Rose v. . R. G. Franklin

Winborne, J. Appellant presents this question as determinative of this appeal: Did the court below err in holding as a matter of law that the description of the land in the deeds under which plaintiffs claim extends to the middle or thread of the Tadkin River? With that ruling we are in accord. Defendant, having admitted that the plaintiffs have a good and valid title to all the lands embraced within the boundaries described in those deeds, and the Tadkin River at the point in question being non-navigable as admitted by all parties, the question involves the construction of what is the boundary. This is a question of law for the court. Brown v. *291 House, 118 N. C., 870, 24 S. E., 786; Power Co. v. Savage, 170 N. C., 625, 87 S. E., 629, and numerous other decisions. In accordance with well settled principle of law, a description of riparian lands by which a line runs to a monument on the bank, and thence with the river, makes the river the boundary. Sandifer v. Foster, 2 N. C., 237. The underlying principle has been enunciated in many later decisions of this Court, among which are Cherry v. Slade, 7 N. C., 82; Shultz v. Young, 25 N. C., 385; Bowen v. Gaylord, 122 N. C., 816, 29 S. E., 340; Power Co. v. Savage, supra. In Sandifer v. Foster, supra, the last line of a boundary was from a white oak (which stood half a mile from the river), thence along the river to the beginning. The Court held that the river is the boundary. Likewise, as stated by Brown, J., in Wall v. Wall, 142 N. C., 387, 55 S. E., 283, “There is no rule of common law better settled, and more universally adopted in this country, than that which prescribes that a grant of land bounded in terms by a creek or river not navigable carries the land to the grantee usque ad filum aquae, to the middle or thread of the stream.” Wilson v. Forbes, 13 N. C., 30; Ingram v. Threadgill, 14 N. C., 61; Pugh v. Wheeler, 19 N. C., 50; Williams v. Buchanan, 23 N. C., 535; Rowe v. Lumber Co., 128 N. C., 301, 38 S. E., 896; Rowe v. Lumber Co., 133 N. C., 433, 45 S. E., 830; Dunlap v. Light Co., 212 N. C., 814, 195 S. E., 43. Applying these principles to the facts of the present case, the calls “to a large burch on the bank of the Eiver,” “thence down the angles of the river to the beginning” make the river the boundary, and carry the next to last call to the thread or middle of the stream, and thence down the thread or middle of the stream as it meanders to the beginning. Defendant contends, however, that the principle cannot apply when the bed of the stream has been previously granted — citing Williams v. Buchanan, supra. This contention is apparently based upon the theory that plaintiffs have shown no grant from the State, and that she has shown a grant to her predecessor in title. But, in this contention, appellant loses sight of the fact that title of plaintiffs is admitted to be good and valid to whatever land the description in their deeds covers. This admission presupposes that plaintiffs have an older paper title originating in a grant from the State, or that they have had adverse possession with or without color of title for a sufficient length of time to ripen title, not only as against her but as against the State. Otherwise, the title would not be good and valid. In the judgment below, we find No error.