Kimball v. Schoff , 40 N.H. 190 ( 1860 )

Bell, O. J.

The owner of the land adjoining a river not navigable is prima facie owner of the soil to the central line, or thread of the river. This presumption will prevail in all cases in favor of the riparian proprietor, unless it appears that his title is limited to the bank, or some other line. Deerfield v. Arms, 17 Pick. 42. Upon this principle an island, situate in such a river, is presumed to belong to the owner of the land on that side of the river to which it is nearest, unless it is shown to be the property of another owner. Proprietors of Claremont v. Carleton, 2 N. H. 372.

It is a rule in the construction of deeds, founded on this legal presumption, that a conveyance of land bounded on a river not navigable, or by a line up or down, or upon, or by such a river, conveys the land to the middle line, or thread of the stream, including the water and bed of the river, and all islands on that side of the middle line, if the grantor has power to convey to that extent; and if he is not the owner, or has not such power, he will be liable upon his covenants for the deficiency. Nichols v. Suncook Manf. Co., 34 N. H. 349.

In this case the island in question was separated from the rest of the farm conveyed by the defendant to Q-. Kim-ball, on the 11th of May, 1837, which extended along the river opposite to it, by a channel containing not above one fourth of the water of the rivei’, and not a fourth of its width. There is no evidence to show that the farm did not extend to the centre of the river, and it must, therefore, be presumed that the centre of the river was the boundary, and that the island was part of the farm.

The deed of the defendant to Kimball, after describing the farm by the numbers of the original lots, has this clause : “ being the same farm upon which said Kimhall now lives.” Kimhall then lived upon this farm, but did not for any practical purpose occupy the island. Henry Schoff' was then occupying it to some extent, but not under Kimball.

In construing deeds, no word or clause is to be rejected or overlooked, if a reasonable and consistent construction can be given to it. Drew v. Drew, 28 N. H. 494. The whole is to be considered together, and effect is to be given, if it may, to every part of it. Webster v. Atkinson, 4 N. H. 26. This expression is to have its full effect, but we are unable to see that it exerts any limiting or qualifying force upon the other parts of the deed. It is agreed that Kimball lived on the farm at the time of the conveyance, and whatever may be included or excluded, it is nevertheless true that the farm is in this respect correctly described. If the language was, instead of “ now lives,” “ now occupies,” or “ now improves,” or the like, it might be plausibly contended that any part of it which he did not occupy or improve should be excluded; but the language used has no such limiting effect, and if the island was in fact a part of the farm on which he lived, it was immaterial who improved or occupied it.

The defendant’s deed to Kimball must, therefore, be construed to convey every thing, including the island, to the middle line of the river, unless it may appear upon a trial that Henry Schoff had acquired a title to the island by adverse possession ; and except in that case the deed vested the title to the island in the plaintiff. If Henry Schoff had acquired a good title to the island at the time of his death, other questions arise.

The deed of the defendant to Kimball was a deed of warranty, which in legal construction covered this island. Now the rule of law is, that if a man conveys land to which he has not a good title, by a deed containing covenants of general warranty, or of warranty against all persons claiming under him, and he afterward acquires a title to it, the title thus acquired will enure to the benefit of the grantee by estoppel. Morrison v. Underwood, 20 N. H. 872; Bell v. Twilight, 26 N. H. 401; Jewell v. Porter, 31 N. H. 39.

In this case the defendant has acquired, by descent from his father, Henry Schoff, and by conveyances from his coheirs, the entire interest and title supposed to have been gained by H. Schoff; by adverse possession, long since his conveyance to Kimball. This title thus acquired, by the principle of estoppel just stated, enures exclusively for the benefit of the plaintiff; as the grantee of Kimball, and the defendant is estopped to set up against him the title so acquired.

To this result there is one exception. Mrs. Kimball, the wife of G-. Kimball, was one of the heirs of Henry Schoff, and she and her husband joined in a conveyance to the defendant of all her right and interest, as one of the heirs of her father, Henry Schoff, in his estate, with covenants of warranty. G-. Kimball is consequently estopped by his own covenants of warranty to claim the share of his wife; and the plaintiff, his grantee, is equally bound. Here, then, we have an estoppel on each side — an estoppel against an estoppel — and that, as the authorities say, sets the matter at large; in other words, the parties are in the same situation as if there were no warranties. Bro. Abr. 303, b. 183; Com. Big., Estoppel, E. 9; Co. Litt. 352, b. (1.); Carpenter v. Thompson, 3 N. H. 204. The defendant, therefore, may hold the share of Mrs. Kimball in the island, if she has any, as heir of her father, but the plaintiff will be entitled to recover the residue.