Snow v. Mt. Desert Island Real Estate Co.

Ebiery, 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 at 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 owner *17 ship under our law, they are yet subject to the public right 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 1641-7, 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 proprie+'w of the land adjoining shall have propriety to low-water mark,” &c. 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. Willicutt, 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 land side of the shore is intended. . . . When both terms are used, 'the sea,’ or 'shore,’ and used to designate one boundary, it appears quite clear that they were intended to describe that side of the beach on which the sea coincides with it, and, therefore, to include the beach to low-water mark. . . . The owner of the upland adjoining tide-water prima facie owns to low-water mark; and does so, in fact, unless the presumption is rebutted by proof” to the contrary.

In the case before us, the deed was given in 1867 when there was no natural separableness between the upland and its attendant shore, even if there be now. Nothing appears in the case showing any motive or reason for a separation. Nothing appears showing the beach at that date to be of any value apart from the upland, of any value to reserve in granting the upland, either by reason of wharves or weirs thereon, or by reason of any other opportunity for separate occupation or quasi-cultiva *18 tion like those far-reaching shores and beaches in the western part of the State, which in themselves are often more valuable than the upland.

Recurring now to the language of the deed in this case, which describes'the boundary line of the conveyed parcel as " Beginning at the sea;” thence running round the parcel to "the shore;” thence to the " first bounds mentioned,” and reading the words in the light of the principles and circumstances above stated, it is not difficult to determine that they were intended to describe the sea side and not the land side of the shore, and thus include the shore to low water mark. Such is our opinion. Erskine v. Moulton, 66 Maine, 280; King v. Young, 76 Maine, 76; Stevens v. King, Id. 197.

Of course, the owner of the upland and the adjoining shore may convey the one and retain the other. When such an intent appears, the court will give it full effect, as was done in Storer v. Freeman, 6 Mass. 435 , but no such intent appears in this case. The question here submitted must be determined in the plaintiff’s favor.

Judgment for plaintiff’.

Peters, C. J., Walton, Libbey, Foster and Whitehouse, JJ., concurred.