Cushing v. Worrick

| Mass. | Oct 15, 1857

By the Court.

We are of opinion that upon the facts agreed the defendant is entitled to judgment.

The plaintiffs claim under a lease from the Proprietors of Common and Undivided Lands in Hull; the defendant, under a general license from the inhabitants of Hull, to take seaweed from their lands. The question therefore is, whether the town or the proprietors have the better title to the seaweed, shells and other profits of the beach or shore, between high and low water mark.

WTithout going into the ancient title, it is enough to say that a controversy had arisen between the two corporations as to the right to the shores. The proprietors applied to the legislature to incorporate them. It is conceded on both sides that an order of notice was. issued, and that the parties were both in attendance, and the act passed with the consent of both parties.

This act, after defining the boundaries of the lands of the corporation, and the places at which gates and water fences should be erected at the expense of the town, and “reserving to any person the privilege of passing and repassing through said gates as occasion may require,” contains the following clause, upon which this case turns: “ And also reserving to the town of Hull the privilege of the shores and of feeding all lands not comprehended within the aforementioned bounds.”

The question is, whether “ the privilege of the shores,” including of course the right to take seaweed, is limited to shores “ not comprehended within the aforementioned bounds.” And the court are of opinion that this privilege is not so limited.

It is unnecessary to resort to the draft of the bill as passed to be engrossed, in order to explain the statute as actually engrossed ; for the general rule is that punctuation is no part of a statute. Barrington on Sts. (5th ed.) 439, note. 3 Dane Ab. 558. Dwarris on Sts. (2d ed.) 601. And in this case the omission of the comma between “ lands ” and “ comprehended ” makes the case clear in favor of the defendants; while its insertion does no more than to make it grammatically possible to apply the limiting clause to the shores, as well as to the feeding lands. But such a clause is ordinarily to be confined to the last antecedent, unless there is something in the subject matter, which requires a different construction. Finch, lib. 1, c. 3. Noy’s Max. (6th ed.) 2. Dwarris on Sts. 590, 591, and authorities cited.

The difference in the form of the two clauses strengthens this conclusion. The first term — “ the shores ” — is definite in form, and complete in meaning; the second — “all lands” — is indefinite, and needs some explanation to define it. A similar, though less marked, difference of expression is found in the town’s vote of November 1810. A reference (if necessary, which it is not,) to that vote would leave no doubt of the agreement of the two corporations, upon which the statute in question was based.

The terms of the statute itself, though not entirely free from ambiguity, appear to us, for the reasons already stated, to confirm the privilege of the town in all the beaches. Such an act, passed with the consent of all parties interested, is binding. All objection to legislation affecting private rights is removed by consent. Consensus tollit errorem. Volentibus non Jit injuria. And the construction which we adopt is the same which was acquiesced in by the parties for twenty six years succeeding the .passage of the statute.

It was argued that if the town ever had any right to the Long Beach under this statute, the consideration thereof was the maintenance of the gates and water fences; and that the town, by ceasing to maintain them, had forfeited all rights under the statute. But we do not consider the rights secured to the town by the statute as conditional or dependent upon its forever maintaining the gates and fences. And the case shows that they were removed with the consent, if not by the act, of the Proprietors of Common and Undivided Lands.

Judgment for the defenda/nt.