Where one about to make a loan upon real estate examined the record title and finds it to be in the party applying for the loan, he cannot be charged with notice of the rights or interests of judgment creditors of a person who, so far as the records disclose, has never been the owner or holder of any title to the property, because of the existence of a judgment in their favor, and issuance and levy of an execution against the property thereon. Reed v. Rice, 48 Neb. 586 (67 N. W. Rep. 459).

BOUNDARIES.

EPITOME OF CASES.

Sec. 51. Agreements-Fences-Presumptions-Surveys. Where a boundary line is in dispute and the parties agree upon what is the correct line and take possession and occupy in accordance with such agreement for the time requisite to bar an entry, title will be conferred regardless of where the true line is; but this rule would not extend to such agreed line projected beyond the bounds of actual occupancy. Ward v. Ihler, 132 Mo. 375 (34 S. W. Rep. 251). When a party sells a lot by a general description, and he himself fixes the corners and lines, and permits his vendee to go into possession and make improvements in reference to the boundaries thus fixed, he will be bound by his own identification of the lands sold by him. Gallagher v. Riley, Tenn. (35 S. W. Rep. 451). The maintenance of a line fence between owners of adjoining lands, up to which each claims and occupies, is a concession by each of the open, adverse possession by the other of that which is on his side of such division fence, which, after twenty-one years, will give title, though subsequent surveys may show that the fence was not exactly upon the surveyed line. Reiter v. McJunkin, 173 Pa. St. 82 (33 Atl. Rep. 1012); Cox v. Daugherty, 62 Ark. 629 (36 S. W. Rep. 184). Presumptions in determining boundaries, as to the rule where the line of survey encounters impassable or

insurmountable objects, see Stack v. Pepper, 119 N. C. 484 (25 S. E. Rep. 961). Under Conn. Gen. Stat., § 2975, which provides for the establishment of lost and uncertain bounds to land, it is held that where the services of a surveyor are necessary, he must be a disinterested person. Carney v. Wilkinson, 67 Conn. 345 (35 Atl. Rep. 261).

Sec. 52. Adverse possession-Lappage of constructive possessions. Where, upon the trial of an action of ejectment, it appears that the plaintiff and defendant are each respectively in the actual possession, under color of title, of portions of tracts of land so situated with respect to the disputed premises as that the latter are claimed by each of such respective proprietors to be embraced within the boundaries. of the deeds under which they respectively hold, the question becomes one of boundary, and prescription does not run in favor of either against the other as to such property so constructively in the possession of both; and in such a case, the question of prescription is only in the first instance involved in so far as it may be necessary to establish the plaintiff's title, in the event that the question of boundary be determined in favor of his contention. Where coterminous proprietors settle between themselves a question of disputed boundary, either by acquiescence or otherwise, and afterwards one of them conveys his premises so as to include the premises conceded to the other in the adjustment of the question of boundary, the grantee of the latter cannot prescribe upon such premises, as against the coterminous proprietor, unless he enter in good faith, without notice of such settlement of such disputed boundary, and hold for the requisite period adverse possession of the same. Where the question involved is one of disputed boundary, and either of the several conveyances under which the respective parties claim is so indefinite and equivocal in matter of description as not to designate the limits of the particular tract sought to be conveyed, such conveyance may, as against the grantor and his privies in estate, be made certain by the election of the grantee; and where both parties claim from a common source, such infirmities in their several conveyances may be cured, either by the establishment of a boundary by the common grantor, coupled with the acceptance of such

common boundary by the several grantees, or by the election of the latter to locate their several tracts upon the land of the grantor with reference to a common boundary mutually recognized among themselves. Carstarphen v. Holt, 96 Ga. 703 (23 S. E. Rep. 904).

Sec. 53.

Meander lines not considered as boundaries. In Iowa it is held that the owner of lands adjoining the meander line of non-navigable water is a riparian owner and is entitled to the lands lying between such line and the high water line of the water, even though such line does not coincide with the shore line of the water. Schlosser v. Crookshank, 96 Ia. 414 (65 N. W. Rep. 314). The court say: "A meander line is run when a water course or other body of water is the external boundary of the adjacent land; and a line showing the place of the water course or other body of water, and its sinuosities, courses and distances, is called a 'meander line.' The general rule adopted by both federal and state courts is that meander lines are not run as boundaries of the fractional tract thus surveyed, but for the purpose of defining the sinuosities of the banks of the stream or other body of water, and as a means of ascertaining the quantity of land in such fraction subject to sale, and which is said to be paid for by the purchaser. Railroad Co. v. Schumeir, 7 Wall. 272; Hardin v. Jordan, 140 U. S. 371 (11 Sup. Ct. Rep. 808); Boorman v. Sunnuchs, 42 Wis. 233; Wright v. Day, 33 Wis. 260; Jones v. Pettibone, 2 Wis. 308; Ross v. Faust, 54 Ind. 472 (23 Am. Rep. 655); Ridgway v. Ludlow, 58 Ind. 252; Palmer v. Dodd, 64 Mich. 474 (31 N. W. Rep. 209); Weiss v. Steel Co., 13 Ore. 496 (11 Pac. Rep. 255); Sphung v. Morre, 120 Ind. 352 (22 N. E. Rep. 319); Whitney v. Lumber Co., 78 Wis. 240 (47 N. W. Rep. 425); Lally v. Rossman, 82 Wis. 147 (51 N. W. Rep. 1132); Olsen v. Huntamer, 6 S. Dak. 364 (61 N. W. Rep. 481); Butler v. Railroad, 85 Mich. 246 (48 N. W. Rep. 569; 24 Am. St. Rep. 84); Kraut v. Crawford, 18 Ia. 549 (87 Am. Dec. 414); Musser v. Hershey, 42 Ia. 356; Steele v. Sanchez, 72 Ia. 68 (33 N. W. Rep. 366; 2 Am. St. Rep. 233); Ladd v. Osborne, 79 Ia. 95 (44 N. W. Rep. 235); Grant v. Hemphill, 92 Ia. 218 (59 N. W. Rep. 263). The rule of the cases cited from this state is that, as a

meander line is not a boundary line, the owner of land adjoining such meander line takes title to the high-water mark of the stream or body of water, if navigable, lying adjacent thereto. In other words, in such cases the adjacent proprietor is a riparian owner, whose title extends to and embraces all land lying between such a meandered line and the highwater mark of a navigable stream or other body of water; and such, we may say, is the general holding. In some states it is held that the rights of such riparian owner extend farther, and embrace all land lying between the meander line and the center of the stream or body of water as the case may be. It may be well said here that the latter fact in no way weakens them as authority in favor of extending the title and dominion of the riparian owner over any land adjoining such a meander line, and between it and the shore of the lake."

Sec. 54. High-water mark as a boundary. The term "high-water mark," when applied to a nontidal river, means the highest limit reached by the water when the river is unaffected by freshets and contains its natural and usual flow. The bank of a river or stream extends to the margin of the stream, to that point where it comes in contact with the water of the stream. There is no inconsistency, therefore, in the two calls of a deed, one of which is in effect, "to high-water mark of the Kennebec river," and the other, "thence westerly by the bank of the river." As used in the deed, they mean exactly the same thing. They are correlative. The one touches the other. Morrison v. First Nat. Bank, 88 Me. 155 (33 Atl. Rep. 782).

The

Sec. 55. Streets and ways as boundaries. rule by which the mention of a way as a boundary is presumed to mean the middle of the way where the way belongs to the grantor, is not an absolute rule irrespective of the intention of the parties, but is merely a principle of interpretation adopted for the purpose of finding out the true meaning of the words used. Other considerations indicating a different intention may be considered, such as measurements which do not include the way or other definite descriptions or the conduct of the parties indicating a different construction.

Crocker v. Cotting, 166 Mass. 183 (44 N. E. Rep. 214; 33 L. R. A. 245). If land is conveyed as bounded upon one or more sides by a way, this is not a description merely, but an implied covenant of the existence of such a way. Friday v. Parkhurst et ux, 13 Wash. St. 439 (43 Pac. Rep. 362). quoting 2 Devlin on Deeds, 881, citing Parker v. Smith, 17 Mass. 413 (9 Am. Dec. 157). In Maine it is held that where land is bounded on a highway the boundary extends to the center of the way, but if the land be bounded on a private way the boundary extends only to the side line of the way. Winslow v. Reed, 89 Me. 67 (35 Atl. Rep. 1017).

Sec. 56. Monuments control courses and distances. The general rule that monuments control courses and distances, is held not to apply where such monuments are not mentioned or referred to in the deed. Whitehead V. Atchison, 136 Mo. 485 (37 S. W. Rep. 928). In determining boundaries, course and distance will control unless there is some other description or call in the description which is more certain. Brown v. House, 118 N. C. 870 (24 S. E. Rep. 786). When a deed, patent or grant describes the boundary from a certain point down a river, creek or the like, mentioning also course and distance, should the latter be found not to agree with the course of the river, it ought to be disregarded and the river considered the true boundary. Clarkston v. Virginia Coal & I. Co., 93 Va. 258 (24 S. E. Rep. 937). In a recent case the supreme court of Vermont say: "It is well settled that when, in the description of land in a conveyance, courses and distances, and also known boundaries or monuments are given to describe the same line, and there is a discrepancy between the courses or distances, on the one hand, and the boundaries or monuments, on the other, the latter, as a general rule, govern and control the former. This rule is always applicable when it effectuates the intent of the grantor as shown by the deed." Fullam v. Foster, 68 Vt. 590 (35 Atl. Rep. 484). Citing, Beach v. Stearns, 1 Aiken 325; Gilman v. Smith, 12 Vt. 150; Barnard v. Russell, 19 Vt. 334; Morrow v. Willard, 30 Vt. 118; Spiller v. Scribner, 36 Vt. 246; Park v. Pratt, 38 Vt. 545; Keenan v. Cavanaugh, 44 Vt. 268; Bundy v. Morgan, 45 Vt. 46; Clary v. McGlynn, 46 Vt. 347; Railway Co. v.