
    Borkenhagen, Respondent, vs. Vianden, Appellant.
    
      April 13
    
    
      May 3, 1892.
    
    
      Deed: Boundaries: Conflict between monuments and distances: “Right ” bank of river.
    
    1. A deed purporting to convey “4.175 acres of land, more or less,” described the land as commencing at a given point on a certain section line, running thence west 14.89 chains to the east bank of a river; thence southwesterly along the bank of the river to a stake; thence east 17.755 chains to the section line; thence north 2.75 chains to the place of beginning. In order to include 4.175 acres and to make the east and west lines of the length stated, it would be necessary to take in some land west of the river. Held, that the river as the western boundary of the land controlled the distances and area specified in the deed, and that the grantee took only to the east bank.
    2. It seems that the “right bank” of a river is the bank lying to the right of an object passing down stream.
    APPEAL from the Circuit Court for Milwaukee County.
    In 1858 the defendant, Henry Vicmden, sold and conveyed to one Franke a parcel of land (being part of a larger tract owned, and the balance of it still owned, by him) in section 12, township 6 N., range 21 E., in Milwaukee county, bounded as follows: Commencing 17-J- chains north of the southeast corner of section 12, running thence west 14 chains 89 links “ to the right bank of the Kinnickinnie river; thence along the bank of said river in a southwesterly direction to a stake,” etc.; thence east 17 chains 751-links to the section line; and thence north 2 chains 75 links, to the place of beginning; “containing 4.175 acres of land.”
    Afterwards Franke conveyed a parcel of land to one Green by the same description, except that instead of specifying the right bank of the river as the terminus of the north line of the tract, it specifies the east bank of the river as such, terminus. It also specifies “ 4.175 acres of land, more or less” as the quantity thereby conveyed.
    Green devised the land thus conveyed to him, and died. In 1886 such devisee conveyed the land to plaintiff by the same description and boundaries contained in the conveyance by Franke to Green., If the north and south boundary lines in these conveyances be extended the specified length thereof from the section line west, they will- cross Ivinnickinnic river, and extend a short distance beyond, and the tract included within such boundary lines will contain 4.195 acres.
    This action is to recover the strip of land between the east bank of the river and a line drawn from the west terminus of the north line of the tract southwesterly to the west terminus of the south line thereof,— such termini being fixed by thus extending the north and south lines to the specified length. The land claimed includes the bed of the river, and contains about one third of an acre. The defendant was in the exclusive adverse possession thereof when the action was brought.
    It is deemed unnecessary to make any extended statement of the testimony or the instructions to the jury. Sufficient reference to these will be found in the opinion. The jury found for plaintiff. A motion by defendant fora new trial was denied, and judgment entered for plaintiff, pursuant to the verdict, for the recovery of the land claimed. The defendant appeals from the judgment.
    For the appellant there was a brief by Sylvester da Scheiber, and oral argument by F. Scheiber.
    
    For the respondent there was a brief by Rogers da Mann, attorneys, and George E. Sutherland, counsel, and oral argument by Mr. Sutherland.
    
   Lyon, C. J.

The case was tried throughout on the theory that Franke conveyed to Green, and the devisee of Green to the plaintiff, the same land which the defendant, Vianden, conveyed to Franke. The jury were instructed, in substance, that if the lines, courses, distances, and area of the property conveyed, as specified in such deed, were all inconsistent with the boundary of the tract by the right bank of the Kinnickinnic river, the latter boundary or “ call ” in the conveyance must be disregarded. A great mass of testimony was introduced to show such inconsistency, and the jury must have found that it existed, for they disregarded the bank of the river as the westerly line of the land conveyed, and established such line at a point west of the west bank thereof. The instruction is erroneous.

In the conveyance by Vianden to Franke one bank or the other of the Kinnickinnic river is the western boundary of the land conveyed, just as certainly as the section line is the east boundary thereof, and controls the distances and area specified in the deed. This is elementary law. The only question which'can be raised under that cohveyance as to the extent and location of the land conveyed is whether the right bank of the river is the east or west bank thereof. The river flows from southwest to northeast. We have little doubt that the east bank — or the bank lying to the right of an object passing down stream — is the right bank of the stream. But, however that may be, the conveyances by Franke to Green, and by the devisee of Green to plaintiff, remove that possible ambiguity, and make the east bank of the river the western boundary of the land conveyed. Those conveyances also show conclusively that the quantity of land specified therein was not intended to be controlling, for to the specification of such quantity the formula more or less ” is added in each conveyance, which shows it to be a mere estimate, and by necessary inference subordinates quantity to fixed calls or monuments. Hence, whatever may be the proper construction of the conveyance by Vicindm to Franke, it is certain that the plaintiff owns only to the east bank of the river. She can only recover that to which she has title. The verdict and judgment should have been for defendant. The verdict being for plaintiff, the motion for a new trial should have been granted.

By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.  