#### George Wilson v. Stephen B. Forbes, adm’r. of Thomas O. Bryan.

From Craven.

The English rule for determining whether a river is navigable or not, viz.'the ebb and flow of the tide, is not applicable in this State.

What general rule shall be adopted to determine the character of a water course. Qu ?

But a stream eight feet deep, sixty yards wide, and with an unobstructed navigation for sea vessels from its mouth to the ocean, is a navigable stream, and its edge at low water mark, is the boundary of the adjacent land.

A covenant of seisin is broken, if the vendor has no right to sell all the land within the boundaries of his deed.

The measure of damages upon a covenant of seisin, is the price paid for the land and the interest upon it.

But if the vendee goes into possession under the deed, and his title is rendered perfect by the act of limitations, he is only entitled to nominal damages for a breach of the covenant of seisin.

CoveNAnt tried before Martin, Judge, on the last Circuit.

The Defendant’s intestate on the fth of September, 1818, conveyed to the Plaintiff a tract of land “ begin- <*' at the mouth of North or Jemmy’s Creek, and thence “ running down Trent River to the line of land formerly belonging to Mrs. Edwards, thence along that lino north, five degrees east, four hundred poles, to the back line of Cast age’s patent, thence west with said patent line to a branch now called Springfield Branch, thence *31 (t down said braneh to a cypress at the month thereof, “ Castage’s corner, thence down the various courses of “ said North or Jemmy’s Creek, to the beginning, being “ part of the land granted to James Castage, by patent “ bearing date November 12th, 1713.”

Dec. 1828.

The deed contained the following covenants, “ And t( the said Thomas 0. Bryan for himself and his heirs, “ doth covenant with the said George Wilson, his heirs <e and assigns, that he hath „ good right and absolute au- “ thority to grant, bargain and sell the premises afore- “ said ; that the said premises are free and clear from te every incumbrance; that there are within the lines es aforesaid hereby granted and conveyed, not less than “ three hundred and eighty-seven acres of land, and that “ he will warrant and defend the same to the said George “ Wilson, his heirs and assigns, against the lawful claims “ of all persons. And the said George Wilson covenants “ with the said Thomas 0. Bryan, that upon a re-survey “ of the premises hereby granted, should (here be a grea- “ ter quantity of land than the said Thomas 0, Bryan “ hath herein warranted, that is to say than three hun- “ drcd and eighty-seven acres, the said George Wilson “ will pay to the said Thomas O. Bryan for every acre <( above the said quantity herein warranted, at the rate <e of twenty dollars the acre.”

The only breach assigned was of the covenant of sei-sin. A survey of the land was made and a plot of it was part of the case, which is represented by the annexed diagram:

*32

Castage’s patent was produced on the trial, the back lines of it were as follows, “ from a hickory (contended “by the Defendant to be either at C or G in the dia- “ gram) south eighty degrees west, one hundred poles to “ a poplar at the side of a branch, thence south thirty* « five degrees west forty poles, south fifty-one west forty “ poles, thence south eighty-two west thirty-six poles, “ to the mouth of the creek, then &c.”

The Plaintiff contended, that the lines denoted in the diagram by the letters ABC and D, and Springfield Branch to its month at K, and thence down Jemmy’s Creek to its mouth at A, was the boundary described in the deed, and that the covenant of seisin applied to alt the land within those limits.

*33The Defendant contended that the back lines of his deed, were the back lines of Castage’s patent, wherever they were, and that those lines were designated on tiie diagram, either by the letters iBCDEF and K, or by the letters ABGSIJ and K, leaving out of the boundaries of the deed, the land in the bend of Springfield branch. Between these two boundaries there were two plantations, one of which had been cleared for twenty-five years, and the other for a longer period, both held adversely to the title of the Defendant.

By the survey, it appeared that there were within the boundary contended for by the Plaintiff, four hundred acres of land, and within those designated by the letters A B C D E F and K, measuring to the margin of Jemmy’s Creek, three hundred and forty-eight acres, the title of which was undisputed — that between the thread or middle of the creek, and its margin at low water mark, there were seven acres of land covered with water, and consequently, that by measuring to the middle of the creek, there were within the last mentioned boundaries, three hundred and fifty-fi\e acres.

Jemmy’s Creek enters into Trent River, a few miles above Newbern ; it is sixty yards wide at its mouth ; becomes wider higher up, and its average width to the mouth of Springfield Branch, is from sixty to one hundred yards. The depth of water at its mouth is twelve or fifteen feet, and from six to eight feet Co the mouth of Springfield Branch. There exists in it no regular ebb and flow of Ihe tide, corresponding to that of the Ocean. — But the tide ebbs and flows in it in the same way that it does in the Neuse and Trent Rivers. It is navigated by the owners of the adjacent land, with flats loaded with wood.

It was in proof that the Plaintiff had cleared and cul-íhated a field in the bend of Springfield Branch, for ten or twelve years before the trial in the Court below.

*34His Honor instructed the Jury that Jemmy’s Crock was a navigable water course, and that the true boon- ° dary of the land on the side of the creek, was the edge 0f j|)C Water at low water mark, and not the thread or middle of the channel — that the boundary of the land conveyed by the deed, and which was within the covenant of seisin, was the lines of the plot until it struck Springfield Branch, and then the meanders of that, and that if adverse possession of any of the land included within that boundary, was held by any person at the date of the deed, the covenant of seisin was broken — and further, that if the Defendant had not title at the date of his deed, to all the land within the meanders of Springfield Branch, there was also a breach of his covenant.— That if they found for the Plaintiff, the rule of damages, if the land had been paid for, was the price paid for it, and the interest — that if the land had not been paid for, the rule was to give, the difference between the price to be given and the real value, if it was greater than the agreed price — that if the Plaintiff” availing himself of the deed, and of a continued possession under it for seven years, had thereby acquired an undefeasible title, the damages should be nominal.

The Jury returned a verdict for the Plaintiff, and assessed the damages to 780 dollars principal, and g47S 85 interestand judgment being rendered accordingly, the Defendant appealed.

The case was argued, at length by Badger, for the Appellant, and Gaston, contra, but the Reporter was not in Court at the time.

Henderson, Judge.

It is clear that by the rule adopted in England, navigable waters are distinguished from others, by the ebbing and flowing of the tides— But this rule is entirely inapplicable to onr situation, arising both from the great length of our rivers, extending far into the interior, and the sand-bars and other *35obstructions at their mouths. By that rule, Albemarle ami Pamptico sounds, which are inland seas, would not be deemed navigable waters, and would he the subject of private property. What general rule shall be adopted, this case does not require me to determine, were I competent to it. But I think it must be admitted, that a creek or river, such as this appears to he, wide and deep enough for sea vessels to navigate, and without any obstruction to this navigation from its mouth to the ocean, and the limit of whose waters is not higher, nor as high as the flowing of the tides upon our sea-coasts, isa navigable stream, within the general rule. I therefore concur with the Judge below, that the margin of the water was the boundary of the grant, and that the land covered by the water, to the middle of tiie stream, wTas not to be taken into computation in ascertaining the quantity.

I concur also with the Judge, that the covenants of the deed were broken, if the deed covered lands of which the grantor was not seised, that is, authorized to sell and convey, at the date of the deed, yet that the grantee was entitled to nominal damages only, if the Plaintiff’s possession under the deed had ripened into a good title, under the statute of limitations. And from the clear and explicit manner in which he makes the latter declaration, and his refusal to grant a new trial, 1 must understand that the adverse possession spoken of, for more than twenty-five years, between the two lines C E K and C II K, w as accompanied with colour of title, embracing ail the lands comprehended in the deed to which the grantor had not title, and especially the lands lying in the bend of the branch. For without such colour, the doctrines of the Judge would have led to a different verdict, and it seems he approved of the verdict in this case, for he refused to grant a new trial. This view of the case is much strengthened by the fact, that these possessions were adverse, which pre-supposes colour of title, at least beyond the limits of actual occupancy. But at *36most this was matter of evidence, and we will presume that it tended to establish such facts as supports the ver-diet. It is unnecessary to examine into the correctness 0f t)ie charge, making the actual value of the lands and not the price given, the measure of damages — that is, enabling a Plaintiff to recover damages for the fancied loss of a good bargain, as in this case it produced no practical results. I am of opinion therefore, that the rule for a new trial be discharged.

Hall, Judge.

The covenant sued upon must be taken as a covenant of seisin, and the question submitted to the Jury was, whether the Defendant’s intestate had seisin in the lands sold to the Plaintiff.

The Plaintiff contended, that one line of the boundary of the land, the only one in dispute, runs from the letter C in the plan, until it strikes Springfield Branch at the letter D, and thence along the branch as it meanders, to the mouth thereof, at the letter K. The Defendant contended, that the boundary set forth in his deed was the back line of Gastage’s patent, which was designated in the plan, either from the letter C by H to K, or from the letter C by E to K, either line leaving out the land in the bond of the branch. There are four hundred acres within the lines contended for by the Plaintiff, and three hundred and forty-eight acres within those contended for by the Defendant, of which it is admitted Ms intestate had seisin. But if he conveyed as the Plaintiff contends, and was not seized of the land between the line CDEK and the Springfield Branch, there was a breach of the covenant of seisin as to fifty-two acres.

There is another covenant in the deed besides the one .sued on, viz. that there was not less than three hundred and eighty-seven acres conveyed by the deed. The jury may have taken that as their guide, and deducting 348 acres from 387', 39 acres would remain j for a want of seisin in which, the jury may have given their ver-*37dirt. Be that as it may, the evidence offered to the jury is not made part of the case sent here. It was placed . before them, they have acted «pon it; the presiding Judge approved of it, and it is not for this Court to disturb their verdict.

One remark may be made, (though the case does not require it,) if the lino CDEK, was the true line as the Defend ant contended, lie conveyed only 348 acres, whereas he covenanted that the lines of the deed contained 387 acres. So that- he would, in case he was sued upon that covenant, be answerable for 39 acres; in which case, he would stand precisely as he now does.

There does not appear to he any part of the Judge’s charge at variance with the Defendant’s rights, unless the following objections are .sustainable.

The Judge instructed the jury, that Jemmy’s Creek ivas a navigable stream, and that the true boundary was its water edge at low' water mark, and not the thread or middle of the channel. On this subject, it becomes necessary to examine the acts of Assembly on the subject of entering and surveying lands. The act of 1715, (Rev. ch. 6, sec. 3) directs surveyors in “ surveying and laying out all lands that lie on navigable rivers & creeks, that they shall runa full mile in a direct course, into the woods, and each opposite line shall run parallel with the other, if it can be admitted for other persons’ lines or rivers or creeks.” The fourth section declares that no surveyor shall survey or lay out, more than 640 acres in one tract. The act of 1777, (llev. ch. 114, sec. 10) directs that “no survey shall be made without chain car-rieles, who shall actually measure the land surveyed, and such chain carriers shall be sworn to measure justly and truly; that every survey shall be bounded by natural boundaries, or right lines running to the cardinal points, unless such lines interfere with lands already granted or surveyed, or unless when the survey shall be made on any navigable water, in which last case the wa*38ter shall form one sitie of the survey, provided that nothing herein contained shall be construed to prevent any person from entering a claim to any island or islands in navigable waters, &c.” By the law of England, generally speaking, waters are only considered to be navigable, where the tide flows and ebbs. I think that part of the English law is not applicable to the waters and streams of this state. But few of them could be marked by such a distinction. There can be no essential difference for the purposes of navigation, whether the water be salt or fresh, or whether the tides regujarly flow and ebb or not. And of this opinion the Legislature seems to have been, when they passed the laws above recited.— When they speak of actual admeasurement by chain carriers on oath, they did not contemplate an actual admea-surement of the land forming the bed of such a stream as Jemmy’s Creek. When they speak of a survey containing 640 acres made on a navigable water or creek, and the water forming one side of the survey, they did not intend that the bed of the river to the middle of it should be part of the survey. When they direct surveyors to run a mile into the woods from a water course, and to run each opposite line parallel with the other, so as to include 640 acres, it is preposterous to suppose that the bed of the river is to be a part of it, as there would be the required quantity without it. I have no doubt that the charge of (he Judge was right, that Jemmy’s Creek is such a navigable stream as the before recited acts of Assembly contemplated.

It may be asked of what size a creek must be to make it navigable ? I answer, that in the solution of this question, embarrassment may be encountered; but when if is necessary to give it, we will do it as well as we can. The decision of this case does not cal! for it. Neither is it necessary in this case to enquire, what are the rights of the proprietors of lands on navigable waters, to the thread or middle of the stream. Such enquiry is not called for, and at best would be only speculative.

*39Secondly, when the Judge instructed the Jury that an adverse possession of the land sold, at the time of the sale, would be a breach of the covenant of seisin, I understand him to mean that kind of adverse possession which only could amount to a breach, viz. an adverse possession under a color of title.

Thirdly, when he directed the Jury to give the value of the land at the date of the covenant, if he meant the value of the land without regard to the purchase money, it was contrary to the opinion of the Court in the case of Phillips v. Smith, and Hoodenpyle v. McDowel’s executor, (1 Car. L. Repos. 475). In those cases the purchase money with interest, was established as the rule of damages in case of eviction.

However, that cannot be a ground of objection here, because the Jury allowed the amount of the purchase money with interest, in assessing damages. And it is thus proved; the land stipulated to be sold was 387 acres, for which 87740 was given, that is, 820 per acre. The Jury valued the 39 acres of which the Defendant had not seisin, at $780 with interest, which was $20 per acre.

Fourthly, the Judge further directed the Jury, that if the Plaintiff, availing himself of the Defendant’s deed? had continued possession under it for seven years, and had by that means acquired a valid and indefeasible title, they should give only nominal damages. To this part of the charge no objection is taken. Whether the fact was so proved or not, this Court has no means of ascertaining.

I therefore think there was no misdirection given to the Jury, as to the facts on which they have found their verdict, and that the rule for a new trial should be discharged.

Per Curiam. — Let the judgment be affirmed.