Proctor v. Adams, 113 Mass. 376

Proctor v. Adams

113 Mass. 376 | Mass. | 1873

Gray, C. J.

The boat, having been cast ashore by the sea, was a wreck, in the strictest legal sense. 3 Bl. Com. 106. Chase v. Corcoran, 106 Mass. 286, 288. Neither the finders of the boat, nor the owner of the beach, nor the Commonwealth, had any title to the boat as against its former owner. Body of Liberties, art. 90. Anc. Chart. 211. 2 Mass. Col. Rec. 143. St. 1814, c. 170. Rev. Sts. c. 57. Gen. Sts. c. 81. 3 Dane Ab. 134, 136, 138, 144. 2 Kent Com. 322, 359. But the owner of the land on which the boat was cast was under no duty to save it for him. Sutton v. Buck, 2 Taunt. 302, 312.

If the boat, being upon land between high and low water mark, owned or occupied by the plaintiff, was taken by the defendants, claiming it as their own, when it was not, the plaintiff had a sufficient right of possession to maintain an action against them. Barker v. Bates, 13 Pick. 255. Dunwich v. Sterry, 13. & Ad. 831. But if, as the evidence offered by them tended to show, the boat was in danger of being carried off by the sea, e;nd they, before the plaintiff had taken possession of it, removed it for the purpose of saving it and restoring it to its lawful owner, they were not trespassers. In such a case, though they had no permission from the plaintiff or any other person, they had an implied license by law to enter on the beach to save the property. It is a very ancient rule of the common law, that an entry upon *378land to save goods which are in jeopardy of being lost or destroyed by water, fire, or any like danger, is not a trespass. 21 H. VII. 27, 28, pl. 5. Bro. Ab. Trespass, 213. Vin. Ab. Trespass, (H. a. 4) pl, 24 ad fin.; (K. a.) pl. 3. In Dunwich v. Sterry, 1 B. & Ad. 831, a case very like this, Mr. Justice Parke (afterwards Baron Parke and Lord Wensleydale) left it to the jury to say whether the defendant took the property for the benefit of the owners, or under a claim of his own and to put the plaintiffs to proof of their title. In Barker v. Bates, 13 Pick. 255, upon which the plaintiff mainly relies, the only right claimed by the defendants was as finders of the property and for their own benefit.

The defendants are therefore entitled to a new trial. As the answer was not objected to, and the declaration may be amended in the court below, we have not considered the form of the pleadings. New trial ordered.