City of Lynn v. Inhabitants of Nahant
113 Mass. 433
Mass.
1873
Check Treatment
Gray, C. J.

Upon the settlement of the Massachusetts Colony, the several towns or plantations were at first mere villages *448or clusters of settlers dwelling near each other; but by successive acts of the General Court, authorizing them to manage their own affairs and to elect representatives and local officers, they soon became in effect municipal corporations, without any express legislative act or charter. Commonwealth v. Roxbury, 9 Gray, 451, 485. Between 1630 and 1635 they were directed to provide arms for their inhabitants, powder-houses, standard weights and measures ; to levy taxes; to cause to be made and recorded a survey of all lands improved, or inclosed, or granted by special order of the General Court; and were authorized to choose deputies to the General Court to mend corn fences which they should judge to be insufficient, and to make orders concerning swine going at large. 1 Mass. Col. Rec. 84, 87, 106, 110, 116, 118, 119, 120, 148, 150. On September 3, 1635, “ it was ordered that none but freemen shall have any vote -in any town, in any action of authority or necessity, or that which belongs to them by virtue of their freedom, as receiving inhabitants, and laying out of lots, &c.” Ib. 161. And on March 3, 1635-6, it was “ ordered that the freemen of every town, or the major part of them, shall only have power to dispose of their own lands and woods, with all the privileges and appurtenances of the said towns, to grant lots, and make such orders as may concern the well ordering of their own towns, not repugnant to the laws and orders here established by the General Court,” and with penalties not exceeding twenty shillings ; “ also to choose their own particular officers, as constables, surveyors for the highways, and the like.” Ib. 172.

The lands within the limits of a town, which had not been granted by the government of the Colony either to the town or to individuals, were not held by the town as its absolute property, as a private person might hold them, but, by virtue of its establishment and existence as a municipal corporation, for public uses, with power by vote of the freemen of the town to divide them among its inhabitants, yet subject to the paramount authority of the General Court, which reserved and habitually exercised the power to grant at its discretion lands so held by the town. Commonwealth v. Roxbury, 9 Gray, 451, 500. West Roxbury v Stoddard, 7 Allen, 158, 169, 170. Tappan v. Burnham, 8 Allen *44965. Boston v. Richardson, 13 Allen, 146, 149, 150, and 105 Mass. 351, 357. 1 Mass. Col. Rec. 240, 271, 277, 305, 310, 327. 2 Mass. Col. Rec. 61. 4 Mass. Col. Rec. pt. ii. 10, 109, 111.

Lands so held by a town, merely by virtue of being within its municipal bounds, necessarily, upon its division by the General Court into two towns, were held in like manner by that town within whose limits they fell upon the division, unless the General Court expressly provided otherwise. This is illustrated by the cases of Wenham and Beverly, mentioned by the tenants at the trial; of Brookline, 9 Gray, 466, note; and many others in 1 & 2 Prov. Laws, (State ed.) passim.

The proceedings in the courts of the Colony and before the Governor and Council, offered by the demandants, (assuming them to be competent evidence,) afford no proof of any express grant of lands from the Colony to the town of Lynn; but, at most, only show that Nahant was within the bounds of Lynn, that the town of Lynn had from 1635 the power to dispose of it among the inhabitants, and had constantly occupied it accordingly, and that Thomas Dexter and his heirs had no title to it.

All the votes of the town of Lynn, as to the cutting of trees on Nahant, the taking of shells, seaweed, gravel or stones from the beaches, and the preservation and repair of the beaches, were consistent with the same tenure, and had no tendency to show any other title in the town.

The deed from the Indians in 1686 purports upon its face to be only a release or confirmation of titles already held by the town of Lynn or by the proprietors of the lands; and all conveyances from Indians of their aboriginal title, without the license or approbation of the General Court, were of no validity whatever. 1 Mass. Col. Rec. 112. 5 Mass. Col. Rec. 486, 487. Prov. St. 1701, (13 W. III.) c. 11; 1 Prov. Laws, 471. Brown v. Wenham, 10 Met. 495.

By the St. of 1853, c. 114, incorporating the town of Nahant, that part of the Long Beach which is demanded in this action is included in the town of Nahant; and by the St. of 1854, c. 294, the Legislature conferred such powers upon the selectmen of Nahant as had formerly been conferred by the St. of 1852, c. 214, *450upon the municipal authorities of Lynn, and enacted that no person should “ carry away or remove, by land or water, any seaweed, sand, stones, gravel or mud from either of the beaches called Long Beach or Little Beach, in the town of Nahant,” without permission first obtained from the selectmen of Nahant, or from some person authorized by them.

The petition of a committee of the town of Nahant to the city of Lynn in 1861, introduced by the demandants, has no legal tendency to prove a title in Lynn to the Long Beach ; because it relates to other lands; and because it does not appear to have been authorized by the town of Nahant.

In Simmons v. Nahant, 3 Allen, 316, it was merely decided that lands assumed to be the corporate property of Lynn did not pass to Nahant by its act of incorporation without a deed. The question, whether the land in dispute in that case was the property of Lynn before the division, does not appear to have been raised ; and, as we were informed by the late Chief Justice Chapman, who delivered the opinion in that case, and was present at the argument and the first consultation in the case now before us, was not considered by the court.

In Berry v. Raddin, 11 Allen, 577, the question was of the validity and effect of a grant made by the town of Lynn to an individual in 1633.

In Commonwealth v. Roxbury, 9 Gray, 451, 487, there was an express order of the General Court in 1636, that “ all the rest of the ground lying betwixt Dorchester bounds and Boston bounds ” (“ except the propriety of the aforesaid town, which they purchased of particular persons ”) “ shall belong to the town of Boxbury; ” and the point adjudged was that “ supposing this to be a grant of property in land,” it did not include the flats below low water mark.

The cases of Rogers v. Goodwin, 2 Mass. 475, and Gloucester v. Gaffney, 8 Allen, 11, did not relate to towns, but to proprietors of common lands. In Rogers v. Goodwin, the point decided was that, under the authority given to proprietors of common lands by the Prov. Sts. of 1692-3, (4 W. & M.) c. 28, and 1712-13, (12 Anne) c. 9; 1 Prov. Laws, 65, 704; to“dispose” of their *451lands, they might sell to a stranger; and the Colony law of 1636, above quoted, was referred to only as an instance of a similar use of language. In Gloucester v. Gaffney, the point decided was, that a vote of proprietors of common lands, to give certain of their lands to the town, was primá facie evidence of title and seisin in the proprietors at the time of the vote. In the case at bar, as both parties admit, there- is no evidence that the proprietors of common lands in Lynn ever acquired a title in fee in the demanded premises, or undertook to convey any to the town.

In Windham v. Portland, 4 Mass. 384, the point decided was, that the town was not discharged, from its legal obligation to support a pauper having a settlement there, by a separation of part of its territory by annexation to another town or by a new incorporation. The general statement in the opinion, that “ it would continue seised of all its lands, possessed of all its personal property, entitled to all its rights of action, bound by all its contracts, and subject to all its duties,” evidently relates to lands of which it had the absolute ownership, and by no means affirms that those include all the lands within its original territory; and the court had not then had occasion to examine the question of the right and authority of a town over such lands "so fully as in the recent case's.

As we are of opinion, for the reasons already stated, that the demandants, upon the evidence introduced by them at the trial, show no title to that part of the Long Beach which lies within the town of Nahant, it becomes unnecessary to consider the effect of the division of the common lands in 1706, or of the award and agreement of settlement between Lynn and Nahant since the incorporation of the latter. Judgment for the tenants.