likely to be repeated on another trial, and are not of sufficient importance to require a review of them on this appeal.

By the COURT. The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.

ASSAULT — INTENT TO HARM — NECESSITY FOR. -There may be an actionable assault, although there was no specific intent to do harm: Mercer v. Corbin, 117 Ind. 450; 10 Am. St. Rep. 76, and note. When a party, by an act which he could have avoided, and which he cannot justify, inflicts injury upon another by force, he is answerable in damages to the person injured: Goldsmith v. Joy, 61 Vt. 488; 15 Am. St. Rep. 923.

DAMAGES RECOVERABLE FOR ASSAULT.—In an action for assault, damages cannot be recovered by way of punishment, but the plaintiff is entitled to compensation for the injury done him: Beck v. Thompson, 31 W. Va. 459; 13 Am. St. Rep. 870, and note; note to Goldsmith v. Joy, 15 Am. St. Rep. 930; Morgan v. Kendall, 124 Ind. 455.

ALLEN V. WEBER.

[80 WISCONSIN, 531.]

BOUNDARY, WHEN LIMITED TO MARGIN OF THE RIVER. Conveyance in which lands are described as running to low-water mark on the westerly side of F. River, and thence northerly along low-water mark on the west side of F. River, as established by a certain dam, to a town line, etc., does not include the land between low-water mark and the thread of the stream. Nor is this construction of the deed rendered inapplicable by the further fact that the grantor, being the owner of a dam, reserved the right of the flowage,

STATUTE DECLARING A RIVER TO BE A NAVIGABLE STREAM cannot affect rights of riparian owners or of owners of a dam acquired before the pas sage of such statute.

ACTION to enjoin the cutting of ice in a mill-pond alleged to belong to the plaintiff. This pond was a part of Fox River, and it was conceded that it at one time was the property of R. N. Kimball, who executed a conveyance to one Poorman, the descriptive words of which, so far as material, appear in the opinion of the court, and whatever title passed by this deed had become vested in the defendants. Subsequently Kimball conveyed the strip between low-water mark and the thread of the stream to plaintiff, who was in possession thereof. In the deed from Kimball, he reserved "the right to overflow said land with the water of Fox River and said millpond, and of keeping and maintaining a certain mill-dam at its present height, or any other height not exceeding the

height thereof as established and ascertained by a survey and measurement thereof" referred to in the deed. Judgment in favor of the plaintiff.

T. E. Ryan and E. Merton, for the appellants.

C. E. Armin, for the respondent.

ORTON, J. The respondent is the owner of that part of the northeast quarter of section 3, township 6, range 19 east, which is known as the "Saratoga Mills property," at Waukesha, and of that portion of the mill reserve and water used in connection therewith on the Fox River not heretofore conveyed to others.

The appellants are the owners of a strip of land containing about two acres on the westerly side of the mill-pond of the plaintiff, on which they have erected an ice-house for the storage of ice cut from Fox River or said mill-pond for the use of Bethesda brewery, and for other purposes. This strip is described in their deeds as follows: "Beginning at a point on the center of Union Street, where the same presumably intersects the easterly line of lot 4, in the Northwest Addition to the plat of Prairieville [now village of Waukesha]; thence running easterly on the continuation of the center line of Union Street to low-water mark on the west side of Fox River; thence running northerly along the low-water mark on the said westerly side of Fox River to the town line, where said town line presumably intersects and divides the towns of Pewaukee and Waukesha; thence running west along the said town line to the northeast corner of block X; thence southerly along the east line of said block X, and southerly along the corner of said block X (or the center of Union Street), being the place of beginning; containing two acres, be the same more or less."

The respondent brings this suit to restrain the appellants from cutting ice on said mill-pond, and for an accounting of ice already taken away from said pond. His action is predicated upon his ownership of the bed of the river or pond, and to low-water mark on the west side thereof, the east line of the appellants' land.

The appellants defend,-1. As the owners of the fee in the soil covered by the river or pond to the center thread thereof, by virtue of the above description of their strip of land on the west side of said river or pond; 2. As riparian owners of the

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shore of said river or pond as a navigable stream; 3. On the ground that the purchase and ownership of the said strip of land were solely for the purpose of building ice-houses thereon, and to obtain ice from said pon

The judgment is, that the plaintiff is the owner in fee of all that portion of the bed of Fox River embraced within the limits of mill reserve in the town of Waukesha, and was at the commencement of the action, and that the east boundary of the lands owned by the defendants upon the west side of Fox River is limited to low-water mark upon the westerly side of Fox River, and that by the conveyance they took no title in fee as riparian proprietors to any part or portion of the bed of said Fox River easterly from the line fixed in said deed as lowwater mark on the west side of Fox River. It is further adjudged that the plaintiff recover of and from the defendant his damages, assessed at the sum of six cents, and his costs, etc., and that the injunction be dissolved.

The mills and mill-pond at Waukesha are so ancient that in all the later conveyances the pond is called the Fox River at that place, and the low-water mark of the river means the low-water mark of the pond. The above-stated defenses constitute the points made by the learned counsel of the appellants on this appeal from the above judgment, and they will be considered in their order.

1. The above description in the conveyances to the appellents makes their strip of land extend to the center of the pond. The description of their east line is peculiar. It is "the continuation of the center line of said Union Street to the low-water mark on the west side of Fox River; thence northerly along the low-water mark on the said westerly side of Fox River to the town line," etc. The doctrine asserted by the learned counsel, that as to lands which extend to and cover the banks of navigable streams, the presumption is, that it was the intention to convey all the rights of the grantors to the bed of the stream, to the center thereof, is undoubtedly correct. But this is a mere presumption, and may be rebutted by the strong language of the deed, clearly indicating the intention to establish the line at the margin of the stream. There could be no language of description more clearly indicating the exact line than is found in the conveyances of this strip of land: "To low-water mark; thence northerly along the low-water mark." This language could have no other meaning than to indicate the intention of the grantors to limit

the premises, and establish their boundary at that line "along low-water mark."

In principle, this case is decided in Greene v. Nunnemacher, 36 Wis. 50. That was a case for abatement of the nuisance created by a distillery. One part of the damages was for corrupting the waters of the Kinnickinnic River, and rendering them unfit for use by the plaintiff as a riparian proprietor on said river. The deed by which the plaintiff held his premises described his land as "running along the bank" of said river. The present chief justice said in his opinion: "For, according to the description of the premises as given in the deed, there is reason for saying that they are limited to the river bank, and do not in fact include the bed of the stream or the waters of the same." Chief Justice Ryan, then at the bar, was counsel for the appellant, and cited the following authorities to the point that the description of plaintiff's land limits the same to the bank of the creek: Angell on Watercourses, secs. 8, 26; Cary v. Daniels, 5 Met. 236; Crittenton v. Alger, 11 Met. 281; Starr v. Child, 20 Wend. 149; Child v. Starr, 4 Hill, 369; Hatch v. Dwight, 17 Mass. 289; 9 Am. Dec. 145; Starr v. Child, 5 Denio, 599. This shows that the point was well considered by the court. The language "along the bank" is not as certain and specific as the language "along low-water mark."

In the following cases, the line is limited by the description, and no part of the bed of the stream is conveyed: "Thence northeasterly up the west bank of Pine Creek": Murphy v. Copeland, 51 Iowa, 515; 58 Iowa, 409; 43 Am. Rep. 118, and cases cited. "To and along the bank": Halsey v. McCormick, 13 N. Y. 296; People ex rel. Comm'rs v. Supervisors, 125 Ill. 9. "As far as high-water mark" is the outer line of the overflow of a mill-pond so described in the conveyance: Jones v. Parker, 99 N. C. 18. "To the Genesee River; thence northwardly along the shore of said river": Starr v. Child, 20 Wend. 149. In Murphy v. Copeland, 51 Iowa, 515, it was held that "along the bank" was equivalent to "along low-water mark," and the same in Halsey v. McCormick, 13 N. Y. 296. In Cook v. McClure, 58 N. Y. 437, 17 Am. Rep. 270, the language is: "To a stake near the high-water mark of the pond, running thence along the high-water mark of said pond to," etc., and it was held that the line was limited at high-water mark, and would not extend even to low-water mark. This case is exactly in point. In Bradford v. Cressey, 45 Me. 9, the language is: "Thence east until it strikes the creek on which the mill

stands; thence southwesterly on the west bank of said creek," —and it was held that "the grantee was restricted to the bank of the creek." The line so described is a monument and fixed boundary: Angell on Watercourses, sec. 25.

From the language of the description of the defendants' strip of land itself, it is perfectly clear that low-water mark was made a fixed and permanent boundary. If the situation of the strip on the pond is consulted, that would evince the same intention. It was contiguous to a very old mill-dam belonging to the grantors, now called the Fox River at that point. It was not likely that it was intended to give the grantees of this strip any interest in the waters of the pond, or any control over the water-power or interference with it. Such a situation of the strip clearly indicates the intention to so limit the eastern line to low-water mark, and not have it extend ad filum aquæ of the pond. Such a reason was held to prevail in Smith v. Ford, 48 Wis. 115. The owners of the water-power and mill-dam are the only riparian proprietors of the land covered by the pond to low-water mark on the west, and therefore owned the ice formed on the pond: Brantley on Personal Property, sec. 98; Lawson's Rights, Remedies, and Practice, sec. 1345.

2. The declaration made by the legislature of 1868, that Fox River is a navigable stream, could not possibly affect the rights of the owners of the dam, acquired long before, or make the dam navigable, or any other part of Fox River, in any other sense than mere theory. The defendants' rights are ixed by their deeds, and that act certainly could not change them in the least.

3. The object of the purchase of the strip-to build icehouses on it would not imply ownership of the ice, for he could procure from the owner the right to cut ice on the pond, or buy the ice cut by others, and fill his ice-house in that way. But at best such a purpose would not affect the deed, or the natural construction of its language. Deeds would be very inconclusive if they were to be governed by the use the purchaser intended to make of the land. Such a use might require twice the quantity of the land conveyed, with a complete change of its boundaries.

4. It is contended that a reservation in the first deed of this strip of the right of flowage by the owner of the dam indicates an intention to convey to the center of the pond. By that reservation the grantor reserved the right to flow the