Adams v. Frothingham

A proprietary grant m 1680, of “ a piece of land below high-water mark, to set a shop upon not exceeding forty feet in width,” was construed to extend to low water mark. A conveyance of a moiety of a piece of land m quantity and quality, creates an estate in common between the grantor and grantee. Whatever addition is made to the shores of rivers, &c. by alluvion, from natural causes, or from a union of natural and artificial causes, belongs to the owners of tt e shores. Low-water mark is a description of the boundary of land in a judgment in a rea action sufficiently certain, to enable the sheriff to execute such judgment by at habere Jacios seisinam.

This was a writ of right, in which the demandant claimed an undivided moiety of a certain parcel of land in Newburypcrt, bounded northwardly on Merrimack river. The writ was dated the 8th day of February, 1802, and alleges that Zaccheus Perkins, the 1 * 353 ] demandant’s father, was seised *of the same within sixty years from the date of the writ: that, on his death, the same descended to her as his daughter and heir, and that the tenant deforceth her. The demandant having obtained a verdict in the original action, the tenant brought his writ of review, upon which another trial was had before Parker, J., April term, 1806, when a verdict was again rendered for the demandant. The tenant moved for a new trial for the misdirection of the judge at the trial, and that motion came on now to be argued by Dane and Putnam for the tenant, and Jackson for the demandant, before Sedgwick, Seioall, and Parker, Justices • the Chief Justice not sitting, as he had been formerly of counsel in the cause. The report of the judge, who sat in the trial, states that the demandant, to prove the seisin of her ancestor, read in evidence the copy of a vote of the town of Newbury (1), passed 8 March, 1680, granting William Noyes a piece of land below high-water mark, to set a shop upon, and not exceeding forty feet in the front; also the copy of another vote, passed 9 February, 1721, granting to the same W. Noyes another parcel of land above high-water mark, and bounded northwardly thereby. The demandant then read a deed of Parker Noyes and his wife, who had the estate of the said W. Noyes, dated 10 November, 1740, of the same two parcels of land to Zaccheus Perkins, her father. On the 28th of April, 1741, the said Z. Perkins conveyed the same two parcels of land by deed to Spencer Bennett, who, on the 2d of March, 1742, conveyed one half of the house which had been built on the upland, and of the land upon which it stood, by metes and bounds, together with one half of the land and flats below the house in quantity and quality, to the said Z. Perkins. It appeared in evidence, by depositions in the case, that Bennett had, in 1740, lived in a house on the premises, and built a shop below the house on a wharf or breastwork, also built by him ; but it did not appear under whom he so occupied. It also appeared that the west end of the house and * the land [ * 354 ] back of it was occupied under Z. Perkins, and that the flats below were used in common by the occupants of each part of the house. It was also proved that, by the shifting of the channel of the river, the flats were much increased in extent, since the year 1740. The tenant produced in evidence a deed from a committee of the proprietors of Newbury, dated 15th of June, 1750, conveying, besides a piece of upland, “ a piece of flats of forty feet in breadth, running from the rear of W. Noyes’s grant down to the channel,” to Spencer Bennett, under whom, by the deed of said Bennett to James M’Hei 1, and by deed of the heirs or devisees of M’Herd to the tenant, he claims to hold. The tenant’s ccrunsel insisted, at the trial, that Z. Perlcins could have been seised of the flats only as they in fact existed at his death, and that none which had been made by alluvion could be recovered by the present demandant. The judge directed the jury that, if Perkins was seised of the flats within sixty years, whatever increase there had been rightfully accrued to the demandant as his heir. They also contended that the grant of the proprietors to Noyes passed to him no more of the flats than were sufficient to set a shop upon. Upon this point the jury were directed that, by the legal construction of the grant, it extended to low-water mark; which appeared, by the evidence in the case, to have been the construction given by all who had occupied under said grant. It was then contended that the deed from Bennett to Perkins did not necessarily create a tenancy in common; and that, if such was the legal construction of the deed, the jury might presume that a uartition had been made by the parties. The judge directed the ury that, by virtue of the said deed, Bennett and Perkins became tenants in common, and, there being no evidence of any holding in severalty, except of the upland, which severance was in conformity with the deed, there was nothing in the case from which a partition of the flats could be inferred. Another point made by the tenant’s counsel was, that [ * 355 ] Bennett, * having entered in 1740, and built a wharf, and afterwards having purchased of the proprietors, must be considered as having entered under the proprietors, and not under Z. Perkins. Upon this point the jury were instructed that Bennett having conveyed to Perkins in 1742, his purchase of the proprietors in 1750, provided he acquired any title by that purchase, inured to the use of Perkins, whom he had made, by his deed, tenant in common with himself. Finally, the judge directed the jury, if they were satisfied with the evidence of the demandant’s title, as she had set it forth, they might by their verdict find that, to all the demanded premises above low-water mark, she had a better right to recover than the said Frothingham had to hold; and their verdict was accordingly. To all which opinions and directions the counsel for the tenant excepted. And now, Putnam, in support of the motion for a new trial, contended that the grant to W. Noyes, in 1680, of a piece of land below high-water mark to set a shop upon, could, by no legal construction, be intended a grant from high to low water mark. The extent northwardly towards the river was uncertain by the words of the grant. It is true it might be made certain by the grantee’s taking possession of, and actually occupying to a certain limit. But this was a question of fact belonging exclusively to the jury. The distance from high to low-water mark might contain a space sufficient to set ten shops upon. The observation of Justice Buller, in the case of Macbeath vs. Haldimand (2), on the construction of letters, applies fully to this point. “ If they be written,” says the learned judge, “ in so dubious a manner as to be capable of different constructions, and can be explained by other transactions, the whole evidence must be left to the jury to decide upon; for they are to judge of the truth or falsehood of such collateral facts, which may !ary the sense of the letters themselves; but if they be not explained by any other circumstances, then like deeds, or other written, agreements, the construction of them is a mere matter of law.” In the case at bar, the tenant showed circumstances dehors the grant,- which went to explain * and limit the extent of [ * 356 ] the grant; yet the judge directed the jury, as a matter of law, that the grant should extend to low-water mark. In Doe vs. Burt (3), Justice Ashurst says, “ that the construction of all deeds must be made with a reference to their subject matter. And it may be necessary to put a different construction on leases made in populous cities, from that on those made in the country.” In the same case Justice Buller observes, that, “ Where there is a convey anee in general terms of all that acre, called Black-acre, every thing which belongs to Black-acre passes with it. But whether parcel or not of the thing demised, is always matter of evidence.” Put the case that one, owning a tract of land abutting on a street on one side, and extending thence in depth a mile, grants a part of it under the description of a house-lot of a definite width on the street, but without limiting its depth; would it be contended that the grantee might extend his location the whole mile ? Actual and undisturbed occupation would be the only mean by which the extent of the grant could be ascertained. All that the present demandant can have a pretence of right to, is so much as her father died seised of. It was in evidence that from particular causes, other than natural ones, there has been a considerable accession of land to that which existed in 1742. The doctrine of acquiring property by alluvion is confined to such increase as arises by insensible degrees (laiens incrementuni). and from natural causes. The increase in this case was from the erection of wharves above and below the premises in question, which is wholly an artificial cause (4). If Bennett’s deed to Perkins created a tenancy in common in the-land below the house, yet we contend the evidence of a several possession, from the date of that deed to the commencement of this action, was sufficient to support a presumption that partition had been made. The tenant, and those under whom he claims, had always a right to compel partition. In the case of Vandyck vs. Van Beuren 8f AL (5), it was held that a sole possession under [ * 357 ] claim of right *for forty years only by one tenant in common, amounts to an ouster; and the Court said not only that the facts raised the presumption, but that the jury were not at liberty to resist it. In Denn vs. Barnard (6), Lord Mansfield said, “ If no other title appears, a clear possession of twenty years is evidence of a fee.” In Fisher & Al. vs. Prosser (7), Ashurst, J., says the point was left to the jury, and the jury have presumed an actual ouster; and he adds, “ I think that after a quiet, uninterrupted and undisturbed possession of forty years, they were well warranted in so doing.” Now, if such a partition is presumed to exist, the demandant cannot recover in this form of action. The verdict in this case is so uncertain that the sheriff cannot deliver possession under it. Low-water mark is a very indefinite description of a boundary. Besides the difference between the receding of the water in spring and neap tides, the freshets, to which all long rivers, like the Merrimack, are subject, make a very essential difference. The Court will look with strictness on writs of right. They are not favored by the law. In the case of Charlwood vs. Morgan & Ux. (8), the mistake of a single Christian name made in deriving the demandant’s title was refused to be amended, although shown by affidavit to have arisen from mere accident. The chief justice there said, if the proceeding had not been by writ of light, the Court would have been willing to grant the amendment. But, considering how much that process had always been discouraged, how much tenants have been permitted to avail themselves of every advantage to defeat the claims of demandants, unless the precedent could be produced, the soundest exercise of discretion would be not to allow the amendment. “ Every one knows,” adds his lordship, “ the consequence of overturning titles which have been supposed to exist for near sixty years. Many great purchasers consider sixty years’ possession as the best title which can be made, and it has often been lamented, by eminent lawyers, that the period has not been * shortened, who have thought that sixty [ * 358 ] years was too long a time for titles to remain in dubio.” It cannot escape the observation of the Court how strongly these sound and sensible observations apply to the case at bar, in which but twenty days of the sixty years remained unelapsed at the date of the writ.