Allen v. Wood

• Decision Date: 08 June 1926
• Citation: 256 Mass. 343,152 N.E. 617
• Parties: ALLEN v. WOOD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

256 Mass. 343

152 N.E. 617

ALLEN

v.WOOD et al.

Supreme Judicial Court of Massachusetts, Bristol.

June 8, 1926.

Appeal from Land Court, Bristol County; C. C. Smith, Judge.

Petition for registration of land title by Ella M. Allen against Clarence I. Wood and others, respondents. From decree granting registration as to part only of land covered by petition, both parties appeal. Affirmed.

The plan mentioned in the opinion follows:

Image 1 (5.13" X 6.67") Available for Offline PrintA. E. Seagrave, of Fall River, for petitioner.

H. W. Connolly, for respondents.

SANDERSON, J.

This is a petition to register the title to land at the east end of Horseneck, so called, a beach resort in the town of Westport. The petitioner claims under a deed, dated December 11, 1912, from the respondents Irving L. Wordell, Charles A. Cornell and John H. Cornell. The description in this deed is in the following terms:

‘Beginning at the northwest corner of the land hereby conveyed in line of high-water mark on the west beach, so called, at a point in said high-water line, which is 350 feet southerly from the south line of contemplated Ocean avenue; thence easterly in line parallel with said south line of contemplated Ocean avenue 80 feet to the westerly line of the public way leading to Gooseberry Neck; then southwesterly in the westerly line of said public way to its intersection with the line of high-water mark on said west beach, so called; thence northerly in line of high-water mark on said west beach to the place of beginning, together with the right, in common with others, to use said beach for bathing, boating, driving, fishing and walking.’

The land which the petitioner now seeks to have registered is a much larger tract than that literally described in the deed. This additional land-

‘has become attached to the original tract by accretion from alluvium deposits along the seaward side, which deposits have been making up since * * *1912, when some of the respondents and their predecessors in title * * * raised the height of, and attempted * * * to build a roadway over, the bar connecting Horseneck aforesaid with Gooseberry Neck, a 74-acre tract of land lying to the southward and surrounded on all sides by deep water except where said bar connects, the southerly end of which bar in its original state was exposed at low tide only.’

The respondents Wood, Mahoney and Tucker contend that they are the owners of Gooseberry Neck and the bar, under a deed to them dated June 20, 1923. They also contend that by virtue of a deed in November, 1924, from Wordell, one of the petitioner's grantors, they own an interest in the fee and soil of West Shore road, opposite the petitioner's land and running south to the bar, and in land between the road, the bar, the sea, and the petitioner's land. It was agreed that the petitioner's grantors owned the fee of the soil of West Shore road when the deed to her was given. There was no evidence of any change of title of grantors, except that Lanie J. Cornell succeeded to the title of John H. Cornell, deceased, by virtue of a provision in his will, and that Wordell made the conveyance before mentioned. The petitioner's grantors made no argument and filed no brief in this case.

The land east of and opposite the locuslying between the road and sea on the east and extending both further north and south was acquired by the town of Westport in 1916 for a town landing. The town did not contest the petitioner's claim. At the date of the petitioner's deed no road east of her land had been constructed, but at a meeting of the town of Westport in March, 1912, the layout by its selectmen of a public way, the westerly line of which is indicated on the plan by the words ‘Street Line Claimed by Respondents,’ was accepted. Because of some error, and for other reasons which did not appear, this layout proved to be unsatisfactory and the road was not constructed. A new layout by the selectmen was made in the latter part of 1912 and accepted by the town in March, 1913. Before the date of the deed to the petitioner, there had been a petition to the selectmen to resurvey and relocate the public way, and notices of the intention of the selectmen to lay out a way had been left at the places of abode of owners of land affected and a public notice had been given of a meeting to be held on December 7, 1912, at which meeting it was adjudged that common convenience and necessity required the layout of a road as it was later constructed and now exists. This road and the location of other objects and lines material to this case are shown on the accompanying plan.

The judge of the land court found that, when the petitioner's grantors gave her the deed, all parties thereto intendedto convey to the present west line of the West Shore road, called by them in the deed ‘the public way.’ Certain buildings on the petitioner's land and on the line of this road as shown on a plan were erected between the years 1913 and 1919. The respondents have waived their contention that the petitioner's easterly boundary was the line of the way in the earlier layout. The judge of the land court took a view of the premises in company with counsel.

The judge ruled that:

‘The petitioner's boundary on the west is limited to high-water line and that she has no title to the foreshore between high and low water as claimed, but that she has as appurtenant to her land such rights over the foreshore as were granted in her said deed, which are not inconsistent with the public rights under the colonial ordinance, to be exercised in common with all others entitled thereto.’

And he also found and ruled that the petitioner's easterly boundary is the west line of the West Shore road as shown on the plan.

As to the division of the new land formed by accretion, the judge found that so far as the petitioner was concerned it arose from natural causes, and ruled that the lines of ownership of this land are to be determined as in the ordinary case of a division of flats. The judge also found that the petitioner's grantors conveyed a piece of land bounded on the north by the line shown on the plan and accurately described in the deed; on the west by the west line of the public way as laid out by the selectmen of Westport on December 7, 1912, and later accepted by the town; and on the west by high-water line. He further ruled:

‘That high-water line and the point of intersection of high-water line and the west line of West Shore road are monuments in the petitioner's deed and moved westward and southward as accretion took place so long as such intersection could be maintained.’

He found that the layout of that road ran to the bar, that this terminus, as fixed by the evidence, was 317.15 feet south of the northeast corner of the locus as shown on the plan, and that this point- ‘is the utmost extent of petitioner's street line because the point of contact aforesaid cannot be maintained...