256 Mass. 343 | Mass. | 1926
This is a petition to register the title to land at the east end of Horseneck, so called, a beach resort in the town of Westport. The petitioner claims under a deed to her, dated December 11, 1912, from the respondents Irving L. Wordell, Charles A. Cornell and John H. Cornell. The description in this deed is in the following terms: “Beginning at the northwest corner of the land hereby conveyed in line of highwater mark on the west beach, so called, at a point in said highwater line, which is 350 feet southerly from the south line of contemplated Ocean Avenue; thence easterly in line parallel with said south line of contemplated Ocean Avenue 80 feet to the westerly line of the public way leading to Gooseberry Neck; thence southwesterly in the westerly line of said public way to its intersection with the line of highwater mark on said west beach, so called; thence northerly in line of high water mark on said west beach to the place of beginning. Together with the right, in common with others, to use said beach for bathing, boating, driving, fishing and walking.”
The land which the petitioner now seeks to have registered is a much larger tract than that literally described in the deed. This additional land “has become attached to the original tract by accretion from alluvium deposits along the seaward side, which deposits have been making up since . . . 1912, when some of the respondents and their predecessors in title . . . raised the height of, and attempted ... to build a roadway over, the bar connecting Horseneck aforesaid wdth Gooseberry Neck, a seventy-four acre tract of land lying to the southward and surrounded on all sides by deep water except where said bar connects, the southerly end of which bar in its original state was exposed at low tide only.”
The respondents Wood, Mahoney, and Tucker contend that they are the owners of Gooseberry Neck and the bar, under a deed to them dated June 20, 1923. They also contend that by virtue of a deed in November, 1924, from
The land east of and opposite the locus lying between the road and sea on the east and extending both further north and south was acquired by the town of Westport in 1916 for a town landing. The town did not contest the petitioner’s claim. At the date of the petitioner’s deed no road east of her land had been constructed, but at a meeting of the town of Westport in March, 1912, the layout by its selectmen of a public way, the westerly line of which is indicated on the plan by the words “Street line claimed by respondent,” was accepted. Because of some error, and for other reasons which did not appear, this layout proved to be unsatisfactory and the road was not constructed. A new layout by the selectmen was made in the latter part of 1912, and accepted by the town in March, 1913. Before the date of the deed to the petitioner, there had been a petition to the selectmen to resurvey and relocate the public way, and notices of the intention of the selectmen to lay out a way had been left at the places of abode of owners of land affected and a public notice had been given of a meeting to be held on December 7, 1912, at which meeting it was adjudged that common convenience and necessity required the layout of a road as it was later constructed and now exists. This road and the location of other objects and lines material to this case are shown on the. accompanying plan.
The judge of the Land Court found that when the petitioner’s grantors gave her the deed, all parties thereto in
The judge ruled that “the petitioner’s boundary on the west is limited to high water line and that she has no title to the foreshore between high and low water as claimed, but that she has as appurtenant to her land such rights over the foreshore as were granted in her said deed, which are not inconsistent with the public rights under the colonial ordinance, to be exercised in common with all others entitled thereto”: and he also found and ruled that the petitioner’s easterly boundary is the west line of the West Shore Road as shown on the plan.
As to the division of the new land formed by accretion, the judge found that so far as the petitioner was concerned it arose from natural causes, and ruled that the lines of ownership of this land are to be determined as in the ordinary case of a division of flats. The judge also found that the petitioner’s grantors conveyed a piece of land bounded on the north by the line shown on the plan and accurately described in the deed; on the east by the west line of the public way as laid out by the selectmen of Westport on December 7, 1912, and later accepted by the town; and on the west by high water line. He further ruled “that high water line and the point of intersection of high water line and the west line of West Shore Road are monuments in the petitioner’s deed and moved westward and southward as accretion took place so long as such intersection could be maintained.” He found that the layout of that road ran to the bar, that this terminus, as fixed by the evidence, was three hundred seventeen and fifteen hundredths feet south of the northeast corner of the locus as shown on the plan; and that this point “is the utmost extent of petitioner’s street fine because the point of contact aforesaid cannot be maintained beyond this station.
The petitioner contends that her southerly line should be continued beyond the point'marked “bar” on the plan to the point where the westerly line of West Shore Road continued would meet high-water mark. The respondents contend that the southerly point of the petitioner’s land is limited to the place where the westerly line of West Shore Road and high water line met at the time of the conveyance to her in 1912.
“An appeal from the Land Court brings before this court
The remaining question is, whether the direction of the petitioner’s line from the southerly end of the street as laid out was correctly determined. The principle governing the division of flats among adjoining owners of upland is applicable to the division of alluvium accretions. See Wonson v. Wonson, 14 Allen, 71, 85. In Trustees of Hopkins Academy v. Dickinson, 9 Cush. 544, 549, the court, in referring to the rule for fixing standards for demarcation of boundaries of real estate which are fluctuating and changeable, said: “ . . . the rule is equitable, and as certain as the proverbially variable nature of the subject-matter will admit; and, in adapting it to the varying circumstances of different cases, a steady regard must be had to the great principle of equity, that of equality.” The object of apportioning accretions is that they shall be so apportioned as to do justice to each owner, in the absence of a positive prescribed rule and of direct judicial decision to guide, and their division on a non-navigable river frontage is so made as to give each relatively the same proportion in his ownership of the new river line that he had in the old. Deerfield v. Arms, 17 Pick. 41, 45.
If a person owns uplands bounding on the seashore it is a “conclusion of law . . . that he owned the flats lying in front of such upland to low water mark, if less than one hundred rods, or if the tide ebbs further, then to the extent of one hundred rods.” Porter v. Sullivan, 7 Gray, 441, 442. In front means “directly to the sea from which the tide flows, by lines as nearly as practicable perpendicular to the fine of shore, or the line of ordinary high water mark, meaning by this, not the line of high water at spring tides, but at ordinary tides. It is obvious from this, that if the shore be convex, the flats attached to it, in proceeding seaward, will expand; if very prominent, the flats will be of a fanlike shape.” Porter v. Sullivan, supra. Wherever it is practicable the width of flats owned is equal to the width of the lot at high water mark. Gray v. Deluce, 5 Cush. 9. Stone v. Boston Steel & Iron Co. 14 Allen, 230.
The court in extending the petitioner’s south line as
Order for decree for petitioner affirmed.