C. A. Müller v. Joseph Landa; Joseph Landa v. C. A. Müller, 31 Tex. 265

Lindsay, J. —It is a principle of law too well settled to be now disturbed that, when a fresh-water stream is made the boundary between two riparian possessors, the middle of the stream is the lineal partition between them, unless, by the express terms of the grant to the first possessor, this conclusion of law is excluded.

This is a contest between two riparian possessors of land on the opposite sides of Comal creek or river, called Comal spring, for the right of use of the flowing water in the stream, each deriving his title to the soil from the same vendor, at different periods of time, and each calling for the stream as a part of the boundary of his territory.

From the proof in the case, it appears that .the appellee, under a verbal purchase from the common vendor, went into actual possession of his portion of the land prior to the purchase of the appellant, and continued in that possession down to the institution of this suit; that this verbal purchase was afterwards ratified and confirmed by the vendor by a deed of conveyance, but not until some several years after a sale and conveyance by the vendor of the land on the opposite side to the appellant.

How, there can be no question, if the vendor of each of these parties litigant had desired to do so, he might have conveyed, in express terms, by his deed to the appellant, the land to the east or southeast bank of the Comal, notMthstanding the previous verbal sale to the appellee of a part of the land on that side, with the stream as one of its boundaries. It would only have been a disaffirmance, pro tanto, of his contract with the appellee, which he had the right to make, as, by the statute of frauds, the appellee was precluded from enforcing his contract against his vendor.

The only question therefore for the determination of the court is the intention of the vendor, as disclosed by his deed to the appellant. This involves simply the proper construction of the language of the deed with reference to the established rules of law. The deed to the appellant bears date the 14th day of June, 1847. The deed to the appellee bears date the 15th day of July, 1852. The possession, however, of the land purchased by the appellee under the verbal contract was taken by him in February, 1847, and he was in possession at the time of the sale and conveyance to appellant.

Was it, then, the intention of the vendor to make the east or southeast bank of the Comal the boundary of the land conveyed to the appellant? Or was it the purpose of the vendor simply to make the stream the line? Is there such an ambiguity in the language of the deed as to require proof aliunde to ascertain the real purpose of the contracting parties ?

The deed, in defining the boundary, uses this language: “Beginning at the corner of said Merriwether, (the first vendee,) at the head-spring of the Comal, and running thence with the lines of said Merriwether and the German Emigration Company to the line of Jose Veramendi, thence along said line of Jose Veramendi until it intersects with the extension 'of the south side of Murchison street in Comal town; thence along said extension until it crosses the most northern spring of Comal spring; thence down the main channel of the Comal spring to Milburn; and thence along the most left-hand channel thereof to the most western cross street in the town of Comal, called Elizabeth street,” &c.

This is all the boundary necessary to be recited and construed in the determination of this controversy, as there is nowhere in the deed a direct avowal of a purpose to convey the whole bed of the stream to the appellant. The boundaries of all lands are fixed and established by certain definite monuments, which are either natural or artificial. The existence of these monuments upon or around the land may be established by parol proof.

But no proof can be allowed to alter or to vary the legal import of these monuments, when it has not been so altered and varied in the terms of the written contract; much less ought it to be tolerated in reference to the solemn and deliberate stipulations in a deed. What, then, are the monuments set forth in the deed to the appellant?

They are the natural object, the head spring of the Comal; the artificial objects, the lines of Merriwether and the Emigration Company; the artificial line of Jose Veramendi, and the artificial extension of the south side of Murchison street in Comal town; the natural objects, the northern spring of the Comal, the main channel of the Comal, Milburn street, and, lastly, the left-hand channel . from thence to Elizabeth street, which is the last monument necessary to be alluded to for a proper legal adjustment of this controversy.

The solution of the difficulty depends upon a correct understanding of the true import of that portion of the boundary set forth as “thence along said extension till it crosses the most northern spring of Comal spring.” What extension is here meant?

Obviously, it is the extension of the south side of Murchison street,-and not the line which the surveyor was then running, if it was so run to obtain the field-notes preparatory to mating the deed; nor, if it were not so ran by the surveyor, was it the line which the vendor had in his mind’s eye or was running out in his imagination for the investiture of the title in his vendee; but it was none other, accordingto grammatical rales and all fair and reasonable construction, than the extension of the south side of Murchison street which was contemplated and described as crossing the head spring of Comal, and the limitation, “till” it so crossed, was merely intended definitely to designate the natural object called for- — “the head spring.” This view of this special call is confirmed by the language of the preceding call, which shows conclusively that the word “ extension ” is applied in both instances to these artificial monuments of the survey — the Yeramendi line and Murchison street,.

The personal pronoun “'it,” in the latter of these two calls, can only have reference to the extension of Murchison street, and not to the actual boundary, as contemplated, of the land conveyed by the deed. It must be remembered that, in legal parlance, the lines •of a survey do not always have a mathematical definition, length without breadth. They are as broad as the rivers and passways, which are appropriated as monuments for public as well as private convenience.

But, when so used, in adjusting the legal rights of parties by them, the center or middle of them, whether a river, a creek, a spring, or a passway, fixes the limitation of the rights of parties, unless otherwise expressly provided for in the feoffment. We therefore -conclude in this case, that the thread of the stream of the Comal is the limit of the rights of these parties on that boundary.

The whole question being involved in the construction of the deed from the-common -vendor to the appellant, we deem it unnecessary to go into an investigation of the other questions raised on the trial, except as to the question of damages which is mooted in the cross-appeal of the appellee. On this point we are equally clear in our convictions. The error assigned by the counsel for the appellee, that the court refused to admit proof on the trial in support of a claim for exemplary or “corrective” damages, is not sustained by the law.

Any actual damage which the appellee may have sustained by reason of the wrongful suing out of the injunction was a proper subject of inquiry under the plea in reconvention. But to predicate or charge malice for the obtention [obtaining?] of an injunction to stay what might be conceived to be, however mistakenly, the unwarranted uses of property in litigation, would be productive of more mischief than the statute of injunction was even intended to remedy. We think it needless to elaborate the legal principles involved in the question thus raised.

Upon the whole, therefore, we feel constrained to, affirm the judgment of the court below. Judgment aeeirmed.