28 Me. 180 | Me. | 1848
The opinion of the Court was drawn up by
The action is trespass qttare clausum. The place where the alleged trespass was committed, was near the sea, upon a bank of sand, where no vegetation grows; and which the defendant alleges to be a beach ; and the documentary title of the plaintiff, appearing to be bounded seaward on the beach, that the locus is excluded from, and not included within his limits. The plaintiff must, to maintain his action, show title of some kind to the locus in quo. lie does not rely upon any other than the limits embraced in a deed introduced by him. Those begin by the beach; and run thence from seaward to a creek; thence by the creek to Bragdon’s marsh; thence by the marsh to a ditch ; thence by the ditch to the beach; thence by the beach to the beginning; thus excluding the beach. The plaintiff contends that these boundaries carry him to high water mark, and thus include the locus.
The term beach is defined by Webster, to be the shore of the sea, or of a lake, which is washed by tide waters and waves. Other lexicographers say it is the sea shore, the strand, the coast. Webster says the shore is the coast of land adjacent to the ocean or sea, and that strand is the shore or beach of the sea or ocean or of large lakes. Other lexicographers say, that shore is the coast of the sea, and that strand is the sea beach. C. J. Parsons, in Storer v. Freeman, 6 Mass. R. at p. 439, says, the sea shore is “ all the ground between the ordinary high water mark and low water mark.” And he says this question is largely considered by Lord Hale, in his treatise de jure marls et brachiorum ejusdem; and his definition of sea shore is, “ that ground that is between the ordinary high water mark and low water mark.” Mr. C. J. Weston, in Cutts v. Hussey, 15 Maine R. at p. 241, says, that, “by a beach, is to be understood the shore or strand ; and it has been decided, that the sea shore is the space between high and low water.” If a beach is not to be so limited, it would be difficult to define its limits. In many places the same kind of diluvial matter, that composes the land between high and low water marks, extends a great distance from the sea. For instance, such is the case upon Cape Cod. In many places there, it extends from sea to sea, across the cape. On the whole, the word beach must be deemed to be land, washed by the sea and its waves ; and to be synonymous with shore.
But it is contended, that words acquire different meanings in different places, and that they must be taken to bear a meaning according to their acceptation where they may happen to
The defendant has introduced various acts of legislation to show that beach must, mean upland. In the first place it maybe remarked, that it is not quite clear, that legislatures may not misuse language. If it were, many of the difficulties, so often-occurring in discovering what they mean, would instantly vanish. The first and second acts cited, speak of “ meadows or shores adjoining said beach,” indicating that beach and shore were entirely different, the one being adjacent to the other.. The next six citations speak of meadows, beaches and shores, without any indication of the meaning intended particularly- to-be affixed to either. The ninth citation is of a prohibition to “ cut wood, poles, brush or trees, standing and growing upon Plymouth beach.” Most people, perhaps, would require stronger proof than a legislative act to satisfy them, that wood and trees ever grew on a beach. The tenth citation speaks of beach, hummocks and sedge ground, and prohibits cutting “ trees or shrubs growing on said beach or hummocks.” Trees, might grow on hummocks if always above water. From the-case of Thomas against Marshfield nothing can be gathered-decisively, as to what constitutes a beach. It is manifest that grass grew on it, such as cattle would eat; and that such is the
The next question is, where must we look for the starting point in the plaintiff’s deed ? We must find Isaac Bourne’s corner; and according to authorities, we must find it by the beach. Pride v. Lunt, 19 Maine R. 115. A stake and stones, as the corner, could not be shown to be elsewhere. We are to run from thence round to a ditch ; and by the ditch to the beach ; thence by the beach to the beginning.
To this, several objections occur, of considerable weight. In the first place, the deed purports to be of but two and a half acres; and the ground comprised within the above boundaries would exceed that quantity. This is no otherwise important, than to serve to indicate the intention of the parties; that it was not intended to convey so much as is embraced in the above exterior lines. In the next place, the deed speaks of the ground conveyed, as being salt marsh, and the ground within the above limits would not all be salt marsh.
In the third place, the course by the ditch is said to be to the beach. Now it does not appear that the ditch ran further than the sand embankment, to be found before reaching the beach; and which the defendant contends, is in truth the beach referred to in the deed. Such being the case, the line by the ditch could not run all the way by it to the true beach ; but it is truly stated, that it ran by the ditch, and to the beach. Both branches of the statement are measurably, though per
It is not perceived, that any testimony, material to the defence, was excluded.
As agreed by the parties, the defendant must be defaulted, and judgment be entered for $2,50 damages.