On Motion for Rehearing.
This ease was reversed at the last term of this court, and appellee’s motion for rehearing was brought over to this term. After careful consideration of that motion, we have reached the conclusion that the case should not have been reversed, but that the judgment of the trial court should have been affirmed.
[1] It is a well-settled general rule of law that, when a tract of land is bounded by a nonnavigable stream, the boundary line extends to the center of the stream unless it is made clearly to appear that it was the intention of the grantor that such boundary should not go to that extent, and should be fixed other',a1 e. And this is true, although the grant may call for marked corners upon the bank of the stream, and for a line or lines between such corners, which do not correspond with the center of the stream. Bond v. Railway Co. et al., 15 Tex. Civ. App. 281, 39 S. W. 979; Muller v. Landa, 31 Tex. 271, 28 Am. Dec. 529; Risien v. Brown, 73 Tex. 139, 10 S. W. 661; Railway Co. v. Schurmeir, 7 Wall. 272, 19 L. Ed. 78; Rhodes v. Whitehead, 27 Tex. 304, 84 Am. Dec. 631; 5 Cyc. pp. 895-898; 4 A. & E. Ency. Law, p. 831; Brown v. Huger, 21 How. 305, 322, 16 L. Ed. 128, 130; Jones v. Soulard, 24 How. 41, 16 L. Ed. 608; City of St. Louis v. Rutz, 138 U. S. 243, 11 Sup. Ct. 337, 34 L. Ed. 948; St. Clair County v. Lovingston, 23 Wall. 46, 69, 23 L. Ed. 62; Runion v. Alley (Ky.) 39 S. W. 849.
In many of the cases the intermediate lines called to run with the meanders of the stream, or as binding upon it. But in some cases, and especially in Brown v. Huger, supra, it has been held that the expressions “down the stream” and “up the stream” in the particular cases were equivalent to saying “with the meanders of the stream.” In the present case, as pointed out in our former opinion, the field notes bear upon their face certain evidence tending to take this case out of the general rule; but, after a careful reconsideration and further examination of the authorities, we are not prepared to say that they render it manifest, and show with that degree of certainty required by the rule referred to that this case should be taken out of the first part and placed within the latter part of that rule. The proof does not show when the survey in question was first made, but its field notes are contained in a deed executed by Oscar Thompson and wife to R. J. Carroll November 15, 1898; and it was also shown that the suit of Dutton v. Thompson was filed in 1887, and the judgment rendered in that case in describing the land in question refers to it as “the land described in defendant’s answer as follows,” and then sets out the field notes in question. So it is probable that the original survey was made prior to 1887; and that fact is of some importance because in the trial of this case testimony was presented tending to show that the pecan tree marked as the northwest corner was at the time the original survey was made considerably nearer the water’s edge than it is now. W. P. Doty, the county surveyor who went upon the ground and ran the line in question according to course and distance while the ease was being tried, testified: “I know the creek bears to the south there. There is something of a curve. I know that the earth is washed in along this line. It goes in further north than it was when I was there the other time. It is washing in and filling it. There is an accretion taking placing next to this bank opposite to this tree and along opposite 'to the defendant’s land. The creek is washing out on the north side and filling in on the south side, especially this upper part of it. On the north bank of the creek I don’t know whether it is washed off there or not. That is a perpendicular bank, and I don’t know, it might be digging into that bank. I noticed that there was a perpendicular bank. It seems to be filling in on this side.” He also testified that in running the line from the pecan tree he reached the water at a distance of 192 feet. How far the line went into the water, and how far it extended before passing out, was not shown.
W. M. Strickland testified that he had been living ón the Thompson tract about five years, and had known it ever since 1881. He further said: “I have noticed that creek since I have been down there as to the formation of the dirt. Since I have been down *454there the creek next to me and next to Mr. Vierling’s tract of land has been filling in right sharply on the south side. It cuts out a little on the north side. I have noticed the trees on the bank of the creek on the north side, and one or two there are pretty near undermined and the roots washed from under them. On the south side the dirt is depositing, and on the north side it is cutting away. You might say that creek has built up since I have been there from that wire fence, at least ten feet along there, because that creek used to cut right along by that big tree, water used to stand right along by it; that is, the tree standing just north of the marked tree. I have seen the water there about that tree many a time. I have seen the water run over the roots of the trees on the top of that bank. According to my best knowledge, when I first knew that pool, the water stood about six feet right in the center. The water stood about flush with the roots of those trees that run along there by that deposit, stood right close to them.”
J. E. G-oodson gave similar testimony as to the stream washing out on the north side and filling in on the south side. The testimony referred to tends to show that at the time the original survey was made the line called for by course and distance extending from the pecan tree was considerably nearer the water’s edge when the surveyor reached the tree referred to than it was when the case was tried; and, if such was the case, that line must then have reached the water sooner and extended further into it than it does now. In fact, it may have left what was at that time considered an infinitesimal portion of the soil on the north side of the line, and that fact would tend to show that the survey was intended to border upon the stream. And, if such was the intention, it would seem that a deed, or any other instrument intended to pass title by the use of the field notes then made by the surveyor, should be held to make the center of the stream the boundary line. In Norcross v. Griffiths, 65 Wis. 599, 27 N. W. 606, 56 Am. Rep. 642, it was held that where land deeded by metes and bounds includes the bank of a river, although no reference is made to the river, it will be presumed that the intention was to convey to the middle of the stream. The opinion in that case is elaborate, and refers to and discusses many cases, and we quote as follows from that opinion: ‘‘The basis of the claim rests upon the fact (and as I think that fact alone) that in the deed of conveyance to Samuel D. Smith the boundaries of the land conveyed are exactly described by metes and bounds, no reference whatever being made to the river, and therefore it is claimed that nothing passed by the deed outside the boundaries particularly described in the deed. On the other hand it is claimed by the learned counsel for the appellants that, as the evidence clearly established the fact that the boundaries mentioned in the deed do in fact include the whole of the banks and shore along the river for the whole length of the lot conveyed, there arises a presumption that the grantors intended to convey, and did convey, all their right to the bed of the stream in front of the lands described in the deed to the middle of such stream, and that such presumption can only be rebutted by an actual reservation in the deed, or by the production of such facts and circumstances in evidence attending the making of the conveyance as clearly show an intention to limit the grant to the exact boundaries fixed by the description in* the deed. After a careful consideration of the very able and exhaustive arguments of the counsel for the respondent, and of the authorities cited by them in their briefs, as well as the arguments and authorities presented by the counsel for the appellants, we are clearly of the opinion that, so far at least as this court has spoken upon the subject, it has adopted the rule contended for by the counsel for the appellants; and that upon the face of the deed to Samuel D. Smith, and the evidence showing the location of the land described therein, it must be held that the grantee, Smith, took the bed of the stream to the center thereof, or so much thereof as the grantors owned when said deed was executed.”
In St. Clair County v. Lovingston, supra, the Supreme Court of the United States said: “It may be considered a canon in American jurisprudence that where the calls in a' conveyance of land are for two corners at, in, or on a stream or its bank, and there is an intermediate line extending from one such corner to the other, the stream is the boundary unless there is something which excludes the operation of this rule by showing that the intention of the parties was otherwise.”
[2] One of the chief difficulties that we have encountered in this ease is the fact that one of the links in appellee’s chain of title is not a voluntary grant or deed, but is a judgment rendered against appellant, which judgment, in effect, awarded to Oscar Thompson, one of appellee’s vendors, what may be designated as the Thompson tract of land, and described the north boundary thereof in the same way that it had been described in the original survey, which, as before said, was probably made prior to 1887. The suit in which that judgment was rendered involved the title to a tract of 160 acres of land sued for by Mrs. Dutton; and, as she recovered all except a small tract awarded to Thompson, it is evident that the court knew that but for the title asserted by Thompson Mrs. Dutton owned the entire 160-acre tract; and when, in adjusting the relative rights of the parties, the court in its judgment used the same field notes that were used when the survey was originally made, it is not clear to the writer that the same rule of construction does not apply that would be ap*455plicable if tbe same field notes and description were contained in a voluntary deed. Undoubtedly this would be true if the rule of construction referred to rests upon public policy to prevent harrassing lawsuits concerning small strips and gores of land, as held by Judge Redfield and by the Supreme Court of Wisconsin, as is disclosed by reading Norcross v. Griffiths, supra. But what is here said is not intended to commit this .court to the doctrine there annuonced concerning the foundation of the rule. What we hold in this case is that, conceding that the judgment should be so construed as to ascertain where the court intended to place the line in question, as the court merely adopted a description given in a survey made many years before, which survey does not clearly show upon its face that it was not intended that the north line should go to the middle of the stream, we are not prepared to say that the trial court committed error when it held that such was the intention. We may still doubt the proposition that it was originally intended that the middle of the stream should constitute the boundary; but, inasmuch as the general rule referred to authorizes that construction, unless it clearly appears that such was not the intention, we do not feel authorized to hold that the trial court committed error in the construction placed upon the judgment.
For the reasons stated, the motion for rehearing is granted and the judgment of the court below is affirmed.
Rehearing granted, and judgment affirmed.