracted too far to the north ; that, by the term " rapids of the River Des Moines," was meant certain rapids in the Mississippi river known by that name, and that the parallel of latitude must pass through these rapids ; the effect of which M'ould be to stop the Indian boundary line in its progress north before it arrived at the spot w^hich had been marked by the United States surveyor. While Iowa remained a Territory, tlie United States recognized the Indian boundary line by treaties made with the Indians, by the acts of the general land office, and by congressional legisla- tion. On the other hand, there were no rapids in the River Des Moines so conspicuous as to justify the claim of Missouri. The court held that the southern boundary line of Iowa was coincident with, and dependent upon, the northern boundary line of Mis- souri; that lo'Nva was bound by the acts of the United States, its predecessor, done while the government of the United States had plenary jurisdiction over the subject, that is, as long as Iowa remained a Territory ; and, therefore, the court adopted the old Indian boundary line as the dividing line between the two States, BOUNDARIES OF STATES AXD THE LIKE. 24J_ and decreed that it be run and marked by commissioners (Jfis- souri V. Iowa, 7 IIoio. 12., 6G0), The Court of Appeals of the State of New York liave lately decided that the boundary line between that State and the State of New Jersey, south of the forty-first degree of north latitude, is the middle of the Hudson river, of the Bay of New York, of the waters between Staten Island and New Jersey and of Earitan bay to the main sea, except that the islands embraced in these waters and lying west of the middle thereof belong to and are under the jurisdiction of the State of New York. And the court held that the State of New York had exchisive jurisdiction over the waters to low-water mark on the New Jersey shore, and over ships, vessels and craft of every kind afloat in the bay of New York and Hudson river, south of Spuyten Duyvil creek, for quar- antine and health purposes, the protection of passengers and pro- perty, to secure the interests of trade and commerce, and to pre- serve the public peace. It was declared, however, that it was a qualified and limited jurisdiction, for police and sanitary purposes, and to promote the interest of commerce. And the court laid down the general proposition, that each State has absolute control over its own soil and everything annexed or attached thereto, and over all vessels attached to the piers or wharves, and lying in the docks upon its own shore, or aground on its shore, and over the persons or property of such wharves, docks or vessels, except that all such vessels in the Bay of New York and Hudson river are subject to the quarantine or health laws, and laws in relation to passengers enacted by the State of New Yoi-k. The court also held that the State of New Jersey has exclusive jurisdiction and control over the piers, wharves, docks and other improvements erected or to be erected on the shores of that State ; that this jurisdiction extends to and embraces the whole subject of such improvements, and includes the power to prescribe when, where and how they shall be erected, and to exercise all control over- them which government can possess over property of its citizens.. And the majority of the court decided that the courts of the State of iSew York have no jurisdiction to restrain, the erection or order the removal of structures extending into- the bay or river from the New Jersey shore; even if they are a public nuisance,, as affecting injuriously the general and common, use of those navi- gable waters. These several propositions were laid down, in con- 31 242 LAW OF BOUNDARIES. formity with a veiy able and exhaustive opinion by E. Darwin Smith, J., who examined, at great length, the documents, laws and ordinances affecting the subject of the territorial boundary between the two States. Earl, Ch. J., also delivered a very able and elaborate opinion in the case, agreeing in the main with the majority of the court, but dissenting from the decision in respect to the want of jurisdiction of the New York courts, as contained in the proposition last stated. The whole case is calculated to shed much light upon the important questions examined by the court {The People v. The Central Railroad Comjpany of New ■Jersey, 42 N. Y. R., 283-316). In a controversy between the States of Kentucky and Missouri before the Supreme Court of the United States, in 1870, it was incidentally decided that all of the States bounded upon the Mis- sissippi river were bounded by the middle of the channel of that river. And it was directly decided that Wolf Island, in the Mis- sissippi river, about twenty miles below the mouth of the Oliio, is a part of the State of Kentucky, and not a part of the State of Missouri, for the reason that it appeared, from the testimony, that such island is situated east of the main channel of the river, as it was at the time the boundary between the States was fixed. Mr. Justice Davis delivered the opinion of the court, and examined the questions involved at considerable length. A short extract from the opinion contains important principles, and is here inserted. The learned justice said : " It is unnecessary, for the purposes of this suit, to consider whether, on general principles, the middle of the channel of a navigable river which divides coterminous States is not the true boundary between them, in the absence of express agreement to the contrai-y, because the treaty between France, Spain and England, in February, 1703, stipu- lated that the middle of the River Mississippi should be the boundary between the British and the French territories on the continent of North America. And this line, established by the only sovereign powers at the time interested in the subject, has remained ever since as they settled it. It was recognized by the treaty of peace with Great Britain of 1783, and by different treaties since then, the last of which resulted in the acquisition of the Territory of Louisiana (embracing the country west of the Mississippi) by the United States in 1803. The boundaries of Missouri, when she was admitted into the Union as a State in BOUXD ARIES OF STATES AXD THE LIKE. 243 1820, were fixed on this basis, as were those of Arkansas in 1836 (3 Stat, at Large, 545 ; 5 ib., p. 50). And Kentneky snccecded, in 1792 (1 Stat, at Large, 189), to the ancient right and possession of Virginia, which extended, by virtue of these treaties, to the mid- dle of^he bed of the Mississippi river. It follows, therefore, that if AYolf Island, in 1763, or in 1820, or at any intermediate period between those dates, was east of this line, the jurisdiction of Kentucky rightfully attached to it. If the river has subse- quently turned its course, and now runs east of the island, the status of the parties to this controversy. is not altered by it, for the channel which the river abandoned remains, as before, the boundary between the States, and the island does not, in conse- quence ot this action of the water, change its owner {Heffter, Du Droit Lnternational,p. 143, § 60 ; Caratheadery, Da Droit Lnter- national, 62)." The learned justice then carefully and critically examined the evidence in the case, consisting of the testimony of living witnesses, the physical changes and indications at and above the island, and the'maps and books produced by the complainant, remarking that, in a controversy of the nature of the case at bar, when Sta'te pride was more or less involved, it was hardly to be expected that the witnesses would all agree in their testimony, and hence it was necessary to consider the evidence somewhat in detail, which was done, and the conclusion was reached that " the State of Missouri has no just claim to the possession of Wolf Island " {Missouri v. I^cntucky, 11 Wall. R., 395, 401-411). At the same term of the Supreme Court of the United States it was decided that such court had original jurisdietion, under the Constitution, of controversies between States of the Union con- cerning their boundaries ; and that this jurisdiction was not defeated because in deciding the question of boundary it was necessary to consider and construe contracts and agreements between the States, nor because the judgment or decree of the court may affect the territorial limits of the jurisdiction of the States that are parties to the suit. And the court accordingly adjudicated the question before it, and decided that the counties of Jefferson and Berkely, formerly belonging to the old State ot Yiro-inia, have become and now belong to the new State of West Virginia ( Virginia v. West Virginia, 11 Wall R., 39). And the sam^e high court decided, in 1838, that such court had jurisdiction of a bill filed by the State of Rhode Island against the State of 244 LAW OF BOUNDARIES. Massachusetts, to ascertain and establish the northern boundaries between the States, that the rights of sovereignty and jurisdiction be restored and contirmed to the plaiutiifs, and thej be quieted in tlie enjoyment thereof and their title, and for other and further relief {The State of Rhode Island and Providence Plantations V. The Commonwealth of Massachusetts, 12 Peters' P., 657; and vide same case in 1-^ ib., 210, a7id in 15 ib., 233). CHAPTER XX. KEMEDIES AND PROCEEDINGS TO DETEKMINE UNSETTLED B0TJNDAEIE8 * WHEN THE QUESTION MAY BE SETTLED AT LAW STATUTORY TRI- BUNALS TO SETTLE BOUNDARIES THE FRENCH AND ROMAN CODES LEGAL REMEDIES LST THE AMERICAN STATES SETTLING DISPUTED BOUNDARY BY PAROL AGREEMENT. A FEAV suggestions become necessary in respect to the remedies in cases where boundaries of real property have become confused or the question of boundary lines is in dispute. The form of pro- ceeding in such cases is often prescribed by statute. By the French Code, every proprietor may compel his neighbor to deter- mine the boundaries of his contiguous properties, and the method of proceeding is pointed out. In such cases, the expense of determining the boundaries must be at the common expense of the adjoining proprietors {Code Napoleon, article ^^'o). In respect to the Roman method of determining boundaries, Dr. Col(j[uhoun, a British statist, gives the following account : " The Twelve Tables and lex j^iawtVitt provided for the appointment of agri mensores, or professional engineers, who were enabled to determine questions of confused boundary without ditJiculty, for the Romans had tiie most exact surveys, not only of Italy, but also of the provincial lands, municipalities and colonies; and so accurate were these, that not only were the mere boundaries ol contiguous estates laid down, but even the hedges and olive trees, together with the number of slaves, buildings, etc., were marked or scheduled. These maps were engraved on tablets of brass, and depo&ited in the -^rarium at Rome ; in the case of municipalities and the like, the original was preserved in the like manner, but a DISPUTED BOUNDARIES^ HOW SETTLED. 245 copy, printed off on linen from the engrav^ing, was sent to the locality to which it applied. These surveys being made on an accnrate scale, there was, therefore, very little difficulty in an agrl rnensor ascertaining the exact spot, and by measuring from any fixed points, about which he entertained no doubt, he could easily settle a boundary in a far more satisfactory manner than by exam- ining peasant people who had attained fabulous ages, which render them decrepit in body and imbecile in mind. * * * J^ot only the boundary must have been declared, but the id quod interest was to be compensated, with mesne profits realized and every damage. The judge investigated the whole boundaries, taking the evidence from landmarks, the courses or witnesses, with the power of summoning the assistance of civil engineers, or viewing the locality. If the dispute could not be otherwise terminated con- veniently, he might adjudicate an appropriate piece of another's land, to be paid for at such estimation as he might think fit " {Colquhou'ti's Summary of the Civil Law, § 2179). Upon this subject Mr. Justice Story, referring to Domat, Coke on Littleton, Hargrave's Notes, and the Digest, for authority, observes: " The civil law was fiir more provident than ours upon the subject of boundaries. It considered that there was a tacit agreement, or duty, between adjacent proprietors to keep up and preserve the boundaries between their respective estates; and it enabled all persons, having an interest, to bring a suit to have the boundaries between them settled ; and this, whether they were tenants for j-ears, usufructuaries, mortgagees or other proprietors. The action was called actio finium regundorum ; and if the pos- session was also in dispute, that might be ascertained and fixed in the same suit ; and, indeed, was incident to it. Perhaps it might not have been originally unfit for courts of equity to have enter- tained the same general jurisdiction in cases of confusion of bound- aries, upon the ground of enforcing a specific performance of the implied engagement or duty of the civil law. Such a broad origin or exercise of the jurisdiction has, however, never been claimed or exercised" (I Story'' s Equity Jur., § 614). In England there is an act of Parliament relating to the man- agement of the queen's woods and forests, M-hich contains several provisions enabling the commissioners of woods and forests to settle disputes and differences touching the boundaries or extent of lands within their jurisdiction ; and such commissioners are, 246 LAW OF BOUNDARIES. moreover, empowered to inquire into trespasses, encroacliraents, and inelosures, which have been made on the royal forests (10 Geo. IV, chap. 50, §§ 94, 96, 98, 100). In many of the American States the Legishitiires have provided for special tribunals to settle disputes in respect to questions of boundary between adjoining owners of land. For example, in the State of Maine the statute provides tliat, in case of a contro- versy between adjoining towns, the court may appoint commis- sioners who are required to ascertain and determine the line or lines in dispute, and the method of proceeding is prescribed {Revised Statutes o/lSTl, chap. 3, § 40). The courts have held that, in such cases, the validity and efficacy of the proceedings of the commissioners must be determined upon the facts appearing on the reports ; and that if the report does not " ascertain and determine " the line, the " controversy " is not ter- minated, and commissioners may be appointed on a new petition. And it was accordingly held, in one case, that a report declaring that the commissioner do " award and determine " that a certain defined line " shall be the true boundary," etc., did not make it certain that they did not establish a new line, instead of ascertain- ing and renewing the old one ; and, hence, that the report was insufficient {Lishon v. Boivdoin* 53 2Iaine B., 324). And it would seem that, in the State of Maine, an action may be main- tained to determine the boundary line between the adjacent lands of two parties in dispute {Chase v. White. 41 JUaine Ji., 228). In the State of New Hampshire there is a statute which impow- ers the court to appoint a committee to ascertain the boundary line between two adjoining towns {Revised Statutes, cha_p. 37, § 6). And the Supreme Court of the State has held that the judgment of the Court of Common Pleas, upon the report of a committee, under the provisions of that statute, is a judgment in rem, and conclusive upon all persons. It is held that the effect of such a judgment is not merely prospective. It is an adjudica- tion not only of wliere the line is, but wliere it always has been since it was established by the incorporation of the town; and is, therefore, conclusive upon the parties in a suit against one of the towns, pending when the judgment was rendered, and in which was involved an inquiry into the location of the boundary. And it was held further, in the case, that the proceeding of the select DISPUTED BOUNDARIES, HOW SETTLED. 247 men of the adjoining towns, in perambulating the line and renew- ing the marks and bounds, are not conclusive evidence of its true location {Pitman v. Alba^iy, 34 iV^. //. 7?., 577). In the State of Connecticut a statute exists which provides as follows: "Whenever the boundaries of lands between two or more adjoining proprietors shall have been lost, or by time, acci- dent or any other cause shall have become obscure or uncertain, and the adjoining })roprietors cannot agree to establish the same, one or more of said adjoining proprietors may bring his petition in equit}^ to the Superior Court for the county in which such lands or a portion of them are situated, and such Superior Court, as a court of equity, may, upon such petition, order such lost and uncertain bounds to be erected and established ; and, for that pur- pose, may appoint a committee of not more than three able, judi- cious and disinterested freeholders of this State, who shall issue due and reasonable notice to all parties in said lands to appear before them ; and said committee shall take tlie oath hereinafter provided, and shall, as soon as may be, inquire into the facts and proceed to erect and establish such lost and uncertain bounds, and, when necessary, may employ a surveyor to assist therein ; and said com- mittee shall, as soon as may bo, report the facts and their doings to the Superior Court, pursuant to their appointment ; and if said court shall find said parties have been duly notified and heard, or had an opportunity to be heard, they may approve and by decree confirm the doings of said committee ; and certified copies of said report and decree shall be recorded in the records of the town or towns in which said lands are situated; and the bounds so erected and established shall be the legal bounds between said adjoining proprietors" {Conn. Gen. Statutes, 543, § 33). The Connecticut statute, providing the means for restoring lost or uncertain boundaries, contemplates a proceeding in equity to efiect the purpose; and, hence, the ecpiitable powers of the court are extended to many cases which they would not reach, except for the statute. Under this statute the Supreme Court of Errors of the State have decided that it is not necessary for the court, by a preliminary hearing, to determine whether there is in fact a lost or uncertain boundary, but that the question may properly be refen-ed to the committee with the rest. The proceeding is a statutory one, and the court hold that the object of the statute was not, by this summary proceeding, to determine the title tc 248 LAW OF BOUSD ARIES. land, or settled, disputed or uncertain lines between adjoining proprietors, but to restore the marks of dividing lines that have once existed, and have been displaced or destroyed or have become obscure. Ilinman, Ch. J., delivered the opinion of the court, and, after repeating the language of the statute, and referring to a prior case decided by the same court, observed : " It was not the intention of this statute to withdraw cases relating to the title to land from the ordinary tribunals, assisted as tbey are in respect to the finding of facts by a jury. The Legislature intended to guard against this abuse of the statute in the first clause of it, which limits the action of the court, as a court of equity under it, to cases where the houndaries between adjoining proprietors have been lost, etc. And by boundaries, as here used, is obviously meant the ordinary monuments intended to mark the line between adjoining proprietors. It presupposes that such monuments once existed, and have ceased to exist, or that they have become so obscure as to require the erection of new ones. It was not intended that every uncertain line of division between adjoining proprietors should be definitely fixed by a committee of the Superior Court. Suppose a proprietor had encroached upon an adjoining proprietor fur so long a time and under such circum- stances that he could not be divested of his possessions, no one Avould claim that he could call upon the court to fix a boundary for him up to the line that he had occupied ; and there is little reason for claiming that his adjoining proprietor could call upon the court to determine by a committee where the original line really was, so long as the original monuments which defined that line remained. The object is not to try the question of title on either side of the line, but to mark the place of the old line where the ancient monuments are gone" ( West Hartford Ecclesiastical Society v. The First Baptist Church in West Hartford^ 35 Conn. Jl., 117, 119, 120). But the same court had previously decided that the statute under consideration, which was passed in 1859, con- ferred a jurisdiction upon the said Superior Court, in respect to ascertaining lost boundaries, which was not dependent on the want of adequate remedy at law. And, therefore, it was held that the court acts under the statute as in ordinary cases in equity, and is not bound to confirm the doings of the committee in such cases, but may, where the facts reported are not sufficient to jus- tify a decree for the petitioner, dismiss the bill. The court "fur DISPUTED BOUXD ARIES, HOW SET! LED. 249 tlicr held that a lost or uncertain boundary, under the statute, is a boundary which has lost its distinctive character as such by removal, displacement, decay or change, so that it no longer answers the purpose of a bound in defining the true line, and that it was immaterial whether the same was a natural or artificial object. Butler, J., delivered the opinion of the court; and in the course of his remarks he gave the history and purpose of the law under consideration. He said : " The importance of having fixed bounds between adjoining proprietors was recognized earl^^ in the history of the State, In 1719, when all equity power remained in. the General Assembly, and when every adjoining proprietor was required to bound everv parcel of his land 'with sufficient mere stones, at least eighteen inches long, whereof six inches should be above ground,' under a penalty of one dollar and sixty-seven cents per month, and perambulate his lines once a year if requested by tbe adjoining proprietor, under a penalty of eighty-fonr cents per day for every day he should refuse, an act was passed providing for the 'fixing' of 'lost bounds' between adjoining proprietors by freeholders, appointed by an assistant or justice of the peace. But that act transferred no title or possession, and prevented no pro- ceedings at law ; and, unless acquiesced in, the only eifect was to make a 'prima facie case in favor of the plaintiflf. That statute was practically of little use, for the want of force and finality in the proceedings, and was omitted in the revision of 1S21. In 1832 another statute M'as passed of substantially the same charac- ter, with a provision that if the parties did not abide the action of the freeholders, and litigation ensued, the plaintiff, if unsuccessful, should pay double cost. That statute was also found to be of little practical importance for the same reason ; and in 1859 the statute in question was passed, placing the power in the Superior Court '«« a court of e ^ Inch rests upon them all, that each and every of them sluUl not bring nto difficulty the title to the lands " (IH/Z.. v. Parku-onl Sy.anst.n>s R., 9; S. C, 2 Meri.. R.. 507). In all such cas between landlords and tenants, it seems the court will grant the landlord a commission instead of driving him to an ejectment, in which the tenant's possession gives him a manifest advantage ( \ ide 1 Ficrlonffs Landlord and Tenant, 269). These cases, which have been considered m the Enghsh cou.t. are most of them of an ancient date; but they are all recognized as authority in England at the present day, and the current piac- tice in England isin accordance with the rules laid down m such cases. And it may be affirmed that a similar practice prevails in the American States. In November, 1872, the Supreme Cuuit of the State of New York, at a Special Term, appointed a commis- sion of freeholders of the county to find, ascertain, hx and estab- lish the boundary lines of certain lands in dispute, by metes and 264 LAW OF BOUyDARIES. bounds, and to set corners and monuments to designate the cor- ners and lines of the lands. The case before the court was this: Each party to the action was owner in fee of one-fourth part of over 1,200 acres of land, of an uneven and hilly surface, and mostly wild and covered with timber ; and the boundary or divi- sion lines between the several owners had never been ascertained or fixed by any accurate survej', nor had corners been set, or monuments erected, or trees been marked to designate either of tlie corners or lines of the land of either party ; neither party could, with the aid of a surveyor, ascertain with reasonable accuracy, except by chance, the boundary or division lines between his land and that of the other parties; and the boundary lines of no one of the parties could be determined and fixed without ascer- taining the location of the boundary lines, or some of them, of each of the other parties. The court held that these boundary lines ought to be ascertained, fixed and designated, so that the parties would be bound by the locations thereof, and know where they were. The doctrine was laid down, that a confusion of boundaries of lands exists M'hen, by the deeds thereof, or the acts of the owners or occupants, the boundaries cannot be ascertained with reasonable certainty by one party alone, or except by the judgment or opinions of men, after an examination of the deeds and the pre- mises, with a surveyor, aided, perhaps, by the examination of witnesses. It Avas thought the case came within the rule, and jus- tified the appointment of connnissioners, and they were accord- ingly appointed, and the doctrine was declared, that an action in ec[uity will lie, to ascertain and fix the boundary lines between the lands of the parties, whenever there are peculiar equities attach- ing themselves to the controversy, or where it will prevent a multiplicity of suits. {Boyd v. Doivie, 65 Barh. R., 237.) In a late case before the Court of Chancery of the State of New Jersey, it was held that courts of ec[uity have juris- diction, in cases of confusion of boundaries, to establish lines ; and although they never entertain a simple suit to fix boundaries between individuals where courts of law have jurisdic- tion, yet, where the question is connected with matters that recpiire the interference of equity, as where a defendant has threat- ened, and has served a formal written notice, that he intends to remove ten inches of the end wall of the complainant's dwelling, which the defendant alleges is upon his laud, a court of equity, DISPUTED BOUNDARIES, HOW SETTLED. 265 it was held, will, to prevent imiltiplicity of suits, entertain juris- diction and settle the boundaries, in order to deteiniine whether the complainant is entitled to the continuance of its protection by injunction {De Veney v. Gallagher, 20 N. J. Fq. R., 33). This is a late and well considered case, and settles the principle sub- stantially in accordance with the English authorities. Other American cases will be presently referred to in which the doctrine is recognized, although the cases themselves may have been held not to come within the jurisdiction of a court of ecpiity. Of course, when a mistake has occurred in a conveyance in respect to the boundaries of the land intended to be described, a court of equity is the proper tribunal in which to correct the mistake. For example, in a case before the Supreme Court of New Hamp- shire, it appeared that a deed erroneously, and contrary to the intention of both parties, stated a boundary line as running north, twenty degrees east, instead of north, twenty degrees wcsi. The court held that the error could be corrected in a suit against par- ties deraigning title through the grantor, they all havir^g taken notice of the error, but it would have to be done by a proceeding in equity. And it M'as held in the case, that one notified after he had contracted to buy the land, but before receiving the deed, would not be protected as a purchaser witliout notice {Prescott v. Hawkins, 16 N. II. It., 122). And it has been recently held, by the Supreme Court of Texas, that where a suit is brought by one of two owners of contiguous land, to compel the other to permit him to run the dividing line, and it appears that the line had been run by former owners, the right to have a divisional line run and judicially established, if necessary, rests on the same principle as a right to an action for specific performance ; and. that, if the line had been run by former owners, and could be in part discovered, such action could not be maintained {George v. Thomas, 16 Texas 12., 74). In a case decided by the Supreme Court of Connecticut, and referred to in the preceding chapter, it was said that the issuing of commissions to ascertain lost boundaries was a very ancient branch of equity jurisdiction ; and tliat the statute of Coimecticut, conferring equity jurisdiction, was quite l)road enough to embrace it {Perry v. Pratt, 31 Co7in. P., 433). And in a somewhat recent case before the courts of North Carolina, where it ai>|iearcd that a mill-race was conveyed, and afterward filled up and ploughed VA 2(3(3 LAW OF BOUNDARIES. over by one wlio had an interest in the land, the Supreme Court in equity took jurisdiction and granted relief, "under a well-set- tled head of equity jurisdiction — confusion of boundaries " {Mer- riman v. Russell, 2 Jo7ies Eq. 7?., 4T0). But in an early Vir- ginia case it was declared that a court of equity would not enter- tain jurisdiction in a boundary case, unless it appeared that the plaintiff had some equity against the defendant claiming adversely to him {Stuart v. Coulter, 4 Band. B., 74 ; aiid vide Dickerson V. StoU, 4 Halst. Ch. B., 294). Judge Willard, in his comprehensive work on Equity Jurispru- dence, says: "The relief which equity affords, in the case of con- fusion of boundaries, is referable to the head of accident. When lands have become mixed or confounded without the fault of the plaintiff', equity will appoint a commission to settle the boundaries, and, upon confirming the report, make a proper decree between the parties " ( Willard's Eq. Jur., 56). The only authority wdiich he cites is the decision of Lord Chancellor Hardwicke, made in 1744, in Norris v. Le Nem, 3 Ath. B., 82, in which commissioners had been appointed to settle the boundaries between the parties, and for separating freehold and copyhold lands ; and the question of jurisdiction was not referred to by the lord chancellor. It may be assumed, therefore, that it was a plain case of confusion of boundaries, in which the jurisdiction of the court was not questioned. Bnt the doctrine of Judge Willard is sustained by numerous English authorities, and is not incon&istent with the case of Boyd v. Dowie. From the cases examined it is very clear that, both in England and in this country, courts of equity will always take cognizance of controversies in respect to boundaries of land whenever the parties cannot obtain substantial relief in a court of law, or wdiere equitable circumstances are shown, calling for the interfer- ence of a court of equity; although, as a rule, unless some statute exists upon the subject, the existence of a controverted boundary is not of itself alone a ground for relief in equity. Other circum- stances must be shown which seem to require the interference of the court. Whenever such circumstances do exist, it may be observed that full and actual possession is sufficient title to main- tain a suit for settling boundaries ; a strict title is never entered into in cases of this kind. This was so declared by Lord Hard- wicke many years ago, and the rule has not been changed {Penn V. Lord Baltimore, 1 Yesey, Sen., B., 444). DISPUTED BOUXDARIES, HOW SETTLED. 267 It may also be stated here tliat a court of equity exercises juris- diction in cases where distress for rent has become dithcult or impossible by reason of confusion of boundaries, which is more common in England than in this country ( Vide Mltford's Eq. Pleadings.^ 117). It was held at an early day in England that if a tenant of lands confounds the boundaries in order to prevent a distress, the lord will be entitled to a commission to ascertain them {Bouverie v. Prentice^ 1 Broimi's C C, 201). And in another case, where it appeared that, by great length of time, it had become impossible to know out of what particular lands ancient quit-rents were issuable, a court of equity has exercised a jurisdiction, and it was declared that such courts had constantly, on proof of payment within a reasonable time, decreed a satisfac- tion for all arrears of such rents and payment of the same for the future {Diike of Bridgewater v. Edwards, 6 Browii's Parlia- mentary Cases, 308). So, also, from an important case before the High Court of Chancery in the time of Lord Hardwicke, it appears that " where a man is entitled to rent out of lands, and thi-ough process of time the remedy at law is lost or become voiy difhcult, the court of equity will interpose and give relief, upon the founda- tion only of payment of the rent for a long time ; and that the court will even go so far as to give relief where the nature of the rent (as there are many kinds at law) is not known, so as to be set forth ; but then all the terre-tenants of the lands out of which the rent issues must be brought before the court, in order for the court to make a complete decree" {Benson v. Baldwin, 1 Atl'iju''s P., 598). And it may be added that the fact of the boundaries of the land out of which the rent issues, or the days on which it is payable, or the nature of the rent, being uncertain, or other grounds of relief, must be clearly stated in the bill ; or else a land- lord might be very vexatious to a tenant, and make him spend in his own necessary defense more than three times the value of the rent {Vide Holder v. Chamhrey, 3 P. Wms, P., 256). And before relief can be given to the party entitled to the rent, it must be clearly shown that the tenant of the land out of which it issues is in possession of some part of the land chargeable with the rent {Mayor of Basingstoke v. Bolton, 1 Drewrfs P., 270; S. C, 3 ih., 50). It may also be suggested hei-e that it is a well-established rule in equity that the plaintiff is entitled to compel the discovery of 268 LAW OF BOUyDARIES. everything in the possession of the defendant, M'hether consisting of facts, deeds, papers or documents, which will help the plaintitf mahe out his own case; and that he can only be refused inspec- tion of evidence which relates exclusively to the case of the defend- ant. The like discovery may also be compelled without the trouble of filing a cross-bill ( Vide Ligilhy v. Shafto, 33 BeavaiCs i?., 31, 42; Bolton v. Corporation of Liverpool, 3 Sim. ^.,467; Llewellyn v. Bordeley, 1 Hare's R., 527 ; 2 DanielVs Ch. Pr., 1659, et seq., 4:th ed. / Wigrarn on Discovery, 15). It has been accordingly held that, where a party is impeded in the recovery of his property at law merely by reason of his inability to identity- it, in consequence of confusion of boundary or from any other cause, tlie court of equity will assist him by compelling a discovery of what are the larms or pieces of land, the names of the tenants, and the like {Loiter v. liolle, 3 Veseys B., 4, 7). And where the plaintiff prayed for discovery of certain documents (consisting of old surveys, deeds and tlie like), which the defendant admitted to Lave in his possession, in order to find out how the parcels and boundaries of property in litigation were delineated, he was allowed to see such portions of the documents as related to the said parcels and boundaries; but was denied inspection of those portions which did not relate to the subject-uiatter of the suit {Jenlins v. Bushhy, 35 L. J. Eq., 400). Where, however, the boundaries have been confused by the persons whose duty was to preserve them and keep them distinct, such as a copyholder or leaseholder, he will be obliged to produce any evidence he may have in his possession, which tends to remove the difiiculties which he himself has created ; but lie will not be under this necessity, unless the boundaries cannot otherwise be proved {South- well V. Thompson, 6 Z. J. Ch., K S.,196). A purchaser of lands under the description of " partly freehold and parti}' leasehold" is entitled to have the boundary dividing the freehold from the leasehold defined hy reference to the instru- ments of title, or shown to be capable of being so defined ; but the circumstance that the property is described in the agreement as " partly freehold and partly leasehold," the boundaries distin- guishing the one from the other not being stated, and having not hitherto been clearly defined, is not an objection to a decree for specific performance. The uncertainty in the boundary or extent of property, which arises not from an instrument being incapable DISPUTED BOUNDARIES, HOW SETTLED. 269 of leo-al construction, but from its not having heretoiore received any such le^al construction, is no ground for refusing specihcper- fonnance of a contract to sell such property {Monro ^-TayzuS Hm^e's i?., 51 ; ^S-. C, 3 Macnaughton <& Gordon s A., Tl^ ; ^. ^^ 21 Z. J. Fq., Jy. S., 625). In the time of Lord Chancellor Hardwicke, the High Couit of Chancery of England took jurisdiction of an agreement between the grantees of two provinces in America relating to the settle- ment of disputed boundary, founded on articles of agreemcn executed in England, under seal, for mutual consideration, and decreed that such agreement be specifically performed, although the crown only has jurisdiction in cases of this nature ; lor the Queen's courts, both of law and equity, provided the parties to be aifected by the judgment or decree are within their jurisdiction, can take cognizance of and enforce an agreement, whatever may be the subject-matter of it {Fenn v. Lord Baltimore, 1 Vesey, Sen., B., 444, 447). . CHAPTER XXII. KEMEDIES AND PKOCEEDINGS IN EQUITY TO ^^^™^^7^^^,^"^^^ BOUNDARIES OF LAND — CEKTAIN RULES HELD TO APPLY 10 ALL CASES OF CONFUSION OF BOUNDARY - CASES IN WHICH EQUITY JURIS- DICTION HAS BEEN DENIED. The courts have settled certain rules which apply to all cases of confusion of boundary, whether occurring between independent proprietors or between a landlord and his tenants ; for example, ft was long ago decided by the courts of England that a commis- sion should not issue to attain a remote consequential advantage. A bill was brought by a rector principally on account of tithes, and to have a commission to settle the boundaries ot the parish and the glebe ; Macdonald, C. B., said : " The plaintiff here calls upon the court to grant a commission to ascertain the boundaries of the parish, upon the presumption that all the land which is found within these boundaries will be titheable to him. I hat is indeed ^ prima facie inference, but by no means conclusive, and there is no instance of the court ever granting a commission in 270 LAW OF BOUNDARIES. order to attain a remote consequential advantage. It is a juris- diction which the Courts of Equity have always been very cautious of exercising" [Atkins v. Hatton^ 2 Austr. B., 386). Another rule applying to all cases of confusion of boundary is, that the Court of Equity will not grant relief unless it be shown that, without the assistance of the court, the boundaries cannot be found. That is to say, this is the rule unless, as in some cases, a different practice is establislied by the statutes of the State. This has been substantially shown by cases heretofore considered ; and others may be cited to the same purpose. The doctrine was laid down in an important case in the High Court of Chancery of England during the time of Lord Chancellor Eldon ; and the case contains such a full and lucid exposition of the rules which guide the courts in boundary questions that it may, with propriety, be cited at length. It appeared that A. was entitled to the fee sim- ple in four acres of land, part of a field containing about five acres ; the remaining one acre belonged to the crown, and was devised for a term of ninety-nine years to a tenant, whose interest A. purchased, and thus became entitled to the possession of the whole field. In 1805 the lease terminated, and the defendant purchased the share and interest of the crown in the said acre of land. A yearly tenant of A., under some misapprehension, then let the defendant into possession of the whole field; and he had since continued to hold, refusing to set out the portion of the field belonging to the plaintiff, upon whom A.'s interest had devolved, or to make any compensation. There was no evidence either that the defendant had obtained possession of the four acres impro- perly, or that A. or the plaintiff had ever acknowledged him as their tenant. The plaintiff thereupon filed his bill to obtain amongst other things a commission to ascertain boundaries, and a commission of partition. Sir Thomas Plumer, master of the rolls, said : " In every bill for a commission to ascertain boundaries it is first necessary to show that, without the assistance of the court, the boundaries can- not be found. Now, here that is not proved ; the answer admits that the whole field has been held together ; the bill states that there are no marks and bounds to distinguish one part from the other ; and though there may be none that are visible and apparent to the eye, yet it does not follow that, by addressing themselves to old people acquainted with the place, or by examin DISPUTED BOUNDARIES, HOW SETTLED. 271 inc. the tenant, they might not separate the two parts. The court would expect this to be clearly established before .t would inter- fere But if the difficulty of finding the boundaries were estab- lished, it is clear the plaintiff does not stand in a predicament that gives him a right to apply lor a commission This is a case of persons claiming by adverse title ; there is no connec ion hetween them, to serve as a foundation tor the court to proceed on in ordering a commission. This subject is very luminously con- sidered by the late master of the rolls, in Speer v. Crawter ; and that case'has settled that you nuist lay a foundation for tins species of relief not merely by showing that the boundaries are confused, but that the confusion has arisen from some misconduct on the part of the defendant, or those under whom he claims, of which you have a right to complain, and which renders it incumbent on him to co-operate in re-establishing them. But the court will not interfere between independent proprietors, and conlns.on ot boundaries, per se, is no giound to support such a bill. Here the crown and the plaintiff claim independently ot each otliei", and nothing is stated in the bill but the mere iact of the boiindanes beinc. confused. The case stated by the plaintiff is, theretore, obviously open to this fatal objection. * * - The i-emainder of the prayer is for a commission in the nature of a writ ot parti- tion : but this proceeds from a mistaken view of the subject. Partition can only be between joint tenants, tenants in common or coparceners; "originally it was confined to coparceners, who derived that name from bei.^g able to compel partition (1 JnsL, 2n) By the statute 31 Henry VHI it is extended to tenants in common and joint tenants, but the principle is the unity and entirety of possession, that each party has an undivided interes in and a right over the whole, and hence the plea of non tenet insinud is a good plea to a writ of partition, and --^ f^ ; !^, necessary for them to make conveyances to each other, aftei then portions are set out. The same rules that prevail at law are adopted in equity, and it is only on the same grounds that you can apjy to this court. * * * Here the plaintiff and the crown claim by distinct and adverse titles, as independent owners, and there can be no partition between them. Partition is not given for any such reason as confusion of boundaries, but from the nature of the interest of the parties. This part of the .ill ^s 272 LAW OF BOUXD ARIES. quite as untenable as the rest" {Miller v. Warringto7i, 1 Jacob c& Walker's 7?., 484). Still, another rule is that, in order to obtain relief from a court of equity in cases of boundary, it is necessai-y for tlie plaintiff to establish a clear title to some land in the possession of the defend- ant. In support of this proposition a leading case may be refer- red to, decided by the High Court of Chancery of England, where a bill was brought to ascertain and set out the boundaries of lands belonging to the plaintiff", under whom the defendant had held as lessee for a number of years, on the ground that the defendant liad, during the lease, confused his own lands with those of the plaintiff", so that they could not be distinguished. It was satisfac- torily proved that part of the land in the possession of the defend- ant belonged to the plaintiff. The master of the rolls, Sir John Leach, said : '' It appears, by the authorities which have been referred to, that, to sustain a bill of this natui-e, it is necessary that the plaintiff establish a clear title to some land in the posses- sion of the defendant ; and, according to the case in Bunbury, the court will not direct an issue to try the title if it be left in doubt upon the evidence in the cause. It has been argued that the title of the plaintiff must appear by the admissions of the defendant, and that it is not enough that it be established to the satisfaction of the court by the evidence in the cause. That proposition is not countenanced either by authority or by principle, and is manifestly untenable ; for, if such were the rule, there never could be a decree for the plaintiff in a suit of this nature, as no defendant would admit the plaintiff"'s title. When the court is satisfied with the plaintiff"'s title, and that he has an equitable ground for the assistance of this court, the authorities will justify the court in affording relief, either by a commission, or by an issue, as will best advance the justice of the particular case" {Godfrey v. Littel, 1 Bussell i& Mijlne's R., 59 ; S. C\, 2 E. i& My. B., 639 ; a7id vide Chapman v. Spencer^ 1 Eq. Ca. Ahrid., 163, A. 21 ; Lord Teyn- ham V. Ilerherf, 1 Atk. li., 4S3 ; Mayor of York v. P ilkington, Jb., 282 ; S. C, 2 ib., 302 ; Sayer v. Pierce, 1 Ves. P., 232). And in another late case in England, before Yice-Chancellor Wood, the crown sought to recover land alleged to have been reclaimed from the sea by encroachment or purpresture; the vice-chancellor siiid that he apprehended tliat if the defendant admitted the crown's title to the soil between the then present high and low- DISPUTED DOUXDARTESy HOW SETTLED. 273 water mark (wliicli, liowever, was disputed), then, upon inquiry as to the boundary of the sea-shore, the onus would be thrown upon tlie crown of showing that tlie high-water mark in former times extended further inhmd than at present {The Attorney-General v. Chamherlaine, 4 Kay dc Johns, i?., t>92 ; vide Atiornexj-General v. ChamherSy 4 De Gex cfc Jones' 7?., 55). It seems that a court of equitj' will not refuse relief to a person whose land has been improperly sold in consequence of confusion of boundary, although such confusion may have arisen from the nc'"-- lect of the party seeking relief, or those through whom he claims. Thus, in a late case before Yice-Chancellor AVood, it appeared that a testatrix, by her will, appointed the manor of W. (over whicli she had a power of appointment) to uses, under which the ])laintiff became entitled as tenant in tail in possession ; and slie devised her residuary real estate to trustees upon trust to sell. The trustees sold, inter alia, a field, part of whicli was shown by the abstract to be parcel of the manor; and they procured the' legal estate in the wdiole property sold to be conveyed to a pur- chaser who took with full notice of the limitations under whiclt the plaintiff became entitled. It was held that, notwithstanding the error of the trustees arose from the boundaries of the property having been confused by the person through whom the plaintill: claimed, the plaintiff was not precluded from establishing in equity a claim to his share of the land, and to a proportional part of the rents from the time he became tenant in tail in possession ; and an inquiry was directed in what part of the field the plaintift''s portion was situated {HicJcs v. Hastings, 3 luiy <& Johns. 7?., 701 ; and vide Clarke v. Yoiige, 5 Beavan's R., 523). And perhaps it may here be repeated that Lord Hai-dwicke has held and declared that full and actual possession is sufficient title to maintain a suit for settling boundaries; that a strict title is. never entered into in cases of this kind {Penn v. lord Baltiinor-, 1 Vesey, Sen., 7?., 444). And, further, it seems that the retainer by the court for a year of a bill praying for relief on the ground of confusion of boundaries, and the consequent impossibility of distraining for a rent-charge, is not in itself a determination, that relief in equity must ultimately be given; nor will the admission by the defendant of the plaintift''s right give the court of equity jurisdiction in a matter not ])roperly within its cognizance ( Vide Ilarwood v. Oglander, 6 Ves. B., 225 ; Geast y. Barker, 2 Bro^ 35 •2~4 LAW OF BOUNDARIES. a a, 61 ; Cicftls V. Curtis, 11., 620,628; Dtike of Leeds v. C(A'- f oration of Neiv Radnor, Ih., 338). Mr. Justice Story, in treating- upon this subject in his valuable Coniuientaries on Equity Jurisprudence, observes : " Where there is an ordinary legal remedy, there is certainly no ground for the interference of courts of equity, unless some peculiar equity super- venes which a court of common law cannot take notice of or pro- tect." The learned author then refers to several English cases, which have been hereinbefore cited, and continues : " These cases are sufficient to show that the existence of a controverted boundary by no means constitutes a sufficient ground for the interposition of courts of equity to ascertain and fix that boundary. Between inde- pendent proprietors such cases would be left to the proper redress at law. It is, therefore, necessary, to maintain such a bill (as has been already stated), that some peculiar equity should be superin- duced. In other words, there must be some equitable ground attaching itself to the controversy." What will constitute such a ground is then briefly discussed, when the learned author proceeds to say : " In the next place, it will be a sufficient ground for the exercise of jurisdiction that there is a relation between the parties which makes it the duty of one of them to preserve and protect the boundaries, and that by his negligence or misconduct tho confusion of boundaries has arisen. * * * In the next place, a bill in equity will lie to ascertain and fix boundaries when it will prevent a multiplicity of suits. This is an old head of equity jurisdiction ; and it has been very properly applied to cases of boundaries. * * * And it will not constitute any objection to a bill, to settle the boundaries between two estates, that they are situate in a foreign country, if, in other respects, the bill is, from its nature, properly maintainable" (1 Storfs Eq. Jurispru- dence, §§ 616-621). The doctrine will be further illustrated by a reference to a few leading cases in which a court of equity has refused to interfere. In an early case, before the High Court of Chancery of England, Lord Tliurlow refused to issue a commission to ascertain the boundaries of two parishes, with a view to settling disputed ques- tions as to poor-rates belonging to each parish, saying: "That if he should entertain a bill and direct an issue in such a case, he did not see what case would be peculiar to courts of law. * * * Where tliere was a common right to be ti-ied such a proceeding DISPUTED BOUXDARTES, HOW SETTLED. 275 was to be understood. The boundary between the two jurisdic- tions was apparent. That was the case where the tenants ot a manor daini a right of common by custom, because the right ot all the tenants of a manor is tried by trying the right of one ; but in the case before him he saw no common right which the parish- ioners had in the boundaries of the parish. It would be to try the boundaries of all the parishes in the kingdom on account ot the poor-lands." The doctrine of the case seems to be that a court uf equity will not take jurisdiction of controversies in respect to boundaries simply to prevent a multiplicity of suits, except where only one general right is claimed by the bill against a number of defendants who have separate and distinct interests, of such a nature that trying the right of one defendant is trying the rierht of all {St. Luke's v. SL Leonard's, 2 Ausir. 7?., 95 ; and vide PhUlips V. Hudson, 2 L. R. Ch. Apjp., 243). And in a later case, before Lord Chancellor Loughborough, the bill of the plain- tiff charged that the boundaries of the land in question were so intermi °ed and blended that no ejectment could be brought, and prayed the court to ascertain the lands, and declare which belonged to the plaintiff and which to the defendants. The bill was demur- red to by the defendants, and it was insisted that, from the plain- tiff's own statements, there was nothing to prevent him from bringing an ejectment if he was entitled to any relief, and was not barred by length of time. The lord chancellor allowed the demurrer, saying T" Upon the face of the bill it is quite clear the plaintiff may draw a declaration in ejectment. The bill states the title, and that by some means or other the same persons are in possession of all the lands, and have confounded the bounda- ries. The only consequence is, that the plaintiff may come for a discovery to know what are the farms, and who are in possession ; but that never can entitle him to come for possession and an account. He avers, contrary to the fact disclosed by his bill, that he does not know the lands. He describes the two farms and the tenement. If he had filed a bill for discovery only, he must have paid for the discovery ; but it goes on to pray relief, that is merely an ejectment. As to the form of the demurrer, I take it now to be a settled point that, though he may be entitled to a discovery, yet if he goes on to pray relief to which he is not entitled, it is a good ground of demurrer, and the defendant is not to be put to answer. He may bring an ejectment for a farm, £•(] LAW OF BOUXDARIES. the name of wliich lie knows, and a tenement, which he describes Ly the name of tlie last -occupier" {Loker v. Eolle, 3 Yesei/s li., 4, 7). Keference may also be made to a couple of leadmg American cases in which courts of equity have refused to take cognizance of disputed boundaries. Prior to the present statute of Connect- icut upon the subject, proceedings were instituted in a case in equity for the purpose of settling a disputed boundary between two adjoining proprietors, and the court fefused to interfere. The petition alleged in substance that the defendant was in possession of a strip of land, adjoining the laud of the plaintiff, which really belonged to him, and the court was asked to determine in whom the strip of land was vested. The court was unable to see that there was any matter charged in tlie petition which could not be made available in a court of law, and it was therefore decided that the bill could not be sustained. Hinman, J., delivered the opinion of the court, and said : " We have not been able to dis- cover any ground in this case upon which the plaintiff's bill can be sustained. It cannot be supported on the ground of quieting them, or either of them, in the possession of property to which they liave an equitable but not a legal title. In respect to the land in controversy, it is admitted and claimed that the title to it is a perfect legal title in one of the plaintiffs. * * * Upon the facts stated in the bill we can discover no other plausible ground for the interference of a court of equity. The only other object to which these fticts seem to have any application is the Eettleraent of a disputed boundary between the land of Elisha AYalcott and the land of the defendant. * * '-^ The plaintiffs do not claim that a mere controversy in respect to boundaries is Bufticient to transfer, to a court of equity, jurisdiction over the proper subject-matter of an action at law which depends upon it" ( Walcott v. Rohhins, 26 Conn. R., 230, 239, 241). In a late case before the Supreme Court of California, it was decided that the bare existence of a controverted boundary is not sufficient ground for relief, in equity, by an action to settle dis- puted boundaries between adjoining landowners ; that before courts of equity will interfere in such cases some peculiar cir- cumstances must exist, of such a nature that an action of eject- ment will not afford relief. The pleadings in the case before the court showed it to be a case where relief could be obtained in a riSPUTED BOUXDARIES, HOW SETTLED. 277 court of law, and therefore the court below dismissed the hill, and the Supreme Court affirmed the judgment. Sanderson, J., delivered the opinion of the court, and said: " Tiiis action purports to be what would have been, prior to the adoption of our code of procedure in civil cases, a bill in equity to ascertain and settle disputed boundaries between adjoining land- owners. * * * It may be conceded that, under the head ot concurrent jurisdiction, courts of equity may entertain cases of this character ; but it is certain that of late they have coniined their jurisdiction in respect to such cases within very narrow lim- its, it can rarely happen that the action of ejectment will not aflbrd adequate relief in such cases ; and wherever such appeai-s to be the case, courts of equity will decline to interfere, upon the familiar principle that where there is an adequate legal remedy there is no ground for relief in equity. * * * The existence of a controverted boundary by no means constitutes sufficient ground for relief in equity; in all such cases the remedies at law- are adequate. Before courts of equity will interfere, some equi- table ground must attach itself to the controversy— such as fraud, or some relation between the parties which makes it the duty of one of them to protect aiul preserve the boundaries ; or that the question affects a large number of persons, and the boundaries have become confused by lapse of time, accident or mistake" ( Wethcrhee v. Dunn, 36 Cal. It, 249, 255). In respect to the practice in cases of bouiulary in courts of equity, little need be said, for those cases are governed in the main by the same principles by which otiiers are governed. And yet there are some rules of practice which are peculiar to those cases. In granting relief in cases of confusion of boundaries, a court of equity may either direct a connnission to issue for the purpose of ascertaining them, or it may direct a trial of tlie question before the court itself, with or without a jury, or before a court of common law. Perhaps the rule laid down by Lord Brougham, when Lord Chancellor of England, is as nearly to the point as any which can be suggested, lie observes : " Where the question is one involving a mere positive affirmation on the one hand, or a negative on the other, an issue is the Utter and more convenient course. But where the object of the inquiry is to ascertain how mucli of the land has been retained by the dofeiul- ant, and in what direction, and, if the ])art retained cannot bo 278 i^TF OF BOUNDARIES. exactly ascertained, to determine whether any and what compen sation should be made to the plaintiff, the investigation is much more easily and properly conducted by a commission, composed partly of learned persons and partly of surveyors perambulating upon the spot, than before a jury, amidst the hurry and inaccuracy necessarily incident to a trial at Nisi Prius " {Godfrey v, Zittel, 2 Eussell & Mylne's B., 630). In a much later case before Yice-Chancellor Wood, involving similar principles, the crown sought to recover land alleged to have been reclaimed from the sea by encroachment or purpresture. The defendant disputed the crown's title to the soil between the then present high and low- water mark. The court directed issues to try that right, before inquiring how far in former times the ancient high-water mark extended inland ; notwithstandii>g the hardship it might impose upon the defendant, who, by admitting the soil upon which he had exercised acts of ownership to be part of the foreshore, would, in effect, have proved the case of the crown, in the event of his fail- ing to satisfy a jury that a grant must be presumed {The Attorney- General V. Chamherlalne, 4 Kay & Johns. JR., 292). It has been very properly remarked that partition is not given for any such reason as confusion of boundaries ; and yet, from the nature of the interest of the parties, a commission to settle boundaries partakes very much of the nature of a commission of partition, and it is nearly in the same form, and issued out, exe- cuted and returned in the same manner. It may, therefore, suf- fice to refer to any approved work on chancery practice for an account of the proceedings of a court of equity under a decree for partition. The method of nominating the commissioners and suing out the commission, the powers of the commissioners in examining witnesses and enforcing the production of deeds, and the like, and many other points of practice which occur both in commissions to settle boundaries and in commissions for partition, will be found detailed in the works on chancery practice, and par- ticularly in Mr. Daniell's distinguished treatise upon that subject. In form, the decree in these cases directs a commission to issue, directed to certain connnissioners therein named, to distinguish the lands of the plaintiff from those of the defendant, and to set out the same by metes and bounds. It directs all deeds and writings relating to either estate, in the custody or power of any of the parties, to be produced before the commission '^rs upon oath, DISPUTED BOUyDARIES, HOW SET'lLED. 279 ^s tliey shall require ; and declares that the commissioners shall be at liberty to examine witnesses upon oath, take their deposi- tions in writing, and retnrn the same with the commission. It then directs that, after tiie lands shall be so set out, the defendant shall deliver possession thereof to the ])laintiff, and that the ]dain- tiffand his heirs shall hold and enjoy tiie same against the defend- ant or an}' person or persons claiming under him. An account and apportionment of rents and profits, as well as an account oi all tind)er cut, is often ordered where the nature of the case seems to call for it {Vide 2 Danlelli Chancery Practice^ late Ain.ed.. 1163-1105). Mutual conveyances are not ordered in the settlement of bound- ary questions, for the reason that a settlement of boundaries does not amount to an alienation ; for, as was well said by Lord Hard- wicke, "if fairly made without collusion, the boundaries so settled are ])resumed to be the true and ancient limits" {Penn v. Lord Baltuiwpe, 1 Ves.^ Sen., P., 44:4:, 448). Lord Chancellor Eldon decided, in a case before him, on a bill brought by a prebendary against his lessees, who all claimed under the same lease, for a commission to ascertain the boundaries of the prebended lands, that the prebendary was entitled to have as many commissioners as his lessees ( Willis v. Parkinson, 1 Swanto7i's P., 9). In respect to the proper parties in a case in equity to settle and fix a disputed boundary between adjacent landownei's, it may be affirmed generally that all who have an interest in the question must be before the court. In a case before the Ilio-h Court of Chancer}' of England, hereinbefore referi'ed to, which was a suit to enforce an agreement respecting the Ijoundaries of the two proprietary governments of Pennsylvania and Maryland, Lord Hardwicke ordered the cause to stand over, that the attorney- general might be made a party in res])ect of the interests of the crown. The attorney-general afterward left it to the court to make a decree, so as not to prejudice the rights of the crown {Penn v. Lord Baltimore, 1 Yes., Sen., P., -i-i-J: ; and vide Miller V. Warrington, 1 Jack, dc Walk. P., 484). And it has been expressly held by the same court that the remainder-man and all persons having any interest in the property are necessary parties to a bill for a commission to ascertain boundaries ; for in such a case the tenent of the particular estate has no interest distinct from and independent of the estate of those in remainder, so that 280 i.4Tr OF BOUNDARIES. a complete decree cannot be made without bringing them all before the court ; in which respect a decree for the settlement of boundaries differs from one for partition, which may be made in favor of tenants for life or years for the period during which their interest continues, without affecting the holders of succeeding estates {Rayley v. Best, 1 Muss, cfc Mylne's H., 659 ; Atkins v. Ilatton, 2 Austr. R., 386 ; Baring v. Nash, 1 Vesey c& Beame's J2., 551.) And in consequence of this principle in another case, hereinbefore referred to, which was a suit to ascertain boundaries, the attorney-general was made a defendant, upon a suggestion of some claim on the part of the crown to the reversion, after a long lease, of which 300 years were unexpired {Miller v. Warrington, 5 Jack. i& Walk. A\, 484). It appears by one case, at least, hereinbefore referred to, that a bill may be maintained in a court of equity for relief in the case of rent, where the remedy at law by distress lias become very difficult by reason of confusion of boundaries or any otlier cause ; and that in such a case all the terre-tenants of the lands out of which the rent issues must be brought before the court, to enable it to make a complete decree {Benson v. Baldwin, 1 Atkyns' i?., 598). With respect to the costs in suits relating to boundaries, no certain rule can be laid down. If the confusion of the boundaries has been occasioned by fraud or neglect of one of the parties, who had a duty imposed upon him to preserve the boundaries distinct, the whole of the costs of the commission would probably be thrown upon him ( Vide Grierson v. Eyre, 9 Vesey''s JR., 345 ; Metcalfe v. Beckwith, 2 I*. TFms. li., 376). But where neither party has been in fault the costs may be equally apportioned between the plaintiff and the defendant, even though the interest of one may be more considerable than the interest of the other. Indeed, it was so held by Lord Hardwicke in a case before him {Norris v. Le Neve, 3 Aiky7is' B., 82). Although the costs in such cases have sometimes been ordered to be paid in a ratable proportion to the value of the estates, the boundaries of which were confused ( Vide 2 DanielW Ch. Pr., late Am. ed., 1165). It may be added that it has been held that commissioners, under a commission of partition, have no lien on the commission for their charges. The same rule would doubtless he held applicable to the case of commissioners appointed to settle boundaries. Ic EVIDENCE IX BOUXDARY CASES. 281 the language of the vice-chancellor, in the partition case, "it is not competent to an officer of the court to stop in any stage of his duty, and reiuse to proceed. Pie must go on and complete it, and may then come to the court for his remuneration. A contrary rule would be highly conducive to injustice, and favor exorbitant demands" {Young v. Sutton, 2 Vesey cfc Beamei It., 305). This language is as pertinent in a case of boundary as in partition ; and probably the same rule would be held to ap})ly in both cases. CHAPTER XXIII. THE METHODS BY WHICH THE BOUNDARY OF LANDS IS ESTABLISHED THE EVIDENCE IN CASES RELATING TO BOUNDARY OF REAL PRO- PERTY CONSTRUCTION OF GRANTS PAROL EVIDENCE IN CASES OF UNCERTAINTY AND AMBIGUITY PRACTICAL LOCATION OF BOUNDARY. The subject of evidence in respect to controversies relating to the boundaries of real property has been substantially treated in the preceding chapters of this work, in which the construction of grants and conveyances was considered. But it is proposed to devote another chapter to an examination of the methods by which the boundary of lands is established, and the rules of evidence governing cases relating to boundary disputes, without repeating any of the matters contained in the chapters on construction. As a general proposition, it may be affirmed that boundary may be proved or established by every kind of evidence which is admis- sible to establish anj' other fact ; and, under certain circumstances, a species of evidence may be admitted in these, which might not be proper in ordinary cases. When the description of the boundary is in writing, as is most usually the fact, the instrument is first to be examined; and when that is clear there is but little difKculty in the case, except to locate it upon the ground. And here it may be remarked, that the rule requiring the best evidence relates to its grade only, and not to its conclusions. On this principle it has been decided that the evidence of a bystander is competent to prove where lines were run in a certain private survey, though the surveyor be living {Richardson v. MiWurn, 17 Md. R., 67). In locating a deed upon the ground, the rule is generally to rely : 3G 282 i.lTr OF BOUNDARIES. 1. On the lines originally surveyed ; 2. On lines run from acknow- ledged calls or corners ; 3. On lines run according to the course and distance named in the deed {Ave?y v. Baum, Wrighfs i?., 576). The instrument itself must be in evidence, if it be possible to obtain it, and that must be interpreted according to the intent of the parties, as has been abundantly shown in another place ; and to find this intent, the rule is to give most effect to those things about which men are least liable to mistake. On this prin- ciple Mr. Greenleaf, in his work on Evidence, declares, upon authorit}' which he cites, that the things usually called for in a grant, that is, the things by which the land granted is described, have been thus marshaled : First. The highest regard is had to natural boundaries. Secondly. To lines actually run, and corners actually marked at the time of the grant. Thirdly. If the lines and courses of an adjoining tract are called for, the lines will be extended to them, if they are sufficiently established, and no other departure from the deed is required; marked lines prevailing over those which are not marked. Fourthly. To courses and distances; giving preference to the one or the other according to circum- stances (1 Greenleaf on Evidence^ § 301, note). It has been shown in preceding chapters that it is a general and universal rule, that course and distance yield to natural and ascer- tained objects. But where these objects are wanting, and the course and distance cannot be reconciled, there is no universal rule that makes it imperative to prefer the one to the other. Cases may exist, in which the one or the other may be preferred, upon a minute examination of all the circumstances. This princi- ple was illustrated in the decision of a case in the Supreme Court of the United States, many j-ears ago, in whicli another important and practical rule was laid down, that in a case of doubtful con- struction, the claim of the party in actual possession ought to be maintained {Preston''s Heirs v. Boiomar^ 6 Wheat. J?., 580 ; and vide same case, 2 BiWs i?., 493 ; also Townsend v. Hoyt, 51 iT. Y. R., 656). Another rule laid down by the courts as to the construction of grants, and which may properly be noted here, is this: "If there are certain particulars once sufficientl}^ ascertained, whicli desig- nate the thing intended to be granted, the addition of a cii'cum- stance, false or mistaken, M'ill not frustrate the grant" {Jacl'son v ClarJc, 7 Johns. li., 217, 228 ; Jackson v. Marsh, 6 Cow. B., 281) EVIDEXCE IN BOUXDARY CASES. 283 And every grant must be so construed, if possible, as to gi\e effect to the intention of the parties. This doctrine has been fully discussed in another place. In respect to letters patent, the old Supreme Court of New York held, long ago, that if the patent was issued by mistake, or upon false suggestion, it is voidable only ; and that unless letters patent are absolutely void on the face of them, or the issuing of them was without authority or prohibited by statute, they can only be avoided in a regular course of pleading. And again : " When the defect arises on circum- stances dehors the grant, the grant is voidable only by suit. It ■would be against precedent, and of dangerous consequence, to permit letters patent to be impeaclied collaterally " (Jackson v. Lawton, 10 Johns, i?., 23). This was held in respect to a public grant, but probably the same doctrine would prevail in the case of private conveyances. If there is nothing in a patent to con- trol the call for course and distance, the land intended to be granted must be bounded by the courses and distances of the patent, according to the magnetic meridian ; course and distance yielding to a call for natural objects. All lands are supposed to have been actually surveyed, and the intention of the grant is to convey the land according to the actual survey. Obviously, there- fore, the survey is competent evidence in a controrersy in respect to the boundary of the land conveyed [Mcloe-p's Lessee v. ^YaRe7'J 9 CrandCs R., 173). But where plats are returned, without any actual survey having been made, and grants made pursuant to them, the general rule of construction is, that the most natural and most certain calls shall control those which are less certain and less material {Needham v. Prijor'^s Lessee, 7 Wheat. B., 7). This doctrine has also been f ally discussed in another place, and need not be dwelt upon here. In general, where an object is called for in a grant, the line must terminate at that object, whether it be a tree, marked line or natural boundary ; unless there be something else in the grant evidencing that the object is not called for as the termination of the line. If this should be doubtful, the plat and certificate of survey may be resorted to for explanation {Simni's Lessee v. Dichsoji, 1 CooJi'e''s 7?., 137). But it often becomes necessary, in cases of boundary, to resort to extrinsic evidence to aid the court in giving the proper con- struction of the deed or other instrument upon which the ques- tion depends ; and it is desirable, therefore, to refer to some of 284 LAW OF BOUNDARIES. the rules which guide the courts in cases of tliis nature. Where the instrument is plain in its language, the courts interpret its meaning from the document itself. But where the conveyance or other written instrument is ambiguous or doubtful in its terms, other evidence must be resorted to to explain the document and clear up latent ambiguities, and in these cases it is important to understand the rules which have been sanctioned by the courts. Now, it is a well-established rule of evidence that parol evi- dence is not admissible to vary a written document, and this rule is as applicable to questions relating to boundaries as to others. Parol evidence, however, may be admitted for the purpose of explaining the writing and removing latent ambiguities. Parcel or no parcel of the property conveyed is alwaj-s a question of evidence ; " and it may be laid down generally that all facts rela- ting to the subject-matter and object of a deed, such as that the property comprised in it did or did not belong to the grantor, tlie mode of acquiring it, the local situations, limits, and distribution of the property, are admissible to aid in ascertaining wliat is meant by the words used in the instrument" {Doe v. Mcwtin^ 4 Barn. S Adoljyh. i?., 785 ; and vide JW^lurraij v. Spicer, 5 L. B. Eg., 527 ; Baird v. Fortune, 7 Jur., ]^. S., 926). Upon this principle, where there are two or more monuments, either of whicli may be the one designated in a deed, parol evidence is admissible to show which is the monument intended. But where the descrip- tion of the premises conveyed in a deed is sufficiently certain by reference to other deeds and monuments existing when those deeds were made, evidence that the grantor, when he executed the deed, pointed out a monument as the boundary, whicli was not the true one, would not limit the operation of the deed to the monument thus pointed out, where there was no agreement or assent on the part of the grantee {C lough v. Bowman, 1^ N. 11. R., 504). Many cases may be cited to show that where an ambiguitj^, as to the location and boundaries of land, exists on the fiice of a deed, the court may allow evidence dehors the grant to go to the juiy, and that such evidence is proper for their consideration. AVhero land was bounded by a pond, which by means of artitieial works was differently raised at different times, the Supreme Judicial Court of Massachusetts decided that this constituted a latent ambiguity, and that parol evidence was admissible to show that a certain line was agreed upon and understood at the time of the EVIDENCE IX BOUNDARY CASES. 285 conveyance as the boundary of the pond {^Vaterman v. JoJinson, 13 Pick. It., 261). And the same court held tliat grants of adjoining hind by the State, and occupation under them, and sub- sequent conveyances by the grantees, referring to monuments not existing at the time of the original grants, are admissible in evi- dence to prove the boundaries. And where such lands are described in the grant by courses and distances, without reference to monuments, it was declared that evidence of long-continued occupation under the grant is admissible for the same purpose {Owen V. Bartholomew, 9 Pick, i?., 520), Extrinsic evidence is always admissible to explain the calls of a deed for the purposes of their application to the sul)ject-matter, and thus to give effect to the deed. Aiid where the true location of the land in dispute has been ascertained, parol evidence is admissible to show the proper location of all the descriptive des- io-nations and calls of the deed, to the end of determining whether or not tli£ land in dispute passed by it, and thus give effect to the true intent of the parties {Reamer v. JVesmit/i, Si Cat. P., 624). And it has been held, in a controversy involving the location of a boundary line jBxed by commissioners of partition, that monu- ments fixed at the time and mentioned in their written report will control distances. And that in such a case parol evidence is admissible to explain an ambiguity arising from their omission to describe the monument at one corner, and from an erroneous statement of one distance {Hedge v. Sims, 29 Ind. P., 57-t). Where monuments, for example, stakes and stones, or a tree, are referred to in a deed, parol proof is always admissible to show their location ( Vide Linscott v. Fernald, 5 Greenl.M.-, 496 ; Clare- moni V. Carlton, 2 A^. //. P., 373 ; Blake v. Dolierty, 5 Wheat. P., 359). And where a deed gives a description which has not acquired a fixed legal construction, or refers to a boundary which is variable, parol evidence is admissible to explain the deed ( Wate)'- man v. Johnson, 13 Pick. P., 261). The parol evidence of the surveyor who originally surveyed and located the tract of land in controversy, was held legal and com- petent to prove the location and survey of the tract calling to begin at the end of the lines of another tract, and to run to and intersect other tracts, and that it began at and run to particular places described on the plats {Tenant \. Ilampletoix, 3 Bar. cfe Johns. P., 233). And parol evidence has been held competent tc 286 LAW OF BOUNDARIES. identity the land described in an original grant, which was pro- duced on the trial of an action to try titles, and to establish the artificial and other marks referred to in the original plat of the land {Foreman v. Scmdefur^ 1 Brevard's i?., 474). Of course, the original plat of the surveyor is evidence to show the position of the land {Alexander v. Lively^ 5 Mon7'oes JR., 159). But a ] rivate survey, made ex parte, without the order of the court, is inadmissible evidence, in an action of ejectment, to establish a houndary. And it was held that copies of the original maps of ihe surveys of lands, in Mississippi, deposited in the Surveyor- Cleneral's office, were the best evidence of the extent, character and boundaries of such surveys ; and, therefore, that parol evi- dence that a private survey conformed to such official survey, with- out ])roducing a cop_y of the official survey, was improper {Surget V. Little, 5 Smedes c& Marsh R., 319). A map or draft which is ancient, and has been long in use by a company under whom the defendant claimed, is held to be evidence of boundary against him {Huffman v. McCrea, 56 Penn. E., 95). And a map which had governed the sale of lots, and had been treated for many years by the proprietors and purchasers as the original map, was held to be competent evidence to prove a boundary. But remarks made upon the map by a proprietor were declared not to be com- petent evidence {IIarmer''s Heirs v. Morris, 1 M'Lean^s R., 44). And it has been held that an ancient plan, drawn at the time of executing a deed, showing the bearing of the line betwixt the premises and an adjoining lot, is no evidence of such line, as against such adjoining owner or his grantee, unless it is first shown that he was cognizant of such plan and assented ( Wliitney v. Smith, 10 iV\ 77. li., 43). And a dotted line upon a map is not, ferse, conclusive evidence that the line was run, but parol evi- dence may be introduced to explain the character of such line, and prove that it was never actually run and marked {Newman v. Fos- ter, 3 Howard's [J/m.] It, 383). A record of a petition and resurvey of a tract of land, subsequent to the grant of it, is not admissible to vary the boundaries and monuments of the original grant {Osborn v. Coioard, 2 Murphy's R., 77). And where a conveyance declares a fact, as that the land adjoins a river or street, parol evidence cannot be received to show that it does not ; that is to say, unless the description contains a latent ambiguity or be found fiilse, and therefore to be rejected {Pride v. Sweet, 1 Apple- EVIDENCE IN BOUNDARY CASES. 287 fofi^s R., 115). Upon a question wliicli of two lines was a division line, a deed and draft were produced containino; evidence that one line had been made some years before the other. The Supreme Court of Pennsylvania held that a mark on a tree on that line, of the same age as was indicated on the draft, "vvas but slight evi- dence that such was the line, in the absence of other marks on the line ( Venango, etc., Oil Co. v. Lewis, 62 Penn. R., 3S3). Evidence of the possession of settlers on adjacent tracts in refer- ence to a division line, attempted to be shown as recognized by cue of the parties in a suit, was held by the old Supreme Court of the State of New York to be admissible {Rockwell v. Adams, 6 Wend. R., 467). But the case was taken to the Court of Errors, and the judgment of the Supreme Court reversed, and the evi- dence, without explanation, under the circumstances of the case, was declared to be incompetent, as being calculated to divert the attention of the jur^^ from the true question in issue between the parties {Rockwell v. Adams, 16 ^Vend. R., 285). It was assumed in the Court of Errors that there was no ambiguity or uncertainty as to the location of the boundary in question by the terms of the grant ; and that being the case, the evidence, abstractly considered, would not be competent. Where the lines and boundaries of land are fixed and can be identified, a verbal agreement, even by the parties interested, to fix the lines or boundaries different, would not be binding. This is well settled by authority. But where there is doubt as to the identity of the dividing lines the rule is quite different. And, probably, in a case where the parties were really ignorant of the true lines, and they cannot be positively identified by the ordinary proofs, the corresponding lines of set- tlers, as recognized without question for a long time, would be admissible as evidence to establish a disputed line upon the same tract. The Supreme Court of Maine has held, in an action to deter- mine the boundary line between the adjacent lands of two parties, that a deed, given by the original grantor of the demandant (but dated after his deed) to a third person, from whom the tenant, by mesne conveyance, derived his title, was admissible evidence for the consideration of the jury in favor of the tenant, when coupled with testimony tending to prove that the line was in accordance with his claim {Chase v. White, 41 Maine R., 228). It has been held that, where the true original line between two 288 LAW OF BOUaXDARIES. towns is the true line of division between the hmcls of individuals the perambulations of the said line by the selectmen of the towns were evidence to show the boundary between the lands of those individuals ; though an adjudication of the Court of Sessions, establishing the said line, in a suit between the two towns, was held not to be competent evidence of the true line between such individuals {Lawrence v. Ilaynes, 5 W. II. li., 33). Parol evi- dence is admissible to show that the course and boundary in a survey and patent are incorrectly stated, and that they are other- wise on the gi-ound {Magrehan v. Adams, 2 Binney's R., 109 ; Conn. v. Penn., Peters' C. C. P., 496 ; Peed v. Langfurd, 3 J. J. 2IarshaWs P., 420). But where a deed conveys a specific number of acres of land, and no corner is named in the deed, parol evidence is held not to be admissible to establish a line, in contradiction to the deed, which shall contain less land than the specified quantity {Herring v. Wiggs, 2 Taylor^s P., 34). And where the description in a deed is made by course and distance, without reference to any monument, parol evidence is not admis- sible to vary the course and distance given {Hamilton v. Caywood, 3 liar. c& McIIen. P., 437; Peid v. Schenck, 2 Dev. P., 415; and vide Conn. v. Penn., siiprd). Where a deed of lands refers to another deed for the descrip- tion of the premises, the contents of that other deed cannot be proved by parol, but the deed must be produced, if in existence and can be found {Jackson v. ParMiurst, 4 Wend. P., 369). And where a lost deed should accompany the ownership as an essential muniment of title, no necessity will dispense with the proof by parol of the contents, that is to say, of the operative parts of the instrument {Metcalf v. Yan Benthuysen, 3 iV. Y. P., 424). Evidence of what is called a practical location of the boundaries of real property is often competent in cases of controversy I'espect- ing division lines, and it is sometimes difficult to determine whether such evidence should be received or rejected. The rule in such cases has been judicially stated thus : Where there can be no real doubt as to how the premises should be located according to certain and known boundaries described in the deed, to estab- lish a practical location different therefrom, which shall deprive tlie paily claiming nnder the deed of his legal rights, there must be either a location which has been acquiesced in for a sufficient length of time to har a right of entry under the statute of limita- EVIDENCE IX nOUXDARY CASES. 289 tions in relation to real estate, or the erroneous line must have heen agreed njyon hehoeen the parties claiming the land on both sides thereof, or the party whose right is to l)e ban-ed must have silently looked on, and seen the other party doing acts, or subject- ing himself to expenses in relation to the land on the opposite side; of the line, which W()uld be an injury to him, and which he would not have done if the line had not been so located ; in which ease, it has been said, perhaj)s a grant laighl he j)re8umed within the statutoi-y limit {Adams v. Rockv^ell, 10 Wend, i?., 285, note). But to establish a practical location which is to divest a party of a clear and conceded title l)y deed, the extent of which is free from all aml)iguity or doubt, the evidence establishing such location should be clear, positive and unequivocal. In the language of an eminent judge, there can be no doubt that a line run with the full knowledge of all the adjoining owners, or under circumstances from wliich such knowledge may be reasonably inferred, clearly designated, and generally recognized and acquiesced in by those concerned, by repeated and unequivocal acts for a long period;, must control, and cannot be distui'ljcd, whether it passes through cultivated or wihl lands. It would be most unreasonable to denv to the owners of uncultivated and wild lands the right to settle their Common boundary line; and if they c;^n do that by positive agree- ment, such agreement may be inferred from their unequivocal acts, and is as operative when thus proved as if it had been inserted in a deed. In such cases, the establishment of a line is not deemed to be, nor does it acquire validity as a convevance of a new title, but it simply ascertains and determines the extent of lands held under pre-existing titles. It was accordingly held in the case that recognition of and acquiescence in the settlement of a line by the trustees of Eochester, holding the legal title, and, by their cestuis que trust, the inhabitants of the town tor more than, twenty-five years, is conclusive, without attributing any effect to the settlement deed, more than if a parol agreement between the pai-ties as to the boundary. It was further decided that the effect of such acquiescence is not confined to parts of the line where there had been actual occupation, or other distinct act of claim or recognition ; but a line ran with such publicity, clearly designated and generally recognized and acquiesced in by those concerned by repeated and unequivocal acts, for so long a period (over seventy 3'ears in the case under consideration), must control, whether it 37 290 LAW OF BOUXDARIES. passes tlirougli cultivated or wild lands {Runt v. Jo/inson, 19 i\^. 1". Ji., 279; hut vide Townsend v. Ilayt^ 51 ih.^ 656). It was laid down in the late Court of Errors of the State of ^ew York that, to deprive a man of his absolute right to the unques- tioned fee of his land, according to the doctrine of the courts, regardless of or according to the construction which they have given to the statute for the prevention of frauds and perjuries, :t should appear most clear and distinct, without the shadow of a doubt, and bj testimony the most convincing and satisfactory, that there was an express agreement made between the owners of the adjoining lands, deliberately settling the exact, precise line or boundary or location between them, and an acquiescence therein for a considerable time j or, in the absence of proof of such agree- ment, it should be as clearly, distinctly and satisfactorily shown that the party claiming has had possession of the lands claimed up to a certain visible known line, witli the express knowledge and assent of the owner of the adjoining lands, and his acquiescence in such possession, adverse to and in defiance of his rights; and this for a considerahle time. What this considerable time is has not been limited or defined, is quite vague and uncertain, and must necessarily depend upon the particular circumstances of each case. In all cases in which practical locations have been con- firmed upon evidence of this kind, the acquiescence has continued for a long period, — rarely less than twenty years. In one case the erroneous line had been acquiesced in thirt3--six years {Jaclison V, Boiven, 1 Caines' i?., 35S) ; in another it was forty years {Jack- son V. Yedde/', 3 Johns. 7?., 8) ; in another it was thirty-eight years {Jackson v. Dieffendorf, 3 Johns. It., 269) ; in another it was fortj'-one years {Jackson v. 2fcCaU, 10 Johns. li., 377) ; and in the case of Hunt v. Johnson., before referred to, the time was seventy years ; while in one case an acquiescence of four or five years {Kip v. Norton., 12 Wend. R., 127), and in another an acquiescence of eleven years {Adams v. Rockwell, 16 Wend. R., 285), were held insufficient. In I'espect to practical location, Chief Justice Savage said, in one case : " Cases of this description (cases of location and acqui- escence) have been frequently before the court. The principle upon which they have all been decided is that, where parties agree upon a division line, either expressly or by long acquiescence, rsuch line shall not be disturbed ; buildings and permanent EVIDEKCE TN BOUXnARY CASES. 291 iinpi-ovemeiits may be made upon tlie faith of tlie location of the line; transfers may be made, and to permit such lines to be altered might be productive of incalculable injury" {2£cCormiek V, Barnum, 10 Wend. li., 104). Again, in another case, the same distinguished judge repeated the doctrine: "An assent to a location must be either express or implied. If there is a disputed line between two adjoining proprietors of land, it may be settled between them by a location made by both, or made by one and acquiesced in by the other, for so long a time as to be evidence of an agreement to the line. There can bo no doubt that an express parol agreement to settle a disputed or unsettled line is valid, if executed immediately, and possession accompanies and follows such agreement. So, also, where there has been no express agree- ment, long acquiescence by one in the line assumed by the other is evidence of an agreement" {Kij) v. Norton., 12 Wend. R., 127). And it was said by the court, in an early case before the old Supreme Court of the State of N ew York : " After the parties have deliberately settled a boundary line between them, it would give too much encouragement to the spirit of litigation to look beyond such settlement, and break up the line so established between them" {Jacl'son v. Corlear, 11 Johns. R., 123). A distinguished judge of the Court of Appeals of the State of New York excepts to the ground that the rule in question is based upon the idea of an agreement, express or implied, as to the loca- tion of the line, and argues that it is an error to assume that a parol agreement, either actual or supposed, fixing the boundaries to lands, lies at the foundation of the rule. He says: "It is true that several of the cases make this suggestion, and speak of the long acquiescence of the parties as affording evidence of such an agreement. It is difficult, however, to support the rule upon such a basis. If acquiescence for a great number of years in an errone- ous location is obligatory upon the parties merely as evidence of a previous parol agreement, then it must follow that any other proof establishing such an agreement would be equally conclusive upon them. If it is the agreement which binds, the nature of the proof, provided it be competent, is of course immaterial. * * * It seems impossible to hold that a mere parol agreement, adopting a line different from that described in the deed, is obligatory with- out violating the statute of frauds, both in its letter and spirit. * * * The rule seems to have been adopted as a rule of 292 LAW OF BOUNDARIES. repose, with a view to the quieting of titles; and rests -npon the same reason as our statute prohibiting the disturbance of an adverse possession which has continued for twenty years." And the views of the learned judge were adopted as the doctrine .of the court ; and it was accordingly held that the acquiescence of adjoining proprietors for forty years in the practical location of a boundary line between their lands is conclusive, although it be proved that such location was originallj^ made under an agree- ment resulting from a mutual mistake as to facts. It was, how- ever, conceded in the case that there were cases in which an express agreement, recognizing an erroneous boundary, will con- clude a party; as where tlie other party, acting upon the faith of such agreement, has made expensive improvements, the benefit of which will be lost to him if the line is disturbed. But it was claimed that such cases, if they exist at all, rest upon tlie principle oi' estojj'jxl in pais {Baldwin v. Br'own, 1& N. Y. R., 351) ; and vid'' Tyler on Ejectment and Adverse Enjoyment, 571-575). The Supreme Court of New Hampshire has declared the doc- trine, that a practical location is but an actual designation by the parties, upon the ground, of the monuments and bounds called for in a deed ; and it was held in the same case that prior negotiations in regard to the boundaries of land will not be admissible to con- trol the bouudai'ies afterward delivered ( Wells v. Jackson, etc., Co., 47 N. II. B., 235). And the Supreme Court of Texas has I'eccntly affirmed thac, although the presuniption in favor of a boundary line acquiesced in by adjoining 2:)ropi'ietors is strength- ened by lapse of time, there is no pei'iod fixed by the Texas statute which will render the presumption conclusive. Each case, it was said, must furnish its own circumstances modifying the con- clusiveness of the presumption {Floyd v. Rice, 28 Texas R., 341). The Supreme Court of California has held that, if either of one or two or more objects will answer the call of a deed, so that the line will run in two or more positions and still harmonize with the other calls, the parties to the deed may adopt either line, and, where one is thus establislied, that it concludes both parties. But it was said, that acquiescence of tlie parties fur tlie term of five years in the line thus established would probably be requisite to give validity to a line not located according to the calls of the deed ; but that, where the parties, by running and marking the line upon the land, identify a call which from the language of the EVIDEXCE IN BOUXDAIiY CASES. 293 deed is left in uncertalntj, acquiescence will add nothing to the conchisiveness of the location of the line [Ilasthigs v. Stacl', 3C Cal. R., 122). Jt has been declared in several cases that, if a dividing line be settled by parol agreement and actual location between the owners of adjoining tracts of land, such location will be received as strong- evidence of the accuracy of the line thus established, though it is not conclusive to prevent either party from sliowing that it was settled erroneously {Gove v. Richardson, 4 Greenl. R., 327; Avery v, Bau?n, Wrighfs i?., 576). And the Court of Appeals of the State of New York have recently decided that practical location or an acquiescence, for a less term than the statutory period to bar an entry, in an erroneous boundarj" line cannot be claimed to the exclusion of evidence of the true line, where the premises were wild and uncultivated and practically unoccupied {Toiomend v. Ilayt, bl N. Y. R., 656). And the same dis- tinguished court have also lately held that a parol assent of one of tlie parties, as to the location of a boundary fence betw^een adjoining owners, and the actual erection of the fence by the other, in accordance with such assent, followed by mutual occupa- tion, and acquiescence in such location of tlie boundary for a few Dioiiths, is not sufficient to change the true line, or to preclude the assenting party from asserting his rights, in accordance with such true line. And one of the learned judges stated that mutual con- sent to the location of a boundary in dispute, followed by long acquiescence and by mutual occupation in conformity therewith, liad been held to conclude both parties, but that such acquiescence must have continued for a lotig [teriod, scarcel^^ less than that of the statutorj^ period, to bar an entry {Reed v. 3fcConet,4:i JV. Y. R., 435). And the same doctrine was held in the same court at a little later date, when it was declared that, to constitute a practi- cal location of a lot, or line, the mutual act and acquiescence of the paities is requisite; that it must be actually located and acquiesced in for a long tune, probaJjly not less than twenty years, the statu- tory period in New York to mature a title by adverse possession. And it was furtlier held, in the same case, that to estop a party from asserting his title to lands, on the ground that he has encour- aged and permitted another to nwike valuable improvements near them, it is not enough that the premises are convenient, or even beneficial to such other party ; that they must be so far essential 294 LAW OF BOUNDARIES. that it would work material and sei-ious mischief to the party to allow the claim {Corning v. The Troy Iron and Nail Factory, 4-i N. Y. H., 577 ; aiid vide Ray nor v. Timerson, 51 Barh. i?., 517). After the original monuments are gone, and such a period of time has elapsed that no one can be found who remembers to have seen them, or can testify to their location, uniform continued occupancy, by buildings, fences or other equivalent indications of ownership, is evidence that the land was located according to the original monuments {Ctitts v. King, 5 Greenl. R., -ISQ). But where the description of the premises conveyed in a deed is suffi- ciently certain by reference to other deeds and monuments exist- ing when those deeds were made, evidence that the grantor, when he executed the deed, pointed out a monument as a boundar^^, which was not the true one, would not amount to a practical loca- tion, nor limit the operation of the deed to the monument thus pointed out, there being no agreement or assent on the part of the grantee {C lough v. Boionian, io JV. II. R., 504). CHAPTER XXIY. EVIDENCE IN BOUNDARY CASES USAGE AND HEARSAY TESTISTONY DECLARATIONS OF PARTIES TO GRANTS AND DECEASED WITNESSES. The rule is well settled that all ancient grants may be explained by evidence of modern usage, in order to discover what passed by such documents. The doctrine has more frequently been applied in Great Britain than in this country, but it is of universal appli- cation. In England, modern acts of ownership have been adniit- ted to show that ancient grants of King John and Edward I included the sea-coast down to low-water mark {The Dnke of Beavfort v. The Mayor of Swansea, 3 Exc?iequer ^.,413; The Attorney- General v. Jones, 2 Ilurlstone <& Coltmaii^s R., 347; U Estrange v. Rowe, 4 Foster & Firday son's R., 104S) ; to show whether the words " river L." in an ancient patent comprised the bed of the river down to the point where it reached the sea, or only down to a certain ford some distance up the river {Marquis of Donegal v. lord Templemore, 9 Irish Corn. Laio R., 374; In re Belfast Dock, 1 Irish Eq. R., 128) ; also to show that the EVIDENCE rx BOU^LARY CASES. 295 Bea-sliore is parcel of a manor {CaVmadij v. Rowe, 6 Com. Bench 7?., 861 ; and vide Waterjjarh v. Fennell^ 7 House of Lords Cases, 650, 684; Attorney- General v. Drummond, 1 Drury <& Walsh's R., 353 ; Baird v. Fortune, 7 Jurist, N. S., 926). Some cases to the same effect ai-e to be found in the American reports, though the doctrine is there more generally applied to deeds which are ambiguous or doubtful in their terms than to deeds which may be considered ancient. In an early case before the old Supreme Court of the State of New York, the question arose under a deed which gave the grantee the privilege of cutting timber, for building on the premises, from the woods of the grantor. The court held that evidence of usage, with the know- ledge of the grantee and his heirs, to cut timber for fencing, was admissible to show the intention of the parties to apply the word building to the making of fences. And Spencer, Justice, in giv- ing the opinion of the court, says, if the words are equivocal, evi- dence of usage ought to be admitted as the best expositor of the intention of the parties; but if the words of a deed are clear and precise, leaving no doubt of the intention of the parties, usage will not aid in the exposition, and ought not to be admitted. And the learned justice goes on to cite cases to show that such evidence is ]tr<)per oidy in cases of ancient deeds, and where there is an uncertainty as to what was meant by the terms made use of by the par-ties (^Livingston v. Ten Broeck, 16 Johns. R., 23). This case has often been referred to by the courts, both of this country and EnglamJ, and its doctrines have been invariably approved. Of course, it is well understood that deeds are to be expounded by their terms where there is no ambiguity, and neither jiarol evi- dence nor usage can be admitted to vary or contradict a written instrument. But where the words of a deed, and especially those of an ancient deed, are equivocal or doubtful, the usage of the parties under the deed is admissible to explain them. xinother leading case in England may be cited upon the same question, in which there was strong and uniforin evidence that the castle of A. had, for two centuries past, formed part of the hundred of Broxtowe. The court held that the mention in Doomsday Book of the town of A. previously to the enumera- tion of the hundreds in the county, inquisitions taken by jurors of the town of A. upon deaths in the castle of A., and a charter erecting the town of A. into a county of itself, with the special 296 i/.4TI' OF BOUyDARIES. exception of the castle of A., were not so clearly inconsistent with the long usage and reputation in modern times as to negative the inference that the castle was part of the hundred {The JJiike of Newcastle v. Hundred of Broxtoive, 1 Neville <& Manniiufs B., 507; S. C, -i Barn, d; Adolph. i?., 273). This brings us naturally to the consideration of the admissi- bility of hearsay evidence on questions of boundaries. And upon this subject it is an old rule that, in questions concerning public rights, connnon reputation is admitted in evidence, and this extends to questions upon boundary between parishes or manors. But when the question is upon a boundary between private indi- viduals difi'erent principles are involved, although, in the latter case, the evidence is often received. The learned editors of "Notes to Phillips' Treatise on the Law of Evidence" regard the admissi- bility of hearsay evidence on questions of public right as well established upon authority; so much so, "that judges, the most fastidious in regard to this kind of evidence, do not pretend to dispute its competency, however widely the_y may differ upon its force and elfect ;" and they refer to several English authorities Avliich exenq)lify the doctrine. But, they observe, " private rights are cntii-ely another affair. How far hearsay may be brought to bear u])on those which ai'c of an incorporeal nature we shall leave mainly to the discussions in the text. These rights are a branch of learning more peculiarly belonging to England, where they so extensively prevail, and dej)end so much on ancient usage as often to call for hearsay, which is almost the only remnant of evidence left. Jt may be set down, therefore, that on this subject the limits of hearsay evidence have been as far enlarged as con- siderations of safety would wan-ant. In going beyond them, we should violate the best dictates of experietuie. " But in settling the litigated boundaries of corporeal property no courts have, probably, been more extensively engaged, or upon questions of greater difficulty, than the American. In conducting the inquiiy, therefore, how far can hearsay be brought to bear on the l>oundaries of private pro])erty, while the English decisions are, doubtless, as usual, very high evidence of the common law ; yet American courts ought not hastily to be condemned, though they may appear to have gone beyond them. It will, we think, be found that England has furnished the principle upon which the American cases may be sustained to a certain extent ; though we EVIDEACE IX BOUXDAIir CASES. 297 have in some respects gone far beyond them. * * * It wil] be seen by the professional reader that not only certain lots of land, tracts of land or patents, may thus become the subject of hearsay evidence, but their lines, and objects in their ambit, may be and very commonly are dependent entirely on hearsay. A patent or farm is granted to run along the Hudson river. Hear- say or reputation comes in to tell us what stream bears that name, and to distinguish it from its tributaries, the Sacundaga or the Scaroon. The Kayaderosseras patent was granted running on one line to the soidh-ioestmost head of a creek entitled Kayade- rosseras. Public reputation was called in to fix the real head of that creek, and distinguish it from the head of the Coesa creek, which had been assumed as the true object of the line in a survey for the defendants {Brandt ex dem. Walton^. Ogden, 1 Johns, i?., 156, \b7,per Spencer, J.). Another object in the same patent was thL' third falls of Albany river (Hudson), and reputation for forty years was called in to determine whether the third falls wei^ Baker's or Fort Miller falls on the Hudson (3 Cain B., 6, S. C). In this view of the question Henderson, J., speaks m Den ex dem. Tate v. Southard (1 Hawks, 45, 47) : ^ Boundaries,' says the judge, 'frequently exist in common reputation; and it is for that reason that hearsay is evidence upon the question of boundary. It would, therefore, have been sufficient for the defendant to have shown that it was the common reputation and imderstanding of the neighborhood that his land was bounded by the lines of surrounding tracts.' Evidence was also received in that cause, that two ditierent persons, now (at the trial) dead, had the one shown a branch to the witness as one line, and another a certain place in the road as another line of the land in dispute. * * * It is obvious, as we have seen, that, to a certain extent, hearsay must be adopted as evidence in the designation of boundaries. They are, many times, the mere creatures of general reputation (2 Roll. Ahr., 186, pi. 5 ; 17 Fm., 86, pi. 5). Where this is the case, all courts must receive evidence of general hear- say " (I Coioen cfc llUrs iVo^^^, '629-63 1). "The Supreme Court of Florida, a few years since, held that hearsay evidence of ancient boundaries is admissible, when the lapse of time is so great as to render it difficult to prove a boundary line by the existence of the positive landmarks, or other evidence than hearsay {Daggett v. Wllley, 6 Florida B., 482). And the 38 298 -^'41^ ^^ BOUNDARIES. Snproine Court of Alabama lias decided that the boundaries of a puhlio lot may be proved by ,£jeiieral reputation. But whether such evidence would be admissible in the case of ?^ prbmte lot, the court raised a quoire, and left it undecided {Fanner's Heirs v. 31a yor of MoVde, 8 Ala. /?., 279). Mr. Justice M'Lean well expresses the doctrine upon this sub- ject, in a case before the Supreme Court of the United States in 1832. lie says: "That boundaries maybe proved by hearsay testimony, is a rule well settled ; and the necessity or propriety of which is not now questioned. Some difference of opinion may exist as to the application of this rule, but there can be none as to its legal force. " Landmai'ks are frequently formed of perishable materials, which pass away with the generation in which they are made. By the improvement of the country, and from other causes, they are often destroyed. It is therefore important, in many cases, tliat hearsay or reputation should be received to establisli ancient boundaries ; but sucli testimony must be pertinent, and material to the issue between the parties. If it have no relation to the subject, or if it refer to a fact which is immaterial to the point of inquiry, it ought not to be admitted " {Boardman v. Lessees of Reed and Ford, 6 Peters'' li., 328,341). And in an early case in Virginia, involving the boundary of a corner lot in the city of Richmond, the court said : " If the original survey of the town was erroneous, either because it was made without regard to horizontal distances, or from other causes or accidents, and the property has been sold, and held according to such survey, it is now too late to correct such error. Ancient reputation and possession, in respect to boundaries of streets, are entitled to infinitely more respect, in deciding upon the boundaries of the lots, than any experimental survey that can be made. If not, the whole cit}^, and all other towns, would be thrown into the utmost confusion " {Ralston v. Miller, 3 Randolpfis R., 44, 49). The admissibility and influence of hearsay and reputation, in respect to boundaries, was examined by Judge "Washington, in the Circuit Court of the United States, in a case which arose in Penn- sylvania, and in which two surveys were given in evidence which differed in important particulars. On the subject of these sur- veys, and what would be proper evidence in such circumstances, the learned judge said ; "No gentleman of the profession, who is EVIDENCE IN BOUNDARY CASES. 299 at all conversant with land trials, can be ignorant that the joursea and distances laid down in a survey, especially if it be ancient, are never in practice considered as conclusive ; but, on the con- trary, they are liable to be materially changed by oi-al proof, or other evidence tending to prove that the documentary lines are not those actually run. How often have we known reputed boundaries, proved by the testimony of aged witnesses, and even by hearsay evidence, established in opposition to the most precise calls of an ancient patent. Such evidence has been constantly received ; and distances have been lengthened or shortened with- out the slighest regard to the calls of the patent. The reason is obvious ; it is not the lines reputed, but the lines actually run by the surveyor, which vest in the patentee the area included within these lines. The survey returned, or the patent, is the evidence of the former; natural niai'ks or reputation is, in almost all cases, the evidence of the latter. The mistakes committed bj^ surveyors and chain carriers, more particularly in an unsettled counti-y and wnlderness, have been so common and are so generally acknow- ledged as to have given rise to a principle of law, as well settled as any which enters into the land titles of this country ; which is, that when the mistake is shown by satisfactory proof, courts of law as well as courts of equity have looked beyond the patent to correct it. It will readily be admitted that such evidence should be cautiously received, if it should have a preponderating influence in determining the question of boundary. Subsequent locaters look, in the flrst instance, to the survey as made and returned, for a demarkation of the tract ; with which they must not interfere. But if a mistake is apparent upon the face of the survey, taken in connection with the natural and artificial marks on the ground, if the reputation of the neighborhood has assigned to the tract of land so surveyed boundaries different from those delineated on the survey returned, a subsequent location is so fur affected by notice of the real boundaries of the tract on which it would adjoin, that a claimant under it cannot, even in a court of equity, set up liis posterior equitable title against the legal or equitable title of the first locater. In short, he cannot assert that he was a purchaser without notice, in the face of strong evidence to the con- trary" {Co7in. v. Fetm., 1 Peters' C. C. 7?., 496). Tiie Supreme Court of Errors of the State of Connecticut have decided, as a point of local law at least, that traditionary evidence 300 LAW OF BOUM>ARIES. is admissible to prove pi'ivate boundaries. In a case before the Court in 1839, Churcli, J., said : "In England such testimony has always been i-eeeived to prove facts of a public or general nature, as in the present case. In this State we have extended it yet fur- ther, and have admitted it to prove tlie boundaries of lands between individual proprietors" {Wooster v. Butler, 13 Conn. 7?., 309, 315). And in aiu)ther case, decided by the court in 18-15, Storrs, J., said : '' Within whatever limits the rule of evidence as to the admissibility of reputation on questions of boundary is I'esti'icted elsewhere, it is well settled in this State that general reputation is admissible for the purpose of showing not only public boundaries, such as those between towns, societies, parishes and other public territorial divisions, but also the boundaries of lands of individual proprietors" {Kinney v. Farntsioorth, 17 Conn. R., 355, 363 ; and vide, also, H'ujley v. Btdwell, 9 ih., 417). The same doctrine has been expressly laid down in the State of Korth Carolina. In one case before the Supreme Court of the State the learned chief justice observed: "We have, in questions of boundary, given to the single declarations of a deceased indivi- dual, as to a line or corner, the weight of common reputation, and permitted such declarations to be proven, under the rule that, in questions of boundary, hearsay is evidence. Whether this is within the spirit and reason of the rule, it is now too late to inquire. It is the well-established law of this State. And if the propriety of the rule was now res integra, perhaps the necessity of the case, arising from the situation of onr country, and the w^antof self-evident termini of our lands, would require its adoption. For, although it sometimes leads to falsehood, it more often tends to the establishment of truth. From necessity we have, in this instance, sacrificed the principles upon wdiicli the rules of evidence are founded " {^Den d. Sasser v. Herring, 3 Devereaux' Laio B., 310 ; and vide Den d. Tate v. Southard, 1 Hawks'' B., 45). The Special Court of Appeals of Virginia, somewhat recently, declared that, in questions of boundary, natural landmarks, marked lines, and reputed hoimdaries, especially if known to and acquiesced in by the parties interested, should be preferred when' in opposition to mere magnetic lines, unless there was a known mistake in the marked line {Coles v. Wooding, 2 Batton dc HtatlCs B., 189). Indeed, it is well settled that boundaries may be proved, under certain circumstances, by hearsay evidence; but EVIDENCE IN BOUNDARY CASE3. 301 it must amount to common tradition or repute {Cherry v. Boyd^ 6 LitteWs i?., 7). And neighborhood report can never be received to contradict record evidence in respect to boundary or any other matter {McCoy v. Galloway, 3 Ham. Jl., 2S3). On simihir principles upon wliicli tradition is received to prove a boundary, the declarations of deceased persons, and sometimes the statements of living witnesses, have been received in evidence to establish boundaries of land. The English authoi-ities are numerous to this point ; and it has been judicially declared that, on questions of private as well as public boundaries, the tendency of American decisions is to admit declarations of deceased persons who were in a situation to possess information on the subject, and "Nvho were not interested, even when the declarations are no part of the res gestce {Stroud v, Springfield, 28 Texas R., O-iO ; Great Falls Company v. Worster, 15 JSf. II. 7?., 412). And in another recent case, decided by the Supreme Court of Vermont, it appeared that it had been agreed between the parties in interest that of two surveys, made respectively in 1806 and 1808, the second was the true range line; and it appearing that, in 1830, an origiiuil pro- prietor of the land in controversy, then an old man, since deceased, one of the survey committee, and long the custodian of the pro- prietor's records, had at his house, distant three or four miles from the land, declared to the witness, a surveyor who had taken a copy of the plan of the surveys, that "when he should survey in the lifth division, he would find two range lines between lots ISTos. 14 and 15, and that the west line was the true one." The court held this declaration to be admissible as evidence, although unaccom- panied by a pointing out or showing of the premises. It appeared that the old man owned a lot in the fifth division, bounded by the same range line, and the declaration was against his own interest ; and that was regarded as a material fact upon the point {Potvers V. S'dshy, 41 Vt. 12., 288 ; and vide Smith v. Chajmian, 10 Grati. R., 445). There seems to be no doubt of the rule that, where the party claims title to the land in dispute by adverse possession, the decla- rations of a former occupant, under whom the party claims, are admissible as evidence to characterize his possession as adverse to any title of the plaintiff. Upon this subject Mr. Greenleaf says: "In regard to the declarations of persons in possession of land explanatory of the character of their possession, there has been 302 J^-4Tr OF BOUNDARIES. some difference of opinion ; bnt it is now well settled tliat dedara- tlons in dis].>arageriient of the title of the declarant are admissible as original evidence. Possession \^ prima facie evidence of seisin in fee simple; and the declaration of the possessor that he is tenant to another, it is said, makes most strongly against his own interest, and therefore is admissible. But no reason is perceived M'hy every declaration accompanying the act of possession, wl:e'her in disparagement of the claimant's title or otherwise justifying his possession, if made in good faith, should not be received as part of the res gestce ; leaving its effect to be governed by other rules of evidence " (1 Greenl. Ev., § 109 ; and vide Morss v. SaUshury, 48 JV. T. E., 636). In a late case before the Supreme Court of the State of Xew York evidence was offered by the defendant that he had claimed his north line to be a straight line, and claimed the east and west lots as his ; that he had got sixty acres and the bluff thrown in, and these together run up to this straight line on the north side ; that he claimed a certain cornel-, where he directed the fence to be fixed, as his corner, and spoke of a rock on or near the end of Pratt's wall as on his line; and claimed a certain pile of stones and a big rock as his corner ; and claimed to own a certain lot, and to own up to the north fence. The evidence was objected to on the trial, but admitted, and the ruling was affirmed at General Term. Hogeboom, J., gave the opinion of the court, and, on this question, said : " I am inclined to think that, in connection with the facts and circumstances proved in the case, that all this evi- dence was admissible, either as showing a claim of title to land which the defendant or Brandow lield adversely to the plaintiff, or as characterizing the nature, manner and extent of the defenant's possession " {Morss v. Jacols, 35 IIoic. Pr. B., 90, 96). But it liad been previously declared by the same court that the declara- tions of one in possession of land cannot be admitted for the pur- pose of showing that an incumbrance upon the land existed when the person had sold and conveyed the land to a honafide purchaser, although it was held that such declarations were admissible as against a mere volunteer {Burlingame v. EoVbins, 21 Barh. E., 327). It has been declared by the Supreme Court of Maine that the declarations of a former owner of land, made while he was pro- prietor of the estate, respecting the extent and boundaries thereof, EVIDESCE IN BOUNDARY CASES. 333 are competent, though not conch.sive evidence against those elaiunng under him [Treat v. StrickM, 10 Shej> B 2U ; and vide Melvin v. Marshall, 2 Foster^ s i?., 379). And n. a well- considered case, decided by the Supreme Court ot Errors ot Con^ Lcticut, it was said by Waite, J., who deli y.-ed the opnnon of the couA, that, upon recurring to the authorities, the rule seemed to be well settled in that State, "that the declarations made by the owner of real estate, adverse to his title, are adn.issjble m evi^ deuce not only against him but all others claiming title to the sariands uncLr him." After citing the authorities the learned iud-e observed: " So far the rule has gone, but no turther ; and 'courts, in laying it down, have been very carefd to imit it, m its operation, to cases where the evidence is oftered against the interest of the party making the declarations or those c aiining nnder him. We are clearly of opinion that the rule ought not o be extended. The presumption is that the declarations ot a party as to his title, made against his interest, are true. I>ut, on the other hand, to allow him to make declarations in support of his title, and then give those declarations in evidence, would, m effect, be to alloV him to make evidence in his favor at his plea- sure" [Smith v. Mai'tin, 17 Go,m. B., 309, 401). _ It has been recently iudicially declared, as before stated, that, in questions of private as well as public boundaries, the tendency ot American decisions is to admit declarations of deceased persons ^vho were in a situation to possess information on the subject, and .vho were not interested, even when the declarations are no part of the resgestw; although it was held, in the case m which the declaration was made, that proof of ancient boundaries by com- mon reputation must have reference to a time a7ite litem motam [Stroud V. Springjidd, 28 Texas 7?., 649). _ Tlie Supreme Court of Appeals of the State of Virginia have held that declarations by a surveyor, or chain-carrier, or other persons present at a survey, of the acts done by or under the authority of the surveyor in making the survey, if not made post litem motam, and tlie person is dead, are admissible evidence upon a question of boundary [Overton v. Damsson, 1 Gratt. ^y^^^h Upon this subject, it is said in Cowen & Hill's ^otes: A majority of the American decisions are, it is true, opposed to the objection that these declarations concerning boundary shall be excluded, by reason of being made post litem motam. It existed, S04 LAW OF BOUyDARIES. but appears to have been overlooked by counsel, in IlowelVs Les- ttf-e V. Tilden (1 liar, cfc JWIIen., 84) ; and in a subsequent case, liearsay declarations of D. and liis wife, made while they were in possession, and after a dispute had arisen between thein and the adverse claimants, were received in favor of one claiming under D. and wife, according to the very boundaries to which their pre- vious declarations related. These declarations were expressly objected to as being made after the controversy had arisen {Red- ding's Lessee v. M'CuUin, 1 liar, cfe IP Hen., 368). But they might perhaps have been received as a part of the 7'es gesUe, D. being in possession, according to the rule, ante, note 452, page 596, et seq. j though Shepherd v. Tliomjyson {infra) is contra. In other cases, it was held that what one deceased person swore under a commission to take evidence respecting the boundaries, which commission was irregularly executed, and so the oath not receiva- ble as a deposition, should yet come in as hearsay {Bladen'' s Les- see V. Cochey, 1 liar, cfe 3! Hen., 230; Long'^s Lessee v. Pallett, Ih., 531 ; Wee7n''s Lessee v. Disney, 4 Liar, cfi JSV Hen., 156). In another case, the court received mere ex parte depositions, show- ing the declarations of the propi'ietors and the reputation of the neighborhood as to a certain fence being the division line between the parties litigant {Sturgeon' s Lessee v. Waugh, 2 Yeates, 476). So a voluntary affidavit, both parties being present, though objected to, was received to show that a survey made by S. excluded the locus in quo {Montgomery's Lessee v. Dichey, 2 Yeates, 212). The court said it was better than ordinary hearsay or reputation. (And see LUley's Lessee v. Klntzmiller, Ih., 28). ""While it must be confessed that these Maryland and Pennsyl- vania cases have proceeded in utter disregard of the rule repudia- ting declarations as made^:>C5^ litem motam, yet they were mostly, if not all, made before this rule was well established, even in Eng- land ; other and more recent cases came back to that rule. In Spear v. Coate (3 M'Cord, 227), the court received declarations touching boundary, made ante, but rejected those made post litem motam, by the same witness. * * * In all these cases where these declarations have been received, it was first made to appear that the declarant was dead ; and several cases have expressly decided that this is an essential condition. * * * It is obvious, however, that, in this and all other cases where hearsay testimony is admissible, a distinction must be made, as to proving the death EVIDEXCE IX BOUXDART CASES. 305 of declarants, between particnlar declarations coming from indi- viduals and g-eneral reputation. In the former case death must be proved. In the latter it is never required. The difference is acted upon every day at the circuit, in questions of general repii^ tation upon other subjects. * * * After the practice of receiving particular declarations had gained a foothold at the cir- cuit, it was obvious that the more important of this kind of posthu- mous testimony would be sought at the hands of deceased sur- veyors" (1 Cow. <& nilVs Notes, 633, 034). In an early case before the Supreme Court of Pennsylvania, the plaintiff claimed a parcel of land according to the survey of one W., who was dead, and his declarations were received in evidence to prove his survey ; in which, Tilgliman, Ch. J., said : " When; boundary is in question, what has been said by a deceased person, is received in evidence. It forms an exception to the general. rule. It was impossible for the plaintiffs to show the extent of their possession without showing tiie lines run by W. Those lines- were the plaintiffs' boundaries ; at least, such was their claim. It appears to me, therefore, that what was said by W. comes witliin the exception which admits the words of a deceased person to be given in evidence in a matter of boundary" {^Cavfuran v. The Preshyterian Congregation of Cedar Sjyring, 6 Binney's H., 59). And in the c;ise in the constitutional court of South Carolina, referred to in Cowen & Hill's Notes, Colcock,. J., said : " It can- not be doubted at this day that the declarations of deceased per- sons, who shall appear to have been in a situation to possess the information, shall, on a question of boundary,, be received in evi- dence" {Spear v. Coate, 3 M' Cord's R., 229). By the law of England, the rule is more restricted than in the United States. There, evidence of reputation to prove a Ijoundary of j9/'2t'a^<3 estates is not admissible, unless it be shown that the- boundary of the two private estates is identical, with that of twO' hamlets or parishes, in which latter case evidence of reputationi may be put in, the same as though the boundary of the parishes- or hamlets was the chief matter in issue [Thomas v, Jenkins., 6' Adolph. & Ellis'' R., 525 ; Brisco v. Lomax, 8 ih., 213). Tha doctrine was thus stated by Lord Campbell : " The law of Eng- land lays down the rule that, on the trial of issues of fact before a j'.iry, hearsay evidence is to be excluded, as the jury might often be misled by it ; but it makes exceptions where a rehixation of 39 306 ^-^TT OF BOUyDARIES. the rule tends to the due investigation of truth and the attainment of justice. One of tliese exceptions is where the question relates '- matters of public or general interest. The term ' interest ' here u3es not mean that which is 'interesting' from gratifying curi- osity, m' a love of information or amusement, but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected. The admissibility of the declarations of deceased persons in such cases is sanctioned, because these rights and liabilities are generally of ancient and obscure origin, and may be acted upon only at dis- tant intervals of time ; because direct proof of their existence, therefore, -ought not to be required ; because in local matters, in which the community are interested, all persons living in the neighborhood are likely to be conversant; because common rights and liabilities being naturally talked of in public, what is dropped in conversation respecting them may be presumed to be true ; because conflicting interests would lead to contradiction from others if statements were false ; and thus a trustworthy 'reputation may arise from the coneurrence of many parties unconnected with each other, who are aJl interested in investigating the subject. But the relaxation h.as not been, and ought not to be, extended to questions relatjng to matters of mere private interest; for respect- ing these direct proof may be given, and no trustworthy reputa- tion is likely to arise. We must remark, however, that although a private interest should be involved with a matter of public interest, the reputation respecting rights and liabilities affecting classes of the community cannot be excluded, or this relaxation of the rule against the admission of hearsay evidence would often be found unavailing " {Regina v. The Inhabitants of Bedford- shire, 4 Ellis <& Blackhurn^s i?., 535, 541). But, as before stated, by the American practice, the declarations of deceased persons, in qualified cases, are admitted in evidence, in questions relating to private as well as public boundai-ies. The general rule, however, •would seem to be, both in this oounTti-y and in England, that, in order to render such declarations admissible as evidence, they must have been made anie litern motam, or before the suit was commenced in which they are offered. And it is generally held, also, that such declarations will be rejected, if the witnesses are not proved to be dead at the time of the trial (^Buchanan v EVIDEXCE IN BOUXDARY CASES. ' 307 Moore, 10 Sergeant i& Raiole^s E., 281 ; Recjina v. Milton. 1 Carringion & Kirwan^s R., 58).^ CHAPTER XXY. EVIDENCE IN BOUNDAKY CASES JUDGMENTS AND OTIIEK ADJUDICA- TIONS POSSESSION AND ACTS OF OWNERSHIP. There are some other species of evidence admissible in bound- ary cases, which may be properly noticed. Verdicts, decrees, judgments, and other adjudications upon matters of a public nature, are admissible in evidence, not precisely as reputation, but as the decisions of competent tribunals on the matters involved. Of course, where the precise boundary has been litigated and passed upon by a competent judicial tribunal, the question will be regarded as res adjudioata between the same parties and their privies. But in cases of boundary the rule extends to the admis- sion of such adjudications when not between the same parties, or directly upon the boundary involved. Thus, in the English Court of King's Bench, where the question related to the bound- ary between the manors W. and 0., and the plaintiff's case was that the boundary line between these two manors was the ridge of a mountain, from which the waters descended in opposite direc- tions, it was held that he might show, in support of this, that the boundary between the adjoining manor I. and the said manor O. * Professor Greenleaf, in his excellent treatise on the Law of Evidence, lays it down as settled, that evidence of reputation is received, in regard to the boundaries of parishes, manors and the like, which are of public interest, and generallj' of remote antiquity -, but he expresses the opinion that, by the weight of authority and upon better reason, such evidence is inadmissible for the pur- pose of proving the boundary of a private estate, when such boundary is not identical with another of a public or quasi public nature (1 Q-reenl. Ev., § 145). This is in accordance with the doctrine in England; but in the United States, traditionary evidence, in cases of boundary, is more frequently admitted than in England. And since the first edition of Mr. Greenleaf 's work, in 1843^ a con- siderable number of cases have been reported, in which it has been held that such evidence is receivable to prove the boundaries of land between individual proprietors ; so that it may be considered at present, perhaps, the better opinion, that traditionary evidence is admissible in cases of boundary of a private as well as a public nature. 808 LAW OF BOUNDARIES. was the ridge of the same line of mountain from which the waters descended in opposite directions ; and that he miglit prove this fact, by the finding of a jmy summoned from the duchy of Lancaster for the purpose of determining the boundary between the manors I. and O., on the petition of former owners of I. and O., who had represented that that boundary was uncertain, and that suits were likely to grow between them. The character of this kind of evidence is thus described in the opinions. Littledale, J., said : " On a question of boundary, mere reputation is evi- dence. But I put this as a verdict, not as reputation. It is a trial by witnesses competent to speak to the fact. Now, reputa- tion being evidence, the verdict must be evidence, as was said in Heed X. Jackson (1 East., 355) ; and this, though the former pro- ceeding was between difierent parties. It is not reputation ; but it is as good evidence as reputation." And Patterson, J., said : " It is certainly difficult to say that a verdict can be I'eceived merely as evidence of reputation ; for a jury are summoned from the body of the county at large, and are not themselves likely to know the matter. But that argument, if it were to prevail, would exclude all evidence of verdicts, for a jury do not find upon knowledge of their own ; so that the verdict never could be rejni- tation, nor quite analogous to it. Yet, whei-e a matter has been before a jury, the verdict is generally given in evidence as a sort of reputation, if I may so term it " {Brisco v. Zo)nax, 8 Adoljjh. i& Ellis' R., 210). The case of Reed v. Jacksoii, i-eferred to by Littledale, J., was not one involving a question of boundary, but of a public right of way ; and Lord Kenyon expressed the opinion that reputation M'as evidence with respect to public rights claimed, as in that case, but not with respect to private rights. He asserted, however, that the record offered in the case was admissible evi- dence, though between other parties, as to the finding upon the right to the public footway, which was negatived. The defend- ants in both cases stood in the same relative situation. But the same court declared that the principles laid down in these cases, with respect to the admissibility of verdicts, have no application to awards. The court observed : " An award is but the opinion of the arbitrator, formed, not upon his own know- ledge, as declai-ations used by way of reputation commonly are, but upon the result of evidence laid before him, most probably in private, and formed also j)ost litem motam, having none of the EVIDENCE IN BOUNDARY CASES. 309 qualities upon wliicli evidence of reputation rests. It may be said that the verdict of a jury is equallj^ defective in such quali- ties. Whether it be so or not, it is sufficient to say that the admissibility of a verdict as evidence of reputation is established by too many authorities to be now questioned ; but that the prin- ciple of tliose authorities is not clear enough to embrace an award " {Evans v. Jiees, 10 Adolph. & Ellis R., 151). In a case before the Irish courts, ancient patents and inquisitions were admitted as evidences of reputation to show the extent of a navigable river {The Marquis of Donegal v. Lord Temj>lemore^ 9 Irish Com. Law R.^ 371:; In re Belfast Dock Act, 1 Irish R., 128). In a case in the English Court of King's Bench, ancient leases were held to have been properly received as evidence of reputa- tion in a question of pjarisli boundary, and old books of account, containing evidence of payment of parish rates, were admitted {Plaxton V. Dare, 10 Barn. & Ores. R., 17; S. C, 5 Man. cfe Ryl. R., 1). And in another late case, under a rate for the relief of the poor of the parish of T., made in 1858, the appellant was assessed as occupier of an estate in tliat parish called N. From the year 1698 down to the time the rate was made, N. had main- tained its own poor, and had never been chai-ged with the support of the poor of any other place. In 1858 the owner of a large estate in the parish of T. found among the title-deeds of that estate in his possession an agreement, dated 1698, purporting to be made between the then owner of N., on the one part, and several inhabitants of T., on behalf of the parish, on the other. This agreement recited that N. was a part of T. ; and that it liad been agi'eed that N. should maintain its own poor, and not be chargeable toward the poor-rate of the other part of the parish. It was held that this agreement was admissible in evidence as an ancient document relating to the interest of all the estates in T., and Mdiich might, therefore, naturally and reasonably be expected to be found among the title-dee'ds of a large estate in T., and so came from the proper custody ; that it was decisive evidence to show that N, was a part of the parish of T. ; and that it was also evidence of reputation as to the extent of the parish, being a declaration by the deceased owner of N. and the other inhabitants of T. to that effect {Regina, respondent, v. Mytton, appellant, 2 Ellis (J& Ellis' R., 557). In another case, ancient orders of ses- 310 LAW OF BOUNDARIES. sionSj conta.-ning statements respecting boundaries, were admitted as evidence of reputation [Duke of Newcastle v. Broxtowe, 4 Barn. & Adolj)h. B., 273; S. C, 1 Nev. c& Man. B., 507). But in one case in the English King's Bench, entries in parish books, whicli recorded that the perambulations had taken a parti- cular line, were rejected because it was evidence of a particular fact, and not of general reputation {Taylor v. Bevey, 7 Adolph. db Bins' B., 409). In another case, upon a question concerning a parish boundary, a book kept in the Chapter-house of Salisbury, purporting to contain copies of leases granted by the dean and chapter, and their conlirraation of leases granted by the bishop or the prebendaries, was put in evidence. The book was open to the tenants of the manors belonging to the dean and chapter, and many of the leases stated the district to be in the parish. Tindal, Ch. J., thought the book to be in the nature of a public document, and therefore admissible as evidence of reputation respecting the parish boundary {Coomls v. Coether, 1 Moody cfi Malkhi's B., 398). On an inquiry as to the true boundary between two parishes and counties, certain presentments of a manor court were offered in evidence, in one of which the boundary was set out. The pre- sentment in question was in a mutilated state ; but as the part torn off appeared not to have contained any matter connected with the subject of boundary, the Court of King's Bench of England held it to be admissible {JEvans v. Bees, 10 Adolph. & Ellis' B., 151). Mr. Taylor, in his treatise on the Law of Evidence, as adminis- tered in England and Ireland, expresses a doubt as to how far maps, showing the boundaries of counties, towns, parishes or manors, are admissible in evidence (1 Taylor on Ev., 558, bth edition). But the rule, doubtless, is that such maps are admissible as evidence of reputation, provided they are found in proper cus- tody, that is, " in a place in which and under the care of persons with whom such documents must naturally and reasonably be expected to be found " {Bishop of Meath v. Marquis of Winchester, 3 Bingham's New Cases, 200-202 ; S. C, 10 Bligh's B., 462- 464). Mr. Greenleaf says that maps showing the boundaries of towns and parishes are admissible if it appear that they have been made by persons having adequate knowledge ; and, further, that Verdicts are also receivable as evidence of reputation in questions of public or general interest (1 Greenl. Ev., % 139). EVIDENCE IN BOUNDARY CASES. 311 In a case in the English Court of Exclieqnei-, a map was pro- duced in order to show tliat a certain place was not in the county of Suffolk. On the face of the map were printed the following words: "Anew map of the county of Suffolk, taken from an original map published by Mr. I. K., in 1736, who took an actual and accunite survey of the whole county, now republished (176G), with additions and corrections by I. and W. K., etc." The map, which appeared to be ancient, did not comprise the place in ques- tion. It was produced by a witness who had purchased it twelve or fourteen years before, in whose custody it had been ever since. Coleridge, J., in delivering the judgment of the conrt, said : "One question argued before ns was whether this map came from the proper custody. In one sense it did ; for it was pro- duced by a gentleman who bought it twelve years ago. But the fact .of its being in the custody of the party who had such lawful possession of it does not at all vouch for its authenticity, nor that it is what it professes to be. It is wholly unlike the case of a deed purporting to be a conveyance of land. If such a deed is found in tlie custody of the party who, if it were such convey- ance, would have a right to it, and kept amongst his title-deeds, such custody tends to show that it is what it professes to be. But that argument does not apply here. The custody does not tend to show that the map was what it professes to be. * * '^ The pei'sons who made the map do not appear to have been deputed to make it by any persons interested in the question, nor to have been iu any way connected with the district, so as to make it pro- bable that they had such knowledge. The grounds on which an ancient pedigree is received in evidence are, consequently, want- ing in this case. ^ * * We thiidc, therefore, that this map was inadmissible" {Ilammond v. Bradstreet, 10 Exch. E., 390; vide, also, Pipe v. Fulcher, 1 Ellis c& Ellis' E., Ill ; Pollard v. Scott, Peake, N. P., 19). But where a map of a parish was offered in evidence, and it was proved by the surveyor who made it that thirty-four years before the trial he laid down the bound- ai'ies of the parish from the information of an old man, who went round and showed them to him, it was held that the map might have been received as evidence of reputation, though it was rejected in consequence of the old man's death not being proved {Eegina v. MUton, 1 Car. & Kirwaii's E., 58). Private nnips and surveys, according to the English rule, are 312 LAW OF BOUXDARIES. not generally receivable in evidence, either for or against the par- ties making them ( Vide PMllqjs v. Hudson^ 2 Law R., Ch. App., 243 ; Wilkinson v. AlhoU, 3 Brown's P. C, 684 ; S. 6'., 4 Gwillhri^s P., 1585 ; Wakeman v. West, 7 Car. tfe Payne's P., 479). But such documents may, under certain circumstances, be treated as admissions by persons in possession of estates as to the extent of their rights, and are then receivable in evidence in the same manner as other declarations against proprietary interest. And in all cases where a party conveys real estate, describing it by a map, the map is regarded as a part of the deed, and, of course, is evidence against the gi'antor. In an early English case, A. was seised of the manors of B. and C, ; and during his seisin lie caused a survey to be made of the manor of B., which was afterward conveyed to E. In a dispute between the lords of the manors of B. and C. about their boundaries, it was held that this survey might be given in evidence {Bridgman v. Jennings, 1 Ld. PayniornVs P., 734), And in a later case Patterson, J., said that the only case in which a map is receivable in evidence is where it is undisputed that, at the time the map was made, the whole pro- perty belonged to the person from whom both parties claim {Doe d. Hughes v. LaVin, 1 Car. & Payne's P., 481). Indeed, a map annexed to a deed seems to stand on the same footing as the description contained in the deed itself. It was laid down, as a rule, in a case in Massachusetts, hereinbefore referred to, that, " wliere lines are laid down on a map or plan, and are referred to in a deed, the courses, distances, and other particulars appearing on such plan are to be as much regarded as the true description of the land conveyed, as they would be if expressly recited in the deed " {Davis v. Painsford, 17 Mass. P., 207, 211). And to the same efiect is an English nisi prius case, wherein it was held that the map on the back of a lease was a ]>art of the contract, and might, tlierefore, be given in evidence to show what Nvas demised ( Wakeman v. West, 7 Car. & Payne'' s P., 480 ; and vide Lyle v, Pichards, 1 L. P., E. & I. App., 222). An old map of lands Avas allowed in an English case, where it came along with the muniments of title, and agreed with boundaries, as adjusted in an ancient purchase {Yates v. Harris, Gilbert on Ev., 70). Parol evidence is admissible to identify a plan, where reference is speci- fically made to it in a written agreement {Hodges v, HorsfaU, 1 Puss. i& My. P., 116; Chinan v. Cooke, 1 Sch. & L^. P., 32j. E VIDENCE IN B UKDA :i Y CA SES. 3 1 3 Ancient surveys and extents, which are produced from proper custody, and wliich are proved to have been made under proper authority, are hekl to be receivable in evidence as public docu- ments in questions of boundary. In tlie English Court of Exche- quer, an ancient extent of crown lands, found in the office of land revenue records, and purporting to have been made by the steward of the crown lands, was held to be evidence of the title of the crown to the property which was mentioned therein, and which was stated to have been purchased by the crown of a subject {Doe d. William IV Y. Roberts, 13 Mees. c& Welsh. ^.,520; and vide Earl of Carnarvon v. Villehois, Ih., 313; Fiirman v. Read, 4 Best i& Smith''s R., 174). But in a case in the Court of King's Bench, there was offered in evidence an instrument purporting to be a survey of a manor, which was at one time a parcel of the duchy of Lancaster. The document was produced from the office of the duchy, and was taken by J. W., the deputy of the surveyor-general of the duchy, by authority of letters of depu- tation to J. W., and by the oaths and presentments of the tenants of the manor, whose names were subscribed. There was also con- tained a description of the boundaries, custom and other particu- lars. No authority for taking the survey was proved, except as appears from this statement. It was held to be inadmissible on a question relating to the boundaries of the manor, inasmuch as it M-as not a survey authorized by the statute of Extenta Manerii (4 Edioard I, statute 1); for this statute gives no power to define the boundaries of manors. And it was, moreover, held not even to be evidence of reputation ; though some doubt as to the accu- racy of the judgment on this last point is expressed in another case in the Exchequer {Evans v. Taylor, 7 Adolph. & Ellis' R., G17; vide Duke of Beaufort v. Smith, 4 Exch. R., 450). In another case in the Court of Exchequer, it appeared that, in the reign of Charles I, the crown granted in fee form " a messuage, and escheat lands and tenements, containing by estimation 112 acres, situate in the vill of K., now or late in the occupation or tenure of D." In replevin of a distress for the rent reserved, A'?'^hich had been made in certain closes of a farm called Plas Bach, the defendant, for the purpose of proving that Plas Bach was par- cel of the 112 acres out of which the rent issued, tendered in evi- dence a presentment of a grand jury, from the office of land revenue records, made in the eleventh year of the reign of Quoen 40 314 LAW OF BOUNDARIES. Elizabeth, in which lands called Y Plas Baghe were mentioned as» being in the township or vill of K,, and in the occupation of D. No authority for the snrvey appeared, nor was the paper signed by the jury. It was held that although, for the purpose of fur- nishing evidence of reputation as to the bouudaiy of the vill, the instrument might perhaps have been admissible, yet that, as it appeared to be no more than a survey taken by a private indi- vidual for his own purjjoses, it could not be received in evidence as a public document {Daniel v. Wilkin, 7 Exoh. R., 429). Ancient extents and surveys, which come from the proper cus- tody and appear upon examination to have been regularly and properly taken, may sometimes be admitted in evidence, although the commissions under which they were taken are lost {Rowe v. Brenton, 8 Barn. <& Cres. E., 747). But survey books of a manor, although ancient, cannot be received in evidence, unless signed by the tenants, or unless they appear to have been made at a court of survey ; they are also only private memorials (12 Viner's Ah'id., A. h. 15, § 12). Under an issue to try the boundaries of a parish, papers handed over to the present incumbent by the representatives of his predecessor, as papers belonging to the parish found in the late incumbent's possession, were admitted in evidence, without calling upon the representatives themselves to account for the way in which the documents came into their hands ; and in the same case a terrier of the parish, not signed by any person bearing any public character or office in the parish, was rejected {Earl v. Lewis, 4 Espinasse's li., 1). Where a boundary line between a city and patent lands was in dispute, the Court of Appeals of the State of New York held that an ancient agree- ment as to the boundary between the trustees of the city and cer- tain proprietors of lands in the patent, upon due proof of its exe- cution and the appointment of the trustees, was competent evi- dence. It was also held that, on the same issue, field notes, made pursuant to the said agreement, and procured from the town records of the said city, were also admissible, and that the settle- ment deed between the said trustees and proprietors was compe- tent. And it was further held that maps, surveys, deeds and leases found in records of the city and executed by the trustees were admissible, and that it was no objection that the cestuis qui trust had not individually any power to resist, for that they might have elected other trustees {Hunt v. Johmon, 19 N. Y. R., 279). EVIDENCE IN BOUNDARY CASES. 315 In the State of New Jersey it was held that, where the question is as to the actual location of a way, as a boundary, the proceedings of tlie surveyors of the way are admissible in evidence, without proving the appointment of the surveyors {Jlaring v. Yan Hauten, 2 N. J. R., 61). The possession of real estate is prima facie evidence of the highest estate in the property, namely, a seisin in fee {Hill x. Draper, 10 Barh., 454). Upon this principle, a statement made by a person in possession of property that he holds only for life, or for any other estate less than the fee, is a declaration strongly against his interest. Such a statement, therefore, is receivable in evidence both against the declarant himself and those claiming - nder him ; and, after his death, both for and against strangers, .n order to show what estate the declarant held in the premises {Buller's Nisi Frius, 103). The foregoing points have been settled by English authorities, the most of which are referred to by Mr, Hunt in his little work upon boundaries, as applicable to questions relating to the boundary of a parish or manor, and the like, but not as applicable to prove the boundary of private estates ; as, by the law of England, such evidence is admissible only in cases where the boundary is one of public interest. But, inasmuch as the opinion is entertained that the tendency of the American decisions is to admit such evidence on questions of private as well as public boundaries, the cases con- sidered are pertinent, and may be cited as authority upon all such questions in the American States. Evidence of acts of ownership, exercised by a party on the neighboring property of the adjoining owner on the opposite side of a river, has been allowed, to rebut the presumption that each party's land extended to the medium ad Jilum of the bed of the stream. Th.e case in which the evidence was allowed may be referred to at length, because the learned baron who gave the opinion makes many valuable observations on the points here dis- cussed. The dispute between the parties in the case related to the ownership of a portion of the bed of a stream, flowing between the plaintiff's farm and the defendant's farm, its source being at some distance from both. The plaintiff contended tliat the whole of the bed of the river adjacent to his land belonged to him; the defendant, on the other hand, claimed it ad medium filum aqucB. The plaintiff's farm extended a greater distance down the stream SIG LAW OF BOUXDARIES. tlian the land of the defendant on tlie other side. Evidence was brought forward to show that lower down, and opposite another farm belonging to C, the plaintiff was the undisputed owner of the whole bed of the river. This evidence consisted of acts of ownership exercised by the plaintiff upon the bed of the river close to C.'s farm, and of repairs done by him to a fence which divided C.'s farm from the river, and which was a continuation of a fence on the defendant's land. A new trial having been moved for, on the ground of the improper rejection of this evidence, Baron Parke delivered the following judgment : " I am of opinion that this case ought to go down to a new trial, because I think the evidence offered of acts in another part of one continuous hedge, and in the whole bed of the river adjoining the plaintiff's land, was admissible in evidence, on the ground that they are such acts as might reasonably lead to the inference that the entire hedge and bed of the river, and consequently the part in dispute, belonged to the plaintiff. Ownership may be proved by proof of possession, and that can be shown only by acts of enjoyment of the property itself; but it is impossible, in the nature of things, to confine the evidence to the precise spot on which the alleged trespass may have been committed. Evidence may be given of acts done on other parts, provided there is such a common character of locality between these parts and the spot in question as w'ould raise a reasonable inference in the minds of the jury that the place in dispute belonged to the plaintiff if the other parts did. In ordinary cases, to prove his title to a close, the claimant may give in evidence acts of ownership in any part of the same inclosure ; for the ownership of one part causes a reasonable infer- ence that the other belongs to the same j^erson, though it by no means follows as a necessary consequence, for different persons may have balks of land in the same inclosure ; but this is a fact to be submitted to the jury, and I apprehend the same rule is applicable to a wood which is not inclosed by any fence ; if you prove the cutting of timber in one part, I take that to be evidence to go to a jury to prove a right in the whole wood, although ther be no fence or distinct boundary surrounding the whole ; and the case of Stanley v. White (l-i East, 332), I conceive, is to be explained on this principle. In that case there was a continuous belt of trees, and acts of ownership on one part were held to 1)0 admissible to prove that the phiintiff was the owner of another EVIDENCE IN BOUNDARY CASES. 317 part, on which the trespass was committed. So I should apply the same reasoning to a continuous hedge ; though no doubt the defendant might rebut the inference that the whole belonged to the same person by showing acts of ownership on his part along the same fence. It has been said, in the course of the argument, that the defendant had no interest to dispute acts of ownership not opposite his own land ; but the ground on which such acts are admissible is not the acquiescence of any party ; they are admis- sil)le of themselves, ^j>/'(?/>?'/(> vigore, for they tend to prove that he who does them is the owner of the soil ; though, if they are done in the absence of all persons interested to dispute them, they are of less weight. That observation applies only to tlie effect of the evidence. Applying that reasoning to the present case, surely the plaintiff, who claims the whole bed of the river, is entitled to show the taking of stones, not only on the spot in question, but all along the bed of the river which he claims as being his pro- perty ; and he has a right to have that submitted to the jury. What weight tlie jury might attach to it is another question. The principle is the same as that which is laid down in Doe v. Kemp " {Jones V. Williams, 2 Meeson & Welshy's E., 326 ; and vide The Marquis of Donegal y. Lord Templemore, 9 Irish Com. Law R., 374 ; Diike of Devonshire v. Ilodnett, 1 Hudson (& BrooTce''s Id., 322 ; In re Belfast Dock, 1 Irish Eq. R., 142). In the case of Doe V. Kemp referred to by the learned baron, it was held that acts of ownership, exercised not only over the spot in dispute, but over other parts of the waste lands of a manor, are receivable in evidence in support of the lord's rights, if the parts in dispute and tlie parts over which the acts of ownership have been exer- cised are so situated that they may fairly be considered as parts of one waste or common {Doe d. Barrett v. Kemj), 2 Brookei's New Cases, 108 ; hut vide Simpson v. Dundy, 8 Com. Bench R., N. S., 433). It has been held that entries of presentments in the books of a manor are not evidence of ownership by the lord [Irwin V. Simpson, 7 Broimi's P. C, 317). The foregoing rules of evidence would seem to be all that are distinctively applicable to cases where boundaries are the subject of litigation, and a more lengthened statement, therefore, need not be given, although some illustrations may be found in a subse- quent chapter. 318 LAW OF BOUXDARIES. CHAPTER XXYL EULES RELATING TO TKEES AND HEDGES OX THE BOUNDAEIES OF PEO- PERTT THE OWXEESHIP OF TREES WHOSE ROOTS EXTEND INTO, OR AVHOSE BRANCHES OVERHANG, THE LAND OF THE ADJACENT PRO- PRIETOR THE PROPERTY IN THE FRUIT OF SUCH OVERHANGING BRANCHES REMEDIES IN SUCH CASES. It may not be regarded as entirely inappropriate, in a work like the present, to notice the principles which are understood to appl} to the owners of trees and hedges growing upon boundaiy lines, or so near that their roots extend into the land of the adjoining proprietors. Wliether one proprietor of land can compel another, in the absence of special agreement, to submit to have his land burdened with the roots of a tree planted on the neighboring soil, does not seem to have been passed upon by the courts of England as often or as directly as by the courts of the United States. The necessity which exists for an easement being enjoyed, openly and as of right, before it can be acquired, may sufficiently account for the dearth of authority upon the question. It seems that the authorities of England, such as there are, are somewhat conflicting, or, at least, not entirely harmonious upon the subject. A suffi- cient number of the cases which have been reported in both coun- tries will, therefore, be considered, in order to arrive at correct conclusions in respect to the principles on which the subject is governed. In an early case, decided by the Court of King's Bench of Eng- land, it was ruled by Lord Holt, chief justice, that if A. plants a tree upon the extremest Ihnits of his land, and the tree growing extends its roots into the land of B. next adjoining, A. and B. are tenants in common of this tree ; but if all the roots grow into the land of A., though the boughs overshadow the land of B., yet the branches follow the roots, and the property of the whole ^s in A. {Wattrrnan v. Soper, 1 Zd. Baym. i?., 377). And in an ojJ case, reported by Rolle, it was held that if a tree grows in a hedge which divides the land of A. and B., and by the roots takes nourish- ment in the land of A. and also of B., they are tenants in com- mon of the tree {Anonymous, 2 Rolle s 7?., 255). Another case ti England was tried at nisi prius, in M'hich it appeared that the Dody of the tree was in the defendant's land, but some of the spur BOUXDARY TREES AND HEDGES. ' 319 roots grew into tlie land of tlie plaintiff. An action of trespass hav- ing been bronght for cutting down the tree, Littledalo, J., seems rather to have sanctioned the doctrine laid down in Masters v. Pollie (2 RoUe. IL, 141), and said that he did not see on what grounds the jury could find for either party, in respect to the question which had been raised as to the proportion of nourishment derived by the tree from the soil of the plaintiiF and defendant ; but that the safest criterion for them w^ould be to consider whether, from the evidence given as to the situation of the trunk of the tree above the soil, and of the roots beneath it, they could ascertain where the tree was first sown or planted, and fiiid for the plaintiff" or defendant accordingly {Holder v. Coates, 1 Moody <& Malk. R., 112 ; 8. a, 22 Eng. C. L. E., 2G5). These seem to be the only English cases directly upon the point; and, by the nisi pxins case, tlie judge does not appear to have decided anything, except that the jury M'ere to determine the ownership of the tree by find- ing out in Mdiose land the body of the tree was situated. This view is in accordance with the doctrine of Masters v. Pollie. The rule of the civil law on the subject of boundary trees is contained in the following passages: "If a tree strikes its roots into the neighboring soil, nevertheless it remains his in whose land it had its origin" {Digest, Lib. 47, 7, 6, § 2). "If a tree, planted near a boundary line, extends its roots into the lands of a neighbor, it becomes common" {Institutes, Book 2, tit. 1, § 31 ; Digest, Lib. 41, 1, 7, § 13). It appears from Pothier that tlie last, cited passage is to be confined to the case of a tree planted on the very edge or boundary line of the property {cited in Gale on Ease- ments, 4:th edition, 470). The rule, therefore, of the civil law as to the ownership of boundary trees is in harmony wnth that which seems to prevail in England upon the same subject. The French Code contains several provisions on the subject of trees and hedges. By article 671 it is not allowable to plant trees of lofty trunk, except at such distance from the boundai-y as is prescribed by particular regulations actually existing, or by con- stant and acknowledged usages; and, in default of regulations and usages, only at the distance of tw^o metres from the line which separates the two estates, in the case of trees of lofty trunk, and at the distance of half a metre in the case of other trees and quick hedges. A neighbor may require trees and hedges planted at a less distance to be pulled up {article 672). And trees which are 820 LAW OF BOUNDARIES. found in a common Ledge are common like the hedge ; each of the two proprietors has a right to require that they should he. felled, and also of cutting the roots of trees growing into his land {article 673). These provisions are certainly quiie reason- able. The rule in the American States upon the subject does not seem to vary much from that which is understood to prevail under the English law ; that is to say, not from the rule adopted by Lit- tledale, J., in the principal case of Ilolden v. Coates. In an early case before the Supreme Court of Errors of the State of Connecticut it was held that a tree, whose trunk stands on the land of A., extending some of its branches over, and some of its roots into the land of B., is, with such overhanging branches, and the fruit thereon, the sole property of A. ; and that if B. gather the fruit from such branches, and appropriate it to his own use, he is liable in trespass to A. Bissell, J., gave the opinion of the court in the case, and made the following observations: "The case of Waterman v. Soper supposes the tree to be j^^c^nted on the 'extremest limit;' that is, on the utmost point or verge of A.'s land. Is it not, then, fairly inferable from the statement of the case that the tree, where gro\vn, stood in the dividing line? And in the case cited from Rolle the tree stood in the hedge dividing the land of the plaintiff' from that of the defendant. Is it the doc- trine of these cases that whenever a tree, growing upon the land of one man, whatever may be its distance from the line, extends any portion of its roots into the lands of another, they, therefore, become tenants in common of the tree ? We think not ; and if it were, we cannot assent to it. Because, in tlie first place, there would be insurmountable difficulties in reducing the principle to practice ; and, in the next place, we think the weight of authori- ties is clearly the other way. " How, it may be asked, is the principle to be reduced to piac- tice? And here it should be remembered that nothing depends on the question whether the branches do or do not overhano- the lands of the adjoining proprietor. All is made to depend solely on the inquiry whether any portion of the roots extend into his land. It is this fact alone which creates the tenancy in com- mon ; and how is the fact to be ascertained? "Again; if such tenancy in common exists it is diffused over the whole tree. Each owns a certain portion of the whole. In BOUXDARY TREES AND HEDGES. 321 what proportion do the respective parties hold? And how are these proportions to be determined? How is it to be ascertained: what part of its noui'ishnient the tree derives from the soil of the adj(jining jn-oprietoi'? If one joint owner appropriates all the products, on what principle is the account to be settled between the parties? " Again ; suppose the line between adjoining proprietors to run through a forest or grove. Is a new rule of property to be intro- duced in regard to those trees growing so near the line as to extend some portions of their roots across it? IIow is a man to know whether he is the exclusive owner of trees growing indeed on his own land but near the line; and whether he can safely cut them without subjecting himself to an action? "And again, on the principle claimed, a man maybe the exclu- sive owner of a tree one year, and the next a tenant in common with another; and the proportion in which he owns may be vary- ing from 3'ear to year, as the tree progresses in its growth, "It is not seen how tiiese consequences are to be obviated, if the principle contended for be once admitted. We think they are such as to furnish the most conclnsive objections to the adoption of it" {Lyman v. Hale, 11 Conn. R., 177, 182). To the same effect is a late decision of the Supreme Court of the State of Vermont, in a case wherein it was held that a tree, which has its main body or trunk in A.'s land, and extends part of its branches and roots into the land of B., is the soleproperty of A., and that B. would be liable in trespass on the freehold for picking, carrying away and converting to his own use the fruit growing on the branches overhanging his own land: {Skinner v. Wilder, 38 Yt. R., 115). And precisely the same doctrine is held by the courts of the State of New York. The subject was very thor- oughly examined and elaborately discussed by the Court oil Appeals of the State, a few yeai-s since, and a conclusion was- reached in accordance with this rule. Allen, J., delivered the- opinion of the court, and said : " Different opinions have beent held as to the rights of the owners of adjoining estates in trees- planted, and the bodies of which are wholly upon one, while the' roots extend and grow into the other ; some holding that, in such^ cases, the tree, by reasoii of the nourishment dierived from both^ estates, becomes the joint property of the owners of such estates , * * * while others, with better reasons, as it seems to me,.holdi 41 322 LAW OF BOUy BABIES. I that the tree is wholly the property of him upon whose land tlie trunk stands" {Duhois v. Beaver, 25 N. Y. II, 123, 126 ; and vide Hoffman v. Armstrong, 46 Barh. B., 337). The American authorities seem, also, to be uniform in holding that a tree, stand- ing directly upon the line between adjoining owners, so that the line passes through it, is the common property of both parties, M-hether marked or hot; and that trespass will lie if one cuts and desti'oys it without the consent of the other. This was held by the Supreme Court of the State of New Hampshire in 1845 {Grif- fin V. Bixhj, 12 N. II. R., 454) ; and precisely the same doctrine was laid down in a late case, decided by the Supreme Court of the :State of New York, in which Welles, J., in delivering the opinion of the court, said: "It seems to be well settled that, where a tree •or wall is in the division between two adjacent owners of land, they are owned by the opposite proprietors of the land as tenants dn common, in the absence of any agreement to the contrary " {Iloffman v. Arm-strong, 46 Ba?'!). li., 337, 339). But in a previous case in the same court, while the liability of ■the owners of a tree upon the boundary line, in case of its destruc- tion by one of the proprietors, is recognized to its utmost extent, the doctrine was held by the judge who gave the opinion that the owners of the 'tree were not tenants in common, and, hence, that an action of trespass, under the statute, might be maintained by one adjoining proprietor of lands against another to recover treble damages for cuttinsr trees standing on the line between the lands of the parties ; that is to say, the value of such proportion of the trees as was on the land of the former. Hogeboom, J., delivered the opinion of the court, and went into a learned and technical argument to show that the owners of a line tree are not tenants in common of the trees; but, on the contrary, that the portion that grows on the land of each must belong separately to him, and not partly to him aind partly to his neighbor. And the learned judge concluded as follows.: "I apprehend a line tree in many cases can- not be cut and destroyed:: 1. Because it is a line tree, and, there- fore, necessary to be preserved as a natural monument. 2. Because the cutting or destruction of one part will or may result in the destruction of the other part. The act seems a totally unnecessary and w'anton one ; and, if it be so in fact, is justly punished by treble damages ; and I have no doubt, in a proper and sufficiently BOUyDARY TREES AND HEDGES. 323 important case, ma)- l)e restrained by injnnction " {lieJyea v, Bacon, 34 Barh. B., 547, 552). The case was taken to tlie Court of Appeals of the State, where the judgment of the Supreme Court was affirmed; but it would seem that the higher court were of the opinion that, where a boundary line divides the trunk of a tree, it belongs to the adjoin- ing proprietors as tenants in common. Allen, J., who delivered the opinion of the court, said: "It is not necessary to determine M'hether the parties were technically tenants in common of the trees growing upon tlie boundary line separating their respective farms, with all the ordinary rights and incidents of such an estate. The trees thus growing are called, in the case, 'line trees.' By this, I understand, is meant, not trees marked and set apart by the parties as evidences or monuments of the division line, but trees deriving their nourishment from roots extending on both sides of the line, and with bodies so directly over the line, and necessarily on both sides of that line, that it could not be deter- mined upon which side of the line the tree was originally planted. * * * If a tree grows in a hedge that divides the land of A. and B., and by its roots takes nourishment in the land of both, they are tenants in common. * * * Ordinarily, ti-espass will not lie by one tenant in common against his co-tenant ; but where one tenant in common ousts his co-tenant, ejectment will lie at the suit of the latter; and where one tenant in common destroys the subject of the tenancy, trespass will lie at the suit of the injured party. * * * Here there was a total destruction of the trees, and the plaintiff had his remedy by action for the wrong done. If the parties were not tenants in common, the defendant was clearly a trespasser in cutting and carrying off that portion which belonged to the plaintiff — in reality as 'being upon his land" {Dvhois V. Beaver, 25 iV^. Y. i?., 123, 1-26-128). It seems to have been agreed between the judges of the Supreme Court and the Court of Appeals, as to the rights and liabilities of the parties, in the case, although they may have differed as to the technical principles on which those rights and liabilities should be placed. It may be important, however, in some cases, to have the question decided, whether the objects standing upon the boundary line between adjacent owners are OM'^ned by the parties as tenants in common or otlierwise. The essence of a tenancy in common is a joint interest in each and every part of the property; and it is 324 LAW OF BOUNDARIES. understood that this principle does not apply to artificial objectg ]ilaeed upon the line by the hand of man. such as a wall, a fence, a house, or a building of any description ; but there are reasons which niight enter into the rule in respect to such objects, which would not be equally pertinent in regard to natural objects. And in regard to timber trees, for example, standing upon the line, it might be inconvenient for the parties to avail themselves of their property, unless they were regarded as tenants in common. One of the parties might desire his proportion of the timber of the trees, while the other prefers that the trees should remain stand- ing, and will not consent to their severance. If the parties are tenants in common, in such a case the remedy is clear; a partition or sale of the trees may be ordered. If they are not so regarded the remedy may not be so clear. It may be suggested, therefore, that in case of tiniber trees and the like, standing upon the line, it may be more convenient, at least, to hold that the parties are tenants in common of such objects. Where the objects on the line are wantonly severed or destroyed by one of the parties, the other owner has his remedy, whichever rule applies. But where the line objects are destroyed by outside trespassers, or one only of the pro])rietors wishes to withdraw his interest in the property, the difference in the rule may be important. It seems to be agreed, both by the laws of this country and of England, that trees whose trunks stand wholly upon the land of one owner belong exclusively to him, although the roots grow into and their branches overhang the land of another. But how shall the owner avail himself of the benefit of these overhanging branches or protruding roots, or of the branches or fruit which, perchance, may fall upon the adjoining property? The question of the title to the property is well settled ; but can the owner avail himself of it without subjecting himself to an action on the 2):irt of the adjoining owner? It is laid down in Yiner's Abridofinent that if trees o-rowinc; in a hedge hang over another man's land, and the fruit of them falls into the other's land, the owner of the fruit may go in and retake it, if he makes no longer stay than is convenient, nor breaks the hedge ( Vln. Abr., tit. Trespass, I. a., and Trees, E. / and vide M'Jlen V. Faudye, Poj[)ham''s R., 103). The same rule has been held to apply where trees are blown down by tire wind, or fall over In' any other unavoidable accident ( Viner''s Abr., Trespass, BOUNDARY TREES AND HEDGES. 325 11. a. 2, and note; and vide Dyke v. Dunstan, 6 ^dw.^ ^.fol.J vl IS, cited in Smith v. Kenrick, 7 Com. Bench R., 51d 563). The owner, however, in such cases, cannot, without special cir- cutnstances to justify it, make such an entry without previous request to the occupier upon whose hxnd the fruit or ti^es had fallen Should the latter, after such request, retuse to deliver np the property, or to answer the owner's demand a conversion Hiicdit be presumed, and the owner of the .^oods might thereupon enilr and take his property, subject to any damage he might com- mit, or bring his action for the conversion -^ ^^^^ V^-^^^'^l^'"'^ recover its value {Anthoneij v. Ilaney, 8 Bingham 8 R-.^^^'^f'- C Ih 193) This doctrine is upon the same principle whicii obtains 'in the case where a person places the goods of another on his own close, in which case he gives the owner of them an implied license to enter for the purpose of recaption (/ atncfc v. Colerich, 3 3Iees. <& Welsh. B., 485). By the civil law, the pro- prietor upon whose land fruit had fallen from trees belonging to an adjoining proprietor was obliged to permit it to be gathered; and this right might have been enforced against him by the inter- dict de glande legenda [Colquhoun-'s Summary, § 993). The American doctrine upon the subject is the same as upon the other side of tlie Atlantic. A case substantially in pomt was decided by the Supreme Court of the State of New 1 ork, in 1866, and hereinbefore referred to upon another branch of the subjJct. The action was for an assault and battery. The defend- ant and one Dr. Hoffman, the brother of the plaintiff and with whom she resided, were the owners of adjoining lots. A cherry tree stood upon the land of Dr. Ilofl^nan, with limbs overhanging the land of the defendant. The plaintiff undertook to pick the cherries from the limbs of the tree which overhung the defend- ant's land. The defendant forbade her doing so; and she still persisting, the defendant attempted to prevent her, by force, and she was somewhat injured. The jury found a verdict in favor of the plaintiff for $1,000, on which judgment was entered, and the defendant appealed to the General Term, where the judgment was affirmed, and the following proposition, among others, was laid down by the court: " If the owner of land overhung by the branches of"^a tree growing upon the adjacent lot, attempts by vio- lence to prevent the owner of the adjacent lot from picking the fruit on the overhanging branches, he is a wrong-doer, and an \ 32(5 LAW OF BOUNDARIES. action for an assault and battery may be maintained against liim '* {Hoffman v. Armstrong, 46 Barh. B., 337). But, although sucli is the law, it does not follow that the owner is obliged to have his land burdened by the overhanging branches of the trees of his neighbor ; because, if they prove to be a nui- sance, he has his action for the damages, and that the same be abated {Vide Iloff'tnan v. Armstrong, supra ; Ailenx. KetGhum, 39 Barh. R., 400). Whatever unlawfully annoys or does damage to another is a nuisance, and such nuisance may be abated, that is, taken away or removed by the party aggrieved thereby, so long as he commits no riot in the doing of it {Perry v. Fitzhowe, 8 Queen's Bench B., 776 ; Jones v. Jones, 1 llurlstone <& Coltman's B.,1; 3 Black. Com., 6). If the boughs of one adjoining pro- prietor grow out into the land of another, this is held to be a pri- vate nuisance, and they may be cut down ; but they cannot be cut down before they grow over for fear they should eventually become a nuisance {Norris v. Baker, 1 Bolle's B., 394; Viner's Ahr., Trees, E.). The same rule has been supposed to be applica- ble to roots encroaching upon the neighboring soil, although the author has found no case in which the doctrine has been decided ( Vide Gale on Easem.ents, ^th ed., 467). If the occupier of land suffer his trees so to protrude over the highway as to inconvenience passers by, this is held to be a com- mon nuisance, and the trees may be lopped sufficiently to avoid the evil by any person having occasion to pass that way, for any one may justify the removal of a common nuisance {Earl of Lons- dale V. Nelson, 2 Barn. & Cres. B., 311). And the reason why the law allows this private and summary method of doing one's self justice, is because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy, and cannot w^ait for the slow progress of the ordinary forms of justice (3 Black. Com., 6). It has been held in England, however, that this principle has no application where a fence belonging to a railway company obstructs a thoroughfare ; in such a case the public have no right to prostrate it ; but a man- damus must be applied for, or some other remedy sought {Ellis v. London and South- Western Ballway Company, 2 llurlstone <& Norman's B., 424 ; Wyatt v. Great Western Ballway, 6 Best <& Smith's B.j 709). But the rule will doubtless apply to the case of overhanging branches of trees, and the like, which cause a sub BOUNDARY TREES AND HEDGES. 327 stantial damage to the owner of the lands encroached upon. It has been held b}^ tlie English courts in one case at nisi prius, wliereiii it appeared that a Yirginian creeper extended itself over tlie house of the defendant, whereupon lie cut it and cleared it from his house, that tlie defendant had a right to abate it, as a nuisance. This was admitted, and the only question which was contested, was whether the defendant had used greater force and violence, and had done greatei- damage than was necessary {Plch- eri/ng v. Budd^ 1 Starkle's 12., 56; vide IlougJdon v. Butler, 4 Term, i?., 364 ; Rolerts v. Rose, 3 Hurl. & Colt. R., 162 ; *S'. C, 4 Ih., 103). Of course, in abating a nuisance arising from over- lianging branches, care must be taken to cut off only so much as actually overhangs the land of the party injured, or the person abating the nuisance may subject himself to heavy damages ( Yide Traherii's Case, GodhoWs R., 233 ; Batlier's and >Simpson\^ Case, 9 Coke's R., 53 ; Rex v. Pappineati^ 2 Strange' s R., 686 ; Cooper V, Marshall, 1 Burrow's R., 268). A man raa}'^ justify entering the land of another to abate a nnisance, but before entry it is alwa^'s advisable to give notice to the other proprietor, in order that he may have an opportunity of removiuir the obstruction himself before another intrudes on his land {Davies v. Williams, 16 Queeii's Bench R., 556). Said Best, J., in giving the opinion in a case decided by the English Court of King's Bench: "Nuisances by an act of commission are com- mitted in defiance of those whom such nuisances injure, and the injured party may abate them without notice to the person who committed them ; but tliere is no decided case which sanctions the abatement, by an individual, of nnisances from omission, except that of cutting the branches of trees which overhang a public road, or the private propert}^ of the person who cuts them. The per- mitting these branches to extend so far beyond the soil of the owner of the trees, is a most unequivocal act of negligence, which distinguishes this case from most of the other cases that have oecni-red. The security of lives and property may sometimes requii-e so speedy a remedy as not to allow time to call on the per- son on whose property the mischief has arisen to remedy it. In such cases an individual would be justified in abating a nnisance from omission withont notice" {Earl of Lonsdale v. Nelson, 2 Barn, d; Cres. R., 311 ; and vide Jones v. Williams, 11 Jfees. ck Welsh. R., 181). But it is always prudent to give notice b(?fore 328 LAW OF BOUyDARIES. proceedirii^ to abate the nuisance Ly force of Land. It has been held bv the English courts that it is always necessary to give a notice to the mere continuer of a nuisance before the party aggrieved can take the law into his own hands ( Vide Penrud- doclc's Case^ 5 Cokes li., 100, 101 ; ^Vinsrno7'e v. Greenbank, WdWs R., 583; Salmon v. Beuedey, 1 Ilyan d; Moodtfs li., 189 : Jones V. Williams, 11 Mees. (& Welsh. Jx., 17 Q,1S1). In all cases of private nuisance, the party injured may proceed by action to have it abated ( Winierhoifom v. Lord Derh>/, 2 Z. H., Ewch., 31 G ; Pickett V. Metrojjolitan Railway Company, 5 Best cfe SmitlCs R., 15G). By the French Code, he whose property is overshadowed by tlie branches of his neighbor's trees may compel the latter to cut off such branches. H it be the roots which encroach on his estate, he has a right to cut them therein himself {Code Napoleon, art. 672). By the Biinnin law, if a tree on a bouTidary line injured the property of another in a town, the owner of tlie tree might be required to cut it down altogether ; but if the property were in the country, he could only be required to trim the branches fifteen feet up from the ground, and no higher, whatever the inconvenience niiglit 1)0 to his neighbor. If the l>arty complained against refused to remove or lop the tree, the interdict de arhoriljus ccedendis lay against liim at the instance of the other party, who might appro- priate the wood to himself {GolqiihoaiC s Summary, §§993, 2305). CHAPTER XXYII. THE LAW RELATING TO THE BOUNDARIES OF PARISHES SOME POINTS OF INTEREST RESPECTING BOUNDARIES NOT HEREINBEFORE DIS- TINCTIVELY NOTED — THE POINTS PROMISCUOUSLY STATED. It will be convenient, especially in some |)ortions of this coun- try, that some general observations be made in respect to tlie law relating to tlie boundaries of parishes. According to Sir William Blackstone, " the division of the country into parishes probably took [ilace not all at once, but by degrees. For it seems pretty clear and certain tliat ihe boundaries of parishes were originall}' BOUXDARY OF PARISHES. o2J ascertained by those of a manor or manors ; since it very seldom happens that a manor extends itself over more parishes than one, though there are often many manors in one parish. The lords, as Christianity spread itself, began to build churches upon their own demesnes m- wastes to accommodate their tenants i.i one or two adioinini, lordships : and, in order to have divine service regularly pertormed therein, obliged all their tenants to appropriate their tithes to the maintenance of the one officiating minister, instead ot leavino- them at liberty to distribute them among the clergy ot the diocese in <,eneral ; and this tract of land, the tithes whereof were so appropriated, formed a distinct parish, Avhich will well enough account for the frequent intermixture of parishes with one another. For if a lord had a parcel of land detached from the mam ot his estate but not sufficient to form a parish of itself, it was natural for hiin to endow his newly erected church with the tithes of those disjointed lands; especially if no church was then built m any lordship adjoining to those outlying parcels" (1 Blach Com.,l\6 lU) And it was declared in the Court of Exchequer of England, in a case decided some forty years ago, that "the boundaries of parities were settled long after the foundation of churches; and those ecclesiastical districts, formerly belonging to parishes at their first institution, have been since much varied, and in many cases abridged and narrowed, when new churches were bmlt' {Lonsiey V. Ilayward, 1 Younge dj Jet-vis' B., 5SG). It seems that a district may belong to one parish lor ecclesias- tical purposes, and be joined to another parish or townsliip lor civil purposes. In a late case before the English Court of Queen s Bench it appeared that the district of Tranly lay adjacent to the two parishes of Ilessele and Kirk Ella, in Yorkshire, which were both immemorial parishes, each having a church. For a hundred years and more the lands of Tranly had been rated to the poor and hio-hway rates of Ilessele, and the overseers and surveyors of Hessele had always acted for Tranly as if it were part ot their dis- trict But the lands in Tranly from the earliest period had been tithable to Kirk Ella as if they were situate in that parish; and as to all ecclesiastical matters Tranly had uniformly aud imuiemo- riallv been treatpd and reputed as part of the parish ot Kirk Ella. Tranlv having been rated to the relief of the poor of the parish of Ilessele appealed against the rate, which was however, con- firmed by the Court of Queen's Bench, on a special case stated ioi 42 330 ^'^^^^ 0^ BOUNDARIES. their opinion, on the ground tliat a usage which had existed so long ought to he supported, unless it could he clearly shown that it could not have had a legal origin ; and because there was no rule of law wliich prevented Tranly from belonging to one parish for civil and to another for ecclesiastical purposes {Regina v. Wat- son, 9 Best (& Smith's 7?., 219 ; S. C, 3 Z. i?., Q. B., 702). Every town in the State of Massachusetts is considered to be a parish until a separate parish is formed within it ; and then the inliabitants and territory not included in this separate parish con- stitute the fii'st parish {Brunswich v. Dunning, 7 Mass. R., 445). The erecting of a poll-parish, under the Massachusetts statute of 17S6, chapter 10, has this effect as much as the erecting of a parisli circumscribed by one continuous line, and in which all the lands shall join and be continuous to each other {Minot v. Curtis, 7 Ifass. B., 441). And, Avhen incorporated, such poll-parish is considered as " set off" from the town {Sutton v. Cole, 8 Mass. R., 96). Parishioners may justify going over any man's land in their perambuhitions according to their usage, and may abate all nui- sances in their way {Goodday v. Michell, Cro. Eliz., 441; S. C, Owen''s R., 71). But a custom for the inhabitants of a parish to enter a particular house, which is neither upon the boundary line nor in any manner wanted in the course of the perambuhitions, cannot be supported {Taylor v. Davey, 7 Adolph. <& Ellis'' R., 409, 416 ; vide Ij^swich Bocl's v. St. Peter's, 7 Best <& Smith's R., 310, 346). If a parish extends to a tidal river, it cannot be assumed, in the absence of evidence, to extend beyond the line of ordinary high- water mark {Bridgewater Trustees v. Bootle-cum-Linacre, Law R., 22, B. 4). But it has been hereinbefore shown that where the lands of two proprietors are separated by a road or private stream, the line dividing the properties is presumed, in default of evidence to the contrary, to coincide with the medium Jilum of the road or stream ; and a like presumption exists where two par ishes are separated by a highway or an unnavigable river. In a case in the English Exchequer Chamber it appeared that the statute 30 Car. II had carved the parish of St. Anne, Soho, out of the parish of St. Martin's-in-the-Fields, and it described the north- ern boundary of the former parish thus : " AVitli all the houses and grounds abutting on and upon the said road (Oxford street) BOUNDARY OF PARISHES. 33 ^ leading from the sign of the Eed Cow to the sign pf the Crooked Billet." By 2 Will, and M., chap. 8, all streets in London and West- minster were to be paved at the costs of the householders in such streets, each paving to the middle of the street in front of his house. By 10 Geo. Ill, chap. 23, section 10, such portion of Oxford street as lay in certain parishes, of which St. Anne's was one, was declared to be within the parish of St. Marylebone, with reference to paving, lighting and cleansing. From the year 1771 to the year 1855 rates were made under this last statute upon the occu- piers of the houses on the south side of Oxford street towards the paving of the street by the parish of St. Marylebone, which was coterminous with the parish of St. Martin's-in-the-Fields on the north. It appeared that for the last thirty years the parishioners of St. Marylebone had perambulated the boundaries of their parish to the middle of the road in Oxford street ; while, on the other hand, the parishioners of St. Anne, Soho, had perambulated their parish only to the pavement on the south side. An old map, dated 1771, in the possession of the parish of St. Marylebone, shows the boundary line to be drawn along the center of Oxford street. On the 6th of May, 1857, the board of works made an order under section 140 of 18 and 19 Vict., chap. 120, by which the whole of Oxford street was placed under the management of the vestry of St. Marylebone for the purpose of paving, etc. The vestry, having put in repair the whole of the said street, made an order upon the Strand district of the board of works, wliicli includes the parish of St. Anne, Soho, for tlieir share of the expenses, and in consequence of the refusal of the board to pay the same a mandamus issued against them. The point having come before the Court of Queen's Bench on a special case stated for their opinion, Cockburn, Ch. J., made the following remarks: " The question is wdiether the words used in the act include that portion of the street which is between the houses and the medium Jilmn of the street. It is said, on the part of the defendants, that they do not ; because, if it had been intended that the parish should extend to the tnedimii filiim, those words would have been introduced, or the boundary of that part of the parish would have been described, as ' the said road.' It is clear that to put this Construction on the act of Charles II would lead to great inconvenience; and I see nothing in the words which should lead us to adopt it. In conveyances and acts of Parliament upon S 82 LAW OF BO UNDA RIES. which questions of law have arisen, wliere land was eonveyed or a district constituted witli specific boundaries, and one of tlieni consisted of a hi<^h\vay or a river, we never find it described as the 7rLedmrn filitia of the liighway or river; and it is clear, espe cially since the case of Berridge v. Ward (10 C. B., N. S., 400), that if language like the present had appeared in an ordinary con- veyance it would have been considered as including the land ad medium filum vice. Then why should we put a different con- struction upon this act of Pai-liament? * * * Besides, we ought to give some effect to the legal presumption which arises liere. Before the passing of the act of 30 Gar. II, the parishes of St. Martin's-in-the-Fields and St. Marylebone were coterminous, divided by a great highway, now known as Oxford street, and the ordinary presumption of law would be that the highway which divided the parishes was divided ad medium filum between them. Tliat being so, and there being no evidence to controvert that presumption, if we held that language of the statute made the parish of St. Anne extend ordy to the front of the walls cf the houses on the south side of Oxford street, it would follow that, the highway between St. Martin's-in-the-Fields and St. Marylebone liaving been formerly divided between those two parishes, all that part of Oxford street which now lies between the medium, filum vice and the frontage of the houses in the parish of St. Anne would still be in the parish of St. Martin. The Legislature could never have intended anything so monstrous" {^Regina v. The Board of Works for the Strand District, 4 Best & Smith'' s R., 551). Where two parishes are separated by a private river, and there is no positive evidence of the boundary line between them, it is to be presumed to coincide with the middle line of the channel ( Vide Bridgewater Trustees v. Bootle, 7 Best & Smith's 7?., 4 ; S. a, 2 Z. B., Q. B., 348; McCannon v. Sinclair, 2 Ellis dj Ellis' li., 53). And it has been before shown that the shores of the sea and the beds of public rivers kvq priina facie extra-paro- chial, but that such presumption maybe rebutted by evidence {Regina v. Musson, 8 Ellis & Blacl'hur7i's R., 900). There are still some other points of more or less interest which have been settled by the courts in respect to the law of bounda- ries, and which did not seem to fall nnder any head of the sub- ject as ordinarily treated, and these points will be briefly digested in the remainder of this chapter. MISCELLANEOUS POINTS. 333 Where a ditch formed the boundary between the lands of the plaintiff and those of one P., and an obstruction liad been placed tlierein by the plaintiff, with the consent of P., in order to prevent sand from being carried down and choking a ditcli of his own, the courts of North Carolina held that trespass was not the proper form of action to redress an injury (the choking of the plaintiff's ditch) caused by the defendant removing so mucli of such obstruction as was upon P.'s half of the boundary ditch ; the latter having consented to such removal {Ilogwood v. Edwards, 1 Fhill L. R., 350). The owners of a tract of land, about the boundaries of which there was no dispute, were agreed that one of them was entitled to 150 acres, to be taken off the southern part of the tract by a line to be run parallel with the southern boundary of the tract. A surveyor, who was employed by the owners to run the line separating the 150 acre piece from the remainder of the land, made a mistake, by which less than 150 acres was included in the southern division. The Supreme Court, before whom the case came for adjudication, held that the survey was not conclusive upon the parties. And the further proposition was declared, that an owner of land who points out his boundary to a person about to purchase adjoining land, is not thereby estopped from claiming beyond such boundary when his representations were not acted upon by the purchaser {RusseWs Adni'r. v. Maloney, 39 Vt.^ R., 579). But a proprietor who points out to a settler on land adjoin- ing his own, a line as the true boundary, acquiescing and assisting him in a settlement and improvements tliereon, is thereby estop- ped from afterward asserting claim to the land covered by the improvements, though a subsequent survey proved it to be his own land {Jordan v. I)eato?i, 23 Ark. R.. 704). However, where par- ties agree upon a division line between their land, under a mis- take, °and occupy eacli liis own part respectively, they are not thereby estopped from asserting any other line, provided the rights of innocent third parties have not intervened {Knowlton v. Smith, 36 Mo. R., 507 ; and vide Liverpool Wharf v. Prescott, 7 Allen's R., 494). In an action of ejectment, where tlie question was as to^ the proper location of a warrant, and there was proof of an admitted corner of an adjoining survey, which the surveyor under the first had adopted, protracting a line from it and giving the course and 334 i^Tr OF BOUNDABTES. distance thereof in his return some sixty years before the date of the competing warrant and survey ; the Supreme Court of Penn- sylvania held, that it was error to instruct the jury, that before they could ado]jt the line from that corner, they must be satisfied that there were marks on the ground corresponding with the date of survey. It was observed that such instruction would be fatal to every chamber survey on record. And it was further declared that an}' of the marks of an older survey might be appealed to in fixing the location of a younger one, and that it was the duty of surveyors under younger warrants to adopt such ancient land- marks i-ather than establish new ones {Dreer v. Carskadden, 48 Penn. li., 38 ; and vide Bellas v. Cleaver, 40 ih., 260). And where a surveyor sought to correct and enlarge a survey, which lie had made with plainly marked lines and established courses, by simply running out one line from a corner of the tract, establish- ino: no corner there, but callino- for that distance in his field notes. and said notes called for the bearing trees at the corners estab- lished in the original survey ; the Supreme Court of Texas held, that the true boundary line was that found in the original sur- vey, and that there was in fact no correction of the survey at all. And it was further held that the marked lines and corners of a survey control where they vary from the calls as to distance {Barileit v. Huhert, 21 Texas R., 8). In an action before the Supreme Court of California, to recover damages for trespass in working across the boundarj^ line of the plaintifE's mining claim, it appeared that the plaintiff had told the defendant that he need not be uneasy, for he had fifty feet to run before he would reach the line. The court held this not to amount to a license to the defendant to work on the plaintiff" 's land, nor to an estoppel to the latter from recovering the damages he had actually sustained. It was held that the defendant was guilty of negligence in not ascertaining the boundary, as he could have done so by a survey {Maye v. Tappan, 23 Cal. R., 306). And the Supreme Judicial Court of Massachnsetts has held, that, a written instrument executed by the proprietors of adjoining lands, reciting that they were desirous of having their respective lines run so that each might know his true boundary, and agreeing to employ a survej^or to run the lines and put up stakes or marks to designate each lot, and to pay the expense proportionally, is not an agreement in the nature of a submission to arbitration, so mSCELLANEOUS t^OINTS. 335 as to make the lines run by him condnsive upon the parties to it, and it was further hekl that, if lines have been run by a surveyor at the common expense of owners of adjoining lauds, and boundary inarks set up, and one party adopts a line thus run, and budds m conformity with it, the other party is not thereby estopped irom claiming that it is not the true line, if it does not appear that he knew ti>at the other was incurring expense upon the iaith ot a supposed agreement to treat the line thus run as the true one (TLer V.Bacon, 3 Allen^s B., 163). But the Supreme Cour of New Hampshire, on the contrary, has held that an agreement between owners of adjoining lands, that the line between them shall be ascertained and settled by a surveyor, is, when executed, conclusive upon them and all claiming under them ; and not as )n some iurisdictions, merely strong evidence of the line. And it ^vas fu'rther held, that possession up to a line, run by asurveyor in the presence and by direction of the parties, long continued, with- out question, is evidence from which a jury may infer an agree- ment of the parties, that the line so run should be conclusive mudley V. Flkim. 39 i\^. //. B-, T8). Where the divisional fence between the lands of A. and b. was a stone wall, three feet wide, set wholly on the land ot A. ; and P> had for more than fifteen years, held exclusive possession ot his own land up to the wall, treating the center of the wall as the dividino- hue, and believing it to be so, but with no knowledge of such chiim on the part of A., and no other possession of the cround covered by the wall; the Supreme Court of Errors of Connecticut held it was a sufficient adverse possession to vest in 13. a title to the center of the wall {rhmtlngton v. Whaley, 29 Conn. H 391) But in a contest of boundary between two parties who have purchased adjoining tracts from a common vendor, the luie ^■hich their vendor had caused to be run as the dividing line between the two tracts before he sold them, will be recognized as the dividing line between the two parties deriving title from hnn Under such circumstances, if either party has not the quantity of land called for by his title, he must seek it from his vendor, and not from the proprietor of the adjoining tract, who does not claim or possess beyond the line established by their common vendor. Audit was held that, in such a case the plat or survey ^nA proces roerUl of a parish surveyor are admissible in evidence after the death of the surveyor to show that the line was run by him at the gg() LAW OF BOUXDAEIES. request of the common vendor, and that he considered it the boundary of the two tracts which had been divided by him, and also to show that the parties bought the land in accordance with the lines established bv the survey, and that the defendant took possession and cultivated his tract according to it. And the rule M-as declared, that in an action of boundary, a division line which has long been established by surveyor's marks, a canal and fence, and under which both parties bought, and which is referred to in the act of sale, will be taken as the true line in preference to a new one which gives to one of the parties a larger boundary {Lebeaii v. Bergeron^ 14 La. An. 7?., 489). The Supreme Court of Kew Hampshire has held that it is not improper for a witness to state that, among other indications of the existence of an established line, he noticed a ridge of land apparently marking the interval between the occupation for til- lage or other purposes, on the one side and the other; what such ridge indicates, being almost as much a matter of fact and observa- tion on the ground as its existence {IlaU v. Davis, 36 N. II. li., 569). And the Supreme Court of Texas has held that the acqui- escence of the proprietors of the adjoining lands, in a particular line, is not unfrequently referred to and received as evidence to determine their boundaries; and that prior possession is notice of the claim of the person in possession to the purchaser of adjoining lands. And it was further declared that what are boundaries is matter of law ; but where they are, is a matter of fact {Bolton v. Lann, 16 Texas H., 96). But a division line, mistakenly located and agreed on by adjoining proprietors, will not be held binding and conclusive on them if no injustice would be done by disre- garding it (MenTcens v. Blumentlial, 27 Miss. R., 198; Gray v. CouviUo7i, 12 La. An. i?., 730). However, it has been held by the Supreme Court of Vermont that proof that parties, expressly recognizing a particular line, agreed to build the fence as near as might be convenient, will establish the line which the parties had in view, and which the general direction of the fence indicates {Clarl V. Taher, 28 Vt. B., 222). To establish a conventional boundary line, different from that apparently indicated by a prior deed, it must appear that both the parties to the convention had a good title, or subsequent parties are not bound. So held by the Supreme Court of Tennessee {lioget's v. White, 1 Sneeds B., 68). And the Supreme Court of JIISCELLAAEOrS POINTS. 337 Indiana lias lield that, to suppoil an implied agreement, with reference to a boiindaiy differing from that expressed in title- deeds, an acqniescence of at least twent}' years (the statutory period) is requisite {Ball v. Cox, 7 Lid. E., 458). Though, as a general rule, " an admission by a party of a mistaken line for the true one has no legal effect upon his title," still, a mutual recogni- tion of a given line by adjoining proprietors, accompanied by actual possession of one or both for the period of fifteen years, in Yermont, will be conclusive as to their respective rights {SjxiuhUiig V. Warnm, 25 Vt. i?., 316; cwd vide Brown v. Edaon, 23 ''do., 425; Cunningham v. lioherson, 1 Swan\S/iij>j)a?ny 5 Barn. artition fence, which imposes a ditierent liability from that pi'ovided by tlie statute relating to "division fences," is a covenant runninir ■with the land, and an incund^ranco, within the meaning of a cove- nant to convey tree «>f all incumbrances. And it was also held, in the sanie case, that where the owner of land agrees with a rail- road company to build and forever maintain good and suthcient fences on both sides of a raib'oad thi'ongh said land, and releases the I'oad from all claim for damages in consequence of its neglect in not having said fences built previous to that date, such is a covenant wliich runs with the land, and is within the covenant to convey free from all incumbrances {Blain v. Taylor, 10 Ahh. Pr. P., 228; and ride B ronton v. Coffin, 108 JIass. P., 175; also 2 IliJliard's Real Property, 302). Ileference has been made to the ju-esumption arising from the enjoyment of repairs to a boundary fence. In the case of rights FENCES AT COMMON LAW. 845 of wii}' and most other easements, the original enjoj'ment cannot be accounted for unless a grant has been made; and therefore it is that, from long enjoyments, such grants are presumed. But in the case of the enjoyment of repairs made to a boundary fence by the adjoining owner the case is different; for the original enjoy- ment was consistent with the fact o'i there having been no grant, and with the repairs having been made by the party charged fur his own benefit, and in pursuance of the obligation wiiich the law imposes upon every man to keep his cattle from trespassing on his neighbor's property {Doe dem. Fenwich v. Reed, 5 Barn, dc Aid., ^.^232, 237). It is well settled, however, that an obligation to maintain a partition fence may exist by prescription. This is to be inferred from some authorities already referred to; but the doctrine has been frequently affirmatively held. In an early case before the Supreme Judicial Court of Massachusetts the defendant was sued for damage done by his cattle escaping through a defective line fence; it was held that the owner of the cattle doincr dama<>-e in such case might show that the pai'ty complaining was bound by prescription to maintain the fence, and that he might prove it by ancient usage, although it was held that the prescription sliould be pleaded {Rust v. Loio, 6 Mass. R., 90). And in a later case, before the same court, it was declared that, where a party is not bound hy p'^'escrijjtimi, agreement, or assignment offence-viewers, to maintain a fence between his land and that of the adjoining owner, he may sustain an action of trespass, ^war^ clausum /regit, against the adjoining owner, whose cattle escape into his land. And it was said that the common law in this respect was not altered by the statutes of the commonwealth {Thayer v. Arnold, 4 Jlet. R., 589). At an early di,iy in tlie State of South Carolina it appeared that the plaintiff had erected a partition fence on the line dividing his land from that of an adjoining owner, after requesting the said proprietor to join in the building thereof, which he refused to do, in the city of Charleston ; and afterward, on the refusal of the owner of the same land adjoining to pay any part of the expense thereof, brought assumpsit for a contribution, or a moiety of the expense, and gave in evidence a local custom of the place, entitling the builder of a party wall or fence to recover half the expense of erecting the same, and had a verdict. On appeal, the court abovo 44 34G i-l'I' OF FEXCES. lield that tlie custom was a good one, and affirmed the verdict ( Walker v. CMchester^ 2 Brevard's 7?., 67). The Supreme Court of Alabama, a few years since, declared that, by the common law, a tenant of a close is not bound to fence against an adjoining close, unless by force of prescription- ; and that, where no prescription or agreement exists, the legal obliga- tion of the tenants of adjoining lands to make and maintain par tition fences depends entirely upon statutory provisions {Moore v. Levert, 24 Ala. /?., 310). And to the same effect is a decision of the highest court of Maryland, by which it was held that, in a county where there is no act of the legislature regulating parti- tion fences, the principles of the common law will prevail, and that the tenant of a close is not obliged to fence against an adjoin- ing close, unless by force of prescription, but he is bound at his peril to keep liis cattle on his own close {Richardson v. Miller, 11 Md. E., 340). Prescription to fence is allowed at common law, as resulting from an original grant or agreement, the evidence of which is lost by lapse of time; or the obligation by prescription may arise from a usage of the tenants of adjoining closes, and those who liave held the same closes before them, to repair certain propor- tions thereof, respectively, fur a time whereof the memory of man runneth not to the contrary. It was declared l)y Parsons, Ch. J., in the decision of a case in the Supreme Judicial Couit of Massa- chusetts, over sixty years ago, that this country had then " Ijeen settled long enough to allow of the time necessary to prove a pre- scription, and ancient assignments by fence-viewers, made under the late provincial laws ; and also ancient agreements made by the parties may have once existed, and be now lost by the lapse of time" {Rust v. Lov:, 6 21ass. R., 90, 97j. If one of two proprietors of adjoining lands maintains a fence for the benefit in whole or in part of the adjuiiiing proprietoi-, for a period of time sufficient to establish a prescription, the law will presume a grant or covenant by which he became legally obliged to do so. But, notwithstanding the rule that the obligation to maintain certain portions of a line fence may be established by prescription, this obligation continues no longer than while they are coterminous possessors; and if there be a change in extent by which one of the adjoining proprietors borders on the other, tlie fence-viewers may be called upon to settle the proportion of fence FENCES AT COMMON LAW. 347 to be built by eacli owner {Adams v. Yan Alstyne, 35 Bail). 7?., 9 ; S. C. affirmed, 25 ]S^. Y. R., 232). Tlie obligation to maintain a fence by an agreement and that by force of a prescription are entirely cognate or of the same nature. Indeed, prescription, as recognized in law, is a title or right acquired by possession ; so that the right of a party to have a portion of the division fence between himself and his neighbor maintained by the adjoining owner, \>^' jpresanption^ is predicated npon the fact, so to speak, that he has enjoyed the benefit of such fence for a period requisite to I'ipen an adverse possession of any easement into a title. It is the general rule of law that ho who lias been for a long time in possession of a thing shall be regarded as the owner of it, because meii are naturally careful not to give up whai belongs to them, or long continue to do that which is a burden to them unless they are under some legal obligation to do it. On this principle the right to enjoy the repairs of a boundary fence by prescription is predicated, although the period which matures this right is different in different States. The doctrine, however, is recognized in all of the American States, and in England. The general rule then is that, at the common law, a party is not, from the mere circumstance of having a neighbor, compelled to raise any defense against the contiguous property. He may continue to preserve the " ideal, invisible boundary," whicli the law recognizes as separating the close of one man from that of another, without any visible or tangible fence. A man is only bound to take care that his cattle do not wander from his own land and trespass upon the lands of others. I3ut the inconvenient consequences of this exposure give at once the reason why fences are of value, and the right to create and keep them in repair comes in question as soon as the mischief, M'hether it be by the intrusion of cattle or otherwise, has occurred. Because the law, notwithstanding the general rule that a party shall not be held to fence his land for the benefit of another, inter- feres immediately uj)on the accession of the injury, and accords a remedy according to the event. Thus it became the interest of men, in the first instance, to guard against mutual encroachment and incursion, and this was effected through the medium of a fenced boundary. In view of the rule stated and the consequen- ces of a strict adherence to it, it might be supposed that the 348 ^'ITr OF FENCES. advantages of a fence are so mutual, there would be found a double defense at the verge of each inclosure. This, however, so far from being the case universally, where only the common law prevails, is even very rare, the boundaries of property being usually conli*ned within one defense. And it may be added, as a general rule, that the repair of the defense ensues upon the owner- ship thereof. But this condition of things must be attributed to agreement between the respective parties. And agreement is either developed by deed, or presumed where no deed exists. In the one case, the instrument sufficiently manifests the intention of the parties ; in the other (and the majority of instances is of this nature), the obligation to fence, in the absence of statutory enact- ment, arises by prescription. The right to repair fences has some- times been the subject of litigation where there has existed an express covenant, but it has been \LlQ.t^ especially so where the lia- bility has rested upon prescription. But property of adjoining closes may become severed, and again, after the disunion, they may be once more centered in the same owner. In the first case, where no inclosure exists, it has been debated whether the seller cr the buyer should maintain the fence, in the absence, of course, of an express stipulation upon the sub- ject. If there be an inclosure already, unless there be an agree- ment to the contrary, in case of hedges, the person on whose side the hedge is, and the ditch is not, is under obligation to repair. In the second case, where the closes have returned to the same owner, ^»nd thej' are once more divided, it has been considered that the usual principle of extinguishment upon unity of posses- sion governs the transaction; and, moreover, that the considera- tion does not revive after the severance. This was so decided in England hundreds of years ago {Polus v. Tlenstoclc, 1 Ventris' B., 97) ; and the English Court of King's Bench has reiterated the doctrine within the last fifty years, in a case hereinbefore referred to, in which Bayley, J., said: "Even where adjoining lands, which have once belonged to different persons, one of whom was bound to repair the fences between the tw^o, afterwards became the property of the same person, the pre-existing obligation to repair the fences is destroyed by the unity of ownership. And where the person who has so become the owner of the entirety afterM'ards parts with one of the two closes, the obligation to repair the fences will not revive, unless express words be intro- FEXCES AT COMMON LAW. 349 duced into the deed of conveyance for that purpose" {Boyle \. TamJyn, 6 Barn, cfe Ores. R., 329, 337). A man is not bound to fence against his own land ; and if one bound to fence against the land of another purchase that land, he is not bound to maintain the fences any longer. So, if A. be bound to inclose against J3., who has twenty acres adjoining, and A. purchases one acre contiguously adjacent to the inclosure, A. will not be compelled to inclose against that one acre. It follows, therefore, that the duty of fencing becomes extinguished by unity of ownership; and, further, that this duty is incapable of revivor in the event of tlie two closes again becoming vested in different owners; for though things of necessity shall revive, as a way to market or church, yet in the ease of easements not of necessity the rule is otherwise {Poliis v. Ilenstocl', 1 Ventris' R., 97). But it must be noticed that unity of possession suspends merely the obligation to repair the fence between two properties ; to destroy the prescription there must be unity of ownership; and, furthei', the party must have an equally perdurable estate in both the tene- r/icnts {Canharn v. Fisk, 2 Crompton d; Jervis' R., 126). Alderson, J., observed, in a case before the Englisli Court of Exchequer : " If I am seised of freehold premises, and possessed of leasehold premises adjoining, and there has formerly been an easement enjoyed by the occupiers of the one as against the occu- piers of the other, while the premises are in my hands the ease- ment is necessaril}^ suspended ; but it is not extinguished, because there is no unity of seisin; and if I part with the premises the right, not being extinguished, will revive" {Thomas v. Thomas, 2 Crom2)t., Meeson cfc Roscoe's R., 41). And in an early case before the English Court of King's Bench it appeared that King Henry YIII was seised of the tenements in Hermitage in fee simple abso- lute j?W(3 coroncB / that the occupiers of those lands had a prescri|> tive right to pasture beasts on Hermitage common, which was part of the duchy of Cornwall ; and that, for want of a Duke of Corn wall. Hermitage common came into the possession of Henry VIII, so that he held the lands of Hermitage and Hermitage common together; it having been contended that the right of common was extinct by unity of ownership. Holt, Ch. J., said that this was not such a unity of ownership as would destroy the prescrip- tion ; "for, though King Henry VIII had an estate in fee in the lands to which the counnon of jiasture appertained, and also in 350 LAW OF FENCES. Hermitage common, yet he had not as perdurable an estate ii/ one as he had in the other ; for the quality of the estates differed, because Hermitage common was part of the duchy of Cornwall, and the king had in it only a fee determinable on the birth of a Duke of Cornwall, which is a lease fee ; but in the tenements in Hermitage he had a pure fee simple and interminable, and, there- fore, a unity of such estates worked no extinguishment; for where a unity of ownership extinguishes a prescriptive right, the two estates must be equal in duration, quality and all other circumstances of right" {I2ex v. The Inhabitants of Hermitage, Carthew's R., 239, 241). These observations as to the suspension and revivor of pre- scriptive rights from mere unity of possession, without unity of seisin, apply only where the prescriptive right has already been gained. If the period allowed by the law for gaining the pre- scriptive right is not completed when tlie unity of possession occurs, it will be necessary to commence reckoning the prescrijD- tion afresh when tlie unity of possession is ended, for while it lasted the boundary fences could not have been maintained by the occupier by virtue of any legal obligation ; for it has been Bhown that no man is bound to fence one part of his property from another ( Vide Clayton v. Corby, 2 Gale cfc Davidson'' s B., 174). It would seem, therefore, to follow as a natural consequence, if an obligation to maintain fences is destroyed by unity of owner- ship, and will not revive unless express words are introduced into the conveyance, that no agreement as to fencing can be implied on the part of either an ordinary vendor or vendee, upon a sale and division of lands between the owners and occupiers of which no obligation to repair fences has ever existed ; and some of the cases herein considered substantially hold to this doctrine. But the obligation to erect and repair fences in this country more gene- rally rests upon statutory regulation, and the principal litigation here arises under the various legislative enactments relating to the subject ; and this policy will be particularly considered in subse quent chapters, where some of the points here stated will be further illustrated. TUE LOCATION OF FENCES S51 CHAPTER XXIX. RTTLES IN RESPECT TO THE ERECTION OF FENCES THE OWNERSHIP OF FENCES AND OTHER INCIDENTS CONSEQUENCE OF THE NEGLECT TO KEEP FENCES IN REPAIR WHO MAY TAKE ADVANTAGE OF A DEFECTIVE FENCE. In tlie absence of any agreement, statute or prescription, a per- son is obliged to erect his fence upon his own prerxiises, in ease h» desires to inclose them. The rule respecting ditching laid down by Lawrence, J., in an early English ease, clearly settles the law upon the subject. The learned judge said : " The rule is this : No man making a ditch can cut into his neighbor's soil, but usu- ally he cuts it to the very extremity of his own land ; he is, of course, bound to throw the soil which he digs out upon his own land, and often, if he likes, he plants a hedge on the top of it ; therefore, if he afterward cuts beyond the edge of the ditch, which is the extremity of his land, he cuts into his neighbor's land, and is a ti'espasser. Ko rule about four feet, and eight feet, has any- thing to do with it. He may cut the ditch as much wider as he will, if he enlarges ir into his own land" {Vowles v. Miller, 3 Taunt. R., 138). Care must be taken, however, by the person making the ditch, that he does not dig so deep, nor in such a man- ner, as to let down his neighbor's soil, otherwise he will be liable to the party aggrieved for the damages which he may sustain by reason thereof ( Wyatt v. Harrison, 3 Barn, cfe Adolpli. R., 871). Proof of the ancient width of the ditch is held lo be evidence that the boundary line does not extend be3^ond the outer edge thereof; consequently, where two estates are separated by a hedge and single ditch, the presumption is, in default of evidence to the contrary, that both ditch and hedge belong to the owner of the land on which the hedge is planted ( Vowles v. Miller, supra ; Strang v. Stewart, 4 Sess. Cases, II. of Lords, 5). If there are two ditches, one on eS^., ch. 45, §§ 4-17). Railroad companies are required to fence their roads with good substantial wooden fences, nnder certain specified regulations prescribed by the statute (1 J2..S..,ck.2d,. §§35, 180, 181, 184). The Supreme Court of the State has held, that, though there is. no law in Ohio, requiring any person to fence or inclose his grounds, yet the owner who leaves his lands uninclosed, takes the risk of intrusion upon his grounds, from the animals of other persons, running at large {KerwhciGker v. The Cleveland, Coluni- hus and Cincinnati Railroad Company, 3 Ohio, iV. S. i?., 172). It appears, therefore, that the common law, which requires the owners of cattle and other animals, to keep them upon their own premises, at their peril, is not in force in the State of Ohio, even though they have no statute in the State abrogating the rule. The Supreme Court of the State has expressly held, that the common- law doctrine making the owner of domestic animals a trespasser,. if he permits them to stray npon the nninclosed lands of another,, is- not the law of Ohio {The Cleveland, Columhus and Cincinnati- Railroad Company v. Elliot, 4 Ohio, N. S. R., 474). In the State of Michigan, all fences four and a half feet high,, and in good repair, consisting of rails, tind)er, boards or stone- walls, or any combination thereof, and all brooks, rivers, ponds,, creeks, ditches and hedges, or other things which may be con- sidered equivalent tliereto in the judgment of the fence-viewers within whose jurisdiction the same may be,, are deemed legal and sufiicient fences by statute. And the respective occupants of lands inclosed with fences are required to keep up and nuvintain 57 450 -^-^^' ^^ FENCES. partition fences between their own and the next adjoining inclosures, in equal shares, so long as both parties continue to improve the same. Provision is also made for settling controver- sies in respect to division fences, and prescribing remedies where parties fail to perform their obligations in respect to the same. All partition fences are required to be kept in good repair through- out the year, unless the occupants on both sides shall otherwise mutually agree. Where lands of different persons, which are required to be fenced, are bounded upon, or divided by any river, brook, pond or creek, which of itself, in the judgment of the fence-viewers is not a sufficient fence, provision is made for adjust- ang the matter of making a partition fence between the respective parties, and for the enforcement of tlie order of the fence-viewers in the premises. And where a partition fence running into the ■water is necessary to be made, the same is required to be done in equal shares unless otherwise agreed by the parties, and in case of delinquency in such case, similar proceedings are to be had as in case of otlier fences, and with the like effect (1 Comp. Laws of 1871, ch. 14). The Supreme Court of the State has recently decided, that the purpose of the act regulating partition fences was, to compel every person to discharge his duty in regard to the same, at the peril of such losses as he might suffer from his neglect, by the beasts of those persons to whom the duty was owing. That this duty was created only for the protection of adjoining proprietors, and that before the duty can become fixed, so as to require him to keep in repair any particular portion of such partition fence, it must appear; first, that the adjoining proprietor improves his land ; and second, that either by consent or by the action of the fence-viewers, a portion of the partition fence between them has been assigned to him to keep in repair. And it was declared that adjoining proprietors may dispense, if they see fit, with partition fences altogether, and if such fences are erected, that no particular iportion thereof belongs to either party to be kept in repair by iim, until in some legal mode the partition is made. Until this is done, it was said that it would be presumed that the parties choose to rely upon their common-law liability for damages by their -beasts {Aylesioorth v. Harrington, 17 Mich. R., 417). The statutes of Michigan also contain the usual provisions requiring railway companies within the State to erect and main STATUTES OF IXD. RESPECTING FEXCES. 451 tain fences on the sides of their respective roads, and prescribing liabilities in case of default (1 Comp. Laws, eh. 75, § 43). It was formerly held, in Michigan, that adjacent landowners in the Sate were not obliged to maintain a division fence, but that each was responsible for his own cattle, in conformity with the i-equirements of the common law upon the subject {Johnson v. Wing, 3 Mich. B., 163). But the rule has been changed by express provision of statute. In 1847 an act was passed, pro Tviding that " no person shall recover for damages done upon lands by beasts, unless in cases where, by the by-laws of the township, such beasts are prohibited from running at large, except when such lands are inclosed by a fence," etc. The court held that this statute did not change the common law, nor require individuals to fence their lands, but only precluded the recovery of damages in case they were not fenced. And it was also held that the statute did not apply to such lands as are not usually fenced, such as railroad tracks, which cannot be entirely fenced ( Williams v. TJve Michigan Central Railroad Cornjpany, 2 Mich. R., 259). But railwa}" companies are now required by the statute of the State to maintain fences along the sides of their roads. It seems that a person in Michigan is not bound to maintain a partition fence against the cattle of another who is not an adjoining owner or occupant {Aylesioorth v. Ilerrington, 17 Mich. R., 417). In the State of Indiana the statute declares that any structure or hedge, or ditch, in the nature of a fence, used for the purposes of inclosure, which is such as good husbandmen generally keep, and shall on the testimony of skillful men, appear to be sufficient, shall be deemed a lawful fence. And if any domestic animal breaks into an inclosure, the person injured thereby shall recover ;the amount of damage done, if it shall appear that the fence through which the animal broke was lawful; but otherwise not. Except where otherwise specially agreed, partition fences, dividing lands occupied on both sides, must be maintained through- out the year, equally by both parties. And if either party fail to do so, the other may give him notice of three days, that he will call upon two disinterested freeholders, at a specified place, on a day fixed, to examine said fence, and if they deem it insufficient to assess the amount required to make it sufficient. Where any party shall cease to use his lands, or shall lay open his inclosures, he is prohibited from taking away any part of his 452 LAW OF FEXCES. fence wliieli forms a partition fence between him and the inclosure of any other person, nntil he shall have first given six months' notice to such person or persons as may be interested in the removing of said fence, of his intention to remove the same (1 i?. S. of 1862, ch. 62). It has been held by the Supreme Court of the State, that both parties to a partition fence in Indiana are equally bound to main- tain the same. Either may repair, and enforce contribution from the other, but failure to do so leaves them upon their respective common-law rights and obligations. And it was expressly declared in the case, that the provisions of the statute upon the subject applies solely to outside fences {Myers v. Dodd, 9 Ind. E., 290). And in a late case before the same court, it was held that the statute defining a lawful fence, and prohibiting a recovery of damages for cattle breaking into grounds not inclosed by such fence, applies only to outside fences ; and that as to inside divi- sions, parties, in respect to trespassing animals, are left to their common-law rights and liabilities. And it was further held that a person who chooses not to inclose his land, is not responsible for cattle, not under his charge or control, entering his land, and passing from that to adjoining land, whether there be a partition fence or not {Coot v. Morea, 33 Ind. R., 497). And in another case before the same court, it was declared that at common law the owner of cattle must fence them in ; and that the neighbor was not bound to fence them out. It was further held that the statute of the State only applies to and alters the rule of the com- mon law in this respect as to " outside" fences, and not as to par. tition fences {Brady v. Ball, 14 Ind. B., 317). The owner of domestic cattle is bound, at his peril, to confine them on his own land, and, if they escape and commit a trespass on the land of another, unless through the defect of fences which the latter is bound to repair, the owner will be h^ld a trespasser, though he had in fact no notice of this propensity {Page v. II oiling sworth^ 7 Ind. 7?., 317). It seems, that one desiring to remove a parti- tion fence, should, under the Indiana statute, ascertain its value, and how much he may remove, by means similar to those ordained for assessing the expense of erection {Haines v. I{e?it, 11 Ind. B.^ 126). Tiailway corporations in Indiana are required by statute to main- tain fences along the sides of their roads with certain exceptions. STATUTES OF IND. RESPECTING FENCES. 453 and the Supreme Court of the State has held in several cases, that the requiring such companies to fence is a police regulation, mak- ing them liable without regard to the negligence of the owner ot cattle killed, or his being or not a proprietor of adjoining land {Indianapolis, etc. Railroad Company v. Townsend, 10 Ind. B., 38 ; The Same v. Meek, Ih., 502 ; Jeffersonville Railroad Com- pany V. Appleyate, 11., 49 ; Tlie Same v. Dougherty, Ik, 549). But it is held that a railroad company is not liable for cattle killed on the public highway, where sufficient fences and cattle-guards are maintained, M'ithout negligence on the part of the company or its agents {Nort}i£rn Indiana Railroad Company v. Martin, 10 Ind. R., 4G0). And it seems that a railroad company is not bound by the act of March 1st, 1853, to pay for a hog killed on its track at a place where a fence ought not to be erected {Indianapolis, etc. Railroad Company v. Kinney, 8 Ind. R., 402). It was held in a later case, that it would seem to be not an unreasonable rule to require owners of land to fence their grounds, as a condition pre- cedent to the right to recover damages for trespasses upon them. And where ciittle running at large, stray upon a railroad at a point not fenced, nor required by law to be fenced, and are killed by an engine, the court held that common-law principles must determine the rights and liabilities of the parties {Indianapolis, etc. Railroad Company v. Caldwell, 9 Ind. R., 397). It has been recently held by the Supreme Court of the State, that under the present law of Indiana, a railroad company should build a fence between its track and a public highway {Jefferso7iville Railroad Company v. Sweeney, 32 Ind. R., 430). But it has been held that the statute provisions in Indiana imposing a liability upon railroad companies for injuries to animals through defect of fences, only apply when the casualty occurs at a spot where the company ought by law to maintain a fence. For an animal killed at a spot where the company' is not bound to fence, a recovery can be had only upon common-law grounds, that is to say, by proof of negli- gence or of a willful killing {Jeffersonville, etc. Railroad Com- Ijaiiy V. Brevoorty 30 Ind. R., 324). A })ortion of a railroad is not excepted from the requirements of the statute as to fences merely because it is within city limits. The exception only extends to places where it is unreasonable or improper that the road should be fenced, whether within or without the limits of 454 -^^ ^ 0^ FENCES. cities or towns {Indianapolis, etc. Railroad Company v. Par^ker, 29 Ind. R., 471 ; and vide Same v. Lowe, Jh., 545).* The statutes of Illinois provide rules and regulations for pro- prietors or owners of land used or declared to be " a common field," to take measures in respect to fencing their lands, declaring that they may meet at a given time and place and make rules in respect to the same, appoint the necessary officers and committees, to have the oversight of the business, and the proceedings for locating the fences, building and repairing the same, and the like, are specifically and plainly prescribed (1 Gross' Stat., ch. 51, §§ 1-10). It is also provided by statute that, where two or moi-e persons shall have lands adjoining, each of them shall make and maintain a just proportion of the division fence between them, except the owner or owners of either of the adjoining lands shall choose to let such land lie open. And where any person shall have chosen to let his land lie open, if he shall afterward inclose the same, or if any owner of land adjoining upon the inclosure of another, shall inclose the same upon the inclosure of another, he is required to refund to the owner of the adjoining lands a just proportion of the value at that time of any division fence that shall have been made by such adjoining owner, or he must immediately build his proportion of such division fence. The value of such fence and the proportion thereof to be paid by such person, and the propor- tion of the division fence to be made and maintained 'by him, in case of his inclosing his land, must be determined by any two fence-viewers of the town, in counties where township organiza- tion shall have been adopted, and in other counties by any two fence-viewers of the county. If disputes arise between the owners of adjoining lands relating to the division fences, the same must be settled by the fence-viewers, and the manner of proceed- ing is pointed out by the statute. The statute also provides that, if any person liable to contribute to the erection or reparation of a division fence shall neglect or refuse, for a period of four weeks after notice in writing so to do, * The legislature of Indiana, by an act passed December 19, 1865, amended the general law of the State in respect to fences, by enacting that a lawful fence shall in all cases be such as to inclose and restrain sheep, unless by mutual con- sent of the parties interested, they agree to build a fence only to restrain o. inclose horses, mules or cattle (Laws of 1865, cli. 173) STATUTES OF ILL. RESPECTING FENCES. 455 to make and maintain his proportion of such fence, the party injured may make or repair the same at the expense of the party so neglecting or refusing, and the party in default may also bo made to pay all damages resulting from his neglect, and the method of proceeding to fix the same is pointed out in the statute. If any person who shall have made his proportion of a division fence shall be disposed to remove his fence, and suffer his lands to lie open, after having iirst given the adjoining owner at least sixty days' previous notice, in writing, of his intention so to do, he may, at any time between the first day of December in any year, and the iirst day of April following, but at no other time, remove the same. And if any such fence shall be removed without such notice, the party removing the same is required to pay to the party injured all such damages as he may thereby sustain, to be recovered with costs of suit. Whenever a division fence shall be injured or destroyed by fire, floods, or other casualty, the person bound to make and repair such fence, or any part thereof, is bound to make or repair the same, or his just proportion thereof, within ten days after he shall be thereto required by any person interested therein, such requisi- tion to be in writing, and signed by the party making the same. And if such person shall neglect or refuse to make or repair his proportion of such fence, for the period of ten days after such request, the party injured may make or repair the same at the expense of the party so refusing or neglecting, to be recovered with costs of suit. The practice before the fence-viewers is pre- scribed by the statute, and the manner of recovering damages is also pointed out in the statute (1 Gross' Stat., ch. 51, §§ 20-35). The statute allows parties to inclose their grounds in an}^ man- ner they please, with sutticient walls or fences of timber, or by dikes, hedges and ditches, but such walls and fences must be in height at least five feet from the ground, and all dikes must be at least three feet in height from the bottom of the ditch, and planted and set with thorn and other quickset, so that such . inclosures shall fully answer and secure the several purposes meant to be answered and secured by law, and such walls or fences of timber, dikes, hedges and ditches, are made subject to the pro- visions of the statute in respect to fences (1 Gross' Stat., ch. 17, §§11-18). The Supreme Court of Illinois has decided that the common 456 LAW OF FENCES. law requiring the owner of cattle, hogs, etc., to keep them upon his own land, has never been in force in that State, and, accord- ingly, in order to maintain an action for the trespass of cattle upon one's close there, the owner of the close must have it surrounded by a good and sufficient fence. It was declared that there was no general law in Illinois prohibiting cattle from running at large in the highway {^eeley v. Peters, 5 Gilm. B., 130 ; Misnery. Light- hall, 13 III. E., 609). The court seems not to have been entirely unanimous in the laying down of this doctrine at first, but the rule is recognized there, nevertheless, and the same doctrine pre- vails in a few of the other States. The common-law rule, how- ever, requiring the owner of stock to keep it on his own land, has been recognized in the State of Illinois in some cases as governing inside or division fences {Headam v. Rust, 39 III. R., 18G). It has been held by the Supreme Court of Illinois, that a parti- tion fence, whether existing by agreement, by acquiescence, or under the statute, cannot be removed until the parties interested in its remaining are properly notified of the intended removal {McCormick v. Tate, 20 III. R., 334:; and vide Gray v. Water- man, 40 ih., 522). And it has been further held that, if there be an outer and an iimer fence to a field, a party not having an exclusive right in the field cannot remove the inner fence, although he is the owner thereof, without subjecting himself to the conse- quences of exposing the crops to danger. And it was declared to be no defense to an action of trespass, growing out of the removal of the inner fence, to show that the complaining party was bound to keep the outer fence in repair, or that he might have repaired the same at small expense {Buchnaster v. Cool, 12 III. R., 74 ; McCormick v. Tate, supra). To maintain trespass for damage done by stock, the owner of the close must have it surrounded by a good and sufiicient fence, except, that such railroads within the State as are not bound to fence, do not come within the rule {Headam v. Rust, snjpra). A good and sufiicient fence must be, not merely one which will turn ordinary stock, for a slight barrier might do that, but one that will turn stock even though to some extent unruly {^Chi- cago & Alton Railroad Company v. Cauffman, 38 III. R., 410). Of course, under the rule which has been adopted, stock is per mitted to run at large in the State {Chicago, Burlington and STATUTES OF ILL. RESPECTING FENCES. 457 Quincy Railroad Company v. Cauffinan, 38 III. li., 429 ; Illinois Central Railroad Company v. Arnold, 47 ih., 173). Where A. and B. join fences, and have no partition ience between the fields, the courts hold that A. cannot recover fruni C. for injuries occasioned by the stock of C. ^^etting on A.'s field through the defective fence of B. {Stoner v. S/ntyart, 45 III. R., 7G ; and vide Illinois Central Railroad Conqxiny v. Arnold, 47 ih., 173). A case came before the Supreme Court of the State a few years ago, in wJiich it appeared that A. having neglected to build his portion of a division fence between his premises and those of B., upon proceedings before two justices under the statute, it was ordered that B. should build A.'s portion, and that A. should pay therefor. The order did not fix the height of the fence. B. built the fence, but not of the height which had been decided upon by the legal voters of the town for all fences. The court held, that if the fence was sufficient to answer the purpose for which it was designed, B. was entitled to recover for building it {Ketcham v. Stolp, 15 III. R., 341). In an early case, it was held by the same court, that in proceedings under the Illinois " act regulating inclosui-es," it was necessary that the justice of the peace, before whom proceedings were had, should notify the defendant of the same {Ilolliday v. Scoailes, 1 Scam. R., 515). It has been more recently held by the Supreme Court that, •where, in an action of trespass gua?'e clausum f regit, the defendant pleaded that the damage done was occasioned by the removal of a partition fence, and that the plaintifi" had been notified of this removal, the plea should have shown that notice was given in due time and to a proper person {^IcCorniick v. Tate, 20 III. R., 334). And in a still more recent case, the same court held that, in order to maintain an action for the trespass of stock upon one's inclosure whereby damage is sustained, the owner of the inclosure must liave maintained a good and sufficient fence. And the doctrine ■was repeated that there was no general law in the State prohibiting cattle from running at large in the highway {Ileadarn v. Rust, 3'J III. R., ISG). And in a still later case, the same court has declared, that owners of cattle are permitted to let their cattk' run at large, and that an owner of land is required to fence again.-t them, and if they break through a defective outside fence and enter upon the land, the owner cannot confine them until liia charges are paid {Stoner v. S/iuyart, 45 III. R., 76). 58 458 L^W OF FENCES. The Supreme Court of the State has recently decided, that, under the Illinois statute requiring the abutting landowner to fence a railroad within six months of its opening, the new owner of an unfenced lot, purchased after the expiration of that term, is not entitled to a period of six months after the change of owner- ship, within which to comply with the law. And it was declared that such new owner takes possession subject to all consequences of his grantor's non-compliance, so far as liability for injuries to third persons is concerned {The Toledo, etc. Railroad Comj)any V. Arnold, 51 III. R., 241). The statute of Illinois requires rail- road companies to fence their roads against " cattle, horses, slieep and hogs ; " and the Supreme Court of the State has declared such statute to be a remedial statute, and that the same must be construed liberally. Applying this rule, it has been held that " cattle " specified in the statute includes " asses " {Ohio, etc. Rail- road Cojrupany v. Buribaker, 47 III. R., 468). And it has also been held that the statute extends to mules {Toledo, etc. Railroad Company v. Cole, 50 III. R., 184). But the Supreme Court has held that, where a railroad is inclosed by a sufficient fence, and a casual breach occurs therein, without the knowledo-e or fault of the company, and through such breach, stock get upon the track and are injured, the company will not be liable unless they have had a reasonable time to discover such breach, or have been noti- fied, and failed to repaii', before the injury occurred {Illinois Cen- tral Railroad Company v. Swearingen, 47 III. R., 206). But in one case where it appeared that an animal passed on to the rail- way track through a space made for bars, and was killed, and the bars had been left down for a period of three months, the court held, that the statute required the railroad company to " erect and maintain" a sufficient fence, of which the bars were a part, and that the company, having allowed them to remain down for so long a time, was liable for the loss {Illinois Central Railroad Company v. Arnold, 47 III. R., 173). The obligation of a rail- road company to fence its road at a particular point is a question of law, not of fact for a jury {Illinois, etc. Railroad Company v. Whalen, 42 III. R., 396). Under the Illinois statute, a railroad company is liable for all damages resulting from its neglect to fence or maintain a sufficient fence without regard to the question whether it used due care in other respects or not {The St. louis etc. Railroad Company v. Linden, 39 III. R., 433). STATUTES OF WIS. RESPECTING FENCES. 459 CHAPTER XXXIX. STATUTES OF THE SEVERAL STATES KEePECTINO FENCES — LAWS OB "WISCONSIN LAWS OF MINNESOTA LAWS OF IOWA STATUTES AND DECISIONS OF THE COURTS, In the State of Wisconsin, the statute provides that all fences four and a half feet high, and in good repair, consisting of rails, timber, boards or stone walls, or any combination thereof, and all brooks, rivers, ponds, creeks, ditches and hedges, or other things which shall be considered equivalent thereto, in the judgment of the fence-viewers within whose jurisdiction the same nuiy be, shall be deemed legal and sufficient fences. The statute further provides, that the respective occupants of lands inclosed with fences, shall keep up and maintain partition fences between their own and the next adjoining inclosures, in equal shares, so long as both parties continue to improve the same. And in case any party shall neglect to repair or rebuild any parti- tion fence, which of right he ought to maintain, the aggrieved party may complain to two or more fence-viewers of the town, who, after due notice to each party, must proceed to examine the same, and if they shall determine that the fence is insufficient, they are required to signity the same in writing to the delinquent occupant of the land, and direct him to repair or rebuild the same, within such time as they shall deem reasonable ; and if such fence shall not be repaired or rebuilt accordingly, it is made lawful for the complainant to repair or rebuild the same. When any defi- cient fence, built up or repaired by any complainant, as before provided, shall be adjudged sufficient by two or more fence-viewers, and the value of such repairing or building up, together with their fees, shall be ascertained by a certificate under their hands, the complainant is given the right to demand, either of the occu- pant or owner of the land where the fence was deficient, double the sum so ascertained ; and in case of neglect or refusal to pay the sum so due, for one month after demand thereof made, the plaintiff may recover the same with interest at one j)er cent a month, in an action for money paid, laid out and expended ; and all lands so occupied or owned as aforesaid, are made liable to levy and seizure or sale on execution issued out of any judgmen* 460 ^^^' ^^ FENCES. obtained in said action, and neither the said hinds nor the personal property of the said defendant shall be exempt from such levy and seizure and sale as aforesaid (1 Taylor's Stat., ch. 17, §§ 1-4). The Supreme Court of the State has decided, that under the statute, the occupants of lands not inclosed with fences, are not bound to maintain partition fences between such land and the next adjoining inclosures, and that the decision of fence-viewers requiring the occupant of uninclosed land to erect, maintain or pay for part of a division fence, is void. It was further decided, that where, in an action, under the statute, to recover twice the value of certain fencing erected by the plaintiff on the division line between his land and that of the defendant's, the complaint did not aver, nor the answer deny, that the defendant's land was inclosed, but the answer alleged that the proceedings of the fence- viewers were void, it was error to refuse evidence offered by the defendant to show that the land was uninclosed {Bechtcl v. Weil- son, 19 Wis. B., 49). And the same court held that, where swine depasturing in the highway break into an adjoining close, though the fence be defective, the owner is liable ; and further, that the public have the full right of passage along and over the highways, but have not the right of pasturage therein (^Harrison V. Brown, 5 Wis. R., 27). The statute further provides that, where any controversy shall arise about the right of the respective occupants in partition fences, or their obligation to maintain the same, either party may apply to two or more fence-viewers of the town where the lauds lie, who, after due notice to each party, may in writing assign to each his share thereof, and direct the time within which each party shall erect or repair his share of the fence, in the manner pro- vided ; which assignment, being recorded in the town clerk's office, is made binding upon the parties, and upon all succeeding occupants of the lands, and they are obligated thereafter to main- tain their respective portions of such fence. And in case any party shall refuse or neglect to erect and maintain the part of the fence assigned to him by the fence- viewers, the same may be erected and maintained by the aggrieved party, in the manner before provided, and pay recovered therefore, to be recovered in like manner. All divisions of fences made by fence-viewers, according to the provisions of the statute, or which shall be made by owners of STATUTES OF WIS. RESPECTING FENCES. 401 adjoining lands, in writing, witnessed by two witnesses, signed, sealed and acknowledged by the parties making the same, being recorded in the town clerk's office, are made good and valid against the parties thereto, their heirs and assigns. And where in any controversy that may arise between occupants of adjoining lands as to their respective rights in any partition fence, it shall appear to the fence-viewers that either of the occupants had, before any complaint made to them, voluntarily erected the whole fence, or more than his just share of the same, or otherwise became proprietor thereof, the other occupant is required to pay for so much as may be assigned to him to repair or maintain, the value of which shall be ascertained and recovered in the manner pro- vided (1 Taylor's Stat ch. 17, §§ 5-8). All partition fences are required to be kept in good repair throughout the year, unless the occupants of the lands on both sides shall otherwise mutually agree. And where lands of dif- ferent persons which are required to be fenced, are bounded upon or divided by any river, brook, pond or creek, which of itself, in the judgment of the fence-viewers, is not a sufficient fence, and it is in their opinion impracticable, without unreasonable expense, for the partition fence to be made in such waters, in the place where the true boundary line is, and the parties do not agree to join in making the partition fence, the fence-viewers are empowered by the statute to view the premises and settle the matter, and if either party neglects or refuses to make or maintain his part of the fence as adjusted by the fence-viewers, the other party may build the whole fence and recover half of the expense thereof of the delin- quent party (1 Taylor's Stat., ch. 11, §§9-11). Provision is also made in the statute in cases where lands have been occupied in common, without a partition fence between the occupants, and one shall be desirous of occupying his part in severalty, and the other party neglects or refuses to divide with him the line where the fence ought to be built, for the fence- viewers to adjust the same, which is made binding upon the par- ties, and they will be required to build each his proportion of the line fence and pay his proportion of the expense (1 Taylors Stat., ch. 17, §§ 12, 13). It is further provided by the Wisconsin statute, that M-here one party shall cease to improve his land, or shall open his inclosure, he shall not take away any part of the partition fence belonging 462 i^ir OF FENCES. to him and adjoining the next inclosure, if the owner or occupant of the next inclosure will, within two months after the same shall be ascertained, pay therefor such sum as two or more fence-viewers shall, in writing under their hands, determine to be the value of such partition fence belonging to such party. And where any uninclosed land shall be afterward inclosed, the owner or occupant thereof is required to pay one-half of each partition fence stand- ing upon the line between his land and the inclosure of any other owner or occupant, and the value thereof must be ascertained by two or more fence-viewers of the town in wanting under their hands, in case the parties do not agree; and if such owner or occupant shall neglect or refuse, for sixty days after the value has been so ascertained, and demand made, to pay for one-half of such partition fence, the proprietor of such fence may maintain an action for such value, and the costs of ascertaining the same. In all cases where the line upon which a partition fence is to be made, or divided, is the boundary line between towns, or partly in one town and partly in another, a fence-viewer must be taken from each town. And where a partition fence running into the water is necessary to be made, the same is required to be done in equal shares, and in case either party sliall refuse or neglect to make or maintain the share belonging to him, similar proceedings are to be had as in case of other fences, and with like effect. In all cases where the line upon which a partition fence is to be built between unimproved lands has been divided by the fence- viewers, or by agreement in writing between the owners of sucli lands, recorded in the office of the clerk of the town, tlie several owners thereof, and their heirs and assigns are bound forever to erect and support such fences, agreeably to such division (1 Tay- lor's Stat, cL 17, §§ 14-18). By another provision of the statute, if any person shall deter- mine not to improve any part of his land adjoining any partition fence that may have been divided according to the provisions of the statute, and shall give six months's notice of such determina- tion, to all the adjoining occupants of lands, he shall not be required to keep up or support any part of such fence, during the time his lands shall be open and unimproved ; and he may thereafter remove his proportion thereof, if the owner or occu- pant of the adjoining inclosuie will not p:.y therefor, as provided by section fourteen, hereinbefore refer-^ed '.o (1 Taylor's Stat, ch STATUTES OF WIS. RESPECTING FEXCES. 463 17, § 19). This provision is similar to the statute of Xew York upon the same subject, so that the decisions of the courts of the latter State upon the question may be applicable here. The Wisconsin statute further provides that line fences on marsh or swamp land may be made by digging a ditch on the line, or by banks and ditches combined. Equal amount cf material and of space occupied must be taken from, or occupy each side of said fence ; provided, said banks and ditches combined shall )iot exceed twelve feet in width ; and provided, further, that in all cases said fences shall be subject to the decision of fence-viewers, pursuant to law. And it should be stated, that the overseers of highways in the several towns in the State are made fence-viewers in their respective towns (1 Taijlor'^s Stat., ch. 17, §§ 21, 22). The statute requires that upon the opening of any private road, the \ erson or persons, for whose benefit the same was granted, shall immediately make and keep in good repair all fences required by the opening of such road (1 Taylor'' s Stat., ch. 19, § 85). And upon the opening of public highways, the statute provides for the removal of the fences necessary for the use of the road (1 Tay- lor's Stat., ch. 19, §98). Railroad companies are required by stat- ute to fence their roads, and are liable for damages occasioned in consequence of their neglect (1 Taylor''s Stat., ch. 76, §§ 37-39). And it may be added that the Supreme Court of the State has held that the statutes in relation to fences and fence-viewers, do not apply to ornamental partition fences, between town, village or city lots ; nor do they prohibit parties from contracting for building such fences. The court holds that tlie fences contem- plated by the statutes, are the ordinary fences of the country, built upon or inclosing agricultural lands {Brooks v. Allen, 1 Wis. B., 127). It has been held by the courts, that rails, placed along the boundary line of lands for the purpose of being laid up in a fence, though not actually applied to that use, will pass by a conveyance of the lands, there having been a manifest appropriation of them for the use of the land {Conhlin v. Parsons, 1 Chandler^s IL, 240). The question has been settled by the courts, that fence-viewera are, by the statute, authorized, in case of controversy between the occupants of adjoining inclosed lands in relation to their rights in partition fences, to assign to each of them his share of such fences, 464 i^ir OF FEXCES. and to direct tlie time within which they shall erect or repair their respective shares ; and their determination or assignment is declared to be conclusive upon the parties and their successors in occupancy as to the points so decided. And further, that the fence-viewers have authority also to ascertain the value of such part of a partition fence as one of the parties may have voluntarily built, beyond his just proportion thereof, and the statute requires the other party to pay the value so ascertained. However, the fence-viewers have no authority to try or determine the question whether such part so built by one party has been paid for by the other ; but in a suit to recover the value thereof as fixed by the fence-viewers, the defendant must set up and prove that he paid therefor before any proceedings by the fence-viewers {Butler v. Barlow, 2 Wis. B., 10). The courts hold, that it is only the occupants of lands inclosed with fences who are required by the Wisconsin statute to main- tain partition fences between their own and the next adjoining iuclosures ; and if, at the time the fence-viewers act in determin- ing that one of the occupants of the adjoining lands shall erect and maintain or pay for a part of a division fence, the lands of such party are uninclosed, their proceedings are without jurisdic- tion and void. The occupants of such lands are under no obliga- tion to erect fences {Betchtel v. Neilson, 19 Wis. B., 49). An action of trespass was brought in the AVisconsin courts charging the throwing down of a fence inclosing the plaintiff's land, -svhich was shown, however, to be wholly on land of the defendant, who had duly warned the plaintifi" of his intent to remove the same. A verdict was found for the plaintiff with nominal damages. The Supreme Court of the State held that it w^as error in the court below to refuse a new trial moved for, on the ground that the verdict was unsupported by the evidence ( Whalen v. Blackhurn, 14 Wis. B., 432). Eailroad corporations in "Wisconsin are required by statute to erect and maintain fences along the sides of their roads, and for a failure to do so, they are made absolutely liable for all damages occasioned by reason thereof. And in an action against a com- pany in such case, it seems to be no defense to allege that the plaintiff had previously trespassed upon the lands of the company constituting the line of its road, by driving the same cattle upon or across the road {Sikes v. The Chicago, etc. Bailway Company^ STATUTES OF MIXX. RESPECTIXG FEXCES. 4G5 21 Wis. It., 370 ; Brovm v. The Mllwaukie Railroad Company^ Ih., 39). But where a railroad company erects, maintains, and keeps in good condition along its road proper fences and cattle- guards, cattle escaping from inclosures adjoining the road upon the track become trespassers, and the law charges the owner with negligence, though he may not be guilty of actual carelessness in allowing them to escape {Fisher v. The Farmers'' Loan Com- pany, 21 Wis. R., 73). In the State of Minnesota, it is provided by the statute, that all fences fonr and a half feet high and in good repair, consisting of rails, timber, boards or stone walls, or any combination thereof, and all brooks, rivers, ponds, creeks, ditches and hedges, or other things which shall be equivalent thereto, in the judgment of the fence-viewers, within whose jurisdiction the same may be, or any such fences as the parties interested may agree upon, shall be deemed legal and sufticient fences. And the respective occupants of lands, inclosed with fences, are required to keep up and main- tain partition fences between their own and the next adjoining inclosures, in equal shares, so long as both parties continue to improve the same. If any party neglects to repair or rebuild any partition fence which he ought of right to maintain, the party aggrieved may complain to the town supervisors or a majorit}' of them, who ma^^ determine the matter, and direct the delinquent occupant to build or repair the same within a specified time, upon default of which the other party may repair or rebuild the fence and recover double the value thereof as certified by the supervi- sors, and all controversies respecting partition fences, may be set- tled by the supervisors. All divisions of fences made by super- visors or by agreement of the owners, in writing, signed, sealed and acknowledged, being recorded, are made good and valid against the parties, their heirs and assigns. And all partition fences are required to be kept in good repair throughout the year, unless the occupants of the lands on both sides otherwise mutually agree. "When lands of different owners which are required to be fenced, are bounded by any river, brook, pond or creek, which of itself is not a sufl^icient fence in the judgment of the supervisors of the town, and the parties interested disagree respecting the location of the line fence, the same may be settled by the supervisors. All of these provisions of the Minnesota statute are quite similar to the Wisconsin statutes upon the same subject, and the remaining S9 4GG LAW OF FENCES. provisions of the statutes are almost precisely similar to the Wis- consin statutes ; so that all that is necessary is to refer to the Wis- consin statutes for the law of Minnesota {Hevised Stat, of 1S66, ch. 18). But th'ere is an additional provision of the Minnesota statute, giving the electors of each town at their annual town meeting, the right to determine the time and manner in which cattle, horses, mules, asses and sheep are permitted to go at large : provided, that no cattle, horses, mules nor asses be allowed to go at large between the fifteenth of October and the first of April {R. S., ch. 10, § 15, suh. 6). And it is further provided, that no damage shall be recovered by the owner of any lands for damage commit- ted (thereon by any beasts during the daytime, until it shall first be proved tliat said lands were inclosed by a lawful fence ; and every tliree rail fence, four and a half feet high, constructed of such materials and in such a manner as to constitute a good and substantial fence as against cattle, horses, asses and mules two or more years old that are not breachy, or any fence equal thereto in efiiciency, are to be deemed a lawful fence ; but the statute is not lo be construed so as to include either sheep or swine or any other domestic animals not exceeding them in size (i?. S., ch. 19, § 29). It appears that all laws in the State allowing cattle to run at large, Lave been expressly repealed (7?. -S"., ch. 122). The Supreme Court of the State has recently decided that the common law, in the absence of action by the town, is in force from April to October fifteenth, and that the statute prohibiting the allowing them to go at large from October to April, is but in affirmance of the common law. And it was accordingly decided, that if the town does not otherwise order, it is as unlawful for cat- tle to run at large in summer, as it is in winter, although the owner of land not legally fenced, can recover nothing for damages done in the daytime by cattle over two years old and not breachy, and this though it be in winter, when all running at large is expressly prohibited by statute {Lock v. I^irst Division of the St. Paul and Pacific Railroad Company, 15 31 in. R., 350). In the State of Io"wa, the statute provides that the respective owners of lands inclosed with fences, shall keep up and maintain partition fences, between their own and the next adjoining inclosure, so long as they improve them, in equal shares, unless otherwise agreed between them. And if any party neglect to STATL'TKS OF IOWA RESPECTING FENCES. 407 repair or rebuild a jxartition fence, or a portion thereof, wliieli he ought to maintain, the aggrieved party may comphiin to the fence- viewers, who, after due notice to each party, must examine tlie same, and if tiiey determine that tlie fence is insuthcient, must signify it in writing to the delinquent occupant of the land, and direct him to repair or rebuild the same within such time as they judge reasonable. If the order of the fence-viewers is not com- plied with, the complainant may repair or rebuild the fence, and the value thereof, being ascertained by the fence-viewers, may be demanded of the delinquent, and if he neglects to pay it for one month after such demand, the same may be recovered with one per cent a month interest, by action. The statute also contains the usual provision that controversies arising in respect to the erection or maintaining partition fences, shall be determined by the fence viewers, and if either party neg- lects to erect or maintain the part of the fence assigned him by the fence-viewers, the aggrieved party may do the work himself, and demand and recover double the value thereof, in the manner provided in the other case. And all partition fences are required to be kept in good repair throughout the year, unless the ownei-s on both sides otherwise agree. No person not wishing his land inclosed and not occupying uo-r usinfT it otherwise than in common, can be compelled to erect or maintain any fence between him and an adjacent owner; but w^here he incloses or uses his land otherwise than in common, ho is required to contribute to the partition fences as in the statute provided. Provision is also made where lands owned in severalty have been inclosed in common, are desired to be divided, and the parties do not agree as to the fences, for the fence-viewers to adjust the same. And if in such case, where one of the owners desires to throw open any portion of his field not less than twenty feet in width, and leave it uninclosed to be used in com mon by the public, he may do so on giving the other party si.^ months notice thereof. And the statute contains, also, the usual provision requiring the party, who shall inclose his land which has before been uninclosed, to pay one-half of the partition fence then standing, to be adjusted by the fence-viewers. Where a division of fence between owners of improved land* has once made by agreement of the parties, or by the fence 468 -S^TF OF FENCES. viewers, and recorded in the town clerk's office, tlie same is made binding ; but if either party desires to lay his lands in common, he may do so in the manner before provided. And where a division fence has been located off the line by mistake, the same may be removed on to the line at any time within six months after the line has been run, upon first paying or offering to pay tlie adverse party the damages occasioned thereby. A person building a division fence, may lay the same upon the line, so that the fence shall be partly on one side and partly on the other, and the owner is given the same right to remove it as if it were wholly on his own land. A fence made of three rails of good, substantial material, or three boards not less than six inches wide, and three-quarters of an inch thick, such rails or boards to be fastened in or to good substantial posts, not more than ten feet apart, where rails are used, and not more than eight feet apart, where boards are used, or in either wholly or in part, substantially built and kept in good repair, or any other kind of fence, which in the opinion of the fence-viewers shall be equivalent thereto, is declared to be a law- ful fence : provided that the lowest or bottom rail or board shall not be more than twenty nor less than sixteen inches from the ground ; and that such fence shall be fifty-four inches in height ; and provided further, that all partition fences may be made tight at the expense of the party desiring it, and if either party shall use his land for the purpose of pasturing swine or sheep, he is required to keep his share of the partition fence sufficiently tight to restrain such sheep or swine {Code o/*1873, tit. 11, ch. 4). The courts of Iowa have held, in terms, that the comnion-law rule, that the owner of cattle is required to keep them in his own close, or respond in damages for all injuries arising from their running at large, is not in force in the State of Iowa. Said, Wright, C. J., in giving the opinion of the court: "Unlike many of the States, we have no statute declaring in express terms, the common law to be in force in this State. That it is, however, has been frequently decided by this court, and does not, perhaps, admit of controversy. But while this is true, it must be under- derstood that it is adopted only so far as it is applicable to us as a people, and may be of a general nature." The learned Chief Jus- tice goes on then to argue that, in the State of Iowa, from the scarcity of timber, it must be many years before their extensive STATUTES OF IOWA RESPECTING FEXCES. 469 prairies can be fenced ; and their luxuriant growth, sufficient for thousands of cattle, must be suffered to rot and decay where it grows, unless settlers upon their borders are permitted to turn their cattle upon them, lie therefore concludes that the princi- ple of the common law requiring every man to keep his cattle within his own close, is inapplicable to the condition of the country and people of Iowa, and consequently was not in force in the State {Wagner v. Bmell^ 3 Iowa 7?., 39G, 402, 405). And in a later case, the same court held, that in trespass for an injury done by cattle or stock, the plaintiff, in order to recover damages, must show that his fence was sufficient to turn ordinary stock, and the doctrine of the case of Wagner v. Bissell, was cited and followed {Ileath V. CoJtenhacJc, 5 loiva IL, 490 ; hut vide 0''Farrall v. Simplot, 4 ih.^ 381). It has been held by the Supreme Court of the State, that the provisions of the Code, regulating partition fences, is not applica- ble as between the owner in fee of land and a company having a right of way for a railroad over such land {Henry v. The Duhuque etc. Railroad Company^ 2 Iowa R., 521). But it has been recently held by the same court that, as to thii-d jiersons, it is the duty of railroad companies to fence their roads, and to keep the gates at private crossings closed and in repair; but where the company is not in fault, and the fence is thrown open by a third person, such third person is liable for a resulting injury instead of tlie railroad company {Russell v. Hanley^ 20 Iowa R., 219). The courts hold that the proceedings of fence-viewers under the statute should receive indulgent consideration, and it was further held that the statute does not in terms require a written notice, though such notice should properly be in writing and proceed from the fence-viewers ; but where the party appears upon notice verball)' given by the otiier party, and without objection, it is a sufficient compliance with the statute {Talbot v. BlacMege, 22 Iowa R., 572). It has been declared by the Supreme Court of the State that, where two persons have fields fenced in common, and one of them willfully turns stock into such inclosure, he is liable for the dam- age done by such stock to the crops of the other, and it is no defense that the inclosure was not surrounded by a lawful fence {Broadwell v. Wilcox, 22 Iowa R., 508). The court, in an action of trespass, after defining a lawful fence, instructed the jury, that 470 i^TT OF FENCES. whether the fence was a lawful fence, and a good one, was in the discretion of the jury ; and it was held, that the word discretion, in its proper sense, implies judgment, and that used in this sense, the instruction was correct {McManus v. F'man, 4 lovja R., 283). And the same court, in a later case held, in respect to the requi- sites of a lawful fence, that a fence of a less height than four feet and six inches may, nnder the provisions of the statute, be a law- ful fence if it affords equal strength and security to the inclosure. And further, that in a contest respecting the lawful character of such a fence, the opinion of the fence-viewers as to its sufficiency is admissible in evidence {Phillies v. Oyster, 32 Iowa B., 257). A case came before the Supreme Court of the State several years ago, in which it appeared that A., having built a portion of a partition fence, served notice npon B., owner of adjacent land, requiring him to build half the division fence, B. complied, and by subsequent removals of portions of this fence, A. left B.'s land open to the intrusion of cattle, and B. was obliged to keep build- ing new pieces till he had built the whole length of the line. He then sued A. for the value of one-half of the fence. The court held, that B. might infer tliat if he built one-half the fence, A. would build the other half, or allow so much of the old fence to remain as was necessary as a division fence. And, therefore, it was further held, that it was properly left to the jury to determine whether A. received a common benefit from B.'s fence ; whether he had joined his own fence thereto, and whether it protected his land as it did B.'s ; with directions, if they found these facts existed, to return a verdict for the plaintiff {Schnare v. Gehman, 9 loiva i?., 283). But in a late case before the same court, it appeared that there was an agreement between adjoining owners to inclose their lands in common. The court held that the effect of the agreement was, for the time being, to release each party from the obligation to build a partition fence, and that cattle of one, when found damage-feasant upon the land of the other, were liable to be distrained, regardless of their owner's intention in turning them in upon his own land ( Winters v. Jacobs, 29 Iowa E., 115). And in another case before the same court, it appeared that an ox which was allowed by the owner to graze on a com mon entered a field which was not inclosed by a lawful fence, and died in consequence of eating corn therein. The court held, that the owner of the ox could not recover the value of the animal of STATL'TES OF IOWA RESPECTING FENCES. 471 the owner of the corn, because the latter was under no obligation to fence his field as against the public, the right to pasture cattle upon commons in the State of Iowa being permissive merely {Ilerold V. Meyers, 20 Iowa A*., 378). The statute of Iowa makes railway corporations liable for stock killed on the track of their roads at all points where they have a right to fence along the sides of the road {Laws of 1SG2, ch. 1G9). The Supreme Court of the State has held that this provision of the statute does not include a highway crossing {Seioard v. The Chicago, etc. Railroad Company, 30 Iowa H., 551). But the same court has held, that, where a railroad and highway run par- allel and intersect for some distance before crossing, the railroad company, in order to protect itself from liability, under the law, should build its fences to and erect its cattle-guards at the crossing {Andre v. The North-western Railroad Company, 30 Iowa R., 107). It is held, however, that a railroad company is not liable for stock killed on its track unless it has actual or implied notice that the fence was down or gate open, and a reasonable time thei-e- after to put the same in repair or proper condition {Aylesivorth v. The Chicago, etc. Railroad Company, 30 Iowa R., 459 ; Dewey V. The Same, 31 ih., 373). A i-ailroad company is liable, under the statute, for damages caused by the killing of sheep which have strayed on the track through a defective fence ei-ected by the company {Ilinman v. The Chicago, etc. Railroad Company, 28 Iowa R., 491). It seems that the statute does not apply in all cases where there is a strict or abstract right to fence the road of a railway company, if the injury occurs where to build a fence is improper {Davis v. Burlington, etc. Railroad Company, 26 Iowa R., 549). And in all these cases against railroad companies for injuries to cattle, etc., the burden of proof is on the plaintiff to show the liability of the company {Co?nstock v. Des Moines, etc. Railroad Company, 32 Iowa R., 370). It may be of interest to some to state, that the Supreme Court has held that a fence built upon public land, even by mistake, passes with the freehold to the purchaser from the government ; and if such fence is detached from the realty by a wrong-doer, the purchaser's right to it is not divested. And in such a case, ? removal of the fence by the party who made it, was held to con Btitute him a wrong-doer {Burleson v. Temple, 2 Grceneh R., 542). And the same court has held that rails, laid up in a fence inclos- 472 LA W OF FENCES. ing a field, or a portion of a field, are a part of the freehold, although the fence is not staked with stakes sunk into the ground {Smith V. Carroll, 4 Greene's i?., 146). This doctrine is not peculiar to the State of Iowa, but may be applied in any of the States where it is not changed by legislative enactment. CHAPTER XL. STATUTES OF THE SEVERAL STATES EESPECTING FENCES — LAWS OF MISSOURI — LAWS OF KANSAS — LAWS OF NEBRASKA, NEVADA, OREGON AND CALIFORNIA STATUTES AND DECISIONS OF THE COURTS UPON THE SUBJECT OF FENCES IN THOSE STATES. In the State of Missouri, the statute provides that all fields and inclosures shall be inclosed by hedge or with a fence sufliciently close, composed of posts and rails, posts and palings, posts and planks, palisades or rails alone, laid up in the manner commonly called a worm fence, or of turf with ditches on each side. Hedges are required to be at least five feet high, posts and plank, or palis- ades at least four and a half feet high ; those composed of turf must be at least four feet high, and trenches on either side at least three feet wide at the top and three feet deep ; and what is commonly called a worm fence, must be five feet to the top rail, and the corners must be locked with strong rails, poles or stakes. In case of trespass by horses, cattle or other stock, or hog, shoat or pig, upon an inclosure inclosed by a legal hedge or fence, the owner of the animal is liable for the first trespass to pay the actual damage, for the second trespass double damages, and for the third offence, the party injured may kill the beasts so trespassing, with- out being answerable for the same. But if the person damnified for the want of a sufficient fence or hedge, shall hurt or kill any such animal, or cause the same to be injured or killed, he is required to satisfy the owner of such animal in double damages, with costs. The statute further provides that no division fence or part of a fence, by which the lands of different owners are inclosed, shall be removed without the mutual consent of said owners, unless the party desiring to remove said fence shall first give six months' STATUTES OF MO. RESPECTING FENCES. 47;^ notice, in writing, to the owner or owners of his intention tc remove the said fence ; and after the expiration of the time of said notice, lie may remove the same (1 Wagner's Stat., ch. 71, §§1-7). From the fact that the right of the party to kill trespassing animals is given by statute, to enable him to justify such killing, lie must bring himself strictly and exactly within the provisions of the statute {Early v. Fleming, 16 Mo. R., 154 ; vide Canefox, V. Crenshaw, 2-i ih., 199 ; Iloux v. Seat, 20 ib., 178). There is another provision of the statute under which a party who has a good and substantial fence erected on the line of his land, and the person owning the lands adjoining, shall make or cause to be made an inclosure on the opposite side of such fence, so that the same may answer the purpose of inclosing his field or inclo- sure, may require the payment of one-half the value of so much of the fence as may serve as a partition fence. And if the par- ties fail to agree as to the value of such fence, the statute provides a way by which the matter shall be fixed by three disinterested freeholders of the town. The statute further requires every person owning a part of a partition fence, to keep the same in good repair, and any person refusing or neglecting to keep his or her portion of any such fence in good condition, is made liable for double damages which any party may sustain from such refusal or neglect to keep the same in repair. In case parties cannot agree in dividing or apportion- ing any division fence, provision is made for settling the same (1 Wagner's Stat., ch. 57). It is held that by the law of Missouri, the owners of cattle are under no obligation to fence them in, and damages cannot be recovered for the trespasses of such cattle, unless the fields tres- passed upon were legally inclosed {Gorman v. The Faeijic Bail- road Company, 26 Mo. R., 441). In a case before the Supreme Court of the State, it appeared that two adjoining proprietors of land built a partition fence with an agreement that each one should have the portion of the fence he should make, and one of the proprietors built his fence over the line and on the land of the other, who sold his tract to a pur- chaser who had no notice of such agreement. The court held that the purchaser was entitled to the fence {Climer v. Wallace, 28 Mo. R., 556). But in another later case, the same court hold 60 474 i^Tl^ OF FEXCES. that, wliere one of two coterminous proprietors erects a division fence, and, hj mistake, places it on the other's land, he is entitled to remove it to the true line within a reasonable time after dis- covering the mistake {3fatson v. Calhoun, 44: 3Io. B., 3GS). The Supreme Court of Missouri has held, that it is not the duty of a landowner to fence against animals ferce naticrce, but the owner of such animals must keep them at his peril, and he is liable for damage done by thefu on another's land, whether fenced or not {JJanefox v. Crenshaw, 24 Mo. R., 199). And it is here held by the same court, that a license of the grantor of lands to erect partition fences is not binding on a grantee without notice, and is revoked by the conveyance {IIoux v. Seat, 26 Mo. E., 178). The Supreme Court of the State has recently held that a rail- road company is, under the laws of Missouri, liable for injuries to horses, cattle, etc., only when it appears that the animal injured entered on the road, in consequence of the absence of fences or cattle-guards, at a point on tlie line of the road, which the com- pany was bound to secure in that manner {Cecil v. Pacific Rail- road Company, 47 Mo. R., 246). And the same court has even more recently held, that the legislature has the power to require a railroad company to fence in the land adjoining their track ; that such a statute is not unconstitutional as subjecting one person to expense for the sole benefit of another ; that its main and lead- ing object is the protection of the public, and that the protection of the property of adjacent proprietors is merely an incidental object {Trice v. Hannihal, etc. Railroad Company, 49 Mo. R., 438). In an action against a railroad company for killing a cow on its track, the proof showed that the accident occurred within the limits of a town corporation, as shown by the paper plat of the town, but in fact away from any street, and in an open prairie. The town corporation had been dissolved or suspended. The Supreme Court of Missouri held, that tlie i-ailroad company was liable for the actual damages arising from a failure to fence the track at the point of the accident, without proof of otlier negli- gence {Ila v. The Hannihal, etc. Railroad Company, 45 Mo. R., 469). But the same court has recently held, that the liabihty imposed by the Missouri General Statutes of 1865, chapter 63, section 43, upon a railroad company failing to fence its tracks, for " double the amount of all damages which shall be done by its STATUTES OF KAXS. RESPECTING FENCES. 475 agents, engines or cars, to horses, cattle, mules or other animals " on the road, is only incurred where the animal is directly injured ; as, by being run over ; that the statute does not extend to a case where the animal, which has strayed upon the track through a defect in the fence, becomes frightened b_y the approach of a train, and is injured in jumping off the track. And it was declared that such a statute should be construed so as to etiect its objects ; and that one main object is to protect passengers from the danger of collisions with animals {Lafferty v. The Hannibal, etc. Railroad Comjyany, 44 3fo. 7?., 21)1). In the State of Kansas, the statute requires that all fields and inclosures shall be inclosed with a fence sufficiently close, com- posed of posts and rails, posts and palings, posts and planks or palisades, posts and wire, rails alone, laid up in the manner com- monly called a worm fence, or turf, M-ith ditches on each side, of stone, or a hedge, composed either of thorn or osage orange. All fences composed of posts and rails, posts and palings, posts and planks or palisades, or posts and wire, must be at least four and one-half feet high; those of turf must be at least four feet high, and staked and ridered, with a ditch on either side at least three feet wide at the top, and three feet deep ; a worm fence must be at least four and one-half feet high to the top of the rider ; or it not ridered, it must be locked with strong rails, posts or stakes. The bottom rail, board or plank in any fence must not be more than two feet from the ground, in any township ; and in those townships where hogs are not prohibited from running at large, it must not be more than six inches from the ground ; and all such fences are required to be substantially built, and sufficiently close to prevent stock from going through. Fences composed of stone must be four feet high, and at least eighteen inches wide at the bottom, and twelve inches wide at the top, and hedges must be of such height and thickness as will be sufficient to protect the field or inclosure. Post and wire fences must be constructed of posts of ordinary size for fencing purposes, and set in the ground at least two feet deep, and not more than twelve feet apart, witii holes through the posts, or staples on the side, not more than fifteen inches apart, to admit four separate strands of fence wire, not smaller than number nine, and must be provided witli rollers and levers, at suitable distances, to strain and hold the wire straight and firm. All such fences, and all brooks, rivers, creeks 47G LAW OF FENCES. ' ditches and constructions equivalent thereto, in the judgment of the fence-viewers within whose jurisdiction the same may be, are deemed legal and sufHcient fences {Gen. Stat, of 1868, ch. 40, art. 1). It is further declared by the statute that the trustee, clerk and treasurer in each township in the State shall be fence-viewers in such township, any two of whom are authorized to discharge the duties of such officers under the act, and they are required, when requested, to view any fence and perform any duty required of them under the act, under a penalty of ten dollars for any neglect, and liability to the party injured in consequence of such neglect. Each fence-viewer is entitled to two dollars per day for the time necessarily employed {Gen. Stat., ch. 40, art. 2). The statute further provides that the ow^ners of adjoining lands shall keep up and maintain in good repair all partition fences between them, in equal shares, so long as both parties continue to occupy or improve such lands, unless otherwise agreed. If any party neglect to repair or rebuild a partition fence, or the portion thereof which he ought to maintain, the aggrieved pai-ty may complain to the fence-viewers, wlio, after due notice to each party, must examine the same, and if they determine the fence to be insufficient, they must signify it in Ma-iting, to the delinquent and direct him to repair or rebuild the same within such time as they may judge reasonable. And if such fence be not repaired or rebuilt as required, the complainant may do tlie work, and on the fence being adjudged sufficient by the fence-viewers, and the value thereof ascertained by such fence-viewers, he may recover the same of such delinquent. All controversies respecting partition fences must be settled by the fence-viewers, and their determina- tion will be binding on the parties. All assignments of the fence- viewers must be certified and signed by them, and must contain a certain description of the lands divided by such partition fence, and the names of the owners thereof. The owners may also agree in respect to their fences, but the agreement must be acknowledged or proved as conveyances of land, and recorded in the office of the register of deeds of the proper county. Provision is also made for a party building more than his share of a partition fence before any complaint made to the fence-viewers, may recover its value. All partition fences must be kept in good repair through- out the year, unless the owners of the land otherwise agree. No STATUTES OF A' A AS. RESPECTING FENCES. 477 person not wishing his land inclosed, not using it otherwise than in common, can be required to contribute to erect or maintain a partition fence, and where lands owned in severalty have been inclosed in common without a partition fence, and one of the owners is desirous to occupy his land in severalty, and the other refuses to divide the line where the fence should be built, and build his part of such fence, the party so desiring may apply to the fence-viewers and have the matter adjusted, "Where one party may desire to throw his land open and leave it unincloscd, he may remove his portion of the division fence, unless tlie adjoining owner or occupant will, within two months after the same shall be ascertained, pay therefor the sum found and ascertained by the fence-viewers. And no person not improving his land adjoining a partition fence that may have been divided, will be required to keep a partition fence, provided he shall give six months' notice of his determination not to improve his land, to the adjoining owners or occupants, but the notice can only be served between the first day of July and the first of October, and he may there- after remove his portion of the fence, unless the adjoining owner will pay him the value thereof as before provided. When land which has been uninclosed is inclosed, the owner thereof is required to pay for one-half of each partition fence between his land and the adjoining lands, the value to be ascertained and cer- tified by the fence-viewers, in case the parties do not agree. And if the party neglects to pay the value of the fence for sixty days, the owner of the partition fence may recover the same by action. Where the line upon which a partition fence is to be made is the boundary line between townships, the division of the fence must be made by the fence-viewers of the two townships. A par- tition fence may be laid upon the line, partly upon one side and partly on the other side {Gen. Stat., ch. 40, art. 3). Any person liable to contribute to the erection of a partition fence, neglecting or refusing to make or maintain the same, is not allowed to have and maintain any action for damages incurred, but will be liable to pay to the party injured all damages which shall accrue to his lands and crops, fruit trees and shrubbery thereon, and fixtures connected with said land, to be assessed by the fence-viewers. And where any horse, mule or ass, or any neat-cattle, hogs or sheep, or other domestic animals, shall break into any inclosure, the owner or occupant may apply to the fence- 478 LAW OF FENCES. viewers, and have tlie same examined and damages assessed, which may be recovered by a civil action, and the assessment of the fence-viewers is made prima facie evidence of the amount of damages. Where a fence has been built by mistake upon the land of another, the owner may remove it on to the line within six months after the line has been run, but he is required to pay any damage to the soil of the other party by reason of such fence. But it can- not be thus removed if it was made of timber or other material taken from the land on which it is built, until the owner of the timber is paid the value thereof; nor can it be removed at a time when it will throw open or expose the crop of the other party, and not until a reasonable time has expired after the crop is secured. Animals breaking into an inclosure sufficiently fenced may be taken up and restrained until the damages, and costs of keeping them are paid, and any person or corporation who shall injure any domestic animal upon premises not inclosed, is required to pay the damages {Gen. Stat.., ch. 40, art. 4). Osage orange plants set out, not less than one year old, around any piece of ground, not more than 160 acres, not less than ten acres of which shall be occupied and cultivated, is declared a law- ful fence, by the statute, and provisions are made as to how such hedges shall be cultivated and the like, and damages to such hedges by domestic animals may be recovered in the manner pre- scribed by the statute {Gen. Stat., ch. 40, act ajyproved March dd, 1868). It has been declared by the Supreme Court of the State, that the effect of the Kansas statute, relating to inclosures is, that before a person can recover for injuries done to his crops by roving stock, he must protect such crops by a lawful fence. Failing to have such fence, he is deemed by the law to be so negligent of his property that he cannot recover damages for trespass thereon, occasioned by reason of the defective fence. It seems to be the object of the law to permit stock to run at large on the prairie and relieve the owners from an action for damages, should they wander upon the land of another, unprotected by a lawful fence {LarJcin v. Taylor, 5 Kansas R., 433). But the Supreme Court of the State has held, that, although the Kansas legislature, by enacting certain fence laws, and laws regulating the running at large of stock, have impliedl}' declared that no action shall lie for STATUTES OF KEB. EESPECTIXG FEXCES. 4*9 injuries done to real estate by roaming cuttle, unless sucli fence be made-; tliey liave not enacted any law giving to a person rights upon another's land, whether it be fenced or not ( Union PaclJiG Railroad Company v. Rollins^ 5 Kans. i?., 167 ; and vide Cal- kins V, 21atheujs, lb., 191 ; Maltby v. Dlhel, lb., 430). And tlie same court has recently held that, in a township in which the hog law of the State has not been suspended, it is no defense to an action for damages done to a crop by hogs suffered to run at large, that the crop is not inclosed by a legal and sufficient fence. In such case, it is declared, there is no necessity of applying to the fence-viewers for a certificate and assessment of damages ( Wells V. Beal, 9 Kansas i?., 597). In the State of Nebraska, adjoining occupants or owners of land are required, each, to maintain a just proportion of the division fence between them, except the owner of either of the adjoining lands chooses to let his lands lie open ; in which case, if lie afterward inclose his lands, he is required to pay to the adjoin- ing owner, if his lands are inclosed, a just proportion of the value of the division fence, or he must immediately build his propor- tion of such division fence; all which matters may be determined by any two fence-viewers of the precinct. And all disputes aris- ing between owners of adjoining lands are to be settled by the fence-viewers of the county, who are required in such case to dis- tinctly mark and define the proportion of the fence to be made or maintained by each. The decision of the fence-viewers must be reduced to writing and filed in the office of the county clerk. If any person liable to contribute to the erection or reparation of a division fence, shall neglect or refuse, for the space of four weeks after notice in writing so to do, to make and maintain his proportion of such fence, the party injured may make or repair the sam« at the expense of the delinquent party, to be recovered by him with costs of suit; and such delinquent is also made liable to the party injured for all damages which shall accrue b}' such delinquency, to be determined by any two fence-viewers selected by the parties as in other cases of dispute. Any person disposed to do so, may remove his portion of any division fence, at any time between the first day of December and April, by giving the adjoining owner sixty days' previous notice of his intention to do" so. But if he shall remove such fence 480 ^^^ OF FENCES. •without giving tlie notice, he is made liable to the adjoining owner for any damage he may sustain by reason thereof. "Whenever a division fence shall be destroyed by lire, floods or other casualty, the same must be rebuilt by the parties bound to do so, within ten da^'s after being notified in writing so to do by the adverse party ; and if he neglects to build the same as required, the party injured may do so at the expense of the delinquent party, to be recovered with cost of suit. Fence-viewers may examine witnesses on all questions submitted to them. In all organized counties, justices of the peace are ex officio fence-viewers of the county. Structures used to inclose lands are deemed lawful fences by the statute of j^ebraska in the following cases : A rail fence consist- ing of six rails, secured by stakes at the end of each panel, well set in the ground, with a rider upon the stakes ; a board fence, consisting of not less than three boards of at least five inches in width and one inch thick, well secured to posts not more tlian eight feet apart ; a rail and post fence consisting of three rails, well secured at each end to posts, not more than seven feet apart; a wire fence consisting of four wires of number nine fencing wire secured to posts not over one rod apart, with a stake between each two posts to which the wire shall be attached ; such fences all being five and one-half feet in height, in their construction, the spaces between the boards, etc., must not be more than one foot ; a hedge fence of osage orange consisting of one row of plants eight inches apart at the surface of the ground; a hedge fence of willow or other trees consisting of one row standing not more than fifteen inches apart at the surface of the ground, and two and one- half inches in diameter and six feet in height; and a fence known as " "Warner's Patent," four and a half feet high, consisting of five boards, five inches wide, and one inch thick. The owner of domestic animals trespassing upon lands inclosed by a lawful fence is liable for the damages. And if any person sow grain, or plant a crop, without iiiclosing the same with a sufficient fence, he is made liable for all damages in consequence thereof, except in those counties where animals are restrained from running at large by legislative enactment {Gen. Stat. o/*1873, ch. 2, §§ 18-38).* * A correspondent of the Chicago Times, writing from Nebraska City, under tlate of November 18th, 1873, affirms that iu Nebraslia, under the general law of the State, they fence cattle in, rather than out, and that they are not "con STATUTES OF NEV. RESPECTING FENCES. 481 Kailroad corporations are required to fence their roads by the Nebraska statutes, and for their neglect to do so, are made liable for all damage {Gen. Stat., ch. 2, § 145). And the statute makes it a criminal offense to injure or destroy any fence inclosiire {Geti. Stat., ch. 58, § 103). By the statutes of Nevada, if any horse, mule, jack, jenny, hog, sheep, goat, or any head of neat-cattle, shall break into any grounds inclosed by a lawful fence, the owner or manager of such animal is made liable to the owner of the premises for the actual damage, and for a second or subsequent offiense for double dama- ges. But no person is justified in injuring any trespassing animals, but the owner of lands on which animals may be founds trespassing may take such animals up and keep them at the' expense of the owner, atYer due notice, as provided by the act,. and have the same disposed of to pay the damages and expenses. Where two or more persons shall cultivate lands under one inclosure, neither of them can lawfully place or cause to be placed any animal on his or her ground, to the injury or damage of the other party, under penalty of paying actual damage for the iirst offense, and for every subsequent repetition, double damages, to be recovered in any court having jurisdiction (2 Compiled Laws of 1873, pages 459, 460). These seem to be the only provisions of the statutes of Nevada upon the subject of fences, found by reference to the alphabetical index of the compiled laws of the State, from which it would seem, that no person is peremptorily strained by law to make fences," around their cultivated lands* On the con- trary, he declares that " every owner of live stock is required by the statute to keep his animals 'herded' by day and 'corralled' or penned up at night." This he regards, in a prairie State, as of vast advantage, and he says that it is satisfactory to the people resident there, and "attractive to those seeking new homes, because it directly spares them an unprofitable, unproductive outlay of monej'." This policy may prevail in those counties where "animals are restrained from running at large by legislative enactment ; " but by the general law of the State, it would seem that any person sowing or planting a field with- out inclosing it with a lawful fence, is liable for the consequences resulting from his neglect so to fence. In this case, therefore, the person, sowing or planting liis field is essentially " constrained by law " to build a fence around his culti- vated land. Doubtless, it would be a great saving to agriculturists in the country, if the fencing system could be abolished, unless an equal outlay was incurred in some other way. Whether it would be cheaper in the end for iarmers to keep their animals "herded " by day and " corralled " at night, thaw lo fence the cattle out of their cultivated fields, may be a question. 61 482 LAW OF FENCES. required to maintain fences about liis lands, but if parties neglect to maintain partition fences, they must take care of their stock, an'i infererdiaUy, it would seem that no person could recover damage for cattle trespassing upon lands not inclosed. The stat- ute speaks of a "lawful fence," but it does not appear to define what shall be deemed such. In tlie State of Oregon, any person who shall willfully break down or destroy any fence or hedge not his own, or inclosing land not liis own, upon conviction thereof, is liable to be imprisoned in the county jail, not less than three months, nor more than one year, or by a fine not less tlian ten dollars, nor more than $500 {Gen. Laws, Criminal Code, cA. 44, §570). And in case fence rails shall be removed by high water and lodged upon the lands of another, the owner of such rails may proceed and take them away, unless the proprietor of the land where they are thus lodged refuse his consent to his removing them, in which case, the right to such rails may be settled by arbitration {Gen. Laws, ch. 16, tit. 4). There are no other provisions respecting fences in the State of Oregon to be found by reference to the alphabetical index to the compiled laws of the State, and if there are none, the com- mon law upon the subject, will doubtless be regarded as in force there. In the State of California, every inclosure is deemed a lawful fence, which is four and a half feet high, if made of stone ; and if made of rails, five and a half feet high ; if made upon the embankment of a ditch three feet high from the bottom of the ditch, the fence must be two feet high ; said fence to be substan- tial and reasonably strong, and made so close that stock cannot get their heads through it, and if made to turn small stock, suffi- ciently tight to keep such stock out. A hedge is considered a lawful fence if five feet high and sufficiently close to turn stock. If any horses, mules, jacks, jennies, hogs, sheep, goats, or any head of neat-cattle shall break into any grounds inclosed by a lawful fence, the owners of such animals are made liable to the owner ©f said premises for all damages, and if the trespass is repeated by neglect of the owners, for the second offense, they are iliable to pay double damages. Damage done to animals upon lands uninclosed with a legal fence by the owner, the person doing the same is made liable for. Lawful fences in the State are described as follows : "Wire fence STATUTES OF CAL. EESPECTIXG FENCES. 483 made with posts, not less than twelve inches in circumference, set in the ground not less than eighteen inches, and not more than eight feet apart, with not less than three horizontal wires, each one-fonrth of an inch in diameter, the first eighteen inches from the ground, the other two above this one, at intervals of one foot between each, all well stretched and securely fastened from one post to the other, with one rail, slat, pole or plank of suitable size and strength, securely fastened to the post not less than four and a half feet from the ground. Post and rail fence made of posts of the same size and at the same distance apart, and the same depth in the ground as above, with three rails, slats or planks of suitable size and strength, the top one to be four feet and a half from the ground, the other two at equal distances between the first and the ground and securely fastened to the post ; a picket fence of the same height as the others, made of pickets, each not less tlian six inches in circumference, not more than six inches apart, driven in the ground not less than ten inches, all well secured at the top by slats or caps. Ditch and pole fence must be made of a ditch not less than four feet wide on top, and three feet deep, embankment thrown upon the inside of the ditch, with substantial posts set in the embankment not more than eight feet apart, and a plank, pole, rail or slat securely f\istened to said posts, at least five feet high from the bottom of the ditch. Pole fence four and a half feet high, with stakes not less than three inches in diameter, set in the ground not less than eighteen inches, and where the stakes are placed seven feet apart, there must be not less than six horizontal poles well secured to the stakes ; if the stakes are six feet apart, five poles ; if three or four feet, four poles ; if two feet apart, three poles, and the stakes need not be less than two inches in diameter, if one foot apart, one pole, and stakes need not be more than two inches in diameter, so long as the stakes and poles are securely fastened and in a fair state of preservation. Hedge fence is deemed lawful where, by reliable evidence, it is proved equal in strength, and as well suited to the protection of inclosed lands as the other fences described. A brush fence four and a half feet high, and twelve inches wide, with stakes not less than two inches in diameter, set in the ground not less than eighteen inches, one on each side, every third foot tied together at the top, with one horizontal pole tied to the outside stake five feet from the ground. And any other fence which by 484 ^^^^ ^^ FENCES. reliable evidence, shall be declared as strong, substantial, and as well suited to the protection of inclosures as the other fences named, is declared lawful, except in the counties of Sorrena, Nepa, El Dorado, Yuba, and Maria, in which counties the law varies the kinds of fences a little, and also allows a worm fence of certain make. Where a fence has been erected by any person on the line of his land, and the opposite owner shall make an inclosure, so that such fence shall answer for both grounds, the latter is required to pay for one-half the fence erected, as aforesaid. Partition fences are to be erected by the parties equally, and to be placed on the line of the lands as near as practicable, and if one party refuses or neglects to build his share, provision is made for the other party to build the whole and recover half the value of the same of the other, but no such fences are necessary except the lands are inclosed. Certain counties of the State are excepted out of this provision of the statute. Where necessary such partition fences must be maintained throughout the year. If the fence gets out of repair, and the proper party neglects to repair it, the other party may give the notice specified in the statute, and repair the same and recover the value of the delinquent party. There are statutes of a special character affecting certain specified counties, varying the rules binding in other parts of the State, which need not be referred to here (1 Gen. Laws of 1864, §§ 3029-3062). Another provision of the statute makes a fence constructed of posts of a reasonable size and strength, firmly set in the ground, not more than twelve feet apart, if a rail or picket fence, and not more than eight feet apart, if a plank fence, the rails or plank of reasonable size and strength, securely fastened to the posts to the height of four and a half feet and reasonably close ; if a picket fence, the pickets of ordinary size and strength, strongly nailed to a rail above and one below, or driven into the ground and nailed to a rail above reasonably close, and four and a half feet high ; if a ditch, the ditch three and a half feet wide at the top and three feet deep, the embankment being on one side of the inclosure, with a rail, plank or picket fence on the embankment, to the height of three feet ; or any other kind of fence equivalent in height, quality and strength, a lawful fence; and owners of ani- mals trespassing on lands inclosed with a lawful fence are liable for the damages (1 Ge7i. Laws, §§ 3047, 3048). And by another STATUTES OF CAL. RESPECTING FENCES. 485 act, any person willfully or maliciously tearing down fences to make a passage tlirougli an inclosure is liable to be indicted for a misdemeanor, and punishable by a tine not less than fifty dollars nor more than §500 {Laws of 1871-2, ch. 280, § 2). The Supreme Court of the State has held that a person cannot lecover for injuries done by another's cattle breaking into his close, unless such close be inclosed by a fence such as is prescribed by statute, or at least by one equivalent thereto, in its capacity to exclude them iComerford v. Dupuy, 17 Cal. i?., 308). And the same court has more recently held, that the California acts {Stat- ute of 1861, 523, and of 1867-8, 426) restricting the herding of sheep, were not intended to prohibit the free, voluntary ranging at large of sheep over and upon uninclosed public or private lands. That they were intended to prohibit persons, owning or having the charge of sheep, from driving them to and collecting them upon the uninclosed lands of another. Where sheep, without the knowledge of the owner, stray into uninclosed fields, the owner is held not to be liable for the injury done by them {Logan v. Ged- ney, 38 Cal. R., 579). In i-espect to the obligation of railroad corporations to fence their roads in California, the Supreme Court of the State has recently declared that, where an unfenced line of railroad passes through a field, in which the live stock of the owner or occupier of the field are running, and such stock stray upon the road and are killed, ^fimit down or lopped, the pro- perty in such cuttings belongs to him (1 Roll. Ah\, 181). How- ever, if he abuse his authority in this respect and grub up or destroy fences, whereby the identity of the property is destroyed and the inheritance injured, he may subject himself to an action in the nature of waste at the suit of the landlord, or lie may be restrained by injunction {Berriman v. Peacock, 9 Bing. R., 384). So if there be a quickset fence of white thorn, and the tenant stub it up or suffer it to be destroyed, for this and a like restric- tion an action in the nature of waste lies, although it is thought that the tenant may stub up bushes, furze and thorns for meliora- tion, for this would be accounted good husbandry {Coke on Zitt., 5Sa). In a case in the English Court of Exchequer Chamber, an indenture of demise contained an exception of all timber, timber- like and other trees, bushes and thorns, other than such bushes and thorns as should be necessary for the repair offences; and the lessee covenanted to keep the fences in repair during the term, finding all materials, except rough timber, stakes and bushes, which if growing on the premises, the lessor himself covenanted to provide. The court held, that the provision as to bushes and thorns necessary for repairs was not an exception out of the excep- tion, but that all trees, bushes and thorns were excepted out of the demise, whether part of the fences or not, or whetlier neces- sary for repairs or not ; and the court considered that the tenant could not take any of the said thorns and buslies for repairs, until they were set out to him by the landlord pursuant to his cove- nant {Jenny v. Brook, 6 Queen's Bench R., 323). FENCES, AS BETWEEN LANDLOED AND TENANT. 507 It is the well settled doctrine of the English courts, that the mere relation of landlord and tenant is a sufficient consideration for the tenant's promise to manage his farm in a husbandlike man- ner, and that one of the duties devolving upon him in consecpience of this implied promise, in the absence of any express agreement to the contrary is, that he shall maintain the fences of thepro- perty demised to him ( Vide Powley v. Walker^ 5 Term R., 373 ; Cheetham v. Ilampsori, 4 ih., 318). And for this purpose, as is declared by an old and approved elementary authority, the tenant is entitled to reasonable estovers, and may cut timber to keep the walls, pales, fences, hedges and ditches in the same state of repair in which he found them. But he cannot make new fences or other erections, without being liable for waste. If there is no proper wood on the premises for repairs, he is not obliged to pur- chase other wood, but is discharged from his liabilities in this respect {Coke on Litt., 41 h ; 53 a, 53 h). But it has been held by the English Court of King's Bench, that a plea to a declara- tion against a tenant for not using the premises demised to him in a husbandlike manner, and for not repairing fences, that there was no proper wood (without specifying it) which the defendant had a right to cut for repairs, and that the plaintiff ought to have set out proper wood, without averring any request or custom of the country in this respect, was bad ( Whitfield v. Weedon, 2 Ckittifs R., 685). It seems that the question whether estovers are good or other- wise depends upon the application which is made of them, that is, whether they are applied to the benefit of the estate upon which they are cut. It is not competent for a tenant to cut down estovers on one estate and apply them in making repairs upon another {Lee v. Alston, 1 Bro. C, C, 196 ; 8. C, 3 ih., 37). If he sell the timber cut, and with the produce pay the wages of workmen, or even if he exchange it for timber better suited for tlie repairs wanted, or better seasoned, according to the English authorities, he is liable to an action of waste ( Vide Leiois BowWs Case, 11 Coke's R., 79 h ; Simmons v. Norton, 7 Bing. R., 640; Attorney- General v. Stowell, 2 Austr. R., 601; Whitfield v. Bewit, 2 R. Wms. R., 242 ; Gower v. Eyre, Cooper's 0. C, 156). And he must not cut down timber for future repairs, nor for repairs which are wanted through his own default, for to cut tim- ber to repair waste is double waste. But where the lord of a 508 -^^1'' OF FENCES. manor brought an action of ejectment against a tenant for life for cutting down timber, which was not immediately applied in remedying existing defects, and was rather in excess of the quantity required, the court refused to disturb the verdict of a jury, which found that timber was cut hona fide for the purpose of making necessary repairs, and was intended to have been so applied in due course. A lessee for life or years who takes reasonable estovers for repairing hedges and fences, is not chargeable with waste by reason of his having entered into an express covenant to repair at his own charge ; or by reason of the lessor having covenanted to do the repairs himself. And where the lease contains a clause empowering the lessee to take hedge — bote by assignment, it appears that he may take it, although it be not assigned, for such a provision does not take away the power which the law gives him ; but it is otherwise, if tlie lessee covenants negatively that he will not take the wood, until it is assigned to him by the lessor. These points have long been settled in England, and may be said to be almost elementary. The authorities are collected in Mr. Hunt's work on fences, but they need not be cited here. The principles are all as applicable in this country as in England ( Vide Hunt on Fences, 12S). According to the doctrine laid down in an early Massachusetts case, it is not waste for a tenant for life to cut down timber trees for the purpose of making necessary fences or repairs on the estate, and sell them, and purchase fencing material with the proceeds for such fences or repairs, provided this be proved to be the most economical mode of making the fences or repairs {Loornis v. WiTher, 5 Mass. E., 13). In such cases, it is a question for the jury to decide, whether the trees were cut down for the purpose of repairing the fences upon the premises hona fide, and were in a course of application for that purpose. This was expressly laid down by Lord Ellenborough, C. J., in the English Court of King's Bench in the early part of the present century, and the rule is uniformly adopted both in England and in this country {Doe, ex dem. Foley v. Wilson, 1 1 Easfs M., 56 ; and vide Jackson v. Brownson, 7 Johns. R., 227 ; McCay V. Wait, 51 Barb. R., 225). But although the tenant may be under obligation to keep up the fences upon the demised premises, and for the purpose of discharging the obligation, has a right to take the material for the fences from the land, he will not FENCES, AS BETWEEN LANDLORD AND TENANT. 509 be justified in going on and taking the same indiscriminately, without reference to what may best be spared for the purpose. In cases of wood for fire bote, it has been held that the tenant is first bound to cut the dry, fallen, or perishing wood, and the same principle^ should govern the taking of timber for fencing material {Yide Jackson v. Brownson^ Y Johns. IL, 227). The doctrine of the case of Jackson v. Brownson is, that a tenant for life of farming land is entitled to cut down and use so much of the standing timber on the farm, as may be necessary for fuel, for making and repairing fences and buildings; and if the land is wild and imcultivated, he may cut down so much of the timber as may be proper for the purposes of cultivation ; but he may not remove it so far as to materially lessen the value of the inheritance. This doctrine has been expressly sanctioned by the Court of Appeals of the State of New York ; but, of course, no timber should be cut which it is necessary to retain for the use of the farm, so long as there be other timber perishing, or other- wise sufficient for the maintaining of the fences upon the premises demised ( Yide Yan Deusen v. Young^ 29 N. Y. B., 9). A ten- ant for years has the right, as well as a tenant for life, to cut wood on the demised farm for fires and repairs, within the rules stated, provided always, that the quantity cut is not unreasonable {Mather v. Shar_pe, 14 Allen^s B., 43). And, as suggested, it is well settled that a tenant for life, of farming land, is entitled to cut down and use so much of the timber on the farm, as may be neces- sary for fuel, and to keep up the buildings and fences ; and whilo he must not be indiscriminate in his selection of the timber for use, he is under no obligation to use decaying timber and down trees, provided they are unfit for use or would cost more than their value to secure. The law does not demand such an unreason- able exercise of his privileges by the tenant, or impose so harsh a rule as that ; and while it prohibits waste, it also permits a reason- able enjoyment of the rights which are conferred upon the tenant by the grant under which he holds {Butherford' \ . Aiken, 2 N'. Y. S. C. 7?., 281). As has been before intimated, the tenant by virtue of his occupancy, is, as a rule, liable to third persons for the consequences resulting from a neglect to keep the fences upon the demised premises in repair, to the same extent that his landlord would be, if in possession himself {Taylor v. Whitehead, 2 Doug. B., 745). Where the landlord has taken upon himself the burden 510 LAW OF FENCES. of keeping the fences in repair, the rule has been held different. But it must be remembered, that the lessor is never bound to keep the fences upon the demised premises in repair, except by force of an express contract or covenant so to do {Brewster v. De Fre- ■mery, 33 Col. M., 341). And when he has bound himself to make such repairs, he cannot be made liable for their cost to the tenant, when made without giving any notice to the landlord to make them {Fairot v. Meitler, 21 La. An. R., 220). But where there is no stipulation between the parties to a lease on the subject of repairs, the tenant is bound to keep the premi- ses in repair, and this doctrine extends to the subject of fences upon the premises demised {Long v. Fitzsimmons, 1 Watts (& Serg. B., 530). And unless a promise to repair be made by the landlord in consideration of the lease, the tenant cannot give evi- dence of it; or of a neglect by the landlord by way of set-off in a suit for rent {Phillips v. Ifimger, 4 Wharton's S., 226, hut vide Caulk V. Everly^ 6 ib., 303). It is never in the power of a tenant to make repairs at the expense of his landlord, unless there be a special agreement between them, authorizing him to do it. The tenant takes the premises for better and for worse, and cannot involve his landlord in expense for repairs, without his consent {Mumford v. Bi'ouan^ 6 Coio. i?., 475, and vide Broicn v. Bur- rington, 36 Vt. E., 40; Fstep v. Estep, 22 Lnd. E., 114). Upon a letting of real estate, lands or tenements, there is no implied warranty that they are fit for the use for which the lessee requires them. The maxim of caveat emptor applies to the contract of hiring real property, as it does to the transfer of all j^roperty real, personal or mixed, with one or two recognized exceptions {McGlashan v. Talhnadge, 37 Barh. Li., 313). And where there is no stipulation in the lease in respect to repairs, the tenant takes the risk of the future condition of the premises and is bound to keep them in repair, as before stated {Lihhey v. Tolferd, 48 ILaine B., 316). Sometimes the lessee is expressly bound by his covenants in the lease, to maintain the fences upon the demised premises, during the term. In such cases no doubt exists as to the liability and obligations of the tenant, although it sometimes becomes a ques- tion as to the extent of the liability. A covenant on the part of the lessees in a lease, " to keep the buildings and fences in good repair, except natural wear and tear," was recently held by the FENCES, AS BETWEEX LANDLORD AND TENANT. 511 ^ Supreme Court of the State of New York to bind tlieiii to rebuild in case of accidental destruction by fire or otherwise. It was remarked by the court that some authorities hold that where the covenant by the lessee is to repair and leave the premises in the same state as he found or received them, or language to that effect, he is merely to use his best endeavors to keep them in the same tenantable repair ; and is not bound by such covenant to restore buildings or fences destroyed by fire or otherwise during the term, without his fault. But it was declared that where the covenant is to repair or keep in repair generally the buildings and fences, without the qualifying words mentioned, all the authorities hold that it requires the tenant to rebuild the fences, etc., in case of the accidental destruction of the same {Mcintosh v. Toioer, 49 Barb. M., 550, 555). This is the well settled doctrine of the courts. But in all the adjudicated cases where this liability has been held to attach to the lessee he has entered into an express covenant to repair, and a simple covenant on the part of the lessee to surrender up the premises at the expiration of the term in the same condi- tion they are in at the date of the lease, natural wear and tear excepted, with no covenant to repair or rebuild, does not bind the tenant to rebuild fences in the place of others which have been destroyed by fire or other accidental causes during the term ot the lease. In this latter case the tenant is merelj^ required to use his best endeavors to keep the fences on the premises in the same state of repair as when he entered upon the lease. Natural and unavoidable decay is no breach of such a covenant ; but a cove- nant to repair generally requires him to uphold the fences. This seems to be the doctrine of the courts, both in this country and in England ( Vide Hitchins v. Warner, 5 Barb. B., QQQ, and the authorities cited by Sill,, J., in giving the opinion of the court). It may be added that in all cases where the lessee is bound by the terms of his lease to keep up the fences upon the leasehold premises, his assignee is under the same obligation that he was prior to the assignment of the terra, A covenant to keep the fences upon the leasehold premises in repair runs with the land ; and such a cove- nant will descend to the heir of the covenantor, even though the heir is not named in the lease ; and he may sue for any fresh breach thereof, if he is entitled to the reversion {Lougher v. Williams, 2 Lev. R., 92). And on a covenant to repair, on a breach thereof by the tenant or his assignee, the heir of the covenantee has the 512 i^ir OF FENCES. action, tliongli the premises were out of repair during the lifetime of tlie ancestor, and continued so afterward ( Vivian v. Campiov^ 1 Salk. R., 141 ; S. C, 2 Nev. & Mann, i?., 550). And a cove- nant, on the part of the landlord, to renew the lease, cannot be enforced by the tenant or his assignee where there is a breach ot the obligation to keep the fences in repair. For example, in a case before the Court of Exchequer of Ireland, where a bill was Hied to compel the renewal of a lease, and it appeared that the fences upon the premises had not been kept up as required by the lease, the court held that the landlord was not bound to execute the renewal until the fences were put up by the tenant pursuant to the requirements of the lease {Douglas v. McCausland, Hayes* i?., 254). And the English Court of Chancery has frequently held that a tenant who has been guilty of a breach of the covenant to keep the premises demised in repair, for which the lessor has a right of reentry, is not entitled to a specific performance of an agreement for a lease, or of a covenant for renewal {IJill v. Bar- clay, 18 Ves. Ji., 56 ; White v. Warner, 2 MerivaWs H., 459 ; and vide Gourlay v. Duke of Somerset, 1 Ves. dc Bea. R., 68 ; Lovat V. Lo7'd Ranelagh, 3 ih., 29). The Law of Boundaries, Fences and 'Window Lights. Fart III. OF THE LAW OF WINDOW LIGHTS. 65 CHAPTER XLIY. [MPORTANCE AND NATURE OF THE EIGHT TO LIGHT AND AIK — • SUGGESTIONS IN RESPECT TO THE RIGHT OF PROSPECT OR VIEW AND PURE AIR RIGHT TO WINDOW LIGHTS THE SAME IN CITY AND COUNTRY. The right to the undisturbed enjoyment of property in lionses and otlier buildings, and more especially that which pertains to the free access of light and air, has long been a subject of priniai-y importance in the countries of the old world, but until within the last few years it has not been regarded with any peculiar interest in the American States, although it has now become, in this country, a subject of growing importance. When a country is new, and land is comparatively cheap, the disposition is small to crowd the buildings of a town or city into close proximity with each other, and, as a consequence, parties have little or no concern in respect to the obstruction of light and air. But, as the popula- tion increases, and land becomes more expensive, the desii'e is immediately apparent to crowd the buildings more closely together, and the subject of light and air becomes more imj)ortant. The amazing rapidity with which cities have sprung up in certain portions of this continent, within the last live and twenty years, and the gigantic growth which has attended some of the older cities of this country, within the same period, together wuth the marvel- ous increase in the value of the lands upon which many of those cities are located, have made a thorough knowledge of the right to the enjoyment of light and air a matter most desirable, if not of abiding necessity. Cases have been occurring, more or less frequently, of late years, in the American courts, in which the law of window lights has been thoroughly examined, and the whole question elaborately discussed, so that a very satisfactory conclu- sion may be arrived at in respect to the principles by which the subject is governed. The right to window lights is generally considered as the privi- lege which a party enjoys of having light and air transmitted over 516 i^TF OF WINDOW LIGHTS. the adjoining premises on to his own. By the Eoman law, light and air were considered as some of those things wliich had the name of res communes, and which were defined to be " things, the property of wliich belongs to no person, but the use of all ;" and they are so regarded by the English law. In this respect, light and air are placed in the same category with running water, which may be appropriated and enjoyed by every one as opportu- nity offers, but no one can acqiiire an absolute property in it. Upon this principle, it is obvious that no person can have the right to the possession of all the light and air wliich in all future time will pass over a given space. In other words, no one can acquire a permanent property in light and air ; but the rather, the right to them consists in some obligation imposed on the owner of an adjoining space, to refrain from using the same so as to interfere with the light and air which will pass over it to the tenement to which the right is annexed. This obligation of the adjacent owner that he will not so use his own land as to obstruct the access of light and air to the adjoining house or other building, is one of that class of rigiits know to the law as easements, and an easement is defined by a popular English writer as "a privilege without profit which the owner of one neighboring tenement hath of another, existing in respect of their several tenants, by which the servient owner is obliged to suffer, or not to do something on his own land for the benefit of the dominant owner" {Gale on Ease- ments, 3f/ ed., 5). Of course there must be two distinct tene- jnents — the dominant, to which the right belongs, and the servient, on which the obligation is imposed — to constitute an easement. The right to window lights is regarded as a continu- ous easement. An easement is an incorporeal right, and Sir Edward Coke says, " that a thing incorporeal cannot be appurte- nant or appendant to another thing incorporeal " {Colce on Litt., 121 h). But Mr. Gale considers that the true test of what things can be appurtenant to what is the propriety of the relation between the principal and the adjunct, which may be found out by considering whether they so agree in nature or quality as tc be capable of union without any incongruity {Gale on Ease- ments, 9). Whatever may be thought of these opinions, it is very certain that this particular easement of the right to window lights, can only be claimed as accessory to a tenement. With that tenement the easement is transferred ; and when that tene NATURE OF THE RIGHT TO LIGHT AXD AIR. 517 ment is permanently destroyed, the easement ceases to exist {Latham on Window Ligfits, 8). The right to window lights is altogether a different affjiir froir the right sometimes claimed of prospect or the view of external objects. The English law has never regarded prospect as a right capable of being annexed to a tenement as an easement, and cer- tainly it has never been so considered by the American law. Its enjoyment can only be secured by express covenant; and the burden of this will not run with the servient tenement. Said Wray, C. J., in a very old English case : " That for prospect, which is a matter only of delight and not of necessity, no action lies for stopping thereof, and yet it is a great recommendation of a house if it has a long and large prospect" {Aldred^s Case, 9 Col-e's IL, 57 J); and, in another early case, Twisden, J., said; " Why may I not build up a wall that another man may not look into my yard ? Prosj)ects may be stopped, so you do not darken the light" {Knoides v. Richards, 1 jYod. R., 55 ; S. C, 2 Ktl. R., 642). And Lord Ilardwicke, in a case where the Court of Chancery was invoked to prevent the defendants from obstructing the plaintiffs' prospect, said : " You come in a very special and particular case on a particular right to a prospect. I know no general rule of com- mon law which warrants that, or says, that building so as to stop another's prospect is a nuisance.. Was that the case, there could be no great towns, and I must grant injunctions to all the new buildings in this towm"" {Attorney- General v. Doughty, 2 Yes., Sen., R., 45). And in another case, the same eminent Lord High Chancellor said : "It is true that the value of the plaintiff's house may be reduced by rendering the prospect less pleasant, but that is no reason for binding a man from building on his own ground" {Fishmongers' Company v. East India Covqyany, 1 Dick. R., 163). And Lord Chancellor Cottenham observed : " It is not, as is said in one ease', because the value of the property may- be lessened, and it is not,, as is said in another, because a pleasant prospect may be shut out, that the court is to interfere ; it must be- an injury very different in its nature and its origin to justify such an interference" {Squire v. Campbell, 1 Mylne & Craig's i?.,. 486). But it is needless to cite authorities to the contrary as none can be found, either English or Ameriiean,. t®' sliow that ai right to prospect can exist, except by obligation foumled in per sonal contract. 518 LAW OF WiyDOW LIGHTS. So also the riglit to window lights has no connection with the right sometimes attempted to he established of having the view from outside objects within a window secured from interruption. In cases of this kind the same rule applies as in the case of obstruct- ing the view of external objects. Injury may be done to a tenement by reason of the erection of another in such a manner as to afford a view through the windows or openings of the former or viceversa ; but if so, it is simply injuria absque damnum, an injury for which the law affords no remedy. Said Yice-chancellor Wood in a comparatively late case before the English Court of Chancery : " So far as a man standing outside the window would be prevented from getting a view of the goods thus exhibited, the case would stand on the same footing as an obstruction to light; a person must not cause an injury in creating such an obstruction. If a shopkeeper wished to show his goods within the shop, he had a riglit to the free access of light for the purpose, and he apprehended it was the same if he wished to show the goods outside by means of transparent medium. This, however, did not apply to the pre- sent case ; all that could be complained of was that persons could not see the goods so soon as they might if the alterations objected to had not been made. When they came in front of the shop the goods would be seen just as well as before. So, if a sign were hung up in front of tlie shop, such as a pawnbroker's balls, wliich could be seen from a long distance, there was nothing to prevent a neighbor building on his own ground in such a way as to obstruct the direct view of such a sign " {Smith v. Deven, 35 Law. E., N. S., Ch. 317). And in a case before Kindersley, Y. C, in which it was complained that the erection of a gasometer would shut out the view of the public from the plaintiff's premises, his honor observed : "As to the ground that the gasometer will prevent the view of persons in Ann's Place, it is impossible tliat that can be a ground for an injunction" {Butt v. Imperial Gas-light and Coke Comiymy.^ 14 WeeMy Beporter, 508). The result is that the owner of a tenement may possess the right to window lights, and yet have no power to prevent erections which simply interfere with his prospect, or which may impede the view of objects in the windows by passersby. And again, the windows of an adjacent tenement may command a view of the interior of the neighboring house, through tlie windows of the latter, so that the privacy of the tene- ment may be invaded and its value thereby lessened ; but for this NATURE OF THE RIGHT TO LIGHT AXD AIR. 519 the law gives no remedy, fur it is not considered a wrong fur which any redress is given. It was observed in a comparatively recent case in the English Court of Chancery that " the court has nothing to do with the diminution of the value of a house caused by its windows being overlooked and its comparative privacy destroyed " {Johnson v. Wyatt, 2 De Gex, J. & S. R., 18; S. C, 33 Law J. R., N. S., (Jh. 394). And it was observed by Blackburn, J., in a recent case before the English Court of Common Pleas : " It is quite true that the opening of a new widow looking into the grounds of another may not only annoy that neighbor, but may often affect the value of liis property. But the law of England considers that no injury" {Jones v. Tapling, 12 Com. Bench R., JV. S., 842; /S. a', 31 Law J. R., N. S. C. B., 354). There is a form of words sometimes found in the cases on this subject, viz., " invasion of privacy by opening windows ; " but that is not treated by the law as a wrong for which any remedy is given. The builder of a house, however close it may be to liis neighbor's land, however numerous its windows, is entitled to enjoy whatever light and air he can receive through its windows, and no one can complain of him for 60 doing. It has sometimes been affirmed and argued that there is no analogy between the case of the right to water and the riglit to light and air. But there is more analogy between these than in the other cases considered. Indeed, it has sometimes been judici- ally declared, that there is as much a property in light and air as in water, or any thing else which one has a right to enjoy. Said Vice-chancellor Kindersly, in giving judgment in a case before him: " The plaintiff has a right to have his property protected ; and on principle, the quantity of light which he has a right to receive from his ancient windows, as a servitude over a servient tenement, is as much a part of his property as land, or a house, or any other species of property " {Martin v. Ileadon., 2 Law R. Eq.^ 425). It is nevertheless true, as has been before stated, that light and air are things in which no permanent property can be gained, but that every man who has the opportunity may make use of and enjoy them, and may occupy them so long as the opportunity continues. But from the earliest period of English law, such occupancy when continued without interruption for a specified length of time, has drawn with it a right to the continu- 520 i^TT OF WINDOW LIGHTS. ance of the same enjoyment, and has imposed on the owner over whose land the access of light and air has been enjoyed the obliga- tion of not making such a use of his land as to interfere with that enjoyment. " Cujus est solum., ejus est usque ad ccelurn,^'' is a maxim of the English law, which is also recognized in this country ; but this does not prevent the acquisition of the right to the enjoyment of light and air, under certain circumstances, by the adjacent proprietor^ which may, to some extent, interfere with the right to deal with the land of the adverse owner in such man- ner as he may desire. ^^ Sic utere tuo^ ut alieunm non Icedas^^ — so use your own that you injure not another's property, is also a maxim of law supported by the soundest wisdom ; and this may sometimes operate to prevent the use of one's premises in such a way as to deprive the adjacent tenement of the necessary access of light and air. It is a general rule that the owner of land may use it according to his pleasure ; but the rule is subject to the qualification, that he is not at liberty to use it in such a manner as to infringe the rights of others. Upon this principle the right to the enjoyment of light and air is sometimes secured. Light and air are usually spoken of in the same connection, although they are quite distinct in their nature. The very fact of there being windows, which determine the right in question, shows that there may be the free admission of light without a particle of air, and yet the right to sufficient wholesome air has always been recognized. Although they be distinct, and though the light in questions of this kind has the pre-eminence, air is of little less consequence, yet the obstruction of air more properly comes under the head of nuisance, and is treated of as a question of evidence. The acquired right to unimpeded transmission of air must not be confused with the right which every man possesses at common law, to receive the air which has access to his premises free from pollution ; a right which can only be excluded by the acquisition of a countervailing easement by the party who creates the nuis- ance ( Vide Bliss v. Ballf 4 Bing., iV". C, 186). The method by which the right to window lights may be acquired will be explained in subsequent chapters. It seems to be settled that a person living in the country has the same right to be protected from interference with his light, as an individual occupying a tenement in towns and cities ; whether a house is in a city or in the country, or indeed, wherever it may be, the right of the BOW THE BIGHT IS ACQUIRED. 521 inhabitant to the comfortable and usual enjoyment of it is the same. CHAPTER XLY. THE METHODS BY WHICH THE RIGHT TO WINDOW LIGHTS MAY BE ACQUIRED THE ENGLISH AUTHORITIES UPON THE SUBJECT, AND THE ENGLISH PRESCRIPTION ACT. According to the English policy, the right to window lights may be acquired in three different ways, by occupancy, by express agreement, and by implied agreement. The modern English doc- trine on the subject of lights has never been fully sanctioned in the American States, and yet it will be impossible to obtain a cor- rect view of the subject as administered here, without a full understanding of the general tenor of the English authorities. Indeed, the leading principles which govern the subject in Great Britain, are entirely applicable here, and must be well understood in order to determine similar cases arising in this country. The American authorities upon the subject will be considered in sub- sequent chapters. The methods by which the right to window lights may be acquired in England are stated in a few words by Lord Hard- wicke in a case before the English Court of Chancery, where he says : " If the house were built on the old foundation, it would entitle the plaintiffs' to their lights as an ancient messuage ; but if on the new foundation, then the party must show a new agree- ment, or something to import one " {The Fishmangei's' Company V. The East India Company, 1 JDicTc. 7?., 163). And again, in another case : " Whoever comes into this court, on such a right, must found it either on defendant's building so as to stop ancient lights, for which he has prescription (notwithstanding that he must lay a particular prescription), or else on some agreement, either proved, or reasonable prescription thereof" {Mo/Ti's v. Lessees of Lord Berkeley, 2 Ves., Sen., B., 452). The first in the division then is, the acquisition of the right by occupancy, and this branch of the sul)ject has been elaborately considered by the English courts, and the doctrine inculcated, with 66 522 ^^^ Oi^ WINDOW LIGHTS. some qualification, has been expressly sanctioned by act of parlia- ment. The sections of the act which relate to the acquisition of the right to window lights are as follows : " Where the access and use of light to and for any dwelling-house, workshop or other building that have been actually enjoyed therewith for the full period of twenty years, without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing. Each of these respective periods of years hereinbefore mentioned shall be deemed and taken to be the period meant before some suit or action, wherein the claim or matter to which such period may relate, shall have been or shall be brought into question ; and no act or other matter shall be deemed to be an interruption, wnthin the meaning of the statute, unless the same shall have been or shall be submitted to or acquiesced in for one year after the party interrupted shall have had or shall have notice thereof, and of the person making or authorizing the same to be made " {^'tat., 2 & 3 Will., 4, c 71, §§ 3, 4). This act was passed in the year 1832, and is still in force. The object of the act was to shorten the period of prescription, and to make possession a bar or title of itself, instead of having recourse to the intervention of a jury to make it so. Prior to the passage of the act the enjoyment of lights witli the party's acqui- escence for twenty years was regarded as such decisive presumption of a right by grant or otherwise, that, unless contradicted or explained the jury were required to believe it ; but no length of time could be said to be an absolute bar like a statute of limitation, though it was considered a presumptive bar which ought to go to a jury. Time immemorial itself is only presumptive evidence ( Vide Darwin v. Upton, 2 Wms\ Saund. R., 175, h, c). But since the passage of the act of 1832 the right to window lights acquired by occupancy has become a matter juris positivi depend- ing on positive enactment, and is no longer to be rested on any supposed presumption of grant or fiction of a license. Said Lord Westbury, C, in a celebrated case before the English House of Lords : " It is material to observe that the right to what is called an ancient light now depends upon positive enactment. It is matter ju?'is positivl and does not require, and therefore ought not to be rested on any presumption of grant or fiction of now THE RIGHT IS ACQUIRED. 523 a licensG having been obtained from the adjoining proprietor. This observation is material, because I think it will be fuund that error in some decided cases has arisen from the fact of the courts treating the right as originating in a presumed grant or license."' And said Lord Chelmsford in the same case : " The courts of law formerly held that where there had been an uninterrupted use of lights for twenty years, it was to be presumed that there was some grant of them by the neighboring owner, or, in other words, that he had by some agreement restricted himself in the otherwise law- ful employment of his own land. The Prescription Act turned tins presumption into an absolute right, founded upon user on one side and acquiescence on the other. It was argued that under the act the right to the enjoyment of lights was still made to rest on the footing of a grant ; this position seems to me to be contrary to the express words of the statute. * * * By the Prescrip- tion Act, then, after twenty years' user of lights the ow' ner of them acquires an absolute and indefeasible right which so far restricts the adjoining owner in the use of his own property that he can do nothing upon his premises which may have the effect of interrupt- ing them" {Tapling v. Joiies, 11 House of L. Cas., 290; S. C, 3i Law J. i?., K S., C. P., 342). The result is, that under the English Prescription Act twenty years uninterrupted enjoyment of window lights (unless such enjoyment be had under a written agreement), confers an absolute and indefeasible right to them, without regard to the circumstance that the neighboring premises have been, during a part or the whole of that period, in the occu- pation of a tenant for life or years, or that the owner of the inheri- tance was ignorant of the user, or that he was not capable of granting an easement so as to bind his successors. The right to window lights may now (as the enjoyment need not now be of right) be gained, not only without the consent, but also without the knowledge of the servient owner. And the decisions show that the right to window lights, when once acquired, is acquired against all the world {Vide J^reioen v. PAilq^s, 11 Com. Bench R., N. S.^ 455 ; Jones v. Tapling^ 12 ih.^ 853). But there are certain condi- tions which must be complied with in order that the enjoyment may be of a character capable of conferring the right. The first of which is that the enjoyment must be had, during the whole period required by the statute, in the character of an easement distinct from the land over which it is had, and on which it ia 524 LAW OF WLXDOW LI G WIS. Bought to impose the easement {^Ilarhridge v. Warwuik., 3 Excheq Ji., 552). The second of these conditions is that it' it appear that tlie access of h'ght was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing, then by the terms of the statute, the enjoyment will not be converted into a right after the expiration of the twenty years. The terms of the statute are very plain, and yet in one case at nisi prius, in which the access of light had been enjoyed for more than twenty years, under a permission verbally given by the person having the right to obstruct it, and rent had been paid in acknowledgment of that permission, it was argued that no easement was acquired ; but the court overruled the objection {^^layor of London v. The Pewterers' Company., 2 Mood. & Hob. 7?., 409). The third condition referred to is, that the access of light shall have been actually enjoyed for the full period of twenty years without interruption. The interruption which will prevent the maturing of the right under the statute, must be an obstruction by the act of some other person than the claimant, not a cessation by him of his own accord. It was argued in one case that the payment of rent under a parol agreement for the user of lights was such an interruption of the enjoyment as to defeat the acqui- sition of a prescriptive right under the act. But the Court of Exchequer Chamber decided against the position {Plasterers' Company v. The Parish Clerks* Company, 6 Excheq. P., 635 ; and vide Gale v. Abbott, 8 Jur., If. S., 987; Bennison v. Cart- wright, 33 Zato J. P., ]V. S., 2 B., 137). And it has been held by the House of Lords, that a statutory title to the right to win- dow lights may be gained by enjoyment for nineteen years and a portion of a year followed by an interruption for the remaining portion of the last year {Flight v. Thomas, 11 Adolph. <& Ell., P., 688; S. C, 8 Clark &Finnelly's P., 231). The last condition is, that the prescribed number of years dur- ing which the easement was enjoyed were the years next before the action is brought. This is required by the terms of the stat- ute in order that the right may be acquired. It has been held that the twenty years' enjoyment before any suit or action in which the plaintiff's claim to • light and air is brought in question is sufHcient to confer the statutory right, and not of necessity twenty years's enjoyment before the suit or action then in pro gress {Cooper v. Ilulbuck, 12 Com. Bench P., N. S., 470). But) HOW THE RIGHT IS ACQUIRED. 525 to support a claim to the statutory right, eujuyineut during the whole period prescribed by the statute must be proved ; and it has been held not allowable for a jury to infer enjoyment for the whole period from proof by the claimant of enjoyment for a part of the period {Bailey v. Aj>pleijard, 8 AdolpL (& EU. i?., 161, note at page 778). The words in the statute, " any local usage or custom to the contrary notwithstanding," doubtless refer especially to the cus- tom of the city of London prior to the passage of the act, accord- ing to which, the owner of any house within the city was entitled to raise it or to build on its site any heiglit he pleased, notwith- standing that by so doing he might obstruct his neighbor's ancient lights. This custom had been recognized and allowed to govern the question of light and air in the city of London from a very early period ( Vide Hughes v. Keene, Yelverton's i?., 215). At the time of the decision of Hughes v. Keene, which was about the time of the reign of Queen Elizabeth, the custom of London appears to have been almost identical with the common law. By the custom of London, at that period, the existence of a building prevented the imposition by prescription of any obligation on tiie owner of that building to refrain from interfering with the enjoyment of window lights by his neighbor. In one case before the King's Bench, the recorder of London appeared, and certified ore tenus that there was an ancient custom in the city of London, that a person miglit increase the height of his house^ or build upon its ancient foundations, though he thereby obstructed his neigh- bor's ancient lights, but that custom did not extend to iinyerectio7i or luilding {Plutnmer v. Bentham, 1 Burrow''s B., 248). The custom was held to be confined to cases where all the tiice walls of the old foundations belonged to the person claiming the benefit of the custom {Shadwell v. Hutchinson^ 3 Car. & Payne's B., 615). The custom remained until it was swept away by the stat- ute, and now the city of London seems to be on the same footing, as respects the right to window lights as other cities in the King- dom ( Vide The Salterns Company v. Jay^ 3 Queen^s Bench B.^ 109; Trnscott v. The Merchant Taylors^ Company, 11 Fxeheq, B., 855 ; Tates v. JacA; 1 Law B., Ch. 295 ; S. C, 35 law J. B., ]V. S., Ch. 539 ; Bent v. The Auction Mart Company, 2 L. B. Eg., 238 ; S. C, 35 Law B., N. S., Ch. 555). The second method by which the rigiit to window lights may 52G -^^1^'' ^^ WIXDOW LIGHTS. be acquired, according to the division indicated, is by express agreement, and the authorities upon this point are applicable, both in England and in the American States. It has been before observed that the right to window lights is an easement, and it is pertinent to remark here that an easement, like other corporeal hereditaments, can be created only by an instrument under seal, or, in other words, by a grant. This doctrine is supported by a long series of authorities, a few only of which need be cited {Bradley v. QUI, 1 Lutwyche's R., 69; Fenti- man v. Smith, 4 East's E., 107 ; Rex v. Inhabitants of Hordon- on-the-Hill, 4 Maule <& Selw. R., 562; Bryan v. Whitlee, 8 Barn. & Ores. R., 288; S. C, 2 Man. & Ry. R., 318 ; Cooker V. Cowper, 1 Cromp., Mees. <& Ros. R., 418 ; Hewliiis v. Shipjpam, 5 Barn. <& Cress. R., 221 ; S. C, 7 DowUng & Ryland's R., 783; Wood v. Leadhetter, 13 Mees. cfe Welsh. R., 838.) The courts of the State of New York have held that an easement is an interest in land, within the Revised Statutes of the State, and cannot be created without a conveyance in writing {Iloughtailmg V. Houghtailing 5 Barh. R., 379), or, in some of the cases, it is declared that an easement is a permanent interest or privilege in the land of another, and must be founded upon grant, or upon prescription, which presupposes a grant {Mumford v. Whitney, 15 Wend. R., 380 ; Brundage v. Warner, 2 IliWs R., 145 ; Boyer V. Brown, 7 Barh. R., 80). This is the general rule in respect to easements, and an uninterrupted enjoyment of an easement for twenty years, is presumptive evidence of a grant of it {Trvin v. Fowler, 5 Roh. R., 482; Flora v. Carheau, 38 N'. Y. R., 111). But it will appear hereafter that the doctrine of the prescriptive right to window lights is not fully recognized by the courts of the State of New York, although the rule that the right to window lights, by express agreement, must be by deed, is universal in its application, perhaps. The English courts, however, have held that, although at law an easement cannot be created without a deed under seal, ;yet, when persons have, either by express covenant, or by their tacit acquiescence in the creation of such a right, induced others to incur expense, such persons will be restrained by a court of equity from afterward depriving them of the benefit of their expenditure by insisting on the want of a legal title. And this doctrine has been applied in cases of window lights {Davies v. Marshall, 1 HOW THE RIGHT IS ACQUIRED. 527 Drury & Smale^s E., 557 ; Cotching v. JSassett, 32 Beav. i?., 101 ; S. C, 32 Zaw J. JR., iV". S., CL 286). In the case of window lights, however, it is probable that mere tacit acquiescence would not bind the owner of the adjoining premises, any more in England than in the American States. The general rule, then, is that in the acquisition of window lights by agreement at law, the right must be created by deed, and the deed must be in the form of a grant, in order that the obligation may be binding at law upon all future owners of the servient tenement. It must be borne in mind, however, that it is not necessary to use any particular form of words in order to constitute a grant. A deed, which is in form a covenant, may operate as a grant. This will be the case where, upon the instrument, an intention appears to confer a right which will affect the land of the covenantor, and the right intended to be conferred is one capable of being made the subject of a grant, as an easement. The legal rule is that the burden of a covenant does not, except in cases between landlord and tenant, run with the land, and hence the necessity of a grant in case of window lights. But no particular form of words is necessary to effect the the grant; any words which clearly show the intention to give the right are sufficient to effect that purpose {Eowbotham v. Wilson, 8 House of L. Cas. 348). Upon this principle, it would seem that from a covenant by the owner of the adjoining land, that he would not in any way obstruct the access of light and air to the windows of his neighbors's tenement, would be implied a grant from him to his neighbor of the right to window lights over his land, and it may be remarked that in practice express grants of the right to window lights are not often met with. Express covenants to refrain from interfering with a neighbor's enjoyment of light and air are also very rare. Their place has been supplied by covenants by a man to refrain from using his own land in such a way as to interfere with the free access of light and air, and such covenants are sufficient as a grant of the right. The third and last method by which the right to window lights maybe acquired, according to the division indicated, is by implied agreement, and this important mode of acquisition of the right falls into two divisions, in the first of which there is an implied grant of the right to window lights, arising from the principle that a man cannot derogate from his grant, and in the second there is an implied grant of the right arising from the presumed intention 528 LAW OF WINDOW LIGHTS. of the person who was the owner of two tenements, one of which enjoyed the right of window lights over the other, previously to their severance. This is the doctrine prevalent in Great Britain. How far it is recognized in the American States will appear by a consideration of the authorities in a subsequent chapter. The English decisions are very numerous and elaborate upon this branch of the subject, but a brief reference to them only will be necessary in order to understand the law as administered in that kingdom. And first, as to the cases in which it is held that the implied grant arises from the principle that a grantor cannot derogate from his grant. The oldest case found in the reports upon this point, was one in which it appeared that A having built a house let it to B, and the rest of the ground to C ; that C obstructed the lights of the house, and B brought an action against him for so doing. The court held that C claiming the land from the builder of the house, could not obstruct the lights of the house any more than the builder himself could, and that the builder could not derogate from his own grant, for the lights were a necessary and essential part of the house. But it was held that had the land been sold before the house, and the house afterward, the vendee of the land might stop the lights, although the court was not unanimous on this point. The result was that the action was sus- tained {Palmer v. Fletcher^ 1 Siderfinh E., 167 ; S. C, 1 Levinz' i?„ 122). In a later case before the same court, the doctrine of the case of Palmer v. Fletcher was assented to, that the grantor or one claiming under him, cannot obstruct the access of light to the house sold ; though, as the defendant in the case was a stranger, it was held that the principle did not apply {Bowery v. Pope, 1 Leonard's P., 168, and vide Cox v. Prt/or, 1 Vent. P., 237, 239). About the year 1700, Holt, Ch. J., said in a case before the Eng- lish Court of King's Bench : " If a man have a vacant piece of ground and build thereon, and that house has very good lights, and he lets this house to another ; and after he builds upon a con- tiguous piece of ground, or lets the ground contiguous to another, who builds thereupon to the annoyance of the lights of the first house, the lessee of the first house shall have an action upon this case against such builder, etc., for the first house was granted to him with all the easements and delights then belonging to it " {Posewell V. Pryor, 6 Modern P., 116). And again it was said by the Court of Queen's Bench : " If a man build next to a JIOW TUE RIGHT IS ACQUIRED. 529 vacant piece of grouiid (»f his own, and then sell the new house, keeping the ground in his own hands, he cannot build upon the Avaste ground so as to stop the lights of the house ; for by sale o£ the house, all the lights and all necessaries to make them useful pass; for by the sale of the house, all the conveniences it has will pass; and as he himself cannot build to the prejudice of the new house sold, so canm.'t the lessee of the vacant ground do it ; but if, in that case, he had sold the vacant ground without reserving the benefit of the lights, the court doubted in that case that the vendee might build so as to stop the lights of his vendor, because he parted with the ground without reserving the benefit of the lights " {Tenant v. Goldwin, 6 Mod. E., 314). And subsequently the result of tiic cases was stated : " That no man can derogate from his own grant ; therefore, if I have a house with certain lights in it and land adjoining, and I sell the house but keep the land, neither I nor any one claiming under me, can obstruct the lights by building on the land; for by selling the house I sell the easement in the land also. So, semble, if I sell the land and keep- the house, my vendor cannot obstruct the light by building on the land" {Pomfret v. Ricroft, 1 Wins' . Saund. B., 323, note I). Although these are very old cases, the later authorities are in accord with them. Within the last fifteen years, in a case in the High Court of Chancery of England, in which the plaintiff had taken premises in which to cany on his trade as a diamond mer- chant, Stuart, Vice-chancellor, said: "There appears to be no sound principle on which, when the demise of the house is to a person known to sustain such a character as that any diminution of the lights Avould disturb his enjoyment in that character, the reversioner can be allowed to withdraw or obstruct anything necessary to his enjoyment of the demised property in that char- acter " {Ilerz V. The Union Bank of London., 2 Gifford's R., 686, and vide Jacomh v. Knight, 32 Law. J. R., JV. S., Ch. 601). In a word, the authorities clearly settle the proposition, that T^here the owner of two properties, one of which has enjoyed at continuous and apparent right to window lights over the other,, disposes of the window property M-hich has enjoyed that right,, there is an implied grant bv him of the right to the window- lights which has been enjoyed therewith. So that if he parts with' a tenement which has enjoyed the right to window lights over another part of his property, he, and consequently those claiming 67 530 ^-411' OF WIXDUW LIGHTS. under hini, are bound bj an implied grant of the right, and are debarred from in any way using the part of the property retained so as to intei'fere with that right. And it would seem from the authorities that this implied grant results from the general princi- ple that a grantor cannot derogate from his grant. This doctrine is well settled by the law of England, and it appears to be reasona- ble in any country ; certainly as between the grantor and grantee personally, and others having actual notice of the order of trans- fer, and the situation of the property at the time of the first grant. The principle is considered also to apply where the owner of the two properties parts with them at the same time, or at times so near as to be virtually the same. Said Tindal, Ch. J., in deliver- ing judgment in a case in the English Court of Common Bench : " It is well established by the decided cases, that where the same person possesses a house having the actual use and enjoyment of certain lights, and also possesses the adjoining land, and sells the house to anuther person ; although the lights be new, he cannot, nor can any one who claims under him, build upon the adjoin- ing land so as to obstruct or interrupt the enjoyment of those lights. And in the present case, the sales to the plaintifi" and defendant being sales by the same vendor, and taking place at one and the same time, we tliink the rights of the parties are brought within the application of this general rule " {Swanhorough V. Coventry, 9 Bing. R., 305; S. C, 2 Moore c& Scott's E., 362; and vide Compton v. Richards, 1 Price''s R,, 27). But, to come within the principle of the cases, the right to the window lights must, at the time of the disposition of the property, be continuous and apparent. It has been held, where at the time of the sale of the two tenements there were openings " wholly of an uncertain charam«;» V. Milks, 21 iY. Y. P., 505, 511). This is in entire harmony THE AMERICAN DOCTRINE. 53") n-itli the rule of the common law, that where the owner of two tenements sells one of tliem, or the owner of an entire estate sella a portion, the purchaser takes the tenement, or portion sold, with all the benefits and burdens which appear, at the time of the sale, to belong to it, as between it and the property which the vendor retains. This is one of the recognized modes by which an ease- ment or servitude is created, and the principle is held by Judge Selden to apply in the case of window lights. In 1868 a case came before the Court of Appeals of the State of New York, which involved the effect of a covenant of the owner of adjacent premises with the neighboring owner, not to erect, or suffer to be erected, on the premises, any structure or building of any kind, whereby the view or prospect of the bay, from any part of the dwelling-house of the latter shall be obstructed or impaired in any manner or degree whatever. The court held that this gave the covenantee an easement in the covenantor's land, and in case of its infraction, a court of equity would inter- pose by injunction, and that too as against the grantee of the cov- enantor in favor of the grantee of the covenantee {Gihert v. Peteler, 38 N. Y. i?., 165). When the case was before the Suprem'e Court, Eniott, J., said: "A covenant or agreement, restricting the use of any lands or tenements in favor or on account of other lands, creates an easement and makes one tene- ment, in the language of the civil law, servient and the other dominant; and this without regard to any privity or connection of title or estate in the two parcels, or their owners. All that is necessary is a clear manifestation of the intention of the person who is the source of title, to subject one parcel of land to a restriction in its use for the benefit of another ; whether that other belong at the time to himself or to third persons, and sufticient language to make that restriction perpetual " {Gihert v. Peteler, 38 Barb. i?., 488, 514). This opinion was given at the General Term on which the judgment entered in the case was set aside, and a new trial granted. But on the second trial the judgment was in accordance with the said opinion, which was afiirmed by the Court of Appeals; so that the position taken by Judge Emott has a very important bearing upon the question of the right to window lights guaranteed by covenant or agreement. In 1851, the Supreme Court of the State of New York had tha question of the right to window lights directly before it, and by 536 -t^l^' OT?' Tr7.VJ?0TF LIGHTS. two of the three judges, the thh-d dissenting, tlie doctrine was laid down to the effect, that the common law of England, on the subject of light and air, as an easement or incident to real estate, is not the law of this country ; and it was declared to be inappli- cable to the condition of this country when the State of New York was settled by the colonists, and formed no part of the law of the colony on the 19tli of April, 1775. Upon this generally conceded principle, the majority of the court held in the case, where it appeared that the owner of two adjoining lots in the city of New York, upon one of which was a building deriving its light and air over and through an open space in the rear of the other lot, into which the windows of the building opened and looked, leased the building and lot upon which it was erected for a term of years, with its appurtenances, without reserving to himself a right to build on sucli other lot, or stop, or darken the windows of tlie building leased, and afterward built a house, cov- ering the whole open space of the other lot, darkening the win- dows, and excluding the light and air from the building occupied by his tenants ; that tlie landlord n)iglit lawfully darken or stop the windows by any erection on the other lot, and that such an act was not in derogation of his own grant, and he could not be restrained by injunction from so doing {Myers v. Guinmel, 10 Barl). R., 537). The correctness of this decision upon the state- ment of the case in the report, may well be doubted. It would certainly seem inequitable for a party to lease to another a tene- ment enjoying the riglit to light and air essential to the comforta- ble or profitable occupation of the leasehold premises, and then be permitted to deprive his tenant of so important a privilege ; and the doctrine is, at least, opposed to the tenor of some of the dicta in subsequent cases in the Court of Appeals, as well as of tlie Supreme Court of the State. The case has never been directly overruled, however, and it does not seem even to have been quoted in any reported case before the New York courts. It was decided upon the authority of Parker v. Foote (19 Wend. R.^ 309), and Mitchell, J., who delivered the opinion of the court, appears to have been very confident that authority as well as principle shows the docti'ine of that case to be the law of the State of New York. Edwards, J., concurred in the opinion of Mitchell, while Edmonds, P. J., dissented, so that the decision was made by a divided court. THE AMERICAN DOCTRINE. 537 In 18-i7, the subject of the rii^-ht to whidow lights was before Sandford, Y. C, in a case pending in the late Court of Chancery Df the State of New York. Tlie question was presented on a motion to restore an injunction restrainitig the defendants from further erecting a building in the city of New York, which would deprive the complainants' adjoining tenement of light and air, claimed by them by prescription and by contract. The defend- ants' counsel showed to the court, by reference to their answer and a diagram annexed, and also stated, that they had left an open space in their rear, for the complainants' accommodation as well as their own, from which the complainants' tenement might derive light and air, if they would take down a four story privy forming a part of their tenement, and butting against such open space. The injunction having been dissolved, the complaiiumts, on the faith of such statement and representation, took down their privy, and inserted windows in the wall of their tenement, in the place of the doors that led to the privy. The defendants objected, and commenced building a wall across the open space over against such new windows, intended to be carried to the height of such tenement, and which would nearly or quite prevent the access of light and air to the same. The distinguished and learned Vice- chancellor, restrained the erection of such wall by the defendants. It was insisted by the defendants, that according to the established law in the State, no right to light and air can be acquired by lapse of time; that such enjoyment of light and air, cannot be adverse or hostile to any right of the owner of the adjoining land, and cannot become the foundation of a presumption of right to con- tinue their use as against such owner. The Yice-chancellor referred to the authorities upon the point, and regarded it as a question of vast importance, but was persuaded that it was not his duty to decide it upon a mere interlocutory application, and left it in doubt as to what his decision would have been upon the snl)ject, had he considered it {Banks v. The American Trad Society, 4 Sand. Ch. B., 438). But two years afterward, a case came before the Superior Court of the city of New York, of wliicli Yice-chancellor Sandford was then a distinguished niem])er, in which it was decided that a landlord who owns land adjoining the demised premises, has a right to build on such land, thougli he may thereby obstruct and darken the windows in the tenenient demised. Oakley, Ch. J., delivered the opinion of the court, and 68 538 LAW OF WIMJOW LIGHTS. said : " When there is no question of ancient lights (and there is none in this case), the owner of a lot adjoining a house, may sc improve and build upon his lot, as to shut up the windows of such house that are situated in the end or side adjacent to his lot. If this were not so, he would be deprived of the full benefit of his own property. We perceive no reason why a landlord, in respect of his tenant, is more restricted as to his vacant lots, than he would be in respect of any other owner for years, or in fee, of an adjacent house" {Palmer v. Weimore, 2 Sand. Ji., 31Q). The action in this case was upon the" agreement for the rent, and the defense was, that the evidence of the obstruction to the windows of the tenement devised, established an eviction, and defeated the landlord of his rent. Sandford, J., before whom the action was tried at nisi prius, decided that the obstruction of the light was not sufficient to constitute an eviction, and the decision was sus- tained at the General Term. The decision of the case, therefore^ may have been correct, even though the landlord might have been liable, in some form, for obstructing the light of the tenement devised. But the doctrine laid down at General Term was as above indicated, and is in accordance with that which was adopted in the case of Myers v. Guminel by a divided court, as reported in 10 Barbour, 537. In a case before the Supreme Court of the State of New York, which was decided in 1856, it was complained that the defendant erected upon his own premises, immediately adjoining the plain- tiff's dwelling-house, and before his windows and doors, a board fence of from eight to ten feet high, and covered it with gas-tar,, and permitted it to remain so, to the annoyance of the plaintiff, and rendering the plaintiff 's dwelling-house unfit for a habitation. Evidence was given to support the complaint. The court, at nisi prius, charged the jury, that the defendant "had not a right to build a fence in an unusual manner, materially to injure and annoy his neighbor, and deprive him of the use and enjoyment of his lot ; " and further, " if you find the defendant put this fence there, or covered it with gas-tar," etc., he must be responsible for any damages or injury done thereby." The jury found a verdict in favor of the plaintiff, and the defendant appealed to the General Term, where the doctrine of the instructions relating to the fence was regarded to be to the effect, that the defendant had not a riglit to build a fence on his own land for the purpose of excluding the THE AMERICAN DOCTRINE. 539 light from the plaintiff's dwelling ; and this was held to be error. T. R. Strong, J., delivered the opinion of the court, and, after referring to certain things whicli are violations of absolute legal rights and are strict legal injuries, said : " But darkening another's windows, or depriving him of a prospect, by building on one's own land, wliere no right to light unobstructed has been acquired l)y grant or prescription, * * * invade no legal right, and hence are not legal injuries " {Piekard v. Collins, 23 Barh. i?., 41-1:, 45S). And in 1S61, in the same court, Hogebooni, J., in giving tlie opinion in a case, enumerated various cases in which the maxim sic utere tuo ut alienum non Icedas applies, said a man " may not obstruct ancient lights " {Relyea v. Beaver, S4:Barb. R., 547, 552). These are the principal cases found in the New York reports involving the right to window lights, or in which the subject was discussed, from which it is not quite certain how far the modern English doctrine upon the subject may be carried. Clearly, how- ever, the right to ancient lights will be sustained, and the right to M-indow lights which may be secured by covenant or grant. And the better opinion seems to be that the right to light may also be acquired by prescription ; and that the right will also be sus- tained, where the proprietors of lands obtain their title from a common source, the same grantor having conveyed the tenement with the windows to one, and the ground overlooked to another. The tendency of the early judicial decisions of Massachusetts upon the subject of light and air, was nearly or quite in accord- ance witli the principles of the common law, as held in England. In a case before the Supreme Judicial Court in 1815, it was held that in an action against one for stopping the plaintiff 's lights, it is not necessary to allege tliat his house was an ancient one, or tliat lie is entitled by prescription to the easement in question ; but, without such allegation, the plaintiff may prove an ancient right to the easement, if it be necessary to his case. And the question was squarely before the court, and it was expressly held, that where one sells a messuage having doors or windows opening into a vacant lot adjoining and belonging to the vendor, without reserving a right to build on such lot, or to stop the doors and windows, neither he nor his grantee of such lot can lawfully stop them. Jackson, J., wlio delivered the opinion of the court, referred to the English authorities to sustain the position {Story 540 i.4IF OF WIXDOW LIGHTS. V. Odin, 12 Mass. 12., 157, 160). About thirty years later, in a case before the same court, a bill in equity was sought to be main- tained upon the right acquired by the principles of the common law, hy force of which twenty years' adverse use of light and air gives to the possessor an easement of a perpetual character. The counsel for the defendant urged that the later English doctrines upon the subject had not been sanctioned in the commonwealth, and were not adapted to the state of things in this country. Dewey, J., who delivered the opinion of the court, said that the question was an interesting one ; and that the view taken of it by the counsel for the defendant seemed to have been sanctioned by the courts of the States of New York and Connecticut, while the tendency of the Massachusetts decisions had been the other way. But for reasons which were stated, the case was disposed of with- out expressing any opinion in respect to the alleged easement in the light and air claimed {Atkins v. Chilson, 7 Met. i?., 398, 403) In 1856, a case came before the Supreme Judicial Court of Massachusetts, which raised the question whether an owner of a city tenement, by having had windows opening toward the land of another, receiving light therefrom for twenty years, without obstruction, acquires an absolute right to the continued enjoyment of that privilege, so that in case a coterminous proprietor erects a wall or building on his own land so as to obstruct such light, the owner of the land having such windows can enter and pull down the wall causing such obstruction. Upon this question, Shaw, Ch. J., who delivered the opinion of the court, thought there had been no direct judicial decision in the commonwealth, but he said : " The general rule of the common law, before it was regulated by statute, seems to have been in favor of the affirmative of the ques- tion; holding that uninterrupted enjoyment of air laterally, through and over the land of another, and enjoyed a length of time, created an easement, which could not be disturbed, like that of a right of way, or aqueduct or drain in and over the land of another. * * * In many of the States of the Union, the negative of the question has been judicially held ; that the enjoy- ment of light and air in a messuage or building, received through windows laterally, over the vacant territory or lower building of an adjoining proprietor, gives to the owner of such building no right to the continuance of such enjoyment, and imposes no sei-vi- tude upon an adjoining estate. * * * AYe think the rule is THE AMERICAN DOCTRINE. 541 well settled, that, in a city tenement, an easement for light and air, derived from use and enjoyment, or implied grant, can only extend to a reasonable distance, so as to give to the tenement entitled to it such amount of air and light as is reasonably neces- sary to the comfortable and useful occupation of the tenement for the purposes of habitation or business." The court decided that the windows of the defendant were not substantially deprived of light, and the case turned upon that view {Fifty Associates v. Tudor, 6 Gray's i?., 255, 259). In this case, it appeared that the wall complained of was erected ten feet from the" dividing line, and of course ten feet from the windows obstructed, and, under those circumstances, the court held that the wall was no such legal obstruction of the adverse party's air and light, as to amount to a nuisance, and the decision was put upon that ground. But at a subsequent term of the same court, in tlie same year, it was held, that where the owner of two adjoining lots of land, on one of which is a building with a window in the wall close to the divi- ding line between the two, overlooking the other lot, sells tliem both by auction on the same day, with the privileges and appur- tenances belonging to each, the purchaser of the lot on which the building stands acquires no right of light and air over the other lot, though the sale and conveyance to him respectively precede the sale and conveyance of the other lot. Shaw, Ch. J., in deliv- ering the opinion of the court, said: " Tiie present case involves no question respecting the right which the owner of a building may claim for light and air through one or more windows, from and over the land of another, by actual use and enjoyment for a required length of time. The question turns wholly upon the construction of the deed from the Concord Milldam Company to the plaintiif, and that question is whether, by implication, any right to air and light was granted by that deed to the plaintiff;" and under the circumstances of the case detailed by the learned Chief Justice, it was held that the plaintift' did not acquire any such right. The case of Swansborough v, Coventry (9 Bingham, 305) was referred to and distinguished from the one at bar {Col- lier v. Pierce, 7 GraifsR., 18, 19). In the year 1852, the General Court of Massachusetts enacted that, " no ])erson, who has erected or may erect any house or other building near the land of any other person, with windows overlooking such land of such other person, shall, by mere con- 542 i^TT OF WINBOW LIGHTS. tinuance of such windows, acquire any eaBeraents of light or air, 60 as to prevent such other person, and those claiming under him from erecting any building on such land" {Statutes of 1852, ch. 144). It has been held, however, by the Supreme Judicial Court of the State, that previous to the enactment of this statute, by the law of Massachusetts, the mere uninterrupted continuance, for more than twenty years, of a window with a projecting sill, over- looking the land of another, did not necessarily create any ease- ment of light or air ; and Metcalf, J., who delivered the opinion of the court, referred to the American decisions upon the subject, and concluded : " The strict gi-ounds of the decisions cited are, 1st. That the making of a window in one's building, on his own land, and overlooking the land of his neighbor, is no encroach- ment on his neighbor's rights, and therefore cannot be regarded as adverse to him; 2d. That the English doctrine is not applicable to the state of things in this country, and would, if applied, work mischievous consequences in our cities and villages " {Rogers v. Sawin, 10 Gray's i?., 3Y6, 379). The same doctrine was held, in a later case, before the same court, in which it was declared, that no easement of light and air was acquired by their coming laterally for more than twenty years before the statute of 1852, to a window in the wall of a house standing on the boundary line of its owners's estate, although the window swung out on hinges over the adjoining land {Carrig v. Dee, 14 Gray's i?., 583). And the same principles were subsequently recognized by the same court in a case in which Bigelow, J., delivered the opinion {Richardson V. Pond, 15 Gray's R,, 387). It seems, therefore, that by the law of Massachusetts, as it now stands, ancient lights, and those which are secured by express covenant or grant, only, will be protected by the courts of the State. Several cases have been passed upon, in which a construction has been given to the lan- guage of covenants or conveyances relating to light and air, but it is not needful that they be referred to in this place. THE AMERICAN DOCTRINE. 543 CHAPTER XLYII. RULP:S KESPECTING the right to window lights in the AMERICAN STATES DECISIONS OF THE COURTS IN MAINE, VERMONT AND SOME OTHERS OF THE UNITED STATES UPON THE SUBJECT OF LIGHT AND AIR DOCTRINE OF THE AUTHORITIES. The decisions of the courts upon tlie subject of air and light are more nnmerons in the States of New York and Massachusetts tlian in any of the other States of the Union, although the ques- tion has been passed upon by tlie courts in a majority of the States, and the decisions for the most part are in harmony with those in the cases already considered. In the State of Maine there is a statute which provides that no easement shall be acquired by adverse use, except for twenty years uninterrupted {R. S., ch. 147, § 14) ; and the Supreme Court of the State has held that this stat- ute was not intended to give any rights such as therein specified, or to determine how they might be acquired, but to prevent their acquisition without certain prescribed conditions. Accordingly it was held that, where one erects a building upon his own land immediately adjoining the land of another person, and puts out windows overlooking that neighbor's land, he does nothing more than exercise a legal right ; and that a continuance of the use of such windows uninterrupted for twenty years will not give him any additional right so that he can maintain an action against the owner of the adjoining land for obstructing such lights by build- ings erected on his own land. But it was declared, that if the person so putting out windows could acquire the right to main- tain them unobstructed by use, he could not while he himself was in the possession of the adjoining land as tenant of the owner {Pierre v. Fernald, 26 Maine R., 436). In one case decided by the Supreme Court of Vermont, it was decided, that long continued use of light for the windows of one's building, standing ou or near the line of his land, raises no pre- sumption of a grant of the right to such use from the owner of the adjoining land ; and that the former can maintain no action against the latter fur the obstruction of such light by an erection upon his own premises. The English doctrine of ancient lights was examined by Pierpoint, J., and deemed to be inapplicable in this country ; but the opinion was advanced, however, that one. 544 LAW OF WJyDOW LIGHTS. who lias conveyed to another a building witli the privileges, etc., has no right to make an erection on his own land which shall shut out the light from the windows of the building so conveyed [Hub- bard V. Town, 33 Vt. R., 295). In 1851, the question of the right to light came before the Supreme Court of Pennsylvania, and certain principles were laid d(nvn as applicable to the subject in that State. The case was this : Two houses belonging to the same owner being advertised for sale at tlie same time, one was struck off and the conditions of sale signed, the sale to be clear of incumbrances; the other house, in which were windows overlooking the first property, was sold immediately afterward. The court held that the sales were -not simultaneous, and that the house first sold was not subject to the easement of light for the windows in the other. But it was declared that, if the sales had heen simultaneoiis., the case would not be different, as the property last sold should have been sold jirst in order to entitle the purchaser of it to the easement. And the rule was laid down, that where two lots of land are passing from a vendor at the same instant, it cannot be implied that he is making one servient to the other as to light and air, especially when both are sold clear of incumbrance, for an easement is an incumbrance {Maynard v. Esher, 17 Penn. i?., 222). And eight years afterward the question, in a different form, came before the same court, when it was declared that in the State of Pennsylva- nia, the grant of an easement for light and air is not implied from the fact that such a privilege has been long enjoyed. Nor is a contract for such a privilege implied, on the sale of a house and lot, from the character of the improvements on the lot sold and the adjoining lots. And it was observed that the advantage which one man derives by obtaining light and air over the ground of another, is not an adverse privilege; and no implication of a grant being necessary to account for it, none arises from the fact of enjoyment. Lowrie, Ch. J., who delivered the opinion of the court, observed that there could be no possible case in which such an implication could arise, but that the court were satisfied that none was necessary or proper in the case under consideration {Ilaverstick v, Sii?e, 33 Penn. P., 368, 371 ; vide King v. Large, 7 Philadelj?hia P., 280). The Court of Appeals of the State of Maryland have held, within the last few years, that the doctrine that if the owner of TUE A Jf ERIC AN DOCTRIXE. 545' hvo adjoining lots, one vacant, and the other luving on it a build- ing, with lights opening over the former, sells the latter without reserving a right to build on the vacant lot or stop such lights,, then he cannot afterward obstruct them, does not apply where there being several owners to each lot, some but not all vi thera are part owners of both lots. And it was declared, that the modei'n English docti'ine of the acquisition of a right to open and unobstructed use of lights by an adverse use of them for twenty years is not adopted in Maryland. A distinction was made between this and some other kinds of easements ; for it was held in the same case, that the owner of land, the eaves of whose house extend over the adjoining lot without objection for twenty years,, acquires an easement in such lot. Although the rule was not expressly held applicable in the State, that an owner owning twO' adjoining lots, on one of M-hich is a house with windows opening; over the other which is vacant, sells the latter without reservation,, will not be permitted to build upon the lot retained in such a manner as to seriously obstruct the lights of the house sold, yet the doctrine was impliedly sanctioned by the court {Cherry v. Stei7i, 11 Md. E., 1). The Supreme Court of West Yirginia has recently considered the question of the right to window lights, in. a case in which it appeared that one Dorsey was in the occupation of property with windows, constructed in 1803, and one Cunningham was the owner of the adjoining property, which had been, occupied from 1803, by himself and those from whom he derived title to 1826, and thence till 1866, by his tenants, when an application was made' by Dorsey for an injunction to restrain the tenants of Cunning- ham from the erection of buildings upon the premises of Cunning- ham which should darken the windows of Dorsey. The courtr held that Dorsey was not entitled to the injunction {Canningliam- V. Dorsey, 4 W. Ya. R., 293). The Supreme Court of Ohio has recently held that wo prescrip- tive right to the use of light and air through windows can be- acquired by any length of user and enjoyment {Midler v. Strieker^ 10 Ohio JL, 135). But the courts of South Carolina held in one case, that an action lies against the owner of the adjoining soil for obstructing the lights of a party, of which he had had the uninterrupted enjoyment for more than twenty years {McCready V. Thomson^ Dudley's i?., 131). A doubt, however, seems to be 69 546 ^-'IR' OF WINDOW LIGHTS. thrown over the doctrine of this case, by a later decision, where it appeared that the plaintiff's house being highest, his windows, for more than twenty years, overlooked the defendant's house ; the defendant built a taller house and closed the plaintiff 's win dows, and the plaintiff brought suit for the obstruation. The court held, that the enjoyment of an easement must be adverse tt> raise the presumption of a grant ; that such enjoyment must con- stitute a legal injury for which an action would lie ; that the receiving of light coming over defendant's house into plaintiff's windows did not amount to such legal injury ; and of course did not raise the presumption of a grant. In the course of the opinion of the court, it is observed : " The same distinctions would prevent the acquisition of an easement in the shade of a tree which stands on his neighbor's land near his boundary, or of an easement to have continued the protection against winds which a neighbor's forest, or a hill on his land, had long added to another's orchard" Napier v. Bulwinkle, 5 Rich. R., 311). In an action before the Supreme Court of Alabama some four- teen years ago, it was held that an averment that the plaintiff owned a dwelling-house, in which there were, and still of right ought to be, five ancient windows, through which the light and air ought to have entered, and still ought to enter of right, allows proof of a prescriptive right, of one founded on grant, or on adverse user. But the question was left in doubt, whether or not adverse user during the period limited for real actions, conclu- sively settles the right to the unobstructed use of ancient win- dows ( Ward v. Neal, 35 Ala. R., 602). But some three or four years later, the same court held, that the English doctrine that an action for obstructing ancient lights can be sustained upon mere uninterrupted user of the easement for a period which would bar a recovery in ejectment against a trespasser, has not been adopted in Alabama, and it was declared that the doctrine had not been adopted in this country generally ( Wa?'d v. Neal, 1 Ala. Select Ca^es, 4:13). And finally the same court has expressly laid down ;the rule as adopted in that State, that an easement of light cannot ibe acquired by prescription ( Ward v. Neal, 37 Ala. R., 500). In the State of Louisiana they have a statute regulating the •servitudes of light and view ; and the Supreme Court of the State has held, that the erection of a verandah of the same width with the street, in front of one's house, is not an infringement of the THE AMEEICAN DOCTRINE. 547 rights of the owner of the adjoining tenement, and cannot be complained of as a violation of tlie articles of the civil code upon that subject {Durant v. Eiddell, 12 La. An. R.^ 746). But the same court has more recently held that, where the owner of the lots on both sides of a division wall makes an opening or window in the wall, it is an act constituting the " destination du pere de famiUe^'' and is equivalent to a title creating a servitude, as soon as a division of the ownership of the property takes place. And it was furtlier held, that the erection of works contrary to the servitude would not have the effect of extinguishing it, unless the owner of the estate to which the servitude was due had given an express permission or consent to the erection of such works either verbally or in writing [Lavilleheuve v. Cosgrove, 13 La. An. R., 323). And the same court has since held, that the servitude of light and sight is continuous and apparent, and may be imposed by the owner of two lots, on one in favor of the other {Cleris v. Tieman, 15 La. An. R., 316). This doctrine may be sustained without the aid of any statutory enactment, provided the servi- tude is declared in the conveyance of the lot first granted. The Supreme Court of Texas has recently held, that by the common law a prescriptive right to prevent the adjacent proprietor from inclosing or building upon his own land cannot be acquired by the use of a house having windows looking out upon his land, and receiving light and air from that direction for a period of ten years. The doctrine of the common law upon the subject, was not expressly sanctioned by the court, although it may be inferred from the opinion in the case that the doctrine was approved {Klein V. Gehrimg, 25 Tex. R., 332). The question of the right to window lights has not, as yet, been much considered by the courts of the western and newly-settled States of the Union ; although a case has lately been before the Supreme Court of the State of Iowa, in which the subject was elaborately examined, and the conclusion was reached by Dillon, Ch. J., who delivered the opinion, that the English doctrine tliat there may be a grant of light and air hy implication is not appli- cable to the situation and condition of this country. The Eng- lish rule was declared to be this : If a man sells a house with win- dows and doors opening on to his vacant ground, neither he nor his grantee can afterward build upon such vacant ground so as tc obstruct the flow of light and air without express reservation of 548 -^-411' OF WIXDOVr LIGHTS. the riglit to do so ; and the court held, that ii' such a rule should be recugnized in this country, it should be applied only in cases where the circumstances make it clear that such must have been the intention of the parties. It was, however, declared by tho Chief Justice, that it is settled law that there is no irapUed reser- vation of a right to light and air; so that if one sells vacant land and retains the house adjoining, the purchaser of the vacant land may build thereon, though he darken thereby the windows of the house of the vendor. These positions were examined in the light of the authorities both English and American, although they were not necessarily settled by the judgment of the court, for the reason that the peculiar facts of the case might well conduce to the conclusion arrived at independent of the considerations in respect to the common-law doctrine discussed. Indeed, it was expressly declared that, the nature of the conveyances to the plain- tifl's ; the character of the buildings showing them not to be essen- tially dependent on the rear windows for light ; the nature and effect of previous alienations of adjacent property by the common vendor ; the expi*ess provision of a four-feet right of way in the rear of the plaintiff's tenements, were held to be circumstances sufficient to negative any implied easement of light and air over adjacent land retained by the vendor of the plaintiffs. The real doctrine of the case would seem to be, that there was no implied grant of an easement of light and air for the rear windoM-s of a building, where the building was not essentially dependent on such windows for light when conveyed, and where several easements, but not this one, were expressly created by the conveyance, and where there was an express grant of a four-feet right of way at the rear of the building, separating the land claimed to be subject to the easement from the alleged dominant tenement. This is really all that was settled by the case, although the Chief Justice declared the rule iu>t a sound one that permits, under any circum- stances, an easen^ent of light and air to be burdened, by implica- tion, upon an adjoining estate so as to prevent the owner of such estate from building on or improving it as he pleases. The opin- i(jn of the court opens by affirming that the main principles involved in the case had never been judicially settled in the State, and that the adjudications elsewhere upon the same or similar questions were not uniform. American authorities were cited, both as sustaining the doctrine, that a vendor of a house cannot after- THE AMERICAN DOCTRINE. 540 vvard, on his adjoining vacant land, make an erection which shall deprive such house of light, and as opposed to tlie doctrine, with a decided preponderance in favor of the former, and finally, it is observed : " Without positively deciding that there may not, under any circumstances, be an implied easement of light and air, we hold that the circumstances before enumerated negative any such implication or easement in the case under consideration " {Mon'lsori v. 3£arquardt, 24 Iowa 12., 35). The doctrine of the American courts upon the subject of the right to light and air must be gathered from the cases considered in this and the preceding chapter. It will be observed that these cases are not entirely harmonious upon the question, and the judg- ment in several of them was rendered by a divided court ; and vet, the general drift of opinion is quite apparent and reliable. In the last case cited, the only branch of the subject discussed was, whether it is a principle of American law, that if a man sells a liouse with windows and doors opening on to his vacant ground, he nor his grantee cannot afterward build upon such vacant ground in such a manner as seriously to obstruct the flow of light and air to such house, without express reservation of the right to do so ; and the Chief Justice, who delivered the opinion of the court, holds in the negative, while the better opinion, perhaps, where the subject is unaffected by statute, would justify an answer in the affirmative. Most of the other cases considered, involve, severally, a single branch of the subject, although in some of tliem the entire English common law upon the question is examined. Judge Washburn, in liis treatise on Easements and Servitudes, devotes a fcAV pages upon the subject of light and air, and after examining the English authorities, says : " Tlie subject has thus far been treated of chiefly from the point of view of the English common law, with a brief alhision to English local statutes. This has been done in order to present, in something like a connected order, the rules which prevail in the American States upon the subject of acquiring rights to light and air by mere length of enjoyment. These will generally be found to be at variance with the English law\ And even as to the effect to be given to grants, in respect to the enjoyment of light and air, arising from the con- dition and circ'imstances of the estates to which they relate, the decisions will be found to be far from uniform, and some of thein not very satisfactory. 550 i^ir OF WINDOW lights. " The reason generally assigned for adopting a different rule in this country, as to presumptive rights to light and air, from that which prevails in England is, that the latter is not suited to the condition of a country which is growing and changing so rapidly in all its relations of property, as well as its value and modes of enjoyment. * ^ * . " It will be found it is believed, that in New York, Massachu- setts, South Carolina, Maine, Maryland, Pennsylvania, Alabama and Connecticut, the doctrine of gaining a prescriptive right to light and air, by mere length of enjoyment has been discarded ; while the English rule in this respect is retained in Illinois, New Jersey and Louisiana" {WasJibm^n on Ease, and Serv,, '2,d ed., 5S2, 583). In respect to the doctrine of the right to window lights by implication, the learned author says : " So far, therefore, as weight of authority both English and American goes, it would seem that, if one sells a house, the light necessary for the reasonable enjoy- ment whereof is derived from and across adjoining land, then belonging to the same owner, the easement of light and air over such vacant lot would pass as incident to the dwelling-house, hecause necessary to the enjoyment thereof ^ but that the law would not carry the doctrine to the securing of such easement as a mere convenience to the granted premises " ( Washib. on Ease, and Serv.y 590). And Judge Story recognized this doctrine to the fullest extent. While presiding in the Circuit Court of the United States for the first circuit, he had a case before him, in which he says : " There can be no doubt that the grant carries with it the right to the enjoyment of the light of those windows, and that the grantor cannot by building on his adjacent lot entitle himself to obstruct the light or close up the windows. * * * Their grant carried, by necessary implication, a right to the door and win- dows, and the passage as it had been, and as it then was used " ( United States v. Ajypleton, 1 Sumtie/'^s li., 492, 502). Upon this subject. Chancellor Kent says : " This doctrine of ancient lights, or, in the language of the writers on the civil law, borrowed from the law itself, of ' servitudes of lights or prospect ' attached to estates, is laid down with great precision in the Pandects, and in the codes of those modern nations which have made the civil law the basis of their municipal law ; and it is evi- dence of much civilization and refinement in the modifications ol THE AMERICAN DOCTRINE, 551 j->ro])crt3\ But the doctrine is not much relished in this country, owing to the rapid changes and improvements in our cities and viHages." And in confirmation of this last remark of the learned commentatoi-, he refers to the ease of ParTcer v. Foote (19 Wend, li., 309), which goes so far as to declare that the modern English doctrine, on the subject of lights, was an anomaly in the law, and not applicable to the condition of the cities and villages in this country, and in respect to the case, observes : " Though this incorporeal servitude of light is tamiliar to the laws of all civilized nations, and is, under due regulations, a very valuable incident to the enjoyment of property, there does not seem to be any well founded objection to the decision in the case last referred to, so far as it goes to declare that the enjoyment of the easement must be uninterrupted for the period of twenty years, and under a claim or assertion of right, and with the knowledge and acquiescence of the owner ; and that the presumption of right, under these cir- cumstances, is not an absolute bar, and conclusive, but may be explained and repelled, and is only a matter of evidence fora jurj'- to infer the right" (3 Kent's Com., 7th ecL, 549, 550). In view of the authorities, it may be predicted, that, as the country grows older and more populous, the modern doctrine of the English common law, upon the subject of window lights, will be gradually adopted in this country. According to the present state of the law here, it may be affirmed, that, where there is no statute to qualify the doctrine, the better opinion is, that the Eng- lish rule in respect to ancient lights, and the acquiring the right to light and air by grant or covenant, and by implication in cer- tain cases, and by prescription, are more generally recognized in the American States, and the doctrine in these respects is in har- mony with equity and fair dealing. 552 ^^'^^ OF WINDOW LIGHTS. CHAPTER XLYIII. THE EXTENT OF THE EIGHT TO WINDOW LIGHTS THE GENERAL RULE UPON THE SUBJECT HOW THE EIGHT MAYBE LOST THE EIGHT UNDEE SPECIAL COVENANTS. After the right to the enjoyment of light and air is established in a given case, it next becomes important to consider the extent to which the right may be maintained. In respect to this, the rule settled by the authorities seems to be, that the owner of the servient tenement will not be permitted to make any such use of his property as shall cause a sensible diminution of the value of the dominant tenement by the obstruction of the access to it of light and air, to such a degree as to interfere with the comfort of the dwellers in the house in the ordinary occupations of life, or with the beneficial use of the premises for the purposes of busi- ness. This is substantially the rule as laid down in the English courts, at an early day, and repeated quite recently by Vice-chan- cellor Wood in the English Court of Chancery, in a case in M-hich he said: " First of all, it is necessary to ascertain what it is that will at law support a claim for damages in respect of an injury done to a building by the obstruction of light and air; and the authority to which I would refer, in preference to any other, upon this subject, is the summing up of Chief Justice Best in the case of Back V. Stacei/, because that summing up has been approved of by the Lord Justices in a recent case before their Lordships. The Chief Justice told the jury, ' in order to give a right of action, and sustain the issue, there must be a substantial privation of liglit sufHcient to render the occupation of the house uncom- fortaljle, a7id to prevent the plaintiff from carrying on his accus- tomed business as beneficially as he had formerly done.' With the single exception of reading or for and, I apprehend that the above statement correctly lays down the doctrine in the manner in which it would now be supported in an action at law ^^ {Dent V. T/te Auction Mart Company, L. R., 2 Eq., 245 ; S. C, 35 Law J. liep., N. S., Ch. 560 ; and vide Back v. Stacey, 2 Car. <& Payne's It., 465). A similar doctrine has been frequently recog- nized by the English courts, both at law and in equity. Said Parke, B., in submitting a case to the jury : " A man can bring EXTENT OF TUE RIG FIT. 553 no action for the loss of a look-out or a prospect, but he may do 60 if the light and air which would come to his windows are diminished so as sensibly to diminish the value of his premises for occupation " ( Wells v. Odf/, 7 Car. i& Payne's R., 410). And Tindal, Ch. J., in a case before him at nisi prius, said : " It is nut every possible, every speculative exclusion of light whicli is the ground of an action ; but that -which the law recognizes is, such a diminution of liglit as really makes the premises to a sen- sible degree less fit for the purposes of business" {Parker v. Smith, 5 Car. c& Payne's P., 438). To the same effect was the direction to the jury in a case tried before him, when he said: '• To sustain this action there must have been a considerable diminution of light, and the merely taking off a ray or two will not be sufficient " {Pringle v. Wai^nfiam, 7 Car. (& Payne's P., 377). In a recent case before Lord Cranworth, High Chancellor of England, which was one of obstruction to the window lights of a private residence, his Lordship considered : " That what the plain- tiff was bound to show was, that the buildings of the defendant caused such an obstruction of light as to interfere with the ordi- nary occupations of life. The real question was, whether the light was so obstructed as to cause material inconvenience to the occupiers of the house in the ordinary occupations of life" {Clarke V. Clark, L. P., 1 Ch. 20 ; S. C, 35 Law J. Rep., N. S., Ch. 153). And it should be stated that it has been recently held by Kinder- sley, Y. C, in a case before the English Court of Chancery, that in the eye of the law it is the diminution of the value of the dominant tenement caused by the interference with the comfort of its inmates, and not the loss of the personal comfort of the inmates, that entitles the owner to his remedy ( Wilson v. Townend, 1 Drew. & Smale's R., 324). The question in these cases is, whether there has been such a material interference with the light and air reaching the dominant tenement, as to cause material annoyance to those who occupy it, ond thus diminish the value of it. Questions on this subject aro questions of degree, and are therefore very difficult to deal with. It has been well said, that all that can be done in this respect is, to attend to the special facts in every case as it arises, and then tc form an opinion as to whether the obstruction complained of is such as to deprive the complaining party of such a supi)ly of light 70 554 LAW OF WIXDOW LIGHTS. and air as lie might reasonably calculate on enjoying: Much must depend on the nature and locality of the windows, the supply of light which has been interfered with. And it has been some- times suggested, that persons who live in towns, and more especi- ally in large cities, cannot expect to enjoy continually the same unobstructed volumes of light and air as fall to the lot of those who live in the country. There would seem to be weight in this suo-o-estion, for it is quite reasonable to make a distinction between houses in town and houses in the country, as to the extent ot the rio-ht of a dominant tenement to window lights, and there are authorities very strong in favor of the doctrine, although obstruc- tion of light rarely occurs in the country ; toM'us are the places where light is wanted. In respect to the question with regard to the extent of the right to window lights possessed by tenements used for purposes of business, the authorities are by no means harmonious. Lord Chancellor Westbury held it essential for the complainant to show that the light to his building had been abridged to such an extent, as to detract from the value of the tenement, considered as an integral portion of the premises, as materially to aifect the suita- bleness of those premises for the purposes to which they were applied at the time the obstruction occurred, without regard to a possible future destination of the premises, which might change the wants of the tenement {Jackson v. The Duke of Newcastle 33 Law J., N. S., Gh. 698). While Lord Chancellor Cranworth, at a later date took a different view. He observed : " An atten- tive consideration of the evidence of the trade witnesses on the one side and on the other has led me to the conclusion, as did the evidence of the architects, that the erection of the new buildings will materially interfere with the quantity of light necessary or desirable for the plaintiffs in the conduct of their business, I desire, however, not to be understood as saying that the plaintiffs would have no right to an injunction unless the obstruction of light were such as to be injurious to them in the trade in which they are now engaged. * * * Therefore, even if the evidence satisfied me, which it does not, that for the purpose of their pre- sent business a strong light is not necessary, and that the plaintiffs will still have a sufficient light remaining, I should not think the defendant had established his defense unless he had shown that, for whatever purposes the plaintiffs might wish to employ the EXTENT OF THE RIGHT. 555 light, there would be no material interference with it." It sho.ild be observed, however, that Lord Cranworth considered the right conferred or recognized by the statute 2 and 3 Will., 4 c, 71, to be an absolute indefeasible right to the enjoyment of the light with- out reference to the purpose for which it had been used, and his conclusion seems to have been based somewhat upon that {Yates V. Jack, L. 7?., 1 Ch. 295 ; S. C, 35 Law J. B., N. S., Ch. 539). Here is an apparent conflict of high judicial opinion upon the sub- ject, and it dues not appear that any rule has been settled by later decisions in England. The strong probability, however is, that the rule which will ultimately be adopted under the present laws of parliament there, will be, that the right to window lights extends not only to light and air sufficient for the purposes for which the dominant tenement is for the time being employed, but to light and air sufficient for any purposes for which it may reason- ably be employed. This must be understood, however, as apply- ing to the tenement in use at the time the right to light and air matured. The purposes of the premises cannot be changed, so that more light may be required than was originally enjoyed. Said Macdonald, C. B., in a leading English case : " It was not enough that the windows were, to a certain degree, darkened by this wall, which the defendant had erected on his own ground. The house was entitled to the degree of light necessary for a malt- house, not for a dwelling-house. Tl.ie converting it from the one to the other could not affect the rights of the owners of the adjoin- ing ground " {Martin v. GoUe, \ Camp. R., 320 ; and vide Gar- ritt V. Sharpe, 3 Adolph. & Ell. R., 325). And said Wood, V. C, in a late case, in approving the judgment of Lord Cranworth, before referred to : " The Lord Chancellor's observations might apply to the user of a house as it stands for any purpose to which it might be applied in that condition, not to the user of a house where its whole character has been changed, and it has been rebuilt " {Deiit v. The Auction Mart Company, L. 12., 2 Eq., 249 ; S. a, 35 Zaio J. R., N. S., Ch., 563). It has also been repeatedly decided by the English courts, that the owner of the dominant tenement is not entitled to the unin- terrupted access of more light and air than other persons find sufficient for the same business. And again, where the persons entitled to the enjoyment of the light have at times lessened the amount of light which has access to their premises, they are not 53G LAvr OF wiynow lights. limited to the minimnm quantity which they have used, but will be entitled to an uninterrupted supply of the full quantity to which they were originally entitled. Said Lord Cranworth, in a ease before referred to : " The evidence satisfies me that for some purposes of their (the plaintiffs') trade it is necessary at times to exclude the direct rays of the sun, and that in what is called sampling, a subdued light may be better than direct sunlight. But this is not the question. It is comparatively an easy thing to shade oft' a too powerful glow of sunshine, but no adequate substitute can be found for a deficient supply of da^'light" ( Yates v. Jack, L. B., 1, Ch. 297: S. C, 35 Law B., iV". S., C/i. 543). x\nd said Wood, V. C, in a case before referred to : " Every now and then where the light is too much, people pull dowti their blinds ; but that is no reason, because they accommodate the light to their work, that they should be deprived of it at all times " {De7ii V. The Auction Mart Company, L. R., 2 -Eq., 251 ; S. C, 35 Zaw J. R., iY. S., Ch., 564). The right to the enjoyment of light and air, may be lost, how ever, after it has been acquired, and the general remark may be made, that the modes of the loss of the right correspond to the modes of its acquisition. Where the right is acquired by occu- pancy, it may be lost by abandonment ; when by express grant, it may be lost by express release, and when by implied grant from the disposition of the owner of two tenements, it may be lost by a union of the two tenements. These general observations will give a fair understanding of this branch of the subject, but it will be made plainer by a reference to a few leading authorities. In respect to the loss of the right to window lights by aban- donment, Lord Ellenborough observed in disposing of a case before him at nisi prius : " Where a window has been shut up for twenty years,- the case stands as though it had never existed" {Lawrence V. Ohee, 3 Camp. R., 514). And it is well settled that a cessa- tion of the enjoyment of the right for a much shorter period will put an end to it, if the intention of the owner of the dominant tenement to abandon it be manifest. Said the court in one case: " There is nothing unreasonable in holding that a right which is gained by occupancy should be lost by abandonment" {Liggins v. Inge, 7 Bing. R., 693). But the subject was elaboratel}' con- sidered at a later date in the English Court of King's Bench, in a case which is often quoted and recognized as a leading authority JTOTl' THE RIGHT IS LOST. 557 upon the point. A verdict was directed for the plaintiff in the case, but a riglit was reserved to the defendant to move to enter a nonsuit, and in deciding the inotion, Abbott, Ch. J,, said: "It seems to me, that if a person entitled to ancient lights pulls down his house and erects a blank wall in the place of a wall in which there had been windows, and suffers that blank wall to remain for a considerable period of time, it lies on him at least to show, that at the time when he so erected the blank wall, and thus appa- rently abandoned the windows which gave light and air to the house, that was not a perpetual, but a temporary abandonment of the enjoyment; and that he intended to resume the enjoyment of these advantages within a reasonable time." Bayley, J., said : " The right to light, air, or water, is acquired by enjoyment ; and will, it seems to me, continue so long as the party either continues that enjoyment, or shows an intention to continue it. I think that, according to the doctrine of modern times, we must con- sider the enjoyment as giving the right ; and it is a wholesome qualification of the rule to say, that the ceasing to enjoy destroys the right, unless at the time when the party discontinues the enjoyment he does some act to show that he means to resume it within a reasonable time." And Littledalc, J., said: " The right is acquired by mere occupancy, and ought to cease when the per- son who so acquired it discontinues the occupancy " {Jloore v. Eawson, 3 Barn. & Ores. R., 332 ; S. C, 10 Eng. C. L. It., 99). It has been sometimes contended that the privilege of ancient windows is lost by alteration or improvement of the frame work and glazing, without either their size, shape, or position being altei-ed. But the doctrine of abandonment has never been car- ried to this extent. If the owner makes alterations merely in the framework or glazing of his window, not altering the position or the size of the apperture in the building, he has a right to do so Avithout losing his privilege {Jackson v. Duke of Newcastle^ 33 Law J. R., ]V. S., Ch. 702 ; and vide Turner v, Spoone?', 1 Drew. <& SmaWs. R., 473 ; Renshaw v. Bean, 18 Queen'' s Bench i?., 112 ; Iltitchinson v. Copestake, 8 Com. Bench R., N. S., 102; S. C, 9 ih., 863; Martin \. Ileadon, 11 Jur. i\. S., 5; WeatherUj v. Ross, 1 //. (]& M. R., 349 ; Tapling v. Jones, 11 House of L. Cas., 290 ; S. C, 34 Law J. R., N. S., C. P., 342 ; S. C, 12 Com. B. R., N. S., 826). The doctrine is well settled that where the right to window lights is acquired by occupancy, it may be lost by 558 -^^^^ 0^ wnyDow lights. abandonment, and, under certain circumstances, the alteration of the windows of the dominant premises gives a right to obstruct the light, but where this alteration leaves the servitude imposed on the other tenement unaffected or diminished, no right will be lost by the alteration. In respect to the loss of the right to window lights by express release, it may be affirmed that in order to effect the extinguish- ment by this means, a release under seal is requisite, upon the same principle that the right can only be acquired in the first place, except by a grant or covenant under seal. And in the third place, the right to window lights may be lost by unity of posses- sion ; that is, where the dominant and the servient tenement become the property of the same owner, the right to light and air, enjoyed by the one over the other, is extinguished. It is a rule in respect to all easements, that where the title to the dom- inant estate and to the servient estate unite in a common owner, the easement is merged and lost. But in order that the unity of possession of the two tenements should have this effect, the owner in whom they are united must have an equally high and perdura- ble estate in fee simple in tlie one as in the other, in the domin- ant as in the servient tenement. Otherwise the easement, though necessarily suspended so long as the union of ownership continues, is not extinguished, but revives on a severance of the ownership {Sim2)er v. Foley, 2 Johns, d; Hemming' s R., 563). However, if the unity of possession is in a common owner, on separate con- veyances of the estates by such owner, the easement is not revived, nor treated as having existed during the time the two estates were m the common owner, but are re-created by the conveyance of the estate separately, and arise from an application of the fiimiliar principle, that whoever grants a thing, impliedly grants whatever may be necessary for the beneficial enjoyment of the thing granted {ikller V. Lapham, 44 Vt. 12., 416). Unity of seisin is suflicient of itself to cause the extinguishment of an easement without actual unity of occupation {Stall v. Stall, 16 Fasfs R., 343; Clayton v. Corhy, 2 Gale <& Dav. R., 174). But the momentary seisin of a release to uses has been held not to operate to extin- guish an easement by unity of seisin {James v. Plank, 4 Adolph. <& Ell. R., 766). It may be observed that, liowever the right to window lights may have been acquired, the same maybe extin- guished or lost in either of the ways herein described. In tliose TUE RIGHT UyDER SPECIAL COVEyAXTS. 559 States where the rio^ht cannot be acc^uired by occupancy or implied grant, the right, when ac(piired in tlie way recognized in such States, may be extinguished or lost by abandonment, or the union of the dominant and the servient tenements in the same owner. A few additional remarks may be necessar^^ in respect to the enjoyment of the right to light and air under special covenants from the owner of the servient estate. In most cases, where it has been desired to secure the enjoyment of the right to window lights by an express agreement, the object has been attained by the owner of the adjoining land entei'ing into covenants restrict- ing him from using his land in a certain specified manner; not by a simple covenant that he will not interfere with his neighbor's right to such window lights. These covenants will not, except as between landlord and tenant, run with the land so as to bind it in the hands of an assignee. This subject has been briefly referred to in a previous chapter. In order to enforce such an agreement as against assignees, recourse must be had to a court oi equity, where an adequate remedy may be had, provided the parties had notice of the covenants, in respect to the right. The principle on which courts of equity will enforce such covenants on an owner of the servient property, who at law would be unaffected thereby is, that as he has notice of tlie restrictions to which the land was- subject under such covenants in the hands of the person from whom he purchased, his conscience is affected thereby, and he can- not be permitted to use the land in a manner inconsistent there- with. This doctrine has been well settled by numerous decisions of the courts, although but few cases can be found wherein the precise question of the right to window lights was involved. But the general doctrine is imiformly recognized, that a covenant which at law will not run with the land, is binding in ecjuify upon an assignee with notice, except in the presence of special circum- stances which would render it inequitable to enforce the covenant {Vide Talk v. Moxhay, 11 Beav. A*., 571; Whitman v. Gibson, 9 Slia. 12., 190 ; Afann v. Stejjhens, 15 ib., 377). Courts of equity will, however, act with caution in enforcing covenants of this nature, and will neither too hastily infer their existence, nor M'ill extend their operation beyond what the construction of the instrument requires {J^eqfees of Ileriofs Hospital v. Gibson, 2 Dow /?., 301). And of course a court of equity will not strain the natural expression of the terms of the covenant, for tne bene- 5 GO -^^'^"' 0^ WINDOW LIGHTS. fit of tlie covenantees {Vide Schreiher v. Creed, 10 Sim. 12., 9; ratchln V. Diilhlns, 1 Kaijs IL, 1). It has been declared by the English Court of Chancery, that where land has been conveyed sul»ject to a covenant that the pur- chaser sh;ill not nse the land conveyed to hiin in a particular man- ner, such restriction being imposed witli a view to the enjoyment of adjoining lands by the vendor, and the character of these adjoining lands is so altered by the acts of the vendor and those claiming under him that tlie restriction is no longer applicable accoi-ding to the intent and spirit of the covenant, a court of equity will not interfere to enforce the covenant {The Dxike of Bedford v. The Trustees of the British Museum, 2 M. <& R. R., 552). On a similar principle, a court of ecpiity will not lend its assistance to enforce covenants of this nature, where the covenants were intended to secure the erection of buildings on one general plan for the common benefit of the occupiers of all the buildings, and the covenantee has acquiesced in such deviations from this plan, as will prevent the intended general benefit {Vide Roper v. Williams, Turner & RusseWs B., 18). But this doctrine will not be sti-ained in order to include cases in M'hich the covenants do not really form part of one plan {Patchin v. Duhhins, supra). The defense, that the plaintiff has acquiesced in the infringement of a general plan for the common benefit, cannot be laised where the question lies solely between covenantor and cov- enantee. But in these cases if there be acquiescence on the part of the covenantee in the breach of the covenant, or delay by him in complaining thereof, the court' will, on its ordinary principle, refuse to interfere in his behalf {Roper v. Williams, supra; Coles V. Sims, 1 Kaifs B., 5G ; S. C, 5 Be Gex., M. & Gor. B., 1). CHAPTER XLIX. THE REMEDIES FOR INJURIES TO THE RIGHT TO WINDOW LIGHTS THE REMEDY BY ACTION AT LAW — REMEDY BY SUIT IN EQUITY THE EVIDENCE IN SUCH CASES. There are practically two remedies for the obstruction to the' right to window lights, viz, by action at law, and a suit in equity. THE REMEDY AV SUCH CASES. 5G1 In early times, another remedy was applied in such cases, viz, abatement by the party injured, but this was always attended with violence, and has long since tallen into disuetude in all civil- ized countries. The action at law for injury to the right to window lights may be brought by the party in possession of the dominant tenement for the disturbance of his enjoyment, however temporary its charac- ter, and the reversioner may also sue if the injury be of a permanent character and detrimental to the inheritance. This doctrine is well settled by analogous cases, both English and American ( Vide Wells v. Odey, 1 Mees. i& Wels. /?., 452 ; Foley v. Wyeih, 2 Alle7i's 7?., 135). To enable the, reversioner to bring the action, the injury must be of a permanent nature; but it will be con- sidered to be so, if it be such as may possibly be detrimental to the reversioner's title, or afford evidence against the existence of the right {Shadwell v, Ilutehinson, 2 Barn. & Adolph. 7?., 1)7 ; Jesson v. Gifford, 4 Bur. B., 2141 ; Ilopvjood v. Sehofield, 2 Mood, dh Bob. B., 34 ; Metropolitan Association v. Patch, 27 Law J. B., N. S., a P., 330 ; Bower v. Hill, 1 Bing. lY. C, 555). The action may be brought either against him who erects the nuisance, or against him who continues it when erected. If the owner of premises erect an obstruction to his neighbor's ancient lights, and then demise his premises in that condition, he is liable if the obstruction is continued by his tenant {Boswell v. Prior, 2 Salk. B., 460; Vide Jones v. Williams, 11 Mees. (& Wels. B., 176 ; Bex v. Pedley, 1 Adolph. i& Ell. B., 827). In respect to the remedy in these cases by suit in equity, the courts are more liberal at present than formerlj'. It was once almost uniformly held in England, that a court of equity would not grant relief for an injury to the right to window lights, until the right had been determined by a court of law ; and though occasionally the court would interfere by injunction, before the determination of the legal right, yet instances of such interfer- ence were very rare. Courts of equity gradually extended the exercise of their jurisdiction in such cases, until 1834, when Lord Brougham, the High Chancellor stated the principles on which tlie court then acted, as follows : " If the thing sought to be pro- hibited is itself a nuisance, the court will interfere to stay irrepara- ble mischief, without waiting for the result of a trial ; and will,, according to the circumstances, direct an issue of allow an action,. 71 •jbz LAW OF Wn\I)OW LIGHTS. and, if need be, expedite the proceedings, the injunction being in the meantime continued. But where the thing sought to be restrained is not unavoidably and in itself noxious, but only some- thing which ma}^, according to circumstances, prove so, the court will refuse to interfere until the matter has been tried at law, generallj^ by an action, though in particular cases, an issue may be directed for the satisfaction of the court, where an action could not be framed to suit the question. It is always to be borne in mind that the jurisdiction of this court over nuisance by injunc- tion at all is of recent growth, has not until very lately been much ■exercised, and has at various times found great reluctance on the •part of the learned judges to use it, even in cases where the thing or act complained of was admitted to be directly or indirectly hurtful to the complainant" {Earl of Rijpon v. Ilobart, 3 Myl. (& Keeyi's i?,, 179). On these principles, a court of equity would ■seldom be called upon to exercise its jurisdiction in cases of ordi- nary obstruction of window lights ; but a great change has been made in the power of courts of equity to decide questions of this ■nature in England, by an act of parliament, and in this country, ■courts of equity are more inclined to interfere in cases of this de- scription, at the present day than formerly. It has now become a familiar rule here, that an injunction will be granted to prevent and restrain a nuisance, and it will be allowed at the instance of the individual who sustains a special injury from it. This doc- trine applies to the ordinary case of obstruction to window lights, where the right to the same has been acquired. The owner or occupant of the servient tenement is under obligation not to inter- fere unnecessarily and essentially with the right, and obstructing the light would be a violation of the obligation, a continuance of which violation a court of equity may interpose to prevent, and not only to prevent, but to compensate in damages for any injury sustained; for it is a settled principle that a court of equity hav- ing acquired jurisdiction of the subject-matter of the action, may make complete reparation to the parties {Story^s Eq. Jur.^ §§ 796, 797). In regard to private nuisances, the interference of courts ■of equity by way of injunction, is undoubtedly founded upon the ground of restraining irreparable mischief, or of suppressing ■oppressive and interminable litigation, or of preventing multi- plicity of suits. But Judge Story says " there must be such an injury as from its continuance or permanent mischief, must occa- THE REMEDY IN SUCH CASES. 563 61 on a constantly recurring grievance, wliich cannot be otherwise prevented but by injunction ;" and lie enumerates the destruction of water-courses as being of that description {Stori/''s £'q. Jur., §§ 925, 927). And as pertinent to this subject, it may also be observed, that it has been frequently decided that courts of equity have concurrent jurisdiction with courts of law, in a case of pri- vate nuisance for diverting or obstructing an ancient water-course, and may issue an injunction to prevent the interruption {Gardner V, Newhurgh, 2 Johns. Ch. i?,. 162 ; Van Bergen v. Van Bergen^ lb., 272; Belknap v. Belknap, lb., 4:63 ; Case v. Haight, 3 Wend. R., 632 ; Arthur v. Case, 1 Paige's R., 447). Cases of obstruc- tion to window lights are within these principles. Actions at law will seldom do full justice or afford ample relief in such cases ; the injury is usually irreparable and the damage cannot be ade- quately ascertained or recovered in an action. But the doctrine has actually been settled in cases involving the precise question of obstructing light and air. In a recent case before the New York Common Pleas, relief was granted. The facts were these : " The plaintiff owned two lots in the city of New York, upon the rear of which there was a house and lot fronting on a street, in which the plaintiff resided ; and being such owner, he entered into a contract to sell the defendant one of the first-mentioned lots, adjoining the one occupied by the plaintiff as a residence. The agreement of sale contained a stipu- lation that the deed of said lot should contain " a restriction against erecting any building on the same within fifteen feet of the rear line, and the usual restrictions against nuisances." Under this agreement the defendant took possession of the lot contracted to him, and shortly before the commencement of the action he placed boards and other material near said rear line, and threat- ened to build, and began to erect a wall or fence within the inter- dicted line, and directly in front of the windows in the plaintiff's dwelling, in such a manner as to obstruct the lights, and destroy, or greatly injure the plaintiff's house as a dwelling. The court held, that the intent of the parties was that the fifteen feet space, provided for in the agreement, should be left open, to afford light and air upon that side to the building on the rear of the adjoin- ing lot, and that to allow the defendant to put up the fence referred to, w^ould be in direct contradiction of the intent y^i the parties as expressed in the instrument. An injunction was, there- 564 J^^'^^ ^^ WINDOW LIGHTS. fore, granted restraining the defendant from erecting the fence ( Wrirj/it V. £:m?is, 2 Ahb. B., N. S., 308). Of course, it is not every obstruction to window lights, which will justify a court of equity to interfere by injunction. In order to justify an injunction, the obstruction must be of such .t charac- ter as to affect the comfort of those dwelling in t'lo house upon the dominant premises, or to make the occupation of the housu less beneficial for purposes of business. Said Lord Eldon, in tho English Court of Chancery: "The foundation of this jurisdic- tion, interfering by injunction, is that sort of mischief alluded to by Lord Hardwicke, that sort of material injury to tlie comfort of the existence of those who dwell in the neighboring house, requiring the application of a power to prevent, as well as remedy an evil, for which damages more or less would be given in an action at law. The position of the building, whether opposite, at right angles, or oblique, is not material. The question is, whether the effect is such an obstruction as the party has no right to erect, and cannot erect without those mischievous consequences which upon equitable principles should be not only compensated by damages, but prevented by injunction" {The Attorney- General v. Nichol, 16 Ves. R., 341). And Lord Westbury, in the same high court, made the same distinction, saying: "It is not in every case in which an action can be maintained for the obstruction of ancient lights that an injunction will be granted by a court of equity. Something more is required than that amount of injury for which damages may be recovered at law. As observed by Lord Eldon, this court will not interfere upon every degree of darkening ancient lights and windows ; but the standard of the amount of damage that calls for the exercise of the jurisdiction to to grant preventive relief or to prohibit the continuance of the nuisance, has not been defined with any certainty. * * * "Where the obstruction of the ancient lights of a manufactory or business premises renders the buildings to a material extent less suitable for the business carried on in them it is, in my judgment, a case for an injunction, and not merely for compensation in dam- ages. The foundation appears to be, that injury to property which renders it to a material degree unsuitable for the purposes to which it is now applied, or lessens considerably the enjoyment which the owner now has of it. The court considers that injury of this nature docs not admit of being measured and redressed by THE REMEDY IN SUCH CASES. 565 damaf^es " {Jackson v. The Duke of Newcastle, 33 Zaw J. i?., iV. S., C)i., 698). It seems now to be well settled, that a court of equity will interfere to protect the right to window lights by injunction, on the simple ground of preventing damage to the property, and will not require a case of injury to personal comfort or convenience to be made out as preliminary to obtaining its assistance ( Vide Wilson v. Townend, 1 Dreto cfc Sniales li., 327). It may be suggested, that the ordinary form of injunction is tc restrain something intended or threatened by the defendant. But courts of equity have a still more powerful remedy, the tnanda- iory injunction. By this they can compel a defendant to undo what he has already done; and this power may be exercised in cases of obstruction to window lights. This doctrine is now fully established, although in a recent case in the English Court of Chancery, the Master of the Rolls decided that the court could not exercise jurisdiction in a case of obstructing ancient lights, and grant a mandatory injunction to remove the obstruction. He con- sidered, laying aside any ingredient of fraud, the rule of equity to be, " that if the injury was complete, if it was done and alto- gether finished, so that this court could not grant the injunction when the bill was first filed, then equity had no cognizance of the matter " {Durell v. Pritchard, 34 Lam J. R., N. S., CL, 599). But on appeal, the Lord Justices expressly negatived the existence of any such rule, although they affirmed the decision of the Mas- ter of the Rolls on other grounds. Turner, Lord Justice, after examining the rule laid down by the Master of the Rolls, and the authorities upon the point, said: "I cannot, therefore, venture to go as far as the Master of the Rolls appears to have gone in this case, or to say that relief by way of injunction ought to have been refused in this case upon the mere ground that the damage had been completed before the bill was filed. The authorities upon this subject lead, I think, to these conclusions : That every case of this nature must depend upon its own circumstances, and that this court will not interfere by mandatory injunction except in cases in which extreme, or, at all events, very serious damage will result from its interference being withheld " {Durell v. Pritchard, Z. /?., 1 6%., 250 ; S. C, 35 Laio J. /?., N. S., Ch. 225). It should be stated, however, that the court will not grant a mandatory injunction on an interlocutory application. Said Kindersley, V. C. : " It was useless to come for what was called a mandatory 566 i^TT OF WINDOW LIGHTS. injunction on an interlocutory application. The court would not compel a man to do so serious a thing as to undo what he had done, except at the hearing" {Gale v. Ahhott, 8 Jur. N. 8., 988; ajid vide llyder v. Bentham, 1 Ves. Sen. H., 543). Wliere the right to window lights is admitted or duly estab- lished, evidence must then be produced to show that the right has suflered injury. The point which the plaintiff' has to prove in cases of this kind is, that his supply of light and air will be so reduced by the operations of the defendant as to render his house uncomfortable for occupation, or less fit for the carrying on there of his accustomed business. This has been sufficiently illustrated and explained in a previous chapter. The evidence brought for- ward by tiie plaintiff and defendant respectively to prove and dis- prove the point, is said to fall into two classes. Firstly, evidence of witnesses as to the actual effect produced by the operations complained of; and secondly, evidence as to the amount of sky area of which the plaintiff lias been or will be deprived by those operations, the court drawing its conclusions as to the effect on the plaintiff's premises of this amount of deprivation. In regard to the first class of evidence, it has been before shown that the courts pay no regard to the evidence given by other persons engaged in the same business as the plaintiff, that they are able to carry on that business with no greater amount of light than the plaintiff" still has left after the operations of the defendant. This proposition is abundantly sustained by authorities before referred to, and the argument need not be repeated here. In respect to the second class of evidence, it has been properly said, that it consists of information as to the height and width of former buildings now removed or proposed to be removed, and their dis- tance from the plaintiff's premises ; and of similar information with respect to new buildings erected or proposed to be erected, and after deductions drawn by scientific men from this informa- tion ; the real object of all which is to obtain an accurate estimate of the amount of sky area which the plaintiff' formerly enjoyed, and of Avhich lie will be deprived. Said Kindersley, Y. C, in a recent case: "The only value, as it appears to me, in all these cases of the question what is the distance of the intended new building from the building in question, or the skylight in ques- tion ; or what is the height of that new building at that distance ; or what is the width of that new buildins; at that distance ? The THE EVIDENCE IN SUCH CASES. 567 jnly value of all these considerations is, that tliey constitute dat9 from which you are to measure tlie area of sky wliich will be shut out by the new buildings. That is the only real value of them ; of course it is very necessary to be tolerably accurate for that pur- pose. But the object is to measure the area of sky whicrh the defendant's buildings will sliut out from the plaintiff's ancient windows or ancient lights. And when I say the amount of sky which the defendant's building will shut out, of course it must mean the area of sky which it will shut out more than the old building would shut out; because, of course, the new building is only responsible for the additional area of sky which it shuts out beyond what was shut out by the old building." And in the same case, the learned Vice-chancellor made the following valua- ble observations in respect to the mode of estimating the sky area in such cases: "In an ordinary window, that is, a window wliich is in a vertical frame, and which itself, of course, stands verti- cally, the quantity of area of sky, supposing there be no impedi- ment at all, is measured, of course, by 180 degrees horizontally, and ninety degrees vertically, because behind the zenith it can derive no light. If it were a horizontal skylight, a skylight per- fectly level with the horizon, it would derive light, that is, light mitrlit come to it, from the whole vertical area of ninety degrees on one side, and ninety degrees on the other, making 180 degrees. If it is neither vertical nor horizontal, it will derive light from an area to be* measured vertically having regard to the number of degrees that the slope of the building is from the perpendicular, because you must add that slope from the perijendieular" {Shone V. The City of London Real Property Company, [Limited], May 8, 1866, not reported except in Latham's Law of Wvidow Lights, 228, 229). These observations of the learned Vice-chancellor are important, and lay down rules which are very necessary to be understood, and could only have been settled by calculation, study and care. If a jury be summoned to decide the question, it has been said that they ought to judge rather from their own ocular observation than from the testimony of any witnesses, however respectable, of the degree of diminution which the plaintift''s ancient lights have undergone ( Vide Bach v. Stacey, 2 Car. c& Payne's P., 4:(j(j). But if the premises no longer exist in the former state, the view of a jury would be of no service. Said Wood, V. C, in a case before referred to : " The benefit of a view, 568 -C-'^"^ 0^ irrwow lights. which was also pressed upon me, I think is a good deal exagge- rated. If the jury could have had an opportunity of viewing the premises as they existed a year ago, and could be taken to view them as they exist now, the view miglit be very serviceable. But as it is, I confess I think that by the view the jury is exceedingly likely to be prejudiced ; for where a jury view premises as they are, without the slightest knowledge of what they were before, they may be influenced by the remark that was pressed upon me, but %vliat I think is of no vahie whatever, namely, why tiiere are plenty of people in London who have not so much light as you have " {Dent v. The Auction Mart Comjyany, 35 Zmo J. R.^ N. S., Cli. 566 ; S. C, L. i?., 2 Eq., 254). And it would seem from the remarks of Lord Westbury, in a case before referred to, that it would be improper for the judge before whom the case was tried, to make a personal inspection of the premises. He should decide the case according to the evidence produced in court, and then if error is conmiitted, the party may have his redress by appeal {Yide Jackson v. The Duke of Newcastle, 33 Law J. i?,, N. 8., Ch. 701). As a question (A practice^ it may be observed that the Supreme Court of the State of Illinois has held, that in an action for obstrnct- ino- air and liirht to the windows of a house, the declaration need not prescribe for ancient lights, but that the common-law pre- scription for use and enjo3nnent for a time whereof the memory of man runneth not to the contrary, may be shown in evidence {Gerher v. Gmhel, 16 III. B., 217). This may not only indicate the doctrine of the court upon the question of practice, but also upon the general subject of the right to window lights as well. And here the discussi'^ni of the whole subject is closed. ALPHABETICAL INDEX. A. A.BANDONMENT, paob. right to window lights lost by, when 556-558 ABATEMENT, of overhanging branches and the like 326 fences in highway 390-39-1 ACCRETION, Vide Alluvion. ACQUIESCENCE, evidence of true boundary of land, when 336, 337 ACTION, when lies for neglect respecting fences. ..34a, 345, 358-3GU, 365-370, 373 pulling down party wall 355, 356 drip of eaves 358 grubbing up trees, etc 358 removing line fence 368 obstructing window lights 553-554, 560, 561 ACTS OF OWNERSHIP, Vide Ownership. ADJOINING LAND, no obligation to fence against cattle on, when 341, 343 property in fruit, etc., falling on 330, 381, 334 ADJOINING OWNERS, boundaries of land of, how settled 345, 347-353, 356-367, 373 must maintain partition fences, when 361-365, 435, 436, 433 Vide Fences. ADMISSIONS, Vide Evidence. ADVERSE POSSESSION, concludes parties respecting boundary of land, when 335 AGREEMENT, to settle boundary of land by parol, when valid 354-256, 337 may be given in evidence in boundary cases, when, 390-393, 314, 334, 335 in respect to boundary land, when void 338 to maintain fences, must be in writing, when 344, 345 presumed in respect to fences, when 346, 348 not implied in respect to fences when 350 72 570 ALPHABETICAL INDEX. AGREEMENT— Continued. pake. right to window lights acquired by, when 525-527, 532, 535, 541 551, 563, 564 by, how created 526, 527, 539 express, when .... 525-527, 539 implied, when 527-531 not implied, when 544, 548 AIR, importance of the right to 515, 516 nature of the right to 515, 516 right to, an easement 516 right to, different from right to light 520 in city and country the same 520 Vide Window Lights. ALABAMA, boundary of the State of 281 statutes in respect to fences in 492-495 what are lawful fences in 492, 498 damages by trespassing animals in, recoverable when 493-495 dangerous things in fences, prohibited when 493 when and how partition fences to be maintained in 493, 494 property in partition fences in 493 liability of railroad companies in 495 ALLUVION, what is 81-84, 87 title to 81, 86, 169, 170 belongs to the State, when 81, 86 individuals when 81, 84, 86-88, 169, 170 when formed by artificial means, rules in respect to 85, 86 Mr. Livingston's views in respect to , 87, 88 how formed by natural causes 88, 89 how divided between the different proprietors 90, 91 AMBIGUITY, in grants of land, how explained 284, 285 Vide Construction. ANCIENT DOCUMENTS, when evidence in boundary cases 309, 310 ANCIENT LIGHT, right to, how acquired 522-525, 542 acquired by prescription, when 521-525 express agreement, when 525-527, 539 implied agreement, when 527-531 the American doctrine in respect to 532-551 cannot be legally obstructed, when 532, 534, 539 what regarded as such 532 right to, how lost 557, 558 remedy for obstruction of. 564 Vide Window Lights. ALPHABETICAL INDEX. 571 ANCIENT SURVEY, page -\vlien evidence ia boundary cases 313, 315 APPURTENANCES, •what passes as such in grants of land 170, 171, 173-176 ARKANSAS, statutes respecting fences in 503 AVENUE, boundary of lands on, rules in respect to 176, 183 Vide Highways, Streets. AVULSION, what is and rules in respect to 94 AWARD, not competent evidence in boundary cases, when 308, 309 B. BAILEE, may sue for injury from defective fences, when 359, 364 BALKS, what are, and presumptions in respect to 116 BANK, meaning of in respect to a river or stream of water 94 BEACH, meaning of 217 BOUGHS, Vide Trees. BOUNDARY, defined 27 of land, how known > 27, 28 by what to be settled 28 construction of language of 28, 29, 118-133 on sea-shore 31-33, 40 navigable rivers 40-46, 48, 146-148, 169, 184, 224 unnavigable rivers, 49-63, 77, 105, 106, 125-127, 144-148, 153 154, 169, 177, 185, 197, 198, 217, 218 lakes 64-70, 161, 162 ponds 70-73, 161, 162, 221 in respect to islands • • 73-80 alluvion or accretion 81-91 reliction 91-94 sea-walls and the like 95-103 roads and streets.. 103-111, 113, 125-127, 134, 136, 149-ir,3 154-163, 169, 170, 176, 178-186, 191, 192, 195-197, 210, 234 private ways 112-114 waste lands adjoining roads 114-116 party walls 117, 118, 140 572 ALPHABETICAL INDEX, BOUNDARY— Continued. pagb. construction of particular grants, in respect to 133-224 of lands on ridge of hills 151, 184 harbors 157, 158 how construed in respect to reservation in grants 158 is the outer edge of the object designated, when 167 extends to center of highway, when 180, 195, 197, 206, 213, 215 of land with varied descriptions 192-194, 204, 207, 208, 210, 211 214-216 description of, in two writings, how construed 199 grants from the State, how construed. ... 20O how construed when buildiugs are the objects used. . . 205, 206, 208, 211 212, 214, 215 practical location of 206 in respect to fiats, how construed 225-232 of States, counties and the like 223-244 when disputed between individuals, how settled . • 244-252, 254-269, 272 towns, how settled 246, 252, 253 when deemed to be lost 249, 250 confusion of, what is 269-277 practice in equity to settle 277-281 evidence in cases of 281-317 in respect to hedges, trees and the like 318-328 a parish 328-332 estoppels in respect to 333 BOUNDARY TREES, property in 318-328 BOUNDARY WALL, property in 323 BRANCHES OF TREES, overhanging boundary line, property in 325, 326 highway, may be lopped, when 326 BUSH OR SHRUB, Vide Trees, Tenant. c. CALIFORNIA, statutes respecting fences in ? 482-486 what are lawful fences in 482-484 owners liable for trespassing animals in, when 482, 484, 485 partition fences in, how maintained 484 value of, when collectible 484 penalty for injury to fences in 485 unfenced fields in, not protected by law 485 sheep free commoners in 485 liability of railway companies in 485, 486 ALPHABETICAL INDEX. 573 PATT PAGE. low answered in deed 29, 119, 176. 187, 188, 201, 203, 214, 216 controls course and distance, when 132, 201 one must give way to others, when -'-*' '"'"''''b'^'undaryof landon 133-135, 194. 221 defined CASE, lies for encroachments upon navigable waters, when JO, Ji CA-TTLE, no obligation to fence against by the common law d-ti, ^^-^ owner liable for trespass of, when 342, 345, 359, 360, 368 damages by, through defective fences, when recoverable. . . 359, 360, 366 may be distrained, when Vide New York, Maine, etc. CIVIL LAW, lule of, in respect to reliction *''"' ^"^ property in trees 319, 328 CLOSE, 2^^ defined COMMISSION, when granted to settle boundaries 245, 247-252, 256-267, 272 distinguish copyhold from leasehold lands 261-263 267 cases in which the remedy by, is denied 265, 266, 269-272, 274-277 CONTUSION OF BOUNDARIES, what constitutes "' remedies in cases of 245, 247-252, 256-267, 273 rules in respect to -^"-^ -"*' CONNECTICUT, Ao-Aon statutes respecting fences in 4^0-437 fences must be maintained in, when 425, 428, 437 what are lawful fences in ^■^'^ partition fences in, how to be maintained 425, 426, 433 where to be located 426 what are regarded such 426, 427 expense of, when recoverable 427, 432, 433 how divided between adjoining owners, 427, 431, 433 sufficiency of, how determined 427, 428 making of, how enforced 428-432, 435 fence-viewers in, and sufficiency of their proceedings 429, 430-432 435, 436 inclosures in, not to be thrown open, when 432, 433 damage by cattle in, when recoverable 433, 437 rules respecting unruly cattle in 433, 434 common fields in 434, 43j 574 ALPBABETICAL INDEX. CONNECTICUT— Continued. pige. penalty for throwing down fences in 435 rules respecting railway fences in 436 fencing homestead in 436 cattle may be impounded in, when 437 CONSTRUCTION, of land grants, rules in respect to 28, 29, 118-133, 190 parol evidence to aid in 71, 121, 122, 164, 165, 203, 204, 284 of grants of land on rivers • • • ''^9. 125 roads and streets 103-111, 125, 134 privato ways 112-114 party walls 117, 118 general rules in respect to 118-133, 190, 200-202, 205, 222, 224 282, 283 intent of parties to control in 120, 121 so made that whole instrument is operative 123 paper must speak for itself. 120, 124, 127, 129 of grant from the State, same as from individuals 133 rules of, applied to particular grants 133-224 change of words in giving, when proper 159 of grants when quantity is specified 162-164, 194, 195, 209 particular words in grants 185, 186, 201 rules in respect to aids in giving 284, 285 CONVEYANCE, of land, how construed 28, 29 Vide Construction. COSTS, in boundary cases, rules in respect to 280, 281 COUNTIES, rules in respect to boundaries of 233 courts will take judicial notice of, when 234-236 COURSE AND DISTANCE, must yield to monuments, when. . . 30, 140, 156, 157, 167, 177, 178, 187 188, 221, 222, 232, 282 when land may be located by 202 controlled by other objects in deed, when 208 COVE, boundary of land on 1*1 COVENANT, to repair sea-wall runs with land 102 fences, runs with land, when 344 in leases, when runs with land 511) 512 for right to window lights, runs with land, when 527 when special 559, 560 CREEKS, boundary of land on, when an arm of a lake. . 65, 67, 148, 220, 223, 226 how construed 153, 154, 159, 161, 162, 183 ALPHABETICAL INDEX. 575 CUSTOM, r^e*- liability to repair sea-wall by ^^2 aid for construing grant, when 198 when binding in respect to fences 345, 346 D. D.UIAGE-FEASANT, cattle may be distrained doing, when 396 DAMAGES, may be recovered for non-repair of fences when 342, 345, 358-360 365-370, 373 DECLARATION, of parties, when admissible in boundary cases 300-305 DEDICATION, of road, effect of 111> l^^, 315 DEED, how effected by reference to, in second grant 158 when two or more are to be construed together 166 certain words in, how construed •. 1"^ ambiguity in, how explained 284, 28a to third person, when evidence in boundary case 287 contracts may not be proved by parol, when 287 Vide Construction. DEFENSE, when allowed to be erected against encroachments by the sea 97, 98 rivers 97» ^^ DEFINITIONS, 27 of boundary shore 33,34, 94 alluvion Sl» ^^' ^* reliction bank of a river or other stream ^^ 94 avulsion purpresture ^^' ^^ balks ^^^ beach ^^l bounds 11^ bed of river ^^^ fences inclosure "cattle" fl ,. .. 470 discretion 516, 526 easement ' DELAWARE, ^^^ ^,, • /• • 444 445 statutes respecting fences m ' owners liable for trespassing cattle in, when • • • ■ 444, 44.) partition fences in, rules in respect to • • • ' '' 576 ALPHABETICAL INDEX. DERELICT, Vide Allution. DESCRIPTION, PAsi. of boundary in grants, bow construed 28, 29, 118-133 parts of, may be rejected wben 121, 123, 124, 129, 130 aid for interpreting language of 124, 284, 285 want of, invalidates deed, wbeu 130, 137, 302 contained in one deed to be tbat of another, when 131 in deeds from State, how construed 133 particular grants, how construed 133-224 map taken as part of, when 138, 139, 141 what is sufficient in a grant 159 when parol evidence to explain admissible 285 DISCOVERY, when equity grants in boundary cases 267, 268 DITCH, boundary' of lands on 161, 187 when action accrues for obstructing 333 on boundary, where to be located 351 rules in respect to 351-353 DIVISION FENCES, obligation to maintain, when 342, 343 how regulated 343, 345 legislature has power to regulate 343 agreements to maintain, when valid 344, 345 covenant to maintain runs with the land, when 344 obligation to maintain by prescription 344-347 how destroyed 348-350 where to be located 351 Vide Fences. DOCUMENT, Vide Evidence. DOMINANT TENEMENT, owner of, what light entitled to 541, 552, 553-556 has right to window lights, when 556-559 remedy for obstruction of window lights 535, 552, 554, 559-566 E. EASEMENT, nature of the right in the public highway Ill, 112 what passes by a grant of. 173, 174 to have fences repaired 343 when grant of is presumed 345, 353, 354 when held to be extinguished 349, 547, 556-559 right to light and air 516, 526, 532 defined 516, 526 ALPHABETICAL INDEX. 577 EASEMENT— Continued. ^^^^ bow created 50(5^ 535^ 543. what is evidence of 526 of light cannot be acquired by prescription, when 540 EAVES, right to drip of, how acquired 355^ 357 EJECTMENT, remedy by iu case of disputed boundaries 257;, 275-277 party wall, when 357 EMBANKMENT, on the sea for protection, rules in respect to 95-102 "when allowed on unnavigable streams 98-100 ENCROACHMENT, on highways by fences, remedy for 390-394i EQUITY, court of, will grant relief in case of disputed boundaries, when 245' 247-252, 256-267, 272 rules of, respecting disputed boundaries 269-277 will enforce covenants respecting window lights, when 559, 560 grant relief in cases of obstructing window lights, when 561-566 ESTOPPEL, "when can be set up in boundary cases 333-335 ESTOVERS, tentants right to, rules in respect to 507-509 EVIDENCE, in respect to navigability of rivers 54 55 "When parol admissible to explain grant of land 71, 125, 212, 284-288 effect of acts of ownership resi>ecting waste lands. 114, 115 to aid in construing grants of land 121^-123, 128, 207, 284 of locating monuments on land 125, 203 hearsay in respect to boundaries, when admissible 207,. 296-306 generally in boundary cases 281-317,. 333-388; of usage, when proper 294-296> declarations of parlies respecting boundaries, when admiissible. . 300, 335- documentary in boundary cases 307-317.' in respect to ditches 35^, sufficiency of fences 369, 375i window lights 558, 554, 566-568- EXTENT, of the right to window lights 552-556: E >LTINGUISnMENT, of easements, how effected 349, 547, 556-559» the right to window lights, how effected 547, 556-559- 578 ALPHABETICAL INDEX. F. 'FEJsCES, PAGB. how the word is applicable to lands 28 indicate the extent of highway, when Ill passengers on highway may make gap in, when 116 defined 341 not required by the common law 341, 342, 346. 347, 348 action for neglect to build or repair 342, 345 subject. of, how regulated 343 right in, respect to an easement 843 legislature may regulate. 343, 372-380, 496 statutes in respect to, how construed 343, 344 obi igation to maintain by agreement 344 covenant to maintain runs with the land, when 344 obligation to maintain bj' prescription 345-347 how destroyed 318, 350 where to be located 351-353, 358, 362, 363 property in. 352-354 when. may be removed by one party 353-357 liability for repair of 356, 358, 360 consequence of the neglect to repair 358-360, 365-370, 372 statutes of the several States in respect to 361-504 New York respecting 361-398 materials for, deemed fixtures, when 397, 463, 471, 472 statutes of Maine, respecting 399-405 New Hampshire, respecting 405-410 Vermont, respecting 410-415 Massachusetts, respecting 415-422 Rhode Island, respecting 422-425 Connecticut, respecting 425-437 New Jersey, respecting 438-440 Pennsyh'ania, respecting 440-444 Delaware, respecting 444,445 Maryland, respecting 445,446 Virginia, respecting 446 , 447 West Virginia, respecting 447,448 Ohio, respecting 448,449 Michigan, respecting 449 , 451 Indiana, respecting 451-454 Illinois, respecting 454-458 Wisconsin, respecting 459-465 Minnesota, respecting 465 , 466 Iowa, respecting 466-472 Missouri, respecting 472-475 Kansas, respecting 475-479 Nebraska, respecting 479-481 Nevada, respecting 481 , 483 Oregon, respecting 482 California, respecting . , 482-486 ALrUABETICAL INDEX, 570 FENCES— Continued. -pKat:. statutes of North Carolina, respecting 4SG-489 South Carolina, respecting 489, 400 Georgia, respecting 490-492 Florida, respecting 493 Alabama, respecting 492-495 Kentucky, respecting 496-408 Tennessee, respecting 408-500 Mississippi, respecting 500-502 Louisiana, respecting 502, 503 Arkansas, respecting 503 Texas, respecting 503, 504 summarj'- of the Statutes respecting 504 rights and liabilities of landlords and tenants in respect to .. . 504-513 FENCE-VIEWERS, duties and powers of, in New York 361, 365, 394-397 Vide Maine, etc. FISHERY, right to, how acquired 38 when enjoyed 219 FIXTURES, when fencing materials are held to be 397, 463, 471, 472 FLATS, what passes by grant of 175, 197, 225-232 how divided between adjoining proprietors 226-230 disseisin of, how proved 280, 231 what language will pass title to • • 231, 232 FLORIDA, statutes respecting fences in 493 FRUIT, falling on neighboring land, property in ......... 325, 326 on overhanging branches, property in 325, 326 FRONTAGERS, to repair sea-walls, when 102 G. GEORGIA, boundary of 239 statutes respecting fences in 490-492 what are legal fences in 490, 491 animals trespassing on unfenced land in 490, 491 maybe impounded, when.. 491 pulling down fences in, an indictable offense 491 liability of railway companies in 401, 492 580 alp:b:abetical index. GRANT, PAGE. of land, how construed 28-30, 86, 118-133, 190 what may be rejected in 30, 162, 164, 165, 204, 210, 231 of land, taken most strongly against grantor, when 30, 120 sea-shore, evidence of 36 whatpassesby 37-39,43,79, 86 extends to center of river, when 43, 49-63 ; 65, 106 of rivers, what passes by 79 lands on roads and streets, what passes by 103-111, 125, 126, 133-136 149-151 extends to center of roads and streets, when 103-111 private way, when 112-114 party wall, when 117, 118 general rules of construction of 118-133, 201, 203 aids in the construction of. 124, 128, 184, 198, 208, 284, 285 void for want of proper description, when 130, 137, 202 effect of mistakes in 189, 190, 199, 200, 337, 338 rules of evidence in locating 281, 282 of land by quantity, how construed 337, 338 in respect to window lights, rules in respect to 528, 529 GRANTEE, Tide Grantor. GRANTOR, languaee of grants, how construed in respect to, 30, 120, 123, 130-132, 139 202, 225, 281 when rule as to strong construction against, not applied 131 may not derogate from grant respecting window lights, when. . . 528, 529 stop the light of his grantee, when, 528-531, 534, 535, 539, 540 543, 544, 547, 548, 550 may obstruct the light of his grantee, when 536-538, 545, 548 H. HARBOR, boundary of land on 157, 158 HEARSAY, when admissible in respect to boundary 207, 296-306 HEDGE, passengers on highway may break through, when 116 on division line, property in 318-320 HEIR, bound by ancestor's covenant, when 344 HIGH- WATER MARK, Tide Lakes, Rivers, Sea-shore, Boundary. HIGHWAY. boundary of land on, 103-111, 113, 125-127, 134, 136, 149-153, 154-163 169, 170, 176, 178-186, 191, 192, 195, 195, 210, 224 ALPHABETICAL INDEX. 581 HIGHWAY— Continued. p^o^- presumption as to property in soil in 103-111, 113 grant extends to center of, when, 104-111, 113, 125-127, 134, 136, 142, 144 145, 149-152, 154-1G3, 1G5-1G7, 179 extends from fence to fence, when HI statute controls extent of, when HI right of the public in 111,112,150,372,373 travelers may turn out of, when 116, 117 branches of trees hanging over, may be lopped, when 326 abatement of obstructions and encroachments to 390-394 HILLS, boundary of lands on 151,102,181-183 HISTORY, Vide Evidence. I. ILLINOIS, statutes respecting fences in 454-458 fenciug, "common fields," in ^^^ maintenance of partition fences in 454, 455, 457 disputes respecting fences in, how settled 454 lands in, may remain unfeuced, when 455 what is a lawful fence ill 45o actions for tre8i)assing animals in 455-457 stock, to be secured by fence, in, when 456 may run at large, in, when 456, 4o7 rules respecting railway fences in 458 INDIANA, statutes respecting fences in 451-4o4 what is a lawful fence in 451, 457, note action for trespassing animals in 451-453 rules respectmg partition fences in 451, 452 outside fences only required in, when 452 rules respecting railway fences in 452-454 INDICTMENT, when lies for encroachment upon navigable waters 96, 97 Vide Fences. INJUNCTION, not allowed in cases respecting light and air, when 545, 561 allowed in cases of obstruction to window lights, when 554, 561-564 to restrain nuisance, when "^"1' "^""^ different kinds of, in cases of obstruction to window lights 561 INTENT OF PARTIES, ahvavs go verus in construction of grants. . . 120, 121, 125, 128, 132, 144 147, 174, 208 how ascertained in respect to grants of land, 120, 124, 125, 128, 131, 174 166, 233 582 ALPHABETICAL INDEX. INUNDATION, page. law of alluvion applies in case of, wlien 68, 09, 84, 91 boundaries not altered thereby, when 69, 75, 91 [OWA, boundary of 239-241 statutes respecting fences in 466-472 partition fences in, how maintained 466-468, 470 value of, may be recovered, when 467, 470 disputes respecting, how settled 467 dispensed with, when 467, 468 how divided between proprietors 467, 468 mistakes in locating, how corrected 468 what is a lawful fence in 468, 470 animals free commoners in, when 468, 469 rules respecting fencing railroads in 469, 471 proceedings of fence-viewers in 469 actions for trespasses of animals in, when 469, 470 fences in, held to be fixtures when 471, 473 ISLAND, property in 49, 50, 73-80 ISSUE, Vide Equity. J. JUDICIAL NOTICE, will be taken of location of States, counties and the like 234-236 JURISDICTION, may be exercised by New York and New Jersey, when 241, 243 U. S. courts in respect to boundary, when. . 243, 244 courts respecting boundary, when, 245, 247-253 254-269, 273 equitable, rules respecting, in boundary cases 269-277 when denied in boundary cases ... 265, 266, 269-273, 274-277 JURY, how opinion of, to be formed in cases of window lights 567, 568 K. KANSAS, statutes respecting fences in 475-479 rules respecting fencing fields in 475-478 what are legal fences in 475, 476, 478 powers and duties of fence-viewers in 476 partition fences in, maintenance of 476, 477 value of, recoverable, when 476, 477 how divided between proprietors 476, 477 may be dispensed with, when 477 damages for want of 477-479 mistakes in locating, effect of 478 ALPHABETICAL INDEX. 583 KENTUCKY, p^*"'- boundary of 233,239.242,243 statutes respecting fences in 496, 497 what are lawful fences in ^^^ legislature may regulate fences in 490 conveyance of defective fences in 496, 497 partition fences in, may be removed, when 497, 498 rules respecting fencing railways in 498 L. LAKE, boundary of land of G4-T0, 109, 170, 197 soil under, property in 08-<0 boundary of States on 234, 230, 237 LAND, description of, in grants, how construed 28, 29, 118-133, 190 rules for lociiting grant of -'^ title to, under navigable waters 31-33, 39, 40, 44-40, 48, 49 unnavigable waters 45, 49-03 boundary of, on luivigable waters 45, 48, 49 unnavigable waters 49-63 lakes and ponds 64^73 formed by alluvion, property in 81-91 relicta, property in 91-94 LANDLORD, obligations of, respecting fences 504-512 remedies of, respecting waste 500-508 covenants of, to renew lease, rules respecting 512 LANDLORD AND TENANT, rights and liabilities of, respecting fences 504-513 lease between, how construed 504, 505 which bound to maintain fences on demised land 505 LE \.SE how construed 504-500, 510, 511 covenants in, run with land, when 511, 51^ LETTERS PATENT, how may be avoided -^^ LIGHT, importance of the right to 515, 516 nature of the right to 516 right to, is an easement 516 not to be interfered with, when 519, o20 how differs from air 5V.0 right to, in city and country alike 520 how acquired 5~l-o31 LINES, of land, how to be run "^ 584 ALPHABETICAL INDEX. LORD, PAOB. rights of, in respect to waste lands , 114, 115 LOUISIANA, statutes respecting fences in 503, 503 provisions respecting boundary lines in 502 railroads in 502, 503 the easement of light and air in 546, 547 M. MAINE, statutes respecting fences in 399-405 fence-viewers and their duties in 399, 400, 402 what are legal fences in 399 partition fences in, maintenance of 399-401 how divided between proprietors 400, 404 value of, may be collected, when 400^03 when to be kept up 401 where to be located 401, 402 may be dispensed wilh, when 402, 403 want of, conveyances of 404 fences in, deemed boundary line, when 404, 405 required by prescription, when 405 obligation of railroad companies ia respect to fences in 405 rules respecting fencing of common lands in 405 impounding animals in 405 light and air in 543 MANDATORY INJUNCTION, when granted in cases of obstructing window lights 565, 566 MAP, when deemed part of grant of land , 188, 139, 312 referred to in grant, etTect of 141-144, 153, 169, 196 when evidence in boundary cases 286, 310-312, 314 MARYLAND, statutes respecting fences in 445, 446 common law respecting fences recognized in 446 MASSACHUSETTS, statutes respecting fences in 415-422 what are lawful fences in 415, 420 partition fences in, when to be maintained 415 where to be located 415, 419-421 occupants of land to build fences in, when 415, 416 how far the common law respecting fences is in force in 415 making of partition fences in, how enforced 416-421 powers and proceedings of fence-viewers in 417-419, 421 controversies concerning fences in, how settled 417, 418 partition fences in, how long to be kept up 419 when not required 420, 421 ALPHABETICAL INDEX. 585 MASSACHUSETTS— Continued. p^ge. actions may be brought for neglect to fence in, when 423 rules in respect to fences along highways 4'>2 towns in, when required to build fences 423 MICHIGAN, statutes respecting fences in 449^51 what deemed lawful fences in 449 partition fences in, maintenance of 449-451 rules respecting fencing railroads in 450, 451 consequences of neglect to fence lands in 451 MINNESOTA, statutes respecting fences in 465, 466 what are lawful fences in 465 466 partition fences in, maintenance of 465 disputes in respect to, how settled 465 stock free commoners in, when 466 consequences of neglect to fence land in 466 MISSISSIPPI, statutes respecting fences in 500-502 what are lawful fences in 500-501 provisions respecting partition fences in 501 railroads in 501-502 MISSOURI, boundaries of 239-243 statutes respecting fences in 472-475 inclosure of fields in, rules in respect to 472 damages by trespassing animals in, when recoverable 472-474 trespassing animals in, may be killed, when 472 , 473 division fences, may not be removed, when 472,473 value of, may be recovered, when 473 damages for neglect of, when recoverable 473 mistakes in locating, effect of 473, 474 rules respecting liabilities of railway companies in 474, 475 MISTAKE, in respect to boundary of land, effect of 337, 388 locating line fences, effect of 468, 474, 475, 478, 487 MOHAWK RIVER, rights of the public in 44, 47, 48 MONUMENT, controls course and distance, when 30, 119, 120, 198, 232, 285 boundary extends to center of, when 118, 119.233 identity of, in land grants 124. 125 placing of, how proved 125 course of, presumptions in respect to 133 one prevails over another, when 132,197 effect of, generally, in land grants 184, 187, 191 natural, when maj- be yielded 21S 74 58G ALPHABETICAL INDEX. MOORING, PAGE, public right of, along navigable rivers 44, 47, 48 MULTIPLICITY OF SUITS, equitable jurisdiction to prevent 251, 357, 264, 265, 274 N". NAVIGABLE WATERS, soil under, litle to 31-33, 43 what are deemed such 35, 43, 44 bouudiuy of lands on 31, 34, 40-46, 48, 146-148, 169, 184, 224 jurisdiction in respect to 31-33, 43-45 NEBRASKA, statutes respecting fences in 479-481 division fences in, maintenance of 479, 480 value of, -when recoverable 479 disputes respecting, how settled 479 may be removed, when 479, 480 fence-viewers in and their powers 480 what are lawful fences in 480 damages in unfenced fields, when recoverable 480 cattle in need not be fenced against, when 480, note fencing railroads in, rules in respect to 481 penalty for injuries to fences in 481 NEVADA, statutes respecting fences in 481, 483 action for trespassing animals in 481, 483 NEW HAMPSHIRE, statutes respecting fences in 405-410 division fences in, maintenance of 405-407, 409, 410 legal fences in, same as in Maine 406 value of division fence in, may be recovered when 406-408 power of fence-viewers in 406-408 consequences of insufficient fences in 408-410 agreements respecting line fences in 409 remedies for throwing down fences in 410 liability of railway companies in 410 NEW JERSEY, boundary of 241, 242 jurisdiction of. 241, 243 statutes respecting fences in 438-440 what are lawful fences in 438, 439 action for animals trespassing in 438-440 division fences in, maintenance of 438-440 how divided between owners 439 may be omitted, when 439 fences along streets in, where required 439, 440 location of division fences in 440 ALPHABETICAL INDEX. 587 NEW YORK, PA««- boundary of 2"*^' ^^"' jurisdiction of -. 2"*^' ~"*~' statutes respecting fences in 3GI-308 division fences in, maintenance of 3G1-3G5 fence-viewers in, their powers and duties 361, 362, 365, 367, 369 394r-397 sufficiency of fences in 363, 369, 3 < fences in, may be omitted, when 363 who may enforce the obligation to fence in 363, 364 railway fences in 364, 375, 380-389 disputes respecting fences in, how settled -^ • 365 consequences of neglect to repair fences in 365-370, 373 how obligation to repair fences is enforced 368, 369 fences in, may be removed when 368-3*0 evidence in respect to sufficiency of fences in 369, 370 regulation of fences in, by town electors. . . 371-380 powers of towns in, to regulate fences, examined 372-880 encroachments upon highways by fences in 390-394 fences may be built across water-courses in, when 397 right of party to erect partition fence in 397 rules respecting fences in New York city 397, 398 NEW YORK CITY, regulations respecting fences in 397, 398 NORTH CAROLINA, statutes respecting fences in 486-489 planter's duties in respect to fences in 486-488 what are lawful fences in "186, 488 partition fences in, maintenance of 486 not to be removed, when 486-488 mistake in erection of 487 action for trespasses of animals in, when recoverable 487^89 NUISANCE, power of State to suppress ■ 241 in case of overhanging branches of trees 326, 338 drip of eaves 356, 357 fences on highway 390, 391 fences are not, when ^Oo remedies in case of '^^'■■> '^"'^ o. OBSTRUCTIONS, in highway, remedy for 390-304 to window lights, what is 541, 553, 553 remedy for 552, 553 evidence in case of 553, 554 588 ALPHABETICAL INDEX. OCCUPANCY, PAGB. rigbt to winc'.ow lights acquired by 521, 525 conditions of 523-525 OCCUPATION, evidence in boundary cases, when 286, 294 Vide Practical Location. OHIO, statutes respecting fences in 448, 449 when railroads in, must be fenced 449 animals free commoners in 449 OREGON, statutes respecting fences in 483 penalty for destroying fences in 482 OWNERSHIP, of lands under tlie sea and other navigable waters 31-36, 50, 51, 73, 315-317 unnavigable waters, 49-63, 77, 105, 106, 125-127, 144-148, 153, 154, 169, 177, 185, 197, 198, 217, 218 roads and streets, 103-111, 113, 125-127, 134, 136, 149-152, 154-163, 169, 170, 176, 178-186, 191, 192, 195-197, 210-224 acts of, when evidence in boundary cases 114, 115, 315-317 proof of, in case of ditches 351, 353 P. PARISH, boundaries of, rules in respect to 328-S32 towns regarded such, where 330 rules in respect to 330 PAROL, Vide Evidence. PARTIES, to proceedings to settle boundaries 279 PARTITION, of lands, when proper 271, 272, 278 PARTY WALL, presumptions in respect to 117, 118 boundary of land on 117, 118, 140 how to be located, and property in 352-354 may be pulled down, when 353-357 liability for repairs of 356 obligations in respect to 356, 357 PENNSYLVANIA, statutes respecting fences in 440-444 inclosures in, to be fenced, when 44C ALPHABETICAL INDEX. 589 PENNSYLVANIA— Continued. paob coDvSequences of want of fences in 440, 442, 444 penalty for throwing down fences in ... i 440 partition fences in, maintenance of 440-442 disputes in respect to, how settled 441 powers of borough in respect to 441 how to be located 44L value of, recoverable, when 44L, 44o may be removed, when 442, 443 cattle in must be secured by fences, when 444 may be impounded, when 444 PERAMBULATION, effect of, in locating land 246, 247 evidence in boundary cases ~°^ POND, boundary of land on 70-73, 161, 162, 171 POSSESSION, when evidence in boundary cases 287, 335 evidence of title to land, when 302, 315 PRACTICAL LOCATION, effect of as evidence -^^ how established 28S-294 PRESCRIPTION, when binding on the public 35 obligation by to maintain fences, when 345-347 how destroyed 348-350 right to drip of eaves acquired by, when 356 wmdow lights acquired by, when 521-525, 532, 539 conditions of 523 how lost 556-559 PRESUMPTION, when indulged as against the public 35-37 of grant of land, when 36 respecting boundary of land on navigable waters 40 47 unnavigable waters 53, 61, 218 ponds 72 roads and streets 103-1 14 private way 112-114 in respect to waste lands 114-116 party walls 117. 118 true boundary of land 124, 127, 132, 134, 135 States 234 PRIVATE WAY, rules applicable to 112-114 passengers may not go outside of 117 590 ALPHABETICAL INDEX. PROPERTY, PAGE. in land bounding sea-shore 31, 34 islands 49, 50, 73-80 the soil under rivers, 31, 32, 39, 40, 42, 49-63, 100, 106, 108, 109, 111 in roads and streets 103-11 1 party walls 117, 118 boundary trees 318-328 PROSPECT, rule in respect to right of 517, 518 action will not lie for obstructing, when 553, 553 PUBLIC DOCUMENTS, when evidence in boundary cases 307-310 PUBLIC REPUTATION, when evidence in boundary cases 297-301, 305-309 PUNCTUATION, resort to in construing grants 130 PURPRESTURE, defined, and rules in respect to 95, 96 E. RAILROADS, obligation of owners to fence in New York 364, 375, 380-389 Vide Maine, New Hampshire, etc. RELEASE, right to window lights lost by, when 556, 558 RELICTION, defined 91, 92 rules in respect to 91-94 of the civil law in respect to 92, 93 REMEDY, in case of disputed boundary 244-252, 254-269, 273 obstructing window lights 535, 553, 553 REPUTATION, when evidence in boundary cases 297-306, 308, 309 verdicts evidence of, when 297-301, 305-309 ancient surveys evidence of, when ; 313, 314 RESERVATION, effect of, in grant of land 176 REVERSIONER, may have action for obstructing window lights, when 561 RHODE ISLAND, statutes respecting fences in 423-425 what are lawful fences in 423 ALPITABETICAL INDEX. 591 RHODE ISLAND— Continued. page. partition fences in, maintenance of 423, 424 must be placed on true line 423 agreements in respect to 424 may be omitted, when 424 disputes respecting, how settled 424, 425 fence-viewers in, and their powers 424, 425 towns required to fence roads in, when 425 RIDGE OF HILLS, boundary of land on 151, 184 RIGHTS, the word explained as used in land grants 173, 174 RIVER, when navigable, property in the soil under, 31, 32, 39, 40, 42, 44-4G, 48, 49-63, 100, 106 deemed navigable, when 43, 44, 45-47, 58-55 public, when 44, 53-57 when navigable, jurisdiction over 44, 45, 53, 57 boundaryof landon.... 45, 48-63, 78, 92, 93, 169, 224 different classes of 44, 45, 52, 58 when unnavigable, boundary of land on, 49-63, 65, 106, 108, 109, 111, 146-148, 153, 154, 159, 160, 169, 224 navigable, property in the soil under 52-63 146-148 what deemed the bank of 55 islands in, property in 73-80 thread of, how ascertained 77 when unnavigable, protection of banks of 98-100 boundary of grant 1 89 State, rules in respect to 234, 237 ROAD, ROOTS, Tide Highway. Vide Trees. s. SEA, soil under, property in and control of 32, 33, 39 SEA-SHORE, boundary of lands on 31, 34,67,217,219, 221, 222 property in 31-33, 39, 42, 43 right in, how transferred 32, 35-37, 39 defined 33, 34 walls upon, when allowed 95-100 boundary of State by 234 SEA-WALL, when allowed on the sea-shore 95-100 rules in respect to 95-102 592 ALPHAR^rjf'.iL INDEX. SHORE, TAOE. defined 33, 34, 68 boundary of 32, 35-37, 39 property in 31-33, 39, 41, 42, 67, 68, 221 different kinds of 67 SKY AREA, how estimated in cp^e? of p-'-O'low lights 567 SOIL, under the sea, property i/) 32, 33, 39 certain other waters 32, 35, 36 presumptions in respect to property in, under rivers.. 37, 38, 50, 51, 73 property in, id roatis and streets 103-111 f«OTjTH CAROLINA, statutes respecting fences in 489, 4; what, aie legal fences in 489 cultivated fields in, to he fenced, when 489, 490 tiespassing animals in, may be distrained, when 489 actions for 490 expense of partition fences in, recoverable when 490 liability of railway companies in 490 ♦IaKES, effect of, as monuments 213 STATES, may control navigable waters in, when 33 rules respecting boundary of 233-244 judicial notice of. 234-236 boundary of, on the Mississippi river 242, 243 how settled 243, 244 STATUTES, Vide Fences, New York, etc. STREAMS, when unnavigable, boundary of lands on 49-63, 65, 197, 217 embankments and dams on 98-100 Vide River. STREETS, boundary of land on 103-111, 125-127, 134, 136, 142, 144, 145 149-151, 154, J55, 169, 172 presumptions as to soil of 103-111, 113, 125-127 designation of, in deed 143, 144 rule as to boundary on, same in country and city 150, 151 effect of naming of, in grant 1'^^ referred to as a monument, effect of 160, 161 Vide IIionwAY. SURVEY, competent evidence in boundary cases 283, 286, 312-315, 334 ALPHABETICAL INDEX. 593 T. TENANT, ^^„ must keep boundaries of demised lands distinct, when .... 361-263, 267 proceedings in equity against lor rent 267, 28(5 liability of, respecting fences 504-511 must niainlain fences, when 505 507 51U property of, in trees, hedges, etc 506 excused from repairing fences, when ,'507 liable for waste, when 507 5O8 right of, as to estovers. . , ^ 5O7 508 to use timber to repair fences 507-51U assignee of, to maintain fences, when 511 may have renewal of lease, when 512 TENANTS IN COMMON, may have partition, when 271 272 278 rights of, in trees, hedges, etc 320-324 partition wall 322 boundary line 333 TEJNNESSEE, statutes re.tpecting fences in 498-500 fences required in, when 49g consequences of defective fences in 498 499 partition fences in, maintenance of 499 500 penalty for damaging fences in 499 fences in, may not be removed, when 499 500 liability of railway companies in 500 TEXAS, statutes respecting fences in g03 504 TIDE- WATER, Vide River. TITLE, to laud under navigable rivers 81-33 39 40 unnavigable rivers 52-63 Vide Sea-shore, Highway. TOWN, rules in respect to boundary of 233 judicial notice of 235 236 disputed boundaries of, how settled 246, 252 253 power of, respecting fences in 371-380 TREES, when marked, evidence in boundary cases 28^ on division lines, property in 318-328 rule of the civil law in respect to 319, 328 French Code in respect to 319, 320, 328 severing of, action for 35g 76 594 ALPHABETICAL INDE^. U. UNITY OF OWNERSHIP, paob. extinguishes obligation respecting fences, when 348-350 right to window lights, when 556, 558, 559 UNITY OF POSSESSION, destroys right to window lights, when 556, 558, 559 USAGE, aid of, in construing a grant 122, 123, 294-296 USEK, may be proved to aid in construing a grant, when 180 V. VERDICT, evidence of, in boundary cases 307-309 VERMONT, statutes respecting fences in 410-415 what are lawful fences in 410 highway fences need not be maintained in 411 division fences in, muiutenance of 411, 412 dispensed with, when 411 consequences of defect of 411, 413, 414 locating of 412 how divided between proprietors 412 the fence-viewers in 412, 414 railway fences in 412 fences need not be built in, when 412 damages where no fence exists in 418 impounding cattle in 415 meaning of ' ' inclosure " in 415 VIEW, rule in respect to right of 517, 518 no action for obstructing, when 552, 553 when proper in cases of obstruction to window lights . . 567, 568 VIRGINIA, statutes respecting fences in 446, 447 w. WALL, on the sea, rules in respect to 95, 102 when allowed 95, 100 on unnavigable streams, rules in respect to 98, 102 between adjoining owners of land, boundary on 117, 118, 140, 189 vV^ASTE LANDS, by side of road, property in 114-116 right to, by prescription, when 114 origin of, in England 116 ALFJiA2iM:TIVAL IX^DEX. 595 WATER-COURSE, pa«b. boundary of land on 63, 125, 133-135, 161 rule same as to artificial as natural 63, 64 Vide RiVEK, Waters. WATERS, boundary of land on 31, 33-48 soil under, property in 31, 32, 39, 40, 42, 44, 46, 48-63 what are deemed navigable 35, 43-47, 53-55 Vide Sea, River, Lake, Pond. WEST VIRGINIA, statutes respecting fences in 447, 448 WHARF, grant of, what passes by 175 WILL, rules of construction of 174 WINDOW LIGHTS, importance and nature of the right to 515 right to, a continuous easement 516 different from tliat of prospect or view 517, 518 in respect to prospect or view 518, 519 analagous to right to water 519 in city and country the same 520, 554 how acquired 521-531 acquired by occupancy, when, 521-525, 532, 534, 542, 543, 546 557 express agreement, when, 525-527, 532, 535, 541 54'^ implied agreement, when 527-531, 550 the American doctrine in respect to 531-551 English rule in respect to, not recognized in the United States, when, 533 534, 536, 540, 542, 543, 545, 549 remedy in cases of obstruction of 535, 552-554, 559,-566 English rule in respect to, when recognized in the United States, 539, 540 545, 547, 548, 550 what is an obstruction of 541 , 552, 564 no implied agreement for right to, when 544, 547-550 prescriptive right for, when 545, 546, 550 extent of the right to 552-556 evidence in cases of obstruction ot 553, 554, 566-56H right to, how lost 556-559 by abandonment 556-558 express release 556-558 unity of possession 556, 558, 559 right to, under special covenants 559, 560 practice in cases of obstruction of 568 596 ALPHABETICAL INDEX. WISCONSIN, p^^B Statutes respecting fences in 459-^65 what are legal fences in 559^ 563 partition fences in, maintenance of 459-461 , 464 powers of fence-viewers in 460-464 value of fence in, may be recovered, when 460-464 controversies respecting fences in, how settled 460, 461 highways in, not to be depastured, when 460 partition fences in, how divided between proprietors 460-462 may be dispensed with, when 462, 46:-) private roads in, to be fenced, when 463 railroads in, to be fenced, when 463-465 ordinary fences in the country only contemplated by statute of 463 fences in, deemed fixtures, when 463 WOLF ISLAND, belongs to Kentucky 242, 243 WORDS, how interpreted in land grants, 27, 121, 123, 124, 128, 168, 214, 215, 220 taken most strongly against grantor, when 30, 120 where some yield to others in deeds 131 may be transposed in a deed, when 131 effect of, " more or less," in deeds 152, 180, 181, 209 force of, in land grants 176, 201, 202 WRECK, property in , 37 WRITTEN INSTRUMENT, rules for construing of 118-138, 190, 200-202, 205, 222, 224, 282. 283 Vide Construction. 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