This is an appeal from a decree of the Town Council of the Town of Jamestown bounding and marking out that certain portion of Narragansett Avenue in the Town of Jamestown which extends easterly from Walcott Avenue to the sea.
On the 11th day of September, A. D. 1908, the Town Council of the Town of Jamestown entered the following decree: “That that portion of Narragansett Avenue extending from Walcott Avenue to the sea be surveyed, bounded and marked out and that Henry B. Tucker, Lewis W. Anthony and Thomas Carr be appointed a committee to survey, bound and mark оut said portion of said Narragansett Avenue extending from Walcott Avenue to the sea according to law and that they report to this Council their doings, together with a plat thereof.”
The committee duly qualified according to law, and thereafter, on the 28th day of September, A. D. 1908, made its report to the Town Council that it had, pursuant to its warrant, surveyed, bounded and marked out that portion of Narragansett Avenue extending from Walcott Avenue easterly to the sea, as follows: “Starting at a stone bound at the Northeast corner of Narragansett Avenue and Walcott Avenue, so-called; thence across Walcott Avenue in the line of the Northerly side of Narragansett Avenue prolonged 58.7 feet to a stone wall for the point of beginning; thence in said line of said northerly side of said Narragansett Avenue prolonged to the sea or salt water and thence to the harbor line, and bounded Northerly on land of Mary H. Horgan, thence Southerly, bounded Easterly by the sea to the general Southerly line of Narragansett Avenue prolonged easterly to the harbor line; thence Westerly in said general Southerly line of said Narragansett Avenue prolonged to the stone wall at highwater mark and thence in the same direction 163 feet to a point in the westerly face of said stone wall first above mentioned and bounded Southerly, by land of said Mary H. Horgan and thence Northerly along said stone wall to the said Northerly line of Narragansett Avenue prolonged 57.95 feet to the point of beginning. And it is our opinion that no person has sustained any damage by reason of the sur *531 veying, bounding and marking out of said portion of said highway. The annexed is an exact draft or plan of the said highway as surveyed, bounded and marked out by us, and it is hereby made a part hereof.”
Notice of the time and place of hearing said report was duly given to the appellant according to law. The appellant appeared and was heard relative thereto and thereupon a decree was entered by the Town Council on the 23rd day of November, A. D. 1909, approving the report of the committee and ordering that “ said highway be established and laid open by removing all buildings, fences and other impediments thereon.” The appellant aрpealed from this order and decree of the Town Council to the Superior Court for the County of Newport. Her reasons of ■appeal in substance were, that it was not necessary that said portion of said Narragansett Avenue should be surveyed, bounded and marked out or established and laid open as a highway; that the proceedings of the Town Council in the premises were irregular and not taken in accordance with the statute; that no damages were awarded to her. The cause was tried in the Superior Court before Mr. Justice Brown sitting with a jury. At thе conclusion of the testimony the justice presiding directed the jury to return a verdict for the appellee. The cause is before this court on the appellant’s exceptions to the direction of a verdict against her and to certain other rulings of the justice made during the trial.
The appellant excepted to the ruling of the justice presiding, ■denying the appellant’s motion to quash the proceeding. This motion was made on the grounds: (a) The town council did not ■order a highway to be laid out. (b) It did not adjudge the highway necessary, (c) The final decree of the council established a different way from that ordered to be laid out. (d) The committee made no effort to agree with the appellant as to her damages, (e) It did not appear that the committee appointed to make the layout were “suitable and indifferent” men.
*532
*533 The appellant excepted to the ruling of the justice presiding, directing the jury to return a verdict in favor of the appellee.
It'appears from the testimony given at the trial in the Superior Court that at a meeting of the Proprietors of the Town of Jamestown, held on the 1st day of March, A. D. 1709, it was agreed that the township lots should be laid out “from see to see next to ye farme of Joseph Morey that he has in possession.” On the 15th day of March, of the same year a further meeting was held at which it was “voted and ordered that ye maine highway shall be run threw ye township.” At a meeting of the proprietors held in April, 1709, a committee was appointed to lay out the township according to the proprietors' agreement. At this meeting it was also voted as follows: “We do further order that ye land that shall remain after every proprietor has his just right laid out ye remainder shall belong to ye proprietors & layd out at ye descreson of ye sd committee'which sd land shall run from see to see which ye sd committee shall lay out of that land a highway fore rod wide for ye use of ye country forever and ye remainder of it at ye descretion of ye sd committеe.”
Pursuant to a vote passed at a meeting of the proprietors held on the first day of May, 1709, a petition was sent to the General Assembly to be held at Newport on the 4th day of May following, in which it is set forth that the proprietors at a meeting held on the 1st day of March ordered and appointed a committee of five men “for to lay out a highway a fore rods wide on ye south line of our township land belonging to us ye above sd proprietors from see to see for ye use of ye country forever.” The petitioners pray that the Assembly “take ye mаtter into their consideration & will order & appoint ye highway forthwith to be laid out by ye committee & survayer so that ye publiclc benefit of ye Ferrys might be for ye good of her Majesties subjects.”
The General Assembly received the petition and directed that a jury be summoned by the sheriff to lay out the highway by the last Monday in said month of May, also that John Moumford surveyor, attend the jury. On July 7th, 1709, the committee *534 chosen by the proprietors to lay out the highway met and the following appears upon their record: “At a meeting of ye committee chosen by the proprietors of said town for ye ordely setting the highways athist ye Island from see to sеe and having the survayer Mr. John Moumford there and ye plat of ye Island the highway was laid out of fore rods wide and staked out by ye sd committee.”
It further appears by the record of said committee that on October 22, A. D. 1709, the committee met, viewed and approved the plat Of John Moumford “ of ye highways and severall divisions through and in ye township and commonadge land in sd town of Jamestown,” which said work was authorized by the whole committee on July 7th. And thereupon after due consideration it was ordered that “the sd returne be put upon record to stand as a finall determination and decision of all differences and disputes for ye future and that application be thereupon made to ye General Assembly at Warwick the twenty-sixth instant for a further confirmation of ye highways and that they give order for their being laid open for ye benefit of her Majtys subjects.” At the same meeting the clerk of the committee is directed to prepare a petition to the Assembly relating to the highway accompanied by the plat thereof by John Moumford. A petition was presented to the General Assembly on the 26th day of October, A. D. 1709, and therеupon it was voted “that all persons concerned is to move of there fences of the Highways by 10th day of Decem~r next which if they refuse or neglect to doe accordingly then it shall be lawfull for the wardens or any one of them in sd town to give forth thine ord-1' or warr_t to a Constable or Constables to take sufficient aide if occasion require to lay open the sd Highways and to see all other things complayed with or done according to the purport of sd petition.”
February 27th, 1710, the General Assembly passed an act declaring its act of October 26th, 1709, to have been a confirmation of the opening of the two highways, viz.: “the highway from ferry to ferry cross the island stated and confirmed by the propri~rs and a jury; Runn by Jno Mumford Survay~r and one *535 other highway that extends through sd Island down to the beach att the head of Mackrell Cove.”
From these records it is established that in 1709 a highway was laid out of the width of four rods, running across the town of Jamestown from east to west, from sea to sea; and that it was laid out across the land which the proprietors of the town held in common. This highway became known as Ferry Road, connecting the ferry to Newрort with the one to the main land on the west. It was afterwards named Narragansett Avenue. It still remains the principal highway of the town across the island of Conanicut.
According to the testimony of old residents of Jamestown up to about thirty or thirty-five years ago, at the easterly end of Narragansett Avenue, the travelled way terminated at the top of a sloping bank elevated a "few feet above the beach on the south side of Narragansett Avenue. On the north side of the avenue the beach was lower and less precipitous and a cart pаth led down to the water, by which cart path sand was hauled from the beach. For sixty years, at least, down to the present time a wharf has extended out from the lot immediately to the north of the easterly end of the avenue and another from the lot immediately to the south of the easterly end of the avenue. These lots may be referred to as the wharf lots. Formerly the tide ebbed and flowed between these wharves up to and upon the beach which lay at the foot of the bank at the easterly end of Narragansett Avenue. Fishermen and other boatmen landed their boats and hauled them up there; and the town and the public drew sand from this beach up the cart path to the level of the travelled way on Narragansett Avenue. These wharves and the wharf lots are now .owned by this appellant. About thirty-five years ago an ancestor in title of the appellant, as to both lots and wharves, one William H. Knowles, built a bulkhead some distance out in the water, below low-water mark, between and connecting the said wharves. Upon the land side of this bulkhead the said Knowles and members of his family deposited ashes from stеamboats using said wharves; they also carted sand and debris and dumped the same into the space *536 between said wharves, the bulkhead and the bank at the end of the travelled way of Narragansett Avenue. Other persons also dumped rubbish there and in time of storms the washings from Narragansett Avenue were carried there. Finally tins space was entirely filled to a considerable extent by the washings from the gutter in Narragansett Avenue.
It does not appear that, up to the time of the construction of the bulkhead by said Knowles, the owners of either the north or the south wharf lot had made any claim of ownership or right of possession in the land lying between said wharf lots and east of the end of the ordinary travelled way in Narragansett Avenue. Certified copies of the deeds in the appellant’s chain of title to the north wharf lot from 1738 to 1804 were put in evidence. In 1804 said lot was conveyed to one Thomas Congdon, who in 1806 became the owner of the south wharf lot also. In the recitals in each of these deeds the existence of the highway is recognized and the lot is described, in slightly varying words, as bounding southerly on the highway leading from ferry to ferry. Certified copies of the deeds in the appellant’s chain of title to the south wharf lot from 1751 to 1806 were also put in evidence. In each of these deeds the said lot is described as bounding northerly upon said highway. From 1806, when said Thomas Congdon became the owner of both lots, till 1871 when both lots were conveyed to said William H. Knowles, the said lots were described in all instruments of conveyance as bounding southerly and northerly respectively upon said highway. The last deed in the appellant’s chain of title is that of Charles G. Knowles et al. to Mary H. Horgan, the appеllant, dated October 29th, 1907. In this deed, for the first time, the land between the two wharf lots is included in the description of the premises conveyed, but the following limitation is made upon the covenants of the deed: “But it is expressly understood and agreed that the existence of any highway over any portion of the secondly described parcel of land shall not be deemed or taken to be a breach of any covenant in this deed, either express or implied, provided, however, that nothing herein contained shall be construed as an admission that any such *537 highway in fact exists.” Soon after receiving this deed the appellant built a stone wall along the easterly side of Walcott Avenue, which crosses Narragansett Avenue at about the place where the travelled way formerly ended in said Narragansett Avenue as described by the old residents of the town. This wall prevents access from Narragansett Avenue to the filled land which covers the sloping bank, the beach and the land formerly tide-flowed between Walcott Avenue, as it crosses Narragansett Avenue, and the location of the bulkhead built by William H. Knowles.
Thе appellant claims that the land east of the present east line of Walcott Avenue was never laid out as a highway; that the purpose of the proprietors in laying out the way was to reach the ferry and not the sea; that the witnesses testify that the ferry operated, within their memory, was reached by turning from the end of the travelled way in .Narragansett Avenue to the north or the south onto the wharf lots; and that it is plain therefore that the proprietors never intended to lay out Narragansett Avenue as a highway eastward of the present east line of Walcott Avenue. The records relating to the layout of Narragansett Avenue do not warrant such a conclusion. It does not appear what was the exact location of the ferry in 1709, or whether a public ferry existed on the east side of the island at that time. In the records of the proceedings leading up to the layout of this highway it is sometimes spoken of as running from ferry to ferry. We must find, however, from an examination of the whole record that the proprietors clearly intended to, and that in fact they did, lay out this highway from sea to sea along the south line of their common township land which itself extended across the island from sea to sea; and that this was their intention whatever may have been the location of the public ferry at that time, if there was one.
*538
*539 The appellant also sets up a claim of title to the land in question under the Narragansett Bay Company. The Narragansett Boy Company was a corporation organized under the laws of this state. See Rhode Island Acts and Resolves, October 1828, p. 39. This company by its charter was empowered among other things to operate a ferry between Newport and Jamestown. The appellant has laid particular stress upon certain language of section 15 of the act incorporating said company which in part is as follows: “Sec. 15. And be it further enacted that the Company aforesaid, for the purposes aforesaid, shall have the use and enjoyment of any shore or shores, wharf or wharves, convenient and sufficient for the purpose, which belong to the State, and are not in the occupancy of any person or persons entitled by law, and by grant to hold the same.”
It is the contention of the appellant that the power conferred by the General Assembly upon the Narragansett Bay Company was transferred to Congdon and came by mesne conveyances to William H. Knowles; that in budding the bulkhead and filling between the wharves Knowles was exercising this power; and that now the use and enjoyment of the land filled by Knowles are in her.
*540
“It would be an unusual event, to say the least, for the legislature at any time to cut off access through a public street to an arm of the sea; and it would be truly extraordinary to hold that such would be the effect of general words in an act granting privileges to particular individuals. Wе cannot suppose such to have been the intention of the legislature in passing the act of 1836. Had such been the design it would have been plainly expressed, and not left to be gathered, if at all, from general and equivocal words or phrases.” See also
Hoboken
v.
Pennsylvania Railroad Company,
Upon the testimony in the case, a finding of the jury that the appellant had any title or interest in the land in question, *541 bounded and marked out by the said committee, would have been entirely unwarranted; and Mr. Justice Brown properly directed a verdict in favor of the appellee.
The ruling of said justicе denying the appellant’s motion to quash was also without error. The action of the town council was a definition of the lines of an existing highway and the procedure prescribed in Chapter 71, Gen. Laws, 1896, for the layout of highways was not applicable to this proceeding.
In the case of
Morris
v.
Callanan,
In the case of
Randall
v.
Chase,
All of the appellant’s exceptions are overruled and the case is remitted to the Superior Court with direction to enter its decree in confirmation of the said order and decree of the Town Council of the Town of Jamestown.