pond, and that, by construction of law, it extended to the centre. But the Court held otherwise, and made a distinction between such a pond and a stream of water. No case, they observed, had been cited, nor had any been found by them, where the rule of construction had been extended to a natural pond; and they then proceeded to say "The proprietors of the pond and of the contiguous land, when they sold to the pond, must have intended to reserve that as a reservoir for the purpose to which it had been appropriated." And they add, "Had the land been bounded by a river or stream, or upon an artificial pond created by expanding a stream, by means of a dam, the riparian proprietor would go to the thread of the stream." But this, though they conceived it to be law well settled and understood, did not, in their opinion, apply generally to ponds and lakes. They cite the similar case of Waterman v. Johnson, in Massachusetts, as being one strictly in point. In that case the land conveyed was a farm, the bounds of which were described in the deed as beginning at "Jones's River Pond," and, after several courses, running to the "Ferse Pond," thence up stream by said pond to the canal that leads from "Jones' River Pond," thence by said canal to "Jones' River Pond," thence by said pond to the first mentioned bound. It was in evidence that "Jones's River Pond" was a natural pond, and that ever since the memory of man, it had at times been flowed beyond its natural dimensions, by artificial means. Parol evidence was held to be competent to prove, that a certain line was 1 Waterman v. Johnson, 13 Pick. (Mass.) R. 261. agreed on and understood at the time of the conveyance, as the boundary. SHAW, C. J., in giving the opinion of the Court, said,-"Now the word 'pond' is indefinite. It may mean a natural pond, or an artificial pond raised for mill purposes, either permanent or temporary, and in both cases the limits of such body of water may vary at different times and seasons, by use, or by natural causes, and where the one or the other is adopted as a descriptive limit or boundary, a different rule of construction may apply. A large natural pond may have a definite low-water line, and then it would seem to be the most natural construction, and one which would be most likely to carry into effect the intent of the parties, to hold, that land bounded upon such a pond would extend to lowwater line, it being presumed that it is intended to give to the grantee the benefit of the water, whatever it may be, which he could not have upon any other construction. Where an artificial pond is raised by a dam, swelling a stream over its banks, it would be natural to presume, that a grant of land bounding upon such a pond, would extend to the thread of the stream upon which it is raised, unless the pond had been so long kept up as to become permanent, and to have acquired another well-defined boundary. But it is dif ficult to apply either of these rules to the present case, which is that of a pond originally natural, but which has been raised more or less by artificial means. The discovery of this fact, upon applying the deed to the local objects embraced within its descriptive terms, discloses a latent ambiguity. According to a well-established rule of evidence, therefore, it is competent to resort to parol proof, showing all the circumstances, from which a legal inference can be drawn, that one or another line was intended by the ambiguous description used in the deed. And this is, in truth, what both parties have done in the present case." § 42. The law of boundary, as applied to rivers, is without doubt inapplicable to the lakes and other large natural collections of freshwater in this country.1 The ordinary Common-Law rule of extending the right of soil in running freshwater streams, to riparian grantees, Chancellor Walworth considered was not sufficiently broad to embrace the large freshwater lakes, or "inland seas," in the State of New York; and that they were wholly unprovided for by the Common Law of England. As to these, said he, there is neither flow of the tide nor thread of the river; and it appeared that the local law of the State had assigned the shores down to the ordinary low-water mark to the riparian owners, and the beds of the lakes with the islands. therein, to the public. Such is the judicial construction in New Hampshire; and it seems to have been the construction of the legislature of that State, as appears from the annexation of islands in Winnipiseogee Lake, to the towns adjacent. If a town in that State, strikes any large body of water, by whatever name it may be called, it will go only to the water's edge, and be there bounded; that is, if there is nothing in the terms of the grant to show that it was to be extended further.1 § 43. If a lot of land is conveyed agreeably to a plan, and is described as bounding one end on a pond, and there is a narrow arm of the pond extending from 1 State v. Gilmanton, ub sup.; Hathorn v. Stinson, ub sup. 2 Canal Commissioners v. People, 5 Wend. (N. Y.) R. 423. 4 Ibid. the pond across the lot, and if the land conveyed is to be limited by this arm, the lines will not correspond with those of the adjoining lots, and there would remain a portion of land not conveyed between the arm and the pond; the land granted extends across the arm to the main body of water called the pond.1 1 Nelson v. Butterfield, 8 Shep. (Me.) R. 220. CHAPTER II. OF INSULAR AND ALLUVIAL RIGHTS, AND OF RIGHT TO SOIL RELICTED, &C., AS INCIDENT TO THE RIGHT OF PROPERTY IN A WATERCOURSE. § 44. IN treating, in the preceding chapter, of the apportionment of a watercourse between opposite riparian proprietors, it has appeared that the estate of each proprietor extends to the middle of the stream. Now, according to this rule, if there be a newly-formed island exactly in the middle of the stream, it is equally divided between the two proprietors; and so it is laid down both by ancient and modern writers. But if one portion of the island approaches nearer to one side of a stream than it does to the other, the greater part belongs to the owner of the nearer estate, according to its approximation thereto. To establish, therefore, how great an extent of property in an island is annexed to the adjoining estates, the vicinity and remoteness of the island from the shore is to be taken into consideration. This doctrine is agreeable to, and is unques Fleta, lib. 3, c. ii. § 6; Bracton, lib. 2, c. ii.; 2 Bla. Com. 261; 1 Swift's Dig. 111; Schultes, on Aquatic Rights, 117; Woolrych, on the Law of Waters, &c. 38; Ingraham v. Wilkinson, 4 Pick. R. 268. And see Giraud v. Hughes, 1 Gill & Johns. (Maryland) R. 249; People v. Canal Appraisers, 13 Wend. (N. Y.) R. 355; Deerfield v. Arms, 17 Pick. (Mass.) R. 41. 2 Ibid. |