Lessee of McCullock v. Aten.
When a deed calls for a corner standing on-the banlc of a creek, “thence down said creek, with the several meanders thereof,” the boundary is the water edge at low-water mark. ,
This case came before the court upon a motion for a new trial, and was reserved by the Supreme Court of Jefferson county.
Upon the trial, deeds were given in evidence from Emons the patentee to Smalley, from Smalley to Burson, and from Burson to McCullock. Each of these deeds contained the following description of the boundary which was in dispute, “ beginning at a white oak, on the southeast bank of Yellow creek, thence down said creek, with the several meanders thereof, two hundred and seven perches,to a post on the point, at the mouth of Hollow Bock, upper side.”
The defendant gave in evidence a deed from Emons to Nesslv, for a part of the same section of land, of prior date to that of Smalley.
*284This deed conveyed to Nessly, *land “to the north bank of Big Yellow creek, thence up said creek.” etc., contained a covenant to allow Nessly to raise a dam on said creek ten feet high, for waterworks, acknowledging satisfaction for all damages done to the residue of the section.
Also, a deed from Emons to Aten subsequent to that of Smalley, under which the lessor of the plaintiff claimed, in .which the line in controversy was thus described: “to land, the property of Burson, thence up Yellow creek, the several courses and distances thereof, to a marked white oak, corner of said Burson’s land, thence across Yellow creek.” Excepting to Nessly the right to back water, etc.
The white oak called for by both deeds was found on the ground about four rods from the channel of the creek, and about one rod from the top of the bank.
There was a salt well on the beach, below the break of the bank, but not within the water channel, and this was the matter in dispute. The defendant Aten was in possession of the well.
The defendant offered evidence to prove that at the time of the sale from Emons to Smalley, it was understood that the line was to run at the top of the bank, or along the beach and slope of the bank. But the court rejected tho evidence and instructed the jury that according to the calls of the deed, the plaintiff had a right to recover to low-water mark on the creek as a common boundary. Yerdict for the plaintiff and a motion for a new trial.
J. C. Wright, in support of the motion, argued:
That ascertained boundaries, whether natural or artificial, controlled both course and distance. That from boundaries ascertained, lines were to be extended so as to connect them, and that if this can not be effected by straight lines, it is to be done by lines as near straight as may be. 1 Hen. & Mun. 131; 1 Bibb, 54, 123; 6 Wheat. 580; 7 Wheat. 7.
The white-oak corner and the stake were both found, and both stood on the bank above the beach or commencement. A line commencing at one of these corners can not touch the beach unless it depart from the calls of the deed, *and proceed first to the beach. If the calls be clear of ambiguity, it must be because they proceed direct from the boundary ascertained on the course specified. If the position on the corners or boundaries on the ground, when *285compared with the deed create ambiguity, that ambiguity may be explained by parol proof. And such was the state of the present case.
The case of Denn v. Wright and Hill, 1 Peters. 65, was relied on as full in point for the defendant.
The different grants from Emons, the source of all the titles, show what was his intention and how he understood the matter. He did not convey the creek to Nessly, but covenanted with him to permit the use of it for a dam. He did not convey any interest in the water to Smalley, under whom the plaintiff claims, for he commenced and continued the grant to him on the southeast bank of Yellow creek. To the defendant he conveyed the creek itself. His grant is bounded by the grant to Smalley, up the creek to the white oak, thence across the creek, and it contains a reservation of the use previously granted to Nessly. The grants should take effect according to the intention of the parties, when the terms used fairly admit of a construction consistent with that intention, as is the case here.
Doddridge, for the plaintiff,
maintained that when a proprietor of lands divided by a stream not navigable, conveyed upon one side to one party, bounded by the stream, and to another party on the other side, bounded by the stream, each grantee is entitled to a moiety of the bed of the stream. He cited Hays and others v. Bowman, 1 Rand. 420.
By the Court :
The single question to be decided in this case is, what boundary is described by the terms, “ down the creek with the several meanders thereof ?” And we think it perfectly clear that these terms describe the water in the bed of the creek, and not the top of the bank. This we understand to be a settled rule, wherever the stream is made the boundary. It is the water, and not the bank of its channel that is referred *to. The state is bounded by the Ohio river; but it can scarcely be supposed that the beach, below the break of the bank, is not within her jurisdiction. In the case of Handly’s Lessee v. Anthony, 5 Wheat. 374, this doctrine is distinctly recognized by the Supreme Court of the United States as being a rule of boundary. And it is one to which this court have always adhered.
An attempt is made to distinguish this case from the general ap* *286plication of the rule, upon its particular circumstances. The boundaries described as corners are found on the bank, at a considerable distance from the water’s edge. And it is maintained that by these corners, the grantee must be concluded. This position involves the consequence that corner trees always stand in the mathematical line, which technically is the boundary.
But this is not the fact, either with respect to corner or line trees. It is not unfrequent that both stand a-greater or less distance from the actual line. The nearest and most permanent trees are usually marked. A tree marked as a corner, upon the bank of a stream, never can stand upon the water line at low-water mark. And where the call is for the meanders of the stream, the corner is not supposed to be exactly in the line.
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.
There is nothing in the various deeds inconsistent with this interpretation. Emons did not grant the creek to Smalley, but the land southeast of it. He did grant it to Aten, and made Smalley’s line the boundary of the grant to Aten, and his repetition of the calls in Smalley’s deed can not change their legal import. Nor does such repetition evidence any intention to do so, or to confine Smalley’s grant to the top of the bank. When we decide that the plaintiff’s boundary is the water, and not the bank, we impugn none of the principles laid down by Judge Washington in the case of Wright and Hill, so strongly relied upon by *the plaintiff. New trial refused, and judgment for plaintiff on the verdict.