Archer v. Southern Ry. Co.

Sykes, J. P.,

delivered the opinion of the court.

For the second time this case is here upon appeal from the decree of the chancery court. The bill of the complainants (appellants here) was first demurred to, the demurrer overruled, and an appeal granted to this court, and the cause was affirmed and remanded. The opinion upon demurrer is reported in 120 Miss. 376, 82 So. 261. Reference is here made to that opinion for the allegations of the bill and the deed in question.

The question involved upon both .appeals is Whether or not the riparian rights were retained by Skinner and Deaton, the grantors of this deed, or passed to the Southern Railway Company under this deed.

Upon the former appeal, attached to the bill of complaint as an exhibit thereto was a map purporting to be a copy of a map attached to the deed of conveyance. The answer of the railroad company alleged that the lands were purchased in order that the railroad company might operate by river from Greenville to New Orleans a line of coal barges, and, as to another tract covered by this deed, that it was purchased for the purpose of building a bridge across the river. It avers the operation for many years of the coal barge line. In short, it avers that this land which is outside the levee and subject to overflow was not purchased for railroad uses in the ordinary sense of the word, but really for riparian .purposes; that the uses for which the land was purchased were well known to and understood by both the grantors and the grantee when the deed was executed, and that immediately thereafter the lands were used for these purposes. The facts sustained these allegations of the answer.

The original deed, with the map thereto made an exhibit to the deed, was also introduced in testimony Three engineers testified as experts as to where the western line conveyed under this deed was, as evidenced by this original map. The particular part of this deed here to be construed reads as follows:

“Thence north sixty-four and one-fourth degrees, nine hundred and fifty feet to the Mississippi river, thence up the bank of said river to its intersection with a line one hundred and sixty feet south of and parallel to the north side of Walthall street.”

The sand and gravel beds here in controversy are either due west of or constitute a part of the land conveyed to the grantee under this particular description.

Upon the former appeal the court held that the determination of the case depended almost entirely upon the question of fact; that, if the deed described-the land as bordering on the river, the riparian rights passed to the grantee. If, on the other- hand, the nearest boundary to the river is the bank, the riparian rights wTere retained by the grantors. The opinion states that it is difficult to reach the conclusion that the river is the monument for the western line from a consideration of the recitals in the deed, but that, when the map is examined in connection with the deed, the uncertainty disappears. In this opinion it is also stated that the conveyance to the railroad company was for railroad purposes.

Upon the trial of this case on the merits the learned chancellor dismissed the bill, from which decree this appeal is here prosecuted.

It is the contention of the appellants that the opinion of the court in this cause upon the first appeal settled every question of la,w and fact in favor of complainants, and that there is no material difference between the questions then and now presented, and that for that reason the cause should be reversed, and decree entered here for the appellants.

It is the contention of the appellees that there are material differences between the cause as now presented upon its merits and the former cause presented upon bill and demurrer; that there is a vital difference between the copy of the map made an exhibit to the original bill and the map made an exhibit to the deed; that the testimony of the engineers in construing the language of the deed, together with the original map attached thereto as an exhibit, shows that it was the purpose and intention of the grantors by this description above set out to convey to the grantee all of the land to the river, and that there was no land between the calls of the deed and the river, or, stated more concisely, that the western boundary in this deed, when considered with the map, was coincident with the river, á,nd therefore passed riparian rights. This contention of the appellees was the view taken of the case by the learned special chancellor.

On the copy of the map made an exhibit to the bill which was before the court on the first appeal the land purported to be conveyed to the grantee lay within the red line purporting to show the boundary of the land. West of this red line appear two black lines. Whether the eastern black line is meant as the bank of the river or the water line cannot be told; neither can it be said whether the western line is meant to indicate water or a line between the land and water. From this map the western red line is east of the eastern black line. It touches it in some places, and there is a small space between the two lines in others. Assuming, therefore, that the eastern black line was a line between the land and water, it was decided that this map showed land between the land conveyed and the water, and consequently that the riparian rights did not pass.

The original map attached to the deed has all of the land granted to the railroad company under the deed marked in pink. This shows the western boundary of the land in controversy to be very irregular, and apparently bounded on the west by the river. Traced over this western boundary line is a heavy black line. To the west of it, and practically parallel, is a lighter black line. There are no legends or explanations on this map. The description above set out was read to each of the engineers, and, among other questions, each was asked whether or not there was any land lying west of that conveyed in this deed and the river, to which all three answered that there was not. It was also testified that the lighter or west line was merely a symbol indicating water. It was further testified by these engineers that in their judgment this western line was not run. This testimony in effect was that of Mr. Todd, a civil engineer. Another civil engineer, Mr. Marshall, testified that, from the description read to him from the deed, together with the map, the thread of the Mississippi river was the western boundary line of the land conveyed under the deed. He also testified that there was nothing to indicate that there was any land west of the land conveyed by this deed. • The testimony of Mr.. Allen, another civil engineer-, was that, in his judgment, the deed conveyed all the land to the bank of the river, and that there was no land between the river and the western boundary of this land. The testimony of these three engineers, taken as a whole, means as we view it, and as the learned chancellor so held, that the western line conveyed is coincident with the river. The deed itself is ambiguous. The southern boundary of this western line is clearly the Mississippi river. The ambiguity then follows: “Thence up the bank of said river to its intersection,” etc. The southern starting point is clearly the river. Grammatically speaking, the pronoun “its” refers to the nearest noun, which it “river.” The intention of the parties is to govern. Grammatical construction should never defeat this intention.

The testimony in this case shows that the land was purchased for the exercise of riparian rights. The purpose of building a bridge across the river and operating a line of coal barges between Greenville and New Orleans would have been defeated had the grantors not conveyed all this land to the river. Or, in another form, if a strip of land had been reserved by the grantors between that conveyed and the Mississippi river, the objects for which these two tracts of land were purchased would have been defeated. The grantee could not have gotten to the river in either instance without going over a narrow strip of land reserved by the grantors. This testimony presents a material difference between this case and that presented upon the former appeal, because the opinion in that case held, nothing appearing to the contrary, that this land was purchased by the grantee for railroad purposes, ivhereas this proof now shows the reason of its purchase was the exercise and enjoyment of riparian rights.

Considering, therefore, this testimony and the testimony of the engineers as to the meaning of the deed when considered in connection with the map, we are satisfied that the chancellor was correct in holding that it was the intention of the parties to this deed to convey all of the land to the river, and this intention is borne out by the grammatical construction of the deed. The deed grammatically and correctly expresses the intention of the parties to convey the land to the river. This construction is fortified by the fact that, when a deed is ambiguous, its terms are to be construed most strongly against the grantor and in favor of the grantee.

We therefore have in this case the western boundary of this tract of land starting in the Mississippi river, going north along he bank of the river, to a point where the river intersects a certain line. The southern starting point of the western' boundary line is the river; the northern terminus of this line is also the river; and under practically all of the authorities the entire western boundary is therefore the river. The authorities bearing upon this question are numerous. The rules governing this case áre quite well settled.

In Farnham on Water Rights, vol. 2, p. 1475, the rule is thus stated:

“If the grant is bounded by a well-marked line on the bank which is not coincident with the water, the title will extend only so far as the line, and the grantee will acquire no riparian rights. So, if the line along the river is described as a direct line, the line, and not the river, is the true boundary. In order to have this rule apply, however, the line must be described so distinctly as to indicate an intention that the stream shall not be the boundary.”

Again in Washburn on Beal Propery (6th Ed.) yol. 3, p. 392, section 2334, this rule is thus laid down:

^In respect to streams and rivers which are not navigable, the rule seems to be universal that describing land as running to the stream or the bank, and by it or along the stream or the bank, extends to the middle or thread of the stream, the filum aquae, unless there is something in the description clearly excluding the intermediate space between the edge or bank of the stream and its thread.”

In this case, instead of there being anything to indicate an intention that riparian rights should not pass, the testimony, the deed, and the map indicate that the intention of both parties was for the grantee to acquire these riparian rights.

It becomes unnecessary to consider the questions of adverse possession and res adjudicaba raised by the appellee's.

The decree of the lower court is affirmed.

• Affirmed.