Rivers v. Thomas.

tervailing proof, cannot be held bound in any other or different form." In this view, the decision is in accord with the general principle recognized.

In Clouston v. Barbiere, 4 Sneed, 336, the suit was by the payee against the indorser as a joint promisor with the maker. A witness proved that the note was given for land sold by the payee to the maker, that the defendant, in the presence of the payee, agreed to go the maker security and upon this consideration the payee agreed to give up any lien on the property sold. The witness was, however, not present when the notes were given. The learned judge who delivers the opinion of the court in this case, holds that the word "security" might apply as well to an indorsement as to a liability as co-maker of the note, and as the defendant did become indorser, instead of surety on the face of the paper, he must be treated as an indorser. This case, he says, "can only be regarded as a blank indorsement of commercial paper, and as such, could only be filled up with a general indorsement, leaving to the indorser all the advantages and liabilities incident to that character and none other or different." Conceding the correctness of this conclusion, the decision was also in accord with the principle recognized by our courts.

I am free to say that while conceding the correctness of the law as announced in these opinions, I think it was wrougly applied to the facts of these cases. There was evidence in both of them to show knowledge on the part of the indorsers of the facts of the case, and an intention on their part to become directly bound to the payees for the price of the consideration received by the makers of the notes on the faith of the indorsements. If they could not be held liable as indorsers, and it is conceded in the first case that it could only be done by indirection, what Senator Bockee styles a "sort of finesse and shuffling game," and it seems to be taken for granted in the last case that it could not be done at all, then, upon the universally recognized maxim "ut res magis valeat quam pereat," they ought to have been held as guarantors or co-makers. At any rate, there was enough evidence in both cases to have gone to the jury upon the question of intent, and their verdict would doubtless have been, as it was on the first trial in the Brockway case, in favor of the plaintiffs.

The case before us differs from all of these cases we have beeu considering in two respects. In the first place the indorsement was made after the maturity of the note, and, therefore, the pre

Branham v. Turnpike Co.

sumption of law arising from a blank indorsement at the inception of negotiable paper does not arise. In the second place the indorsement was made in the presence of the personal representative of the payee, upon a new consideration then passing, and under such circumstances as to demonstrate that the indorser intended to become bound directly to the payee.

In his masterly summary of the liabilities created by irregular indorsements, Mr. Justice CLIFFORD says that if the indorsement be subsequent to the making of the note, at the request of the maker pursuant to a contract with the payee for further indulgence, the indorser is liable as guarantor. Rey v. Simpson, 22 How. 341. In Vermont the courts hold the indorser liable as a co-maker. Strong v. Riker, 16 Vt. 554. All the other cases which I have been able to find treat such an indorser as a guarantor. Irish v. Cutter, 31 Me. 536; Tenney v. Prince, 4 Pick. 385; Beckwith v. Angell, 6 Conn. 315; Camden v. McKoy, 3 Scam. 437; Oakley v. Boorman, 21 Wend. 588; Greenough v. Smead, 3 Ohio St. 415; Sto. on Prom. Notes, S$ 133, 477; 1 Dan. Neg. Instr. 715. I find no case where he has been treated simply as an indorser. And even if the presumption of law arising solely from the indorsement of a past due note were the same as in the case of an indorsement at the inception of the note, the facts and circumstances attending the indorsement in the present instance would remove the presumption and bring it within the authorities.

The decree of the chancellor must be reversed with costs, and a decree entered here in accordance with this opinion.

BRANHAM V. TURNPIKE CO.

(1 Lea. 704.)

Deed-boundaries— middle of stream.

A conveyance of land bounded by a creek extends to the center of the main branch if an island divides it into unequal branches.*

BILL

ILL to test the ownership of an island. The opinion states the facts.

See, as to construction of grant bounded on a stream, Lovingston v. County of St. Clare (64 Ill. 56), 16 Am. Rep. 516, and note, 524.

Branham v. Turnpike Co.

Wilson & Vertrees, for complainants.

Scay & Blackmore, for defendants.

COOPER, J. Bill filed to test the ownership of an island in Bledsoe creek. The complainants own the land on the west bank of the creek, and elaim the whole island as a part thereof. The defendant owns the land on the east bank, and claims about one-half the island.

From a period whereof the memory of man runneth not to the contrary, the island in controversy seems to have been in existence, varying at times in heighth and size, but always visible at ordinary stages of the water, and only covered at high floods. From the 6th of January, 1847, when the title of the complainants begins, the witnesses concur in thinking that the island has been increasing, in width toward the west, and in length down stream certainly, and perhaps up stream also. All the witnesses who speak on the point agree in a fact which seems to militate against the supposed extension up stream. They say that there are some large sycamore trees at the upper end of the island, standing upon roots now high out of the water, which must have antedated the date mentioned. The probability is, that the increase in length has been principally down stream, and in width toward the western bank, that bank being low and alluvial, while the opposite bank is principally a high bluff. The stream is in one body from an old dam several hundred yards above the island and separates into two branches at the head of the island, the branch on the east curving gently against the foot of the bluff, while the western branch runs at present almost at right angles across the head of the island. All the witnesses agree that the eastern branch is now, and has been for many years, the main stream, the western branch toward the head of the island becoming dry, or nearly so, in very low water. There is a difference of opinion among the witnesses as to whether the two branches have always been of the same relative size. Several witnesses say that the western branch was at one time the largest, but the weight of testimony is that the main stream has always been to the east of the island, and has always occupied the existing bed. There is testimony tending to show a gradual washing away in freshets of the western bank until stones were so thrown as to prevent further encroachment. I am inclined to think the statement

Branham v. Turnpike Co.

of John Branham, Sr., one of the complainants, in his deposition, is substantially correct. "The west bank," he says, "has been constantly receding, how far I can't state. With this exception, and the fact that the island was not as long as it is now, the appearance of the creek, banks and island is about now as it was when I went there." The middle line between the two banks as they now exist bisects the island, lengthwise, into two nearly equal parts.

The grant of land by the State, bounded by, on, or along a stream not navigable, carries title to the center or thread of the stream and to an island lying next to that bank between it and the middle line. Stuart v. Clark, 2 Swan, 10; Lunt v. Holland, 14 Mass. 149; Luce v. Carley, 24 Wend. 451; Claremont v. Carleton, 2 N. H. 369. The same rule applies to a private grant, where the grantor owns the entire stream. Hayes v. Bowman, 1 Rand. 417; King v. King, 7 Mass. 496. The thread of a stream is the middle line between the shores, irrespective of the depth of the channel, taking it in the natural and ordinary stage of the water, at its medium height, neither swollen by freshets nor sunk by drought. If there be an island on one side of that line, or if an island form there, it belongs to the owner of the bank to which it is nearest, and the filum aquæ is in the center of the stream beyond. Missouri v. Kentucky, 11 Wall. 395; Walker v. Board of Public Works, 16 Ohio, 544. If the island be situated, or be formed so as to cover the middle thread, it would belong in severalty to the owners of the land on each bank, according to the original dividing line or filum aquæ, curving with the shores. Ingraham v. Wilkinson, 4 Pick. 274; Deerfield v. Arms, 17 id. 41; McCullough v. Wall, 4 Rich. 68. The existence of an island, whether old or newly formed, necessarily creates two streams, each of which will have its own filum aquæ as to that part of the stream in relation to any new acquisition of title to land bordering thereon. Hopkins Academy v. Dickinson, 9 Cush. 544. And gradual accretions to such an island, as to any new titles, would go to the previous owner. Saulet v. Shepherd, 4 Wall. 508.

At the time the parties to this suit acquired their respective titles to the lands on either bank, the island in controversy was in existence. The defendant claims under a chancery decree made in December, 1873, directing the clerk and master to make title in accordance with a survey, the calls of which are for courses and

Branham v. Turnpike Co.

distances, fixing the line, it seems, at low-water mark on the east bank of the creek. Such a boundary, we have seen, would, at most, carry title only to the thread of the eastern branch of the creek. It is conceded, therefore, that the question is whether the complainants own the whole island.

In 1828, and again in 1834, a deed seems to have been made of the land on the west bank of the creek, the boundary lines of which call for low-water mark on the eastern bank. The deed, however, to which complainants trace back their title, conveyed the land on the west bank, above the old dam and extending down below the island, giving the creek boundary thus: "Beginning at a stake in the edge of the creek, thence down said creek, with its several meanders, including all the creek until it passes where the old dam stood, and then half the creek to a stake in said creek." Afterward, Jameson, to whom and the elder Branham the deed had been made, conveyed his interest in the property to the complainant, John T. Branham, the line crossing the creek above the dam to the east bank, and running down that bank so as to include the whole creek to the dam. The deed then proceeds thus: "Thence with the mill dam to the center of the creek, thence down the center of the creek with its meanders, to a point on a straight line with the first named line, so that a line running north 2 1-2° west from the middle of the creek will strike the beginning."

The last deed, it will be noticed, calls for a line down the center of the creek with its meanders. If the stream is in one body the call is for the filum aquæ at the ordinary stage of the water. If the stream divides into two branches, the call may be for the filum aqua as it would have been if the island, which separates the waters, had not existed; or it may mean the filum aquæ of the main channel. In Missouri v. Kentucky, 11 Wall. 401, the Supreme Court of the United States take for granted that the boundary of States which calls for the "middle of the river Mississippi," means the middle of the main channel, not the filum aquæ measuring from the outside bank on the one side to the bank on the other side. The inconvenience of a different construction is obvious, for it might result in running the line through islands in every imaginable direction. The same inconvenience, magnis componere parvis, might follow the construction of a private grant between individuals. The grantor, unless he plainly said so, could hardly, by a call for the center of a stream, be held to intend to divide an island into