
    The town of Middletown against Sage and others.
    In 1672, the native Indian proprietors of Middletown executed a deed to the inhabitants of Middletown, whereby the grantors, for a full consideration paid by the grantees, gave, granted, bargained, sold and confirmed unto the grantees, all that tract of land within the following abutments, viz. Wethersfield bounds on the North, Haddam bounds on the South, and to run from the great river the whole breadth towards the East six miles, and from the great river towards the West, so far as the General Court of Connecticut had granted the bounds of Middletown should extend: Habendum the aforementioned tract of land, as it is bounded, with all the meadows, pastures, woods, underwood, stones, quarries, brooks, ponds, rivers, profits, commodities, appurtenances whatsoever belonging thereunto, unto the grantees, their heirs and assigns forever. In 1686, the General Court of the colony of Connecticut executed a patent to the proprietors of common and undivided lands in Middletown, whereby the former gave, granted, ratified and confirmed to the latter all those lands, both meadows and upland, with their appurtenances, within these abutments, viz. Wethersfield bounds on the North, Farmington bounds and the commons on the West, Iladdam bounds on the South, and the wilderness on the East; the breadth from. Wethersfield bounds on the North, being four miles South of the meeting-house in Middletown; their bounds to run the whole breadth on the West side of Connecticut river five miles from the said North and South line, and to run on the East side of Connecticut river full six miles from the said river the whole breadth from Wethersfield bounds to Iladdam bounds; together with all the woods, upland, arable lands, meadows, pastures, ponds, havens, ports, waters, rivers, islands, fishings, huntings, fowlings, mines, minerals, quarries, and precious stones upon or within the said tracts of land, with all other profits and commodities thereunto belonging or in anywise appertaining. Connecticut river, between Wethersfield and Iladdam bounds, is an arm of the sea. Held, 1. tobe questionable, whether this river was included within the boundaries mentioned either in the Indian deed or in the colony patent; but 2. if included, still by none of the terms used in those instruments, was the soil of the river conveyed.
    
      Middlesex,
    
    July, 1830.
    The title of an island formed upon the bed of a navigable river, is, prima facie, in the state.
    This was an action of ejectment, for an island in Connecticut river.
    The cause was tried at Haddam, August term, 1829, before Bissell, J.
    The demanded premises consist of about thirty acres of land, situated in Connecticut river, at the distance of about twenty rods from the low-water mark on each side of the river. At this place, the river is, and always has been, navigable, by vessels of large burthen; is subject to the ebbing and flowing of the tide; and is an arm of the sea. The island has been wholly formed upon the bed of the river, and has risen out of the water within the last twenty-five years.
    
      Middletown was incorporated as a town prior to the year 1660; and from that time until the year 1767, included within its limits all the territory now included in the present towns of Middletown and Chatham,. In 1767, the present town of Chatham was incorporated, and by its act of incorporation, was made to include all that part of the then town of Middletown, which lay East of Connecticut river, and nothing more.
    The plaintiffs claimed title to the demanded premises from the colony of Connecticut, first, to the proprietors of the common and undivided lands in the town of Middletown, and secondly, from such proprietors to themselves. The title of the colony of Connecticut, was admitted by the defendants.
    
      To prove the transfer of the title from the colony to the proprietors of common and undivided lands in Middletown, the plaintiffs produced in evidence a patent from the former to the latter, the material parts of which are the following: “Whereas the general court of Connecticut colony have formerly granted unto the proprietors, inhabitants of the town of Middletown in said colony, all those lands, both meadows and upland, with their appurtenances, within these abutments following, viz. on Wethersfield bounds on the North; on Farmington bounds, and on the commons, on the West; on Haddam bounds, on the South; and on the wilderness, on the East; the breadth is from Wethersfield bounds on the North, full four miles South of the meeting-house of Middletown; and to run the whole breadth on the West side of Connecticut river, five miles from the said North and South line ; and on the East side of Connecticut river, their bounds to run full six miles from the said river, the whole breadth from Wethersfield bounds to Haddam bounds: the said lands having been, by purchase or otherwise, lawfully obtained of the Indian native proprietors “Know ye, that the governor and company of the colony of Connecticut, assembled in general court, have given and granted, and by these presents, do give, grant, ratify and confirm, unto Mr. Giles Hamlin, &c. and the rest of the said present proprietors of the township of Middletown, and their heirs and assigns forever, and to each of them, in such proportion as they have already agreed upon for the division of the same, all that aforesaid tract of land, as it is butted and bounded, together with all the woods, upland, arable lands, meadows, pastures, ponds, havens, ports, waters, rivers, islands, fishings, huntings, fowlings, mines, minerals, quarries and precious stones upon or within the said tracts of land, with all other profits and commodities thereunto belonging, or in any wise appertaining.”—“To have and to hold the said tracts of land and premises, with all and singular their appurtenances, together with the privileges, immunities and franchises herein given and granted to the said Mr. Giles Hamlin, &c. and the rest of the proprietors, inhabitants of Middletown, their heirs and assigns forever, and to their only proper use and behoof, according to the tenor of His Majesty’s manor of East-Greenwich, in the county of Kent, in the kingdom of England, in free and common socage, and not in capite, nor by knight’s service; they yielding and paying therefore to our sovereign lord, the king, his heirs and successors, only the fifth part of all the ore of gold and silver, which, from time to time, and at all times hereafter, shall be there gotten, had or obtained, in lieu of all rents, services, duties, and demands whatsoever, according to charter.” This instrument bears date the 11th day of March, 1685-6.
    As explanatory of this patent, the plaintiffs produced in evidence, a copy of a deed from sundry native Indian proprietors to the inhabitants of Middletown, dated the 24th day of January, 1672. This instrument, after referring to the gift, formerly made by Sowheag, the great sachem of Mattabesett, of a great part of the township of Middletown, to the Hon. Mr. Haynes, proceeded thus : “And now, for a further and full consideration, paid by” the grantees, the grantors “have given, granted, bargained, sold and confirmed, and by these presents, do fully and absolutely give, grant and confirm unto the said” grantees “all that tract of land within the following abutments, viz. on Wethersfield bounds on the North, on Iladdam bounds on the South, and to run from the great river the whole breadth towards the East six miles, and from the great river towards the West so far as the general court of Connecticut hath granted the bounds of Middletown shall extend.—To have and to hold the aforementioned tract of land, as it is bounded, with all the meadows, pastures, woods, under-wood, stones, quarries, brooks, ponds, rivers, profits, commodities and appurtenances whatsoever belonging thereunto, unto the said grantees their heirs and assigns forever.”
    The transfer from the proprietors of common and undivided lands in Middletown to the plaintiffs, was duly proved, by a vote of such proprietors, passed January 9th, 1786; and no question was made in regard to it.
    It was admitted, by the parties, that the boundaries described in the patent, and also in the Indian deed, were the true boundaries of the town of Middletown, as it existed prior to the incorporation of the town of Chatham; and it was not claimed by the defendants, that any alteration had been made in the boundaries of the town of Middletown, except such as were made by that incorporation. It was also admitted by the parties, that if the lines on the North and South sides of the territory described in the patent, upon a true construction of that instrument, extended across Connecticut river, the island in question would be within the abutments therein mentioned, and within the limits of the town of Middletown, as it existed prior to the incorporation of Chatham.
    
    
      The plaintiffs claimed, that upon, a true construction of the patent, the lines upon the North and South sides of the territory therein described, extend across the river; that the patent transferred to the proprietors of the common and undivided lands in Middletown a good and valid title to the bed of that part of the river in which the island is situated ; and that from the facts above stated, they (the plaintiffs) had acquired a good and valid title to the demanded premises, and were entitled to a verdict in their favour; and they requested the judge so to instruct the jury.
    The judge instructed the jury, that the land in the bed of the river never vested in the plaintiffs, by virtue of said conveyances, but remained in the colony and state of Connecticut, according to their true construction and legal effect; and he therefore directed the jury to find a verdict for the defendants; which they did accordingly.
    The plaintiffs thereupon moved for a new trial for a misdirection.
    
      N. Smith and Hungerford, in support of the motion,
    contended, 1. That the bed of Connecticut river between the present towns of Middletown and Chatham, is included within the boundaries of the ancient town of Middletown, as described by the patent of that town. That instrument included all the lands within these abutments, viz. Wethersfield on the North, Farmington and the commons on the West, liaddam on the South, and the wilderness on the East, extending on that side six miles from the river. The boundaries specified in the Indian deed, are the same.
    2. That the title to the bed of the river between those towns, was conveyed, by the patent, to the town of Middletown. The term lands is nomen generalissimum, comprehending every species of ground, soil or earth whatsoever, whether upland, meadow or marsh, and in every variety of condition, whether covered with grass or stones, with wood or sand, with buildings or water. Co. Litt. 4. a. Com. Dig. tit. Grant. E. 3, 4 Cruise’s Dig. 40, 41. tit. 32. c. 3. s. 33. In a grant by an individual, the term lands would unquestionably comprise the bed of a river. Such is in fact the present case. The original grant from the native proprietors, was a grant by individuals. The colony of Connecticut confirmed this grant. The construction of the original grant was thereby adopted. If it be said, that the patent was a deed of grant, as well as of confirmation, this is immaterial here; for by superadding a grant, the instrument did not take away or narrow the rights which it confirmed. But laying the Indian deed out of the case; the king of England held the territory here not merely jure corona, but by virtue of his prerogative; and he held the uplands and the bed of the river, by the same right. The colony of Connecticut, in relation to this subject, had all the right of the king; and the grantees under the colony are to hold in the same manner as the colony held under the king. The reservation in the patent of gold and silver ores, shews, that without such reservation, they would have passed.
    3. That if the bed of the river passed to the plaintiffs, they are entitled to the soil made upon it.
    
      Sherman and Barnes, contra,
    after remarking that the demanded premises belonged, prima facie and of common right, to the sovereign power; (Harg. L. T. 17. 18. 35.) that the plaintiffs must claim either by grant or prescription; and that they claim by grant, which excludes prescription; contended, 1. That the grant does not include the river within the boundaries specified. The patent describes a certain tract of territory on the West side of Connecticut river, and another, tract on the East side, which comprise the whole subject of the grant. The Indian deed describes the territory as extending from the great river towards the East, and from the great river towards the West.
    
    2. That if the river was included within the boundaries specified; and if the words used are such as in the grant of an individual would convey both the soil and the water of a river, which could be the subject of such a grant; yet in this public grant, which is to be construed most favourably for the public, and where no alienation can be presumed, which is not clearly and indisputably expressed, there are no words which convey the bed of this arm of the sea. The case of East-Haven v. Hemingway & al. 7 Conn. Rep. 186. where the words of the grant were very similar to these, and at least as strong, is decisive of this point. In Palmer v. Hicks, 6 Johns. Rep. 133. it was decided, by the supreme court of New-York, that a grant to a town, extending on both sides of a navigable river, does not convey the soil underneath the water, or below high-water mark.
   Bissell, J.

The demanded premises consist of an island formed upon the bed of Connecticut river, within the last thirty years. The plaintiffs claim to recover them, on the ground that they are the owners of the soil and bed of the river, at the place where the island has arisen. It is admitted, that the river is here navigable, and an arm of the sea ; and the controversy turns, entirely, upon a construction of the patent from the governor and company of the colony of Connecticut, to the proprietors of commonand undivided lands of the town of Middletown, dated the 11th day of March 1685-6; as the same is explained, by a deed from sundry native Indian proprietors, dated the 24th day of January 1672. Did the title to the soil and bed of the river pass, by either, or both of these instruments?

The patent of the governor and company of the colony of Connecticut conveys all the lands within the following abutments, viz. “on Wethersfield bounds, on the North; on Farmington bounds, and the commons, on the West; on Haddam bounds, on the South; and on the wilderness, on the East. The breadth is from Wethersfield bounds, on the North, full four miles South of the meeting-house of Middletown, and to run the whole breadth on the West side of Connecticut river, five miles from the said North and South line; and on the East side of Connecticut river, their bounds to run full six miles from the said river, the whole breadth, from Wethersfield bounds to Haddam bounds.” It might admit of a serious question, whether the river is, or was intended to be, embraced within the boundaries mentioned. It is, however, unnecessary to decide that point; for admitting it to be so embraced, still it is clear, that, upon a sound construction of the grant, no title to the soil and bed of the river, was conveyed. This instrument conveyed the land within the described boundaries, “ together with all the woods, uplands, arable lands, meadows, pastures, ponds, havens, ports, waters, rivers, islands, fishings, huntings, fowlings, mines, minerals, quarries and precious stones, upon or within the said tracts of land, with all other profits and commodities thereunto belonging, or in any wise appertaining.” Upon comparing the terms of this grant with that of the colony of Connecticut to the town of New-Haven, as reported in the case of East-Haven v. Hemingway, 7 Conn. Rep. 186. they will be found so nearly alike, as to render that case entirely decisive of the present. It would, indeed, seem impossible to make a distinction between the cases. And it can be only necessary here, to refer to the opinion of the Court in that case.

It has, however, been said, in the argument, that the patent from the governor and company of the colony of Connecticut, is a mere confirmation of the title derived from the native Indian proprietors; that the deed from those proprietors is now before the Court; and that this deed clearly conveys the title to the soil and bed of the river. To this argument, a satisfactory answer maybe given in the language of the Chief Justice, in the case of East-Haven v. Hemingway. He says, that this patent “ is not only a confirmation but a grant.” “At the same time,” he adds, “it must be admitted, the principal, if not the sole object of the grant, was to confirm, to the proprietors, the title to their lands, derived from the natives, which they had not the legal capacity to sell, and of which the proprietors had been in the quiet possession, for many years.” 7 Conn. Rep. 198, 9.

But a recurrence to the grant from the native proprietors, will, I think, most satisfactorily shew, that the plaintiffs’ case is far from deriving any aid from that source. The lands conveyed, thereby, are thus described: “on Wethersfield bounds on the North; on Haddam bounds on the South; and to run, from the great river, the whole breadth, towards the East six miles, and from the great river towards the West, so far as the general court of Connecticut hath granted the bounds of Middlesex to extend.” Is not all title to the river expressly excluded, by the very terms of this grant? And was not such manifestly the intent of the parties? To me it seems difficult to conceive of any phraseology better adapted to express that intent. Again; The Habendum is in these words: “To have and to hold, the before mentioned tract of land, as it is bounded, with all the meadows, pastures, woods, underwood, stones, quarries, brooks, ponds, rivers, profits, commodities and appurtenances whatsoever belonging thereunto.” Now, it is exceeding clear, that by none of the terms here used, was the soil of the river conveyed. See East-Haven v. Hemingway, and the cases there cited.

The island in question, being formed upon the bed of a navigable river, the title is, prima facie, in the state. Lord Hale says: “As touching islands, arising in the sea, or in the arms, or creeks, or havens thereof, the same rule holds, which is before observed, touching acquests, by the reliction, or recess of the sea, or such arms, or creeks thereof. Of common right, and prima facie, they belong to the crown; but where the interest of such districtus maris, or arm of the sea or creek, or haven, doth, in point of propriety, belong to a subject, either by charter or prescription, the islands that happen within the precincts of such private propriety of the subject, will belong to the subject, according to the limits and extent of such propriety.” De Jure Maris, pars 1. cap. VI. (Harg. L. T. 36.) The plaintiffs having failed to show such a propriety in themselves, they cannot recover.

I would not advise a new trial.

Peters and Daggett, Js. were of the same opinion.

Hosmer, Ch. J. being an inhabitant of the town of Middletown, and therefore interested, and Williams, J., having been of counsel in the cause, gave no opinion.

New trial not to be granted.  