The finding of the referees, that one of the defendants was guilty of a technical trespass, includes a finding that the plaintiff was in possession of the pond. The possession entitles him to a judgment in the action, unless the facts reported show that the defendant against whom the finding was made had a better right of possession. Fowler v. Owen, 68 N.H. 270,272, and authorities cited. It appears that some part of Lot 42 is in possession of this defendant and another, and has been in the possession of them and their predecessors in title since the original allotment, made in 1738, about fifty years after the passage of the vote which was the origin of the plaintiff's title. This lot is bounded "northerly on Tuck's mill-pond from the easterly end of the foot-dam to the mill-gate, and from the mill-gate to the mill-way, . . . southerly," etc. The pond being artificial, if the northerly boundary had been "Tuck's mill-pond" simply, without any qualification, the boundary line would probably be the center of the pond or the thread of Nilus river. Mansur v. Blake, 62 Me. 38, 41; Holden v. Chandler, 61 Vt. 291; Waterman v. Johnson, 13 Pick. 261, 265; Phinney v. Watts, 9 Gray 269; *Page 594 Paine v. Woods, 108 Mass. 160, 169, et seq.; Mill River Mfg. Co. v. Smith,34 Conn. 462; Wheeler v. Spinola, 54 N.Y. 377. In that case the owners of that portion of the lot bordering upon the pond would have an interest in the land submerged by the pond, unless the vote of 1686 granted to Tuck and his successors in title the fee of such land. Such owners would be in a position that would enable them to contest the plaintiff's title and right of possession. But the qualifying words in the description, — "from the easterly end of the foot-dam to the mill-gate, and from the mill-gate to the mill-way," — have a tendency to show that the line intended was the margin of the pond. A misunderstanding of the description is quite likely to occur in the absence of a plan showing the location of the pond, the river, the foot-bridge, the mill-gate, the mill-way, and the lines of surrounding lots. It may be that a correct understanding of the description as applied to the objects mentioned would show that the center of the pond or the thread of the river was intended, notwithstanding the use of the qualifying words. Kent v. Taylor, 64 N.H. 489. If it should turn out that the margin of the pond is the boundary line, thus excluding the pond from Lot 42, the guilty defendant would have no defence to the action upon the facts reported. Indeed, the case does not show that he would have a defence if the center of the pond or the river is the boundary line, for possession of some part of the lot is not necessarily possession of that part bordering on the pond and river. The other defendants, although owners of land about the pond, may have no rights in the pond or its bed.
It not appearing that the defendants have rights that conflict with those which the plaintiff asserts, it would be a useless task to attempt to render a decision as to the character of the latter. Although such a decision would bind the parties to the action and the agreement for reference, it might not bind those (if any there be) who really have interest's that are adverse to the plaintiff's. As the case stands, there should be judgment in favor of the plaintiff.
Case discharged.
All concurred. *Page 595