Hubbard v. Manwell , 60 Vt. 235 ( 1887 )

The opinion of the court was delivered by

Royce, Ch. J.

This was an action of trespass, guare clausum, in which the plaintiffs claim to recover for an entry upon land claimed by the female plaintiff, and the taking and carrying away timber growing thereon. The case was referred and was heard upon the report made. The referee found that the parties were the owners of two tracts of land in Burlington, lying upon the bank of Winooski River. The plaintiffs’ land is situate above the land of the defendant, and extends along the river for about fifty rods, and the defendant’s for about ninety rods. Since the parties acquired title to the above tracts of land the entire river front of plaintiffs’ and defendant’s land had gradually and imperceptibly receded toward the north by deposits and accretions made thereon by the stream, until, at the time of the alleged trespass, extending the side line of the plaintiffs’ land straight to the nearer river bank, the alluvion so formed in front of their land amounted to about five acres, and the alluvion so formed in front of the defendant’s land amounted to about eight and a half acres. The trespass claimed to have been committed was upon the alluvion formed in front of the defendant’s land.

The plaintiffs claim that their ownership of the alluvion is not confined to that formed in front of their land, but extends to and embraces a portion of that formed in front of the defendant’s land, and that the alluvion should be divided between the parties by a line called “division by shortest distance,” which is to be drawn from the point of intersection of Mrs. Hubbard’s westerly .line with the old bank of the river, as described in the deed referred to in report from Lyman and wife to Ballou, “northwesterly to the nearest point on the present river bank perpendicularly to the thread of the stream, making an acute angle with said westerly bank, as defined in said deed; or, if that line of division should not be considered the true and correct one, then said alluvion should be divided between the parties by a line called ‘ division by chord perpendiculars,’ according to the rule laid down in Emerson v. Taylor, 9 Me. 44, extending from said point of intersection nearly north to the present river bank, striking the same at a point about nineteen and three fourths rods up stream, or easterly from where said line called “ division by shortest distance,” strikes the present river bank,; or if neither of said lines of division should be adopted, then a line called ‘ division by proportional of old and new shore,’ according to the rule adopted in Deerfield v. Arms, 17 Pick. 41, dividing said accretion between the parties in proportion to the extent of their respective lines on the old river bank, should be adopted.”

The defendant claimed that the true line of division of said alluvion was a line corresponding with the westerly line of Mrs. Hubbard’s land, as described in said deed from Lyman and wife to Ballou. In other words, that the accretions formed along the river bank of plaintiffs’ land belonged to them, and those formed in front of his own land to him.

And such we understand the general rule to be in the case of non-navigable streams. 3 Kent Com. p. 428; Boone’s Law of Real Property, s. 254.

Alluvion has been defined to be an addition to riparian land gradually and imperceptibly made by the water to which the land is contiguous, and to be an inherent and essential attribute to the original property; and is said to rest in the law of nature, and is analogous to the right of the owner of a tree to its fruits and the owner of flocks and herds to their natural increase. County of St. Clair v. Lovingston, 23 Wall. 46.

The owner takes the chances of injury and of benefit arising from the situation of his property.' If there be a gradual loss, he must bear it; if a gradual gain, it is his.

All the cases cited in the briefs of counsel where a different rule from this natural and obvious one has been adopted, including those cases where either one of the rules contended for by the plaintiffs here has been applied, were either cases, where from their peculiar circumstances some such method of division seemed essential to a fair and just distribution between the riparian owners, or depended upon the fact that the lands in question bordered on a navigable stream and derived a great part of their actual value from that circumstance and from the benefit of the public easement. Per Shaw, Ch. J., in Deerfield v. Arms, supra.

The only case to which we have been referred where this court has been called upon to pass on a similar question was that of Newton v. Eddy, 23 Vt. 319, where the opinion was written by Judge Redfield, who dissented from the result arrived at by a majority of the court. It was decided upon its own peculiar circumstances and with the express recognition on the part of the court of the fact that its decision would not be likely to establish any general rule and with a confession from the dissenting judge that, for his part, he should have preferred the rule of the civil and common law.

All the authorities collected in defendant’s brief agree in recognizing the fact that the law on this subject is very unsettled and in confessing the impossibility of establishing a uniform rule which shall be, calculated to meet the infinitely varying circumstances of cases that may arise and to secure to the parties in every case a just and equitable distribution of alluvial lands. The object of all the cases, as defined by Shaw, Ch. J., in Deerfield v. Arms, is “ to establish a rule of division among those proprietors which will do justice to each, where no positive rule is prescribed and where we have no direct judicial decision to guide us.”

With this consideration in view, and applying the principle announced at the outset in regard to the natural and inherent right of the owner of land, in the absence of any arbitrary rule on the subject and when consistent with the rightful claims of others, to its accretions and increments, as he correspondingly runs the risk of loss, to ascertain what portion of the alluvion belonged to the plaintiffs, the side lines of their land should be extended to the nearest river bank; and adopting that rule, it will be seen that no portion of the land, upon which the trespass is alleged to have been committed, belonged to the plaintiffs. And no injustice or unfairness is wrought by this method of division. The defendant has lost by attrition about seven acres situate on that portion of the river bank lying below said alluvial deposit. His total gain, therefore, is only about one and a half acres; while the plaintiffs have sustained no such loss to be offset against their gain. It can hardly be claimed that these circumstances are such as to require a resort to any arbitrary rule for the purpose of working out a fair and equitable distribution. The “peculiar circumstances” governing the decision in so many of the cases cited in favor of the parties claiming the benefit of some such rule, clearly, do not exist here, and for that reason alone those cases could not be relied upon as authorities in this.

Judgment reversed, Taft, J., dissenting.