river is in the riparian proprietors, to the effect that their boundary lines are to be extended from the old shore line to the new line at right angles to the center line of the river.16 Whatever be the general rule adopted in this regard in a particular jurisdiction, it will, it seems, be varied in particular cases in view of peculiar circumstances which may arise.17

455. Islands.

An island, when formed in a stream or body of water by the deposit of alluvial matter therein, belongs to the owner of the land beneath the water, on which the island is formed, whether such owner be the state or an individual.18 So, if the island is on both sides of a line dividing the lands of different owners, the island belongs to both owners.19

An

16 Miller v. Hepburn, 8 Bush (Ky.) 326, 3 Gray's Cas. 26. In Illinois it has been decided that the thread or middle line of the river is to be divided proportionately between the riparian proprietors, and the boundary lines are to be extended to the division points so made. Kehr v. Snyder, 114 Ill. 313, 55 Am. Rep. 866.

17 Kehr v. Snyder, 114 Ill. 313, 55 Am. Rep. 866; Thornton v. Grant, 10 R. I. 477, 14 Am. Rep. 701; Batchelder v. Keniston, 51 N. H. 496, 12 Am. Rep. 143.

This question of the apportionment of alluvion between the different riparian owners is analogous to that of the apportionment of the "flats" or shore among the owners of the uplands, in cases in which the state has relinquished the ownership of such flats. See Gould, Waters, § 162; Com. v. City of Roxbury, 9 Gray (Mass.) 451, reporter's note 521; Wonson v. Wonson, 14 Allen (Mass.) 85; Thornton v. Grant, 10 R. I. 477, 14 Am. Rep. 701.

18 Perkins v. Adams, 132 Mo. 131; Cox v. Arnold, 129 Mo. 337, 50 Am. St. Rep. 450; St. Louis v. Rutz, 138 U. S. 226; Mulry v. Norton, 100 N. Y. 426, 53 Am. Rep. 212; Trustees of Hopkins Academy v. Dickinson, 9 Cush. (Mass.) 548; McCullough v. Wall, 4 Rich. Law (S. C.) 68, 53 Am. Dec. 715; Middleton v. Pritchard, 4 Ill. 510, 38 Am. Dec. 112.

19 Trustees of Hopkins Academy v. Dickinson, 9 Cush. (Mass.) 548; 3 Kent's Comm. 428.

island formed by a sudden change in the course of a stream, or by a sudden encroachment of the sea, the soil remaining as before, except that it is separated by a channel from the main land, does not change its ownership.20

20 Trustees of Hopkins Academy v. Dickinson, 9 Cush. (Mass.) 544; Bonewits v. Wygant, 75 Ind. 41; Gould, Waters, § 166.

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CHAPTER XXVI.

ESTOPPEL.

§ 456.
457. Estoppel by representation.

Transfer of after-acquired title.

In this country, a conveyance of land, with a covenant of warranty, and occasionally with other covenants, is regarded as passing any title or interest, within the scope of such conveyance, which the grantor may thereafter acquire. Such a doctrine has never been recognized in England except in the case of feoffments, fines, and recoveries, and, to a limited extent, leases.

The doctrine of estoppel by representation, so far as it may prevent the owner of land, who represents, either expressly or tacitly, the title to be in another, from thereafter denying the truth of the representation, in effect transfers the title. In some states the doctrine is applicable in connection with land. only when the representation was fraudulent, and then only in equity.

§ 456. Transfer of after-acquired title.

At common law, a transfer of land by feoffment, fine, or common recovery operated to transfer to the transferee all estates or interests which might be subsequently acquired by the transferrer, in case he did not, at the time of making the assurance, have such an estate as he purported to transfer.'

1 Bigelow, Estoppel (5th Ed.) 385, 414-419; Rawle, Covenants for Title (5th Ed.) § 243; Doe d. Christmas v. Oliver, 10 Barn. & C. 181, 3 Gray's Cas. 739; Sturgeon v. Wingfield, 15 Mees. & W. 224, 3 Gray's Cas. 745.

A lease had a partially similar effect, in that, if the lessor did not have any title at the time of making the lease, a title subsequently obtained by him passed thereunder, though this was not the case if he had some title at the date of the lease.' Other conveyances than those mentioned had no such effect of passing an after-acquired title at common law, nor have they in England at the present day. It is, however, recognized in England, as in this country, that, if a conveyance purports to transfer a certain estate, whether this appears from recitals, covenants, or any other part of the conveyance, the grantor himself is estopped thereafter to deny that such an estate did pass, or to claim the land under a title subsequently acquired by him."

To support this view, there is not, it is evident, any necessity for holding that the subsequently-acquired title passes to the grantee, the estoppel being merely personal as against the grantor, and being but an application of the common-law principle that a party to a deed cannot contradict or disprove any declaration or averment therein. In this country, however, there are many decisions to the effect not only that the

• Co. Litt. 47b; Bigelow, Estoppel, 390, 420; Williams, Real Prop. (18th Ed.) 476; Doe d. Strode v. Seaton, 2 Cromp., M. & R. 728; Trevivan v. Lawrence, 1 Salk. 276.

Williams, Real Prop. (18th Ed.) 476; Rawle, Covenants for Title (5th Ed.) §§ 244, 246, 262; Bigelow, Estoppel, 423 et seq.; 2 Smith, Lead. Cas. 839; Right v. Bucknell, 2 Barn. & Adol. 278, 3 Gray's Cas. 741; General Finance, Mortgage & Discount Co. v. Liberator Permanent Benefit Bldg. Soc., 10 Ch. Div. 15.

4 Rawle, Covenants for Title (5th Ed.) §§ 245, 255; Bigelow, Estoppel, 395; Goodtitle v. Balley, Cowp. 601; 2 Smith, Lead. Cas. Eq. 854; Right v. Bucknell, 2 Barn. & Adol. 278, 3 Gray's Cas. 741; Van Rennsselaer v. Kearney, 11 How. (U. S.) 297; Clark v. Baker, 14 Cal. 629, 76 Am. Dec. 449; Taggart v. Risley, 4 Or. 235; Wells v. Steckelberg, 52 Neb. 597; Reynolds v. Cook, 83 Va. 817, 5 Am. St. Rep. 317; Pendill v. Marquette County Agricultural Soc., 95 Mich. 491.

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grantor in a conveyance is estopped to deny that it passed the estate which it purported to pass, but also that it actually passes, by way of estoppel, any title which the grantor may thereafter acquire in the land, if this is within its apparent scope, and especially if it contains certain covenants of title." There are, moreover, in a number of states, statutory provisions to this effect."

For most purposes, the question whether there is merely a personal estoppel on the grantor to assert the after-acquired title, or whether such title actually passes under the conveyance, is immaterial. The distinction between the two views is, however, important in two respects: First, as between the grantor and grantee, the effect of the application of the rule, without exception, that a conveyance containing covenants of title operates to pass an after-acquired estate, would be that a covenantee would be compelled to take such an estate, and would not have the option of refusing so to do, and of recovering full damages on the covenant. Recognizing the injustice of such a result, it has usually been held that the covenantee has such an option, and is not compelled to accept the after-acquired estate in partial or total satisfaction of the covenant. The other and more important result of the distinction is that, if the covenant effects merely a personal estoppel on the covenantor, a person to whom he subsequently conveys the after-acquired estate is not affected thereby, while, if the covenant operates as an actual

7

5 Rawle, Covenants for Title (5th Ed.) 8 248, and the numerous cases there cited; Bigelow, Estoppel, 429; 2 Smith, Lead. Cas. Eq. 838; 11 Am. & Eng. Enc. Law, 418.

1 Stimson, Am. St. Law, § 1454; Rawle, Covenants for Title (5th Ed.) § 249.

7 Rawle, Covenants for Title (5th Ed.) § 258; Bigelow, Estoppel, 435; Blanchard v. Ellis, 1 Gray (Mass.) 193, 3 Gray's Cas. 755; Tucker v. Clark, 2 Sandf. Ch. (N. Y.) 96; Burton v. Reeds, 20 Ind 87; Noonan v. Ilsley, 21 Wis. 139.