WHITEHURST V.y'DONALD.
633
to this property by nonuser for the purpose for which it was obtained. There is no evidence of the intention of the railroad company to abandon the use of the land for the purpose for which it was obtained, ex<lept itsnol1user for that purpose up to this time. Under the circum'.stances of this case, that is not enough to show an abandonment. JohruIton v. H.'lJde, 33 N. J. Eq. 632. At the tirnethe railroad company obtained the property from Mrs. Foltz there was no condition that it was to be used for machine shops, etc., within a certain time. A railroad may properly provide for future requirements af a more extended traffic, and may condemn more land than it at present needs, but only what may in good faith be presumed necessary when its traffio shall be extended. Mills, Em. Dom. § 58; note, p. 352, 27 Amer. & Eng. R. Cas., (In re Staten Island Rapid Transit R. Co., [N. Y. App.] 8 N. E. Rep. 548.) The acts of Mrs. Foltz are of a character to create a condition where the railroad company holds the property by an implied contract. This is equivalent to a grant by Mrs.. Foltz. This property, obtained by grant, expressed or implied, is not lost by a mere nonuser for the length of time the railroad company has held the property. Barnes v. Lloyd, 112 Mass. 224. In Eddy v. Chace, 140 Mass. 471, 5 N. E. Rep. 306, the supreme court of Massachusetts said: "Mere nonuser of an easement like the one in question, thougb continued for more than 20 years, will not extinguish it. The owner of an easeolent may abandon it, but mere nonuser does not show an abandonment. To;effect this the nonuser must originate in or be accompanied by some decided and uneqUivocal acts of the owner inconsistent with the continued existence of the easement, and showing an intention on his part to abandon it. '.'
There may have been a nonuser af the part of the land in controversy for tbe time the railroad company bas .had it, but that does not of itself amount to an abandonment of the land. There must be other evidence of an intention to abandon it. Johnston v. Hyde, 33 N. J. Eq. 642. I think tbat the injunction should be made perpetual to restrain Mrs. Foltz from proceeding w.ith her action of ejectment for the recovery of the lands in controversy, and it is so decreed.
WHITEHURST
et ai. v. McDONALD. No. 20.
(Circuit Court of ...4ppeals, Fou'l'tJl, Circuit. October 11, 1892.)
BOUNDARIES-NATURAL STREAM-RIPARIAN RIGlI'l'So
Where the calls in a conveyance of land are for two corners. one at high-water mark on the bank of a stream, and the other at the stream, and there is an intermediate line extending from one such corner to the other, the stream is the boundary, and all riparian rights pass, unless a different intention of the parties is·shown by either their conduct or the conveyance. County oj St. Cl,a,ir v. Lovingston, 23 Wall. 46, and Rdilroad Co. v. Schwrmeier, 7 Wall. 272, followed. 47 Fed. Rep. 757, affirmed. . .
634 .LAppeaL£rom the Circuit,Co\lrt· pf: ,the United States far the Eastern ·DistI:ietl o{, lVixgillia. '. ' , " ' -,r'Ib,Equitlr.Bill by'Rich91'd,H.MqDooold against O. E. Whitehurst, 'Dtmi'eb J)j!.rroi'ner, Dennis Ethridge, and 'Frank Duschttrustees of the NorfOlk ClassinedBllilding Association, the:said Norfolk Classified Build· ing ;ASSociation, and Josaph,:B.Allen, 'tQ!l;emO\Te cloud froni I1nd to qniet titleJ .,judgment for compla.inant.47 Fed. Rep; 767.. Defendants appeal;:. JAffirmed. ' ,WmII fm. :Old, for appellllintsl. ': ' Robert:M.., Hughes" foraJPpellee. ", BeforeiBo:NDadd Circuit Judg,es, and SIMONTON, District Judge·
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'BOND;'f(ffirouit':Jll<lgtll,i ;,Irl'1857 Mary,'Tarrant diedseised\ of certain realestateiini;V"irginia. ;She, ;}eftsurviving ,her three children and two Marylj}. O. Tarrantl'The original Mary, 'J;1iri1snt:d.ied 'and MaryE. O. Tarrant:was" one of her , The real: estate of Mary Tarrant,biproper. proceedings iIi ltlle,e'ircnit,coutt of, tpeqity,ofNorfolk, was duly partitioned among her ,meiJrs,a.nd among 'othei':pl'opertyallotted to MaryE. O. Tarrant was a certain tract of land in the county of Norfolk, Va., pa.rtof the original Ta!;raot seiile9·. : After this,plltrtitiQn O. Tarrant,lntermarried. with ,one Oharles Dashiel,and,still, being seised of the!realestate, by 24, 1869; duly recorded, she GeorgeA-. Martin arid to E. J. Bennett and"Robert w:¢durdy, w'im',l1-nty. deed of even and delivery with the last-mentioned deed, and a' part of the same , transaction, ,the' parties grantees 'in it couveyed, to T.F. Owens, as trus111ndssoconveyed tOithelll, to: secure the purchase money for ,tee, :had' been given; Ma.rtin &: Elliott, Bennett, and McCurdy having defEtultedin payment dfthesehotes, T.F. Owens sold the property a.tt'lUblieauetion to Gilbel't 'Elliot: Gilbert Elliot, November 8, 1871, oonveyed 'the land to Charles Stewart, who by deed dated April 8, 1880, conveyed the same ta J Richard H. McDonald; the complainant, who took undisturbed possession of the land. On the 26th of June, 1884, Charles Dashiel and his wife, MaryE. O. Dashiel, conveyed to Obed E. Whitehurst one undivided half interest in so much of said tract awarded to her in the partition of her grandmother's estate as lies of t4e Elizaheth river, and between high-water.n1arkaJ}d by another deed, in 1887, they conveyed the other undivided half to Joseph B.Allen. This bill is filed' to remove this cloud from and to quiet title. n is altogether likely, if not quite certain, though it does not distinctly appear in the record, MaryE. O. Tarrant and Charles Dashiel"her husband, conveye<ltoElliot, Martin,.Bennett, and McOurdy in the 371.. of la.nd, allotted to ¥aryE. O. ,Tarrant by 'the circuit court of Norfolk,. the description in that deed followed the metes aud in tlle¢olPnllssipner's report. They m:\ke no reservation of any riparian rights iii 'the deed, and if she had any rights riparian
as
OOLUMBUSOONSTRUC'l'ION 00. II. CRANE 00.
derived from the fact that she. was seised of the land back of the water front, and bounded by the river, when she conveyed by the same metes cm.d bounds the land in pantition acquired, she conveyed, unless the deed made SOme reservaticlD, all the rights, privileges, and appurtenances which title to the ljtnd gave her. By the law of Virginia, the rights of riparian owners extend to low-water mark. Fhmchv. Bankhead, 11 Grat. 136. But whether or nQt the description ()f the land made in the from Mary E. O. Tammt.and her husband, Dashiel,.to Elliot, Martin, Bennett, and McCurdy, corresponded exactly with the ,metes and bounds given iJ;l, the repprt ,of the comm,issioners, the ption in that deed is sufficient to c.oQvey to the grantees all the riparian rights which the ownership of the land could give, incident and appurtenant to' adjacent land. One of the boundaries in this deed is in the following words: "Thence south, 32 degrees west, 12.15 chains," to a stake at high-water mark on the Elizabeth river; thence north, 57 degrees 15' seconds west" 17.90 chains, to the corner of J.W. Brinton's land. The only corner which Brintonls land there makell is with the Elizabeth river. The supreme court in County of St. Clair v. Loving8fQn, 23 Wall. 46, and Railroad 00. v. &hurmeir, 7 Wall. 272, has settled this question for us. "It may be considered," say the court, "a canon in American jurisprudence that where the cans in a conveyance of land are for two corners at, in, or on a stream, or its bank, and there is an intermediate line extending from one such corner to the other, the stream is the boundary, unless there is something which excludes the operation of this rule by showing the intention of the parties was otherwise." There is nothing here, either in the deeds themselves or in the conduct of the polties, who waited 15 years before finding out that they had any claim 10 nparian rights, to show any reason to exclude the operation of this canon of American jurisprudence, or that the grantors in the deed to Elliot, Martin et did not intend to come under it. We have not answered Beriatim the errors assigned, but what we have said answers them all. 'We think the decree of the court below was the proper one to make, and it is a.ffirmed, with costs.
CoLUMBUS CONSTRUCTION Co. II. CRANE
Co.
(CIrcuit Coun Q/ .Appeals, Seuenth. ctrcuu. October 1, 1891.)
No. 98. I. Ooln'BAOTS-BALB-AGBNOT.
PlaintiJ! and defendant entered into a written agreement, in whioh the defendant agreed to purchase in its own name and upon its own credit, as the agent irrevocable of the plaintiff, certain goods, and to deliver the same at,a specified time. HeW, that defendant was liable to plaintiff, as a vendor, for failure to deliver tlle roods according to the agreement. , The fact that there was attached to suoh agreement an exhibit showiug 8 form of contract with a manufacturer for the manufacture and sale of such JI'OOds clOljli SlOt blnd the defendant to procure the goods under such contract.
2.
8A.KB-CONSTBUOTION.