Dunton v. Parker

• Decision Date: 27 April 1903
• Citation: 97 Me. 461,54 A. 1115
• Parties: DUNTON v. PARKER et al.
• Court: Maine Supreme Court

54 A. 1115

97 Me. 461

DUNTON

v. PARKER et al.

Supreme Judicial Court of Maine.

April 27, 1903.

(Official.)

Report from Supreme Judicial Court, Washington County.

Action of debt by Robert P. Dunton against Frederick O. Parker and others, under Rev. St. c. 3, § 63, to recover the penalty provided for maintaining a fish weir below or beyond low-water mark in front of the plaintiff's shore or flats in Pigeon Hill Bay, in Steuben, Washington county. Case reported. Judgment for plaintiff.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and SPEAR, JJ.

H. H. Gray and C. B. Donworth, for plaintiff.

E. Foster, O. H. Hersey, J. F. Lynch, G. M. Hanson, and F. I. Campbell, for defendants.

WISWELL C. J. This is an action under Rev. St. c. 3, § 63, to recover the penalty therein provided for maintaining a fish weir below or beyond low-water mark in front of the shore or flats of the plaintiff. The case comes to the law court upon report.

The first objection to the maintenance of the action is that the plaintiff does not own the flats in front of which the weir was erected; that the deed in his chain of title to the upland, of which the plaintiff is admittedly the owner, does not include the shore —the space between high and low water mark.

The tract of land owned by the plaintiff, and as to the title to the upland of which there is no question, consists of a large point of land, known as "Petit Manan Point," containing about 1,700 acres, according to the earlier deeds, the area in the later deeds being given as somewhat larger, and extends almost exactly south into the sea. The water upon the east side of the point is known as "Pigeon Hill Bay," and that upon the west side as "Dyer's Bay." The point is nearly separated from the rest of the mainland upon the north by a long, narrow inlet, known as the "Carrying Place Cove," which extends from Dyer's Bay, on the west side of the point, in a southeasterly direction, towards, and to within about one hundred rods of, according to the plan, the eastern shore of the point.

The plaintiff put into the case a chain of deeds, commencing with one in 1820, and continuing until the conveyances to him as trustee. The question is whether these deeds conveyed the shores of this point of land, and especially the eastern shore, opposite to which the weir complained of is maintained. The descriptions in these various deeds are not the same, but they can be classified into groups. The first two deeds offered in evidence unquestionably included the shore. The description is: "Also Petit Manan Point, bounded easterly by Pigeon Hill Bay and westerly by Dyer's Bay." In the next deed the description is different, but it is said therein that the property is "the same which was conveyed to me by Samuel Freeman and John Taylor, Esq." And as the deeds to this grantor from Freeman and Taylor included the shore, this reference to those deeds is sufficient to show that the shore was intended to be included in that conveyance.

In 1827 the grantee in the last deed conveyed the tract of land, employing this language in the description: "Beginning at the land of Moses McCaleb and running southerly by the shore of Pigeon Hill Bay on the east to Petit Manan Point, its western shore bounded by Dyer's Bay, and northerly by an arm of the sea called the Carrying Place [meaning undoubtedly the Carrying Place Cove] and the land belonging to" various settlers. An examination of the deed of the Moses McCaleb lot, first conveyed as a separate lot to him in 1824, shows that, in accordance with the well-settled doctrine in this state, the seaward boundary of this lot was at high-water mark. As the starting point in the description of the deed of the main tract is at the McCaleb lot, at high-water mark, and extends from this starting point "by the shore," it would follow, if nothing else appeared, that this eastern boundary was along the inner margin of the shore, or at high-water mark. But the language used by the grantor in describing the other boundaries of this tract, where it is contiguous to tide waters, renders the construction of the description of the eastern boundary more doubtful, and might have a controlling effect in ascertaining the true intention of the grantor. It will be noticed that the western and northern boundaries of the point in the description are Dyer's Bay and the arm of the sea known as the "Carrying Place Cove." This language undoubtedly included the shores upon these sides of the tract. Inasmuch as there is no conceivable reason why the shores on the northerly and westerly sides of the point should have been conveyed, and that upon the easterly side retained, and as in fact there is no reason apparent or suggested why either of the shores should have been retained by this or by any of the subsequent grantors, who adopted the same form of description in their various deeds, the fact that the conveyance included the shores upon these two sides might properly have great weight in tending to show that the language used for the purpose of describing the eastern boundary was not used in its technical sense, but that the grantor intended to convey the shore upon the eastern as well as upon the other two sides of the point. See Storer v. Freeman, 6 Mass. 435, 4 Am. Dec. 155. But we do not think it is necessary to determine the question whether or not the deeds in this group, in view of all the surrounding circumstances, conveyed the shore, because of the description adopted in the later deeds.

The description above quoted was adopted, in substance and effect, by the grantors in all of the intervening deeds, until Franklin Brown and others acquired title to the tract by a quitclaim deed from one John Brown in 1867, and by a warranty deed of one undivided half of the tract from James B. Mansfield in 1874. In the warranty deed of 1874 the material calls are as follows: "Beginning at a blue ledge at the southeast corner of the E. A. Hilton lot, so called," the boundary is then described as extending westerly and northerly, by some small lots, "to the Carrying Place Cove, thence following the shore of said Cove northerly and westerly to the waters of Dyer's Bay. thence southerly by the shore to the southern extremity of Petit Manan Point, thence following the shore easterly and northerly to the first-mentioned bound."

In determining the construction of the description in a deed of land upon the seashore, certain well-established general principles must be applied. By the Colonial Ordinaace of 1641-47, it was provided that in such cases "the proprietor of the land adjoining shall have propriety to low-water mark," etc. By reason of this ordinance the owner of the upland adjoining tide water prima facie owns to low-water mark, and does so in fact unless the presumption is rebutted by proof to the contrary. Doane v. Willcutt, 5 Gray, 335, 66 Am. Dec. 369, quoted with approval in Snow v. Mt. Desert Island Real Estate Company, 84 Me. 14, 24 Atl. 429, 17 L. R. A. 280, 30 Am. St. Rep. 331. It is, of course, true that the owner of upland and shore may separate the ownership by the conveyance of one and the retention of the other, and, as has frequently been decided in the states to which this ordinance is applicable, where the side boundary line of the lot conveyed is "to the shore," and thence "by the shore," the side line terminates at the inner side of the shore, and shows, in the absence of other calls or circumstances showing a contrary intention, that the inner side of the shore is intended as the boundary. That is, a call in a deed which describes a line as running to a strip of land, whether shore or upland, does not carry the line over, across, or onto the strip referred to, because the word "to" is a word of exclusion rather than of inclusion. This logical result was adopted in the leading case of Storer v. Freeman, supra, and has since been universally followed in this state.

But it does...