Nichols v. Suncook Manufacturing Co.

Where a deed or grant of land is bounded upon a river not navigable, the boundary line extends to the centre of the stream, unless there is a reservation to the contrary. Adverse possession for twenty years of a tract of land upon a river not navigable, gives title to the thread of the stream.

Petition for Partition, wherein the petitioner alleged that he was seized in fee, as tenant in common with the defendants, of a tract of land in Pembroke, and prayed that partition thereof might be made. An issue was joined upon the pleadings, and a trial had in the Common Pleas. The petitioner introduced several deeds, tracing title to Christopher Osgood and Charles Flanders as the original grantors. On the 4th of June, 1801, Christopher. Osgood conveyed a part of the premises to Charles Flanders, which, in the deed of conveyance, is thus described : “ A certain piece of land in said Pembroke,.near Suncook river, so called, on which said Flanders’ shop now stands, with land on the south side of said shop, sufficient to cut a ditch and build a floom from the ditch in which the water now runs to the grist-mill, with the privilege of taking water from said ditch to carry a trip-hammer and pair of blacksmith’s bellows, not damaging the mill now drawing water from said ditch, with the privilege of passing and repassing from said privilege to the road, without incumbrance.” Charles Flanders, by deed dated June 30,1809, conveyed the above described piece to Lewis & Pratt, and the other part of the premises was conveyed to Lewis & Pratt by said Christopher Osgood, by deed dated August 4,1810, the description being as follows: “ A certain piece of land, on which the west end of their paper-mill stands, being the width and ten feet in length of said mill. Said mill stands near Joel Fox’s blacksmith-shop, in Pembroke. Also the land on which the paper-house stands, which paper-house adjoins to the east end of the aforesaid paper-mill, not obstructing or damaging the course of the water running in the ditch under said house.” From Lewis & Pratt the premises passed, through several mesne conveyances, to Matthew Sargent, the petitioner’s immediate grantor. Sargent, on the 29th of February, 1848, conveyed the “ one undivided half part of a certain piece of land and paper-mill on the same, and all the water power, situated on Suncook river, in Pembroke village, connected therewith, being the land and paper-mill formerly occupied by Leonard Pratt,” &c. The principal controversy between the parties related to the boundary on the south-west side. The petitioner offered evidence tending to show that Lewis & Pratt, and others under whom he claimed, had built upon and occupied the land to and upon the Suncook river, and had occupied to and on said river, claiming the river as their boundary, as if they had owned to the river and on it, for more than twenty years continuously ;• the occupation being of a paper-mill built by them, which extended into the edge of the water. The defendants offered no evidence of title, either in themselves or others. The petitioner contended that if he and those under whom he claimed had for more than twenty years occupied and claimed to and upon the river, as if that had been their boundary, claiming the river as their boundary, this would give the petitioner seizin as against his co-tenants and others who had no title. The defendants contended that the boundary must be determined by the construction of the deeds of Osgood and Flanders; that they showed that the premises were not bounded by the river or on it; and that the boundary was not to be affected by the evidence of occupation, as introduced by the petitioner. The court ruled against the defendants, and left it to the jury to find whether the petitioner and those under whom he claimed had occupied and claimed as contended for by him. The jury returned a verdict for the petitioner, which the defendants moved to set aside, for alleged error in the decisions of the court.