Proctor v. Maine Central Railroad

Savage, J.

Writ of entry for the recovery of two parcels of the flats of Pore River in Portland, formerly Falmouth. The plea is the general issue. The question presented to us by the report is, which of the parties has the better record title. If the tenant, then judgment is to be rendered for the tenant; if the demandant, then the case is to be remanded for trial upon the tenant’s claim of title by adverse possession.

The decision of this question ultimately depends upon the construction to be given to two grants of land made by the town of Falmouth, one January 18, 1721, to Deborah Mills, and one, October 1, 1729, to James Dueneven. The demandant claims that the demanded flats, being flats in Fore River, an arm of the sea, were included in the grants to Mills and Dueneven, by virtue of the colonial ordinance of 1641-7; and if that be so, it is not controverted that the record title to them has come down to the demand-ant. On the other hand, if the flats were not included in the grants, the demandant has no title; and the tenant having shown a title under a warranty deed expressly conveying these flats, has a better record title and is entitled to judgment.

It appears that in 1718, under the authority of the Great and General Assembly of the Province of Massachusetts, the inhabitants of Falmouth organized a town government, and proceeded to lay out lots of land by a committee appointed for that purpose, and to distribute those lots. Lots of various sizes were provided for, one acre lots, three acre lots, ten acre lots, thirty acre lots and so forth. It also appears that ten or eleven thirty acre lots were laid out on Fore River, in the vicinity of the demanded premises, from northwest towards southeast,' each thirty rods in width on the river, and were allotted or granted to various individuals in 1721. The first of these in time as well as in order from the northwest was granted January 18, 1721, to Deborah. Mills, in the following terms: “Granted to Deborah Mills the first thirty acre lot toward the Round Cove as it is now laid out, with a road to be allowed upon *467 the bank, front thirty rod, and northeast and by east into the woods eight score rod.” On October 1, 1729, the inhabitants of Falmouth granted to James I )u on even a lot, with the following boundaries,— “Beginning at a white oak stump adjoining on James Mills thirty acre lot and thence” by sundry courses “till it comes to the Cove or Marsh and thence round by the bank to the first bounds mentioned.” This grant represented a ten acre lot and a three acre lot. That the demanded flats lie to the seaward of the upland described in the foregoing grants, and within one hundred rods from high water mark, is not questioned.

The Massachusetts colonial ordinance of 1641 — 7, though enacted before Maine became a part of that province, has been adopted as a part of the common law of this state. Barrows v. McDermolt, 73 Maine, 441. By this ordinance, “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 the low-water mark, where the sea doth not ebb above one hundred rods, and not more wheresoever it ebbs further.” By force of this ordinance it is held that the owner of upland adjoining tidewater prima facie owns to low water mark; and does so, in fact, unless the presumption is rebutted by proof to the contrary. Snow v. Mt. Desert Isl. R. E. Co., 84 Maine, 14, 30 Am. St. Rep. 331 , 17 L. R. A. 280; Doane v. Willcutt, 5 Gray, 328 , 335, 66 Am. Dec. 369 . While a grantor may separate the flats from the upland, and convey the one and retain the other, Storer v. Freeman, 6 Mass. 435 , 4 Am. Dec. 155 , yet unless flats are excluded by the terms of the grant properly construed, they pass by a grant of the upland.

I. Now to apply these general rules to the grants in question, and of these, first to the Deborah Mills grant. It is suggested that there is nothing upon the face of the grant, nor in the other record proof to show that this particular lot was bounded at all by Fore lliver. But we think the contrary. The description in the grant itself is “as it is now laid out.” But the evidence of how it was “laid out” is lacking. All the monuments are gone, and the records, if any, are probably lost. But we .think it sufficiently appears from the records that this was one of a series of thirty acre *468 lots in this vicinity, on Fore Fiver, all granted in 1721. All the other lots of this series, with one exception, were described as being on Fore Fiver, and that one was granted “as now laid out.” Besides, the descriptive language of the grant itself, “front thirty rods,” is appropriate to land lying adjacent to the water, and is not appropriate to any other condition shown to have existed at the time of the grant. A lot of land may be said to “front” on water, but not usually to “front” on another piece of land. It may “front” on a road. But in this case there does not appeal’ to have been any existing road. The language to the grant, “road to be allowed upon the bank, ” indicates rather the reservation of a public right of way for a road then contemplated, than for one then existing. But in whatever condition the road was, it is clear that it was not referred to as a boundary. The Mills lot evidently “fronted” on something, and we think that something was Fore Fiver. It follows, therefore, by the usual rules of construction, that Deborah Mills, by the grant of this lot of upland fronting on tide-water, became also the owner of the adjacent flats to low water mark, not exceeding one hundred rods from high water mark. And her record title has come to the plaintiff.

But the tenant, at the trial, “claimed the right to submit to the inspection of the court the contents of certain early volumes of the records of Falmouth (town and proprietors) and to have the same examined by the court, and by the jury, if any questions of fact were involved, as tending to show historically and by reference to the terms of the original grants, by vote and by other proceedings of the town and the proprietors through the period of the records offered in this and similar instances, that such distribution of upland did not include any grant of flats.” And by stipulation, the right claimed is to be accorded to the tenant at this stage of the case, or not, as this court may determine. The records offered are of two kinds, namely, those of the town of Falmouth from 1718 to 1729, and those of jn’oprietors of Falmouth from 1730 to 1826. The claim of the tenant is that these records show that “the town and proprietors treated the flats reserved for common property,” and that though “doubts may in some instances^ arise as to the precise construction of these *469 early grants, it is clear from the whole course of procedure that Hats were generally separated from uplands in making those conveyances, and that Hats were not conveyed or intended to be conveyed by grants of upland.” And upon this counsel argue that the application of the colonial ordinance of 1641 — 7 is not to be extended, under such circumstances, so far as to create a grant of flats where none was intended.

Such records as these are undoubtedly admissible as evidence for the purpose of allowing such historical facts as are disclosed therein. Codman v. Winslow, 10 Mass. 146 ; Rust v. Boston Mill Corporation, 6 Pick. 158 ; Commonwealth v. Roxbury, 9 Gray, 451 ; Sumner v. Sebec, 3 Maine, 223; Goodwin v. Jack, 62 Maine, 414. But to be entitled to consideration, the evidence must not only be admissible, but be relevant. And the question now presented is one of relevancy. We are now construing an ancient grant, a grant which by its terms makes no reference to flats. In construing this grant we are to give effect, if possible, to , the intention of the parties, so far as it can be ascertained by legal rules of construction. Ordinarily the intent which is effective in a grant is the intent expressed by the language of the grant. It is the expressed rather than the unexpressed intent. It is ascertained by giving suitable effect to all of the words of the grant, reading them in the light of the circumstances attending the transaction, the situation of the parties, the state of the country, and of the estate granted, such as its condition and occupation. Treat v. Strickland, 23 Maine, 234; Adams v. Frothingham, 3 Mass. 352 , 3 Am. Dec. 151 ; Commonwealth v. Roxbury, 9 Gray at p. 493. So far, therefore, as these ancient records tend to throw light upon the intent of the parties in any of the above mentioned particulars, they are clearly relevant to the issue. But we think the present proposition goes farther.

We have examined these records so far as our attention has beeen called to them by counsel. In general it may be stated, that they relate, except so far as they show these particular grants, to transactions with persons other than the owners of these lots, and to lots of land or flats, for the most part, neither contiguous to, nor, so far as we can discover, in any way connected with the lots in question. *470 The records of the proprietors of Falmouth are all of transactions subsequent to this grant, and are, of course, the records of another proprietary than the original grantor.

We think these records may fairly be regarded as showing, in addition to matter already stated, that in the years from 1721 to 1729 the town of Falmouth granted many other lots of different sizes, some of which were on Fore Fiver, easterly of the lots in question; that the town by vote assumed to regulate the occupancy of the marshes, both salt and fresh, and apportion them to every man “according to his regular stock;” that at different times the town granted to individuals the privilege of building wharves against their own lands; that in very many instances, the town granted flats entirely separate from the upland, both to the owners of the upland and to others. In the majority of instances these grants of flats were “four rods” in width, and sometimes these were described as “across his acre lot.” A few of the grants were wider, and one was “against his thirty acre lot.” It also appeal’s that controversies arose between parties holding under grants from the town, and other parties holding under grants from proprietors who owned or controlled the land before the organization of the town, the “ancient proprietors,” so-called; that these difficulties were adjusted in 1729; and that from that time the common lands of Falmouth were controlled and divided by the “proprietors” instead of by the town. The proprietors’ records from 1730 to 1826 show many instances of the grant of flats alone, some of the grant of upland and flats eo nomine, and in one case at least, a grant of land bounded by “the water or sea,” followed a year later by a grant of flats adjacent, to the same grantee. Some of the grants of flats were by the acre. Some were with, and some without, reference to the- ownership of the upland. These records also show proceedings from time to time for the distribution of “the remainder of the common lots,” for ascertaining “what flats remained,”, and an attempt to sell the remaining flats at public auction.

Upon this showing, the learned, counsel for the tenant argue that the very multitude of instances of separate grants of flats indicate a very general, if not practically universal practice of conveying *471 uplands and flats separately, that the methods pursued show clearly that it was the intention not to include flats in the grants of upland, unless expressly so stated, and that that intention so shown, may be read into this grant to Deborah Mills, which is otherwise silent, in terms, as to any such intention.

But it is necessary only to state this question, not to decide it. Assuming, but not by any means deciding, that the evidence is relevant and admissible for the purpose for which it is offered, we tliiuk it is insufficient to show any such general practice as is claimed, certainly not with respect to the flats in question, nor to those in the immediate vicinity. The flats along Fore River are not all of the same width, character or utility, and it might well be argued that because a practice was shown with regard to flats in one quarter, it would not follow that the same practice would be adopted for another quarter. Generally speaking, the size of the flats granted separately seems to indicate that they were adjacent to the small lots granted on Fore River, the one acre or three acre lots, and not to the thirty acre lots. No separate grant is shown of the flats in front of the Mills lot. Nor have we been able to discover, with possibly one exception, where the location is doubtful, the separate grant of any flats in front of any of the other ten thirty acre lots granted in this vicinity on Fore River in 1721. It is true that some of the records have become lost, and that it is now impossible to trace many titles accurately. At the same time, if any of the separate grants of flats did relate to flats in front of these ten lots, a distance of nearly a mile, it is singular that the diligence of counsel has been unable to discover a single case, with certainty.

The boundaries, on the water side of these ten lots, were generally in terms which by the usual rules of construction would include the flats, such as “thirty rods front on the river,” “thirty rods up tire river,” “down the river,” “down the river side,” and so forth. This fact, with the other fact that there certainly was no attempt on the part of the town or proprietors to grant flats separately in front of the Deborah Mills lot, and apparently no attempt to grant separately any flats in front of the other ten thirty acre lots granted in 1721, rather tend, we think, to show that the town of Falmouth in 1721 *472 did intend to grant flats with upland upon this portion of Fore River, whatever may have been its intention afterwards, and as to other portions of Fore River.

Another matter worthy of consideration is that- a way was laid out along the “bank” of Fore River, in 1727, and the language of many of the grants indicates that this way was treated as a boundary in laying them out. If so, the flats in such cases did not pass by grant of the upland. . And so far, this would furnish occasion for the subsequent grants of the adjacent flats.

The tenant, therefore, is not aided in showing intent by the evidence it seeks to introduce.

Accordingly, we hold that the plaintiff has the better record title to so much of the demanded premises as is included within the limits of the original grant to Deborah Mills, including flats.

II. The remainder of the demanded premises was included in the flats adjacent to the lot granted to James Dueneven, October 1, 1729. ¥e think the description in this grant did not include the adjacent flats. It is true that the description of the side line as extended “till it comes to the cove,” standing alone, would carry the line to low water mark. Babson v. Tainter, 79 Maine, 368; Gould on Waters, § 195. But it does not stand alone. The line after it “conies to the cove” is then made to proceed “round by the bank to the first mentioned bounds.” The term “bank” is not strictly appropriate to arms of the sea; tidal waters, but is applicable to non-tidal fresh water rivers. The term “shore” is appropriate to the former, but not to the latter. Morrison v. First Nat’l Bank, 88 Maine, 155. Whether the word “bank” in a grant like this is to be construed as the same word would be in the case of non-tidal waters may depend upon the context, the other calls in the grant, or the situation of the property. Here we think the analogy of fresh water streams should be followed. The bank is not the shore. The term shore technically means all the ground between ordinary high water mark and low water mark, that is, the flats. “To the shore” is not over the shore. “To the shore” and thence “by the shore,” unqualified, excludes flats. Storer v. Freeman, 6 Mass. 435, 439 , 4 Am. Dec. 155 ; Montgomery v. Reed, 69 Maine, 510. But the expression may be *473 qualified by other phrases showing an intention to inelude the flats, as in Snow v. Mt. Desert Island R. E. Co., 84 Maine, 14, 30 Am. St. Rep. 331 , 17 L. R. A. 280, where the line “beginning at the sea,” thence running around the parcel “to the shore, thence to the bounds first mentioned,” was held to include the flats. But in the grant under consideration, the seaward line ran not by the “shore,” but by the “bank.” It appears in this case that there was at the shore end of the lots granted on Fore River a physical formation which was then known and called the “bank” of Fore River. It was somewhat abrupt and precipitous. It' extended to the shore. The Cumberland and Oxford canal was afterwards built at the foot of it. The ancient grants show that a road was laid out on the “bank” of Fore River. This “bank” was therefore a monument. It was not the sea. It was not the shore. It was the land adjacent to the shore. The “bank” extended to the margin of the shore, as in case of a fresh water river the bank extends to the margin of the water. There was the definite line. Gould on Waters, § 41; Stone v. Augusta, 46 Maine, 127. The case of Bradford v. Cressey, 45 Maine, 9, although relating to non-tidal waters, is in point. The court there said: “If the grantor, however, after giving the line to the river, bounds his land by the bank of the river, or describes his line as running along the bank of the river, or bounds it upon the margin of the river, he shows that he does not consider the whole alveus of the stream a more mathematical line, so as to carry his grant to the middle of the river.” See Hatch v. Dwight, 17 Mass. 289 , 9 Am. Dec. 145 ; Commonwealth v. Roxbury, 9 Gray, at p. 524.

This construction is aided also by the further consideration that the description of this lot begins at a white oak stump, manifestly a monument on the land at or above high water mark, and the last or seaward course runs “round by the bank to the first bounds 'mentioned.” We think the line was expressly limited to the “bank” and the end of it was fastened to the white oak stump. Freeman v. Leighton, 90 Maine, 541. We cannot change its position.

The grant to James Dueneven made the “bank,” the land by the margin of the shore, the specific boundary on the seaward side, and, wé think, excluded the flats, and no person holding under Dueneven *474 has ever had title to the flats by grant. So far as the question of record title is concerned, the tenant is in possession holding under a warranty deed expressly conveying the flats.. But that is a better record title to the flats embraced in the Dueneven grant than anything shown by the demandant. Blethen v. Dwinel, 34 Maine, 133 ; Rand v. Skillin, 63 Maine, 103. The demandant will not be entitled “to judgment for the flats adjacent to the Dueneven lot. But as to those in the Deborah Mills grant, the demandant has shown a better record title.

Therefore, in accordance with the stipulation of the parties, the case must be remanded to nisi prius, to be tried upon the tenant’s claiin of title to the flats on the Deborah Mills lot, by adverse possession..

So remanded.