Dillingham v. Roberts

Deed. Boundaries. “Privilege.” Where the description in a deed of a parcel of land bounded the premises upon one side by the shore of the sea at high water mark, and then added these words, “ including all the privilege of the shore to low water mark.” Held, that the fee in the land between high and low water mark passed to the grantee.

On report. Writ of entry to recover a parcel of land between high and low water mark in Bar Harbor. Both parties claimed under deeds from Tobias Roberts; the plaintiff under a deed dated Aug’ust 14, 1875, and the defendant under a deed dated December 27, 1868. The following is the description in the defendant’s deed. " Commencing at a birch tree seventy feet south of the steamboat wharf; thence south fifty-one degrees west, to the northeast corner of the Martin house, one hundred and sixty feet; thence south nine degrees west, to a stake, forty feet; thence north eighty-eight degrees east, one hundred and twenty-seven feet at two birch trees; thence north, forty-four degrees east, seventy feet to a birch tree on the bank; thence following the shore to the point of beginning — including all the privilege of the shore' to low water mark, containing one-half of an acre more or less.”' Did the defendant, by the deed to him, acquire title to, become-tenant of the freehold of the flats in question ? The description, in said deed begins at a birch tree. Upon reference to the plan, which is a part of the case, it appears that the birch tree is in the-line of high water. After running around the upland, the: description returns waterward "to a bircli tree on the bank.” Again referring to the plan, we find this second birch tree exactly in the line of high ivater. The description then goes on : "thence following the shore to the point of beginning.” That this description plainly excludes the flats, is, in the light of the following authorities, too clear for argument. Storer v. Freeman, 6 Mass. 435, 437 and 438 ; Wiles v. Patch, 13 Gray, 254, 257 ; Lapish v. Bangor Bank, 8 Maine, 85, 89 and90; Dunlap v. Stetson, 4 Mason, 349, 366; Wickerson v. Orawford, 16 Maine, .245; Montgomery v. Reed, 69 Maine, 510, 514; Bradford v. Oressey, 45 Maine, 9, 13 and 14. Following the description in said deed which we have heretofore alluded to, come the words, "including all the privilege of the shore to low water mark.” Do these words give defendant title to the flats, constitute him tenant of the freehold thereof? We respectfully submit that they do not. The term "privilege,” is one not intended for, or appropriate to the conveyance of title to the soil, for transferring the freehold. It is, rather, a term commonly used in the creation and transfer of easements and other incorporeal rights. Thus, Washburn, in the very opening of his work on Easements and Servitudes, .alludes to the definition of an easement adopted by Bayley, J., from Termes de la Lay, which he calls a book of great antiquity .and accuracy, as "a privilege that one hath,” &c. See Duncan v. Sylvester, 24 Maine, 482; Oommonwealth v. Alger, 7 Cush. .52 ; Lapish v. Bangor Bank, 8 Maine, 85 ; Dunlap v. Stetson, 4 Mason, 349 ; Bradford v. Oressey, 45 Maine, 9 ; Montgomery v. Reed, 69 Maine, 510; Gerrish v. Union Wharf, 26 Maine, ■ 384; Deering v. Long Wharf, 25 Maine, 51; State v. Wilson, 42 Maine, 9; Duncan v. Sylvester, 24 Maine, 482; Weston v. Sampson, 8 Cush. 347; Will v. Lord, 48 Maine, 83; Moor v. Griffin, 22 Maine, 350 ; Barker v. Bates, 13 Cush. 255 ; Duncan v. Sylvester, 24 Maine, 482 ; Ripley v. Knight, 123 Mass. 515 ; Jordan v. Woodward, 40 Maine, 317. cited : Brown v. Lakewood, 15 Pick. 151; Reed v. Reed, 9 Mass. 372; Andrews v. Boyd, .5 Maine, 199 ; Butterfield v. Haskins, 33 Maine, 395 ; Earl v. Mouse, 35 Maine, 414; Paramour v. Hardly, Plowden, 540; Stone v. Worth, 41 Maine, 265; Gleason v. Fayeruseather, 4 Gray, 348.