117 Mass. 593 | Mass. | 1875
The title which proprietors of land bounding on the sea have in the adjacent flats depends either upon the general rules of law, applying the principle of the colonial ordinance of 1647 to the shape of the particular shore in question, or upon acts of the parties, as shown by deed or agreement, or by such occupation as creates a prescription.
The St. of 1864, c. 306, under which the petition in this case was originally filed, required the title, as affected by acts of the parties, to be tried and determined in court, before the appointment of commissioners to ascertain the course of the boundary lines over the flats. Wonson v. Wonson, 14 Allen, 71.
The St. of 1870, e. 348, authorizing the trial of all issues of facts raised by answer or plea to be postponed, at the discretion of the court, until after the report of the commissioners had been made — being a statute affecting the forms of proceeding or remedy only, and not the rights or titles of the parties — applied to this case, in which, at the time of its passage, no commissioners had been appointed or trial had; and justified the order passed at November term 1870, by which commissioners were appointed
The St. of 1871, e. 338, is a complete revision of the legislation upon this subject. It differs from the previous statutes in two important particulars. 1st. It requires the commissioners to , determine and report the boundary lines, not merely of the flats of the petitioners, but of “all other flats adjacent and owned by other persons, whose lines may be affected in, determining the lines' of such petitioners’ flats.” 2d. It makes no provision for the trial of any question of title in the flats depending upon acts of the parties; and declares that the report of the commissioners, when accepted and recorded, shall forever fix and determine the rights of all persons, “ except where definite boundary lines have been established by parties legally authorized so to do.”
The St. of 1871, e. 338, § 7, expressly repealed the St. of 1864. The St. of 1872, c. 107, provided that this section should “ not be taken to affect any proceedings which had already been commenced and were pending,” at the time of its passage, under the St. of 1864. And it has been already decided in this case that the respondents, not having pleaded or set up such repeal until after the passage of the St. of 1872 and the return of the report of the commissioners, had waived any right to avail themselves of such repeal to defeat this proceeding. Breed v. Breed, 110 Mass. 532.
The St. of 1872 simply provides that the express repeal, contained in § 7 of the St. of 1871, shall not affect pending proceedings ; and leaves the effect of the other sections of this statute upon such proceedings to be determined by the ordinary rules of construction. Those sections, as is manifest from their terms, and is admitted by the counsel on both sides, do not impair the validity of the proceedings of the commissioners appointed before they took effect. But so far as they prescribe the action to be taken by the court upon or after the report of the commissioners, they must supersede the former statutes and control the subse
The only objection made to the acceptance of the report of the ' commissioners is by one of the respondents who claims, and desires to try, against one of the petitioners, a title to a portion of the flats by deed or prescription. Upon this title, a final decree under the St. of 1871 has no more effect than was contemplated in the order appointing the commissioners in this case, and is expressed in the decree accepting their report and now appealed from. The only difference is, that since the passage of the St. of 1871 such" title cannot be tried in this case, as it might have been under the previous statutes, but is left open to be determined in any appropriate, form of action hereafter.
The motion of the appellant to have his title tried in this case was therefore rightly refused, and no reason is shown why the. decree accepting the report of the comraiw'cnors should not be
Affirmed.
