Warner v. Southworth

Daggett, J. Two objections are made to the charge. 1. That by the conveyance, the North line of the defendant was not the centre of the ditch. To this it is answered, that where a conveyance is made bounding on a river not navigable, the grantee owns to the centre of the river. Carter & al v. Murcot & al. 4 Burr. 2162. 2164. Adams v. Pease, 2 Conn. Rep. 481. Bissell v. Southworth, Root 269. 1 Swift's Dig. 109. Angell on Water-courses 213. There is no doubt, that had this been a river, such is the law; and if it be considered as a common fence, as I suppose it to be, the law is the same. Doubtless had the boundary line been a stone-wall six feet in width at the bottom, the grant would have extended to the centre of it. This grant, by analogy, should be so construed. The charge then, upon this point, is correct. 2. It is objected, that under the circumstances of this case, the defendant could not break and dig up the ground four feet from the centre on to the plaintiff’s land, throwing on to his own land as a bank (for so the charge should be understood) the earth so dug. This objection is, in my opinion, well founded. The statute (tit. 33. p. 213.) in the 2nd section, directs how adjoining proprietors shall enclose their land in severalty, and how far each may go in erecting his part of the fence, on the land of the other; and it provides, that “four feet shall be allowed for a ditch from the dividing line ; provided the party making the ditch shall lay the bank on his own land.” It had, in the former part of the section, provided for other fences. It here treats a ditch as a common fence ; and such, undoubtedly, is the true construction of the act: but in this case, the ditch, where the defendant became an adjoining proprietor, was six feet wide. The defendant’s grant carries him to the centre of the ditch. Can he, then, dig four feet from that centre on to the plaintiff’s land, throwing the contents dug out, on to his own land, and thereby making to himself meadow of the earth from the plaintiff’s land ? I think not. The statute only provides for a ditch of four feet wide. This ditch, by the charge, [475] may be narrowed, by the defendant, to four feet in width ; and, of course, in another part of this ditch or fence, the plaintiff may narrow it, in like manner. Such collisions could not have been in the contemplation of the statute. If this ditch be not narrowed, by agreement between the parties, it must remain subject to be repaired, by either party, preserving its width ; and in that case, the defendant cannot go North more than three feet. I would, therefore, advise, that a new trial be granted. The other Judges were of the same opinion, except that Peters, J. was inclined to think, that the deed bounding the grantee on the ditch, gave him no title beyond the South side of it; the law regarding water-courses not being applicable to this case. New trial to be granted.