Knox and Banerji, JJ.
1. The plaintiffs-appellants are the owners of certain villages in the district of Dehra Dun, which originally formed part of a grant made by Government to the widow of Captain Raynor in 1865. To the west of those villages lies a hill stream called the Jakhan Rao, and to the west of the stream is a forest belonging to Government.
2. It is alleged on behalf of the plaintiffs that the western boundary of their villages extends to the mid-stream of the Jakhan Rao, and that they are thus the owners of one-half of the bed of the stream. On behalf of the defendant it is asserted that the western limit of the plaintiffs' villages is the eastern bank of the Jakhan Rao, and that the whole of the bed of that stream belongs to the Government. An order to that effect was passed by Mr. Church, Superintendent of Dehra Dun, on the 26th February 1883.
3. The present suit has been brought by the plaintiffs to have the western limit of their grant determined, and for a declaration that their property extends to the mid-stream of the Jakhan Rao.
4. The defendant denied the title set up by the plaintiffs and pleaded limitation.
5. The Court below has dismissed the claim.
6. The sanad of grant in favour of Mrs. Raynor is printed on page 5 of the appellants' book, and is dated the 3rd of August 1865. By it the Government of the North-Western Provinces, 'in consideration of the good services performed by the late Captain William Raynor, V.C., of the Veteran Battalion, one of the gallant defenders of the Delhi Magazine in 1857,' granted to 'his widow and to his heirs, representatives and assigns, the proprietary right rent-fee in perpetuity in the tract of land measuring 2,000 acres.' The boundaries of the land are specified, the western boundary being 'Jakhan Rao.'
7. It is contended on behalf of the plaintiffs that the legal effect of this conveyance was to pass to Mrs, Raynor the bed of the Jakhan Rao usque ad medium filum.
8. The rule of law on the subject was laid down by Cotton, L.J., in the well-known case of Micklethwaite v. Newlay Bridge Co. (1886) L.R. 33 Ch. D., 133, at p. 145, in the following terms:--'In my opinion the rule of construction is now well settled, that where there is a conveyance of land, even although it is described by reference to a plan, by colour, and by quantity, if it is said to be bounded on one side either by a river or by a public thoroughfare, then on the true construction of the instrument half the bed of the river or half of the road passes, unless there is enough in the circumstances, or enough in the expression of the instrument to show that that is not the intention of the party. It is a presumption that not only the land described by metes and bounds, but also half the soil of the road or of the bed of the river by which it is bounded, is intended to pass, but that presumption may be rebutted.' This rule has been followed in subsequent cases, of which we may only mention the recent case of Ecroyd v. Coulthard L.R. 1897, 2 Ch. D., 554. The Court below refused to apply it to the present case on the ground that it is not applicable to a case in which the Crown lays claim to the soil of the bed of a river. We are unable to agree with this view which the learned Counsel for the respondent has conceded to be erroneous. In Lord v. The Commissioner for the City of Sydney (1859) 12 Moo., P.C 473, it was held that the grant by the Crown of land bounded by a creek passed the soil of the creek ad medium filum aqua, and that this rule 'equally applies, whether the subject-matter be a grant from the Crown or a subject.' And the rulings to which the learned Judge has referred do not lay down a different view.
9. It was, however, contended on behalf of the respondent that the Jakhan Rao was not a river, and that the rule of midstream did not apply to it. With reference to this contention which, we may observe, was not raised in the Court below, we referred certain issues to that Court. Upon the findings on those issues the Jakhan Rao must be held to be a river. It has a perennial source, a bed and well-defined banks on either side: water flows in it for a part of the year, and it discharges itself in a continuous flow into another river, the Suswa. It has thus all the elements which constitute a river to which riparian rights attach. The water, it is true, dries up, and the bed remains dry for several months in the year, but it is not necessary that 'water should flow in it continually.' (See Tagore Law Lectures on the Law of Riparian Rights, p. 81, and the authorities cited therein). We therefore hold that the Jakhan Rao is a river. It is so described in the wajib-ul-arzes of the villages through which it passes. It was treated as such in the reports of the revenue officers, and the parties and the Court below proceeded on the assumption that it is a river. It is too late therefore now to contend that the presumption of law which arises in the case of rivers does not apply to the Jakhan Rao.
10. The presumption that by a conveyance of land abutting on a river the bed of the river ad medium filum passes to the grantee may no doubt be rebutted, but do any circumstances exist in this case which rebut the presumption? The circumstances relied upon are, that the quantity of land granted is specified in the grant; that when the land was measured and entered in the khasra the bed was not included in the measurement; that in some of the maps the bed was not shown as a part of the grant; that as the bed yields lime-stones, which are a valuable source of income, it would have been to the interest of the Government to retain the bed and it is not likely that it was intended to be conveyed by the grant. All these arguments are fully met by the observations made by Lopes, L.J., and Cotton, L.J., in Mickleth waita v. Newlay Bridge Co. Lord Justice Lopes said:--'If land adjoining a high-way or river is granted, the half of the road or the half of the river is presumed to pass, unless there is something either in the language of the deed or in the nature of the subject-matter of the grant, or in the surrounding circumstances, sufficient to rebut that presumption, and this, though the measurement of the property which is granted can be satisfied without including half of the road or half of the bed of the river; and although the land is described as bounded by a river or a road, and notwithstanding that the map which is referred to in the grant does not include the half of the river or the road.' And Cotton, L.J., observed:--'When the rule is once established as a rule of construction, we are not at liberty to depart from it merely because it is shown that it would have been to the interest of the vendor to retain the half of the bed of the river.' As in that case, so in this, there is nothing in the language of the sanad, or in the nature of the property, or in the surrounding circumstances to exclude the presumption of a grant of a half of the bed of the Jakhan Rao to Mrs. Raynor. On the contrary, it appears from a memorandum, dated the 14th April 1874, on the recently settled boundaries in the Dun Forests, forwarded by the Conservator of Forests to Captain Bailey, Superintendent, Forest Surveys, that it was declared by the Forest authorities that 'the centre of the Jakhan Rao constitutes the boundary between the Government forests and the several grants.' (of appellants' book, p. 17). It was urged by the learned Counsel for the respondent that had it been intended to make a grant to Mrs. Raynor of any portion of the bed of the Jakhan Rao, the Forest Officers would not have raised objections, so far back as 1877, and asserted that the western boundary of the grant was the eastern bank of the Rao. This argument has no doubt much force, and it derives support from the correspondence printed on page 17 of the appellants' book, It must, however, be remembered that the grant had been made twelve years before, i.e., in 1865. In 1871, Mrs. Raynor asserted that her boundary extended into the bed of the Jakhan, and that she had been taking lime-stones from it for five years preceding the date of her letter. It has been proved by the oral evidence adduced in the case, and specially by that of Mr. Raynor, that pillars were erected shortly after the grant along the middle of the bed of the river, and that lime-stones were appropriated by Mrs. Raynor and her son. The statement of Mr. Reynolds that permission was obtained from Forest Officers by Mrs. Raynor for burning lime is contradicted by that evidence. The inability of Mr. Reynolds to produce any application for permission very much weakens his statements (see correspondence, p. 11, respondent's book). Mr. Reynolds has admitted in his deposition that he was not aware of any facts which would prove actual possession of the Rao. The same may be said of the evidence of the other witnesses for the defendant. It has been fully established that in spite of the objections of the officers of the Forest Department, Mrs. Raynor and her successors in title remained in possession of the bed of the Rao, and prevented Government contractors from taking lime-stones from it. The possession of Mrs. Raynor is admitted, even in Mr. Church's order of the 26th of February 1883 (pp. 18 and 19, appellants' book). We are unable to agree with Mr. Ryves' contention that this order operates as res judicata. We are not satisfied on the evidence that the plaintiffs or their predecessors have been out of possession, that the defendant has been in adverse possession, and that the claim is beyond time.
11. A faint attempt was made to show that Mrs. Raynor relinquished all claim to the bed of the Jakhan Rao on obtaining 400 acres of land. But there is no satisfactory evidence to connect the grant of the 400 acres with the claim to the land now in question. Mr. Raynor has stated that it had reference to another claim which his mother had against Government.
12. We hold that the western boundary of the plaintiff's property is the centre of the bed of the Jakhan Rao, and that the plaintiffs are entitled to a declaration to that effect.
13. We allow the appeal, set aside the decree of the Court below, and decree the claim with costs in both Courts.