
    Hugh M‘Mullen, et ux. v. Charles M'Culloch.
    The Legislature granted to a company for opening the navigation of Catawba river, “ all the lands within two miles of the said river, so to be made navigable, from Camden ferry to the North Carolina line,” which had not been previously granted to other persons. Held, that the islands in the river, within the expressed limits, passed by the grant.
    Tried before Mr. Justice Earle, at Chester, Spring Term, 1831.
    Trespass quart clausum frcgit. The defendant pleaded title in the State, and a licence to enter from the superintendent of public works; and the only question in the case was, whether the title was in the plaintiffs, or in the State.
    The plaintiffs claimed under a grant to William M‘DanieI, dated November, 1796. The title of the State was derived from a grant to the company for opening the navigation of Catawba and Wateree rivers, contained in an act of the Legislature passed in 1789, of which company the State purchased in 1818.
    The act, after reciting the terms of a former grant to the company in 1787, vide P. L. 422, which required the company to cause the. lands to be surveyed within three years, and setting forth the inconveniences arising from that provision, enacted, st that all the lands within two miles of the said rivers, so to be made navigable, from Camden ferry to the North Carolina line, which were not granted to any person or persons, or reserved for the Catawba Indians, shall be vested in the said company, and their successors forever, any law to the contrary notwithstanding.” The locus in quo, was an island in Catawba river, between Camden ferry and the North Carolina line; but the plaintiffs contended, that it was not embraced within the terms of the grant to the company.
    A surveyor who had been employed by the company to survey the lands under the first grant in 1787, was called as a witness, and testified, that he had been invariably directed by the company to begin on the bank of the river; and that they made no surveys of the islands.
    The presiding Judge was opinion, that the. grant to the company did not include the islands in the rivers; but that it must be construed to read “ all the lands on the west side of the river, within two miles thereof, and all the land on the east side, within two miles thereof;” or, “ all the lands on each side (or on both sides) of the said river, within two miles thereof.” The territory described, extending from the Camden ferry, two miles on each side of the river, to the North Carolina line, did not form one entire tract, the whole of which was granted by definite boundaries: but the territory within two miles of the river, on each side, and beginning at the river, as a terminus, was described in general terms as a range of country, in which the ungranted lands were assigned or granted to the company. This was the construction given to the act by the company themselves, as appeared by the testimony of their own surveyor. There would arise great difficulties out of any other construction. Should the middle of the river be selected as the terminus a quo ? Where there was an island, and the channels on either side equal or nearly so, must the centre of the island, or of either channel, and which of them, be regarded as the tefminus ? And in an}' case, the extent of the grant on either side would be diminished by the width of the river, although the difficulties and expense of the navigation might be increased. It is probable, that the same reasons of policy, and the same inducements to liberality, which prompted the grant of the lands on either side, would have led to a grant of the islands, if they had been thought of; but they had been overlooked, or perhaps were not known to be of any value.
    The jury, under the charge of the Court, found for the plaintiffs ; and the defendant now moved to set aside their verdict for misdirection.
    Peareson, for the motion.
    Clarke, contra.
    
   Harper, J.

delivered the opinion of the Court.

We think, that according to the plain import of the terms of the act of 1789, the land in question was included in the grant to the Catawba Company. It seems to me a strange construction to say, that an island lying in the Catawba river, is not within two miles of that river. The grant was not of a continuous tract of land, included within specified boundaries. Most of the land within the specified distance had been granted to individuals, and the grant to the company was of the various detached parcels lying within the general limits mentioned. All the parcels lying within those general limits were of course included. The islands within the bed of the river, would seem to have a more immediate relation to the objects of the grant than lands at some distance from it.

But if the grant had been of two parcels, each extending two miles from the river and bounded by it, it would seem on authority that the islands would be included. It is clear that land bounding on a river not navigable, extends to the middle of the main channel of the river, usque, ad filum aqum. In Cates v. Wadlington, 1 M‘C. 580, it was held that this rule extends to rivers capable of being rendered navigable, though not yet made so. The act itself shows that this was the situation of that part of the Catawba river. It is unnecessary however to decide any thing on this view of the case, as we are clear upon the meaning of the act. The motion must therefore be granted.  