Pike v. Hood

27 A. 139, 67 N.H. 171

Opinion

Chase, J.

The land in controversy is the island, using the term in a general sense, and not the strip of land between the bank and the thread of the brook. The parties understand that the west bank of one of the channels is the boundary, but they differ as to which channel was intended. If their difference related to the question whether the bank or the thread of the stream was the line, :a consideration of facts not appearing in the case might be necessary for a correct decision of it. The most of the water of the brook, and at times all of it, flows through the easterly channel. That is the main channel. The other is an auxiliary, which furnishes a passage for surplus water in times of freshet. One speaking of Long Pond brook, and having reference to one channel, would be understood to refer to the principal one. If reference’ to the other was intended, some qualifying word would be used to designate it.

Illustrations of a similar use of language are found in cases in which it is held that a boundary of land upon a non-navigable river includes islands situated nearer the bank formed by the land than the opposite bank, the principal channel being regarded as the river. Claremont v. Carlton, 2 N. H. 369; Greenleaf v. Kil ton, 11 N. H. 530; State v. Canterbury, 28 N. H. 195, 219, 220, 221; Nichols v. Suncook Manufacturing Company, 34 N. H. 345, 349; Kimball v. Schoff, 40 N. H. 190; Cessill v. State, 40 Ark. 501; Lunt v. Holland, 14 Mass. 149; Missouri v. Kentucky, 11 Wall. 395. There is no evidence tending to show that the parties did not use the phrase “ Long Pond brook ” according to its ordinary signification when referring to one of its two branches. Under such circumstances it describes the main or easterly branch.

Exceptions overruled.

Carpenter, J., did not sit: the others concurred.