117 Mass. 401 | Mass. | 1875
The only question presented to us is as to the correctness of the ruling of the sheriff that upon the evidence the jury would be warranted in finding a title to the estate in the petitioners by adverse possession. A part of the estate taken by the respondent consisted of flats below high-water mark and within one hundred rods of the shore, and the respondent contends that the ruling was erroneous as applied to these flats.
A title to flats, as well as to any other lands, may be acquired by prescription or adverse possession. And the same general rule applies to flats as to other lands. An actual, open, adverse and exclusive possession constitutes a disseisin, which if continued without interruption for twenty years will ripen into a title.
The title of every one in flats, so long as they remain unoccupied and uninclosed, is subject to the public right of navigation ; and therefore it is held that the use by every one of flats, by passing in vessels or boats or anchoring thereon, is not a disseisin, and, however frequent or long continued, will not give a title by prescription. Like the travel upon a highway, such use is presumed to be in the exercise of the public right, and is not adverse to the owner of the fee.
But if flats are inclosed or otherwise actually occupied by a person claiming a right to the soil, to the exclusion of all others, such use constitutes a disseisin. Thus building a wharf and using the flats at the end and sides of it to lay vessels for the purpose of loading and unloading them is a disseisin of the flats covered by the wharf, and of the flats at its end and sides, so far as exclusively used by such vessels. Rust v. Boston Mill Corporation, 6 Pick. 158. Wheeler v. Stone, 1 Cush. 313. Drake v. Curtis, 1 Cush. 395. Nichols v. Boston, 98 Mass. 39. So erecting two buildings over flats, upon piles, under which the water flowed but boats could not pass, was held to be a disseisin of the flats under the building, and under an open space between the two buildings used as a passageway in connection with them. Boston Mill Corporation v. Bulfinch, 6 Mass. 229.
Judgment affirmed.