Haskell v. Friend
| Decision Date | 24 June 1907 |
| Citation | 81 N.E. 962,196 Mass. 198 |
| Parties | HASKELL v. FRIEND et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Edgar S. Taft, for petitioner.
Henry T. Lummus and Charles Neal Barney, for respondents.
This is a petition for the registration of title to a parcel of land and is before us on a report from the land court.
A plan of the locus and the other parcels of land referred to in the report would have been of great assistance.
The lot of land in question lies on the east shore of an inlet or arm of the sea known as 'Annisquam (or Squam) river,' and forms part of the westerly portion of Wolf Hill.
Annisquam river flows north and south. Wolf Hill lies on its east shore and is stated in the report to be a 'rounding promontory.' The line of high-water mark on the premises here in question forms a curve of which the convex side is towards the river.
The land conveyed by the deed in question is described as 'beginning at a point on the shore about 300 feet southerly measured along the high-water line from the southerly line of lot deeded by me to John Hodgkins, Jr. March 1, 1877, extended to the shore; thence running inland up the bluff southeast, about 390 feet, to a drill hole in the rock; thence southwesterly on a line parallel with the shore 300 feet, to a drill hole in the rock; thence west-northwest on a line parallel with the first or northerly line about 410 feet, to the shore; thence northeasterly along the shore 300 feet, to the point of beginning, and containing about * * * more or less, and bounded westerly by Squam river and on all other sides by other land of the grantor.'
Orvis, the grantor in this deed, had previously conveyed to one Hodgkins a tract of land on Wolf Hill about 300 feet north of the locus. That tract of land 'did not run to the shore, but stopped 40 feet short of it, '40 feet of shore' being reserved for a road which Orvis contemplated building along the shore around the base of Wolf Hill.'
In dealing with this question we have not taken into account the plans annexed to the petitioner's brief and referred to by him as 'Exhibits 7 and 8.' They are not made part of the report.
1. There is nothing in the petitioner's claim that the judgment of nonsuit in the writ of entry brought by the defendants Herman W. and Edwin K. Friend against him is a bar to this petition. Morgan v. Bliss, 2 Mass. 112, 113; Bridge v. Sumner, 1 Pick. 371; Ensign v. Bartholomew, 1 Metc. 274; Hayes v. Collins, 114 Mass. 54, 56.
2. The second question is that raised by the defendant Harry L. Friend, to whom the flats lying in front of the locus were subsequently conveyed, if they were not conveyed to the petitioner's predecessors in title by the earlier deed to them. It is the petitioner's contention that these flats passed to the petitioner's predecessors and now belong to him. That contention was adopted by the land court.
The contention of this defendant is that the word 'shore' means the space between high and low water mark and that the specific description of the locus given in the first part of the statement of the land conveyed by the deed cannot be enlarged by the subsequent words 'bounded westerly by Squam river.' His contention is that by the earlier part of the description the premises conveyed are bounded by high water, since the land is described as 'beginning at a point on the shore,' thence by metes and bounds 'to the shore, thence northeasterly along the shore 300 feet to the point of beginning.'
It is settled that a boundary 'on the shore' does not include the space between high and low water mark, if the word 'shore' is used in its technical sense. Storer v. Freeman, 6 Mass. 435, 4 Am. Dec. 155. The same is true in case of a boundary on the 'beach.' Niles v. Patch, 13 Gray, 254; Litchfield v. Ferguson, 141 Mass. 97, 6 N.E. 721. Also in case of a boundary on 'flats.' Jackson v. Boston & Worcester R. R., 1 Cush. 575.
But each one of these words is a word of doubtful meaning, arising from the fact that in one case the sea side and in another case the land side of the 'shore,' 'beach' or 'flats' may have been intended to be the boundary line, as was pointed out by Chief Justice Shaw in Doane v. Willcutt, 5 Gray, 328, 335, 66 Am. Dec. 369. The meaning to be attached to either one of these words in a deed must depend upon the instrument in which they occur taken as a whole (see Hathaway v. Wilson, 123 Mass. 359, where 'beach' was held to include the shore to low-water mark) and upon surrounding circumstances, as, for example, the fact that a monument referred to in case of a deed bounding on the shore was in fact at low-water mark. Storer v. Freeman, 6 Mass. 435, 4 Am. Dec. 155. So it has been held that a boundary on the 'sea of flats' goes to low water. Saltonstall v. Long Wharf, 7 Cush. 195. The same is true of a boundary on the 'sea or beach.' Doane v. Willcutt, 5 Gray, 328, 66 Am. Dec. 369. See, also, in this connection, Niles v. Patch, 13 Gray, 254, 257, 258; Jackson v. Boston & Worcester R. R., 1 Cush. 575, 579.
When land bounds on the shore we have a question somewhat like the question which we have when land bounds on a way or other monument broader than a line. In such cases and here the question arises whether the face, the center line, or the whole width is included.
The words 'bounded westerly by Squam river' are equivalent to a bound upon the sea, and if that had been the sole description of the boundary of the locus on the west the flats would have passed to the grantees. Of that there is no question. Boston v. Richardson, 105 Mass. 355.
So if the two ends of the westerly boundary line had been described as points on the shore, and in fact they had been on the line of high-water mark, and the westerly boundary had been stated to be Squam river, in place of 'along the shore,' the flats would have passed. Lunt v. Holland, 14 Mass. 149; Cold Stream Works v. Inhabitants of Tolland, 9 Cush. 492.
The words 'along the shore' in the earlier part of the description are ambiguous, and the later provision that the locus is 'bounded westerly by Squam river' makes plain what was left doubtful by the earlier statement. It is like a clause in a deed of land bounded by a way stating that the fee in the way is included in the conveyance.
The rule relied on by the defendant Harry L. Friend, that a specific description will not be controlled by general words, applies to cases where the specific description is unambiguous. See, for example, the statement of C. Allen, J., in Birch v. Hutchings, 144 Mass. 561, 563, 12 N.E. 192, cited by this defendant.
We are of opinion that the flats passed under the earlier deed in spite of the evidence as to the intention of Orvis to build a road along the shore...
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