Brown v. Huger.

southwest corner of a lot," &c., say, "there can be no doubt but this lot must follow the creek upon one of its banks or through the middle. This description can never be satisfied by a straight line. The terms up the same' necessarily imply that it is to follow the creek according to its windings and turnings, and that must be the middle or centre of it."

In the case of Mayhew v. Norton, a grantor had conveyed land to be bounded by the harbor of Edgartown. The supreme court of Massachusetts decided that the flats in front of the lots conveyed passed by the deeds, because they were in the harbor, although the quantity of land conveyed and the length of the lines would have been satisfied by applying them to the upland alone. In the case of Cockerell v. McGuire, 4th T. B., Monroe's Rep. 62, the circuit court, in ejectment, had instructed the jury upon a question of boundary that the following calls in the patent: "thence from the fourth course down the river these several courses should be construed by the jury as a call to run down the river bounding thereon, with its meanders," &c. The supreme court, to whom this cause was carried by writ of error, say: "In cases of boundary

which depend upon the swearing of witnesses, it would [*321] no doubt be * incompetent for the court, by any sort of instructions that might be given, to withdraw from the jury a decision upon the weight of the testimony and the facts which the testimony conduces to establish." But the case under consideration is not one of that sort. The question for our consideration involves no inquiry into the testimony of witnesses; but, on the contrary, in the absence of all parol evidence as to marked. lines, presents for the determination of the court the construction of the calls for boundary mentioned in the patent, and surely none will pretend that the legal construction of a patent is not a matter proper for the decision of a court. If in the first branch of the instructions the court was correct in supposing that the call in the patent to run down the river these several courses, &c., should be construed as a call to run with the river, it was unquestionably correct to instruct the jury that the north fork between the fourth corner of the patent and the beginning formed part of the boundary; and that in the first branch of the instruction the court gave a correct construction of the calls of the patent, we apprehend there can be no ground for reasonable doubt.

In the case of Newsom v. Pryor, (7 Wheaton, 10,) it is laid down by this court as a rule for the construction of surveys and grants, that the most material and certain calls must control those that are less material and certain. A call for a natural object, as

Brown v. Huger.

river, a known stream, or a spring, or even a marked tree, shall control both course and distance.

The recent decision of French v. Bankhead, in the 11th of Grattan, p. 136, decided by the supreme court of Virginia, within which State are the lands embraced in this controversy, has an important bearing upon the cause, as it shows the interpretation, by the highest tribunal of that State, of grants made by her with reference to lines running to water-courses, and of the effect of water-courses upon such boundaries. In the case just mentioned it was ruled that the water boundary, though run by course and distance, would be controlled by the actual course of the shore, and would pass the right to the property to low-water mark.

Upon the reasoning herein before declared, and upon the authorities cited, to which others might be added, we are of

*

the opinion that the patent from the State of Virginia, [* 322 ] of the date of July 29, 1851, was unwarranted and illegal, as having embraced within it lands which were not waste and unappropriated, but which had been previously granted by competent authority, and long in the possession of the patentee and those claiming title under him. We are further of the opinion that the construction of the eircuit court in relation to the character and effect of the elder and junior grants of the land in controversy was correct, and that its decision should therefore be, as it is hereby, affirmed, with costs.

INDEX.

ADMIRALTY.

COLLISION.

1. Where a steamboat discovers that she is approaching any object, which may probably
be another vessel, and is uncertain about its position or course, it is the duty of those
in charge of her to slacken her speed, or stop altogether, until she can proceed
with safety. The Steamer Louisiana, 21 H. 1......645.

2. There is, by the maritime law, no general rule requiring sailing vessels to carry
lights at night. Such a vessel is therefore not in fault for want of one on a moon-
light night, however it might be under different circumstances. Ib.

3. The omission of a light in the night, required by an ordinance of a city, when she is
anchored in the usual track of vessels, is a fault for which she is liable. This is also
a fault by the maritime law. The General Clinch, 21 H. 184......732.

4. But a steamboat with a tow, which she brings into collision with such a vessel, is
also in fault when the night is so clear that the vessel at anchor can be seen, and
when the steamboat has no sufficient lookout, and is otherwise careless and negli-
gent. Ib.

5. The vessel in tow which produced the damage by collision is not in fault when she
was suddenly detached from her tug, when on a course that must produce the colli-
sion, and with no time to change it or prevent the result. Ib.

6. In such case the steamer and the vessel at anchor, both being in fault, must divide
the damage of the collision between them. Ib.

CONTRACT OF AFFREIGHTMENT.

1. A common carrier on inland waters is responsible for the safe delivery of the goods,
unless excused by the act of God or the public enemy. The Propeller Niagara, 21 H.

7......649.

2. This liability, however, may be varied by the contract of affreightment, generally
found in the bill of lading, excepting dangers of navigation. Ib.

3. It is the duty of the owners of vessels engaged in commerce to provide a competent
master and suitable crew; and the vessel is responsible for the want of care and skill
of the master. Ib.

4. In the present case, the evidence leaves it very doubtful whether the vessel should
not be held liable for the act of the master in entering a port on the lake in a storm,
when his vessel was sound and apparently safe outside. Ib.

5. But, as this is doubtful, it is not necessary to hold the vessel responsible on that
ground. Ib.

6. But he is responsible for the damage to the cargo growing out of his leaving his
injured vessel, with the cargo in it, at the port of Presque Isle, when it satisfactorily
appears that, by reasonable care and diligence, he could have landed and stored his
cargo, or have repaired his vessel and proceeded on his voyage. Ib.

INTEREST.

1. Interest on judgments at law and decrees in chancery is allowed by the rule of this

court, on affirmance of the judgment or decree below, after the rate allowed by the
laws of the State in which the court was held. The Ship Independence, 20 H. 255
......387.

2. But interest on decrees in admiralty so affirmed is matter of special allowance or
refusal, and requires an order from this court; therefore, where a decree is affirmed by
reason of an equal division of the court, no interest can be allowed. Ib.

JURISDICTION ABOVE TIDE WAter.

1. The admiralty jurisdiction of the courts of the United States is not dependent upon
the ebb and flow of the tide. The Steamboat Magnolia, 20 H. 296......412.

2. Nor is it defeated because the place of the transaction was within the body of the
county of a State. Ib.

3. Therefore it extends to a case of collision in the waters of a river navigable from
the sea above tide water; and this is by virtue of the act of 1789, and is not depend-
ent on the act of 1845, concerning the fresh waters of the lakes and the rivers which
empty therein. Ib.

4. Where a vessel has been seized under a process of attachment in a State court, and is
in the actual custody of the sheriff, no valid seizure can be made of her so as to give
jurisdiction in proceedings in rem in the district court of the United States sitting
in admiralty. Taylor v. Carryl, 20 H. 583......616.

5. Consequently, where the vessel was sold under the attachment proceeding, having
been in the actual custody of the sheriff until the sale, and was afterwards sold under
the decree of the admiralty court, the title was in the purchaser under the attach-
ment proceeding See Freeman v. Howe, 24 How. 450; Buck v. Colbath, 3 Wall.
334. Ib.

6. In the absence of any act of congress covering the same subject, the ordinances of a
city prescribing for her port at what wharf a vessel may lie, how long she may
remain, where she may load or unload, where she may anchor and for what time,
and what description of light she shall display, are valid, if they do not conflict with
the general admiralty law. The General Clinch, 21 H. 184......732.

7. The act of congress of February 26, 1845, concerning the admiralty jurisdiction on
the lakes and their connecting waters, is confined to vessels employed in the business
of commerce and navigation between ports of different States. The Fashion. Allen
v. Newberry, 21 H. 244......767.

8. It is also a fair construction that it is limited, when the suit is on a contract of
affreightment, to cases where the carrying was to be between ports of different
States.

Ib.

9. Contracts of affreightment to be performed on rivers wholly within a single State
are not the subjects of admiralty jurisdiction; and so also in regard to supplies fur-
nished to a vessel so engaged. The Goliah. Maguire v. Card, 21 H. 248......771.
10. Nor will the federal courts sitting in admiralty enforce the statutory liens given
by State laws for such contracts. Rule 12 of the admiralty rules of this court, as
amended at this term, explained and defended. Ib.

MARITIME LIEN.

1. Where a number of persons, as partners in a lumber venture, shipped lumber on a
vessel, of which the master and part owner was also a partner in the lumber, and
agent for its sale, a suit in admiralty cannot be sustained by the owners of the ves-
sel, including the master, against the other partners in the lumber, for a balance due
for freight. It is a case for a court of equity. Grant v. Poillon, 20 H. 162......335.
2. A contract for the construction of a vessel is not a maritime contract, because it is
neither made nor performed on the water. No maritime lien is created by the per-
formance of such a contract. The People's Ferry Company v. Beers, 20 H. 393......488.
AGENCY.

1. Where one of a number of obligors in a promissory note was appointed to negotiate