Forest River Lead Co. v. City of Salem

• Decision Date: 03 February 1896
• Citation: 42 N.E. 802,165 Mass. 193
• Parties: FOREST RIVER LEAD CO. v. CITY OF SALEM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 193

42 N.E. 802

FOREST RIVER LEAD CO. v. CITY OF SALEM.

Supreme Judicial Court of Massachusetts, Essex.

February 3, 1896

COUNSEL

E. & A.E. Avery, for plaintiff.

F.L Evans, for defendant.

OPINION

HOLMES J.

We see no reason for changing the master's findings in any way that affects our conclusion. We start, therefore, with the fact that the boundary in question is Forest river. The question left open is whether the line at the lower bridge is the middle of the stream or high or low water mark. The conveyance to Humphrey in March, 1637-38, having been made before the ordinance of 1647, conveyed only to high-water mark. Tappan v. Water Power Co., 157 Mass. 24, 26 31 N.E. 703, and cases cited. It follows that when, in 1648 and 1649, Marblehead was made a town, "the bounds to be the utmost extent of that land which was Mr. Humphrey's farm, and sold to Marblehead," the line was at high-water mark, unless the farm had been enlarged before the Salem vote of 1648. There is no ground for suggesting that the boundary had been extended to the middle of the stream. The only question is whether it had been carried down to low-water mark. Before 1648 the ordinance had been passed which gave the proprietor of the adjoining land "proprietey to the low-water mark where the sea doth not ebb above a hundred rods." The effect of the ordinance was that the title which the proprietor of land bounded by tide water had above high water was extended over the shore or flats, subject to the public rights reserved, and the ordinance applied to all the flats in the colony which had not been granted away by the government before its passage. Boston v. Richardson, 105 Mass. 351, 354, and cases cited. But the latest moment which can be taken as fixing the boundary line, according to the strict literal meaning of the words quoted above, is the date of the sale to Marblehead. And although, perhaps, it would be possible to read the words as referring to the title as it stood in 1648, the practice of the parties, to which we shall refer in a moment, is in favor of the literal construction. As has been known for a long time, the part of the ordinance which deals with flats was not in the original body of liberties of 1641, but was an addition of 1647. Body of Liberties, No. 16 (Whitmore's Ed., 37); Mass. Colony Laws 1660, 50 (Whitmore, 170); 28 Mass.Hist.Soc.Coll. 215; Boston v. Richardson, 105 Mass. 351, 354. So that the exact question is whether the conveyance to Marblehead was made before 1647. The deed has not been found. A memorandum in the registry of deeds is interpreted by the master as referring to it, and as giving its date; but the words are, "Excepting 50 acres & 2 ponds formerly granted to Mr. Downing, as an instrument bearing date ye 24th of ye 7 mo., 1645, appeereth," and seem not to refer to the land or to the conveyance in question, but to a conveyance of the two ponds and so much high ground about the ponds as is needful to keep the "duck coye"...