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thence down on the left bank of said creek to the line between sections No. 3 and 4, in said township," etc., must be considered as drawn at the bank of the stream; the presumption that it is in the middle of the bed of the stream or at low-water mark being positively rebutted. People v. Board of Supervisors, 125 Ill. 9; 17 N. E. Rep. 147.

Where a patent confirming a Mexican grant describes the land as follows; "Beginning on the sea-shore at station number 13 of the Ballona rancho,” the plat of the survey annexed to the patent representing this common corner of the two ranchos as commencing on the sea-shore, it is to be construed that the land is at that point bounded by the sea, i. e., ordinary high-water mark. Jones v. Martin, 35 Fed. Rep. 348 (1888).

Under 3 Rev. St. N. Y. p. 8, § 24, fixing as the boundary line of Warren county the middle of the north branch of the Hudson river, "and of the main stream of said river " to include the whole of every island, any part of which is nearer to the north or east shore than to the other, and to exclude islands any parts of which are nearer to the south or west shore, the main stream is the boundary, subject to such variations as may result from the presence of islands in the main stream and islands not in the main stream, do not affect the course of the boundary, whatever their distances from the respective shores. In re Spier, 50 Hun, 607; 3 N. Y. Sup. 438 (1889).

$36. Origin of the Common Law Rule of Navigable Streams.--By the common law all streams in which the tide ebbed and flowed were navigable streams and all others were not;' this rule had its origin in the fact that in England all rivers excepting the Thames were in fact navigable only so far as the tide flowed. In the United States it is difficult to determine in all cases what is a navigable stream, for it is evident that the English doctrine does not apply. Our courts seem to agree upon one point, and one only; when a stream is navigable by boats actually used in the prosecution of commerce, they are navigable notwithstanding the tide does not flow in them, and the public has a right to use them as highways.' In the United States many streams, though not navigable under the common law, are declared to be so by statute. It would be ridiculous to apply this common law doctrine to many of 1 Washburn on Real Property, 413; Schuylkill Co., 14 Serg. & R. (Penn.) Com. v. Chapin, 5 Pick. (Mass.) 199; People v. Tibbetts, 19 N. Y. 523.

2 The Montello, 20 Wall. (U. S.) 439; Brown v. Chadbourne, 31 Me. 9; 50 Am. Dec. 641; Ingraham v. Wilkinson, 4 Pick. (Mass.) 168; 16 Am. Dec. 342; Canal Commissioners v. People, 5 Wend. (N. Y.) 423; Commissioners v. Withers, 29 Miss. 29; McManus v. Carmichael, 3 Iowa, 1; Schrunk v.

71; Home v. Richards, 4 Coll. (Va.) 441; 2 Am. Dec. 574; Blanchard v. Porter, 11 Ohio, 138; Claremont v. Carlton, 1 N. H. 369; 9 Am. Dec. 88; O'Fallan v. Doggetts, 4 Mo. 343; 29 Am. Dec. 640; Middleton v. Pritchard, 4 Ill. 510; 38 Am. Dec. 112; Coates v. Wellington, 1 McCord (S. C.), 580; 10 Am. Dec. 699.

AD FILUM MEDIUM AQUAE.

573

our smaller streams on the coast, in which the tide ebbs and flows and which are still too shallow to admit the passage of vessels of the lightest draught.' And some of our courts holding that the English common law rule of tidal streams is not applicable in this country, have decided that the title to streams in which the tide flows, but which are not in fact navigable, is in the riparian proprietor, and the boundary line is the filiam aquae, or center line of the stream.2

37. No Settled Rule in the United States.-There is little uniformity of decision in the United States in regard to the ownership of the soil under our fresh water streams, which are open to the public use as highways. Some courts apply the rule of tidal streams, holding the title to be in the State." Others hold it to be in the riparian proprietors, so that no general rule can be laid down.*

38. Boundaries-Ad Filum Medium Aquae. It seems very clearly settled that, upon all rivers not navigable (and all rivers are not to be deemed navigable above where the sea ebbs and flows) the owner of the land adjoining the river is prima facie owner of the soil to the center line or thread of the stream, subject to an easement for the public to pass along and over it with boats, rafts and river craft.

This presumption will prevail in all cases in favor of the riparian proprietor, unless controlled by some express words of description which exclude the bed of the river, and bound the grant on the bank or margin. In all cases, therefore,

1 2 Am. & Eng. Ency. 506.

Glover v. Powell, 10 N. J. Eq. 211; Rowe v. Bridge Co., 11 Pick. (Mass.) 344; State v. Gilmanton, 14 N. H. 467.

3 Barney v. Keokuk, 94 U. S. 324;
Wilson v. Forbes, 2 Dev. L. (N. C.) 30;
Wainwright v. McCulloch, 63 Pa. St.
66; Martin v. Evansville, 23 Ind. 85:
People v. Canal, etc., 33 N. Y. 461;
Martin v. Nance, 8 Head (Tenn.), 650;
Benson v. Morrow, 61 Mo. 345; Tom-
lin v. Dubuque, etc.. 32 Iowa, 106;
Shrunk v.
Schuylkill Co., 14 Serg. &
R. (Penn.) 71; Bullock v. Wilson, 2
Post (Ala.), 436.

4 Com. v. Alger, 7 Cush. (Mass.) 53; Canal, etc., v. People, 17 Wend. (N. Y.) 595; Houck v. Yates, 82 Ill. 179; Steamboat Magnolia v. Marshall, 39 Miss. 109; Adams v. Pease, 2 Conn. 481; Palmer v. Mulligan, 3 Caines (N. Y.) 307; 2 Am. Dec. 270; Bay City, etc., Co. v. Industrial Works, 28 Mich. 182; Blanchard v. Porter, 11 Ohio, 138; Claremont v. Carleton, 2 N. H. 369; 9 Am. Dec. 88; O'Fallan v. Doggetts, 4 Mo. 343; Branton v. Bressler, 64 Ill. 488; Rhodes v. Otis, 33 Ala. 578; Ryan v. Brown, 18 Mich. 196.

where the river itself is used as a boundary, the law will expound the grant as extending ad filum medium aquae.'

If the boundary line is described in the instrument of conveyance as extending from one object on the shore of a stream to another as, for example, bounding on the river and extending from one tree on the shore to another. Or if a stream is referred to in general terms as the boundary-as, for example, where the land is described as running along or bounded on the river, the river will be considered a monument and the center line will be the boundary. The terminus of the boundary can be ascertained by drawing a line from two objects at right angles with the shore to the thread of the stream.'

The words. "to a tree on the bank of a river, thence up said river," in the description of land conveyed by deed, locate the line at the thread of the stream, and that location is not changed by other words in the same description giving the length of lines and quantity of land conveyed. Kent v. Taylor, 64 N. H. 489; 13 Atl. Rep. 419 (1888).

When the channel of a creek adopted as a boundary is material, and it is alleged that the channel has changed, evidence tending to show the location of the channel several years before its adoption as a boundary is inadmissible. Wilhelm v. Burleyson, 106 N. C. 381; 11 S. E. Rep. 590 (1890).

In an action between two adjoining owners to try title to land, it appeared that the north bank of a certain stream was the boundary line between the parties. There was evidence that the parcel in controversy was an island during high water, and that the main channel had been on the south side of the island at the date of the deeds under which the parties claimed, but by a sudden freshet had since been diverted to the opposite side. Held, that the ownership of such island depended upon the location of the main channel at the time of the execution of the deeds describing the north bank as the boundary line, and was not affected by the shifting of the stream to the other channel. Degman v. Elliott (Ky.), 8 S. W. Rep. 10 (1888).

It has been held, that if lands be described as bounded on the sea or salt water, the grantee will hold the lands to low-water mark, so that does not hold more than one hundred rods below high-water mark. Stover v. Free man, 6 Mass. 435; Commonwealth v. Inhabitants of Charlestown, 1 Pick. (Mass.) 180; Austin v. Carter, 1 Mass. 231.

If the land be described as bounded on a river, the grantee will hold to the thread of the river. Lunt v. Holland, 14 Mass. 149; Hatch v. Dwight, 17 Mass. 289.

By parity of reason, where land is described bounding along a highway or upon a highway, it ought to be extended that the grantee should hold to the middle of the highway (Jackson ex dem. Yates v. Hatheway, 15 Johns. (N. Y.) 447; Jackson ex dem. Kingston v. Low, 12 Johns. 252) or

1 Shaw, C. J., in Deerfield v. Ames, 17 Pick. (Mass.) 42 (1835).

2 Railroad v. Schurmeirer, 7 Wall. (U. S.) 286; Newhall v. Ireson, 13 Gray (Mass.), 262; Luce v. Carley, 24

Wend. (N. Y.) 451; 35 Am. Dec. 637: Newton v. Eddy, 23 Vt. 319; Robinson v. White, 42 Me. 218; Cox v. Freedley, 33 Pa. St. 129; McCollough v. Aten, 2 Ohio, 425.

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the whole of the highway in case the soil belonged to the grantor, who is not a proprietor of the lands on the opposite side of the way. But in Hatch v. Dwight, 17 Mass. 289, it was held that a deed describing lands as running to the bank of a river, did not pass the soil to the thread of the river, and in Stover v. Freeman, 6 Mass. 435, it was held that a deed describing lands as running to the shore, and by the shore, did not pass the flats. And in Lufkin v. Haskell, 3 Pick. (Mass.) 356, it was held that a grant of "thatch bank upon an isthmus between two rivers, which is covered by the sea at high water," did not pass the lands to the channels of the rivers on each side, and that the ordinance of 1641 was inapplicable to such a grant. See note to Little, Brown & Co's Edition Mass. Repts., Vol. 10, 149.

39. A Meander Line.--As the line is a winding or indirect course.

term denotes, a meander In boundaries it signifies

a line which follows the sinuosities of a stream, the shore of a body of water, or in some cases a highway.'

"Meander" means to follow a winding or flexuous course; and where, in a deed, one of the boundaries of the land conveyed is described as "beginning at a stake in the bay of shallows; * thence, with the meander of

*

*

the stream, 1st, N., 60 deg. W., 20 chs., to Shark's point," held, that the line described is the boundary line of the river. Turner v. Parker, 14 Or. 340; 12 Pac. Rep. 495 (1887).

Under a description in a patent as follows:-" Thence meandering down the right bank of Kings river," the river is properly considered one of the boundaries of the land. Heilbron v. Kings River & F. C. Co., 76 Cal. 11: 17 Pac. Rep. 933 (1888).

But patents by the general government of public lands bordering on streams are not limited by the meander lines. Following Schurmeier v. Railroad Co., 10 Minn. 82 (Gil. 59) and 7 Wall. 272. St. Paul, S. & T. F. R. Co. v. First Division St. Paul & P. R. Co., 26 Minn. 31; 49 N. W. Rep. 203. A patent calling to run with the meanders of the Cumberland river passes title to the bed of the river to the middle of the stream, unless the terms of the grant clearly limit the grantee's right of property to the margin of the river, with the usufruct of the water to the middle of the stream, subject to the public easement of navigation, and to the usufructuary rights of other proprietors above and below. Kentucky Lumber Co. v. Green, 87 Ky. 257; 8 S. W. Rep. 439 (1888).

Where a patent describes a line as beginning at a corner on a branch and running "up the branch and binding thereon," the line must follow the water-course, and not the courses and distances as found by survey. Bailey v. McConnell (Ky.), 14 S. W. Rep. 337; Am. Dig. 1891, 474.

A grantor in a deed clearly evinced an intention to convey the one half of a distinct tract of land which bordered on tide water, and the boundary of the moiety was described in the deed as commencing at a certain stake on the south, and running due north to a stake on the north line of said tract; thence west along said line to the corner; thence south to the southwest corner; thence east to the place of beginning; and it appeared that said southwest corner was at the meander line of such tide water. Held,

1 Schurmeier v. Railroad Co., 10 Minn. 997; Turner v. Parker, 14 Creg.

that it must be presumed that the beginning point of the boundary was upon said meander line, and that the course from the southwest corner to that point was intended to be along such meander line, and not on a direct line between those points, the said meander line being the south boundary

of such half.

In taking distances from one point to another on navigable water, the measurement is by its meanders, and not in a direct line. Rayburn v. Winant, 16 Or. 318; 18 Pac. Rep. 588 (1888).

A government "lot" was platted as bounded on the north by a meandered water-course, whose actual shore line was about 320.6 feet north of the meandered line; the lot being merely described as numbered on the plat. Held, that its east line ran due north until it intersected the actual shore line, and thence to the middle thread of the stream, at right angles with such thread, and did not turn at its point of intersection with the meander line; the latter line being run, not 'as a boundary, but merely to determine the number of acres in the lot. Menasha Wooden-Ware Co. v. Lawson, 70 Wis. 600; 36 N. W. Rep. 412 (1888).

A patent from the United States of a surveyed fractional government subdivision, bounded on a meandered lake, conveys the land to the lake, although the meander line of the survey be found to be not coincident with the shore line. Everson v. City of Waseca, 44 Minn. 473; 46 N. W. Rep. 405 (1890).

§ 40. Public Highways, Streets, etc.-When the land in question is bounded by a public highway, such as a street, avenue or alley, the location of the boundary line depends upon what kind of a title the public have in the highway. If the public have only an easement or right of way over the soil, the center line of the street is the true boundary line when no different intention appears in the deed.' But if the public own the fee or soil of the highway, then the edge of the highway next to the land in question is the boundary line. The highway may be and often is named as a monument instead of a boundary; in the description of lands conveyed in this case, what has been said of rivers and streams as monuments applies equally well to highways.'

In an action of ejectment, hinging upon the correct location of a street forming a boundary line, a grant of lands upon a public street as a boundary will be referred to such street as opened and used. O'Brien v. King, 49 N. J. L. 79; 7 Atl. Rep. 34 (1887).

12 Am. & Eng. Ency. 507.

2 White v. Godfrey, 97 Mass. 472; Kings, etc., Ins. Co. v. Stevens, 87 N. Y. 287; Falls v. Reis, 74 Pa. St. 493; Dunham v. Williams, 37 N. Y. 251.

3 Banks v. Ogden, 2 Wall. (U. S.) 57; Harris v. Elliott, 10 Pet. (U. S.)

53; Stark v. Coffin, 105 Mass. 328; White v. Godfrey, 79 Mass. 472; Dunham v. Williams, 37 N. Y. 251; Kings, etc., Ins. Co. v. Stevens, 87 N. Y. 287; Wallace v. Fee, 50 N. Y. 691; Winter v. Peterson, 24 N. J. L. 527;' Cox v. Freedley, 33 Pa. St. 124; Witter v. Harvey, 1 McCord (N. C.), 67;

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