
    John Henry Niehaus v. James Shepherd.
    Where, in a deed of conveyance, the middle of a known stream is called for as the boundary line between adjacent proprietors, the thread of such stream, notwithstanding it may have been changed in its location by attrition and accretion, will control the courses and distances named in the conveyance, and will continue to be the boundary line between the lands of the respective proprietors.
    Motion for leave to file a petition in error to the District Court of Hamilton county.
    This action was brought in the Court of Common Pleas of Hamilton county, by the defendant in error against the plaintiff in error, to restrain the plaintiff' in error from entering upon and removing stone, gravel, and earth from the land of the defendant in error on the left bank of Mill creek, the middle of which stream was averred by the. defendant in error to be the boundary line between his lands and those of the plaintiff' in error, situate on the right bank of the same stream; and to recover damages for the stone, gravel, and earth removed by the plaintiff in error from the lands of the defendant in error. The injunction was allowed and an order issued.
    The plaintiff’ in error answered, denying the averments of the petition; averring that the boundary line between his lands and those of the defendant in error was defined by course and distance, and that the title to and the possession of the premises, from which the stone, gravel, and earth had been removed, had been in himself and his grantors for more than twenty-one years before the commencement of the action. He also, by cross-petition, set out his title to the premises, averred that the defendant in error was removing gravel from the premises in dispute, and asked that he be restrained from so doing until the question of the location of the boundary line between their lands ■should be determined. The injunction was allowed and the order issued.
    The allegations of the answer and cross-petition were denied by the reply of the defendant in error; and, by agreement of the parties, the question of damages was reserved for future adjudication, and the cause submitted to the court to determine the true boundary line between the lands of the parties.
    On the hearing, at its January term, 1875, the Court of Common Pleas found that the true boundary line between the premises of the defendant in error and those of the plaintiff in error, was the middle of the west branch of Mill creek, as alleged in the amended petition of the defendant in error; that the changes in the location of the ■creek, since the making of the conveyances by John Lyon to Samuel Lyon and Jared Coffin respectively, were caused by gradual and imperceptible attrition and accretion, and that each of the parties was entitled to the alluvion thereby formed and attached to his respective tract. And thereupon ■ordered, adjudged, and decreed that the injunctions theretofore allowed be- dissolved; that the middle of the west branch of Mill creek be held and declared to be the boundary line between the premises of the parties; that the title of each, as against the other, be quieted to that line, and that each be perpetually enjoined from trespassing upon or •setting up any claim to the premises of the other, as determined and fixed by the decree.
    The plaintiff in error gave notice of an appeal, which was afterward perfected; and at the October term, 1875, of the District Corirt, the cause was submitted by the parties, on an agreed statement of facts, from which it appears that, in 1804, David Grummon conveyed to John Lyon, by deed duly executed, a tract of land, containing one hundred and seven acres, in section three of Springfield township, in the county of Hamilton, through which Mill creek, the west branch, rari almost diagonally from northwest to southeast; that on the 24th of October, 1814, John Lyon conveyed that part of the tract conveyed to him by David Grummon, lying north and east of Mill creek, to Samuel Lyon, the grantor of the defendant in error, and that part of the same tract lying south and west of Mill creek to Jared Coffin, under whom the plaintiff in error claims title to that portion of the tract described in his cross-petition; that the boundary line between the, lands conveyed by John Lyon to Samuel Lyon and Jared Coffin, commencing at a designated point in the middle of Mill creek, on the east line of the section, is described in their respective deeds as follows: “ Thence up the middle of said creek the following courses and distances, viz: north thirty and one-half degrees west, eight chains and fifty links; south sixty-five degrees west, three chains and eighty-five links; south eighty-six degrees and fifty minutes west, fourteen chains; north fifty-six degrees west, two chains and sixty links; north nineteen and one-fourth degrees west, nine chains and seventy-five links;. north six degrees east, six chains and seventy links;” thence leaving the creek, etc. The parties and their grantors have been in possession of their respective tracts for over fifty years, each party having his fence along the creek set at 3uch distance therefrom as to be beyond the reach of high water; that since 1814, the west branch of Mill creek, which is the creek referred to in the deeds from John Lyon to Samuel Lyon and Jared Coffin, has made no sudden changes in its course or location; but by a gradual process of attrition of the right bank and accretion on the left, has so changed its location between the lands of the parties that the left bank of the stream, at the place where stone, gravel, and earth were removed by the plaintiff’ in error, is now, as is shown by the plat of a survey made by L>. S. Has-brook, on the 18th day of August, 1813, south of the division line as made by course and distance in the conveyances under which the parties claim title; and that the west branch of Mill creek is a well-defined stream, but is not navigable, and occasionally, in extremely dry weather, ceases to flow over the ripples, although the stream is never entii’ely dry.
    The findings and decree of the District Court, upon the agreed statement of facts, were the same in every respect as the findings and decree of the Court of Common Pleas; upon the rendition of which the plaintiff in error moved for a new trial, which was overruled by the court, and the ruling excepted to by the plaintiff' in error, who thereupon presented his bill of exceptions in that behalf, which was allowed, signed, and sealed by the court.
    
      W. Cornell, for the motion :
    The language employed in the description of each of the deeds of the plaintiff and defendant is clear and plain. There is no ambiguity about it. It is presumed that the language contained in an instrument of writing is used in its ordinary sense. If this be true, why reject the ordinary language and retain other language merely secondary, unless in the application of the ordinary and descriptive language violence is done to some part of the instrument ? If, by following the courses and distances, the fixed» points can be reached, and the true quantity of land included in such calls, what good, substantial reason can be given for following, the secondary language, especially when by so doing both parties do not get their true quantity of land ? It is no more difficult to trace a line by course and distance because a creek happens to be near it, than it is to trace it where there is no creek.
    The deed of Samuel Lyon, the grantor of the defendant in error, says: “Beginning at the section line 11.10 chains north from the southeast corner of said section.” This is certainly plain enough, and also refers to a fixed monument. It is true there is added the words, “ which is also the middle of Mill creek.” Now, Mill creek changes. The section corner does not change. The place of beginning being a fixed point, easily ascertained, if the lines run therefrom by the courses and distances called for in the deed will again reach that place, why should that place be departed from?
    Unless the lines as called for will not fit the grant intended, they should be followed. Walsh v. Hill, 38 Cal. 334; Percy v. Crandall, 34 Cal. 481; 17 Mass. 207.
    
      Where, by following the calls in a deed, the survey will close and include the quantity of land called for, it is certainly quite clear that the parties meant to follow those calls. There can no presumption as to riparian ownership, accretion, &c., arise. And as a consequence the parties intended what they said, and the intent governs. Levy v. 'Wagoner, 47 Mo. 178; Wolf v. Scarborough, 2 Ohio St. 361; Lockwood v. Wildman, 13 Ohio, 430; Bowman v. Farmer, 8 N. H. 402; Gore v. White, 20 Wis. 425; Wykoff v. Stephens, 14 Ohio, 13; Speller v. Nye, 16 Ohio, 16.
    The same may be said of the deed under which the plaintiff in error claims title.
    
      Harmon $ Burrell, contra:
    A stream of water is one of the natural monuments which will control course and distance. 3 Washburn on Real Prop. 353; Buckley v. Blackwell, 10 Ohio, 508. And the thread of the stream continues to be the boundary line, whether changed by attrition and accretion ,or not. 3 Wash-burn, 56; Angelí on Water-courses, see. 57; Lamb v. Ricketts, 11 Ohio, 310.
    And the above rule applies to this case, notwithstanding Mill creek sometimes, in very dry weather, does not flow over the ripples. The accustomed, though not continuous flow of water, is a stream in the eye of the law. 2 Peters, 417; 30 Conn. 180; 3 Green’s Ch. 246; 2 Angelí on Watercourses, see. 4.
   Rex, J.

The principal ground assigned by the plaintiff in error for leave to file his petition, is: That the District Court erred in holding that the middle of the west branch of Mill creek is the true boundary line between his lands and those of the defendant in error.

The language used in the conveyances from John Lyon to Samuel Lyon and Jared Coffin, shows clearly and conclusively that the middle of the creek was intended as the boundary line between the lands conveyed to them respectively.' Each, by his deed, was entitled to possession to the middle of the creek opposite his lands bounded by it, and hence was entitled to the ground added by the creek to his lands by alluvion. Lamb v. Ricketts, 11 Ohio, 310; Angell on Water-courses, sec. 53.

We regard the principle of law to be well settled, that where by a gradual and imperceptible process of wearing away the land upon one side, and depositing soil upon the other, the thread of a stream, whether navigable or not, forming the boundary line between adjacent owners, is changed, the boundary line changes with it, since it is the thread of the stream for the time being, and not the one existing at the time the adjacent owners acquired their titles, which forms the boundary line between their estates. 3 Washburn on Real Prop. 56; Angelí on Water courses, sec. 57.

As the agreed statement of facts in this case shows that the thread of the stream, which, by the conveyances under which the parties claim title to their respective premises, was made the boundary line between them, and that since the conveyances were made, its location has been changed by attrition and accretion, we are of opinion that the District Court did not err in holding that the middle of Mill creek, as it now exists, is the true boundary line between their respective estates.

Motion overruled.

McIlvaine, C. J., Welch, White, and Gilmore, JJ., concurred.  