15 Conn. 137 | Conn. | 1842
The plaintiffs’ claim resting upon the title of their ancestor to the residuum under this will, it is necessary to determine what the defendant can claim by the devise to Lucy Shelton. The Eastern boundary of her land is described in the will as “ East on the harbour at the foot of the bankand the precise question is, where does this description carry her land ? The plaintiffs say, to the foot of the bank: the defendant says, to the waters of the bay or harbour. The plaintiffs say, that the bounds are fixed at the foot of the bank ; and the jury have found there was land beyond that bank, before you come to what may be termed the shore. The defendant says, the word “ harbour” is definite, intelligible and leaves no ambiguity, and so must govern. What then are the court to do ? They are bound to construe a will according to the intent of the testator; to give effect to that intent, if consistent with legal principles; and to give a meaning to every part of a description, if practicable. Upon
It is said, there is no ambiguity here ; the harbour is a definite object, as much so as a river ; and it must mean the water, as much as if the river had been the boundary. And a definite boundary being given, it is said, you are seeking one more indefinite. This description of the boundary is to be taken together. If it is possible, each part must have its due effect. Now, the defendant would have it read just as if the latter words were left out — at the foot of the bank,” — so as to suppose the devisor meant nothing by them. And if the defendant is right in his construction, they are to mean nothing. But if we are to give effect to the intent, and to give weight to every word of the testator, we may read it thus— bounded on the harbour, — that part of the harbour which lies at the foot of the bank. Now if, as is not uncommon, the lands about a bay are called harbour, as well as the bay itself, we give effect to every expression in the will, particularly the last words, upon this subject evidently intended to con-troul the generality of the former, and to render it more definite. Now, if the testator had said, East on the harbour along a line of rocks, on the top of these rocks ; and it was shewn, that the water never came to the foot of these rocks, but there was land sometimes cultivated below, could there be a doubt of his meaning, or the right to show it 1 The proof here is of the same kind. A bank ten feet in height, at the foot of which is a piece of land, before you reach the shore, so called, and bounded on the harbour, at the foot of the bank; as if he had said, East on the harbour; but lest it should be misconstrued, I mean by the expression “on the har-bour,” that part of the harbour, which is at the foot of the bank. This is what is substantially said, by the verdict of the jury, under the direction given; and much of the argument on the part of the defendant, might be addressed to the jury ; though,
The defendant further claims, that for that part of the land filled up in the flats, the plaintiffs can have no right to recover; and he says, the legal title is in the state, and not in the plaintiffs ; and if the plaintiffs have a right, this action will not lie.
As to the first objection, that the land between high and low water mark belongs to the public; this has not been denied. Nor has it been denied, that the adjoining proprietor may fill it up, or reclaim it, for the purpose of erecting wharves, not impeding navigation. The defendant, however, insists, that when done, the plaintiffs are not the owners of the soil, but the state is owner. Now, although the state prima facie is owner of the shore on the sea-coast; yet, we think, that if a -wharf is legally erected thereon, it cannot be maintained, that the freehold is not in the hands of the proprietor. The law which permits him to build a wharf there, not injurious to the public interest, surely does not consider him as without interest in the soil; and wherever there is an interest in the soil, this action wall lie: as in the case of a boilery. Smith v. -, 1 Lev. 114. Or a fishery. The King v. Old Alresford, 3 Term Rep. 358. And if this action cannot be supported, he is left remediless as it respects an insolvent disseisor. We think the title must be in him, subject to the right of the public to abate it, if it prove a nuisance.
The defendant further claims, that however it might be, had the plaintiffs filled up this flat; yet, as the defendant has done it, the plaintiffs can claim no right to it. Now, if the plaintiffs, as adjoining proprietors, were the individuals who alone had the right to do this, and the defendant has done it, and by means of it, he, if permitted to enjoy it fifteen years, would gain a complete title against the plaintiffs, he cannot, we think, complain, if the plaintiffs are allowed to treat his
It is further said, that it does not appear, that this was done with the intent to erect a wharf, and so is not within the principle. It is enough to say in answer, that no such question was made below.
It was said, that Ch. J. Hosmer speaks of the rights of persons situated like the plaintiffs, as a mere franchise; and therefore, this action cannot be supported, as it will not lie for an incorporeal hereditament. That rule is not universal; and it has been held, that ejectment would lie for tithes. 2 Wms. Saund. 304. n. 12. And for common appurtenant. Mellington v. Goodtitle, Andrews, 6. 8.
The principal objection, in the English courts, to this action, where the plaintiff had the right, has been, that there was nothing tangible, upon which an entry may be made, or of which the sheriff could give possession. The latter objection has lately met with no particular favour. Goodright d. Welch v. Flood, 3 Wils. 23. But the rule now is, that where the property is tangible, and an entry can be made, and possession can be delivered to the sheriff, this action will lie. 2 Leigh’s N. P. 823. Jackson d. Loux & al. v. Buel, 9 Johns. Rep. 298. Jackson d. Saxton v. May, 16 Johns. Rep. 184.
Here, the property is tangible ; and an entry may be made, and possession given.
The action, therefore, must be sustained ; and no new trial granted.
New trial not to be granted.