pose of gathering ice from its surface for commercial purposes, and two actions have been commenced against it by the plaintiffs, one for the recovery of the premises and the other for the recovery of damages for their unlawful invasion.

The pond is a small natural lake, bounded on the east and west by mountains, and on the north and south by very low swamps. It is fed by two streams from the south, one of which is a little brook at the southwest corner that empties into the swamp and loses its identity there before it reaches the pond; the other is at the southeast corner, constituting a small, well-defined stream at its mouth. The outlet is Muddy Brook, at the northeast corner, and that is a lazy, sluggish brook, running to the north with very little descent.

The pond is shaped like the bowl of a spoon, and is sixteen feet deep in places, while the outlet is four feet deep. It has no thread, and possesses none of the characteristics of a stream. There is no current and can be none, and the finding of the trial judge on that subject is against the evidence and against the possibility. With two small streams from cpposite points coming from a low swamp, and a slow outlet on the northeast corner only four feet deep, and a pond sixteen feet deep in the centre, there can be no current, and no thread. There is, of course, a general movement of the water towards the outlet, but it is imperceptible, and the pond is not the widening or spreading out of a stream, and it is not the confluence of two streams, because one of the streams from the south never reaches the pond in the shape of running water, neither was the pond ever called Muddy Brook; that notion is insinuated into the points of the respondent on this appeal and seems to have been imbibed by the judge, but it is entirely erroneous. The conception was extracted from a deed of conveyance from Margaret Oglivie to Abner Crosby, for 200 acres of land on the east side of the pond, the boundaries of which, beginning at a hickory tree twenty chains and thirty-four links east of Muddy Brook, have this for the third course, to wit: "North sixteen degrees west, four chains and seventy-nine links to Muddy Brook," but that this language indicates the outlet and not the pond is shown conclusively by the words immediately following, which are "and down the same as it runs until it bears due west from the aforesaid hickory" (the place of beginning)..

Moreover, in the year 1813, a deed of conveyance was made by the same family to Joshua and Samuel Mabie for land on the west side of the pond, which contained this language, in the description of the premises after reaching the pond on the west side, then northerly along said pond to the outlet thereof, that is Muddy Brook, showing that the pond and the brook were not identical.

Neither of these subjects, however, are important in the solution of the problem presented by this appeal. The paramount and controlling question is whether the plaintiffs own the bottom of the pond, and a complete understanding of that dispute will require the statement of some facts.

Hinckley Pond was included in the grant of land from King William III to Adolph Philipse, dated June 17, 1697, and then

for the first time the title was vested in an individual owner. Let there be no mistake about the character of this body of water. It is a pond, and not a stream of water, and the rules of law applicable to streams will have no application to this case.

The trial judge has found that "the premises in question consists of the water and land under water of a natural pond or lake, sometimes called Hinckley Pond and sometimes called Croton Lake, and are about half a mile long and a little less than a quar ter of a mile wide in the broadest part, oval in shape and covering over forty-five acres." He also found as follows: "The premises in question are a natural pond or basin, the confluence of two streams, Muddy Brook and East Inlet flowing into it at the southerly end with an outlet, Muddy Brook at the northerly end."

The plaintiffs in this action are the successors of the patentee, and if the title to the land in dispute has not passed from the family, the premises belong to them.

The predecessors of the plaintiffs have sold and conveyed all the land surrounding the pond to different persons by deeds which describe the premises they convey with precision, and in most cases by exact courses and distances, and, with but one exception, when the lines run along the pond they are by compass directions between monuments on the side of the pond like this: "Beginning near the south side of a large rock on the west side of Hinckley Pond; thence running south, sixteen degrees west, three chains and sixteen links along said pond; thence south, nine degrees west, four chains and sixty links to a pine tree stump." The exception to the boundaries by courses and distances is found in the deed to Joshua and Samuel Mabie already mentioned, and in that deed the course is northerly along the pond.

It is now the insistence of the defendant that each of the deeds for the land bordering upon this water operated to convey the land to the center of the pond, and, therefore, the plaintiffs have no title to the land covered by its waters. Pausing here for a moment, in view of such contention, it becomes appropriate to inquire whether the predecessors of the plaintiffs ever lost the title to the bed of this pond.

The owners conveyed a portion of land by definite boundaries, and there is nothing in the deeds to denote an intention to buy or sell any land not included within the boundaries expressly defined, and there is no principle of law to justify the grantee in going beyond the boundary line, and taking another parcel. He cannot claim by force of his grant, and if the doctrine for which the defendant contends is to prevail, the acquisition by construction and operation of law might exceed what was obtained by express grant. It is a fundamental principle of law that one parcel of land not mentioned in a deed cannot pass as an appurtenant to another distinct parcel expressly granted by precise and definite boundaries.

If all the parcels of land conveyed around this pond by the predecessors of the plaintiffs were protracted according to the description in the deeds, all the land called for by his deed would be allotted to each grantee, and the pond wou'd remain, and thus

it is demonstrated that the premises in question were not embraced in the deeds, but are excluded therefrom by the terms of the descriptions, which manifests a plain intention to grant and receive a specified quantity of land specifically described.

There is nothing in these deeds to indicate that the parties intended more than they said, and the presumption of law is that the title remains in the original proprietors until such presumption is overcome. There is no rule of the common law that half of a stream shall pass by a grant of the adjacent land. All the law does is to indulge a presumption in favor of a shore owner in the absence of evidence. The claim of the defendant is interposed by virtue of the common law, but that system of jurisprudence has been much modified in its application to our lakes, because in England it was confined to navigable rivers and the sea. We can indulge no inference for the purpose of enlarging the grants of the plaintiffs' predecessors, for the law makes no intendment concerning such grants. The grantees take to the lines prescribed by the deeds, and their limits can be extended no further by construction. Presumption is never entertained to enlarge an estate, and a deed cannot be made to operate on property which one party did not intend to purchase, and the other party did not

intend to sell.

We must not deceive ourselves because the land in question is covered with water. We are dealing with private rights alone, unembarrassed by any questions of sovereignty. We have a natural, unnavigable fresh water pond, in which the state has no rights, whose bed is private property, the owner of which has made grants of land on its borders bounded by the pond, and the naked question now under consideration is whether the grantees, by force of such grants, have acquired title to the bed of the pond.

The land so covered with water was owned by the ancestors of the plaintiffs, and it was the subject of private ownership like other land. That proposition lies under the shadow of a great name, for Lord Hale, in his treatise De Jure Maris, said: "One man may have the river and the others the land adjacent." Being such owners, they might sell and convey the same, or they might sell and convey the land adjoining, and in neither case would the deed carry more land than it described. The water over this land does not change it in respect to its ownership. There were many lakes in the land included in the Philipse patent, but the land which they covered all passed to the patentee, and the title to all the other land unconveyed has vested in these plaintiffs, and why not this also? It has never been conveyed, and there is no principle of law which will appropriate it unconveyed. The law makes no contracts and no deeds between parties, and it can make none. It simply enforces those which are made according to their terms, and it goes no further.

Thus far our examination has proceeded upon the legal effect of the grants of land around the pond, and our conclusion upon principle is that those deeds convey only the land which they described, and the title of the grantees therein extended to the water and no further.

But if the case is to decided upon authority the result will be the same.

The case of Wheeler v. Spinola, 54 N. Y., 378, was so nearly like this as to be an authority, for there the land was bounded by the pond, and it was held that a boundary upon a natural pond carries title to low water-mark only, and Judge Earl, in delivering the opinion of the court, said: "Neither can the rule as to riparian ownership be applied to this pond which is applied to ordinary fresh water streams. A boundary upon it does not carry title to its center, but only to low water mark. Such is the rule as to boundaries upon natural ponds and lakes." Such is the doctrine of the court of appeals at this time, so far as any expression of that court has reached the public.

The case of Smith v. Rochester, 92 N. Y., 463, depended upon many questions and considerations not involved in Wheeler v. Spinola, and this latter case was not referred to, and the inference is that the court did not intend to take any departure from the law as there laid down. The head note in the Rochester case is unsupported and misleading.

In the Massachusetts case of Waterman v. Johnson, 13 Pickering, 265, Chief Justice Shaw said: "A large natural pond may have a definite low water line, and then it would seem to be the most natural construction, and one which would be most likely to carry into effect the intent of the parties, to hold that land bounded upon such a pond would extend to low water line, it being presumed that it is intended to give to the grantee the benefit of the water, whatever it may be, which he could not have upon any other construction."

In the case of the Canal Commissioners v. The People, 5 Wend., 447, Chancellor Walworth, in his opinion, said: "The principle itself (the common law rule) does not appear to be sufficiently broad to embrace our large fresh water lakes and inland seas, which are wholly unprovided for by the common law of England."

In the case of Bradley v. Rice, 13 Maine, 201, it was held that where the land in a conveyance was bounded by a pond of water the grant extended only to the margin of the pond, and expressions of the same purport are found in 12 Barb., 206, and 19 id., 491. "When land is conveyed bounding upon a lake or pond, if it is a natural pond the grant extends only to the water's edge." Angell on Watercourses, § 41. "Where the boundary given is a natural pond or lake of fresh water, the boundary line will, it seems, run along the low water mark of the pond, though other cases speak only of the water's edge." Washburn on Real Property, § 47. The writer refers to many cases in Massachusetts, New Hampshire, Maine and Vermont as authority for the statement in the text.

In the case of Child v. Starr, 4 Hill, 382, Chancellor Walworth lays down the following rules respecting the bed of a river, and they are also applicable to a fresh water natural pond: "The bed of a private river is a substantive matter of grant, and can only pass as such. It can never pass as incident or appurtenant

[Sup.Ct. to a grant. It is land, and land cannot be incident or appurtenant to land. A conveyance of one acre of land can never be made by any legal construction to carry another acre by way of incident or appurtenance to the first. That land, and that land only, which is expressly embraced in and forms the subject-matter of a grant, passes under it." Again he said in the same opinion: "But there is no presumption against direct proof, nor any prima facie intendment in the presence of an express grant; such grant fixes its own limits, and determines the rights of the parties under it."

In the case of Ledyard v. Ten Eyck, 36 Barb., 125, the land of the defendant was bounded on the west and south by the lake and outlet thereof, and the judge who wrote the majority opinion said: "The deed would have the usual legal effect, and as an appurtenant would carry along the land under water to the centre; at all events it would carry the right to the land filled in where the water was shallow immediately in front of the defendant's premises."

That statement is antagonistic to all the authorities and expressions of writers and judges, and is manifestly erroneous. It has never been followed or referred to in any subsequent case, and in this case of Wheeler v. Spinola, supra, the court of appeals bestowed upon it the charity of its silence.

It may also be said that the theory of the defendant respecting the division of the bottom of the pond between the riparian owners is not susceptible of practical application. Under that theory the lateral limits of each owner must be lines running perpendicular to the shore and extending to the centre, giving the same width at the centre as on the shore, and so the owners on the sides would take the land to the centre of the pond and leave nothing for the owners upon the ends, who have the same right to run to the centre as the owners on the sides.

The position of the defendant, therefore, falls under condemnation of both principle and authority.

This examination is sufficient to dispose of the claim of the defendant that the grants of the plaintiffs' predecessors of the land around the pond extended to the centre.

The second defense introduced by the defendant is less meritorious than the first.

Assuming, what is very doubtful, that the deeds upon which the claim to an adverse possession is founded are sufficiently definite and certain to form a basis for such a claim, there has been no possession or occupation under them such as the law requires to constitute an adverse possession.

There has been neither cultivation nor improvement, and no protection by enclosure, and there has been no use for the supply of fuel or fencing timber for any purpose. Neither was there any improvement of any part of the premises so that the other portions can be deemed to have been occupied for the same length of time as the part improved, and without some or one of these the land is not deemed to have been possessed for the purpose of constituting an adverse posssession. Code of Civ. Pro., § 370.