Miller v. Mann

The opinion of the court was delivered by Yeazey, J. The description of the land in the deed under which the plaintiff claims title is as follows: “ The hotel now occupied by S. R. Miller, and the lands adjoining it, being two or three acres, more or less.” The lánd in dispute was separated from the land on which the hotel stood by a river, the size of [479] which is not given, but large, enough for a mill stream. We are referred to no case and have found none where the term “ lands adjoining,” as used in the description, is defined. The river at this point had two channels, and the disputed land was a portion of a small and nearly worthless island between these channels, and separated from the land on which the hotel stood by the main channel. The plaintiff’s grantor had subsequently to the plaintiff’s deed conveyed it to the defendant. We do not think the words “ land adjoining” are synonymous with “ messuage” and “ curtilage ; ” and if they were it would not aid the plaintiff, as these terms are not broad enough to take in this island, which was beyond the thread of the river. Neither did the island pass as appurtenant to the hotel property, because land cannot pass as appurtenant to land. Buck v. Squiers, 22 Vt. 484; Ammidown v. Bank, 8 Allen, 292. It is also claimed that this expression, “ lands adjoining,” is equivalent to the expression, “ and all lands thereto appertaining.” The words “ adjoining” and “ appertaining” are not synonymous. As descriptive words in a deed, “ adjoining” usually imports contiguity; “ appertaining,” use, occupancy. One thing may appertain to another without adjoining or touching it. Proof that pieces of land adjoin would not be proof that one appertained' to the other. Neither in literal meaning, nor as used in deeds, are they equivalent. Under the rules of construction applicable to deeds, in an action of trespass, the term, “ lands adjoining,” was too indefinite to make the grant extend beyond" the medium filum of the main channel of the river. The term cannot be construed literally, as there is no limit.to adjoining land. The defendant claimed title to the land in dispute, called Spruce island, from different sources. One was by deed of Moses McFarland, dated October 16,1871, the description being by reference to a former deed, and being found in the deed of Erastus Chaffee to Nason Chaffee, dated March 28, 1861. As we understand the referee’s report, the description in said last mentioned deed ran . around three sides of a piece of land on the westerly side of the river in question, called the North Branch of Lamoille River, beginning at one point on the river, and running around to another [480] point, and then instead of describing the fourth side by running on the bank of the river from the point last arrived at to the place of beginning, the description closed with the words “ meaning to convey all the land east of said mentioned bounds that I own.” As we understand the report, the grantor in that deed owned all the land east of the three lines described, to the river, and there was no question in reference to his ownership. The plaintiff claims this deed was void for uncertainty. That is held certain which is capable of being rendered certain, according to the maxim id cerium est, &c. The fact of the grantor’s ownership to the river made the description and • the intent of the deed certain as to the extent of the grant. If he owned to the river he owned and conveyed to the thread of it, that is, the thread of the main channel. This would take in Spruce Island. See authorities cited in defendant’s brief. The only doubt on this branch of the case arises from the fact that the main channel at some time changed from the branch westerly of the island to where it now is, easterly of the island; and we infer this was partially brought about by artificial means and not wholly by natural deposits and accretions. The description on which the defendant defends runs back to the deed of Catlin to Rowell, dated July 4,1889, and the grantor then owned on both sides of the stream'. If the east branch was then the main channel, it is plain that the island was covered by the description in that deed. The referee does not say when that change took place, but says, “ many years past, say forty or more.” Upon this finding and in the absence of anything to the contrary, we think we should solve the question of the location of the main channel at the date of said deed in favor of the grantees of Moses Catlin. Upon this view Geo. Mann obtained the title to this island about four years before the plaintiff’s pretended title; and this makes a complete defence as the case stands, in reference to the defendant Hiram Mann and said G. H. Mann, and renders it unnecessary to notice the other grounds of defence. The proforma judgment of the County Court is affirmed.