WASHINGTON, Circuit Justice
(charging-jury). This is an ejectment, the object of which is to recover the saw-mill, built by the-defendants, and the land covered by the dam- and pond. It is necessary for the plaintiff' to prove a title in himself, and also possession in the defendant. The plaintiff has produced a regular paper titlefrem the proprietors of New Jersey, down to the lessors of the-plaintiff; unless the objections made to that title, or some one of them, should be deemed, sufficient. Upon the question of title, therefore, it will be only necessary to examine-those objections.
The first is, that the bed of a creek, cannot be separated from the adjoining land, and granted to a person not owning the adjoining land. This objection, at the first view of it, appears to be highly unreasonable. Whilst the title remains with the grantor, it is admitted, that it is equally valid in respect to the bed of the creek, as to the adjoining land; and may be used by the owner for all the purposes to which water may be applied, and for which it is peculiarly valuable; and yet, it is said to be a species of property, which-cannot be granted away by him, who has full dominion over and property in it It would follow from this, that if a man, owning land on each side of a stream, should grant the bed of the creek to another, for the purpose of erecting water works or otherwise; that he might nevertheless, against his own grant, claim the thing granted, as an appendage to his adjoining land; which would be a strange anomaly in the law. In support of this doctrine (and, before it can be admitted, it should be made out by clear authorities) Harg. Law Tracts, p. 5, has been relied upon. In my apprehension, this authority is against the defendants. “Prima facie,” the writer-says, “the owner of the adjoining land is entitled to go to the middle of the stream;” and this is very reasonable, where his grant does not expressly bind him by the margin of the stream. In England, the original grants of lands are seldom to be found, and, immemorial use, or prescription, must, in: most instances, be resorted to, for the purpose of establishing boundaries. In cases, therefore, of land lying on a fresh water stream, where no precise boundaries can be proved, the presumption (to use the expres[718]*718sion of the author) is, that it extends to the middle of the stream; or • that the whole stream is included, if he owns the adjoining lands on each side. But the same author proceeds to say, that the stream may be separated from the adjoining land by prescription; so that one man may own the bed of the stream, and another the adjoining lands. Now, this is conclusive upon the point, because if they may be separated by prescription, they may by grant; the former always pre-supposing the existence of the latter, at some past period of time, but which has since been lost, or destroyed.
As to the second objection. This objection, if intended to impeach the validity of the deed, for uncertainty in the description of the thing granted, is entirely without foundation. The place of beginning, and all the other corners, are precisely mentioned and described by course and distance to a tree on the north side of the creek, and thence up the courses of the creek to a spot from whence a south course will strike the beginning. This spot, though not marked by any visible object, is susceptible of precise location by aid of the compass, as there could be but one spot on the margin of the creek, whence a due south course would strike the beginning. As to the boundary on the north side, I have always supposed a water course to be the safest, because it is a natural boundary. It is possible, that in process of time, the stream may in some measure change its course; but this is no objection to the description, though it may become difficult to prove the ancient course. As to the want of a diagram, to point out to- the jury, the beginning of the land described in the deed to Morris, it is clear that such evidence is unnecessary. It is obvious upon the face of the papers, that the land in dispute is within the boundaries of the 300 acres, since it appears that it is only about 150 yards from the mouth of the creek, and the beginning is upwards of half a mile.
Third. It is unnecessary to give any opinion upon the title derived under the assignees. That the assignees, in actions brought by them, (except in those brought by them against the debtors of the bankrupt under the fifty-sixth section,) must prove the debt of the petitioning creditor, is fully established by the authorities; as also, that this section only extends to such actions for debts, duties or demands. Whether the principle applies to a purchaser under the assignees, is not decided in the cases cited; and no opinion is intended to be given by this court, because I am clearly of opinion, that if the plaintiff cannot make out his title under the assignees, he can rely upon the title derived under the mortgage deed from Wells and wife to Robert Wain. Why is the title of the assignees disputed? The answer is, because it does not appear that the persons, upon whose petition the commission issued, were creditors of the bankrupt, no evi-deuce having been offered on this trial, that any debt was in fact due to the petitioner; and of course the commission, which is the foundation of the whole proceedings, does not appear to have issued legally, the proceedings of persons acting under a special authority, not being evidence, in themselves, of the proper exercise of the authority. If so, then the commission improvidently issued; because, what does not appear, and what is not, are in law the same thing. The court must take it for granted, that there was no petitioning creditor, within the meaning of the law; and, if so, all is void. The estate of Wells, therefore, never passed out of him to the assignees; and, of course, he had a right to mortgage his life estate to Robert Wain. If the plaintiff had counted upon the demise of Wells and wife, and the defendants had wished to set up the title of the assignees in order to nonsuit him, they must have given the very evidence which the plaintiff is required to give in this case; and, failing to do so, the same conclusion' must have resulted, viz. that the commission had not regularly issued. The recital in the deed from the assignees, that Wells was regularly declared a bankrupt, cannot bind the plaintiff to admit the fact, in order to defeat him upon the title set up under Wells; and also to enable the defendants, to defeat him under the title set up under the assignees:— That is to say, to put it in the power of the defendants to blow hot and cold, and assert that the assignment was regular and not regular; which is the amount of the objection.
Fourth. This objection is put o.ut of the way, if the title under the mortgage is -relied upon. But there is nothing in it, or nothing of which the defendants can avail themselves. If the assignees proceeded improperly, so as to affect the interests of the creditors, they might complain, and might perhaps set aside the sale, if the circumstances were strong enough for the purpose. But, even the unauthorised act of an attorney, is not so absolutely void, that the constituents may not ratify and give it validity.
The second question, for the consideration of the jury, is, whether the defendants have been proved to be in possession of the property claimed by the declaration, or any part of it.
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WASHINGTON, Circuit Justice
(charging-jury). This is an ejectment, the object of which is to recover the saw-mill, built by the-defendants, and the land covered by the dam- and pond. It is necessary for the plaintiff' to prove a title in himself, and also possession in the defendant. The plaintiff has produced a regular paper titlefrem the proprietors of New Jersey, down to the lessors of the-plaintiff; unless the objections made to that title, or some one of them, should be deemed, sufficient. Upon the question of title, therefore, it will be only necessary to examine-those objections.
The first is, that the bed of a creek, cannot be separated from the adjoining land, and granted to a person not owning the adjoining land. This objection, at the first view of it, appears to be highly unreasonable. Whilst the title remains with the grantor, it is admitted, that it is equally valid in respect to the bed of the creek, as to the adjoining land; and may be used by the owner for all the purposes to which water may be applied, and for which it is peculiarly valuable; and yet, it is said to be a species of property, which-cannot be granted away by him, who has full dominion over and property in it It would follow from this, that if a man, owning land on each side of a stream, should grant the bed of the creek to another, for the purpose of erecting water works or otherwise; that he might nevertheless, against his own grant, claim the thing granted, as an appendage to his adjoining land; which would be a strange anomaly in the law. In support of this doctrine (and, before it can be admitted, it should be made out by clear authorities) Harg. Law Tracts, p. 5, has been relied upon. In my apprehension, this authority is against the defendants. “Prima facie,” the writer-says, “the owner of the adjoining land is entitled to go to the middle of the stream;” and this is very reasonable, where his grant does not expressly bind him by the margin of the stream. In England, the original grants of lands are seldom to be found, and, immemorial use, or prescription, must, in: most instances, be resorted to, for the purpose of establishing boundaries. In cases, therefore, of land lying on a fresh water stream, where no precise boundaries can be proved, the presumption (to use the expres[718]*718sion of the author) is, that it extends to the middle of the stream; or • that the whole stream is included, if he owns the adjoining lands on each side. But the same author proceeds to say, that the stream may be separated from the adjoining land by prescription; so that one man may own the bed of the stream, and another the adjoining lands. Now, this is conclusive upon the point, because if they may be separated by prescription, they may by grant; the former always pre-supposing the existence of the latter, at some past period of time, but which has since been lost, or destroyed.
As to the second objection. This objection, if intended to impeach the validity of the deed, for uncertainty in the description of the thing granted, is entirely without foundation. The place of beginning, and all the other corners, are precisely mentioned and described by course and distance to a tree on the north side of the creek, and thence up the courses of the creek to a spot from whence a south course will strike the beginning. This spot, though not marked by any visible object, is susceptible of precise location by aid of the compass, as there could be but one spot on the margin of the creek, whence a due south course would strike the beginning. As to the boundary on the north side, I have always supposed a water course to be the safest, because it is a natural boundary. It is possible, that in process of time, the stream may in some measure change its course; but this is no objection to the description, though it may become difficult to prove the ancient course. As to the want of a diagram, to point out to- the jury, the beginning of the land described in the deed to Morris, it is clear that such evidence is unnecessary. It is obvious upon the face of the papers, that the land in dispute is within the boundaries of the 300 acres, since it appears that it is only about 150 yards from the mouth of the creek, and the beginning is upwards of half a mile.
Third. It is unnecessary to give any opinion upon the title derived under the assignees. That the assignees, in actions brought by them, (except in those brought by them against the debtors of the bankrupt under the fifty-sixth section,) must prove the debt of the petitioning creditor, is fully established by the authorities; as also, that this section only extends to such actions for debts, duties or demands. Whether the principle applies to a purchaser under the assignees, is not decided in the cases cited; and no opinion is intended to be given by this court, because I am clearly of opinion, that if the plaintiff cannot make out his title under the assignees, he can rely upon the title derived under the mortgage deed from Wells and wife to Robert Wain. Why is the title of the assignees disputed? The answer is, because it does not appear that the persons, upon whose petition the commission issued, were creditors of the bankrupt, no evi-deuce having been offered on this trial, that any debt was in fact due to the petitioner; and of course the commission, which is the foundation of the whole proceedings, does not appear to have issued legally, the proceedings of persons acting under a special authority, not being evidence, in themselves, of the proper exercise of the authority. If so, then the commission improvidently issued; because, what does not appear, and what is not, are in law the same thing. The court must take it for granted, that there was no petitioning creditor, within the meaning of the law; and, if so, all is void. The estate of Wells, therefore, never passed out of him to the assignees; and, of course, he had a right to mortgage his life estate to Robert Wain. If the plaintiff had counted upon the demise of Wells and wife, and the defendants had wished to set up the title of the assignees in order to nonsuit him, they must have given the very evidence which the plaintiff is required to give in this case; and, failing to do so, the same conclusion' must have resulted, viz. that the commission had not regularly issued. The recital in the deed from the assignees, that Wells was regularly declared a bankrupt, cannot bind the plaintiff to admit the fact, in order to defeat him upon the title set up under Wells; and also to enable the defendants, to defeat him under the title set up under the assignees:— That is to say, to put it in the power of the defendants to blow hot and cold, and assert that the assignment was regular and not regular; which is the amount of the objection.
Fourth. This objection is put o.ut of the way, if the title under the mortgage is -relied upon. But there is nothing in it, or nothing of which the defendants can avail themselves. If the assignees proceeded improperly, so as to affect the interests of the creditors, they might complain, and might perhaps set aside the sale, if the circumstances were strong enough for the purpose. But, even the unauthorised act of an attorney, is not so absolutely void, that the constituents may not ratify and give it validity.
The second question, for the consideration of the jury, is, whether the defendants have been proved to be in possession of the property claimed by the declaration, or any part of it. As to the mill, the evidence being entirely contradictory, in relation to this part of the property; some of the witnesses testifying, that, in their opinion, no part of the mill or wheel is in the ancient bed of the creek, others, that the wheel and forebay are part of the mill, and others again, that a part only of the wheel and forebay is; the court leaves this question to the jury, who are alone competent to judge of the credibility of the witnesses, and to weigh their testimony. As to the dam, or at least a part of it, there is no dispute but that it is in the bed of the creek; and consequently such part, and the land covered by the water of the pond, belong to the plaintiffs. If so, the verdict must [719]*719be for the plaintiffs. At the request of the parties, and for the regulation of their conduct in relation to the mill and its appendages, the jury may express an opinion distinct from their verdict
The jury found for the plaintiff, and the foreman stated, that the jury were of opinion, that half of the forebay and wheel to the south were in the ancient bed of the creek.
NOTE. In the above cause, the defendants moved in arrest of judgment, that the jury had not found that the value of the land exceeded 500 dollars.
WASHINGTON, Circuit Justice.
It would be sufficient to fix the jurisdiction, if the value were now proved by witnesses or on affidavit; and, as the evidence given of the value of the tract, proved it to exceed, very far, the sum of 500 dollars, the court cannot grant a rule to show cause why the judgment should not be arrested. (The value was stated in the declaration.)