McBurney v. Young

• Decision Date: 17 July 1895
• Citation: 32 A. 492,67 Vt. 574
• Parties: CHARLES McBURNEY ET AL. v. JAMES YOUNG
• Court: Vermont Supreme Court

32 A. 492

67 Vt. 574

CHARLES McBURNEY ET AL. v. JAMES YOUNG

Supreme Court of Vermont

July 17, 1895

MAY TERM, 1895

Trespass to recover a penalty of ten dollars under No. 79 Acts of 1884, and damages. Heard at the September term, 1894 Franklin county, upon the report of a referee, ROWELL, J presiding. Judgment in favor of the defendant, McCarty, without cost, and judgment pro forma against the defendant Young for a penalty of ten dollars and six cents damages and costs. The defendant Young excepts.

Judgment reversed as to defendant Young, and judgment that he recover his costs.

Dillingham, Huse & Howland for the defendant Young.

Tyler, J., being engaged in county court, and Start, J., having been of counsel, did not sit.

OPINION

THOMPSON

The plaintiff's land is bounded by the waters of Lake Champlain. Both parties concede that by the law of this state, the plaintiff's land does not extend beyond low water mark. Such is the law of this state. Fletcher v. Phelps, 28 Vt. 257; Jakeway v Barrett, 38 Vt. 316; Austin v. Rutland R. R. Co., 45 Vt. 215. The contention is over the meaning of the term "low water mark " as used by the courts and law writers. The plaintiff insists that it means the lowest point to which the water has ever receded. The defendant says that it means ordinary low water mark.

By the common law, all that portion of land on tide-waters between high and low water mark, technically known as the shore, originally belonged to the crown, and was held in trust by the King for public uses, and was not subject to private uses without a special patent or grant. Mayor of Mobile v. Eslava, 9 Port. 577; 33 Am. Dec. 325; Pike v. Munroe, 36 Me. 309; 58 Am. Dec. 751; 3 Kent's Com. (11th Ed.) 427. In Maine the common law was changed by an ordinance of 1641, which declares that proprietors of land adjacent to the tide-waters "shall have propriety to the low water mark, where the sea doth not ebb above a hundred rods, and not more wheresoever it ebbs further." For the whole article see Com. v. Alger, 61 Mass. 53, 67. In Gerrish v. Propr's of Union Wharf, 26 Me. 384; 46 Am. Dec. 568, the court was called upon to define the meaning of low water mark as used in that ordinance, and in passing upon the question said:

"It evidently contemplates and refers to a mark which could be readily ascertained and established; and that, to which the tide on its ebb usually flows out, would be of that description. That place, to which the tide might ebb under an extraordinary combination of influences and of favoring winds, a few times during one generation, could not form such a boundary, as would enable the owner of flats to ascertain satisfactorily the extent to which he could build upon them. Much less would other persons, employed in the business of commerce and navigation, be able to ascertain with ease and accuracy, whether they were encroaching upon private rights or not, by sinking a pier or placing a monument. It would seem to be reasonable, that high and low water marks should be ascertained by the same rule. The place to which tides ordinarily flow at high water, becomes thereby a well defined line or mark, which at all times can be ascertained without difficulty. If the title of the owner of the adjoining land were to be regarded as extending, without the aid of the ordinance, to the place to which the lowest neap tides flowed, there would be formed no certain mark or boundary by which its extent could be determined. The result would be the same, if his title were to be limited to the place, to which the highest spring tides might be found to flow. It is still necessary to ascertain his boundary at high water mark in all these places, where the tide ebbs and flows more than one hundred rods for the purpose of ascertaining the extent of his title toward low water mark. It is only by considering the ordinance as having reference to the ordinary high and low water marks, that a line of boundary at low water mark becomes known, which can be satisfactorily proved, and which having been once ascertained will remain permanently established."

Sir Mathew Hale in his treatise De jure Maris, c. 4, says "the shore is that ground, that is between the ordinary high and low water mark." He remarks also:

"It is certain that, that which the sea overflows, either at high spring tides or at extraordinary low tides, comes not as to this purpose under the denomination of littus maris, and consequently the King's title is not of that large extent, but only to land that is usually overflowed at ordinary tides."

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