Snow v. Mt. Desert Island Real-Estate Co.

• Decision Date: 05 June 1891
• Citation: 24 A. 429,84 Me. 14
• Parties: SNOW v. MT. DESERT ISLAND REAL-ESTATE CO.
• Court: Maine Supreme Court

24 A. 429

84 Me. 14

SNOW

v. MT. DESERT ISLAND REAL-ESTATE CO.

Supreme Judicial Court of Maine.

June 5, 1891.

(Official.)

Report from supreme judicial court, Hancock county.

Real action to recover possession of land by Almon C. Snow against the Mt. Desert Island Real-Estate Company. Both parties claimed under the same grantor, the description in whose deed is set out in the opinion. Plaintiff contends that his seaward line is low-water mark, and defendant that it is the high-water mark. On report of evidence. Judgment for plaintiff.

Deasy & Higgins, for plaintiff.

Wiswell, King & Peters, and B. E. Tracy, for defendant.

EMERY, J. This is a real action to recover possession of certain flats between high and low water mark of the sea at Bar Harbor. The plaintiff claims under a deed containing the following description: "Beginning a t the sea, on Benjamin Ash's line; thence south on said Ash's line to the highway; thence west on the highway ten rods to a stake; thence north to the shore, parallel with said Ash's line; thence east to the first bounds mentioned." The report of the case states the question submitted to be whether the above deed conveys the flats or shore with the upland. That is the only question argued by counsel, and the only one we now consider.

It is said that land cannot be appurtenant to land, yet the shore or flats in front of upland are usually regarded as appurtenant to the upland. While they may be held in private ownership under our law, they are yet subject to the public rights of navigation and fishing. Annexed to the upland, they may be of great value to the common owner. Apart from the upland, they are rarely of any value to a private owner, who would have no access to them except by water. The colonial ordinance of 1641-47, permitting private ownership in flats, evidently contemplated their annexation to the upland in ownership. The language of the ordinance is: "It is declared that in all creeks, coves, and other places about and upon salt water, where the sea ebbs and flows, the proprietor of the land adjoining shall have propriety to low-water mark," etc. It is also common knowledge that since the ordinance the occupation of the flats has usually followed that of the upland, and that the flats are usually of no value without the upland. Conveyances of the upland are commonly supposed to convey the flats.

This principle of annexation is well stated by Chief Justice Shaw, in Doane v. Willcutt, 5 Gray, 335, (cited by plaintiff's counsel,) as follows: "In a conveyance, when a line of shore is used as an abuttal, unexplained by circumstances, it may be ambiguous, leaving it doubtful whether the sea side or the...