Aiken v. Wallace

ON MOTION EOR REHEARING.

1. On the motion for a rehearing, it was urged that even if it should be held that the plaintiffs or those under whom they hold had title extending to low-water mark, yet the right of access to the water was an easement necessary and appurtenant to the land conveyed to the defendant. But no such contention was raised by the pleadings or urged in the briefs of counsel on the argument here. On the contrary the brief of plaintiff in error contained the statement that “It will be seen that the only question to be determined in this case is whether or not the title to this strip of land lying between high and low-water mark was in plaintiff in error at the time of the filing of this bill.” This case having been apparently determined in the court below and argued here on that basis, we did not deal with any question of easement. Nor do we deem it proper to rule upon that question now, dr to grant a rehearing because of such contention now made by the motion.

2. In the original opinion it was not decided as a general rule of law that where a conveyance specifies as one boundary the sea or an estuary thereof, the title would extend to low-water rather than high-water mark. As will appear from a careful reading of the opinion, both parties claimed under.a common source of title. Tn some of the deeds under which, both parties obtained title references were made to grants and to maps attached to such deeds. Upon a construction of these deeds we held that it appeared that the description extended one of the boundaries to low-water mark. The plaintiffs owned what had not been conveyed away. The title of the defendant expressly stopped at high-water mark. Hence, the strip between high and low-water remained in the plaintiffs.

3. None of the grounds upon which the motion for rehearing was based present reasons sufficient to render a rehearing necessary.

Motion overruled.