Sawyer v. Beal

• Decision Date: 10 March 1903
• Citation: 97 Me. 356,54 A. 848
• Parties: SAWYER v. BEAL et al.
• Court: Maine Supreme Court

54 A. 848

97 Me. 356

SAWYER

v. BEAL et al.

Supreme Judicial Court of Maine.

March 10, 1903.

(Official.)

Report from Supreme Judicial Court, Washington County.

Action by Edward M. Sawyer against John W. Beal and others. Case reported, and judgment for defendants.

Action of debt to recover the penalty provided for in Rev. St. c. 3, § 63, as amended by St. 1885, c. 334. The plaintiff claimed that the defendants had erected and maintained a fish weir in tide waters below low-water mark in front of his shore or flats at Green Island, so called, in Jonesport, in Washington county, without plaintiff's consent, and contrary to the statute. The plaintiff further claimed that the weir interfered with his rights as owner of the island.

The plea was the general issue.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, POWERS, and PEABODY, JJ.

W. R. Pattangall and J. W. Leathers, for plaintiff.

J. P. Lynch and C. B. Donworth, for defendants.

WISWELL, C. J. The plaintiff, the owner of a small island, known as "Green Island," in the town of Jonesport, brings this action to recover the penalty provided by Rev. St. c. 3, § 63, as amended by chapter 334, Pub. Laws 1885, which section, as amended, is as follows: "No fish weir or wharf shall be extended, erected or maintained except in accordance with this chapter; and no fish weir shall be erected or maintained in tide waters below low water mark in front of the shore or flats of another without the owner's consent, under a penalty of fifty dollars for each offense to be recovered in an action of debt by the owner of said shore or flats; but this chapter does not apply to weirs, the materials of which are chiefly removed annually, provided that they do not obstruct navigation, nor interfere with the rights of others. All acts or parts of acts inconsistent with this act are hereby repealed."

The defendants erected some years ago, and have since maintained, the fish weir complained of—a permanent structure, the materials of which are not chiefly removed annually. The distance between the nearest portions of the island and of the weir, at low-water mark, is 528 feet. Between the weir and the island there is a sufficient depth of water, at low water, for vessels of considerable size to pass.

The question decisive of the case is whether or not the defendants' weir is "in front of the shore or flats" of the plaintiff, within the meaning of tins statute. It is obvious that the statute must contain some limitation other than is expressed in it. If it were to be given a literal construction, there is no point, however distant in any direction, that would not be in front of the shore of the plaintiff, since he owns the whole island, with shores fronting in all directions.

A brief consideration of the purpose of this statute, in connection with the rights of an owner of land upon the seashore and of the public, will readily enable us to supply the limitation in the effect and meaning of this section that must have been contemplated, and which is perhaps so evident that it need not have been expressed. In this state, under the Colonial Ordinance of 1641, as modified by that of 1647, which has become the common law of this state, the owner of land upon the seashore owns to low-water mark, unless the tide recedes more than 100 rods, although, of course, the ownership of upland and flats may become divided by the act of the owner. Within the limits of his ownership, he has all the exclusive...