Dillingham v. Roberts

| Me. | Dec 27, 1883

Walton, J.

The question is whether, if one conveys a parcel of land bounded upon one side by the shore of the sea at high water mark, and then adds these words, " including cdl the privilege of the shore to low water mark,” the fee in the land between high and low water mark passes to the grantee. We think it does.

In Farrar v. Cooper, 34 Maine, 394, the language of the deed was, "one undivided moiety forever of the privileges of a mill yard,” and the court held that it carried the fee. Another description in the same deed was, the "north easterly half of a double saw mill, with the privilege of forever having and keeping a saw mill on the same plat of ground on which that half of the mill stands,” and it was held that the fee passed. " For,” said Sheplev, C. J., "a conveyance of the use of land forever is equivalent to a conveyance of the land.” And this is undoubtedly true; for the greatest estate which one can have in land is its use forever; and if he conveys the entire use, or, in the language of the deed we are now considering, all his " privilege ” in it, it is difficult to perceive how he can have any estate left.

The word " privilege,” although not a very appropriate term to use in describing one’s title to real estate, may be so used without doing very great violence to its legitimate meaning. An estate in fee simple is in one sense no more than the, privilege of holding land by a certain tenure. Such a holding may be described as a "privilege” without doing violence to the term. And especially is this true of land over which the tide ebbs and flows; for while it is true that by virtue of the ordinance of 1641-7 one whose land is bounded by the sea may hold to low water mark, still, that portion of his land over which the tide ebbs and flows, is so incumbered by public rights, that he would be very likely to regard it, and to speak of it, as a mere privilege, and a very limited one at that. At any rate, we fail to see how one who has conveyed " all the privilege of the shore to low water mark,” can have any right, title, interest, or estate left in it. It is well settled, as stated in the case cited, that a conveyance of the entire use of land forever is equivalent to a conveyance of the land itself. Is not " all the privilege ” as strong a term as " all the use ? ” We think so. We do not mean to say that it is as appropriate a term to use. But it does seem to us to be equally expressive and equally effective to convey all one’s title to. land over which the tide ebbs, and flows. And it will be seen by reference to the agreed statement of facts that this conclusion is decisive of* the case in favor of the defendant.

Judgment for the defendant.

Barrows, Danforth, Virgin, Libbey and Symonds, JJ.., concurred.