Nichols v. Lewis

Where a testator devised a parcel of land, from a larger tract lying on the West side of a harbour, describing such parcel as bounded “ East on the harbour at the foot of the bank;” in an action of ejectment brought by A, who claimed under a devisee of that part of the tract not devised to L, against B. wfio claimed under L, it was held, 1. that parol evidence of the character and face of the land in controversy, was admissible, to show, in connexion with the language of the will, what line the testator intended, as the Eastern boundary of the land devised to L; 2, that the jury having found, under the direction of the court, that the only bank on this side of the harbour, was a steep bank about ten feet high, from the bottom of which the land gradually sloped away Eastwardly to the channel of the harbour, and that a part of such land lay between the foot of the bank and ordinary high water mark, and thereupon found, that the Eastern boundary of the land devised to L, was the line at the foot of the bank, the verdict was right. Where it appeared, in such case, that B had filled up a portion of the mud fiats, between the foot of the bank and the channel of the harbour, claiming a right to do so; as riparian proprietor; it was held, that A was not precluded from recovering that portion of the fiats thus filled up, on the ground that the freehold was not in A, but in the state. Where the property sought to be recovered is tangible, and an entry can be made, and possession can be delivered by the sheriff, ejectment will lie. Land below high water mark being of this description, the right of the riparian proprietor therein, may, therefore, be vindicated, against a disseisor, in this action.

This was an action of ejectment for a parcel of land in Bridgeport, lying West of the Pequonnuck river. The cause was tried at Fairfield, February term, 1842, before Sherman, J. The parties both claimed title to the land in question under the will of Philip Nichols, wTho died in 1807, At the time of making his will, and until his death, he owned a large tract of land, lying in the present town of Bridgeport, above the bridge, on the West side of the harbour, embracing the land in controversy. By his will lie devised to his three daughters, one of whom was Lucy Shelton, a part of this land, bounded “ East on the harbour at the foot of the bankand the residue of his lands to his two sons, of whom the father of the plaintiffs was one. In the distribution, a part of the tract given to the daughters was set out in severalty to Lucy Shelton ; and all her title is now vested in the defendant. By the same distribution, the land lying East of Lucy Shelton’s, and bounded by it on the West, was set out in severalty to George R. Nichols, the father of the plaintiffs, who are his heirs. There was a steep bank around this part of the harbour about ten feet high. From the bottom of that bank East-ivardly the land gradually sloped away until it met the channel of the Pequonnuck river, which was the channel of the harbour. Much of this flat land was covered by all the tides of the sea; and the high spring tides extended to the foot of the bank. The plaintiffs claimed, that there was no other bank; and that they owned all the land East of it to the ordinary high water mark, with the right of wharfiog out. The defendant claimed, that his land extended to the channel of the harbour; that his Eastern boundary was East of the foot of the bank ; and that he was entitled to the use of what lay between said boundary and the channel, as appurtenant to his land, for the purpose of erecting wharves, &c. The court charged the jury as follows: “ By law, land below ordinary high water mark, belongs to the public, until it is appropriated, by the adjoining proprietor, to the erection of wharves, <&c. “ The proprietor, whose land adjoins the tide waters of the sea, or the arms thereof, at ordinary high water mark, has the right of erecting wharves, &c., for his accommodation, provided they do not annoy the public right of navigation. You will first ascertain the defendant’s Eastern boundary, as described in the will. The language of the will, in designating this boundary, is, 1 East on the harbour at the foot of the bank.’ The defendant contends, that it is on the shore of the channel; that the ‘ foot of the bank,’ used in connexion with the words, ‘ on the harbour,’ intended to include, at least, all the land to high water mark, extending to the border of the public property. The plaintiffs insist, that there is no bank, answering to the description in.the will, except the bank about ten feet high stated in the testimony ; that bounding ‘on the harbour at the foot of the bank,’ may all be-reconciled, if you suppose that, by harbour, the testator meant grounds contained within the high natural banks ; which grounds, it is admitted, are overflowed by all the high spring tides ; and no other other bank has been spoken of, by any witness. You are to ascertain what line the testator intended as the Eastern boundary of the land devised to his daughters, by his language, by the character and form of the place of which he speaks, and the other testimony relating to it. If you find the East boundary of the land devised to the daughters to be as far East as ordinary high water mark, as claimed by the defendant, then the plaintiffs have no title. But if you find the line at the foot of the bank, as claimed by the plaintiffs, to be the true Eastern boundary of the defendant’s land, you will then inquire, whether there was, at the death of Philip Nichols, any land East of that, and above ordinary high water mark. If Philip Nichols then owned land of that description, he might devise it; and the plaintiffs are entitled to it, as heirs to their father. “ Adopting these principles, you will find the issue for the plaintiffs, if there is land East of the defendant’s boundary, and above ordinary high water mark. But if there be no land East of said boundary, above ordinary high water mark, you wijl find the issue for the defendant. If you find for the plaintiffs to recover less than the land demanded in the declaration, you will describe, in your verdict, the portion which they are entitled to recover.” Before the institution of this suit, the defendant had filled up a portion of the mud flats, between the foot of the bank and the channel of the harbour, claiming title, and that he had a right to do so, as riparian proprietor. The plaintiffs claimed to recover of the defendant that portion of the mud flats so filled up between the land above ordinary high water mark and the channel. The defendant insisted, that the plaintiffs could not recover this part of the mud flats; and requested the court so to charge the jury. But the court did not charge the jury on that point, otherwise than as above stated. The jury returned a verdict for the plaintiffs to recover of the defendant the seisin and peaceable possession of a tract of land, part of the demanded premises, bounded Eastwardly, on the embankment of the Housatonic Rail-road Company, the Easterly side of said embankment being at high water mark ; West, on land in possession of the defendant, by the foot of the bank, at the line designated in the last will of Philip Nichols; Northerly, on the extended Northern boundary line of land designated in the distribution of the estate of Philip Nichols, as a building-lot at Bridgeport, which was get to Lucy Shelton, said line being .extended Eastwardly to the Eastern side of said embankment at high water mark ; ancj Southwardly, on the dividing line between the mud flats distributed to George R. Nichols and the mud flats distributed to Sarah Clark, in said distribution. The defendant moved for a new trial for a mis-direction. in support of the motion, contended, 1. That {he court should have charged the jury, that the language of the will of Philip Nichols, bounding the defendant “ on the harbour at the foot of the bank,” by a reasonable construction, carried the defendant’s title to high-water mark. In the first place, such a construction is to be put upon this devise as will give the devisee the greatest privilege which the language of the will will bear. 1 Sw. Dig. 234. Rule 51. Secondly, the harbour spoken of, is admitted to be the har-bour of Bridgeport. Now, must not land bounded on the harbour, reach to the harbour ? On implies contact. Thirdly, the construction of the expression “ on the harbour,” is not restricted, by the subsequent expression “ at the foot of the bank.” A bank is that space between the upland and the edge of the water. To reach the foot of the bank, then, you must, of necessity, go down to the water. The court virtually instructed the jury, that they might find, that the defendant’s land did not reach to the water’s edge, or to the harbour; and that they might, therefore, find any quantity of land, between the harbour and the defendant’s land. This was erroneous. 2. That the action of ejectment will not lie in this case. The court charged the jury, that the plaintiffs might recover all the land filled up, by the defendant; much of which, it is admitted, embraces the portion of land between high and low water mark. The title of the king, prima facie, to all parts and arms of the sea to high-water mark, and to the soil thereof, has long been established. East-Haven v. Hemingway, 7 Conn. Rep. 186. 198. and cases cited ibid. Chapman v. Kimball & al. 9 Conn. Rep. 38. 3 Bla. Com. 206. Bul. N. P. 99. Challenor v. Thomas, Yelv. 143. Molineux v. Molineux, Cro. Jac. 146. Herbert v. Laughluyn, Cro. Jac. 492. Waddy v. Newton, 8 Mod. 278. To enable the plaintiff to recover in this action, he must have right to exclusive possession. contended, 1. That the charge of the judge as to the construction to be given to the will, was correct. The intent of the testator is to govern; and the character and form of the property devised, must be inquired after, to ascertain that intent. 2 Phil. Ev. 1399. 1400. by Comen and Hill. 4 Kent’s Com. 534, 5. 2. That proprietors of land adjoining the sea and navigable rivers own to high-water mark, at ordinary tides. Hale de Jure Maris, c. 4. {Harg. L. T. 12. 13.) 7 Conn. Rep. 198. 3 Kent’s Com. 344. Co. Litt. 261. a. n. 205. by Butler. 3. That the plaintiffs are entitled to recover all the land above high water mark between their Western boundary and the channel. The right of an adjoining proprietor to fill up and reclaim between high and low water mark, is exclusive. 7 Conn. Rep. 202, 3. 9 Conn. Rep. 41. 1 Sw. Dig. 112. 2 Bla. Com. 262. The defendant cannot take advantage of his own wrongful act. 4. That the plaintiffs have something more than an easement in the subject of controversy. They have a strictly legal title in it; and ejectment will lie for its recovery.