Stone v. Boston Steel & Iron Co.

96 Mass. 230 | Mass. | 1867

Gray, J.

In the division of flats between the proprietors of

lands on the sea-shore no general principle is better established than that by which each parcel of flats, unless affected by the peculiar shape of the shore or the terms of particular grants, is to extend directly towards low water mark, and to be of equal width throughout. In Gray v. Deluce, 5 Cush. 12, Mr. Justice Wilde, speaking for the whole. court, declared it to be a general rule which was intended, though not expressly stated, by the colonial ordinance of 1647, “that in all cases, when practicable, every proprietor is entitled to the flats in front of his upland of the same width at low water mark as they are at high water mark,” or (which is precisely equivalent) “ of equal width with his lot at high water mark.” And in Porter v. Sullivan, 7 Gray, 443, Chief Justice Shaw said that the flats of each proprietor “ must be in front of the land, that is, directly to the sea from which the tide flows, by lines as nearly as practicable perpendicular to the -inc of shore, or the line of ordinary high water mark.” See also other cases cited in Wonson v. Wonson, ante, 79. In Gray v. Deluce, in which the shore of the cove formed a long and not deep curve, the flats were divide jl by running a base line across the mouth of the cove, and drawing parallel lines at right angles with the base line. That case indeed differed from this in not showing that the line of extreme low water was in any part within such base line; but the shore of the cove now in question departs even less from a straight line than in that case; the position or shape of the channel is not such as to require any different mode of division ; and it is admitted that the same rule is to be applied here, unless controlled by the terms of the deeds from which the parties derive their titles.

Although the proprietor of land bounding on the sea-shore may sell it with or without the adjoining flats, or with such portion as he pleases of the flats which he owns, the presumption is that any deed of a lot of land with the flats adjoining is intended to pass the grantor’s actual right and legal title in the flats appurtenant to or parcel of the lot granted; and it is well settled that the side lines of the upland have no influence in deciding the direction of the dividing lines of the flats, unless referred to as guides in particular grants; as, for instance, in Dawes v. Prentice, 16 Pick. 435, in which the side line of a parcel of flats granted was described in the deed as running parallel with the side of a certain wharf; and in Winnisimmet Co. v. Wyman, 11 Allen, 432, in which the legislature had granted rights to extend beyond low water mark wharves already built, and there was no evidence that the form of the shore was such as to control the reasonable inference that these wharves should be extended in siraight lines. Piper v. Richardson, 9 Met. 158. Curtis v Francis, 9 Cush. 442.

The side lines of the three lots conveyed by Wait to Nathan Tufts, Daniel Tufts and John Little, respectively, and now constituting the tenants’ estate, all ran parallel with each other, and struck the shore obliquely, so that the boundary line of each lot upon the shore was longer than the width of the lot if measured at right angles with the parallel side lines. Each deed describes the flats conveyed, not as being of the same width as the lot^ but as of the same number of feet in width as the boundary of the lot upon the shore. Neither of the deeds in terms declares an intention to extend the side lines of the flats in the same direction as those of the upland; and upon a careful consideration of their language as applied to the situation and circumstances of the flats in question, the court is of opinion that such an intention is not to be implied.

In the first place, the description of the flats as of the same width to low water mark as the boundary of the upland at the shore is not sufficient to require the side lines to be extended over the flats in conformity with the side lines of the upland, instead of in accordance with the legal boundaries of the flats belonging to the lot granted. Piper v. Richardson, 9 Met. 158.

In the next place, so to extend the side lines of the flats would not give a width of flats equal to the boundary upon the shore, as called for in the deed, but a less width. It is as plain as any proposition of geometry that the only way of making each parcel of flats equal in width to the boundary at high water mark is to draw the side lines of the flats at right angles with that line. Kennebec Ferry Co. v. Bradstreet, 28 Maine, 374. And side lines thus drawn substantially correspond with dividing lines at right angles with the base line of the cove, and are perhaps a little more favorable to the demandant than such dividing lines or than he asks for.

In the third place, the plan shows that if the side lines of each of these three lots should be extended in conformity with the side lines of the upland, the westernmost lot of the three, being that described in the deed from Wait to Little, would take by that deed no access whatever to low water mark, because both its side lines would strike the eastern line of the western lot of the demandant, which, “ with all the flats belonging to the same,” he holds under an earlier title, and the side lines of which must therefore, as both parties admit, be drawn at right angles with the base line of the cove.

Judgment for the demandant.