#### Hayes’s Ex’or and Others v. Bowman.

April, 1823.

Deeds — Conveyance of Land Bounded by Water— What Passes.† — Where land is conveyed which is *166■bounded by a water-course not navigable, such conveyance carries with it the title to a moiety of the bed of the water-course.

Appeal from the Staunton chancery court. The case was in substance as follows:

Bowman purchased of Hayes and Bumgardner, a tract of land lying on the South river, near Waynesborough, on which there was a valuable mill-seat. The deed from Hayes and Bumgardner to Bowman, conveys the land to the “middle of the river.’’ This tract had formerly belonged to Estill, being part of a larger tract lying on both sides of the river. Estill conveyed the land in question to trustees, describing it as “lying on the west side of the South river, and bounded by the river,”&c. The land being sold under this deed of trust, Hayes and Bumgardner became the purchasers, and the trustees conveyed to them, to the middle of the river; and they conveyed to Bowman, as before-mentioned, by the same description. Bowman gave his bonds to Hayes and Bumgardner for the purchase money; which were assigned to other persons.

*Bowman applied to the county court of Augusta for- leave to build a mill and erect a dam across the river; but was opposed on the ground, that no part of the bed of the river was either in him or the commonwealth. It was contended, that although Hayes and Bumgardner had conveyed to him one-half of the bed of the river, no part of it had been conveyed by Estill to them. This controversy was depending at the time of Bowman’s filing his bill.

Suits were brought against Bowman on his bonds for the purchase money, which had been assigned by Hayes and Bum-1 gardner to various persons; and judgments were obtained. Bowman filed a bill of injunction to arrest the judgments, and made Hayes and Bumgardner, and the assignees of the bonds, defendants. The injunction was granted.

The several defendants then filed their answers, alleging various grounds of eq-¡ uity, which, as they are not noticed in the decisions of this court, it is unnecessary to mention. •

The chancellor decreed, that the injunction should be dissolved as to the defendant Moffitt, (one of the assignees) the complainant having waived his equity, if he had any against him: that, as to the defendant Ramsay, (another of the assignees,) he must submit to whatever equity attached to his bond in the hands of Hayes and Bumgardner, the original obligees;, and the complainant being entitled to recover of them, whatever damage he may have sustained by the loss of his mill-seat in consequence of the defect of title in any part of the bed of the water-course, an issue at law was directed, to ascertain the damage which Bowman had sustained by the defect in his title to one-half of the bed of the water-course aforesaid.

The jury returned a verdict, that Bowman had sustained damage to' the amount _ of $3000, by reason of the defect in his title above-mentioned.

*The court decreed, that the injunction as to Ramsay, should be made perpetual, and his bond for 1441. delivered up to be cancelled; and that the representative of James Hayes, (who had died,) and Jacob Bumgardner, should pay to the plaintiff $1,316, that being the balance of damages assessed by the jury, after deducting therefrom, the aforesaid sum of 1441., with interest thereon, from the time when it was due.

The defendants appealed to this court.

Call, for the appellants.

Leigh, for the appellee.

It was said for the appellants, that Bowman had a good title to the middle of the bed of the river, and therefore, there was no ground for his injunction. The deed from Hayes and Bumgardner, conveyed to the middle of river in express terms; and although the deed of trust from Estill described the tract as “lying on the west side of the South river, and bounded by the river, &c.,” yet the principles of law would extend the conveyance to the middle of the river, in such a case as this. It is a well established principle, that the proprietor of land contiguous to a stream not navigable, is entitled to half the bed of the stream, (a) If it should be objected, that Estill owned both sides of the river, and only conveyed the land bounded by the river, the answer will be that such a conveyance, by the authorities referred to, includes one-half the bed of the river.

In reply, it was said, that admitting the general principle, it would not embrace a case like the present, where Estill was originally the proprietor of both sides of the river, and only conveyed the land on one side, bounded by the river. He *167certainly had a right to convey as much or *as little as he pleased; and the words which he has used, are as explicit as possible, to shew his intention to convey only to the river bank.*

†

Deeds — Conveyance of Land Bounded by Water— What Passes. — Where land is conveyed which is *166■bounded by a river or other watercourse not navigable. such conveyance carries with it the title to a moiety of the bed of such river or watercourse. Barre v. Fleming, 29 W. Va. 319, 1 S. E. Rep. 735, citing the principal case and Mead v. Haynes, 3 Rand. 33, as its authority.

There is no doubt where the commonwealth or an individual having title to lands lying on both sides of a watercourse, not navigable, grants the lands lying on one side thereof and bounded thereby, that the grantee gets by such grant a moiety of the bed of the watercourse, unless the grant clearly excludes such construction of it. Camden v. Creel, 4 *W,*Va. 366, citing the principal case; Mead v. Haynes, 3 Rand. 33; Crenshaw v. Slate River Co., 6 Rand. 245. To the same effect, the principal case is cited in Carter v. Railway Co., 26 W. Va. 654.

To the point that, in a river not navigable, the owner of the soil on either side is proprietor of the bed to the middle of the stream, the principal case is cited in Ravenswood v. Flemings, 23 W. Va. 64; Com. v. Garner. 3 Gratt. 696.

And, in Mead v. Haynes, 3 Rand. 35, it is said; “By the common law. every river, so far as it ebbs and flows, belonged to the crown; but rivers, not navigable, were the property of the proprietors of the lands on both sides of the river; that is, if both sides of a river not navigable belonged *to one owner,*the *whole river was*his; if different persons owned the lands on each side of the river, the bed belonged to them in moi-ties. Hargraves’s Law Tracts. 5. Davies’s Reports, 152, 155. In *Hayes v. Bowman,*1 *Rand.*417, this doctrine was affirmed to be law in Virginia, subject to the exceptions made by statute, and upon the authority of Call’s Manuscript Report of Home v. Richards. ”

The principal case is also cited with approval on this subject in Brown Oil Co. v. Caldwell, 35 W. Va. 99,13 S. E. Rep. 43. ’

(a)

 Hargrave’s Law Tracts, p. 5; Davis’s Rep. p. 152, 155; Home v. Richard, Call’s M. S. Rep.

*

Many other points were made; but as *tbe decision*turns entirely on the general question, it is not necessary to mention them. — Note in Original Edition.

JUDGE CABELL,

April 8. — delivered the opinion of the court.§

The main question in this case, depends on the construction of the deed of trust of the 27th March, 1802, executed by Estill and wife, to Joseph Bell and others.

Where the commonwealth, having title to lands lying on both sides of a watercourse not navigable, grants the lands lying on one side thereof, and bounded thereby, it is universally admitted, that such grant carries with it, the title to a moiety of the bed of the water-course. There can be no reason assigned, why this rule, so1 just in relation to grants by the commonwealth, should not equally apply to conveyances by individuals. If it be the wish of the grantor not to convey the bed of the stream or of any part thereof, it is easy for him to exclude it, by the use of words, proper for that purpose. In the absence of such words, the moiety of the bed of the stream, passes by the conveyance. On this principle the court is of opinion, that the moiety of the bed of the river, passed by the deed of trust aforesaid, and by the deed under which the appellee Bowman claims; and that the said appellee, had no right to resist the payment of the bonds given by him for the purchase money. The decree of the chancellor is therefore reversed, the injunctions dissolved, and the bill dismissed.

§

 .Judge Bkooku absent.