ed by the "bank" of a stream, such description excludes the bed of the stream, it was held by the ViceChancellor of New York, (GRIDLEY,) to be clearly founded in truth, as applied to the facts of that case; and the facts of the case, he held, to be such as to indicate, with great certainty, that, by the use of the phraseology employed, the parties intended to exclude from the operation of the release the bed of the stream. But he was at the same time of opinion that this was not the necessary construction of such descriptive words in a grant. The popular understanding of them, he considered, would doubtless limit the grant of the land adjacent to the stream; and so would the popular understanding of a description which bounded the premises upon the "margin" of a stream, or on the stream itself; but the legal construction of such words contained in the description of premises in a grant, had, by repeated adjudications, been established otherwise."

right to the centre of the river; and it appeared that if it was to have this effect, it would destroy the value of the mortgagee's mill privileges. For this and other reasons, it was held that it should not extend beyond the bank. The various reasons assigned by the Court, were, that the release was limited to the bank; that there were no general words showing that a right to keep up a dam, was intended to pass; that the consideration was nominal; and that it was not to be inferred that the mortgagee intended to release every thing valuable in the mortgaged premises, for which he had given a large consideration. The Court considered the release, under these circumstances, as being no more than a mere exception to the mortgage; and there were various other special circumstances in the case which led the Court to infer that the intention of the parties was to limit the grant or release to the bank. See the note of the Reporter to Jennings, ex parte, 6 Cow. (N. Y.) R. 636, et seq.

1 Which are stated in the preceding note.

2 Varick v. Smith, 9 Paige (N. Y.) Ch. R. 547. A line called for “171 poles to Roanoke River," the call to the river terminates, when the line reaches the "margin" or "bank" of the river, without regard to distance; and the intersection of the lines with the river is the point from which the next line commences. Haughton v. Rascoe, 3 Hawks. (N. C.) R. 21.

§ 25. In an important case in Ohio it appeared that the plaintiff had taken possession of the bed of the river Sandusky, and had built a mill; and he sued the defendants for building below and flowing back water upon the mill. The defendants denied that the plaintiffs owned the bed of the stream; for they claimed under a conveyance from the United States, bounding them on the "bank;" and, indeed, the area of the river was deducted by the United States, and only lands on the shores paid for. Yet the bed of the stream was held to pass, though there was every thing but an express exception by the United States. They had included the river in their surveys, but deducted the bed from the price, and bounded the patentee on the banks. The Court ask, "At what point does the right of the owner of the adjoining lands terminate? on the top or at the bottom of the bank? at high or low water mark? does his boundary recede or advance with the water, or is it stationary at some point? and where is that point?" The Court then say, "No satisfactory rules can be laid down in answer to these questions, if the Common-Law doctrines be departed from." 1

§ 26. It thus appears to be well established that the bank and the water are correlative, and that one cannot be owned without touching the other; that the bank is the principal object; so that when the law once fixes the proprietorship of that, the soil of the river follows as an incident; or rather, (as it has been said,)" as part of the subject-matter, usque ad filum aquæ." If a boundary is described as running to a monument standing on the

2

1 Gavit's Adm'rs v. Chambers, 3 Ohio R. 495.

2 By Cowen, J., in Starr v. Child, 20 Wend. (N. Y.) R. 149.

bank, and from thence running "by the river" or "along the river," it does not restrict the grant to the bank of the stream; for the monument in such case is only referred to as giving the directions of the line to the river, and not as restricting the boundary on the river. If, however, the grantor, after giving the line to the river, restricts his land to the bank of the river, or describes the line as running along the bank of the river, his intention is manifested not to consider the whole alveus of the stream a mere mathematical line, so as to carry his grant to the middle of the river.1

§ 26, a. There is obviously an essential difference between "fronting to," and "fronting upon," and it has thus been illustrated by Mr. Livingston, counsel for the defendants in Morgan v. Livingston, in Louisiana.2 "The cathedral (New Orleans) fronts the public square and the river; but it fronts upon Chatres street. The expression, then, front or front to, only means the exposure, the direction of that boundary of a house or lot, in which is the principal entrance. How many houses, lots, and farms, on the heights about New York and Naples, front those bays, which are yet miles distant from the water?"

§ 27. In a conveyance of a lot of land situate in Rochester, in the State of New York, the lot was described as a "mill lot," "beginning &c., and running eastwardly to the Genesee River; thence northwardly

1 Per Walworth, Chan., in Child v. Starr, 4 Hill (N. Y.) R. 369; Lamb v. Ricketts, 11 Ohio R. 311. In Tennessee, where the grant called for a "tree" and the "river bank,” thence down the river to another "tree" on the "bank of the river;" it was held, that the meanders of the river must be the boundary, and not a straight line. Weakley's Lessee v. Legrand, 1 Tenn. R. 269.

2 Morgan v. Livingston, 6 Mart. (Louis.) R. 19.

along the shore of said river to Buffalo Street." It was held, by the Supreme Court of that State, that the grantee took usque ad filum aquæ. But BRONSON, J., dissented; and on appeal to a Court of Errors the decision was reversed. By that Court it was held that no part of the bed of the river passed under the conveyance, and that the grantee took only to low water mark. And the fact, that the premises conveyed in this case were described in the deeds as "mill lots," could not operate to extend the grant into the alveus or bed of the river, for the deeds also showed, that the contemplated mills were to be supplied with water from the mill-race already constructed; and not by water to be taken from the Genesee River opposite the lots granted; and the right to discharge the water into the river after it had been used to propel the machinery on the mill lot, was at most but an easement, and did not require for its ownership any part of the bed of the stream by the grantees. It was moreover considered that a river in which the tide does not ebb and flow, has, properly speaking, no shore; that it has ripam, but not littus; 2 that when the term shore is applied to such a river, it means the river's banks above the low water mark, rather than those portions of the banks of the river which touch the margin or edges of the water; so that a grant of land which is bounded by the shore of a freshwater river, conveys only the land to the water's edge, at low water.

1 Starr v. Child, 20 Wend. (N. Y.) R. 149.

2 See Hall on Rights to the Sea; and Angell on Tide Waters.

3 Child v. Starr, 4 Hill (N. Y.) R. 369. In the case in the Supreme Court, (Starr v. Child, ubi sup.) Cowen, J., in giving the opinion of the Court, thus criticizes the word shore: "I admit that it is not critically

§ 28. Where a line is described as running in a certain direction to a river, thence "up the same," or "down the same," or "with the river," those words. necessarily imply that the line is to follow the river, according to its meanderings or turnings; and that of course must be the middle of the river.1

§ 29. Where land adjoining a river is described as bounded by a monument standing on the bank of the river, and a course is given as running from it down the river as it turns, to another monument, the grantee takes to the middle of the river.2 So where land is bounded by a line commencing at a stake "by the side of the river or mill pond," and running "by the side

correct to say the shore of a river; the term belongs, in its strict sense, to the ocean. Dr. Johnson says it applies to a river only in a secondary, or, as he calls it, a licentious sense. Beside the fruitful shore of muddy Nile.' Johns. Dic. 4to. Shore. Yet it is sometimes so applied in legal proceedings. The compact between Virginia and Kentucky speaks of the shores of the Ohio; which word shores was treated by C. J. Marshall as the same with side or bank. Handy's Lessee v. Anthony, 5 Wheat. (U. S.) R. 385." . . . . "It is conceded," says the learned Judge, "that the words to and along the river would include the stream. What difference between that and to and along the shore? A difference in words signifying the same thing. In either case, taken literally or according to common understanding, they carry you to a line immediate the water and the land, and touching both. How do they take more? Upon construction of law, which does not require express words for the grant of every part, as houses, fences, mines, or the elements of water or air, which all pass by the word land; and as a grant of land by certain boundaries, primâ facie passes all such parts to the grantee, usque ad cœælum et ad infernos; so, within the same principle, it passes the adjoining freshwater stream, usque ad filum aquæ."

1 Jackson r. Snow, 12 Johns. (N. Y.) R. 252; Johnson v. Pannel, 2 Wheat. (U. S.) R. 206. A call in a grant from a bound on a river, "west up the river to a stake," is in law equivalent to "with the river," and the line must pursue the course of the stream. Denn v. Mabe, 4 Dev. (N. C.) R. 180. "Thence 50 east, down the creek," the creek is the boundary. Smith v. Auldridge, 2 Hay. (N. C.) R. 382.

2 Luce v. Carley, 24 Wend. (N. Y.) R. 451.