Babson v. Tainter

• Decision Date: 14 April 1887
• Citation: 10 A. 63,79 Me. 368
• Parties: BABSON v. TAINTER.
• Court: Maine Supreme Court

10 A. 63

79 Me. 368

BABSON

v. TAINTER.¹

Supreme Judicial Court of Maine.

April 14, 1887.

On exceptions by defendant from supreme judicial court, Hancock county.

Action of trespass for the erection of a fish weir by the defendant on the flats connecting the defendant's island with the plaintiff's land on the main. The verdict was in favor of the plaintiff, and the defendant alleged exceptions.

Wiswell & King, for plaintiff. Chias. A. Spafford and Geo. P. Button, for defendant.

PETERS, C. J. The plaintiff owns a parcel of the main shore, while the defendant owns or possesses what he calls a small island opposite the shore, within 100 rods from the plaintiff's upland, and the main-land and island are connected at low water by flats extending from shore to shore. A dispute arises between the opposite proprietors over the ownership of the flats between their properties.

The questions presented involve the construction, as applicable to present facts, of that portion of the Massachusetts colony ordinance of 1641-7, wherein "it is declared that in all creeks, coves, and other places about and upon salt water, where the sea ebbs and flows, the proprietor of the land adjoining shall have propriety to the low-water mark, where the sea does not ebb above a hundred rods, and not more wheresoever it ebbs further." In the present case there is no water at low tide between the two ownerships.

The parties claim their holdings under the same grantor, who conveyed main-land to one and island to another. The plaintiff suggests that, as his deed was dated and recorded first, and bounds him "to the water" and "by the water," the island itself, or some part of it, comes within his boundaries. That description no doubt carries the plaintiff's line to low-water mark, and includes whatever lies above it on the shore. The words "to the water" would have the same significance to carry a boundary to low-water mark that other words have been decided to have; such as "by the sea," "tide water," "salt water," "the harbor," "bay," "cove," "creek," "river," "stream," or other tantamount expression. Gould, Waters, § 195, and cases. But the plaintiff is deprived of the benefit of this principle upon this bill of exceptions, because it does not appear that the jury may not have concluded that the defendant won his title by adverse possession.

To foil the effect of this answer to his proposition, the plaintiff resorts to the position that the defendant's territory is too insignificant in size to be regarded an island, or such an island as would be subject to the principle of adverse possession. It is generally conceded that it is not everything which rises above high-water mark that can be called an island. There maybe reefs and rocks and accumulations that are not such in any essential sense. Thatch growths may not be. Thornton v. Foss, 26 Me. 402. Elevations of mussel bed have been declared not to be. King v. Young, 76 Me. 76. Sand heaps and bars may not be, or it may be a question of fact whether they are or not, when separated from the main-land only by narrow channels or sloughs. Railroad v. Schurmeir, 7 Wall. 272,10 Minn. 82, (Gil. 59.) Here the parcel is described as containing about two acres, and, though it consists mostly of rocks and ledges, and is unfit for the habitation of man, it must be considered as having size and permanency enough to entitle it to the appellation of island, a right to which might be obtained upon the principles of adverse possession. It must be of some importance. The colonial ordinance applies to islands. Hill v. Lord, 48 Me. 83.

This decision of the previous questions brings up another, more essential, inquiry, whether the flats between the main-land and island belong to the one, or to the other, or to both. What right in flats, islands, situated within 100 rods from high-water mark of the shore, shall have, when not regulated by the special terms of any grant, seems not to have been very much considered in the cases. The ordinance is in very general terms. The colonial government of the mother commonwealth granted the great boon to land-holders without much thought or intimation about the manner of dividing the flats among its grantees. No rule can compass all cases. The Massachusetts court has adopted different rules for different classes of cases, and has frequently had occasion to remark upon the difficulty and embarrassment attending a practical application of any construction of the ordinance. Gray v. Deluce, 5 Cush. 9; Rust v. Boston Mill Corp., 6 Pick. 158; Com. v. Alger, 7 Gush. 53-69. In our own state a rule was agreed upon, not as dominating all cases, but as fitting the early settlers' lots which extended comparatively long distances upon the rivers or shores. But our own rule has not received much commendation from other courts. Emerson v. Taylor, 9 Me. 42; S. C. with note, 23 Amer. Dec. 531, 537; Stockham v. Browning, 18 N. J. Eq. 396; Treat v. Chipman, 35 Me. 34; Call v. Carroll, 40 Me. 31. The effort of the judicial department has evidently been to give to each upland proprietor a share of flats as nearly proportionate to his length of line on the river or sea as circumstances permit; meting out as just and equitable results in all cases as possible.

Our opinion is that the flats in dispute in the present case belong wholly to the plaintiff, and that the island takes no share in them. It would seem that they must go wholly to the island, or wholly to the main; they are a continuous, unbroken embankment between the two "proprieties." If the island takes them, the main-land frontage has no flats for that extent. It is certain that the island cannot take the flats surrounding it on all sides. For, if it did, it would not only appropriate to itself those lying between itself and the shore (northerly of the island,) but would take a great extent of flats along the shore, lying easterly and westerly of itself. In this way a diminutive island might be so situated as to absorb into its ownership an immense area of flats, at the expense of the opposite uplands. It was virtually held in Thornton v Foss, 26 Me. 402, supra, that an island within the 100 rods, owned separately from the ownership of the shore, did not include flats on its easterly and westerly sides along the shores in front of the main-land, nor flats extending northerly from itself to the main-land, but the title extended to such flats as were on its southerly side between itself and the receded sea. Judge Wilde says, in Rust v. Boston Mill Corp., supra: "If the demandant were entitled to the flats, he could claim them only in the direction to low-water mark. This is the obvious meaning of the language of the ordinance." We think such a rule would be thoroughly equitable,—to give the island no collateral flats, when that would interfere with flats of proprietors on the main; to give to the owners on the main the fiats, so far as continuous and unbroken, over to the island in the direction towards the ebbing sea; and to allow to the island all flats on its opposite side between itself and the sea. In such case the island has as much frontage of flats on its sea side as the main shore has for the same distance facing the sea. Of course, this rule would not divest an island of property in flats entirely encircling the island, if it be wholly surrounded by water at low tide.

But the defendant relies upon another element of the case as so far qualifying the application of the principles above stated that he, as he contends, may still be the lawful possessor of a portion of the sandbar or flats in dispute; and this presents another important question. It seems that many years ago there was, according to some of the evidence, a channel,...