Alvan Bradley vs. Peabody H. Rice & als., 13 Me. 198

The opinion of the Court was drawn up by WestoN C. J. The counsel for the complainant abandons in argument any claim for flowing any part of lot number eighty-five. By the deed of the westerly part of lot number eighty-four, it was bounded southerly on Flying Pond, and to extend thence northerly, until one hundred acres were completed. The easterly part of eighty-four was conveyed to run southerly to the same Pond, referring to a plan. By that plan that lot is laid down as running to, but not into, the Pond.

The grantors of eighty-four had previously, by a dam, raised the waters of the Pond above its natural margin, for the purpose of creating a reservoir, to feed their mills. The first question presented is, whether by these deeds, under which the complainant derives title, Flying Pond is made' a boundary, as it then was, or in its natural state. And we are of opinion, that the Pond, as it then was, was the monument contemplated and intended by the parties. The accumulation of water created by the dam, and that which had naturally collected, formed one aggregate.

By the pond must be understood the whole collection of water, as it then existed, and as it presented itself to the eye. So if instead of extending its margin by a dam, the limits of the pond had been contracted, by deepening its outlet, land subsequently conveyed, bounded on the pond, would extend to its new margin. To, from, or by, are terms of exclusion, unless by necessary implication, they are manifestly used in a different sense. This is clear, where land is conveyed bounded by the land of A. and running from the land of B. to that of C.

But it is contended, that although lot number eighty-four runs to, and is bounded by the pond, it is not limited to its margin, but runs by. construction of law to its thread or centre. It is true, that where land is bounded on a river or stream, where the tide does not ebb and flow, the owner’s title by construction of law, extends to the cen-tre or thread of the stream. But Flying Pond is not a river or stream. No case has been cited, nor have we found any, where that rule of construction has been extended to a pond or lake. Neguasset pond, which was the subject of discussion in Hathorn v.

Stinson et als. 1 Fairf 238, was a mere expansion of Neguas-set river or stream. In that case, Parris J., in delivering the opinion of the court, says, “ the law of boundary, as applied to rivers, would no doubt be inapplicable to the lakes, and other large natural collections of fresh water, within the territory of this State.

At what point its applicability ceases, it is unnecessary now to consider, as the case does not call for it.” The proprietors of the pond and of the contiguous lands, when they sold, to the pond, must have intended to reserve that as a reservoir for the purposes, to which it had been appropriated. They used a term of exclusion. Their intention and meaning is thereby manifested. Had the land been bounded upon a river or stream, or upon an artificial pond created by expanding a stream by means of a dam, the riparian proprietor would go to the thread of the stream. This is law well settled and understood.

But it has not been so settled, with regard to ponds and lakes. Nor are we aware, that there can be one construction for small ponds or lakes, and another for large ones. Where shall the line be drawn ? At what point does the one construction end, and the other begin ? In the absence of any direct authority, for extending by construction the bounds, which the grantors have prescribed in the deeds under consideration, we do not feel at liberty to do so, from any supposed analogy between streams and ponds. It is, to say the least of it, of very doubtful application.

The grantees were carried to the pond; and we are not satisfied that they, or the complainant under them, has any right to go further. In Waterman v. Johnson, 13 Pick. 261, the court held expressly, that land bounded on a natural pond, went no farther than the margin of the water. The construction, now urged for the complainant, was not there even contended for ; although it would have been decisive of the cause. Judgment on the verdict.