Child v. Starr , 1 Lock. Rev. Cas. 130 ( 1799 )

Walworth, Chancellor, delivered an opinion for reversal “ The decision of a majority of this court in the case of The Canal Appraisers v. The People, ex. rel. Tibbits, (17 Wend. 590,) although put upon other grounds by some of the members who voted for a reversal of the judgment of the Supreme Court, cast a shade of doubt upon the question, whether the common law rule prevailed here as to the construction of conveyances of lands bounded by or upon a river or stream above tide waters. That doubt, however, is probably removed by the recent decision of this court in the case of The Commissioners of the Canal Fund v. Kempshall, (26 Wend. 404,) in which the judgment of the Supreme Court in favor of the riparian owner was unanimously affirmed. The common law rule as I undersand it, is that the riparian proprietor is prima facie the owner of the alveus or bed of the river adjoining his land, to the middle or thread of the stream; that is, where by the terms of his grant, he does not appear to be limited. It appears to me equally clear, that the grant is restricted, where it is bounded by the shore of the river, as in the present case.

Judgment reversed; for reversal 11, for affirmance 10,