(dissenting.) These two actions depend upon the same ques tian. One of them is in ejectment, and the other is for trespass. The primary inquiry in each is whether or not the plaintiff owned the premises in question at the commencement of the actions. The Zooms in quo is a pond in Putnam county, sometimes known as “Hinckley Pond,” and again as “Croton Lake,” and there is ground in the evidence for the statement that the pond was sometimes known as “Muddy Brook, ” although the latter name has for many yeará been applied exclusively to the outlet. The learned trial judge, upon conflicting evidence, has found that there is a slig t current running through this so-called pond from its inlets to its outlet; It is a natural basin,—a widening of two small streams at and below their confluence; but the evidence, we think, justifies the inference that it is and must be classed as a water-course, and our conclusion is that it was properly treated as such. It is non-navigable except for small row-boats or skiffs. The plaintiffs’ ancestors undoubtedly owned the land about this so-called pond, and by various conveyances, bounded in part by the pond, have conveyed away the whole, or substantially all, of the adjacent upland. They say, however, that because these various conveyances run “to the pond,” or to some monument on the land at the water, and thence along the pond, sometimes by given courses and distances, and sometimes without any, but generally to some other monument on the bank, and thence away from the water, and so about to a place-of beginning, the water edge is therefore a boundary on that side, so that the water and the land under water have never, as they claim, been conveyed, and are still owned' by them. The learned trial judge, in view of all the facts submitted to him, has held that these conveyances run to the center or thread of the stream, of which the pond is only a part. We conclude that this is the correct view. It has been so clearly put in the opinion delivered at the trial-term, that, notwithstanding the exceedingly ingenious, exhaustive, and plausible argument of plaintiff’s counsel, it is unnecessary to do more than express-our concurrence in the conclusions there expressed. The plaintiffs are undoubtedly correct in the position that, generally speaking, fixed monuments-are conclusive when referred to in grants. But the case of a monument on the bank of a stream seems an exception to that rule, unless it clearly and affirmatively appears that it was the purpose to exclude the water, and land under it, to the thread of the water-course. The authorities cited, and tliosetherein referred to, clearly show that, where a grant of land is bounded by a *94non-navigable natural water-course, it extends to the thread of the stream, notwithstanding the fact that the courses and distances run to specified monuments on the bank. This is because of the fact that it is impracticable, if not impossible, in specifying such a boundary, to set it up or fix a monument at the exact line in the water, especially at the thread of a stream. There are one or two deeds which at first blush might seem to form exceptions to the application of this general rule, but, taking the grants of plaintiffs’ ancestors, together with all the other facts and circumstances, especially the great delay in asserting the theory upon which plaintiffs rely, and also in view of the great outlay which defendants and others engaged in like pursuits-have made on this pond for business purposes, we think that it is now too late for plaintiffs to claim that the water and the land under water of this pond was not included in these grants. This history shows, or at least strongly tends to show, acquiescence in this construction of these grants. We do not deem it necessary to examine any of the other questions.