Carter v. C. & O. Railway Co.

Green, Judge: The first enquiry in this ease is : Hid the court below err in overruling the demurrer to the declaration ? The only supposed defect in the declaration was, that the premises, the possession of which is claimed by the plaintiff, were not “described in the declaration with convenient certainty, so that from such description possession thereof may be delivered,” as required by the Code, ch. 90, sec. 8. If the descrip — 652 — tion had been“a certain lot of land lying in the town of Ronce-vertein the county aforesaid, upon which the said defendant has erected apump-house and appurtenances for the purpose of supplying its engines with water.” Such description would have meant not merely the ground, upon which the pump-house stood, but a lot of ground, on which this pump-house had been built, and might ot course have included more ground than that, on which the pump-house stood, though if the pump-house covered the whole lot of ground, then of course it would only have meant the ground, on which the pump-house actually stood; but what is meant by the description of the premises claimed is made definite by the following explanatory words in the declaration: “being a piece of land near the railroad depot in said.town, upon which the defendant has erected a pump-house.” This shows with convenient certainty, that the plaintiff sought to recover not a lot of land in the usual sense of the word but “a piece of laud on which stood this pump-house,” the ground actually covered by this pump-house. With these explanatory words in the declaration, it seems to me, the sheriff could have no difficulty in delivering the possession of the premises which is all the certainty required in describing property in a declaration. In ejectment the court therefore did not err in this demurrer. It was certainly badly worded, so far as the overruling description of the premises claimed was concerned; yet it seems to me the property was described with convenient certainty within the meaning of our statute. It was described with much more certainty than in the case of Hitchcock v. Rawson, 14 Grat. 538, where the declaration was held fatally defective on demurrer. The only other enquiry to be made is: Did the circuit court err in finding for the plaintiff and entering the judgment for her upon the evidence, which all appears in the record? This depends entirely upon whether the true boundary of the tract of land conveyed by the deed of April 4, 1872, to the Chesapeake and Ohio Railroad Company was bounded by the top of the bank of the race or gut, as claimed by the plaintiff, or extended, as claimed by the defendant, to either the low-water-mark of the race or to the center of the race. That it did not extend to the center of the race is to — 653 — me clear on the face of the deed and is made still clearer by the evidence. The deed on its face conveys two tracts of land, one on the north side of this race containing 25 75-100 acres of land and the other containing 27 acres on the south side. The map, which was made a part of this deed, shows, that these two tracts of land lay immediately opposite each other. If this tract of 25 75-100 acres extended to the center of the race, the tract of 27 acres also extended to the center of the race, and the two tracts bordered on each other and really constituted hut a single tract, which, as the map shows, could readily have been laid off together and surveyed as a single tract. If the whole of the race was intended by the parties to be conveyed to the Chesapeake and Ohio Railroad Company it would be impossible to assign a reason why these two tracts, which would then have been hut a single tract, were not. conveyed in this deed as a single tract, thus avoiding the entirely useless setting out of the courses of the race on both sides of it. It is perfectly obvious, that the parties to this deed certainly intended to leave uneonveyed to the Railroad Company this race either to its banks on one or both sides or to the water’s edge at least in. low-water. In fact, i‘f we look at the circumstances, which surrounded the parties, when this deed was made, it would amount to an absurdity'- to so construe this deed as to make it convey the whole of this race to the Chesapeake and Ohio Railroad Company. The grantors owned a dam across the Greenbrier above, made to. throw water into this race, and two valuable mills below the lands conveyed by this deed situated upon this race, and it was frequently necessary for him to dig out and remove the filling up of this race, in order to use the mills. Under such circumstances we can not conceive, that he would convey away the mill race so long as he owned the mills. Other evidence might be referred to, which shows beyond controversy, that this was not his intention; but -what I have said is certainly sufficient to show, that he never did by this deed intend to convey to the defendant the whole of the race. The plaintiff in error cites Camden and Karnes v. Creel, 4 W. Va. p. 366, where the Court say: “ There can be no doubt where an individual having .title to lands lying on both sides of a water course grants the lands lying on one side — 654 — thereof and bounded thereby, that the grantee gets by such grant a moiety of the land of the water-course, unless the grant clearly excludes such construction of it. Hayes v. Bowman, 1 Rand. 417; Mead v. Haynes, 3 Rand. 33; Crenshaw v. The Slate River Co., 6 Rand. 245; Buckley v. Blackwell, 10 Ohio R. 508; Hopkins v. Kent, 9 Ohio R. 13.” This is unquestionably true; hut this law has obviously no application to this case. The reason, upon which this law is based, is, that as the portion of the stream adjoining the grantee's land is necessary for his enjoyment of the land, and as such portion of the stream is of no value to the grantor, the owner of the land, on the opposite side of the stream, it must be presumed he intended by granting the land on one side of such stream to grant the portion of the stream adjoining the land conveyed to the grantee, and the law can fix no line between them except the middle of such stream. Cowen, judge, in Starr v. Child, 20 Wend. 153, says : “Surely it would he absurd for the law to give a man to the shore or side of a fresh-water river, and yet by saving the bed to the grantor make the owner of the land a trespasser, every time he should slake his thirst or wash his hands iij >the stream.” But in the case of an artificial race used by the grantor in connection with his mill below the lands granted the absurdity would be, that the law held, that by granting lands on both sides of his mill-race as two separate tracts in one deed each bounded by opposite sides of the mill-race he granted the entire bed of the race to the grantee and thus the grantor would become a trespasser., if he undertook to cleau out this mill-race or to deepen it, though one or the other might be absolutely necessary, in order that he might have any beneficial use of his mill situated on this race below. There can be no question therefore that the Chesapeake and Ohio Railway Company did not acquire the land to the middle of this race by this deed of April 4, 1872. .The next enquiry,is: Bid this tract of land of 25 75-100 acres conveyed by this deed to the defendant include the land down to the ordinary' or low-water mark of this race? This much, it is insisted, was conveyed by this deed. In the first place in construing this deed we have a right to look to the wording of the contract between the parties of date of Octo — 655 — ber 21, 1871, whereby this land was sold, and which provided for the execution of this deed. This is a necessary deduction from the decision in French v. Bankhead, 11 Grat. 36. Indeed independent ot any authority it would seem unquestionable, as the deed was but the carrying out of the written contract between the parties. This tract, according to the words of the contract is to run “ to the edge of the mill-race thence with the north line of the mill-race and river 400 feet, &e;” and the map made a part of the deed describes a line as running to the “ edge of the race,” and thence by certain courses and distances, which, though they do not accurately conform to the mill-race, yet do make bends corresponding in a general manner with the bends in the race. These courses were obviously intended to run “ with the north line of the millrace ” as called for in the contract. If the facts set out in the statement of this case be taken in connection with what appears on the face of the deed, do the words, “ edge of the race and running up it along its northern line” moan up the line, which marked the edge of the water at ordinary or low water mark, or did it mean commencing at the point on the top of the bank of this race marked A. on the map and running along the top of the bank, where stakes were placed originally in running oft this land to make the deed ? We have been referred to a number of cases both by the counsel for the plaintiff in error and by the counsel for the defendant in error, in which upon various points of wordings in deeds questions have been raised and decided, as to whether a deed conveying land on a street or highway or on a stream carried the boundaries of the tract to the edge of the street, highway or stream, or to the centre of the street, highway or stream. Many cases of this kind are cited in a note to Salter v. Jonas, 10 Broom 469, as reported in 16 Am. R., 233, and a number of them are relied upon by each of the counsel of the parties in this case. But it does seem to me that these cases and others like them really throw very little light upon the question before us. But there are cases, from which it may, I think, be fairly deduced, that, if the calls of a deed were to the edge of a river, which was not navigable, and thence with the northern line of such river the low-water of such river would be the boundary of such tract. Thus — 656 — in McCullock’s Lessee v. Alton, 2 Ohio 307, it was decided, that, when a deed calls for a corner standing on the bank of a creek, “thence down said creek with the several meanders thereof,” the boundary is the water’s edge at low-water mark. The court say on p. 311: “The fact, that the marked corner called for stands four rods from the water, does not create any ambiguity in the terms ‘down the creek with the several meanders thereof.’ They import the water-edge, at low water, which is a decided natural boundary, and must control a call for corner trees or stakes upon the bank.” In Starr v. Child, 20 Wend. 156, the court assigns a very strong reason for this decision. Referring to this and other cases the court say : “These cases show, what it is very difficult for the human mind to resist, that the parties never mean to leave a narrow strip between the land and the river, merely because some stake or tree, or even all the stakes and trees of the line stand a slight distance from the river. The expression of an intent to run the line along the stream, makes a distinct natural monument, which overcomes the others. They are rather intended to indicate a point down to the termini of the water line.” . If therefore this race was a natural unnavigable river the fact in proof, that the stake, at which the courses upon it began, stood forty-three feet from the low water mark of the stream, would not prevent the low water mark of the stream being the boundary of this tract, though other stakes had been planted in the survey along the bank of this stream and all of them some distance from this low water mark. It remains now to determine, whether it will be otherwise in the case before us, in which the lines are up the race on the boundary of the deed instead of lines up a natural stream, where as in this case the i’ace is the head-race of mills of the grantor located below the land granted. It is obvious that the principle reason for running of lines not on the bank of the natural stream, as the words of the deed would seem to direct, but running them along the line of the low water mark of the stream have no application to the case of such an artificial mill-race, as I have supposed, and as exists in this ease. This is, that in the case of the natural stream the parties to the deed never could have meant to leave a — 657 — narrow slip between the land granted and the river, for the obvious reason that such narrow slip could not be of any value to the grantor in the deed, while it would be very convenient to the grantee. But this reason is utterly inapplicable to the case I have supposed orto the actual case before us. For in this latter case this narrow slip between the top of the bank of the race and the low water mark of the race so far from being of no value to the grantor is of very great value to him, as he could not have the full enjoyment of the mills owned by him below, unless he owned this slip of land between the low -water and the top of the bank. This being the case, there is no just reason why the words of the deed should be disregarded as -well as the stakes set up by the parties on the top of the bank, and the land granted be extended down to the low water mark in violation of the terms ol the deed and to the injury of the grantor in the deed. In the ease before us this would be still more clearly unjustifiable, as, while this slip of ground■ between low-water mark and the top of the bank of the mill-race is necessary for the grantor, iu order that he may conveniently clean out from time to time his mill-race and have the full command of it in high or low water for floating logs upon it to his sawmill and for all other purposes, it does not appear to have been regarded, when the deed was made, as of any importance to the grantee, the Chesapeake and Ohio Railway Company, and they could only use it to get water from the millrace for their engines and for other purposes; and they accordingly put it to no use and took no possession of any part of this strip for some eight years after the deed was made; that the parties to this deed did not contemplate any such use of the water of the mill-race under this deed, is, it seems to me, shown by the face of the deed; for there is in the deed the following clause: “No. 4. The said parties of the first part also grant to the said Chesapeake and Ohio Railway Company the right to use the water of a small stream which runs from the lands of said Clay through the said village of “Ronceverte,” near Centre street, for all railroad pui’poses, including the supply of all depots, stations and other buildings or structures erected upon lots No. 2 and No. 3. For this purpose the said — 658 — company may collect the said water at any point upon said stream into a suitable reservoir or tank from which it may he distributed in pipes for the uses of said company who, for the construction, maintenance and repair of all such reservoirs, tanks or pipes shall have the right to enter upon the lands of the said parties of the first part, and of all claiming under them. If after supplying all the wants of the railroad company, there remains any water of the said stream which may be availed of by the said parties of the first part or those claiming under them, without interference with the supply of the railroad company, the right to such use is hereby expressly reserved.” This shows that the Chesapeake and Ohio Railway Company provided in this deed for the use of the wafer of this run for the purposes, for which this pump or engine-house is now being used as well as for all other railroad purposes, and that the parties believed, that this run would furnish more than a sufficient supply of water for all such purposes. The clause in the deed “ that the railroad shall be so constructed as not to interfere with said Clay’s mill and boom-race, so as not to impede the flow of water or the floating of logs,” it is insisted, shows, that the construction, which I have put on this deed, is not the one contemplated by the parties, when the deed was made, as under this construction this clause would have been useless. But in fact this clause would have been useless, even if this deed bore the construction placed upon it by the counsel for the plaintiff in error, and the land of the company extended to low-water mark. The truth is, that this clause was inserted merely from abundant caution. Probably it was thought advisable, because in constructing bridges across this race to connect the two parcels of land conveyed to the company the bridges might be so constructed as to impede the floating of logs in the race. This provision clearly shows however, that the grantor considered he had rights in this race, which with unnecessary caution he endeavored to protect. The building of the eating-house, the kitchen of which is according to my construction of this deed on the land of the plaintiff, is regarded by counsel for plaintiff in error as evincing, that the parties construed this deed differently from what I have construed it, but as the evidence — 659 — shows this kitchen was built on this strip of land without the consent of either the plaintiff or defendant deprives it of all importance. The grantor in this deed, the evidence shows, was merely consulted about the building and location of this eating-house, in order that he might see that it did not interfere with liis rights ; and this he did by seeing that this eating-house was built on the land of the Chesapeake and Ohio Railway company exclusively. For these reasons T am of opinion, that the judgment of the circuit court should be affirmed, and that the defendant in error should recover of the plaintiff: in error her costs in this Court expended and thirty dollars damages. Affirmed.