8 Me. 85 | Me. | 1831
delivered the opinion of the Court, at the ensuing July term in Waldo.
By the report of the Judge who presided at the trial, in connection with the resolves and documents therein referred to, the following facts appear.
The premises demanded are situate in Bangor, consisting of upland and flats. The demandant having entered a nolle prose qui as to so much of the premises defended as lies above high water mark, with the privileges of water and landing in front of the same, the title to the flats is the only subject in dispute. The acre of land, of which two eighth parts are demanded, commonly called the McGlathry acre, is a part, of a one hundred acre lot of land.
The resolve of March 5, 1801, declares “That all- the settlers in the town of Bangor, or their legal representatives, who actually settled before the first of January 1784, be entitled to a deed of their respective lots of one hundred acres each, by paying into the treasury of this Commonwealth, eight dollars and forty-five cents.” The resolve further provides that the committee for the sale of eastern lands should cause the several lots.in the town of Bangor to be surveyed and run out by metes and bounds to each of the settlers in said town by some faithful surveyor. Those preliminary measures were adopted in regard to the lot on which James Budge had settled as before mentioned, and they are recognized in the deed of March 2, 1802, to Lapish, French and Stetson. They are the legal representatives of the said Budge, as to all the lot, excepting what he had before that time conveyed to McGlathry. In the case of Knox al. v. Pickering, 7 Greenl, 106, we have decided that the flats in front of, and adjoining to the settlers lots in
In the view we have taken of this cause, we consider the Waldo Patent, the Charter of the Massachusetts bay and the act incorporating the town of Bangor as unimportant. They can have no influence on our decision. The same remark is also applicable as to all those facts relating to the height of the tide, the width of the flats, the quality of the water, the height of the bank and the nature of the fishery, which the tenants offered to prove and the demandant admitted.
The above examination of the facts shows, that the principal question in the cause is, whether, by the terms and description employed in the deed from Budge to McGlathry, the flats were conveyed, or only the upland. The language of the deed is this - a certain lot of land, lying and being in Bangor, on CondesJceig point, so called, bounded and described as follows, to wit: beginning at a stake, on the west bank of Penobscot river, near a thorn bush, marked on four sides, running north eleven rods to a stake and stones; thence southerly to a stake and stones, a comer; thence south nine rods to a stake and stones on the same bank of the same river; thence running on the western bank of said river to high water mark, sixteen rods to the first mentioned bounds, with all the privileges of water and landing to the same belonging.” The tenants have no claim to the flats in question, unless under the colonial ordinance of 164 Í, and the principle of our common law which was introduced by it: and to this ordinance and this princiDle his counsel lias appealed, in his construction of the deed from Badge to McGlathry of tho acre, in support of the title of the tenants j and has contended, that by tho language of that deed the flats in question passed. Every course and every monument mentioned in the foregoing description is on the upland or bank ; and from the language of the deed in describing the last course, it appears that the stake begun at, was at high water mark. In Storer v. Freeman, 6 Mass. 435, Parsons C. J. in delivering the opinion of the court says, — “ The sea shore must be understood to be the
But it is, in the second place, contended that if the flats in front of the acre did not pass by Budge's deed to McGlathry, still the demandant is not entitled to recover ; for he must recover, if at all, on the strength of his own title, and not on account of the weakness of the tenants, as the court recently decided in the case of Knox al. v. Pickering; and it is urged that the deed of March 2, 1802, from the Commonwealth to Stetson, French and the demandant, did not include and convey the flats to them. In de
We are all of opinion that the defence does not rest on any legal foundation.
Judgment on the Verdict.