#### JOHN A. WILLIAMS vs. JOSEPH BUCHANAN.

A grant of land, bounded in terms by a river or creek, not navigable, car¿ ries the land to the grantee usque ad filum aqux, to the middle of thread of the stream.

Where two grants or deeds lap, and neither party has the actual posses» sion of the lapped part, the law adjudges the possession of that part in him, who has the better title; but if either be actually in possession of of the lapped part, the law adjudges him to be in the exclusive possession thereof.

Possession of land is denoted by the exercise of acts of dominion over it, in making the ordinary use and taking the ordinary profits, of which it is susceptible in its present state — such acts to be so repeated as to shew that they are done in the character of owner, and not of an occasional trespasser.

In a stream not navigable, keeping up fish traps therein, erecting and repairing dams across it, and using it every year, during the entire fishing season, for the purpose of catching fish, constitute an unequivocal possession thereof.

The cases of Wilson v. Forbes, 2 Dev. 30; Ingram v. Threadgill, 3 Dev. 59; and Pugh v. Wheeler, 2 Dev. & Bat. 50, cited andapproyéd.

This wasan actionof trespassquare clausum fregit, tried at Spring Term, 1841, of Chatham Superior Court, before his hon- or Judge Pearson. The trespass alleged was, putting a fishtrap *536in Deep River, & joining (he dam toa small island. It was ^at Deep river was not a navigable stream. The plaintiff read a grant to one Stokes, which, it was admitted, covered the locus in quo, and that the fish trap and the island to which the dam was joined, consisting of a ledge of rock and a collection of trees and shrubs, were situate on the south side of a line, pursuing the rive&wkey; the traps being across a sluice of water, running between the south bank and the island; and it was also admitted that, about the year 1816, the land on the north side of the river, and the land on the south side of the river, opposite the locus in qvM, and*the land contained in the grant to Stokes, by a regular chain of title, became the property of one Ramsay; that Ramsay died about 1820, when, under regular proceedings had in the County Court, one Alston sold a part of the land to William Boylan, including the land on the north side of the river and a part of the land to Mrs. Ramsay, as described in the deed from said Alston to Mrs. Ramsay, of a subsequent date. Boylan sold to the plaintiff, and conveyed by the same boundaries as in the deed from Alston to him. Mrs. Ramsay, in 1829, conveyed to the defendant by a deed having the same boundaries as the deed from Alston to her. The plaintiff proved that in 1839, a short time before the writ issued, the defendant put in a fish-trap and run a dam partly across the sluice to the island, which was the trespass complained of. The defendant proved that, soon after Mrs. Ramsay bought the íánd, she rented it to one Wicker for seven years, together with the privilege of fishing in the river. — .that Wicker took possession of the plantation, and in the spring of 1823, repaired an old trap at the locus in quo> put in a new trap near the old one, connected the two by a dam, and run a dam to the south bank, and one to the island, so as to reach entirely across the sluice, and. continued to use these two traps in fishing seasons regularly up to the expiration of his lease in 1829. The defendant also proved that as soon as Wicker left the premises, he took possession, and continued to use the traps in fishing season every year — that the new trap, which he put in, was in Wicker’s dam near the south bank, and that the new dam, made by him from one of the *537old traps to the island, went in a straight direction, and struck the island some fifteen or twenty feet lower down.— The plaintiff insisted that the defendant’s title did not include the locus in quo, and that he might recover for the alleged trespass. The defendant insisted, 1st, that his title did include the locus in quo, and that, supposing his title to be junior, it had become the better title by seven years adverse possession; 2d, that if his title did not include the locus in quo, the plaintiff’s action for his original entry was barred by the statute of limitations, and that, as he had all along held possession of the two old traps, the plaintiff had not such a possession as would enable him to recover, for putting in the new traps and making the new dam, which he contended amounted only to repairing the old one, was a mere continuation of his former possession; 3dly, that the plain tiff’s title did not include the locus in quo.

The court was of opinion and charged the jury, that, from the evidence, the deed from Alston to Boylan, under which the plaintiff claimed, included the locus in quo\ that from the evidence, the deed from Alston to Mrs. Ramsay, under which the defendant claimed, also included the locus in quo — that when a deed commenced at the river, &c. then “up the river to the beginning,” the river not being navigable, the proper construction made the middle of the river the line. —that a reference in the deed to Boylan, contained in the deed to Mrs. Ramsay, being a special reference to a half acre did not alter the construction as contended for by the plaintiff’s counsel — nor did the fact that Alston had, two months before, made a deed to Boylan, including the bed of theriver, alter the construction, there being no call for Boylan’s line up the river — that, according to this construction, there was a case of lapped land, and the rule in such cases was, that when the party, claiming under the junior title was in the actual possession of a part of the lap, and the party claiming under the senior title, although in the actual possession of the land outside of the lap, yet had no actual possession within the lap, possession of the party under the junior title, so having possession of a part within the lap, if continued with-*5380ut interruption for more than seven years, would ripen his ^etter ^tle — Present case> if ^ lapped land consisted of small islands unfit for cultivation, rocks and tb.e sluice of waters, and the defendant had kept up his possession' by means of the fish traps and dams, as described, using them for the purpose of catching fish in all the fishing seasons, that was such a possession, as, if continued ior more than seven years, would ripen the defendant’s junior title, so as to give him the better title; that being the only way in which possession would beenjoyed on this sort of land made use of. The court, havingdecided that the defendant’s title did include the locus in quo, gave no instructions as to the second question, supposing his title did not include it.

There was a verdict for the defendant. A motion for a new trial was made, which was over-ruled, and then a judgment was rendered for the plaintiff, from which the defendant appealed.

Waddell for the plaintiff.

W. H. Haywood, Jr. for the defendant.

Gaston, J.

The trespass, of which the plaintiff complained, was the putting of a fish trap in a sluice of Deep River, and the erection of a dam contiguous to the trap and extending from the south bank of the river to a rock on the north side of the sluice. The river was not navigable, and the rock and sluice were on the south side of the middle or channel of the river. Both plaintiff and defendant setup title to the locus in quo, under conveyances from the same proprietor. The first conveyance was made to Boy]an, under whom the plaintiff claimed, and it covered a tract of land on the north side of the river, the bed of the river where the alleged tresspass was committed, (in express terms,) and also a half an acre oflandonthe south side of the river. The conveyance to Mrs. Ramsay, under which the defendant claimed, was for a tract of land on the south side of the river, which was described as beginning at a tree • on the river bank above the locus in quo, running south therefrom, and, after various courses north, to the river, be*539low the place where the alleged ti’espass was committed) then up the river to the first station, excepting thereout the half acre previously conveyed to Boylan. For sixteen years in succession after this conveyance to Mrs. Ramsay, those claiming under her had every year erected or repaired and used fish traps in this sluice, and kept up dams across it at and near this spot, for the purpose of catching fish, while no actual occupation on the part of the plaintiff, or those under whom he claimed, was shewn during that time, of the sluice, rocks, shoals or bed of the river between the channel and the south bank of the river. The half acre on the south side was indeed used by them as a ferry landing, but this half acre did not include the locus in quo.

Upon these facts his Honor- charged the jury that the place where the tresspass was committed was included within both the conveyances — that the conveyance to Boylan being the elder, it passed the title to the plaintiff — that a possession for seven years under the conveyance to Mrs. Ramsay would extinguisd the elder title and give a title to the defendant — and that the continued acts of keeping up fish traps and dams, if the place could not, in its natural state, be cultivated, did amount to an actual possession thereof. Under these instructions, the jury found a verdict for the defendant, and a judgment being rendered accordingly, the plaintiff appealed.

With every part of the instructions we are entirely satisfied. There cannot be stated a better settled rule of the common law than that a grant of land, bounded in terms by a river or creek not navigable, carries the land to the grantee usque ad )ilum aquce, to the middle or thread of the stream-This rule of law has been recognised in every state of the union, with whose judicial decisions we are acquainted.— In some of the States, the common law criterion for distinguishing between rivers navigable and rivers not navigable, whether the tide ebbs and flows therein or not, has been rejected as unsuited to their geographical condition; but in all, we believe, the construction of a grant co-terminous with a river, held to be not navigable, is uniform — that in law it covers the bed of the river to the thread or middle of the stream. *540Certainly this has been regarded as undoubted law in our Wilson v. Forbes, 2 Dev. 30. Ingram v. Threadgill, 3 Df 59. Pugh v. Wheeler, 2 Dev. & Bat. 50. The therefore, to Mrs. Ramsay included the bed of the river on the south side of the main stream.

The exception in the deed of the half-acre on the south side of the river, previously conveyed to Boylan, does not affect the construction of the deed. This half acre is, by the exception, simply taken out of the land included within the description; and being so taken out, all the residue of the land, coming within the legal effect of that description, is conveyed by the deed. The description is single. It makes no reference to the boundaries of the interfering tract conveyed to Boylan.

The case, then, is one of a senior and junior deed interfering in part with each other — or, in common parlance, lapping upon each other. The law in that case is undoubtedly as his Honor stated it — that if neither of the parties, contending under these deeds, has hadan actual pedispositio on the part comprised within both deeds, but each grantee is settled on that part which is claimed only by hims.elf, the law adjudges the possession of the lap, or part included within both deeds, in him who has the elder deed or better right — but if either be actually settled on the part included within both deeds, the law adjudges him to be in the exclusive possession thereof. Possession of land is denoted by the exercise of acts of dominion over it, in making the ordinary use, and taking the ordinary profits, of which it is susceptible in its present state. — . such acts to be so repeated, as to shew that they are done in the character of owner, and not of an occasional trespasser. We agree with his Honor in holding that the acts of dominion, continuously exercised over this Sluice by keeping up fish traps therein, erecting and repairing dams across it, and using it every year during the entire fishing season for the purpose of catching fish, did constitute an unequivocal possession thereof. The judgment must be affirmed.

Per Curiam, Judgment affirmed.