Andrews v. King

• Decision Date: 04 June 1925
• Citation: Andrews v. King, 124 Me. 361, 129 A. 298 (Me. 1925)
• Parties: ANDREWS v. KING.
• Court: Maine Supreme Court

129 A. 298

ANDREWS

v. KING.

Supreme Judicial Court of Maine.

June 4, 1925.

Agreed statement from Supreme Judicial Court, York County, at Law.

Trespass quare clausum fregit by Arthur W. Andrews against Richard King, submitted on agreed statement of facts. Judgment of nonsuit ordered.

Argued before WILSON C. J., and PHILBROOK, DUNN, MORRILL, DEASY, and STURGIS, JJ.

Leroy Haley, of Biddeford, for plaintiff.

Robert B. Seidel, of Biddeford, for defendant.

MORRILL, J. This is an action of trespass quare clausum fregit, submitted upon an agreed statement of facts.

The plaintiff is the owner of certain land on the Saco river, where the tide ebbs and flows, with the flats contiguous thereto and lying in front thereof, to ordinary low-water mark, which is less than 100 rods from high-water mark. The Saco river is a public highway, and the acts complained of were committed between high and low water mark. The parties agree in their statement as follows:

"That the shore of said river both above and below the premises of the plaintiff is of the same general character as that of the plaintiff's shore, except that the plaintiff's shore, at the point where the acts complained of were committed, is at certain stages of the tide the most convenient landing place in the vicinity. That, at the point where the acts complained of were committed, the public has uninterruptedly used the flats now the property of the plaintiff as a landing place for 50 years next prior to the time of the acts complained of in plaintiff's writ.

"Defendant is the owner of a small power boat and. at the time mentioned in plaintiff's writ, made use of said boat to transport passengers for hire from one side of said river to the other. That the acts complained of consist of defendant's landing on plaintiff's flats and receiving and discharging passengers therefrom. That such passengers were obliged to travel on plaintiff's flats in order to obtain ingress and egress to defendant's boat. That such passengers were obliged to pass over plaintiff's flats to and from premises other than the premises of the plaintiff to arrive at or leaving a public highway other than said river or land of persons other than the plaintiff. Defendant used said flats as hereinbefore stated, and for no other purpose."

Conceding that his title to the flats adjoining the upland owned by him is subject to the public right declared by the Colonial Ordinance of 1641—47, plaintiff thus states his contention upon the brief:

"Plaintiff does not contend that the public have no right to pass and repass over the flats when not covered by water for the purposes reserved by the ordinance, but we do contend that that reservation is limited to 'passage of boats or other vessels to other men's houses and lands,' or for the purposes of fishing and fowling."

If we understand his contention aright, the passage of boats or other vessels over defendant's flats must, in his view, be by boats or other vessels whose destination is "other men's houses and lands." Counsel say in argument:

"The navigation, if such it may be called, in which he (defendant) was engaged, consisted only in making plaintiff's land a starting point or destination for his boat and its passengers. He adopted plaintiff's flats as a landing place for his boat, not for passengers navigating to other men's houses and lands, but for the termination of his voyage, or for the beginning of another one."

We think this contention unsound. The well-settled construction of the Colonial Ordinance, consistently adhered to by the courts of this state and Massachusetts, is this:

"That it vested the property of the flats in the owner of the upland in fee, in the nature of a grant, but that it was to be held subject to a general...