Redden v. Smith — 5 Del. 389

Majority

p. 389

NEHEMIAH REDDEN vs. JOSEPH SMITH.

Headnote

An award that a line shall be run one pole from the river or “ branch,” means a pole from the middle of the stream, if there be nothing to qualify it.

This was an action of trespass on the case, for cutting timber on

p. 390

plaintiff’s land. A former trial respecting the same land was had, at the April term, 1851, and resulted in a nonsuit. [See the case of Lessee of Jos. Smith vs. Redden & Wootten, ante., 321.]

After the last trial the parties, who were adjoining land owners, fixed their dividing line by reference, the award directing that the line should be run on the east side of Banciketum branch, “ beginning one pole from said branch,” and extending eastwardly, &c., &c.

The case turned upon a construction of this clause of the award.

Saulsbury and Houston, for plaintiff.

Cullen and Cullen, for defendant.

Mr. Houston

argued, that although a grant to a river goes to the middle of the stream, a grant to a pole from a river, is a pole from the margin of the river; and that the rule of going to the middle thread would not apply to a common branch, which is not a water course, but a swamp, without any distinct thread or running stream.

said that “beginning one pole from the branch” must be held to mean one pole from the middle of the branch; in the absence of any contrary purpose or meaning apparent on the award itself.

On this ruling, the defendant had a verdict.