Watson v. Peters

• Decision Date: 09 April 1873
• Court: Michigan Supreme Court
• Parties: James Watson v. William Peters

26 Mich. 508

James Watson v. William Peters

Supreme Court of Michigan

April 9, 1873

Heard January 13, 1873; January 14, 1873.

Error to Bay circuit.

Judgment affirmed, with costs.

Maxwell & Hyde, for plaintiff in error.

Henry H. Swan, A. B. Maynard and C. I. Walker, for defendant in error.

OPINION

Cooley J.

This is an action of ejectment, brought to recover premises described as "that part of a piece of land formerly called Sand Island, lying in the Saginaw river, being part of fraction number three, of section twenty-eight, in township fourteen north, of range five east, being that part of said Sand Island lying between the south line of the John Riley reservation, in said township fourteen north, of range five east, and the line between lots two and three, of block number two, on the plat of Portsmouth, in common use, as extended westward to the main channel of the Saginaw river." The defendant was in possession of block one, and of lots one and two, on block two, on said plat of Portsmouth, claiming title thereto through conveyances from the original proprietors, and the land demanded lies between the lots so possessed by him and the main channel of the Saginaw river. By the plat the blocks mentioned front on the river and the westerly line of the blocks on the plat is drawn along the shore line of the river. Water street bounds these blocks on the east. The plaintiff claims what is called in his declaration Sand Island, under conveyances from the original proprietors, made, as the defendant claims, after they had conveyed blocks one and two aforesaid. The deed to the plaintiff is of all of said fraction three lying west of Water street; and this he supposes gives him all between Water street and the main channel of the river, not previously conveyed.

From the evidence it appears that the original plat shows a middle ground in front of these blocks, without particularly designating its nature, or showing any definite purpose of the proprietors in respect thereto. The water between this middle ground and the east shore was navigable to a point above blocks one and two. What further appears in regard to the middle ground, we copy from the record: "There was evidence introduced by the defendant, tending to show that the middle ground, called Sand Island, was nearly always under water, usually covered with the waters of Saginaw river, except when the south wind blew; and evidence was introduced by the plaintiff, tending to show that some parts of the said island were formerly always above water, and that it was only entirely submerged during heavy north winds, and during the spring freshets.

"But it also appeared from the testimony, that all the lands described in the declaration in this cause, had always been covered by the waters of said river, to the depth of from one to three feet, excepting only at times when the waters of said river were moved by heavy winds toward the Saginaw Bay, and there by reduced below their ordinary depth, and then only at low stages of water in said river.

"The defendant further proved on said trial, that the parties under whom he claims title to said block one, and lots one and two in said block two, and who claimed title thereto under said deed from Williams and Howard, to said Marsac, and other mesne conveyances, took possession of that part thereof lying east of the centre of said bayou, in the fall of 1853, and commenced the erection of a steam saw mill thereon; and that the said defendant, and those under whom he claims title, have ever since occupied said block and lots under such claim of title, and also claiming as riparian proprietors to the thread of said Saginaw river in front thereof.

"The defendant also introduced evidence tending to show that the parties so claiming title, have ever since the date last aforesaid, used and occupied said middle ground for booming logs, and for lumber docks, etc.; and the said plaintiff introduced evidence tending to show that said occupancy of said middle ground, did not commence until within the last twelve or fourteen years.

"It further appeared in evidence, that the Saginaw river at the point aforesaid, and above and below the same, is several hundred feet in width, and navigable for vessels drawing at least twelve feet of water, and that the main channel thereof is west of the said middle ground, and that the water in the bayou, so called, is shallow at the upper or south end thereof, and has never been navigable for boats or vessels at that point, drawing more than three feet of water, and is sometimes nearly dry; and also, that all navigation of said bayou is now prevented by the filling up of the same between the bank of said river and said middle ground in several places below as well as above the premises of said defendant, and the said filling up has taken place within the last ten or twelve years; but that formerly, and until within the last ten or twelve years, the said bayou was navigable for large vessels, to a point above the lands described in the declaration in this cause."

The circuit judge charged the jury that, "the owner of a lot in this plat, bounded on the stream, has the same ownership as that of the owner as grantee in a deed bounded by the river outside the plat;" in other words, that he owned to the main channel of the river, and consequently the plaintiff could not recover.

This charge presents the main point in the case, though one other is necessary to be considered, as it involves the record of a deed under which the defendant claimed, and which was essential to proof of his title. The record purported to be of a deed from Henry Howard and Gardiner D. Williams to Joseph F. Marsac, and the question raised upon it was, whether the deed was sufficiently witnessed to entitle it to record. The statute required an attestation by two witnesses. By the record the deed would seem to be duly signed, and it was attested as follows:

"Signed, sealed, and delivered, in presence of

"K. PRITCHETTE.

"D. E. HARBAUGH.

"E. N. Davenport, witness to G. D. Williams' signature."

Then followed a certificate of acknowledgment by Henry Howard before D. E. Harbaugh, as justice of the peace of Wayne county, and by G. D. Williams before Thomas Simpson, a notary public of Saginaw county. The first mentioned certificate is dated several months before the other.

Upon the face of this record there is certainly nothing to indicate that the deed was not duly attested. The attestation by Prichtette and Harbaugh is apparently to an execution by both the grantors, and nothing on the face of the papers indicates the contrary, unless it be the fact that Harbaugh took the acknowledgment of one and not of the other. This fact is certainly a little remarkable if he witnessed the execution by both, before either acknowledgment had been taken; and the inference that he attested the execution by one only, is very forcible. But there is no such inference from the face of the papers as to Pritchette, unless the fact of his name appearing above Harbaugh's can be regarded as evidence that he must have signed first, and consequently could not have attested Williams' signature, who appears to have acknowledged, and may therefore be presumed to have executed the deed afterwards. But the date of the acknowledgment of the...