Rust v. Boston Mill Corp.

delivered the opinion of the Court. The lands demanded in this action were formerly flats, and the demand-ant claims them as appertaining to his adjoining upland, by virtue of the colony law of 1641. To establish his title, he proved at the trial, that soon after the first settlement of the country certain allotments were made to Thomas Buttolph, William Copp, and John Button, which included the upland now in the possession of the demandant.

These allotments were proved by an ancient book of records of the town of Boston, entitled the Book of Possessions, which, although not regularly authenticated, has been preserved among the records of the town, and as nothing appears to impeach its verity, we consider it as competent evidence, and as sufficient to establish these ancient titles.1

The demandant did not deduce a connected title from Copp and others. Yet as it was proved that he and those under whom he claims, had been in the possession of a part of the upland included in the ancient allotments above mentioned, claiming title thereto, ever since the year 1653, we are *166of opinion that such a long and undisturbed possession is sufficient to raise a presumption of a grant from the former owners.1

But no flats were included in these allotments, which were bounded, on the side of the cove, by the marsh ; so that all the flats, on this side, were necessarily excluded; and cannot be now claimed as appurtenant to the upland, unless the allotments were made, as the demandant contends they were, previously to the ordinance of 1641. This question of fact has been submitted to the consideration of the jury, and the verdict would be conclusive, if the chief justice had not intimated to the jury that it was not material ; but as they might have been prevented from considering the matter by this intimation, there ought to be a new trial, provided the fact is material and was sufficiently proved by the evidence.

To prove the fact, the demandant, at the trial, relied on the Book of Possessions ; but there is nothing to be found in this book to fix the dates of the grants to Copp and others, or to show when their possessions commenced. But the presumption is strong, that they did not commence so early as to entitle them to the flats under the ordinance of 1641. In 1643, the town granted all the cove and all the salt marsh bordering thereupon round about, not formerly granted to any others, to Henry Simonds and others, under whom the tenants claim. The exception of former grants referred, no doubt, to grants made by the town.

It appeal's by the records of the town, that governor Winthrop and several distinguished citizens were present at the meeting when this grant was made. And it cannot be presumed thal they were ignorant of the legal rights of the town ; or that they would have consented to the grant, unless they were satisfied as to the title. Nor can it be presumed that the grantees would have made the purchase, thereby engaging to incur the heavy expense of erecting mills, according to the terms and condition of the grant, without a thorough examination of the title of the grantors.

We find also, that soon after the grant, several proprietors *167of upland bordering on the flats applied to the town for leave to wharf out before their lands. And among those thus applying, Thomas Broughton, under whom the demandant claims, was one, who applied for this purpose in 1652 and renewed his application in 1654. These facts raise very strong presumptions in favor of the ancient title of the town : and we find no evidence in the case to repel them. We are therefore all of opinion, that there was no evidence at the trial whic,'. could have warranted a verdict on this point in favor of the demandant. But if the allotments to Copp and others had been made previous to the ordinance of 1641, it is by no means clear that they could have claimed the flats by virtue of that ordinance ; because there is marsh land in front of these allotments. This appeal’s by the Book of Possessions ; and that there was marsh thereabout, appears also by the grant to Simonds and others, and by the explanation of that grant, in which it is declared that the grantees shall not be bound to reserve any marsh, if they should have occasion to cut it up, but in that case the town’s liberty for repairing the causeway was to reach to such land as might be left, whether upper or nether spitt. If then there was marsh in front of the allotments to Copp and others, which was excluded by the terms of those allotments, they could not take the flats under the ordinance ; for the flats would belong to the proprietor of the adjoining land, whether upland or marsh.

This being our view of this part of the case, it is immaterial whether the construction given by the chief justice to the ordinance of 1641 was correct or not. For if the demandant has shown no title under the ordinance, the construction of it is unimportant. We however have no doubt of the correctness of the construction adopted at the trial. If the demand-ant were entitled to the flats, he could claim them only in the direction to low-water mark. This is the obvious meaning of .he language of the ordinance. And it appears to me that the supposed difficulty of making a division of the cove among the several proprietors of the land adjoining, is without foundation. Let us suppose that a line drawn across the mouth of the cove were 100 rods in length ; and that the circular line of the cove at high-water mark were 200 rods in *168length. Then each proprietor of a lot abutting on the cove would be entitled to run his lines from the two corners of his lot in a direction to low-water mark, so as to include a piece of flats which would be at the mouth of the cove one half of the width of the lot at high-water mark ; and thus by converging lines the whole cove might be divided without any intersecting lines.

Thus if there were only two proprietors of the land sur rounding the cove, each holding a moiety in severalty, and their dividing line being at the centre of the head of the cove; then a central line passing down to low-water mark would be the dividing line of the flats between the two proprietors. So if there were four proprietors, each owning an equal extent of front on the cove, then each would be entitled to a piece of flats 25 rods in width at the mouth of the cove, so that lines drawn from the corners of each lot at the front, in a direction to low-water mark, and being distant from each other at the mouth of the cove 25 rods, would give to each proprietor his due share of the flats in the cove, according to the terms of the ordinance of 1641. And this form of division will be practicable whatever may be the number of lots around the cove. Thus each proprietor may hold his share of the flats in severalty, subject to no other restrictions than those imposed by the ordinance, namely, that he shall not obstruct other proprietors in the enjoyment of their water privileges, by hindering the passage of boats, vessels, &c. In thus dividing flats in a cove or creek, we suppose that there is no natural channel within the cove, and that low-water mark is without the same. These facts seem to be satisfactorily proved in this case, for although it was attempted to be shown that there was a natural channel in the cove, yet the weight of the evidence is clearly opposed to such a supposition.

I am aware that coves and creeks may be so irregularly formed as to render this or any other mode of dividing the flats according to the ordinance difficult, if not impracticable ; but it is sufficient for the present, that such is nut the form of the cove in question.1

*169The demandant, therefore, has wholly failed to establish his ancient and original title to the flats in question. In the first place, there is no sufficient evidence of the grant or allotment of the upland to Copp and others previous to the ordinance of 1641. In the second place, this allotment was bounded on the westerly side by marsh, which separated it from the flats, so that if it had been made previous to 1641, the flats would nevertheless belong to the proprietors of the marsh. And thirdly, if the demandant were entitled to the flats under the ordinance, he could not claim them in the direction of the exterior lines of his lot.

The next question to be considered is, whether the demandant’s title by possession is sufficient to maintain his action. It appears that he and those under whom he claims have been in possession of the upland bordering on the cove, for more than a century. And in tracing his title, it also appears that flats have been claimed and conveyed as appurtenant to his lot; and that he and those under whom he claims have entered on a part of the flats, have built a wharf thereon, and have used the flats adjacent for the accommodation of shipping and other purposes, during the whole or a greater part of that period.2 Now the demandant’s counsel contend, that by this entry and possession of a part of the flats, he and those under whom he claims became seised of the whole flats in front of his lot, according to his present claim. This may be true in regard to strangers or those not having a prior title; it becomes necessary, therefore, to examine the title of the tenants, and to compare it with this possessory title on the part of the demandant.

*170It has been already remarked, that a grant of the cove was made by the town of Boston to Simonds and others in the year 1643, and it was admitted at the trial, that the tenants have all the estate conveyed by that grant. The words of the grant are as follows : — “ There is granted unto Henry Simonds, George Burden, John Button, John Hill, and their partners, all that cove (already bounded) on the northwest side of the causey leading from Charlestown, with all the salt marsh bordering thereupon round about, not formerly granted to any other ; reserving liberty from time to time to make use of any part thereof for repairing the said causey ; to have and to enjoy the said cove and marsh to them and their heirs and assigns for ever.” By this grant the whole cove and marsh passed to the grantees in fee, unless the general words are restricted by the words “ already bounded.” When general words of description are made use of in a grant, no doubt they may be controlled and restricted by a reference to particular bounds. And it may be, that the words “ already bounded ” were intended at the time of the grant to have this effect. But the difficulty is, that there is no evidence whatever of the bounds referred to in the grant, and in absence of all proof of ancient bounds, the grant must operate according to the general description -of the estate granted.

It has been argued, that the erection of the mill dam was a contemporaneous construction of the extent of the grant ;1 and that we are to presume that the bounds referred to in the grant were at the place where this dam was erected. But there seems to be no ground for this presumption, for it is clear that more land was granted than was intended to be used for the accommodation of the mills; as the grant includes a tract of land situated in Braintree. When words are used in a grant, which have a clear and definite meaning, they are not to be restrained by conjectures, or by other words, the meaning of which cannot be clearly ascertained. We are therefore necessarily brought to the conclusion, that the whole cove and marsh passed by the grant of the town, with the exception of prior grants.

*171It was remarked in the argument, that no flats were granted ; but the case shows that the whole cove consisted of flats, where the tide ebbed and flowed, low-water mark being below the mouth of the cove, and there being no natural channel in any part of the cove.

It was remarked also, that the mill holders themselves have given a construction to their grant, by a long continued non-claim of the flats without the mill dam. But the contrary we think plainly appears by the evidence reported.

It appears by the records of the proprietors, that they vo ed to erect a sea wall on the north side of the dam, to be filled with mud from the flats, of a sufficient height to prevent all tides from passing over. It appears also, that in the year 1735. they granted a part of the flats outside the mill dam to Waldo and Cook, and it was admitted that the grantees entered and took possession, and that the land and flats conveyed are now held under the grant. The admission of this deed in evidence was objected to at the trial, but it was clearly legal evidence. It was not a mere declaration or claim of the proprietors, (although it might have been admitted, if thus considered, to repel a presumption founded on a non-claim of the estate,) but it was an act done, and possession under the deed was, in some sense, the possession of the proprietors, for the deed contains divers covenants and conditions in their favor, which rendered the deed and possession under it very proper evidence for the consideration of the jury.

There were other acts of possession proved on the part of the mill holders, which it is unnecessary to notice particularly, as it is very clear that the proprietors of the cove never did abandon any part of the flats in controversy.

We are therefore of opinion, that the whole cove and salt marsh passed from the town to Simonds and others in the ) ear 1643, and that the tenants are lawfully seised under that title, except as to that part which the demandant, and those under whom he claims, have gained by disseisin ; as to which the jury have found in his favor. In regard to the residue, it cannot be maintained that any one has had an exclusive possession, so that as to that part the seisin follows the legal title. *172If therefore the flats without the mill dam did not pass to Simonds and others in the year 1643, the town continued seised thereof until the year 1807, when it was released to the tenants. So that on either ground the tenants are clearly entitled to the flats in controversy.

Judgment according to verdict.