22 Me. 350 | Me. | 1843
— This action is trespass quare clausum. The trespass alleged, is an entry upon the land of the plaintiff situated in the town of Freeport, and the taking and carrying away therefrom of six gondola loads of muscle-bed manure. The defendants admit, that they entered upon the shore of Harrisicket river within the flux and reflux of the tide waters opposite to and within one hundred rods of the plaintiff’s farm, and took and carried away the manure; but they deny, that they committed any trespass upon the plaintiff’s land. The farm of the plaintiff is on the westerly side of a point of land extending into Harrisicket bay, and the tide flows in the river on the westerly side of the farm about four hundred rods. The point of land appears to have been formerly within the limits of the town of North Yarmouth, and to have been anciently owned by Thomas Shepard, and at that time called Shepard’s neck. The title to it was confirmed to Henry Woolfe, who appears to have been the heir of Shepard, by a committee of the proprietors of that township, August 24, 1733. The bounds were then ascertained, by a survey made by Edward King, to be southwesterly by Harrisicket bay, being the same body of water, which in subsequent conveyances was called Harrisicket river. Henry Woolfe, by his will approved October 1, 1759, devised the same to his daughters Mary and Rachel in equal halves. Rachel, by the name of Rachel Moxey, widow, conveyed her half to Solomon Loring and John Hayes on October 2, 1761, bounding the neck of land as it was originally bounded in the confirmation to her father. There would seem to have been a division between the owners of the neck, made after this conveyance, but no record of it is produced. On June 25, 1805, Jacob and Rachel Loring, reciting that they are the heirs of David Cushing Loring, who was probably the heir, devisee, or grantee, of Solomon Loring, conveyed the westerly half of the neck to George Lincoln. It is contended, that the land conveyed by this deed was bounded by the shore, and that such cannot be the true construction of the deed as to include it. The description of the land con
The several deeds of conveyance from the heirs of George Lincoln to James Johnson, either refer to the description contained in the last deed for a description of the land conveyed, or describe it in the same manner.
James Johnson conveyed the farm to Alfred Soule on October 31, 1834, by a double description ; one general, and the other by particular metes and bounds. The particular description bounds the farm by the shore. It commences “ at the shore on Harrisicket river and extends the line easterly to the line dividing the neck into halves, and then it follows that line, “ to an oak by the shore, then northeasterly by the shore to the first bounds mentioned.” The general description, which precedes the particular one, is as follows, “ a certain tract of land situated in said Freeport containing one hundred and thirty-five acres, more or less, being the same land I.purchased of the heirs of George Lincoln, late of Freeport, deceased.” This general description was sufficient to convey the estate, although the deeds from the heirs of Lincoln were not expressly referred to. For the land purchased of those heirs could be certainly ascertained, and the grant would thereby be made certain and effectual. Whistler's case, 10 Co. 63. The intention of the parties is not only apparent, but it is declared to be to convey the same land purchased by the grantor of the heirs of George Lincoln. This intention is to be carried into effect, if it be possible. A conveyance should.be so construed, if possible,- that all parts of it may stand together. To give effect to the intention of the parties, general words may be restrained by a particular recital,- which follows them, when such recital is used by way of limitation or restriction. But if the particular recital be not so used, but be used by way of reiteration and affirmation only of the preceding general words, such recital will not diminish the grant made by the general words. And there can be no doubt, that the design of the particular description in this deed was to describe the lánd conveyed by the general description more perfectly, and
Alfred Soule conveyed the farm to the plaintiff on May 10, 1840, by a similar description, substituting “ the late James Johnson,” his grantor, for “ the heirs of George Lincoln, late of Freeport.” And the same rules of construction and remarks are as applicable to this deed as to the last deed.
The plaintiff having thus established his title to the farm as bounded upon the river, the ordinance of 1641 declares, that “ the proprietor of the land adjoining shall have propriety to the low water mark, where the sea doth not ebb above a hundred rods, and not more wheresoever it ebbs further.” Free fishing and fowling is therein reserved to every householder. And Mr. Dane says, c. 68, art. 3, § 2, that the ordinance has been constantly practiced upon “ as to fishing and fowling, taking sand, sea manure, and ballast, as the right of soil in flats ground.” No such right of taking sand, manure, or ballast is reserved in the grant made to the owner of the
The defendants attempted also to establish a common right in all the inhabitants of the town of Freeport and vicinity to enter upon the flats and take such manure. And offered two of the inhabitants of that town to prove it; but their testimony was excluded. It is provided by statute, c. 115, § 75, that the inhabitants of towns and certain other quasi corporations, and the members of certain incorporated societies, shall be competent witnesses, when the corporations or societies are parties, or interested in the event of the suit. But the town of Freeport in its corporate capacity is not interested in the event of this suit; and the inhabitants are not made competent witnesses, when they are interested in the event of the suit, as individuals. And they would be interested to establish a common right to take such manure in all the inhabitants of that town, because the verdict which should establish or deny such common right, when one only is a party, might be evidence for or against all others. Lufkin v. Haskell, 3 Pick, 356. The testimony offered was properly rejected. It is unnecessary to decide whether such a common right, as is alleged in the brief statement, could have been established by any proof.
Defendants defaulted.