Delaware County NyArchives Court.....Nichols, Elizabeth Vs. Elias Howland 1889
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Source: Reports Of Cases - New York
Written: 1889

Fourth Department, May Term, 1889.

ELIZABETH H. NICHOLS, Respondent, v. ELIAS P. HOWLAND, Appellant.

Deed — description, when it conveys the bed of a brook and when only to the 
center thereof.

A deed, containing a description: "Beginning at a stake and stones on the south 
side of the highway on the line between the said lot No. 15 and lot No. 31, 
thenceon said line across the brook to a stake and stones on the southerly bank 
of said brook, running south 28° east 56 rods, thence down said brook 62 rods to 
a stake and stones on said bank,thence north 28° west to a stake and stones,"—
where the monuments referred to are placed on the southerly bank of the stream, 
at or near the edge of the water — has the effect of transferring and conveying, 
all of the bed of the brook, and does not extend simply to the center line 
thereof.

The intention so to do is clearly evinced by the fact that the line runs "across 
the brook."

Appeal from a judgment entered upon a verdict recovered September, 1887, at the 
Delaware Circuit, and entered in the office of the clerk of Delaware county 
January 17, 1888, and from an order denying a motion made on the minutes for a 
new trial.

The action was in ejectment to recover certain premises along the southerly side 
of East brook, in the town of Walton. The controversy was over the location of 
the northerly line of plaintiff's property. The jury found that the line was the 
thread of the stream or brook as it was in 1840.

Shortly before the trial the parties entered into a stipulation, entitled in the 
action and reading as follows: "It is hereby stipulated that for all the 
purposes of the trial and determination of this action that the plaintiff is the 
owner in fee simple of the eastern portion of lot No. 15 of the Livingston 
patent, and entitled to the possession, as the same was conveyed with other 
lands to Burr Lyon, one of plaintiff's grantors, by deed dated December 10, 
1840, and recorded in book 20, at pages 506 and 507. And that the defendant is 
the owner in fee simple of all that portion of said lot No. 15 which is bounded 
and described in a deed from Jacob Eells and wife to Benjamin J. Bassett, one of 
defendant's grantors, and is entitled to the possession thereof, said deed 
bearing date October 9, 1843, and recorded in book No. 27, at pages 182, etc. 
Dated June 17, 1887."

The description in the Lyon deed was as follows: "Beginning at a stake and 
stones on the westerly corner of said lot No 15 ; thence running south thirty-
eight degrees east seventy chains and eighty-one links to a stake and stones; 
thence north sixty-two degrees east thirty-four chains and thirty-two links to a 
stake and stones; thence north twenty-eight degrees west forty-nine chains and 
fifty links to a stake and stones standing on the southerly bank of the brook; 
thence down the brook sixty-two rods to a stake and stones on the said bank; 
thence north twenty-eight degrees west to the line between lots Nos. 14 and 15 
to a stake and stones; thence on a direct line to the place of beginning, 
containing 214 acres, be the same more or less."

The description in the Bassett deed was as follows: "Beginning at a stake and 
stones on the south side of the highway on the line between the said lot No. 15 
and lot No. 31; thence on said line across the brook to a stake and stones on 
the southerly bank of said brook running south twenty-eight degrees east fifty-
six rods; thence down said brook sixty-two rods to a stake and stones on said 
bank; thence north twenty-eight degrees west to a stake and stones, near the 
aforesaid highway, sixty-four rods; thence north sixty-two degrees east sixty 
rods to the place of beginning, containing twenty-one acres and ninety-six rods, 
be the same more or less."

The court held that, under the stipulation, the question in dispute was as to 
the actual location of the line as fixed by the deeds referred to in the 
stipulation, and charged the jury that, if they found that the monuments 
mentioned in the deeds were placed on the bank of the stream, at or near the 
edge of the water, then the description carried the right of the grantee to the 
center of the stream, as the channel of the stream was located at the time of 
these grants, 1840 and 1843, and the plaintiff would be entitled to a verdict 
for the possession of the land to the center of the stream as it ran in 1840 and 
1843.

W. H. Johnson, for the appellant.

E. H. Hanford, for the respondent.
 
Merwin, J.:

The court below correctly held that the course of the trial must be guided by 
the stipulation as to the issue between the parties, although it might operate 
to modify the pleadings. The line in dispute was the northerly line of the 
plaintiff or the Burr property, and the southerly line of the defendant or the 
Bassett property. Both of the deeds referred to in the stipulation describe this 
line substantially in similar terms: "To a stake and stones standing on the 
southerly bank of the brook; thence down the brook sixty-two rods to a stake and 
stones on the said bank." In the Bassett deed, in order to reach this line, 
there came a course on the east side of the lot southerly along the line between 
lots Nos. 15 and 31, "across the brook."

Both properties seem to have been owned originally by one Heath, who, in 1803, 
gave a deed to one Merrick of the Bassett property, in which the lines on the 
east and south are described as in the Bassett deed. Then, in 1825, the balance 
of the property was conveyed. At the trial it was held that if the description 
in the Bassett deed covered the land which plaintiff sought to recover, then the 
action could not be maintained. Evidence was given as to the location, in fact, 
of the stakes and stones referred to in the deed as being on the southerly bank 
of the creek, it being claimed by the plaintiff that they were near the edge of 
the water, while it was claimed by defendant that at the easterly end they were 
about eighteen feet from the brook and at the westerly end were about twelve. 
The jury by their verdict found with the plaintiff in this respect.

Assuming, then, that those monuments were placed on the southerly bank of the 
stream, at or near the edge of the water, did the premises of the defendant, as 
described in the Bassett deed, include the bed of the stream? If so, then the 
theory of the trial was not correct.

In Luce v. Carley (24 Wend., 451), the description began "at a hard maple tree 
standing on the east bank of the Onondaga river," and then, after going east and 
north, proceeded as follows: "Thence west, 50 chains and 10 links, to the east 
bank of the Onondaga river; thence north along the Onondaga river to the first 
mentioned bounds." It was held that the grantee took to the center of the 
stream. In the Seneca Nation of Indians v. Knight (23 N. Y., 498), the 
description began at a post standing on the bank of Lake Erie, at the mouth of 
Cattaraugus creek, and on the north bank thereof, then, after various courses 
and distances, it came "to a post standing on the north bank of Cattaraugus 
creek; thence down the same and along the several meanders thereof to the place 
of beginning." It was held that the boundary went to the center of the creek. A 
similar doctrine was stated by Chancellor Walworth in Child v. Starr (4 Hill, 
369), though not necessary to the decision.

In Kings County Fire Insurance Company v. Stevens (87 N. Y., 287), the 
description commenced at a point on the southerly side of a road, running thence 
southerly, and, after various courses and distances, came again "to the road," 
and thence "along said road to the place of beginning." It was held that the 
title went only to the southerly side of the highway. Substantially the same 
thing was held in Lee v. Lee (27 Hun, 1). A like construction was made in 
English v. Brennan (60 N. Y., 609). There the line commenced in the margin of 
the street, and ran thence along the street. The starting point was held to be 
controlling, and the line did not go to the center. The cases above cited in 24 
Wendell and 23 New York would be quite in point in favor of plaintiff's theory, 
were it not for the fact that the Bassett deed, which is under consideration, by 
its terms brings the easterly line across the brook.

That shows an intent to include in the deed the whole of the brook. A fixed and 
definite monument is placed on the southerly or farther bank to which the line 
goes. Such a monument, placed to locate the end of a line expressly brought 
across the brook, cannot be said to be placed there only for the purpose of 
indicating where the line strikes the stream, as suggested in the earlier cases 
referred to. It is more analogous to the definite starting points on highways 
that are held to control in the latter cases, although the intermediate line is 
made to run along the highway. The expression here, "down the brook to a stake 
and stones on said bank," indicates that the line follows the course of the 
stream but continues and terminates on the same bank at a point formally 
designated and fixed. In all these cases it is a question of interpretation and 
intent in view of the description in the deed and such surrounding circumstances 
as may properly appear. (Mott v. Mott, 68 N. Y., 253.)

I am, therefore, of the opinion that the description in the Bassett deed should 
be construed as including the bed of the stream, and, if so, the plaintiff 
cannot, in any event, recover to the center, as his deed is controlled by the 
deed to Merrick in 1803, upon which the conveyance to Bassett was based. The 
southerly bank referred to seems to have been of some considerable width, and 
more or less steep all along the line. It may be that the place of the location, 
on the bank, of the stakes and stones, may have some bearing on the question 
whether the deed of 1803 carried the title to high or low-water mark. That 
matter, however, is not important to be considered now.

It follows that the judgment and order should be reversed and a new trial 
granted, costs to abide the event.

Hardin, P. J., and Martin, J., concurred.

Judgment and order reversed on the exceptions and a new trial ordered, with 
costs to abide the event.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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