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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 383 The complaint alleges that on the first day of September, 1869, the plaintiff "was, and for a long time previous had been, and since that time has been and is now the owner in fee simple and possessed of all that tract of meadow land" described. The answer, without denying anything alleged in the complaint, alleges title to the lands in the defendant.
The plaintiff's possession during the period mentioned in the complaint is not denied and cannot therefore be disputed. Upon the pleadings, therefore, the plaintiff had a prima facie case; and at the trial the defendant held the affirmative, to defeat the plaintiff by showing title in herself. This she undertook to do, and the real question to be determined is whether she succeeded. The case was either loosely tried or imperfectly reported. Flax pond is mentioned in all the conveyances, and the rights of the parties may depend somewhat upon its character and the use to which it was subjected, and yet we are not informed of any use to which it was put, nor of its size, nor of its location in reference to the ocean or some arm or inlet of it, nor whether it is a natural or artificial pond. I will assume, however, as most probably true, that it is a natural pond. Prior to about the year 1800, this was a fresh-water pond, and at that time some of the parties interested therein, by cutting or deepening a channel communicating with some body of salt-water, let the salt-water into it, and thereafter the water therein was salt, and the tide ebbed and flowed therein. We are cited to no authority showing that the rights of the parties interested in the pond were in any way modified by this change in its character, and I apprehend none can be found. Those who owned the bed of the pond, as well as the riparian owners, must have had the same rights *Page 385 afterward as before. The owners of the bed of a fresh-water pond certainly cannot, by letting into it the water of the ocean, extend their right of ownership to the high-water mark of flood tide. The boundaries between them and the riparian owners must remain the same. The proprietors of land bordering upon streams and waters in which the tide ebbs and flows, own only to high-water mark, and the land below that belongs, in this country, to the people. But this rule of ownership cannot apply to this pond. It must be treated for all the purposes of this case as if it had remained a fresh-water pond. Neither can the rule as to riparian ownership be applied to this pond which is applied to ordinary fresh-water streams. A boundary upon it does not carry title to its center but only to low-water mark. Such is the rule as to boundaries upon natural ponds and lakes. (Angellon Water-courses, §§ 41, etc.; Canal Commissioners v. ThePeople, 5 Wend., 423, 446; Champlain St. Lawrence RailroadCo. v. Valentine, 19 Barb., 484; Waterman v. Johnson, 13 Pick., 261; Bradley v. Rice, 13 Maine, 198.) In Waterman v.Johnson, Chief Justice SHAW says: "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 low-water 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. The rule as to a boundary upon an artificial pond is otherwise. Such a boundary, generally, in the absence of other controlling facts, carries the land to the center of the pond."
With these rules of law in view, it is not difficult to determine the rights of the parties in this action, upon the facts appearing. The defendant traces her title back to 1786, and in all the deeds the boundary on the north side is Flax pond. The deeds convey a farm on the westerly side of Flax pond lane; this lane ran northerly to the pond, and on the west *Page 386 side thereof there was at an early day kept up, at least for many years, a fence extending to the pond. There does not appear at any time to have been any fence between the disputed piece and the other land of the defendant. That piece was conveyed from time to time as a portion of the farm now owned by her, and there is very little if any dispute that, prior to 1833, the owners of that farm always cut the thatch which grew thereon. The deeds, therefore, under which the defendant holds her title, carry her ownership to low-water mark; and as the thatch was cut above low-water mark, and mostly if not wholly between high and low-water mark, there can be no question that she shows title to the locus in quo, which must protect her unless the plaintiff has shown a better title. It seems to be undisputed that, in 1815, one Hulse and the town of Brookhaven owned the pond, and in that year the pond was divided between the owners; the easterly half, opposite the land in dispute, falling to the town of Brookhaven. In 1819 the town conveyed its half to Brewster, Edwards and Smith. In 1825 the latter parties conveyed to Jayne, and in 1826 Jayne mortgaged an equal undivided third part of the premises conveyed to him to one Udall, and the plaintiff gets his title by a foreclosure of this mortgage in 1833. So that, if the plaintiff has any paper title whatever to the disputed piece, it is only to one undivided third part thereof. But I will lay no stress upon this defect in his title, and will treat the case as if he held the whole of the title which the town of Brookhaven conveyed. What title did he get through these conveyances? He certainly got no greater title than the town formerly had, as he derived all his paper title from that source. The town simply owned the bed of the pond. It never owned any land above low-water mark. Prior to 1800, when the salt-water was let into this pond, the land in dispute formed no part of the bed of the pond, and the water did not cover it; it is only covered now at flood-tide. It is clear, therefore, that the plaintiff shows no title to the land in dispute. He can trace what title he has only to 1815, and, prior to that time, *Page 387 those under whom the defendant holds were in possession of the land under conveyances carrying them to low-water mark on the pond.
It only remains to be considered whether the facts testified to by the plaintiff show title in him by adverse possession, so as to justify the charge of the judge. Upon this question we may lay out of consideration the admission in the pleadings that for some years before the commencement of the action the plaintiff was in the actual possession of the premises, because the facts alleged in the complaint do not show an adverse possession. The fact admitted is simple possession, nothing more. We must, then, look at the facts proved, as we must assume the jury to have found them; and they are, that this piece of land was never inclosed by the plaintiff, never cultivated and never possessed by him in any way, except that once a year, since 1833, he entered upon it and cut and removed a load or two of thatch. It was no part of a known farm or lot occupied by him. So far as he can claim to have any conveyance of it, it was a separate lot, separately described, of which the only use he made was as above specified. I shall spend no time in showing that such a temporary occupancy for such an unimportant purpose, really nothing but trespasses repeated from year to year, can confer no title by adverse possession. A decision that it could would be quite novel, and wholly unsupported by any authority.
I have, so far, treated this case as if the plaintiff's deed nominally covered the locus in quo. But it may well be claimed that it does not. The description therein contained, after the description of another piece, is as follows: "Also a certain piece of meadow or land covered with water, situate or lying in the Flax pond, so called, and bounded as follows, viz.: Beginning at a certain marked cedar tree standing in the fence between the land above described (now plaintiff's), and the land of Benjamin Jones, Jr. (now defendant's), and then running south eighty-three and one-third degrees west four chains and sixty links, through the said Jones' land to a *Page 388 certain stake in the upland, and from thence north two chains and thirteen links to a certain stake, and from thence north fifty-one and a half degrees east to a tree standing at the upper part of the water fence in the corner between the land, late of Gilbert Floyd, now deceased, and the said first mentioned premises." It will be seen, in the first place, that the land is described as covered with water and lying in the pond, and hence it could not include the land in question, not covered with water, lying above low-water mark, and thus belonging to the riparian owner. In the next place, the lines given do not describe or inclose any land. The first course runs nearly west, forming the alleged southern boundary of the land, throughJones' land, which now belongs to the defendant. If it run through Jones' land, it must have divided it, leaving some thereof on both sides of it. How much did it leave on the north side, and how much on the south side? The very description of the line is an admission that Jones owned on both sides of it, and hence this line gives no boundary. The next line runs due north, and then north fifty-one and a half degrees east to a tree, and there it stops at a long distance from the place of beginning. It is clear, therefore, that these lines do not inclose any land, and hence it is not true, as charged by the judge, that the plaintiff's deed covered the land in dispute; and such a deed, with such a description, cannot be used as the basis of a constructive adverse possession under the statute. (2 R.S., 294; Code, § 83; Jackson v. Woodruff, 1 Cow., 276; Jackson v.Camp, 1 Cow., 605; Lane v. Gould, 10 Barb., 254.) Under a deed containing such an absurd description, the plaintiff cannot claim that his title is founded upon a written instrument.
The judgment should therefore be reversed and new trial granted, costs to abide event.
All concur; LOTT, Ch. C., not sitting.
Judgment reversed. *Page 389