Redden v. Smith , 5 Del. 389 ( 1852 )

THIS was an action of trespass on the case, for cutting timber on plaintiff's land. A former trial respecting the same land was had, at the April term, 1851, and resulted in a nonsuit. [See the case of Lesseeof Jos. Smith vs. Redden Wootten, ante., 321.]

After the last trial the parties, who were adjoining land owners, fixed their dividing line by reference, the award directing that the line should be run on the east side of Ranciketum branch, "beginning one pole from said branch," and extending eastwardly, c., c.

The case turned upon a construction of this clause of the award.

Mr. Houston argued, that although a grant to a river goes to the middle of the stream, a grant to a pole from a river, is a pole from the margin of the river; and that the rule of going to the middle thread would not apply to a common branch, which is not a water course, but a swamp, without any distinct thread or running stream.

The Court said that "beginning one pole from the branch" must be held to mean one pole from the middle of the branch; in the absence of any contrary purpose or meaning apparent on the award itself.

On this ruling, the defendant had a verdict.