
    
      E. P. Noble vs. John Cunningham et al.
    
    Where a road, or unnavigable water, course, is called for, as a boundary to a tract of land, the tract extends to the centre of such road, or stream, called for as the boundary.
    
      Heard before Johnson, Chancellor, Abbeville,-Term, 18 — .
    In December, 1840, an order was made for the sale of various tracts of land, by the Commissioner, on credit, for partition, and, amongst other things, it was ordered, “that the tract, called Bordeaux, be sold, provided that it be sold for ten dollars per acre.”
    In his general report of sales, made August, 1841, the Commissioner reported that the Bordeaux tract, containing 625 acres, more or less, was purchased by Lewis J. Patterson, at the price of $11 75 cents per acre, on a credit of one, two, and three years. Further, “ there is some uncertainty as to the number of acres contained in the Bordeaux tract, bought by Mr. Patterson, and, consequently, I have not been able to take his bond, or make him titles. Several owners of the adjoining land lay claim to portions said to be contained in the Bordeaux tract. There, likewise, seems to be a difference of opinion on the question of including in the plat the river which forms the boundary on the east and south-east, and whether the land covered by the water should be computed, and Mr. Patterson made to pay for it. These matters are unadjusted, and left open for the opinion of the Court, or for any order,” <fcc.
    In an additional report made by the Commissioner, as to the sale of Bordeaux, he said, “ a.t the sales, I held in my hand and exhibited a plat of the land, made by Peter Gibert, saying, that the land was sold by the acre, and was represented by that plat, except that a bend, shewn in the plat to be on the eastern side of Little River, had been sold off by Gov. Noble, in his life-time. In reply to questions put by Mr. Wardlaw, who bid for Mr. Patterson, who became purchaser, I stated that the lines of the land were shewn by the plat with the above exception, but there would be a re-survey to ascertain the quantity within the lines. Andas some interfering claims of third persons were spoken of, I said that the titles would be made good. Nothing was said by any person, so far as I know, about the land covered by water, or about the way that the line on the river should be run. I stated that the land was sold by the acre, and although some persons claimed portions of the land said to be contained in the Bordeaux tract, that we would warrant what was conveyed, and that there would soon be another survey of the place. This survey has been made, and the plat is hereto appended.”
    The plat made by Peter.Gibert, Esq., represents a tract of 640 acres, made up of four adjoining tracts, (the lines of which are dotted,) all lying on the western side of Little River, except a parcel of about 15 acres, on the eastern side, included between the lines of one of the original tracts that crossed the river, which parcel was sold by Governor Noble, in his life-time. The river is the eastern boundary, (except the above parcel,) but at six different points where lines come to the river, corners, by marked trees, &c.., are represented on the western bank. The certificate appended is, “ the above plat represents several tracts of land, adjoining each other, on Little River, sold,” <fec.
    The plat appended to the Commissioners additional report was made by] Mr. Lee, and represents 606 acres, all on the western side of the river, with a note that, by including half of the river, the quantity will be 619 acres. There are dotted off two parcels, one of 16 acres, claimed by P. B. Moragne, and the other, of 7 3-4, claimed by S. Cow-an, of which the claimants, severally, are in possession.
    The following order was made:
    The general report of the Commissioner, and his additional Report, as to the sale of Bordeaux tract, in this case, having been made; after argument;
    Ordered, That the commissioner do take the bond of the purchaser, for the whole number of acres sold in the tract, excluding from the computational! the land covered by the river, (except one half of the river within the lines, which cross the river, so as on the opposite side to embrace the parcel sold by Gov. Noble to Mr. Petigru,) and that the Commissioner do execute a conveyance to the purchaser, for the tract sold as above defined.
    Also, Ordered, That in contemplation of suits to decide the title as to sixteen acres, claimed by P. B. Moragne, and as to nine acres claimed by Samuel Cowan, the collection of the purchaser's bond, as to 25 acres, be delayed until the further order of this Court.
    The complainant and the purchaser both appealed.
    The ground taken by the complainant is : that by the plat, by which the land was sold, Little River is a boundary, and the purchaser entitled even to the thread of the river, and should give his bond for the same.
    Mr. Patterson, the purchaser, moved for such modification of the order as would require the heirs of Gov. Noble, at their own expense, to put him in peaceable possession of those portions of land now claimed and actually occupied by Moragne and Cowan, because,
    1st. He cannot, as to those portions, make himself defendant in actions at law, by taking possession, without incurring the guilt and risk of forcible entry.
    2d. In suits by him, as plaintiff, without further order of this Court, he cannot vouch the heirs, or make them, in case of his loss, bear the expenses; or even the costs.
    
    3d. He ought not to be required to accept a title doubtful and obscure — especially when the adverse claimants openly maintain the possession with assertion of title.
   Curia, per Johnston, Chancellor.

This was a case for the partition of the estate of his Excellency, the late Governor Noble. Among other things, it was ordered, that the tract of land called Bordeaux, be sold by the Commissioner of the Court. From two reports made by him of the sale, it appears that the land, was sold by the acre, and purchased for Mr. Lewis J. Patterson, by his agent, Mr. Wardlavv, at $1175 per acre, on a credit of one, two and three years, for which a bond, <fec., was to be given, in conformity to the order of sale. At the sale, the commissioner held in his hand, and exhibited a plat, made by Gibert, saying that the land was to be sold by the acre, and was represented by that plat; except that a parcel cut off by a bend of Little River, which had been sold by Gov. Noble, in his life-time, to Mr. Petigru, was not to be included. This is represented by the letter A.

The land was supposed to contain 625 acres; but the Commissioner stated that a re-survey was to be made to ascertain the quantity. It having been said that some third persons claimed portions of the tract, the Commissioner replied, “ we will warrant what we convey, and- a re-survey of the place will soon be made.” The re-survey was made by Lee, and his plat was annexed to the second report of the Commissioner, by which it appears that Mo-ragne claims 16 acres, included in the curved lines at .C, and Cowan 7 3-4 acres at B ; and both claimants are in possession. It appears by the plat of Gibert, exhibited at the sale, that Bordeaux lies on Little River, an unnavigable stream, and that the exterior surveyed lines of the tract, as well as those of the smaller tracts of which it is made up, (which latter are dotted in the plat,) terminate in corners marked on the western bank of Little River, that being the side of the river on which the body of land lies. The purchaser was willing that one half of the river, at the bend opposite to Mr. Petigru’s purchase at A, should be computed into the land for which he was to give bond ; and to this the other party also agreed. But he insisted that, by the plat, under which he purchased, the lines of the tract were represented as cornering on the bank of the river; and that, therefore, the river, at all other points, was excluded from the tract, and that no part of it should be charged to him. The other party contended that he should be chargeable for one half of the river, at all points where the tract touched it. The Commissioner reported this dispute, for the direction of the Court as to the amount in which the bond was to be taken. He also reported the claims of Moragne and Cowan, in order to obtain instruction as to them. From the re-survey of Lee, it appears that if the one half of the river is charged to the purchaser, as contended for on one side, the tract contains 619 acres, (including the claims of Moragne and .Cowan,) but that if the purchaser is right 'in his view, that the river is not to be included, the land contains only 606 acres. My brother Johnson, upon hearing the reports and argument, ordered that one half the river opposite Mr. Petigm's purchase at A, should be included in the purchase of Mr. Patterson, but declared that no other part of the river was included. He also passed the following order : “Ordered, that in contemplation of suits to decide the title, as to the land claimed by P. B. Moragne and Samuel Cowan, the collection of the purchaser’s bond, as to so much of the land, be delayed until the' further order of this Court.” Both véndor and purchaser have appealed. The former, on the ground that, by his purchase, the latter is bound, to pay for one half the river at all points contiguous to the land. The latter, because the heirs of Gov. Noble should sustain the suit necessary to put him in possession of the parcels of land claimed by, and in possession of, Moragne and Cowan. The order in relation to Mo-ragne’s and Cowan’s claims, was drawn up by Mr. Patterson’s counsel, and was passed in conformity to his wishes. But as it is conceded that an oversight was committed, and should be corrected, it is now ordered, by consent, that as to the 16 acres in possession of P. B. Moragne, and the 7 3-4 acres in possession of Samuel Cowan, the giving of the bond by the purchaser, be delayed until the heirs of P. Noble, by suit or otherwise, shalljremove the claims of said Moragne and Cowan, and shall put the said purchaser in peaceable possession of the parcels of land claimed by said Moragne and Cowan.

With respect to the appeal on the other point, the Court is of opinion, that it must be sustained. There is no doubt about the principle, that when a road or unnavigable water-course is called for as a boundary to a tract of land, the tract extends to the centre of the boundary so called for. On the other hand, it is not doubted that, if, as in Hatch vs. Dwight, 17 Mass. Rep, 289, there be evidence on the face of a deed or plat, of an intention to exclude the stream or road, they shall be excluded. The only question is, whether by the plat of Gibert, in reference to which the purchase was made, Little River was intended to be excluded, or merely called for as a boundary. No intention to exclude it can reasonably be inferred, from the fact that the corners were marked on trees growing on the bank. The corners were marked on the bank, of necessity. No corners could be put in the river. The surveyor stopped at the river, because he could go no further; and being arrested by the necessity of the case, there is reason to conclude that the line was stopped at the river, only because it could not be extended to a corner in the stream. The river is laid down as an open line, from corner to corner; which, in fact, makes it a boundary, and carries the line to the thread of the stream, or centre of the boundary. I attach no weight to the sub-divisions laid down in the plat. They are merely representations of the several tracts of which Bordeaux is composed; and the corners of these tracts are not delineated as stations on the river line of Bordeaux, but as corners of the original parcels constituting that body of land. Striking out these division lines, Gibert’s survey exhibits a plat, with lines terminating in corners upon the bank of the river, closed with the river as a boundary. This is the common method by which a stream is called for as a boundary ; and we see no evidence of any special design to exclude any part of the river from the tract. These questions of location are always matters of evidence; and where the common method of making a river a boundary has been pursued, as in this case, we must conclude that the design was not to exclude, but to include the land to the centre or line of the river. The apparent hardship of being compelled to pay for the water, will be obviated when it is considered that the principle upon which the decision is made, is the only one which secures to the owner all the advantages of the streams contiguous to his lands, for mills, or other machinery, and for fish.

On this part of the case, it is ordered, that in executing the securities for the land purchased by Mr. Patterson, he shall be considered as having purchased one half of Little River, at all points contiguous to the land sold to him.

J. JOHNSTON.

We concur.

Benj. F. Dunkin', Wm. Harper.

Johnson, Chancellor,

dissenting. I retain the opinion indicated by the order made on the circuit, and believing that the Court, in its judgment, have overlooked an important principle involved in the case, I feel myself constrained to express my dissent. The case is fairly and fully represented in the opinion of the Court delivered by my brother Johnston'; but, for the purpose of making myself understood, it may be proper to repeat that, on the sale of the real estate of the late Governor Noble, by the Commissioner of the Court, he held in his hand, and exhibited to the bidders, the plat of a tract of land, called the Bordeaux tract, made by Peter Gibert, representing the land as bounded on the east by Little River, and containing 625 acres, exclusive of the river, and proposed to sell it to the highest bidder per acre, excluding a portion east of the river, which had been sold by Gov. Noble, in his life-time. This tract is made up of four different tracts, and in the plat exhibited, the termini of all the lines of these tracts are indicated by marked trees, (so says the report of the Commissioner,) on the western bank of the river. Lewis J. Patterson bid off the land at $11 75 per acre: and the question is, whether he is bound to pay by the acre for the land covered by the water of the river, to the thread or centre. I concur in the general principle, that when a water-course, a road, or avenue, is called for as a boundary, without more,, the grant extends to the centre. That was the case of Whitler vs. Harvey, 1 McC. 68. There, J. R. by his will, devised to J. R., his son, the lands lying on the eastside of an avenue,and to G. R. the lands on the west side, both of which belonged to him ; and it was held upon very clear principles, that the centre of the avenue, was the boundary between them, because it was apparent, that the testator intended to devise the whole, and there is nothing to limit the one or the other, to the eastern or western side of the avenue. But if instead of this, he had described the lands devised to J. R. by metes and bounds, terminating ata marked tree, on the eastern side of the avenue, and thence with the avenue to another marked tree, on the same side of the avenue, I do not perceive on what principle he could claim to the middle; and that is exactly this case, (see Jackson vs. Slackway, 15 Johns. 453, in which it is laid down, that where a stake is called for, on the side of a road, and a line from thence, running a certain course to another stake on the same side of the road, does not include any part of the road.) The case of Hatch vs. Dwight, 17 Mass. Rep. 289, reported also, in the appendix to Angel ob. Water courses, page 74; is still more strikingly analogous. There, a piece of land was thus described in a release, “ beginning at the west end of the dam, on Mill River, at the upper mills, so called, and running up the river two rods, thence westwardly, (fee., and thence to the bank of the river.” And Parker, C. J., who delivered the judgment of the Court, remarks, that this description very clearly excludes any part of the river. Here, the termini of all the lines proceeding from, and approaching the river, are marked trees, standing on the western bank of the river. I concede, also, that a grant of land bounded by a navigable stream, entitles the grantee to the use of one half of the river, although the lines terminate at marks on the bank; not that it passes as so much land covered with water, for that is publici juris, but as appurtenant to the land on the bank. But it is clearly otherwise when the watercourse is not navigable, for that is the subject of grant, and for any thing that appears, the whole bed of this river has been granted to the owner of the opposite bank. If the rule now laid down by the Court, was to operate prospectively, only, parties might readily accommodate themselves to it, in framing their contracts. But it will be recollected that water-courses, navigable, and not navigable, are desirable and common boundaries of the lands granted on them; and if one half of the lands covered by the water, is a substantive part of the thing granted, and passes under lines terminating on the bank, the usual warranty contained in the form of the conveyance prescribed by law, extends to that also, and I need not refer to particular instances, to show the injurious effect of such a rule, and the endless litigation that may grow out of it. There is also a practical view of this question arising out of common observation. In a long experience at the Bar, and on the Bench, in questions involving the boundaries of land, I have never known one instance in which a surveyor, in computing the quantity of land bounded by a water-course, included any part of the water, where, as in this case the lines terminate on the bank; and there can, I think, be little doubt, that the purchaser here bought with reference to this general understanding ; including half of the 38 river, in computing the quantity, was doubtless an afterthought.

Burt, for Complainant.

Wardlaw <fe Perrin, for the purchaser.

DAVID JOHNSON.  