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State v. Sweetwater Point, LLC

Court of Chancery of Delaware

May 23, 2017


          Date Submitted: February 9, 2017

          Gerald I. Street and John I. Ellis, of STREET & ELLIS P.A., Dover, Delaware, Attorneys for Petitioner.

          Richard P. Beck, of RICHARD BECK LLC, Wilmington, Delaware; John H. Newcomer, Jr. and Thomas P. Carney, of MORRIS JAMES LLP, Wilmington, Delaware; Craig A. Karsnitz, of YOUNG CONAWAY STARGATT & TAYLOR LLP, Georgetown, Delaware, Attorneys for Respondents.


          GLASSCOCK, Vice Chancellor

          Real property is a unique asset. It cannot be consumed, although its fruits may. In can be conceptually possessed, but not physically deployed or moved. Ownership of realty is simply the right to exclude others from the use and fruits of the land. Nonetheless, ownership of real property is basic to, and perhaps the basis of, our economic system. Because land cannot be "possessed" in the way that personal property can, peaceful and efficient use and alienation require community acceptance of the identity of the landowner. In common law jurisdictions, the systematic registries of deeds to realty provide one of the most long-running and elaborate sets of historical documents available. Land grants in the area in context here-Sussex County-can be traced back to grants and patents from the European sovereigns who asserted ownership-by fiat and by force of arms-starting in the 17th century. A diligent and motivated researcher can carry title to a Lincoln farm field or a suburban Ocean View acre back to colonial times.

         Even careful registration, as with any work of humankind, is imperfect. Claims of title reaching back hundreds of years are inevitably dogged by imperfections; calls to boundaries that fail to close, or to monuments lost; bureaucratic transfer documents with incomplete property descriptions, and the like. Inevitably, therefore, disputes as to ownership arise. If every such dispute required a tracing of title over the entire history of the land back to the founding grant, litigation over title would be an expensive, exhausting, and frustrating pursuit. It would, in other words, resemble the case before me here.

         To avoid such problems inherent in title, the common law developed the doctrine of adverse possession. In Delaware law, exclusive use of a parcel of property-in a way that makes it clear that the claimant is asserting his rights over a prescriptive period of twenty years[1]-trumps record title. The utility of the doctrine should be obvious, but I admit it is more obvious to this judge now than at the time this title action was filed many years ago. Where multiple claimants assert different chains of title to a single parcel, the claimant who, with her predecessors, has openly asserted "possession" of the property for the prescriptive period trumps all others, and no wearisome title examination is required. Toward he who refers to the Delaware concepts of adverse possession and title by prescription as a quaint and senescent doctrine, my attitude echoes Mr. Scrooge: may he "be boiled with his own pudding, and buried with a stake of [Milton] holly through his heart."[2]

         If the doctrine of adverse possession applied here, this would be an easy case; the property involved has been used exclusively by the predecessors of one of the two claimants here, Sweetwater Point, LLC ("Sweetwater"), for a period exceeding twenty years. The other party seemingly forgot that it had taken a deed to the property in the 1930's, and made effectively no use of the parcel. The latter party is the State of Delaware, however, which as sovereign is exempt from loss of title by adverse possession, absent consent by statute.[3] This case, therefore, became a long slog through title documents and supporting evidence, back to a late colonial-era patent of a tract known as "Dry Boots, " at the headwaters of the Indian River above Millsboro. The parties have been indefatigable in pursuing this title claim.[4] As will be described below, this Memorandum Opinion addresses only the issue of title between the two claimants; a damages trial and determination awaits further litigation.

         Before I turn to the facts, it is appropriate to set the stage for what follows. Sussex is a long-settled land, and the ghosts and bones of the past poke through its (relatively) modern façade on every hand. The neighborhood of Dry Boots was, in times past, busy and commercial. Before the age of steam and fossil fuel, in a flat country like southern Delaware, elevation was power. Every odd fathom of drop in elevation along a creek represented potential energy, which was assiduously tapped. This is graphically represented in the maps bound as Beers Atlas.[5] A reader of that 19th century work will note millponds strung along Sussex creeks and branches like pearls on a necklace; each turning the stored energy of water behind a mill-dam into power to run industry: grist mills, saw mills, wool-carding machinery and the like. Millsboro is named for its many water-driven mills, all now gone or abandoned. Today, Indian River, the major waterway in eastern Sussex, terminates at the Millsboro Mill Pond dam. Before the dam, Indian River proper was formed by the confluence of its Mirey and Cow (or Doe) Bridge branches, at Dry Boots. The construction of Millsboro Mill Pond dam drowned the mouth of Cow Bridge Branch, but upstream, several more mill ponds and mills existed. One pond on the branch, Morris Mill Pond, near Zoar, remains; the others are gone, but remnants of the mills and dams-and the ghostly outlines of what once were mill ponds-persist.

         Of these latter, one is of particular importance here: the Doe Bridge Mill and its pond. There have likely been more than one mill at the site; the remains of a mill and race can be seen on the east side of the branch. The bridge that carried the Doe Bridge Road, once a prominent thoroughfare, over Cow Bridge Branch is gone. The road itself still exists, as a dirt lane in a forested area that is as quiet and pristine as any in the state. Only the borrow pits and the earthen portion of the dam, and the roadbed sunken into the earth by long passage of heavy loads, imply that here was a site of industry. Because the chains of title involved are difficult to follow, this Memorandum Opinion must trace that old roadbed, as a boundary line; comment on the ownership of the old pond bottom, and how it implicates the intent to transfer title to, and the location of, the disputed parcel; and opine on the location of homesteads once on a busy high road, now to be located only by the persistence of the still-blooming daffodils that once brightened their yards. After waterpower became obsolete, the area reverted to forest, and was eventually occupied by Sweetwater's predecessor in title, a peach basket manufacturer, which used the property as a wood-lot. The state owns the land to the north, an unused part of an asylum known originally as the "Delaware Colony, " now the Stockley Center. As Sussex has become attractive as a place to live, the area-once industrially valuable, then largely unused for more than a century, is again valuable; to Sweetwater as beautiful, wooded home sites on high ground ("dry boots") overlooking Millsboro Mill Pond, which by Delaware standards is a large and attractive lake. The State envisions the land as a nature preserve, or as the site of a proposed Millsboro bypass highway.

         My decision on title follows. For the reasons below, I find, as between these litigants, title to the disputed property is with the State.


         This is my post-trial decision on title. Based on the complexity and volume of the record before me in this matter, and in order to decrease the likelihood of what seemed an inevitable motion for reargument, I took an unusual step: I issued a draft opinion on record title to the parties, asking them to submit informal memoranda pointing out, in their view, any omissions or errors contained therein. I have closely considered the parties' submissions, the bulk of which, perhaps inevitably, consisted of recapitulation of argument already made. I have made minor adjustments from the draft form of the record title portion of this Memorandum Opinion to reflect the parties' memoranda. To the extent I have not referenced arguments therein, I have considered and rejected them.


         The parties, via pre-trial stipulation, explained that the title dispute before me "focuses primarily on the force and effect of certain deeds made in 1867, 1879, 1891 and 1931, as well as the consequences of various actions and inactions between 1836 and 2009."[7] The record produced at trial is as daunting as is implied by that ominous stipulation. The following are the facts as I find them after a ten-day trial, review of a record spanning thousands of pages (and hundreds of years), nearly three hundred pages of post-trial briefing, and a reopening of the record for newly discovered evidence, all of which was prepared over a seven-year period by the parties.

         At dispute in this case is a sixty-three acre parcel of high ground located in Sussex County, Dagsboro Hundred, identified as 1-33-11.00-46.00 on the County tax parcel map (hereinafter "Parcel 46"). The land is currently undeveloped and heavily wooded but shows signs of a lively past, including a home in the vicinity, traces of which are evident by long-ago planted daffodils and persimmons that still grow, now incongruous in the seemingly-untouched woodlands. Parcel 46 is bounded by the old Doe Bridge Road to the north, the Mirey Branch and Millsboro Mill Pond to the south, and the Cow Bridge Branch and Millsboro Mill Pond to the east. To the west it shares a border with a 27-acre piece of land identified as tax parcel 1-33-11.00-44.00 ("Parcel 44"). Doe Bridge Road, accessible from County Road 318 (also known as Patriot's Way) and leading to the site of the former Doe Bridge and Mill, is centuries old and shows signs of heavy use in its past.[8] The County tax map depiction of these parcels is shown on Exhibit A to this Memorandum Opinion.[9] A satellite image with the tax map boundaries overlain is shown on Exhibit B.

         The parties with competing claims to Parcel 46 are the State of Delaware and a developer, Sweetwater. This is an unusual case for many reasons, the first of which is that the parties both have colorable claims of title to Parcel 46, though neither has established title absolutely. The parties seek only an in personam determination of superior title, which, as will be discussed below, carries a burden of proof by a preponderance of the evidence.

         By way of the most recent source deeds, the State points to a 1931 deed from Wingate Matthews (the "1931 Matthews Deed"), while Sweetwater has a 2005 deed from Winnie White Kee (the "2005 Deed"). Each deed can be traced to separate, minimally descriptive sheriff's deeds from the latter half of the 19th century. Each chain of title is more or less problematic.

         As the facts below will set forth, it is clear to me that from the middle of the 20th century to the very recent past, the State was unaware of its interest in Parcel 46, while Sweetwater's 20th century predecessors-in-title clearly believed they owned Parcel 46 and exerted ownership of it, including through payment of tax assessments. In fact, were the Petitioner any party other than the State, which has legislatively shielded itself from claims of adverse possession, [10] this would be a very simple case and I would find that, if by no other basis, Sweetwater held title to Parcel 46 by way of adverse possession by its predecessors-in-title. With this context, I turn to the recent history of this dispute.

         In or around 1974, Sussex County undertook a reassessment program, under which it created tax parcel maps.[11] Parcel 46, assessed at approximately sixty-three acres, was taxed to Houston-White Company ("Houston-White").[12] Throughout the latter half of the 20th century, Houston-White paid taxes on the land and timbered the land for its basket-making operations, as shown on a 1977 aerial photograph.[13]The State failed to prevent this trespass, if trespass it was, nor did they exclude others in recent decades.[14]

         In 1989, the State began planning a 250-acre nature preserve (the "Nature Preserve") on an unused portion of lands attached to what is now known as the Stockley Center.[15] In the process of designating the Nature Preserve, the State sent a letter to Houston-White as the owner of an adjoining parcel, but Houston-White did not respond.[16] In recording the Articles of Dedication for the Nature Preserve, which was identified as lying on Parcel 8, the State included a surveyor's drawing (the "Nature Preserve Drawing") which showed a part of Parcel 46 as within the Nature Preserve.[17] These documents were recorded in 1991.[18] The Nature Preserve Drawing is attached as Exhibit C to this Memorandum Opinion.[19]

         In 1997, Houston-White-the basket-making concern previously referred to-executed a deed purporting to convey Parcel 46 to J. Reese White, Jr., Virginia T. Frazier, and Mary W. McMahon.[20] Following the death of J. Reese White that same year, Winnie White Kee, as co-executrix for Mr. White's estate, together with the estate's attorney, Harold Purnell, Esquire, contacted the State to discuss the possibility of donating or selling Parcel 46.[21] Thereafter, Kee physically met with Charles Ronald Vickers, Manager of the Land Preservation Office for the Delaware Department of Natural Resources and Environmental Control ("DNREC"), [22] on Parcel 46, at which time Vickers expressed interest in the parcel on behalf of the State[23] and discussed the need for an appraisal.[24] The record is unclear as to whether an appraisal was ever sought, but, in any event, the proposed donation or sale to the State did not occur.[25]

         Kee testified that Vickers did not mention either that the State already owned part or all of the property, or that it was part of the Nature Preserve.[26] Vickers testified that he was aware, at that time, that the 1931 Matthews Deed existed, but that he relied on the Nature Preserve Drawing as accurately depicting the applicable boundary lines;[27] the Nature Preserve Drawing did not include all of Parcel 46, and because the parties "spent most of [their] time walking, " and looking at the southeastern peninsula (the "Boot"[28]), Vickers was unaware that the Nature Preserve Drawing conflicted with Kee's understanding of her property lines.[29]

         Other than Doe Bridge Road, which has not been improved or maintained for many decades, Parcel 46 is land-locked. At some point after meeting with Vickers, Kee purchased Parcel 44, understanding that it would make Parcel 46 more marketable to provide a means of ingress and egress.[30] She also cut a lane on Parcel 46, connecting to Doe Bridge Road, which involved extensive felling of trees; posted signs against trespassing; and installed a gate across Doe Bridge Road on Parcel 44, all without objection by the State.[31] She later listed Parcels 44 and 46 for sale, and the realtor-Bill Lingo-again contacted the State about purchasing these two parcels.[32] Lingo testified that the State, through Vickers, expressed an interest in the property again, but that such interest was not pursued;[33] the State again failed to assert that it already owned Parcel 46 or that that parcel was otherwise included in the Nature Preserve.[34] Again, Vickers testified, he relied on the Nature Preserve Drawing, which did not include the entirety of Parcel 46, and he apparently still did not realize at this time that there was a dispute as to ownership.[35]

         Ultimately, in April 2005, Kee, as executrix of the estate of Margaret White, Virginia T. Frazier, and Mary W. McMahon entered into a contract for sale of Parcel 46 to Oriskany, Inc. ("Oriskany").[36] Kee concurrently entered into a contract to sell Parcel 44 to Oriskany.[37] Oriskany thereafter undertook efforts to develop a community of forty-nine homes called "Sweetwater Point, " including retaining legal counsel, land surveyors, engineers, and land planners, as well as preparing construction plans and seeking County and State approval for subdivisions, roads, and utilities.[38] At some point, Oriskany assigned its contract rights to Sweetwater, which then arranged for mortgage financing from Lehman Brothers Holding Inc. ("Lehman").[39]

         Throughout the initial planning stages leading up to closing, Sweetwater sought approval from various State agencies for its proposed development, including DNREC and the Delaware Department of Transportation ("DelDOT").

         On August 1, 2005, the State sent a letter from Robert Line, of DNREC's Office of Nature Preserves (the "2005 Line Letter") to an environmental engineering firm doing work for Sweetwater's land planner.[40] This letter indicated that the "exact boundary" between the Nature Preserve and the proposed development "has been in dispute (Ron Vickers, per. comm.), " which dispute "must be resolved before you can proceed further."[41] The parties stipulate that this was the first time the State asserted a claim to Parcel 46, [42] though it is not clear from the letter whether the State was asserting a claim to the entirety of Parcel 46 or only a portion of it.

         On September 16, 2005, Peter O'Rourke, President of Oriskany, and Ken Christenbury, a licensed Delaware engineer retained by O'Rourke, met with Connie Holland of the State Planning Office to discuss environmental planning for the development.[43] Holland presented a map showing State-owned properties in the vicinity, which appeared to affect a portion of Sweetwater's development plan; she suggested the developer meet with Vickers.[44] O'Rourke met with Vickers thereafter, at which point, per O'Rourke, "Vickers suggested that the State had interest in that area and that they might own something out there, " but that "there was no survey" or deed, or anything else, "that would substantiate a claim that the State, indeed, had an outright claim on the property."[45] Ultimately, O'Rourke testified, after repeated attempts to "understand what exactly the State's claim was, " Vickers produced a map showing that the State was claiming a portion of Parcel 46, in the northeastern part of the parcel-which was less than was shown on the Nature Preserve Drawing-that would have affected Sweetwater's development plan minimally.[46]O'Rourke testified that this sketch, reproduced as Exhibit D to this Memorandum Opinion, was the only document provided by the State at that time showing the nature of the boundary dispute.[47]

         Meanwhile, Sweetwater's surveyor, Chuck Adams, had repeatedly attempted to confirm with the State the extent of its claims, if any, to the area in question.[48] In response, Adams eventually received a file of materials from the State in September or October of 2005, in which he found a copy of the Articles of Dedication for the Nature Preserve, including the Nature Preserve Drawing, and the 1931 Matthews Deed.[49] Adams verified that a sealed copy of the Nature Preserve Drawing was in fact recorded with the Sussex County Recorder of Deeds.[50] When James Fuqua, Sweetwater's attorney, received this information from Adams, he concluded that, the Nature Preserve Drawing notwithstanding, the Nature Preserve covered only Parcel 8, to the north of Parcel 46.[51]

         Sweetwater closed on Parcels 44 and 46 on November 4, 2005.[52] Title insurance was issued without exception for the State's claims; the parties stipulate that the issuing agent for the title insurer did not know about the 1931 Matthews Deed, the Nature Preserve, or the 2005 Line Letter when he issued the policies on Parcel 46.[53] Both the State and the County accepted payments, totaling over $80, 000, in transfer taxes associated with the sale.[54]

         Following closing, Sweetwater continued its process of obtaining necessary permits for the planned development. By October 2006, Sweetwater had received all necessary approvals except for a DelDOT permit to construct an entrance on Parcel 44.[55] On October 12, 2006, Sweetwater's development proposal was presented at a public hearing of Sussex County's Planning and Zoning division ("Planning and Zoning"), at which no objectors appeared.[56] That same day, however, Eileen Butler of DNREC's Division of Parks and Recreation sent a letter to Lawrence Lank, of Planning and Zoning, indicating that DNREC "formally recognize[d] that there is a significant boundary dispute between the developer of Sweetwater Point and the State of Delaware."[57]

         Meanwhile, to prepare to market lots in Sweetwater Point, O'Rourke began clearing Parcel 46 of fallen trees.[58] This activity prompted the State to threaten to seek injunctive relief unless the clearing was halted, and Sweetwater agreed to suspend the clearing while the parties' counsel conferred.[59] O'Rourke, Fuqua, and others met with John Hughes, a representative of DelDOT, to discuss the delay in obtaining approval to construct an entrance at Parcel 44.[60] DelDOT advised O'Rourke and Fuqua of the State's tentative plans to construct a highway bypass of downtown Millsboro over land including Parcel 46.[61] The parties reconvened with DelDOT on several other occasions. On April 4, 2007, Christenbury received an email from Butler "on behalf of Ron Vickers, " requesting a meeting "to discuss boundary issues associated with Sweetwater Point."[62] Other contacts among the parties, logically, must have followed but do not clearly appear in the record.

         Ultimately, in 2009, the State filed this action to quiet its claim of title to Parcel 46 and a portion of Parcel 44 against Sweetwater.[63] Sweetwater and Lehman counterclaimed, seeking confirmation of their title and damages. The State subsequently amended its petition to remove any claim to Parcel 44. I held a ten-day trial in September and November 2014, following which the parties completed post-trial briefing. The record was thereafter reopened for additional evidence, newly discovered. I then held oral argument on that new evidence and supplemental briefing by the parties was completed on June 17, 2016. On September 30, 2016, in the interest of efficiency, I released a draft of the portion of this Memorandum Opinion dealing with record title, inviting the parties to point out any mistakes of law or fact that may have arisen from my review of the extensive record. The parties submitted further supplemental informal memoranda on this issue and submitted this matter for final decision on February 9, 2017. This is my post-trial Memorandum Opinion.[64]


         A. Evidentiary Standard

         In this action to determine which of the two competing parties has a superior claim-that is, which should prevail in this in personam action between the State and Sweetwater-the parties agree that the applicable evidentiary standard is proof by a preponderance of the evidence.[65] A true in rem quiet title action, by contrast, would require proof by clear and convincing evidence.

         Each party must establish the strength of its own title first, rather than relying solely on flaws in the competing chain of title.[66] Sweetwater's argument is heavily focused on calling into question nearly every facet of the State's chain of title, while doing less in the way of advancing its own, which is understandable in light of the "floating" nature of its source deed. I have no doubt that Sweetwater's late-20th century predecessors-in-title held deeds clearly intended to convey title to Parcel 46, but of course one may convey only what she owns, [67] and Sweetwater's relative inability to establish the strength of its earlier predecessors' title, taken together with the plausibility of the State's title, convinces me that, by a preponderance of the evidence as between these parties, the State holds record title to Parcel 46.[68]

         B. General Principles

         In considering the parties' competing chains of title, both of which are colorable, but neither of which is manifest, I am guided by a number of generally applicable principles governing interpretation of deeds. As a general matter, the guiding principle in interpreting the language used in a conveyance is to determine, as closely as possible, the grantor's intent.[69]

         In interpreting deed language, there is a general order of priority by which I am to consider various identifying factors: calls to natural monuments take the first priority, then to artificial monuments, then to courses of distances, then to acreage.[70]Calls to adjoiners are akin to calls to artificial monuments.[71] Of course, this priority is not absolute; rather, it is a tool used to arrive at the grantor's intent-the controlling consideration in any determination of conveyances.[72]

         The primary difficulty here is that the chains of title proposed diverged long ago, with respect to property that has for much of history been undisturbed woodland. Many of the relevant deeds in this case are old and, on their face, not clear; I am thus aided by extensive extrinsic evidence.[73] As Tiffany Real Property notes, excepting only

the broad principle that a conveyance will not be declared void for insufficiency in its description of the property which it purports to convey, if it is possible by any reasonable rule of construction, aided by extrinsic evidence, to identify the property intended, it is impossible to give any general rules by which to determine whether, in the case of any particular conveyance, the description is sufficiently definite to render the instrument operative.[74]

         With these general principles in mind, I turn to the State's chain of title.

         C. The State's Chain of Title[75]

         The record makes it clear that the State was unaware of its interest in Parcel 46 until late in the day. As discussed in the Background Facts, in 1991, the Articles of Dedication for the State's Nature Preserve identified only Parcel 8, despite the accompanying plot showing that the Preserve includes part of Parcel 46. In fact, the State twice considered a purchase of Parcel 46 from Sweetwater's predecessors-in-interest. Since the latter part of the 20th century, it has allowed others to post the property against trespassers, and has taken no action itself against trespassers on Parcel 46, despite its careful patrolling of adjacent Parcel 8, on the Stockley Center grounds, to prevent trespass. It allowed the timber on Parcel 46 to be cut and removed, without protest. Were two private parties involved in this contest, as I have explained above, this would be a likely case for the application of adverse possession, and this Memorandum Opinion would be far shorter. As discussed above, however, and as referred to below in my discussion of equitable defenses raised by Sweetwater, for periods relevant here the State has exempted itself from the salutary rigors of the application of adverse possession; thus, my resolution of the issue requires weary examination of the competing chains of title. Upon that review, as laid out below, I find by a preponderance of the evidence that, as between these claimants, the State holds record title to Parcel 46.

         1. The State's Source Deed: The 1931 Matthews Deed

         I begin with the State's purported source deed, a 1931 deed transferring property from Wingate E. Matthews and Lizzie A. Matthews to the State (the "1931 Matthews Deed").[76] This deed is poorly drafted and requires much interpretation and application of extrinsic evidence, and the parties have heavily litigated its meaning, including whether it purports to transfer title to Parcel 46. If it does not, the State's claim must fail; the intent to transfer title to Parcel 46 by the Matthews Deed to the State is a necessary but not sufficient predicate for a finding of title. For the reasons below, I find that the 1931 Matthews Deed evinces an intent to convey title to Parcel 46 to the State.

         The calls in the deed are as follow:

Beginning at a cedar stake, corner for the lands of the State of Delaware, known as Delaware Colony, lands of Able Ableman, and these lands, thence, south thirty-five degrees west twenty-two and six tenths perches to a cedar post in the center of Mirey Branch; thence, with the run of the said branch and meanderings thereof to the Doe Bridge Mill property; thence, with said Doe Bridge Mill property north thirty-three and one-quarter degrees west twelve perches to Doe Bridge pond; thence, with said pond, and meanderings thereof, to the lands of the State of Delaware known as Delaware Colony; thence with three lines of same south seven degrees west seventy-six perches to a large White Oak; thence, eighteen and three-fourths degrees east fifty and three tenths perches to a cedar post, thence, south thirty five degrees west nine and one-tenth perches to the place of beginning, containing one hundred acres, more or less . . . .[77]

         The State acknowledges that the metes and bounds description just recited is problematic, but argues that the 1931 Matthews Deed nonetheless evinces an intent to convey Parcel 46, despite its flaws. Sweetwater contends that the State's 1931 Matthews Deed is "unclear and ambiguous"[78] and can only include Parcel 46 in its entirety if "the Court accepts the State's invitation to rewrite the legal description on which the State relies."[79] The 1931 Matthews Deed covers approximately 100 acres, but the parties dispute the location of those 100 acres; it is undisputed that some portion of the 100 acres of land conveyed by the 1931 Matthews Deed is north of the Doe Bridge Road, and Sweetwater contends that it must be entirely north of the Road, and thus does not include Parcel 46, for which the road is the northern boundary. That contention, in part, is based on the adjacent, now mostly drained, pond bottom (the "Pond Bottom") of the old Doe Bridge Mill ponds; Sweetwater relies on an assumption that the 1931 Matthews Deed conveyed the Pond Bottom, which together with the acreage north of the Road, comprises the entire property transferred. If the 1931 Matthews Deed included the acreage of the Pond Bottom, Sweetwater's contention-that the deed references only lands north of the Road, and not Parcel 46-is plausible.

         Sweetwater argues that the following reformations are necessary before the 1931 Matthews Deed can be read to include the land identified as Parcel 46:

(i) an extension of the grossly short measurement recited as the distance between the erroneously defined beginning point in the State's Deed and a cedar stake (which cannot be found) in the Mirey Branch; (ii) an extension of unspecified distance running from a non-existent cedar stake in the Mirey Branch to the unmentioned mouth or terminus of the Mirey Branch, where it discharges into Millsboro Pond; (iii) a "missing call" to Millsboro Pond, running from the unspecified mouth or terminus of the Mirey Branch along the waters of Millsboro Pond, which border the peninsula of Parcel 46, until it meets the Cow Bridge Branch; and (iv) a "missing call" running from the mouth of the Cow Bridge Branch, where it meets Millsboro Pond, to the undefined Doe Bridge Mill Property.[80]

         The State, by contrast, characterizes any errors in the 1931 Matthews Deed as "de minimis" and not affecting an interpretation of the parties' intent.[81] In reviewing the deed, I do not find it to be as defective as Sweetwater suggests. I address each call in turn.

         a. First Call

         The first call, which provides the western border of the property, reads: "[b]eginning at a cedar stake, corner for the lands of the State of Delaware, known as Delaware Colony, lands of Able Ableman, and these lands, thence, south thirty-five degrees west twenty-two and six tenths perches to a cedar post in the center of Mirey Branch."[82] Sweetwater argues that I must extend a grossly short distance call in order to reach the center of the Mirey Branch to a cedar post no longer in existence. However, it is well settled that natural monuments take priority over distances, and I apply that priority here.

         b. Second Call

         The second call, starting in the Mirey Branch, reads: "thence, with the run of the said branch and meanderings thereof to the Doe Bridge Mill Property."[83] A glance at the map in Exhibit A shows the problem: the Mirey never reaches, via meander or otherwise, the Doe Bridge Mill Property, which is located not on the Mirey Branch but on the Cow Bridge Branch (aka Doe Bridge Branch) at or near its discharge into Millsboro Pond. The denomination of these streams as "branches" is explained by the fact that Millsboro Pond is itself a millpond, an artificial, although ancient, impoundment of Indian River; and that the Doe Bridge Branch and the Mirey Branch together formed Indian River, at their confluence, in its natural state. Thus, with reference to the call "with [the Mirey] . . . to the Doe Bridge Mill Property, " Sweetwater argues that the deed is missing calls to the Millsboro Pond and/or Cow Bridge Branch to the southeast and east of Parcel 46.[84] I note that following the meanderings of the waterway tracing around the Boot does lead to the Doe Bridge Mill Property. I recognize, of course, that the Mirey itself does not extend around the Boot, but the Mirey also does not have a defined terminus into the Millsboro Pond, [85] which itself is not clearly distinguishable from the Cow Bridge Branch. I find that the most reasonable interpretation of this call-in light of my understanding as to the nature of the dam remnants as adjacent to the natural portion of Parcel 46, together with the use of the term "meanderings"-is that it is meant to trace the waterway along the edge of the Boot. A property line following the bank leads to the Doe Bridge Mill Property. This approach best effectuates the intent set forth in the 1931 Matthews Deed, and is consistent with the deeds in to Matthews and with adjoining properties, as will be discussed below.

         c. Third and Fourth Calls

         The third and fourth calls, forming the eastern and part of the northern boundary, read: "thence, with said Doe Bridge Mill Property north thirty-three and one-quarter degrees west twelve perches to Doe Bridge pond; thence, with said pond, and meanderings thereof, to the lands of the State of Delaware known as Delaware Colony."[86] The State argues that the call to travel with the "pond" refers to the western edge of the pond; in other words, the State contends that the property conveyed by the 1931 Matthews Deed does not include the Pond Bottom. Sweetwater argues the opposite, that "with the pond" either indicates the east side of the pond (where the Doe Bridge Mill itself appears to have been located), or means the centerline or the meanderings of the drowned branch, in either case including some or all of the Pond Bottom.[87]

         Resolution of this dispute-whether the 1931 Matthews Deed was intended to convey the Pond Bottom-is an important component to my finding that the Deed included Parcel 46. Again, Sweetwater contends that, if the 1931 Matthews Deed includes title to a significant portion of the Pond Bottom, the 100 acres called for in that deed would have to be located north of the Road, thus not including Parcel 46. If, however, the Pond Bottom acreage is excluded, then the portion of the deeded property above the Road would total only some forty-five acres, leaving approximately fifty-five acres that must fall south of the Road, which the State contends would be Parcel 46.[88] I find, as discussed below, that the 1931 Matthews Deed did not include the Pond Bottom, as the evidence persuades me that Matthews did not own the Pond Bottom. In light of this finding, I find by a preponderance of the evidence that the 1931 Matthews Deed conveyed Parcel 46 to the State. Explaining this finding requires examination of the ownership of the Doe Bridge Mill Property and the associated flooded lands which were covered by the Doe Bridge ponds.[89]

         2. Conveyance of the Doe Bridge Mill Property

         The State owns the Doe Bridge Mill Property adjacent to the lands in question here. At trial, the State traced ownership of the Doe Bridge Mill Property, which it purchased in 1933, to a source deed issued in 1864. Following trial, I asked the parties to supplement the record with a copy of an 1829 private legislative act (the "1829 Act"), which authorized a miller, Robert Frame, to construct (or reconstruct) the Doe Bridge Mill Dam. Through this and additional evidence provided by the parties, the State is now able to trace ownership of the Doe Bridge Mill Property from a legislative act of 1829 up to its prior source deed of 1864. Sweetwater contends that these new chains of title upon which the State relies only conveyed riparian rights, and not rights to the Doe Bridge Mill ponds in fee simple. As Sweetwater points out, ownership of a mill and dam is presumed to include riparian rights to the dammed water, but not the fee to the land so submerged.[90] That presumption, of course, is rebuttable.[91] Here, all of the evidence, viewed as a whole, convinces me that it is more likely than not that the 1829 Act and deed did convey the Pond Bottom; that, therefore, the Matthews Deed did not include the same; and that the Matthews Deed therefore meant to convey Parcel 46. I note that I need not find here whether in fact the Act conveyed the fee, in order to determine title to Parcel 46 as a matter of law; the likely effect of the 1829 Act is merely evidence that Matthews did not intend to convey the pond bottom to the State.

         In 1933, Andrew and Catherine Lynch conveyed the Doe Bridge Mill Property to the State of Delaware (the "1933 DBM Deed"). The conveyance reads as follows:

All that certain tract, piece and parcel of land, situate, lying and being in Dagsboro and Indian River Hundred, Sussex County, Delaware . . . all the land which lies to the southward of a straight line drawn from a line started at the forks of the public road leading from Millsboro to the Henry Frame Farm, and a road leading from the aforesaid public road down to the old site of "Doe Bridge Mill" in a northwesternly direction across a road to a poplar, and thence following the high water mark around the Old Doe Bridge Mill Pond so as to include the site of the old mill known as "Doe Bridge, " together with the mill stream, mill dam, mill-pond and all streams and pond privileges and all rights pertaining to the said Doe Bridge Mill, containing seven (7) acres be the same more or less.[92]

         I read the 1933 DBM Deed as intending to convey the Pond Bottom together with the uplands containing the Mill. It is hardly likely that the Lynches would have retained the Pond Bottom while selling the Mill. Again, the question is whether the Lynches owned the property they attempted to convey.

         A series of deeds dating back to 1864 constitute the chain of title for the Doe Bridge Mill Property.[93] Sweetwater contends that these deeds describing the Doe Bridge Mill Property "included only water rights-not fee title, "[94] while the State contends that these deeds conveyed the Pond Bottom in fee simple, such that the Matthews Deed must have excluded this land and, therefore, included Parcel 46.

         The 1864 deed in to Benjamin B. Jones from Robert Morris of L. and William L. Morris and his wife, describe the conveyance of

all of that certain Grist Mill and Carding Machine Situated laying and being in Dagsboro Hundred and Indian River Hundreds in Sussex County and State of Delaware Together with the Mill Stream or pond, Mill dam[, ] Mill lot of land and dwelling House thereon Containing in the whole under water and out of water Ten acres to be the same more or less [indecipherable] called and known by the name of Doe Bridge Mill.[95]

         The executor for the estate of Benjamin B. Jones described the next conveyance as "[a]ll that certain Grist Mill, Mill Stream, Mill Dam, Mill lot and dwelling thereon, situate in Dagsboro and Indian River Hundreds on [indecipherable] Branch, called and known by the name of [D]oe Bridge Mills, containing in the whole under water and out, 10 acres, more or less."[96] The Estate of Benjamin B. Jones also conveyed another five-acre parcel of land "adjoining the Doe Bridge Mill Lot and Henry C. Frame."[97] These two parcels can be traced through deeds of record to the 1933 DBM Deed from Andrew Lynch and Catherine Lynch to the State of Delaware.[98]

         The State contends, and I agree, that the conveyance of land "following the high water mark around the Old Doe Bridge Mill Pond so as to include the site of the old mill" in the 1933 DBM Deed is intended to convey the land underlying the pond as well, consistent with the depiction shown on a 1957 survey by Albert Korves, which references the 1933 DBM Deed. The State notes that this conveyance and the deeds preceding it all cite to land in both Indian River Hundred and Dagsboro Hundred[99] and argues that the only land on the Dagsboro Hundred side would be "possibly a small portion of land constituting the westerly side of the dam, " if the Pond Bottoms are excluded.[100] I note, however, that the dam and mill lot on the Dagsboro side of the branch would probably explain the reference to both Hundreds, whether or not the Pond Bottom was included. Nonetheless, as stated above, I reach the same conclusion as did, apparently, the drafter of the Korves Survey; that based on the language of the deeds each grantor in the chain to the Doe Bridge Mill Property intended to include the land underlying the water.[101]

         On the other hand, the "seven or ten" acres referenced is woefully short of the extent of the conveyance if the Pond Bottom is included. A reading of the deed language to indicate that what is conveyed is "the whole under water"-that is, including the Pond Bottom-"and out, ten (or seven) acres"-meaning ten (or seven) acres of upland, exclusive of the Pond Bottom, is speculative and, frankly, strained. However, my finding that the Pond Bottom was owned by the owner of the Mill, and thus did not form a portion of the lands described in the 1931 Matthews Deed, is, to my mind, strongly bolstered by review of the parties' supplemental submissions regarding the 1829 Act.

         The 1829 Act authorized Robert Frame to construct the Doe Bridge Mill Dam.[102] The Act stated that it "shall forever vest in and convey to the said Robert Frame, his heirs and assigns, a good and indefeasible title and estate in fee simple to and in the aforesaid lot of lands and all and every uplands, low ground and cripple in said plot . . . ."[103] Significantly, the 1829 Act allowed Robert Frame to rebuild his ancestor's "ancient mill" and milldam, and required a damages proceeding, in which five freeholders were charged with assessing the owners of the lands to be flooded and the "value" and "damages" of the land so condemned. Also of note, the Act included a writ under which the Court of Common Pleas was charged with determining Frame's existing rights, arising with respect to the operation of the "ancient mill" through condemnation or otherwise, which would allow him to avoid paying some or all of the damages. Upon the return of such writ, the Act provided that the survey of the freeholders was to be "filed of record . . . and shall forever vest in and convey to the said Robert Frame, his heirs and assigns . . . title . . . in fee simple" to the mill lot and "all and every the uplands, low ground and cripple" described therein, conditioned upon payment of the condemnation damages awarded. The survey[104] shows the lands to be flooded, which correspond to the area which on a site visit appears to be formerly-flooded bottom today.[105]

         As per the 1829 Act, the Court of Common Pleas conducted a damages proceeding which identified three individuals whose land would be "overflowed and drowned" by the construction of the dam.[106] Following the completion of proceedings in the Court of Common Pleas as commanded by the 1829 Act, [107] title to the property referenced (the "Frame Property") was conveyed to Robert Frame.[108]That proceeding was followed by a conveyance of the Frame Property to William D. Waples, Robert Morris of L., and Derick Barnard.[109] These individuals were parties to a deed (the "Frame Deed") conveying to them "all and every benefit and advantage of an Act of the General Assembly, " that is, the 1829 Act.[110] They took the Frame Property as tenants in common.[111] Their interests in the Frame Property in turn passed through several transactions, described below, to Benjamin B. Jones whose deed can be directly traced forward to the 1933 conveyance of the Doe Bridge Mill Property to the State.[112]

         William Waples's one-third interest in the Frame Property passed to William Waples's widow, Rachael Waples, upon his death and was assessed to her in the 1844 assessment. [113] That one-third interest was conveyed to Theodore Marvel by two deeds, one from William Waples's Estate in 1853 and one from Rachael Waples in 1854.[114] Rachael Waples's deed out included specifically "all . . . the ways, waters, water course, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging or in anywise appertaining and . . . rents issues . . . thereof and all the estate right title interest property claim . . . ."[115] Marvel, less than one month later, conveyed his interests in the mill "[t]ogether with all . . . waters, watercourses, right, liberties, and privileges . . . appurtenances whatsoever thereunto belonging or in any wise appertaining" to Robert Morris of L.[116] By this time, as discussed above, Robert Morris of L. already owned another one-third interest in the mill as acquired in the Frame Deed of 1829.

         Derick Barnard's one-third interest passed to his heirs who were assessed as owners of "1/3 Doe bridge Mill" in 1844.[117] The interest was sold by the administrator of Barnard's Estate on July 18, 1853.[118] The deed stated the conveyance of Barnard's "one undivided third of the Mills lands and premises known as Doe Bridge Mills . . . and appurtenances situate in Dagsboro & Indian River Hundreds" to George Barnard and Thomas A. Fithian.[119] This interest was then conveyed to William Morris of Robert ("William Morris") by deed.[120] That deed described the interest as "the undivided third part of a certain grist mill and carding machine situate, lying and being in Dagsboro and Indian River Hundred . . . together with the same share of the Mill dam mill pond lot of land and dwelling house containing in the whole under Water and out of water 10 acres more or less on Cow [Bridge] branch called Doe Bridge Mills also."[121] In 1864, William Morris conveyed his interest in the mill "[t]ogether with the mill stream or pond, mill dam, mill lot of land and dwelling house thereon" "[c]ontaining in the whole under water and out of water ten acres" to Benjamin Jones.[122]

         Robert Morris of L., as explained above, acquired an original one-third interest through the Frame Deed.[123] He additionally obtained, in 1853, the one-third interest originally given to William Waples thus owning a two-thirds interest in the Frame Property. In 1864, the entire Doe Bridge Mill Property was conveyed by deed to Benjamin B. Jones from Robert Morris of L. and William L. Morris and his wife as

all of that certain Grist Mill and Carding Machine Situated and laying and being in Dagsboro Hundred and Indian River Hundreds in Sussex County and State of Delaware Together with the Mill Stream or pond, Mill dam[, ] Mill lot of land and dwelling House thereon Containing in the whole under water and out of water Ten acres to be the same more or less [indecipherable] called and known by the name of Doe Bridge Mill.[124]

         The executor for the Estate of Benjamin B. Jones later described the property as "[a]ll that certain Grist Mill, Mill Stream, Mill Dam, Mill lot and dwelling thereon, situate in Dagsboro and Indian River Hundreds on [indecipherable] Branch, called and known by the name of [D]oe Bridge Mills, containing in the whole under water and out, 10 acres, more or less."[125] The Estate of Benjamin B. Jones also conveyed another five-acre parcel of land "adjoining the Doe Bridge Mill Lot and Henry C. Frame."[126] These two parcels can be traced to a 1893 deed, [127] a 1904 deed, [128] a February 1917 deed, [129] a July 1917 deed, [130] an October 1917 deed, [131] a 1919 deed, [132] a 1930 deed, [133] and, finally, the 1933 deed from Andrew Lynch and Catherine Lynch to the State of Delaware.[134]

         As a consequence, I find that the Doe Bridge Mill Property, now owned by the State, likely included the fee to the Pond Bottom, as conveyed to Frame by the 1829 Act, the resulting Court of Common Pleas action and the deeds referenced above. It is unlikely, therefore, that the parties to the 1931 Matthews Deed intended the 100 acres conveyed therein to include the Pond Bottom. I find, consequently, that the intent of the parties in the 1931 Matthews Deed was to convey, inter alia, all of Parcel 46 as part of the 100 Acres conveyed.[135]

         Having determined, through an examination of the metes and bounds description, and examination of extrinsic evidence, that the State has demonstrated that the 1931 Matthews Deed purports to convey title to the lands in dispute, I turn to the State's evidence that Matthews in fact had title to what is now Parcel 46, at the time of the deed.

         3. 1931 Matthews Deed-Chain of Title, "Dry Boots"

         In 1776, property between the branches of Indian River, referred to as "Dry Boots" (presumably because it was higher than most adjoining property) was conveyed to Smith Frame by a Property Warrant.[136] The parties agree that this property included Parcel 46.[137] This property was then left by will to Nathan Frame in 1786.[138] Nathan Frame then sold Dry Boots to Lacey Morris in 1802.[139]

         Lacey Morris transferred twenty acres[140] of his property to Simon Kollock, who in turn left those twenty acres to his grandson, Smith Wilson.[141] The remainder of Lacey Morris's land, including land "bought of Nathan Frame, " passed to his grandchildren, Burton Morris and Hetty Prettyman, upon Lacey's death in 1820.[142]

         In 1825, Burton Morris purchased his sister Hetty's interest in the land inherited from their grandfather.[143] In 1829, Burton Morris acquired the twenty acres that had passed to Simon Wilson (the "1829 Wilson Deed") with the effect that Burton Morris then held title to all of the land that his grandfather Lacey had acquired in 1802.[144] The parties agree that the 1829 Wilson Deed in its courses and distances is "sufficiently close" to describe the sixty-three acres in Parcel 46. In other words, the parties agree, and I find, that Burton Morris held title to what is now Parcel 46 in 1829.[145]

         Burton Morris died in 1835 and left his land to his widow Patience, who remarried Benjamin Dorey in 1836.[146] At his death, Burton Morris was assessed on 145 acres.[147] Following the conveyance by will to Patience, the State contends that the property passed by law to Patience and her new husband, Benjamin. The record does not contain a deed demonstrating ownership by Patience and Benjamin Dorey of the property containing Parcel 46.[148] However, Patience and Benjamin did execute a mortgage to Robert Morris of L., Burton Morris's executor and uncle, the language of which indicates a claim of ownership over Burton Morris's lands which the parties agree includes Parcel 46.[149] The indenture described the land to be mortgaged as follows:

one tract or parcel of Land called Dry Boots, which land is situated and lying in Dagsboro Hundred, and [Sussex County] and adjoining lands of Robert Morris of L.[, ] Simon K. Wilsons [sic], late the property of Burton Morris of [illegible] a part of which he had willed to him by Lacey Morris a part also which he purchased of his sister Hetty Prettyman and a part of Dr. Simon K. Wilson all which has now become to be in tenancy and possession of the aforesaid Benjamin H. Dory and Patience his wife.[150]

         Following this claim of ownership, there is again a lack of a deed, will, or other document evidencing the passing of Patience and Benjamin's property. While there are discrepancies in the acreage of land assessed to Benjamin Dorey prior to his passing, in 1860 and 1864 he was assessed on one hundred acres[151] and the 1864 assessment shows a notation of "hs" following Benjamin Dorey's name, which presumably designates that the land noted was held by his heirs; additionally, a notation below the 1864 one hundred acre assessment reads, "deduct 60 to T.S. Johnson."[152] That notation is significant, for the reasons below. The record does not reflect when Benjamin Dorey died or the identity of his heirs. However, Patience and Benjamin had two children together, John H. Dorey and Mary Dorey.[153] While there is no conveyance or transfer evidenced to their children, the 1868 assessment does not have an entry for Benjamin Dorey, but does assess Mary Dorey at fifty acres; John Dorey is not assessed on any land, and his name is stricken with the word "Dead" over it.[154]

         Based on the relationship between Patience and Benjamin Dorey and John and Mary Dorey as well as the assessment records and conveyances in years following Patience and Benjamin's death, I find it more likely than not that John and Mary Dorey inherited the land of their parents and, thus, the land formerly of Burton Morris which included Parcel 46. The State contends strongly that the doctrine of presumed grant-which exists to prevent failure of otherwise-established title upon a lacuna in the chain-mandates such a finding. While the applicability of the doctrine of presumed grant in this proceeding is not altogether clear, since I have already found it more likely than not that John and Mary Dorey inherited the property, I rely on the doctrine only to provide additional strength to that finding. Contrary to adverse possession, under the doctrine of presumed grant the occupancy of the land is presumed rightful, rather than adverse.[155] As this Court explained in a 1979 decision,

[t]he net result of these policies is that it is not necessary to believe a conveyance was in fact made in order for the trier of fact to presume a conveyance. If the evidence leads to the conclusion that the conveyance might have been executed, and that its existence would be a solution to the difficulties arising from its non-execution, then this is sufficient to presume a grant.[156]

         Based upon the evidence as bolstered by this doctrine, I find that each child of Patience and Benjamin Dorey possessed an undivided one-half interest in their parents' property, as that presumption best explains the record here.

         After the passing of Patience and Benjamin Dorey's property to their heirs John and Mary, the evidence shows that John Dorey left debts upon his death necessitating a sheriff's sale of his property interest, which took place in 1867.[157]John Dorey's property interest was purchased by T.S. Johnson in April 1867 as evidenced by a sheriff's deed (the "1867 Sheriff's Deed") describing property of approximately one hundred acres.[158] However, as stated above, based on the passing of the property from Benjamin Dorey to both children equally, John Dorey only owned an undivided one-half interest in the property which he inherited with his sister. Thus, T.S. Johnson could only purchase that one-half interest in the 1867 Sheriff's Deed. The record indicates that, rather than partitioning their interests, T.S. Johnson and Mary Dorey transacted to separate their interests. This transaction was done through two deeds (the "Exchange Deeds") by which T.S. Johnson and his wife acquired Mary Dorey's interest in sixty acres and Mary Dorey in exchange received an interest in forty-nine acres improved with a single-story dwelling, purportedly located north of the Road. In other words, before the execution of the Exchange Deeds, Mary Dorey, and Johnson (via John Dorey), owned undivided half-interests in one hundred acres more or less of the old Dry Boots patent, both north and south of the Road. Thereafter, Mary owned an undivided interest in the lands north of the Road, and Johnson the lands to the south, including Parcel 46. Mary Dorey's interest, conveyed in the exchange to T.S. Johnson, names Isaac Burton as an adjoiner to the property.[159] At this juncture the parties again agree, and I find, that the deed from Mary Dorey to T.S. Johnson is "sufficiently close" in its description "to describe land that includes all 63 acres in Parcel 46 on the south side of the Road."[160] Thus, through the Exchange Deeds, T.S. Johnson acquired Parcel 46. This finding is further supported by the 1868 assessment showing the "deduct[ion]" of sixty acres of the land held by Benjamin Dorey's heirs to T.S. Johnson, as well as the assessment of fifty acres to Mary Dorey.

         In 1871, Mary Dorey's forty-nine acres were transferred to T.S. Johnson (the "1871 Sheriff's Deed"). The parties agree that these forty-nine acres were situated above the Doe Bridge Mill Road, directly across from Parcel 46.[161] Like the Exchange Deed from Mary Dorey to T.S. Johnson, conveying sixty acres, this deed also called for Isaac Burton as an adjoiner to the land transferred. Sweetwater argues that this demonstrates that Isaac Burton (and not T.S. Johnson) by this point must have owned Parcel 46. If true, this would put Parcel 46 in Sweetwater's chain. For reasons detailed below I find this unlikely. I find it more plausible that this reference to Isaac Burton as an adjoiner was a mistake, probably a scrivener's error perpetuating the reference to Burton as an artifact of the 1867 Exchange Deeds. Accordingly, I find that as of 1867, and through his death, the owner of what is now Parcel 46 was T.S. Johnson.

         4. T.S. Johnson's Estate

         Sweetwater points out that the description of the property in T.S. Johnson's Estate as found in a report of the Orphan's Court (the "Orphan's Court Report"), [162]refers only to the Doe Bridge Mill Property and lands of Isaac Burton as adjoiners, thus not providing the fuller description of T.S. Johnson's property as provided in the 1867 Exchange Deeds, which the parties agree included Parcel 46. However, the parties have pointed to no deed out, and I presume Johnson owned the property at the time of his death. This presumption is bolstered by references in later deeds out[163] and specified deed book references.[164] Nonetheless, Sweetwater argues that the Orphan's Court Report regarding T.S. Johnson's estate fails to contain a description of his property compatible with Johnson having owned lands south of the Road at the time of his death. I note that the Report (which refers to the property near Doe Bridge Mill as T.S. Johnson's "Tract # 7") is, together with its associate deeds, the only document created after the 1867 Exchange Deeds in the State's chain that does not include some sort of reference by which I can presume, from its face, that the document conveyed land traceable to the specific descriptions in the 1867 Exchange Deeds, including property south of the Road. I find, in any event, that this Report most likely intended to describe the land covered by both of the 1867 Exchange Deeds, which land T.S. Johnson owned following the 1871 Sheriff's Deed from Mary Dorey.

         As Sweetwater points out, the descriptions of Tract # 7 in T.S. Johnson's estate and deeds therefrom refer only to the Doe Bridge Mill Property and lands of Isaac Burton as adjoiners, which Sweetwater contends reflects the fact that the land conveyed lay entirely north of the Road, on the assumptions that (1) Isaac Burton owned Parcel 46 and (2) the descriptions would otherwise identify additional adjoiners. However, it is just as plausible that T.S. Johnson owned Parcel 46 (together with land north of the Road adjacent to it) with Isaac Burton as an adjoiner on what is now Parcel 44 and the Doe Bridge Mill Property to the east. I discuss this possibility in reference to Sweetwater's title claim, below. The remaining adjoiner-i.e., to the north of Tract # 7-very well could have been another of T.S. Johnson's tracts identified in the Orphan's Court Report-specifically, "tract no. 5, containing 300 acres more or less . . . said tract known as the Benjamin Morris property."[165] T.S. Johnson purchased Benjamin Morris's land, which land is now included in the Stockley Property, at an 1871 sheriff's sale.[166] I find that the Orphan's Court Report is insufficient to evidence an abandonment of the descriptions of Johnson's ownership recited in the Exchange Deeds; in other words, it is not necessarily incompatible with evidence indicating that Johnson owned Parcel 46 at his death.

         In 1891, the Estate of T.S. Johnson conveyed property to Custis Burton described as land in Dagsboro Hundred, "adjoining the Doe Bridge Mill property, lands of Isaac Burton and others, containing one hundred (100) acres more or less."[167] I have found that the 1867 Sheriff's Deed conveyed an interest in Parcel 46 to T.S. Johnson, [168] and that the Orphan's Court Report, adding the reference to the Doe Bridge Mill Property and Isaac Burton as adjoiner, did not abandon the prior description of the properties so as to not include Parcel 46. Therefore, I find it likely that Johnson died in possession of Parcel 46. In 1891, Custis Burton purchased property from T.S. Johnson's Estate which included Parcel 46.[169] Custis Burton conveyed the property to Joseph Illiffe and William Matthews in 1919.[170] In 1924 the property was passed by sheriff's deed to Wingate Matthews, Fred Lawson, and Phillip Johnson.[171] The property was conveyed by deed in 1927 to Wingate Matthews, who in turn conveyed it to the State in the 1931 Matthews Deed.[172]

         I now turn to the title claims advanced by Sweetwater.

         D. Sweetwater's Alternative Chain of Title

         Sweetwater traces its chain of title back to 1879 to a sale of lands from the Sheriff of Sussex County to Elizabeth Burton (the "1879 Burton Deed") which was not recorded until 1890.[173] The 1879 Burton Deed describes the land as a parcel "in Dagsboro Hundred, Sussex County containing forty acres, more or less, adjoining lands of the heirs of George W. Hearn, Deceased, Benjamin Morris, Tilghman S. Johnson and heirs of James Donohoe, [174] Deceased, and others, with a single story dwelling house, smoke house[, ] [illegible] house and stables thereon."[175] It does not include a metes and bounds description, or calls to any monuments, other than these adjoiners.[176] Sweetwater relies solely on the adjoiners described to locate this property, as discussed below.[177] The lands which were transferred to Elizabeth Burton by the Sheriff were formerly held by Isaac Burton.[178] However, the record does not establish how Isaac Burton derived his title; in other words, Sweetwater cannot trace title from Burton Morris-who it concedes held title to what is now Parcel 46 as of 1829-in to Isaac Burton in 1879; a period of fifty years.[179] I examine the location of lands conveyed by the 1879 Burton Deed, by reference to the therein-called adjoiners, below.

         1. Adjoiner: Benjamin Morris

         The parties agree that Benjamin Morris at one time owned land north of the Doe Bridge Road, comprising what is now known as the Stockley Center and at the time of the 1931 Matthews Deed was called the Delaware Colony.[180] I note, however, that Morris's interest had been sold at a sheriff's sale, eight years before the 1879 Burton Deed, to T.S. Johnson.[181] In light of that sale, it is not clear to what property the call to lands of Benjamin Morris, as an adjoiner, referred. But, at any rate, even assuming the call was an outdated reference to lands north of the Road that had once belonged to Benjamin Morris, that land would "adjoin" Parcel 46 only at a single point.[182] As Sweetwater concedes, by way of argument on another topic, the usage "adjoiner" rarely is used to describe properties that are adjacent only at a single point, rather than ...

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