Norcross v. Griffiths

• Decision Date: 06 April 1886
• Citation: 65 Wis. 599,27 N.W. 606
• Parties: NORCROSS v. GRIFFITHS AND ANOTHER.
• Court: Wisconsin Supreme Court

65 Wis. 599

27 N.W. 606

NORCROSS

v.GRIFFITHS AND ANOTHER.

Supreme Court of Wisconsin.

Filed April 6, 1886.

Appeal from circuit court, Rock county.

B. B. Eldredge and William Ruger, for respondent.

J. C. Sloan, Winans & Hyzer, and E. F. Carpenter, for appellants.

TAYLOR, J.

This is an action of ejectment, brought by the respondent to recover a piece of land particularly described in the complaint, and of which the appellants held possession at the commencement of this action, claiming title adversely to the plaintiff and respondent. There are certain facts which are either admitted or fully proven upon the trial.

The first, and a very material fact in the case, is that the land described in the complaint was, at the time of the commencement of the action, a part of the bed of Rock river, and within the city of Janesville.

Second. That it was a part of the bed of said river when the common grantors of the plaintiff and defendants first acquired title to the same by patent from the United States.

Third. That before 1850 the land, of which lot 174 hereafter mentioned is a part, was platted into lots, blocks, and streets as Smith, Bailey & Stone's addition to the city of Janesville, and on such plat the land in controversy was and is a part of lot 174 on the plat of said addition, adjoining and west of the center line of said river.

Fourth. Both plaintiff and defendants agree that in 1850, and before the conveyance hereafter mentioned, under which the defendants claim title to the lands in dispute, A. Hyatt Smith, Timothy Jackman, and Shubal W. Smith, and John L. Kimball were owners in common of the whole of said lot 174 in said Smith, Bailey & Stone's addition.

Fifth. That as such owners of said lot they were owners of the land under said Rock river, lying east of said lot, to the center of said river, and so were the owners of the land in controversy.

Sixth. Both plaintiff and defendants claim title under the said Smiths, Jackman, and Kimball.

Seventh. It was shown on the trial that Rock river in front of said lot 174 is a navigable stream.

Eighth. That on or before the twenty-fifth of June, 1852, Timothy Jackman and Shubal W. Smith had purchased from the other owners above named all their interest in said lot 174, and in the land under the river in front thereof, and were the owners of said lot and land.

Ninth. That on said twenty-fifth day of June, 1852, by warranty deed duly executed and acknowledged by the said owners, Jackman and wife and Smith and wife, they conveyed to Samuel D. Smith a part of said lot 174, described in said deed as follows: “All that certain piece, parcel, or tract of land situate, lying, and being in the village of Janesville, in the county of Rock, and state of Wisconsin, being a part of lot No. 174, in Smith, Bailey & Stone's addition to Janesville, described and bounded as follows, to-wit: Commencing at a point on the southerly line of Milwaukee street in said addition, 145 feet and six inches easterly from the easterly side of River street in said addition; thence southerly at right angles with said Milwaukee street, and parallel to the easterly or river side of the grist-mill now standing on said lot 174, and owned by said party of the first part, and four feet easterly therefrom, to a point 100 feet from the southerly line of said Milwaukee street; thence easterly on a line at right angles with the last-mentioned line, and parallel with the southerly line of said Milwaukee street, 46 feet, to a point; thence northerly at right angles with the last-mentioned line, and the southerly line of Milwaukee street aforesaid, and parallel to the westerly line of the land conveyed, to the southerly line of Milwaukee street; thence westerly along the southerly line of Milwaukee street to the place of beginning,--being the same land on which the brick block lately built by the said party of the second part and one Isaac M. Norton now stands; together with a right of way over the land belonging to said party of the first part on said lot 174 from Dodge street to the south or rear end of the land hereby conveyed, of sufficient width to admit of entering and turning in the rear of the said lot hereby conveyed with a wagon and two horses; together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining: To have and to hold the said premises, with the appurtenances, to the said party of the second part, and to his heirs and assigns, forever, reserving to themselves, nevertheless, all the rights and privileges granted to them by and contained in the covenants and agreements hereinafter contained on the part of the said party of the second part; * * * and the said party of the second part * * * doth hereby covenant and agree * * * to construct, keep, and maintain throughout the foundation of any buildings that now are, or may hereafter be, erected upon the lot hereby conveyed, convenient and necessary arched passage-ways or culverts for the water discharge from the tail of said mill, to be of the capacity of said mill-tail, into which said passage-way the said party of the first part * * * shall forever have access for the purpose of making all necessary repairs to said mill, or for any purpose connected with said mill, and for which it may be necessary to use the said arched passage-ways or culverts.”

Tenth. It is shown that previous to the date of this deed, and on the sixteenth day of August, 1850, the then owners of said lot 174 had entered into a written contract to sell and convey the lands described in the deed above referred to, to the said Samuel D. Smith, for the sum of $1,000 in money, and upon the condition that he should immediately erect a good, substantial three-story brick building on the land described in said contract.

Eleventh. The evidence shows, and the trial judge found, that the said S. D. Smith did erect a substantial brick building on said lot, 46 feet in width, fronting on Milwaukee street, in said city, and extending about 50 feet south from said street, and that the same was completed before the deed to him was executed in June, 1852, as above mentioned.

Twelfth. The trial judge also finds, and the evidence shows, that the east foundation wall of said building at the north end was placed in the water of Rock river about five feet east from the west shore or bank of said river at an ordinary stage of the water, and where the east wall was erected the water in the river was from six inches to one foot deep; that the building erected by Smith, and referred to in his deed, not only covered the bank of the river, but extended at least five feet east of the bank into the river proper, and towards the center thereof; and that the south end of the east foundation wall was about six feet in the water of said river. The difference in distance was caused by the fact that the bank of the river, running south from the north-east corner of said building, bore slightly to the west of a line at right angles with Milwaukee street.

Thirteenth. The evidence shows that the north-east corner of the foundation of the building erected on said land was 4.43 feet further east than it would have been had it been placed just 46 feet east of the starting-point mentioned in the deed, on the line of Milwaukee street, viz., 145 feet and 6 inches east of the east side of River street. The reason that the building was moved east 4.43 feet is explained by the surveyor, Mr. Ruger, who testified that the two calls in the deed--the starting-point 145 feet and 6 inches east of the easterly side of River street, and the other the line running southerly at right angles with Milwaukee street, and four feet easterly of and parallel to the easterly side of the grist-mill then standing on said lot--were conflicting calls; that the line running south and at right angles with Milwaukee street at the starting-point, 145 1/2 feet east of the easterly side of River street, would not run east of the mill four feet; and that in order to make the line running south run at right angles with Milwaukee street, and parallel with and four feet east of the east side of the mill, the starting-point had to be moved 4.43 feet further east, and that it was so moved; and the north-west corner of the building erected by the said Samuel D. Smith is in fact 149.93 feet east of the easterly side of River street.

Fourteenth. That about the time the said grantors conveyed this parcel of land to the said Samuel D. Smith they conveyed a part of the bed of the river, 20 feet in width and 100 in length, to one Peter Meyers, lying immediately west of the center line of said river and in front of the lands conveyed to said Samuel D. Smith, the west line of said land conveyed to said Meyers being about 86 feet east of the east line of the land conveyed to Samuel D. Smith, as said line is described in the deed to him. The whole of the land between the land conveyed to Smith and that conveyed to Meyers was, at the time of said conveyance, a part of the bed of Rock river, and entirely covered with the waters of said river.

Fifteenth. There is no evidence that any claim was made by the grantors of said Samuel D. Smith, or those claiming under such grantors, to the bed of the stream in front of the lot conveyed to said Smith, and lying between said lot and that part of the bed of said stream conveyed to said Meyers, after the conveyance to said Samuel D. Smith, until shortly before the commencement of this action.

Upon this state of facts the only material question in the case is whether the deeds of Jackman and wife and Smith and wife to Samuel D. Smith, bearing date June 25, 1852, conveyed the lands in question to the grantee, Samuel D. Smith. The whole case depends upon the construction which must be given to that deed. If that deed conveyed the land in dispute to Samuel D. Smith, then the plaintiff has failed to show any title to the land in controversy. It is wholly...