Tappan v. Boston Water-power Co.
| Decision Date | 24 June 1892 |
| Citation | 31 N.E. 703,157 Mass. 24 |
| Parties | TAPPAN v. BOSTON WATER-POWER CO. et al. BROWNE et al. v. SAME. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W.G. Russell and H.W. Putnam, for demandants.
H.D Hyde, G.F. Richardson, and G.D. Braman, for tenants.
These two actions involve the title to flats in Muddy river, in Boston, lying between marsh lands on the easterly and westerly sides of the river, which belong respectively to the demandants and tenants. Both were tried together, and depend on the same facts. Evidence was introduced by the parties of acts of ownership and possession by themselves and their predecessors in title relating to a part of the demanded premises; but the court was not satisfied that such acts had been exercised. The cases do not depend, therefore, at all upon possessory titles. The demandants also claimed title by accretion. The findings of the court would seem to have disposed of this claim, and it has not been argued.
The titles of the parties depend on the rights which owners of lands on opposite sides of a stream like Muddy river have to the interjacent flats in the natural condition of things under the colony ordinance of 1641-47. It appears that Muddy river is a fresh-water stream, and that prior to 1820 it had a large flow in the winter and spring and a diminished flow in the summer, and ran unobstructed to Charles river. It was navigable at certain stages of the tide to a point above the demanded premises, and the tide ebbed and flowed to a point above them. Between the lands of the demandants in the second action and those of the tenants was an island, which at ordinary high tide was nearly or entirely covered by water, and which the presiding justice treated as flats. This island divided the river into two channels, which united below it,--one called the "easterly channel," which at high water ran nearer the lands of the demandants than the center of the stream; and the other called the "westerly channel," which ran nearer the lands of the tenants than the center of the stream at high water. The demanded premises lie between the edge of the marsh land of the demandants and the center of the westerly channel, and the distance between the two lines is less than 100 rods. At ordinary low water there was no water on the demanded premises except such as came from the flow of Muddy river, and that was confined to the two channels. The presiding justice was not satisfied that the tide ebbed from the easterly channel before it did from the westerly channel, or that the waters of the river ceased to flow in the easterly channel at the lowest spring tides, or that they did or did not run through the westerly channel at the lowest spring tides. Certain dams were built in Charles river in 1820 and 1821, which thereafter affected the flow of Muddy river. The extent to which they affected it is not material. In 1885, Muddy river was cut off at Brookline avenue, and tide water was cut off by the Back Bay park. It is not stated where the line of low tide was. We do not know whether it was where Muddy river emptied into the Charles, or above or below that point. It is evident that it was below the demanded premises, for it is found that at ordinary low tide the only water that flowed over them was that of Muddy river, flowing in the two channels above named. At common law the title of the owner of land bounding on tide water only extends to ordinary high-water mark. Com. v. Charlestown, 1 Pick. 182; Porter v. Sullivan, 7 Gray, 441; Com. v. Roxbury, 9 Gray, 477, 483, 491; Com. v. Alger, 7 Cush. 53, 65, 66. This applies to a stream discharging fresh water, but in which the tide ebbs and flows. The test whether or not it is to be regarded as tide water is whether there is a regular rise and fall under the influence of the tide. Attorney General v. Woods, 108 Mass. 436; Peyroux v. Howard, 7 Pet. 343; Lapish v. Bank, 8 Greenl. 85. The colony ordinance of 1641-47, however, extended the title of all proprietors of land adjoining creeks, coves, and other places where the tide ebbs and flows to low-water mark, if not more than 100 rods. It is under the title thus conferred that the demandants claim. The tenants have disclaimed in both cases as to the land between the edge of demandants' marsh land and the center of the easterly channel. They contend that that channel is the demandants' boundary, and that their line does not go beyond the nearest tidal channel, whether that be one in which only fresh water flows at low tide, or one from which the tide does not wholly ebb. They rely for this upon certain expressions in cases that have been decided by this court; and they are obliged in effect to concede that under it the title to the land between the channels may still be in the commonwealth. We do not think the cases to which the tenants have referred us maintain the proposition on which they rely, or show that the low-water mark intended by the ordinance is the low-water mark of the freshwater stream.
In Sparhawk v. Bullard, 1 Metc. (Mass.) 95, 107, there was a question respecting the existence of a creek alleged to have separated the land demanded from the upland and flats belonging to the demandants. The jury was instructed that "if they should find there was naturally and originally any creek in which the tide ebbed and flowed, and from which it did not ebb entirely at the times when from natural causes it ebbed the lowest, this would constitute a boundary of the flats beyond which the demandants would not by law be entitled to recover." These instructions, which had been given originally by SHAW, C.J., and were adopted by MORTON, J., in a later trial of the same case, were excepted to, but this court held that they were correct. In Ashby v. Railroad Co., 5 Metc. (Mass.) 368, 370, which was decided only two years and a half or thereabouts after Sparhawk v. Bullard, the opinion was given by Chief Justice SHAW, and certainly no intention is manifested to overrule that case. On the contrary, we think it conforms to it. In this case also the question was whether the land of the petitioner went to a channel. In defining what was meant by a channel the chief justice used the following language: "If this part of flats called 'South River' had no channel running through it,--that is, no depression from which the tide did not ebb at low water,--then it must have been a cove. ***" It is evident that the word "channel" is used in this sense throughout the opinion, and that he does not mean to say that a channel formed by a stream of fresh water, out of which the tide ebbed at low water, would constitute a boundary to flats. In Walker v. Railroad Co., 3 Cush. 1, 22, the same rule is laid down as in Sparhawk v. Bullard, and that case is cited in support of it. Chief Justice SHAW gives the opinion in this case also, and he says: In Attorney General v. Wharf Co., 12 Gray, 558, the rule laid down in Sparhawk v. Bullard is again affirmed in these words: "A natural or original creek, in which the tide ebbed and flowed, and from which it did not ebb entirely at the time when from natural causes it ebbed the lowest, would constitute a boundary of the flats." In Drury v. Railroad Co., 127 Mass. 581, the court says that a creek from which the tide does not wholly ebb was a natural boundary, and bounded the claims of all adjacent proprietors of flats. See, also, Porter v. Sullivan, 7 Gray, 448, 449; Harlow v. Fisk, 12 Cush. 304. There is no suggestion in these cases that a tidal channel from which the tide ebbs, and through which a fresh-water stream flows at low tide, will constitute a boundary to flats, or that the fresh-water stream will constitute low-water mark. And we think it plain that a channel, to be a boundary to flats, must be one from which the tide does not ebb at low water. It is expressly found in the cases at bar that the tide ebbs from the channel over the demanded premises at low water, and it does not, therefore, constitute a boundary to demandants' flats. It appears that it also ebbs from the other channel. It is immaterial on this point whether the tide ebbed from one channel sooner than the other, or whether there was or was not fresh water flowing in either or neither or both of them at low water, or whether one channel was wider than the other, or whether at one stage of the tide more water flowed in one than in the other, and at another stage of the tide this was reversed. The controlling fact is that the tide wholly ebbed from both channels at low water. The ordinance relates, so far as concerns the point which we are now considering, to land adjoining "creeks, coves, and other places upon and about salt water, where the tide ebbs and flows." It establishes that the proprietor of such land "shall have propriety to low-water mark when the sea doth not ebb above a hundred rods, and not more, wheresoever it ebbs further." By low-water mark is meant the lowest line made by the receding tide with the land; not the lowest line which a stream of fresh water emptying into the sea, or a cove, or tidal river makes with the land. It has nothing to do with a fresh-water stream, or with a tidal channel through which only fresh water flows at low tide. Nothing in the ordinance indicates an intention to preserve the fresh-water stream or channel as a boundary below ordinary high-water mark; and the cases cited show it has not been done in applying it. The channel would not be the boundary, even above high-water mark. The rules of...
To continue reading
Request your trial