
    Benjamin F. Hopkins v. Zenas Kent.
    "^Vhere a deed describes a line of the land conveyed, by a line running tv the Cuyahoga River, at low water mark, thence up the river at low water mark, etc., held that it did not pass title to the land within the bed of the river.
    Where a deed conveys a tract of land lying on both sides of the Cuyahoga Eiver, with all the waters and water courses thereto belonging: reserving nevertheless [to the grantor] seven acres on the east side of the Cuyahoga Eiver where the bridge crosses. Quere, Does the whole bed of the river pass by the deed, or is the land to the middle of the stream reserved ?
    Trespass on the Case, for a nuisance in overflowing the plaintiff’s land. From Portage. At the trial of the issue of not guilty to a jury, *both parties claimed title to the land overflown, derived from Frederick, George, and John Haymaker. In September,- 1825, the Haymakers by deed conveyed lot No. 25, with other lands, to Jacob Reed, with all the'waters and water courses thereto belonging, “ Reserving [to themselves] nevertheless seven acres of land off the northeast corner of lot 25, on the east side of the Cuyahoga River, where the bridge crosses said river.” This title is in the defendant as fully as Reed held it. In October, 1815, the Supreme Court in Chancery decreed the Haymakers to convey to one Quinby the title to the said reserved seven acres, by the following description : “ A piece of ground adjoining and lying on the east side of the Cuyahoga River, beginning at the north-east corner of the bridge, thence along the north side of the state road eastwardly to the north and south line on the east side of lot twenty-five, thence north to the north-east corner of said lot, thence west to the Cuyahoga River, thence south to the place óf beginning.” This land was conveyed to the plaintiff by deed in September, 1832, and described as “part of lot 25, beginning at the north-east corner, then south by the east line of the lot 13 chains 87 links to a post, thence west 3 chains and CO links to the Cuyahoga River at low water mark, intersecting said river 9 links north of a hemlock tree, thence up said river, at low water mark to the north line of the lot, thence east to the place of beginning.” Upon this state of title being shown, the court expressed the opinion that the plaintiff's deed did not cover the land within the bed of the Cuyahoga, River below low water mark, whereupon a juror was withdrawn and a nonsuit ordered. The court is now called to review that opinion upon amotion to set aside the nonsuit and for a new trial.
    
      L. V. Bierce, and R. P. Spalding, for the plaintiff,
    insisted that the whole question turned upon the construction of the deed from Haymakers to Reed. Did that grant pass to Reed the exclusive use of the river? He deeded 1050 acres on the west side of the river, with the water power upon it, and reserved seven acres on the east side with the water power upon that. The grant and reservation stand in the same situation, each having an equal right to the river flowing between-the tract conveyed and that reserved. The plaintiff, therefore, owns to the middle of the river, and the defendant is liable for overflowing his fall. The case in 3 Ohio 495, is conclusive of this; a boundary upon the river, passes the land to the middle of it. The reservation in this ease, calls for the east side of the river, and, of course, bounds by, and passes the land to the middle. The decisions *in Connecticut go even farther. The phraseology of the decree of the Court, beginning for the land at the corner of the bridge, and, running round the tract, to the river, etc., does not change the question. It evidently described that point, as the beginning, where the bridge intersected the bank of the river.
    E. Whittlesey, Newton, and Turner, for the defendant,
    submitted no argument.
   By the Court,

Lane, C. J.

The decree and conveyances under-which the defendant claims to the middle of the river, do not profess^ to convey the bed of the stream. Describing the land as adjoining, as lying on the east side of the river, and running the line to the river, would, in the absence of other evidence, imply an extension to the middle of the stream; but the equivocal language used, coupled with the previous conveyance to Reed of “ all waters and water courses,” would go far to prove that the bed of the river was not included. This presumption is confirmed by the construction which the owners of the small tract have since given to the extent of their title. The-conveyances down to the plaintiff, describe it as part of lot No. 25, beginning at the north-east corner, thence south by the east line of the lot, etc., thence west three chains sixty links to the Cuyahoga River at low water mark, thence up said river, at low water mark, to the north line of the lot, thence east. Here the bed of the river is-excluded in terms, so that even if it did not furnish satisfactory evidence, that the title to the middle of the river was not vested inQuinby by the decree, it fully concludes the plaintiff, by showing that-he acquired no rights below low water mark.

New trial refused.  