Boardman v. Scott

• Decision Date: 29 March 1897
• Citation: 30 S.E. 982,102 Ga. 404
• Parties: BOARDMAN v. SCOTT.
• Court: Georgia Supreme Court

30 S.E. 982

102 Ga. 404

BOARDMAN v. SCOTT.

Supreme Court of Georgia

March 29, 1897

Syllabus by the Court.

1. Under a deed bounding the land therein conveyed by an artificial pond, which had been in existence for more than 40 years, and which had thus become a permanent body of water and was still being kept up and maintained as such, its waters, however, ebbing and flowing, from time to time, so as to leave a margin of land between its high and low water marks, the line of the land so conveyed did not extend to the thread of the stream from whose waters the pond was formed but only to the low-water mark of the pond at the date of the execution of the deed.

2. In view of the evidence introduced at the trial, the court erred in adjudging, as matter of law, that the true boundary between the contending parties was the high-water mark of the pond as it existed on the 15th day of August, 1883.

3. The case should be tried again, in the light of the law as announced in the first headnote; and at the next hearing it can be investigated and determined whether or not, for any reason, depending upon the particular facts as then made to appear, the high-water mark, rather than the low-water mark should be treated as the true dividing line between the possessions of the plaintiff and the defendant.

4. In no event, under the facts appearing in the record now before this court, can the plaintiff, as against the defendant, claim title to the additional land covered by water in consequence of the raising of the dam after the present litigation began.

Error from superior court, Bibb county; W. H. Felton, Judge.

Action by Minnie L. Scott against J. L. Boardman. Judgment for plaintiff. Defendant brings error. Reversed.

Hill, Harris & Birch, for plaintiff in error.

Dessan, Bartlett & Ellis, for defendant in error.

FISH J.

This litigation arises out of a dispute between the proprietors of adjoining tracts of land over the boundary between their respective possessions. The land of the defendant, Boardman, is described in his deeds as being bounded on the south by McCall's mill pond. Under this description of his southern boundary, Boardman claims that his title extends to the center of the pond, through which he claims there flows a well-defined current. On the other hand, the plaintiff claims that Boardman's title extends only to the high-water mark of the pond. It is admitted by both parties that the plaintiff's ancestor, under whom both of them claim, had title to all the land adjacent to and covered by McCall's mill pond, as well that portion now owned by Boardman as that part owned by the plaintiff; that the title to all of said land is now in the plaintiff, except in so far as it was devested by the deed of Sarah McCall and E. J. Davis to Henry B. Davis, dated August 15, 1883, conveying the land now owned by Boardman to Henry B. Davis, from whom Boardman derives his title; and that Boardman has title to all the land covered by said deed. The evidence shows that H. B. Davis conveyed the land covered by his deed to H. T. Powell, on August 18, 1886; and on May 10, 1887, Powell made a deed to the same to Boardman, the defendant. Each of these three deeds purports to convey 30 acres of land, more or less, the southern boundary of which is described as being "McCall's Mill Pond." According to the evidence, there is no perceptible current in the pond when the water is up, but, when the water is down, there is; and the water on the edge of the pond rises and falls to the extent of whether the pond is full or low. The pond has been in existence since prior to 1840. The Central Railroad & Banking Company, in 1840, made a contract with the then owner of the pond, by which it agreed to keep up the dam of the pond, in consideration of a "right of way" across it; and during that year it built its track across the top of said dam, and it has been in possession of this "right of way" and track ever since. The dam washed away once, and burst out once, and the railroad company restored it. Since the commencement of this litigation, the plaintiff has raised the height of the dam one foot, which has caused a small amount of additional land to be overflowed. In the opinion of the only witness who testified on this subject, the whole amount of land submerged by reason of the raising of the pier head was not over an acre.

1. The boundary question raised in this case is an interesting one which is now for the first time before this court. Therefore, and because of the conflict of authorities, we shall not content ourselves with mere citations which might sustain our rulings, but will fully discuss the subject. It is well settled both by the common law and the decisions of the courts of this country that, where land is bounded by a nonnavigable stream, the boundary extends to the center, or thread, of the stream. Such has ever been the law in this state. Hendrick v. Cook, 4 Ga. 255; Jones v. Water Lot Co., 18 Ga. 539; Stanford v. Mangin, 30 Ga. 355; Civ. Code, § 3058. While under the common law a navigable stream was one in which the tide ebbed and flowed, in this state it is a stream capable of bearing upon its bosom, either for the whole or part of the year, boats loaded with freight, in the regular course of trade. Id. § 3059. Whether, where land is described as being bounded by a natural lake or pond, the title of the grantee extends to the center of the pond or lake, is a question upon which the authorities, as we have said, are by no means harmonious, there being much respectable authority upon either side of it. But we think the decided weight of authority sustains the proposition that, where a deed bounds the premises therein conveyed by a natural lake or pond, the title of the grantee does not extend beyond the low-water mark. Ang. Water Courses (6th Ed.) § 41; 3 Washb. Real Prop. (5th Ed.) p. 443; Gould, Waters, § 203; Devl. Deeds, § 1026; 4 Am. & Eng. Enc. Law (2d Ed.) p. 832; 6 Lawson, Rights, Rem. & Prac. 2908; Tyler, Bound. 70; Waterman v. Johnson, 13 Pick. 261; West Roxbury v. Stoddard, 7 Allen, 167; Nelson v. Butterfield, 21 Me. 238; Jakeway v. Barrett, 38 Vt. 323; Hathorne v. Stinson, 12 Me. 183; Bradley v. Rice, 13 Me. 200; Wood v. Kelley, 30 Me. 47; Paine v. Woods, 108 Mass. 170; Boorman v. Sunnuchs, 42 Wis. 233; Diedrich v. Railway Co., Id. 248; Trustees v. Schroll, 120 Ill. 509, 12 N.E. 243; Stevens v. King, 76 Me. 197; Mansur v. Blake, 62 Me. 38; State v. Gilmanton, 9 N. H. 461; Delaplaine v. Railway Co., 42 Wis. 214; Seaman v. Smith, 24 Ill. 521; Noyes v. Collins, 92 Iowa 566, 61 N.W. 250. We think that this view is not only supported by the weight of authority, but also by sound reason. If the common-law rule which is applied to land bounded by a stream is applicable to land bound by a lake or pond, then every lake or pond which is surrounded by separate tracts of land, belonging to different owners, some of which about upon it at each end, and some at each side, will have to be supplied with, at least, two imaginary threads of streams, which will intersect each other, at right angles, in the center of the body of water, and the side lines projected into the water to find a filum aquæ for one proprietor will intersect the similar outgoing lines of another proprietor; and if there are several of such tracts at each end, and several at each side, the side lines of one proprietor may intersect those of several other proprietors, so that land under water may be included within the lines of two, three, or even more ostensible owners. Let us suppose, simply for the sake of easy illustration, that there is a natural lake or pond, which is perfectly square, currentless, and the marginal lines of which run with the cardinal points of the compass. A. owns all the land which abuts upon the lake at the north; B. all that touches it at the south; and C. and D., respectively, own all the land at the east and west sides of the same. The land of each of the four proprietors is described as being bounded, on one side, by the lake. If the rule that we are discussing is to be applied to lakes and ponds, as to A. and B. the thread of the stream is an imaginary straight line running due east and west, through the center of the lake; while as to C. and D. it is an imaginary straight line running exactly midway of the lake, north and south, and necessarily intersecting, at right angles, the filum aquæ made for the purpose of bounding the tracks of A. and B. Does A. own one-half of the bed of the lake, to the exclusion of C. and D., or do the two latter, taken together, own all the land under the water, to the exclusion of the two former? We know that there is authority for holding that, when an attempt to apply the common-law principle relative to streams to a lake or pond develops such complications, the land under the water should be divided ratably between the different shore owners. Taking this view in the case put, a modification of the principle might be adopted by drawing two diagonal lines from the angles of the lake, intersecting each other at its central point, and holding that each of the four proprietors is entitled to the bed of the lake within the triangular space thus formed, immediately in front of his shore line, and to no more. But it is evident that each proprietor would then be deprived of one-half of the land covered by water to which he would be entitled under the application to his boundary alone of the rule, "Usque ad filum aquæ." If, however, we gradually increase, upon each side of the lake, the number of shore owners, it will be seen that the difficulty of adopting even a modification of the rule, which will be fair and just to all parties whose interests conflict with each other, will become greater and greater, soon...