Hamlin v. Pairpoint Manufacturing Co.

A deed of land described the boundary line as beginning at the southwest corner, thence running northerly in the east line of P. Street, to the line of H. Street; thence easterly in line with said street to the river, and so on in the same course into the river. H. Street at the time of the conveyance extended from P. Street to the river, a distance of about thirty feet. The entire length of the last line named was several hundred feet. The grantor owned other land northerly of the land conveyed, and abutting on it except for the distance the land conveyed was bounded by H. Street. Held, that the northerly line of the land conveyed was the southerly line of H. Street, and a line in extension of that line. The St. of 1806, c. 18, giving the owners of lots of land adjoining Acushnet River, and their heirs and assigns, power to erect, continue, and maintain wharves, extending to the channel of the river, operates as a legislative grant to the respective owners of such lots of the interest in the soil between their lots and the channel of the river, sufficient to enable them to maintain trespass if their rights are invaded.

Tort, in two counts. The first count was for breaking and entering the plaintiff’s close in New Bedford, described as bounded on the east by the channel of the Acushnet River; on the south by the southerly line of Howland Street and the extension of said southerly line eastwardly to said channel; and on the west and south by lands of certain persons named. The second count alleged that the plaintiff was the owner of a dock and tract of land, with the water and water rights adjacent thereto, bounded as described in the first count, and was the owner of the right to provide docks, and to erect, continue, and maintain wharves thereon, and was entitled to the exclusive use and enjoyment of the same; and that the defendant forcibly entered the same, filled up the dock, and erected and maintained a wharf and a building thereon, and deprived the plaintiff of the use of his dock and land. Writ dated May 7, 1883. The answer contained a general denial, and also denied that the close described was the property of the plaintiff. The land in dispute is that included between the line marked “ Northerly line of New Wharf ” and the dotted line below it, which represents the southerly line of Howland Street extended, as shown on a plan used at the trial, a copy of which is printed in the margin.* Trial in the Superior Court, without a jury, before Mason, J., who reported the case for the determination of this court, in substance as follows: By deed dated February 18, 1860, Edward L. Baker and others conveyed to the plaintiff a large tract of land, which was within the limits named in the St. of 1806, o. 18, § 1.* The land conveyed by this deed was bounded by a line beginning on the east line of Prospect Street, thence running northerly, one hundred and forty-two feet, on the east line of said street, to the north line of Howland Street; thence westerly, sixty-eight feet and thirty-five one-hundredths of a foot, on the north line of said street; thence northerly one hundred and nineteen feet and sixteen one-hundredths of a foot; thence easterly one hundred feet and seventy-seven one-hundredths of a foot, to the river, and on the same course into the river; thence southerly by the river; and thence westerly to the point of beginning. On February 20, 1880, the plaintiff conveyed to Alexander H. Seabury a portion of the above-described land, bounded and described as follows: “ Beginning at a point on the east line of Prospect Street, at the southwest corner of said lot, at land owned or occupied by the Mt. Washington Glass Company, and formerly held by John W. Howland; thence running easterly in the line of said Mt. Washington Glass Company’s land to the river, and so on in the same course into the river; then beginning again at the southwest corner, thence running northerly in the east line of Prospect Street, and further on in the same course feet to the.line of Howland Street; thence easterly in line with said street to the river, and so on in the same course into the river; and thence southerly by the river, till it meets the first-mentioned line, with all the privileges and water rights to the same belonging.” On July 27,1880, Seabury conveyed to the defendant a parcel of land, bounded and described as follows: “ Beginning at a point on the east line of Prospect Street, at the southwest corner of said lot, at land owned or occupied by the Mt. Washington Glass Company, and formerly held by John W. Howland, then running easterly in the line of said Mt. Washington Glass Company’s land to the river, and so in the same course into the river; then beginning again at the southwest corner, thence running northerly in the east line of Prospect Street, and further on in the same course to Howland Street, thence easterly in line with the south side of said Howland Street to the river, and so on in the same course into the river; and thence southerly by the river until it meets the first-mentioned line, with all the privileges and water rights to the same belonging. Being the same premises conveyed to me by Samuel B. Hamlin by deed dated February 20, 1880.” At the time of the execution of the deeds of February 20 and July 27,1880, Seabury was an officer in the defendant company. One Shirley acted as the agent of Seabury in negotiating for the property conveyed to him, and drew the deed of February 20, 1880, the deed of February 18, 1860, having been handed to Shirley by the plaintiff for reference. Howland Street extended westerly from Prospect Street until 1871, when it was laid out and constructed eastwardly from Prospect Street to the river, a distance of about thirty feet. At the time of the building of the wharf and storehouse hereinafter named, no authority had been given by the Legislature to extend Howland Street into the river, and no attempt had been made by the city of New Bedford to lay it out into the river, and no plan contemplating such extension was used or referred to when the three deeds above mentioned were executed. But since the construction of said wharf, namely, in 1883, the city, by authority of the St. of 1883, e. 176,* laid out and accepted an extension of Howland Street from the shore to the harbor line. At the time of the execution of the deed of July 27, 1880, there were no structures existing in tide water on any part of the premises described by any of the deeds, nor subsequently thereto, except as hereinafter stated. There was a small wharf, the north line of which was about thirty feet south of the south line of Howland Street extended into the water, which wharf extended into the water about one hundred and twenty feet. Soon after the execution of the deed of July 27, 1880, the defendant constructed a wharf in the following manner: beginning at the northeast corner of the small wharf already described, thence running northerly in a straight line to the south line of Howland Street extended; thence easterly in substantially a straight line about five hundred feet, but not to the centre of the channel of the river. The last-described line was the northerly line of the wharf; and this line at its west end was substantially in line with the south line of Howland Street extended, and at the east end it projected over and to the northward of the said south line of Howland Street extended, about three feet. The defendant also constructed a storehouse on said wharf, the north side of which was even with the north line of the wharf, and which also projected over the said extension of the south line of Howland Street. The defendaut has been in the possession of the said wharf and storehouse since their construction, and is now in possession of the same. Hone of the structures built by the defendant company extended as far north as the centre line of Howland Street extended into the water. The whole of said wharf, built by the defendant, was constructed in navigable tide water. The tort complained of by the plaintiff was the building and maintaining of said wharf and storehouse thereon, over and northerly of the extension of the south line of Howland Street into the water. On these facts, which were admitted in evidence subject to all legal objections, the judge found for the plaintiff, and assessed damages in the sum of one dollar. If the plaintiff was not entitled to recover, judgment was to be entered for the defendant; otherwise, judgment for the plaintiff upon the finding.