and accepted it, 151 and plaintiff said he would pay for it, the plaintiff would be liable for the value of the window and frame, and defendant would be entitled to credit for the

The defendant could not put a betterment on the house without request, and, by such officious act, make the landlord his debtor. Nor, if the consideration was passed, would the promise of the plaintiff to pay therefor be binding, being gratuitous and without a consideration moving thereto. But the window and frame being a betterment to the house, of future benefit, if the plaintiff "accepted the same and promised to pay for it" (as the court charged), there were all the elements of a valid contract, for the tenant had a right to remove all betterments affixed by him, if done before the lease expired, if this were done without injury to the freehold. State v. Whitener, 93 N. C. 590, bottom of page, citing Tyler on Fixtures, pages 384, 385, on the very point of the right of a tenant to remove windows placed by him in a windowless house. If, under such circumstances, the plaintiff promised to pay for the window, this was ratification and acceptance.

This distinction reconciles the authorities. As the plaintiff contends, an executed or past consideration is no consideration to support an express promise in cases where the law does not raise an implied promise: 6 Am. & Eng. Ency. of Law, 690, 693; Allen v. Bryson, 67 Iowa, 591, 56 Am. Rep. 358, 25 N. W. 820. In Bailey v. Rutjes, 86 N. C. 517, Rutjes was lessee of the premises for five years, under a contract to make certain betterments. The plaintiff furnished the lumber to Rutjes for the purpose. He sued Rutjes and the lessors jointly, and the court held that, unless the lessors "were originally liable by reason of a contract of some sort, they cannot be made so because of their having resumed possession of the premises, with its improvements, upon the surrender of their tenant; . . . . nor, under such circumstances, would a promise to pay, after the lumber had been furnished and used, be binding on them, since it would be purely gratuitous, and, as such, would make no contract."

152 But here the jury find that the plaintiff expressly agreed to pay for the window and frame their cost-one dollar and seventy-two cents-and the only query is whether the promise is void for lack of consideration. If the only claim were that, at the expiration of the lease, as in Bailey v. Rutjes, 86 N. C. 517, the property passed to the plaintiff, with the window and frame added, there would be, as in

that case, no liability of plaintiff, either to the maker of the window and frame or to the defendant. And even if, after the expiration of the lease, when the house, with its betterments, had already passed back to the landlord, he had then made an express promise to pay for the betterment, this would have been unenforceable because nudum pactum, being a promise to pay for what had already become his property.

But here the express promise, which the jury find was made, was made during the tenancy. The tenant had a right to remove the window, if before he went out, provided this could be done without injury to the freehold: 24 Cyc. 1101. It does not appear that it would have been irremovable, for the jury find that the plaintiff promised to pay for it. If so, he must have desired to keep it there, and that it was desirable to keep it appears from the plaintiff's own testimony that "the room was eighteen by eighteen feet, with no light except from the door." Such a house was unsanitary, and would be condemned by any board of health. Both parties testify that the conversation occurred during the tenancy and at the time when the defendant was doing work putting in the window, the plaintiff denying and the defendant affirming a promise to pay for the same.

A landlord cannot be "improved" into a liability for improvements put upon his property by the tenant without authority. Nor can anyone be held liable legally for a promise made without consideration; but here the betterment to the house was accepted at the time by the plaintiff, who promised to pay the one dollar and seventy-two cents for it, as the jury find. He has lost nothing, but still has the consideration of better light for a large room, which before had no light except from the door.

No error.

The Law of Betterments is the subject of an extended note to Cleland v. Clark, 81 Am. St. Rep. 164.

PATAPSCO GUANO COMPANY v. BOWERS-WHITE LUMBER COMPANY.

[146 N. C. 187, 59 S. E. 538.]

DEEDS-Boundaries-Artificial Pond.-Under a deed bounding the land therein surveyed by an artificial pond which has been in existence long enough to become a permanent body of water and is still being kept up and maintained as such, the line of the land conveyed does not extend to the thread of the stream from whose waters the pond was formed, but only to the low-water mark of the pond at the date of the deed. (p. 475.)

A. Dunn, for the plaintiff.

Kitchin & Smith, for the defendant.

187 BROWN, J. It is unnecessary to set out the lengthy statement of facts agreed contained in the record. It is admitted that the case turns upon the construction of a deed from R. H. Smith to George W. Graffin and upon the following call in the deed: "And thence down the bottom to the pond and Kehukee swamp.' His honor was of opinion that this line extended to the run of the swamp and did not stop at the edge of the pond. It is admitted that the pond called for is a well-known and long-established pond, known as "Smith's mill pond." Taking the deed by "its four corners," and reading it in the light of the facts agreed, we find ourselves unable to agree with his honor. We are of opinion that "the reason of the thing," as well as the authorities, sustain the defendant's contention that the aforesaid line stops at the edge of the pond.

188 It is unnecessary to discuss the case of Wall v. Wall, 142 N. C. 387, 55 S. E. 283, Brooks v. Britt, 15 N. C. 481, and other cases cited in the brief of the learned counsel for plaintiff. They do not militate at all against our conclusion. If the words "down the bottom to the pond" did not occur in this deed, the authorities cited would be in point. The insertion of those words in this deed, under the circumstances under which it was made, denotes the intention of the grantor to stop at the pond, and the use of the words "Kehukee swamp" serves only to indicate what waters flow into and make up the pond, and thus to locate it. If this were not so, there would have been no use in calling for the pond. Smith's pond appears to be an old-established pond, of large dimensions, which has existed "Since the time whereof the memory of man runneth not to the contrary." It appears

to us that the circumstances and facts of the case strongly support defendant's contention. Smith owned the land covered by the pond and swamp and the lands adjoining, including the lands described in the deeds to plaintiff and in the deed to Brinkley, through whom defendant claims. He was the owner and operator of the mill, which from time immemorial had been run by the waters of the pond. The pond covered one hundred acres or more, and had been maintained through generations. The margin, bank or edge of said pond is clearly marked by nature and well defined. The channel or run (to which plaintiff claims the call in said deed extends) of said pond and swamp had a well-known and specific name, separate and distinct from the pond and swamp, rising miles above the said swamp and pond. This was known as "Kehukee run," while the swamp-the low, boggy land on either side was known as "Kehukee swamp," and the pond as "Smith's mill pond." With these patent facts before the parties when the deed was made, it is evident Smith intended to convey only to the pond and did not intend to convey the pond itself, which he would have done had he extended the call to the run of the swamp from which the pond had been created. It is hardly to be presumed that Smith intended to destroy the value of his mill by selling its pond, for it appears that immediately after the execution of the Graffin deed Smith conveyed to Brinkley "the tract of land known as Smith's mill pond, including the mill pond, mill,” etc. Ever since then Brinkley and those claiming under him have operated the mill by the power furnished by the waters of that pond. Our conclusion is supported by abundant authority. The two encyclopedias sum up the authorities by saying: "It is perhaps the prevailing doctrine, regarded as particularly applicable to the large lakes of this country and qualified in the case of artificial ponds, that, while a general grant of land on a river or stream which is non-navigable extends the line of the grant to the middle or thread of the current, a grant to a natural pond or lake extends only to the water's edge": 12 Am. & Eng. Ency. of Law, 1st ed., 642.

189

"Land bounded on a pond extends only to the margin, and the margin of the pond as it existed at the time of the conveyance is the limit, whether the pond was then in its natural state or raised above it by a dam": 5 Cyc. 901.

The American and English Encyclopedia (at page 653) states the true principle of construction, which differentiates this case from those cited by plaintiff: "The boundary upon

an artificial pond raised by a dam swelling a stream over its banks presumptively extends to the thread of the stream, unless the pond has been so long kept up as to have become permanent and to have acquired another well-defined boundary.'

To the same effect and in practically the same language the rule is announced in Waterman v. Johnson, 13 Pick. (Mass.) 261, and afterward approved in Paine v. Woods, 108 Mass. 160. This rule of construction would not hold good in the case of a purely artificial pond temporarily maintained, the margin or banks of which had not been long established and 190 clearly marked. Smith's pond is a permanent body of water, which has existed in its present status for generations past, and its margin must necessarily be a landmark well known in the community. We think the principles herein laid down are fully supported by the following authorities among text-writers: Angell on Watercourses, 6th ed., sec. 41; 3 Washburn on Real Property, 5th ed., p. 443; Gould on Waters, sec. 203; Devlin on Deeds, sec. 1026; and also by many decided cases; West Roxbury v. Stoddard, 7 Allen, 158; Nelson v. Butterfield, 21 Me. 220; Hathorne v. Stinson, 12 Me. 183, 28 Am. Dec. 167; Diedrich v. Northwestern U. R. R., 42 Wis. 248, 24 Am. Rep. 399. It being admitted that the pond called for is known as Smith's mill pond, we have a definite and certain identification of the thing called for, amply sufficient to uphold a conveyance of the land covered by its waters, had the land under the pond been conveyed by that name. My Lord Coke says, in substance, that where a collection of water has by long existence and usage acquired a specific name, the land by which it is covered may be conveyed under that name, and illustrates it thus: "Stagnum or poole doth consist of water and land, and therefore by the name of stagnum or poole the water and land shall pass also": Coke's Littleton, 5b.

If land may be conveyed by describing it by a well-known name given to a collection of water covering it, we think that it is equally proper to hold that a boundary line might be located and terminated by calling for such body of water by name. The most interesting and well-considered case on the subject that we have examined is Boardman v. Scott, 102 Ga. 404, 30 S. E. 982, also reported with copious notes in 51 L. R. A. 178. In this case all the authorities are collected and carefully and elaborately reviewed by Mr. Justice Fish, who, in a headnote by himself, state the great weight of authority to hold: "Under a deed bounding the land therein conveyed