Welles v. Bailey

Loomis, J. This case involves the application, in circumstances somewhat peculiar, of the principle of accretion and reliction, growing out of changes in the bed of the Connecticut River. About the year 1700 the Connecticut River, between the towns of Wethersfield and Glastonbury, flowed at a certain point in two channels, with an island known as Wright’s Island between them. By the year 1770 the east channel had been left by the river, which now ran wholly in the west channel. The land left by this reliction in-the east channel passed into private ownership (the history of the matter being unimportant) and in the year 1802 Samuel Welles, the ancestor of the plaintiff, acquired by purchase a strip in the old ehannel containing about four acres, bounded west upon its center line, east upon sundry former riparian proprietors, and south on a part of a lot known as the Benton lot, and which is now owned by the defendants. There was no northern limit of this lot given by the deed, but it was described as bounded “ north by bounds unknown.” It in fact extended on the north to the line of the river, which by a gradual change of its bed was working to the — 315 — southward and eastward and beginning to encroach upon the lot at that end. By a gradual change of its bed the river has made a sweeping curve, until in 1885, when the present suit was brought, it had worked its way through the entire Welles lot and a large part of the Benton lot south of it, replacing on its other side by alluvial deposit the Welles lot, and a large part of what was the Benton lot, leaving between the Welles lot and the present channel a quantity of land within the original limits of the Benton lot. The question that arises in the case is, as to the right to that part of the original Benton lot which now lies between the Welles lot and the river, but entirely on the other side of the river from that on which it originally lay. As the river changed its bed to the eastward and southward it encroached, as has been stated, upon the Welles lot, which had originally reached it at its north end, until its whole width was within that lot; and before the south end of it had disappeared the north end had begun to emerge on the west side of the river, which by its bend was now running at this place in a southwesterly direction; and when the southern end of the lot was washed away and the Benton lot began to be encroached upon, a considerable part of the Welles lot, so far as original boundaries are concerned, had been restored on the west side of the river. Precisely what would be the right of the original owner to this restored land as between himself and other proprietors who might claim it by accretion, it is not necessary for us to consider, for it is conceded that the plaintiff and those under whom he claims have been for a long time in possession of this restored land'and hold an undisputed title to it. It is not necessary for us, in our enquiry into the rights of the parties, to consider whether the Connecticut River is at this point in law a navigable or non-navigable river. It is in constant use. for purposes of navigation and the tide slightly ebbs and flows there, which would seem to make it at common law a navigable river, and especially would it be so under the rule generally adopted in the states of the — 316 — Union, though never formally adopted in this state, that rivers that are navigable in fact are so in law. The only difference between the rights of riparian owners in the one case and the other is, that in a non-navigable river the title of the riparian proprietors extends to the middle of the stream, while in navigable rivers it extends only to the line of high water, with certain rights extending to low-water mark. The law of accretion and reliction, which is the only law we are called upon to consider, is precisely the same in both eases. Gould on Waters, § 162. It is claimed on the part of the plaintiff that as the Welles lot, now on the west side of the river, was increased by constant accession at its southern extremity, all this accretion belonged to this lot, not merely until its original limit was reached, but, regardless of all ancient boundaries and of all original rights, that it continued to follow the receding river, taking, as a riparian lot, whatever the river deposited in its front; it being found by the court below that the change in the river bed was entirely by gradual accretion and reliction. The defendants admit the general principle by which a riparian owner takes all accretions from the gradual change of a river bed, but contend that that principle is not applicable to the peculiar circumstances of the present case. We will notice in their order the claims which they make with regard to the matter. They say, in the first place, that the law of accretion applies only to the case of riparian land, and that as the plaintiff’s lot did not originally bound upon the river, but was conveyed to him by distinct lines and boundaries, at least upon the sides affected by the present question, it cannot become by any changes of the river riparian land. We cannot accede to this claim. If a particular tract was entirely cut off from a river by an intervening tract, and that intervening tract should be gradually washed away until the remoter tract was reached by the river, the latter tract would become riparian as much as if it had been originally such. This follows necessarily from the ordinary application of the — 317 — principle. All original lines submerged by the river have ceased to exist; the river is itself a natural boundary, and every changing condition of the river in relation to adjoining lands is treated as a natural relation and is not affected in any manner by the relations of the river and the land at any former period. If after washing away the intervening lot it should encroach upon the remoter lot, and should then begin to change its movement in the other direction, gradually restoring what it had taken from the remoter lot, and finally all that it had taken from the intervening lot, the whole by the law of accretion would belong to the remoter but now proximate lot. Having become riparian it has all riparian rights. This general principle is recognized by all the text writers and by numerous, decisions of the !English and American courts. The river boundary is treated in all cases as a natural boundary and the rights of the parties as changing with the change of its bed. The defendants claim, in the next place, that though a riparian owner may take by accretion to the middle of a stream, or in the case of a navigable river to high-water mark, yet that that being the limit of his original title, and in the case of a non-navigable river the line of the adjoining owner, he cannot take such accretions beyond that line. This claim is utterly without support. The dividing line between the owners of the opposite sides of a non-navigable river is the middle of the river, but that middle line is merely an imaginary one and changes with every change in the bed of the stream. Thus in Gould on Waters, § 159, it is said that “ if an unnavigable stream, in which the title of the riparian owner extends ad jilum üqurn, slowly and imperceptibly changes its course, the boundary line is the center of the new channel.” And numerous cases are cited in support of the position. The final claim of the defendants, which is substantially involved in the claim last considered, is that as the part of the plaintiff’s land which was last left by the receding stream was an upland corner made by two converging lines, the plaintiff was entitled to no more than the restoration of this — 318 — corner after it had been washed away, leaving all beyond it to accrue to the Benton lot from which it was originally taken. So far as this claim is founded upon the fact that this corner was originally upland and not riparian we have already considered and disposed of it. It is only as the corner has become submerged and afterwards restored on the other side of the river that the claim presents any matter for further consideration. The defendants’ idea, as we understand it, seems to be that the right of a riparian owner is like the right of an owner of land upon a highway. The latter owns to the middle of the highway upon the theory that the highway was originally taken out of the adjoining land, and on this ground it reverts to the original owners if the highway is discontinued. The claim of the defendants seems to be that the right of a riparian owner extends under the water on his upland lines in the same manner and that those lines are decisive of his rights in case of a recession of the river. But the two cases have nothing in common. They rest upon entirely different theories. The riparian owner takes the land under the stream because the stream is a natural boundary and not because the land was once his. Whenever a portion of a riparian lot is washed away by the river, the riparian owner becomes entitled to the laud under the water as far as the center of the stream, without any reference to the original limit of his land or to his upland lines. He takes whatever front upon the river its change of bed gives him and by lines that run from the termini of his upland lines at right angles to the center line of the stream. We are speaking now of non-navigable rivers, but the same rule applies in the case of navigable waters, the lines to low-water mark being extended on the same principle. All the authorities agree in this. Thus in Gould on Waters, § 162, it is said that “every proprietor is entitled to frontage of the same width on the new shore as on the old shore, and at low-water mark as at high-water mark, without regard to the side lines of the upland. * * * * *' In general the lines of division are to be made to — 319 — the channel in the most direct course from the lateral boundaries of the several tracts of upland to which the flats are appended. * * * * * So also in the case of unnavigable streams, which are the property of the riparian proprietors usque ad filum aquoe, the side lines are extended to the center of the stream from the termini on the bank at right angles with the general course of the river.” Numerous authorities are cited in support of these positions. It necessarily follows from this reasoning that the hand of the plaintiff took by accretion all that lay between its river front on the west side of the river and the receding bed of the river, and within lines drawn from the termini of its side lines at right angles to the channel of the river. And within these lines falls the land in dispute. As the view we have taken disposes of the case, it is not necessaiy that we should consider the question, presented by the record, with regard to the rights acquired by the plaintiff by adverse possession. There is no error in the judgment of the Superior Court. In this opinion the other judges concurred.