Lowell v. Robinson , 16 Me. 357 ( 1839 )

The opinion of the Court was drawn up by

Shepley J.

Tt is too well settled to admit of doubt, that when land is bounded upon a river or stream, the grantee will hold to the thread of the stream. Nor is there any doubt that land may be so bounded upon the bank, or by monuments standing near but without the edge of the stream, as to exclude the stream from the conveyance. When the monument is stated to stand by the river or by the edge of the river, the same idea is communicated as if it had stated, that the line of boundary commenced by the river or by the edge of the river, instead of at the monument thus standing, unless from other parts of the conveyance it should clearly appear, that such was not the intention.

The case finds, that the premises in controversy are meadow lands flowed during the spring of the year by a mill dam across the river below, but not so flawed during the summer season.

Both parties derive their title from Nathan Hanscomb, the defendants having the elder title; and the question is, whether the premises had been conveyed by him before he conveyed them to the plaintiff. And that is to be determined by the construction put upon the deeds, unless the language is so ambiguous as to authorize the aid of parol testimony. The deed from Hanscomb to Jones, under whom the defendants claim, begins the line of boundary at meadow brook, “ at a stake by the side of the mill pond,” the other lines being described, it returns “ to a stake by the side of the river or mill pond, thence by the said pond to the first mentioned bounds.”

It will be perceived, that the line in effect commences by the side of the mill pond, returns to the side of it, and runs by it from one point to the other. It is said, that this deed may be explained by the deed from Scott to Hanscomb of the same lands. The line as described in that deed begins at meadow brook, “ at a stake by the side of the pond, and the other parts being described, it returns “ to an ash tree by the side of the mill pond, then by the side of the mill pond to the first mentioned bounds.” The only difference perceived where the line is adjoining the pond is, that one deed describes it as running by the pond and the other by the side of the pond; and the difference in the words, does not communicate any difference of intention. In neither is the line disjoined or separated from the pond ; and such language when used with reference to a river or stream, not flowed into a pond, would not admit of doubt.

In the case of Hathorne v. Stinson, 3 Fairf 183, it was decided by this Court, that a lot of land bounded upon a pond artificially raised|by the flowing of a stream by a mill dam, was not limited to the margin of the pond, but included the land thus flowed. The same opinion is expressed in the case of Waterman v. Johnson, 13 Pick. 261, with a possible qualification, that the pond may have acquired by becoming permanent another well defined boundary. The pond named in these deeds cannot be regarded as having acquired a permanent boundary, for the case finds, that it yearly ceases to exist, the water being confined within the banks of the river.

As the land is clearly bounded by the mill pond, a well established rule of construction carries it to the centre of the stream thus flowed; and parol testimony cannot be admitted for any other purpose, than to make known the kind of pond described as a mill pond. For this purpose it may be admitted, for if it had been a natural pond not artificially raised by the flowing of a stream, the title would have been limited by the margin of the water, as decided in the case of Bradley v. Rice, 13 Maine R. 198.

The facts do not show such a disseizin of this close committed and continued against the owner as to authorize an action of trespass to be maintained against him.

Judgment on the verdict.