Opinion,
Mr. Justice Clark :
This is an action of ejectment, brougñt to recover about 26 acres of land, situate on the west side of the Schuylkill, opposite Point Breeze, in the Twenty-seventh ward of the city of Philadelphia. The description contained in the writ is not printed, but, according to the plaintiffs’ paper book, the disputed property is “ flat land,” bounded on the north by a line run upon the dike or artificial bank of the Schuylkill river, on the south by low-water mark, and on the east and west by the projection to low-water mark of the side lines of a ten acre meadow, or fast lands, of defendants, in front of which are the flats. These flats, being. between high- and low-water mark, are covered with water, except when the tides are low, and are valuable only as accretions may make them so for the .purpose of a wharf.' As the court below entered a nonsuit, we are bound to accept the testimony which was taken as true, treat the offers of evidence which were refused as if they were justified by the proof, and give to the plaintiffs the benefit of all the inferences which may fairly arise out of the facts thus assumed.
The common source of title was Aaron Palmer, to whom, on September 17, 1791, one Nathan Jones, by a deed, conveyed the meadow ground to which the flats were appurtenant. Aaron Palmer died November 11, 1817, and was seised of the properly at the time of his death; for it was admitted at the trial'that Aaron Palmer, or his heirs, claiming under him, was in the actual possession from the date of this deed until May 13, 1864, the date of the defendants’ deed from Lydia P. Palmer.
[169]*169It is conceded that by this means Aaron Palmer was invested with title, not only to the fast land, but also to the flat lands, upon the principle that a grant of land bounded upon a navigable river extends to low-water mark, subject, however, to the right of the public for the purpose of navigation: Carson v. Blazer, 2 Binn. 475; Ball v. Slack, 2 Wh. 508; Coovert v. O’Conner, 8 W. 470; Jones v. Janney, 8 W. & S. 439; Fulmer v. Williams, 122 Pa. 191. The authorities upon this stibject are collected in Wood v. Appal, 63 Pa. 210, and the law may be regarded as settled beyond question. “ Between high- and low-water mark upon a navigable river, the grantee takes subject to the rights of the public; and, as between him and the public, he may use his land below high-water mark for such purposes as do not interfere with the free flow and navigation of the waters: ” Fulmer v. Williams, supra. The possession of the fast land is, therefore, possession of the flats. That boats or vessels at high water pass over the flats amounts to nothing, as respects the possession; for the possession is necessarily sxibject to the use of the water by the public: Ball v. Slack, supra.
The plaintiffs’ claim is through a series of assignments from those entitled by devolution under the last will and testament of Aaron Palmer, deceased. The defendants claim under the deed' of May 13,1864, from persons entitled in the same right; and the whole question turns upon the proper force and effect of that deed. Did the conveyance from Lydia P. Palmer et al. to Hamilton Farrell for the fast lands pass the title to the flats also? The general rule, undoubtedly, is as we have stated it; but there are cases in which the intention of the parties may be otherwise, and it is a cardinal rule in all cases that a grant is to be construed according to that intention. “ The character of this kind of property is such that land bordering on the flats, and the flats, naturally go together. Their most beneficial enjoyment is derived from their connection; and it is inconceivable that any man, in his sober senses, having, or supposing he had, a title to both, would intentionally separate them, and convey the meadow to one of his children and the flats in front of it to another. For this reason it is that an express exception is required in the grant, or some unequivocal declaration, or certain immerporial usage, to limit the title of the owner in [170]*170such cases to the edge of the river:” Jones v. Janney, supra. It is therefore this peculiar connection in their uses which gives rise to the presumption that the grant is intended to pass the flats with the fast land; but this presumption of fact may, like any other, be rebutted by proper and competent evidence of a contrary intention. “ Of course,” says Mr. Justice Agnew, in Wood v. Appal, supra, “the rule, as now laid down, applies only to a case where no other intention is disclosed by the return of the survey or the deed.” The very recent case of Risdon v. Philadelphia, 18 W. N. 73, illustrates the rule applicable in such a case with much clearness. In that case, Carson held title through a patent from the Duke of York, granted in 1667 to Andrew Carr, for “land tying and being in Delaware river, nearly into Lawsa Cocks, containing, by estimation, one hundred acres or thereabouts, be it more or less, bounded on the south with the said river, on the north Avith the Avoods, and on the north east with Pennebeckahs creek, or kills.” Notwithstanding this patent plainly included the flats, Carr, in 1838, procured from the surveyor general a separate patent for the flats, and, in a future conveyance of the fast lands, followed, apparently as a dividing line, the courses and distances of the patent of 1838, and on one of these lines called for the flats. “ These and other matters of description in the deed,” says our Brother Sterrett, who delivered the opinion of the Court, “ taken in connection with the fact that Carson evidently claimed to hold the flat land by virtue of his patent from the commonwealth, would seem to indicate that it was the intention to exclude, rather than include, these lands in the conveyance to Ryan. At all events, it was not a question which the Court, under the evidence, could decide as matter of law. It is unnecessary to say that Carson did or did not acquire anything by his patent of 1838. He eAÚdently treated it as valid, and this fact, in connection with others, should not be ignored in determining whether the flats and margins in front of the fast lands were included in the conveyance to Ryan.”
It is apparent, therefore, that the question in each case is determinable upon the true and proper construction of the grant. When the bank of a navigable stream is called for as a boundary, — that and no more, — the law will presume the [171]*171grantor’s intention to have been to carry the line to low-water mark; and when the words of a grant are clear and consistent, when they contain no ambiguity, and no fraud or mistake is alleged, the intention of the parties cannot be shown, to override their obvious meaning; but, if there is anything in the words of the grant which would indicate a probably different intent, the question, in the absence of mistake or fraud, is one for construction of the court; or, if there be extraneous facts or surrounding circumstances alleged which would, if established, bear upon the proper construction, the question may, under proper instructions, become one for the jury. Is there anything upon the face of the deed dated May 18, 1864, from Lydia P. Palmer et al. to Hamilton Farrell, which calls for construction ? It is clear that the flats are not embraced within the words of the description, as written in this deed. The lands are “bounded and described according to the survey made thereof by James Miller on the 26th day of April, A. d. 1864,” — only a few days before the execution of this deed. The lines of that survey are the lines given in the deed, and admittedly exclude the lands in dispute.
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Opinion,
Mr. Justice Clark :
This is an action of ejectment, brougñt to recover about 26 acres of land, situate on the west side of the Schuylkill, opposite Point Breeze, in the Twenty-seventh ward of the city of Philadelphia. The description contained in the writ is not printed, but, according to the plaintiffs’ paper book, the disputed property is “ flat land,” bounded on the north by a line run upon the dike or artificial bank of the Schuylkill river, on the south by low-water mark, and on the east and west by the projection to low-water mark of the side lines of a ten acre meadow, or fast lands, of defendants, in front of which are the flats. These flats, being. between high- and low-water mark, are covered with water, except when the tides are low, and are valuable only as accretions may make them so for the .purpose of a wharf.' As the court below entered a nonsuit, we are bound to accept the testimony which was taken as true, treat the offers of evidence which were refused as if they were justified by the proof, and give to the plaintiffs the benefit of all the inferences which may fairly arise out of the facts thus assumed.
The common source of title was Aaron Palmer, to whom, on September 17, 1791, one Nathan Jones, by a deed, conveyed the meadow ground to which the flats were appurtenant. Aaron Palmer died November 11, 1817, and was seised of the properly at the time of his death; for it was admitted at the trial'that Aaron Palmer, or his heirs, claiming under him, was in the actual possession from the date of this deed until May 13, 1864, the date of the defendants’ deed from Lydia P. Palmer.
[169]*169It is conceded that by this means Aaron Palmer was invested with title, not only to the fast land, but also to the flat lands, upon the principle that a grant of land bounded upon a navigable river extends to low-water mark, subject, however, to the right of the public for the purpose of navigation: Carson v. Blazer, 2 Binn. 475; Ball v. Slack, 2 Wh. 508; Coovert v. O’Conner, 8 W. 470; Jones v. Janney, 8 W. & S. 439; Fulmer v. Williams, 122 Pa. 191. The authorities upon this stibject are collected in Wood v. Appal, 63 Pa. 210, and the law may be regarded as settled beyond question. “ Between high- and low-water mark upon a navigable river, the grantee takes subject to the rights of the public; and, as between him and the public, he may use his land below high-water mark for such purposes as do not interfere with the free flow and navigation of the waters: ” Fulmer v. Williams, supra. The possession of the fast land is, therefore, possession of the flats. That boats or vessels at high water pass over the flats amounts to nothing, as respects the possession; for the possession is necessarily sxibject to the use of the water by the public: Ball v. Slack, supra.
The plaintiffs’ claim is through a series of assignments from those entitled by devolution under the last will and testament of Aaron Palmer, deceased. The defendants claim under the deed' of May 13,1864, from persons entitled in the same right; and the whole question turns upon the proper force and effect of that deed. Did the conveyance from Lydia P. Palmer et al. to Hamilton Farrell for the fast lands pass the title to the flats also? The general rule, undoubtedly, is as we have stated it; but there are cases in which the intention of the parties may be otherwise, and it is a cardinal rule in all cases that a grant is to be construed according to that intention. “ The character of this kind of property is such that land bordering on the flats, and the flats, naturally go together. Their most beneficial enjoyment is derived from their connection; and it is inconceivable that any man, in his sober senses, having, or supposing he had, a title to both, would intentionally separate them, and convey the meadow to one of his children and the flats in front of it to another. For this reason it is that an express exception is required in the grant, or some unequivocal declaration, or certain immerporial usage, to limit the title of the owner in [170]*170such cases to the edge of the river:” Jones v. Janney, supra. It is therefore this peculiar connection in their uses which gives rise to the presumption that the grant is intended to pass the flats with the fast land; but this presumption of fact may, like any other, be rebutted by proper and competent evidence of a contrary intention. “ Of course,” says Mr. Justice Agnew, in Wood v. Appal, supra, “the rule, as now laid down, applies only to a case where no other intention is disclosed by the return of the survey or the deed.” The very recent case of Risdon v. Philadelphia, 18 W. N. 73, illustrates the rule applicable in such a case with much clearness. In that case, Carson held title through a patent from the Duke of York, granted in 1667 to Andrew Carr, for “land tying and being in Delaware river, nearly into Lawsa Cocks, containing, by estimation, one hundred acres or thereabouts, be it more or less, bounded on the south with the said river, on the north Avith the Avoods, and on the north east with Pennebeckahs creek, or kills.” Notwithstanding this patent plainly included the flats, Carr, in 1838, procured from the surveyor general a separate patent for the flats, and, in a future conveyance of the fast lands, followed, apparently as a dividing line, the courses and distances of the patent of 1838, and on one of these lines called for the flats. “ These and other matters of description in the deed,” says our Brother Sterrett, who delivered the opinion of the Court, “ taken in connection with the fact that Carson evidently claimed to hold the flat land by virtue of his patent from the commonwealth, would seem to indicate that it was the intention to exclude, rather than include, these lands in the conveyance to Ryan. At all events, it was not a question which the Court, under the evidence, could decide as matter of law. It is unnecessary to say that Carson did or did not acquire anything by his patent of 1838. He eAÚdently treated it as valid, and this fact, in connection with others, should not be ignored in determining whether the flats and margins in front of the fast lands were included in the conveyance to Ryan.”
It is apparent, therefore, that the question in each case is determinable upon the true and proper construction of the grant. When the bank of a navigable stream is called for as a boundary, — that and no more, — the law will presume the [171]*171grantor’s intention to have been to carry the line to low-water mark; and when the words of a grant are clear and consistent, when they contain no ambiguity, and no fraud or mistake is alleged, the intention of the parties cannot be shown, to override their obvious meaning; but, if there is anything in the words of the grant which would indicate a probably different intent, the question, in the absence of mistake or fraud, is one for construction of the court; or, if there be extraneous facts or surrounding circumstances alleged which would, if established, bear upon the proper construction, the question may, under proper instructions, become one for the jury. Is there anything upon the face of the deed dated May 18, 1864, from Lydia P. Palmer et al. to Hamilton Farrell, which calls for construction ? It is clear that the flats are not embraced within the words of the description, as written in this deed. The lands are “bounded and described according to the survey made thereof by James Miller on the 26th day of April, A. d. 1864,” — only a few days before the execution of this deed. The lines of that survey are the lines given in the deed, and admittedly exclude the lands in dispute. It is plain, then, that it is only by a legal construction of the deed, based upon an assumed intention of the grantors, that' the flat lands can be embraced in it; and, as the court is thus called upon to construe the deed, that work must be conducted according to established rules. The words of the grant are wholly consistent with the contention of the plaintiffs in error, that the flat lands were not embraced, and it is only by a legal construction that • they may be otherwise understood. The description does not call for the river; it calls- for a line run between certain points, designated by the surveyor as on the bank of the river. Under these circumstances, whatever the presumption might be, we think it was competent for the plaintiffs to prove, not their own declarations, perhaps, or even the parol admissions of Farrell, but the extrinsic facts and circumstances attending the transaction, viz., that this bank was an artificial one, in the nature of a dike, which was erected to rescue the meadow from inundation ; that Farrell had notice before the sale that the plaintiffs reserved the flats; that the plaintiffs refused to- execute a deed which by its express terms conveyed the flats; that the sale was expressly subject to a [172]*172survey which was afterwards made ; and that' the lines in the deed were in exact accordance with that survey, the lines having been drawn upon the bank, in order to meet the objections then stated. These facts, taken with the particular description of the deed, would seem to indicate that it was the intention to exclude, rather than include, the flat lands in the making of the deed to Farrell. The force of these facts, if shown, would, of course, be for the jury; but the evidence, we think, should have been received, and submitted to their consideration.
Nor can we discover any good reason for excluding Lydia P. Palmer as a witness for the purpose stated. As the heir at law of Hannah Jones, she was originally entitled to the undivided one half of the property in dispute. She, with her husband, joined in the deed to Farrell, and, as the deed and the title to the lands in dispute, as affected thereby, constitute the thing or contract in action, she may well be said to have been a party thereto. The true force and effect of this deed is the “ subject in controversy,” and to that deed she was a party. It is equally true that the other grantors in the deed are dead, and their right thereto or therein has passed by their own act, or the act of the law, to the party on record who represents their interest. The witness was wholly without interest. She had, by a deed of conveyance, disposed of her entire right, and entered into no covenants against any outstanding title. She might ultimately, perhaps, be liable for part of the costs, but this, by § 4 of the act of 1887, was not ground for her incompetency. This, in view of the recognized policy of the statute to exclude the surviving party to the transaction, whether interested or not, is perhaps unimportant; but there are other considerations upon which the competency of the witness is to be determined. She was called, not against the interest of the parties deceased, but in support of that interest; and Farrell, the adverse party, was alive, and competent to testify upon the same matters. If the witness is within the provision of clause (<?) at all, she comes clearly within the exception to that clause: “ unless the proceeding is by or against the surviving or remaining partners, joint promisors, or joint promisees of such deceased or lunatic party, and the matter occurred between such surviving or remaining partners, joint promisors, or joint [173]*173promisees, and the other party on the record, or between such surviving or remaining partners, promisors, or promisees, and the person having an interest adverse to them; in which case any person may testify to such matters.” The action is brought by two living parties, one of them representing the interest of Lydia P. Palmer, the surviving or remaining party to the deed, and the other representing the interest of Mary Palmer, who is dead. The assignees of Mary’s interest cannot complain of inequality, as the witness was called in their behalf; and Farrell cannot complain, as he was also competent as to all “ such matters ” as the witness might embrace in her testimony.
The judgment is reversed, and a venire facias de novo is awarded.