Merwin v. Wheeler, 41 Conn. 14

Merwin v. Wheeler

41 Conn. 14 | Conn. | 1874

Seymour, C. J.

The land in dispute is a sand beach, about one hundred and eighty rods in length, four rods wide, and of an average height of four and half feet above high water. It is connected with the upland on the east by what is called “ Beach Lane,” and is bounded southerly by Long Island Sound proper, and on the west and north by a cove of salt water flats, over which the tide rises and falls, but which seems to be private property.

The defendant is sued for entering upon this sand beach and carting away large quantities of sand, and that ho did the acts for which he is sued is admitted. The jury under the instruction of the court, found that the plaintiffs owned the premises in dispute in fee, and the verdict, which was for the defendant, must have been rendered for him on one of two grounds; either, first, that the public had by long continued user acquired the right to take sand from the premises ad libitum,, or, second, that the defendant as an individual had by prescription acquired such right.

It seems clear to us that the verdict cannot be sustained on the ground of an incorporeal right in the unorganized *24public to take the sand. Indeed the evidence offered by the defendant does not seem to be directed to the establishment of such a right, as distinct from the title to the land itself. The motion says “ the defendant offered a large number of ■witnesses to prove that said beach was and immemorially had been a public beach ; that from time immemorial the public had resorted to it, and passed and driven over it, and taken therefrom continually large quantities of sea-weed, sand and gravel, for use and merchandise, &c.” This evidence was undoubtedly admissible as tending to show that the title and possession of the premises was not in the plaintiffs. It might tend to show 'that the sand bank had never been included in any grant from the state, but was left a public beach, open to the common use of the public, like the sea itself and its shores. But the jury found that the plaintiffs owned the land, and the question is whether this public use proved, or tended to prove, an easement in the public to take sand from the plaintiffs’ land, or tended to prove such right as a profit a prendre. Now even if the unorganized public is capable of taking such a right by grant or acquiring it by prescription, which it would seem they are not, wc think the evidence is not adapted to the establishment of a subordinate right or easement in the premises. This subject is fully and learnedly discussed in Post v. Pearsall, 20 Wendell, 111, and 22 Wendell, 425, where all the cases bearing on the question are cited.

The verdict then, if sustainable at all, must be justified on the ground that the defendant had an individual prescriptive right to take and carry away the sand from the plaintiffs’ land. The evidence to prove such prescriptive right was “ that the defendant for the period of twenty years had continuously and uninterruptedly taken sand and gravel from the portion of the beach in dispute for use and for sale that is, the defendant, to prove a prescriptive right in himself, offered evidence showing that he had done precisely what the public had done ; that he, in other words, as one of the public, had taken sand from the beach ad libitum. He did this, not as the owner of other lands, for the benefit of those *25lands and as incident to an estate in such other lands, but in gross, as one of the public, and not under any claim of individual right in himself other than as one of the public.

We think this evidence did not show an individual prescriptive right in the defendant and so far as it was received as tending to show such right was inadmissible.

It is further to be observed that the property in dispute appears to be valuable mainly and perhaps solely for its sand as an article of merchandise. An unlimited right in the defendant to take and sell all the sand is therefore equivalent to full ownership and is inconsistent with the title in fee of the plaintiffs. The claim of such a right in another’s land by custom or by prescription is unnatural and unreasonable, and is not sanctioned by the law. If allowed the whole beach would be at the defendant’s mercy. A prescription as well as a custom to be valid must not be unreasonable. Clayton v. Corty, 5 Adol. & El., N. S., 415, 422.

Again, this right is prescribed for in gross, and not as appurtenant to other lands. The right, if it exists, is a profit a prendre and not a mere easement, and such rights must generally and perhaps universally be prescribed for not in gross, but as incident to other premises for the benefit of which and in connection with which the rights are to be exercised. Grimstear v. Marlone, 4 T. R., 717.

We therefore advise a now trial.

The defendant, under the statute authorizing him so to do, has filed his bill of exceptions, claiming that the judge’s charge at the trial was wrong in regard to the. construction of the plaintiffs’ deeds, and upon examination of the deeds in connection with the maps of the premises we think the judge was wrong in saying to the jury “ that the sand beach was by operation of law embraced in the conveyance, and that the title acquired thereby extended to ordinary high water mark.”

The high water mark referred to in the charge is that mark on the south side of the sand beach. The deeds bound the land convoyed “ southerly on the beach,” but it seems there are two southerly boundaries which may answer this description ; one is the sand beach, the other is the Long Island *26Sound beach, namely, the space between high and low water mark on the south side of the sand beach. There may perhaps be also another beach, namely, the space between high and low water mark on the north side of the sand beach. The maps seem to indicate such a beach, but the record does not distinctly show that it exists. We think it was competent to show by the other parts of the deeds and by the situation and use of the property and also by proper parol evidence, which of the beaches was intended.

We see no reason for holding that in law the beach means the shore of Long Island Sound, especially as the deeds do not bound the premises by the Sound. The word “ beach ” has no such inflexible meaning that it must denote land between high and low water mark. The premises in dispute are called either sand beach, or beach simply without the prefix. The plaintiffs in their writ bound their premises southerly by “ Long Island Sound,” which would seem to be the natural mode of describing them in the deeds, if it had been intended that they should extend to ordinary high water mark on the Sound.

Some other questions were made on the trial which it is unnecessary to notice. One question of practice however was considerably discussed at the bar, concerning which it is proper, we think, for us to express our opinion. It is claimed by the plaintiffs that the court ought to have made a formal call of the parties before taking the verdict of the jury. , A practice formerly existed of making such call, but it has for many years been discontinued. The plaintiff may at any time become nonsuit before the verdict is taken in, but if he neglects to avail himself of that privilege he must suffer the consequences. It is not the duty of the court to call the parties. They are bound to be present, and after appearance are presumed to continue their appearance until they ask to be called and to disappear.

In this opinion the other judges concurred.