Jones v. . Parker , 99 N.C. 18 ( 1888 )

Smith, C. J.,

(after stating the case). The charge of the Court, it will thus be seen, puts an interpretation upon the descriptive words of the plaintiff’s deed, “ embracing as far as high water mark,” which covers all the overflowed land up to its high water boundaries, and vests the estate therein in him.

The use of the water of the pond is necessary to the running of the mill, and it would be valueless without the ownership of the submerged land or of the easement in the covering waters. The principal and primary intent in the conveyance is to secure all the privileges incident to the working of the mill, and to enable the bargainee to enjoy the advantages of operating afterwards as before, and even to convey the land itself or an easement as essential to its enjoyment. The language used in describing the subject matter upon which the deed was to operate clearly points to the land, and not to an encumbering easement. It is a “ tract of land,” and embraces the land “ as far as high water mark,” which the deed purports to convey, and thus within the marginal boundaries of the pond.

The references in the brief of appellants’ counsel to which our attention is called, that construe the terminus of a line at a pond created by artificial obstructions or dams upon a running stream to obtain a water power as extending into the water as far as the channel, have no application to the present case, since reversing the running of the line the water covered land, that is, a parcel of land defined by the margin of the pond is described and the estate therein conveyed. Lee v. Woodard, N. C. Term R., 100 (537).

We concur in the construction put upon the deed by the Court, that its operative words are not restricted by the fact that there is a variance in the area of the tract, it being from 40 to 60 acres, from that mentioned in the deed, which may be explained by supposing the bargainor intended only to apply the words to the upland end, not to the pond.

There is no error.