
    The Seneca Nation of Indians v. Knight.
    A boundary line running from a post on the north bank of a creek “ thence down the same and along the several meanders thereof to the place of beginning,” which was also on the bank, includes the bed of the stream to the centre.
    So held, although the boundaries of the tract after crossing the stream several times, recrossed it to reach the commencement of the boundary in question.
    Appeal from the Supreme Court. Ejectment for an acre of land, including a saw-mill, pond, dam-and the north bank of the Cattaraugus creek. Upon the trial at the Erie circuit, it •appeared that the premises in controversy were the slope of the north bank, and the land between the bank and the centre of the Cattaraugus creek, about one mile from its mouth. The plaintiffs made title under a conveyance to them by the Holland Land Company (so called), of a tract of land described as “beginning at a post marked Ho. 0, standing on the bank of lake Erie at the mouth of Cattaraugus creek, and on the north bank thereof; thence along the shore of said lake north 11 degrees, east 21 chains, north 13 degrees, east.45 chains, north 19 degrees, east 14 chains 65 links to a post; thence east 119 chains to a post; thence south 14 chains' 27 links to a post; thence east 640 chains to a post standing in the meridian, between the 8th and 9th ranges; thence along said meridian south 617 chains 75 links to a post standing on the south bank of Cattaraugus creek; thence west 160 chains to a post; thence north 290 chains 25 links to a post; thence west 482 chains 31 links to a post; thence north 219 chains 50 links to a post standing on the north bank of Cattaraugus creek; thence down the same and along the several meanders thereof to the place of beginning.” It appeared that this boundary crossed the creek three time's before reaching the last course but one, and that course and distance carried the boundary across the creek for the fourth time. The question in dispute was whether the last course of the boundary carried the plaintiffs to the centre of the creek, or only to the bank. Upon this point the judge, under exception by the plaintiffs, charged the jury that the plaintiffs, by virtue of the conveyance, owned to the north bank of the creek and not to the centre. The jury rendered a verdict for the plaintiffs for so much of the premises claimed as lies north of the top of the slope of the north bank. Both parties made bills of exception. The defendant declined to appear upon the argument before the Supreme Court at general term, designing that a new trial should be ordered by default, so that nothing should be determined as to the law of the case. The Supreme Court, however, upon the application of the plaintiffs, took the exceptions for actual consideration; and after deliberating thereupon, denied a new trial to either party, and affirmed the judgment. The plaintiffs appealed to this court.
    
      John K. Porter, for the appellants.
    
      Marcus Sackett, for the respondent.
   Comstock, Ch. J.

We do not entertain any serious doubt upon the question presented in this case. -The rule of construction contended for by the plaintiffs has often been considered by the courts, and has become well 'settled. In the case of Child v. Starr (4 Hill, 369), it was held that a boundary line running eastwardly to the Genesee river, thence northwardly along the shore of the river, conveyed no part of the bed of the stream, and that the grantee took only to low water mark. But the controlling words were, “ along the shore of the river;” and upon the force of those words alone the judgment of the Supreme Court, which had been the other way, was reversed in the Court of Errors by a single vote. Chancellor Walworth, who gave the leading opinion, said: “ Running to a monument standing on the bank, and from thence running by the river or along the river, &c., does not restrict the grant to the bank of the stream, for the monuments in such cases are only referred to as giving the directions of the lines to the river, and not as restricting the boundary on the river.” In Luce v. Carley (24 Wend., 451), the course began at “a hard maple tree standing on the east branch of the Onondaga riverand then, after giving other courses and distances, the description proceeded, “ thence west to the east bank of the river; thence along the river to the first mentioned bounds.” It was held that the grantee “took to the centre of the stream.” This rule is recognized in very many adjudged cases, which need not be cited. We have no doubt of the justice and policy of the rule, nor that, in most cases, it gives effect to the actual intention of the parties to such grants. Of course, it does not apply to streams which belong to the public, as navigable waters.

In this case the boundary begins at a post standing on the north bank of the creek, and it returns to a post also standing on the “ north bank of Cattaraugus creek,” and proceeds “ thence down the same, and along the several meanders thereof, to the place of beginning.” On the part of the defendant it is claimed that “ down the same,” in this description, means down the bank, and not down the creek. But we think this is not the fair construction of the language. The words more obviously refer to the creek, which is the immediate antecedent, than to the bank. And, again, the phrase, “ along the meanders thereof,” is more descriptive of the windings of the stream than of the irregularities or sinuosities of the bank. Indeed, the word “meander” is derived from a winding river in Asia. Minor, known by that name in classic history. And, in our language, we say that a stream meanders; but, I think, we never speak thus of a shore. To speak of a meandering shore, would be to use a singularly inapt expression. It may well be added, that a strictly shore line upon a river would, in most cases, be extremely difficult to trace. Parties may so restrict their grants, if they will; but the restriction ought to be found in very plain and express words. If a different rule of construction were to be established, then, as Judge Oowen observed (24 Wend., 453), “water-gores will be multiplied by thousands along our inland streams, small and great; the intention of parties will be continually violated, and litigation become interminable.”

The boundary in question has one peculiarity which may deserve a moment’s attention. The point of commencement is on the north bank of the creek. The courses being irregular, and the stream a winding one, the former cross the latter three times before reaching the last course but one, and that course and distance are carried across the fourth time; thus returning to the north bank at a post, from which the last line is drawn to the place of beginning. It is claimed that, by thus recrossing the stream to a monument in order to reach the same bank from which the description began, the whole bed of the river is necessarily excluded. But we think there is nothing in this peculiarity to take the case out of the general rule. Both at the first and the last points in the description, monuments were necessary in order to mark the places of intersection with the stream. Such monuments are never located, in fact or in description, in the channel of a river; and, in order to avoid apparent incongruity in a boundary like the one in question, they must both be placed on the same shore. If the last monument, or point of intersection, had been placed on the south shore, and from thence the line had proceeded along the shore or the river, the paper lines would have been incomplete without another crossing of the stream to the place of beginning on the north side. If such had been the description, the crossing line included, it might have justified a strong inference that the whole bed of the river was intended to be embraced. The most obvious mode, therefore, of indicating the river, that is to say, the centre, as the dividing line, was to' draw the last course but one to the same bank on which the first monument stood; and it does not seem to us material whether the stream had not been previously crossed at all, or whether the bank was reached by recrossing it on a return course. The presumed intention of the parties, and, therefore, the construction of the boundary, must, we think, in either case, be the same. The land in question on this appeal lies between the top of the bank and the centre of the river on the last line and course in the description; and we are of opinion that the -judge at the trial erred in ruling that it did not belong to the plaintiffs.

It appears that, on the trial, the plaintiffs recovered so much of the premises disputed in the action as lay north of the river bank; and they excepted because they were not allowed to recover the part which lay between the bank and the centre of the stream. On the appeal to the general term, the defendant did not appear—the motive for non-appearance obviously being to have a new trial granted by his default, which would enable him to retain possession of the part for which the plaintiffs had the verdict. In this way, successive trials and appeals in the Supreme Court might go on indefinitely, and the plaintiffs could never obtain the judgment of this court in respect to the other portion of the premises. The Supreme Court, therefore, very properly refused to grant the new trial by default, but, on the plaintiffs’ request, examined the question on its merits, and denied the motion. We have already held that the plaintiffs’ appeal to this court is regular. (19 N. Y., 587.

All the judges concurring, except Hoyt, J., who expressed no opinion,

Judgment reversed, and new trial ordered.  