Seabrook v. Fowler

Clark, J. The alleged trespass is upon the tract of land in controversy in South Hampton v. Fowler, 52 N. H. 225. Prior to the establishment of the boundary between the province of New Hampshire and the province of Massachusetts in 1741, this territory had been within the limits of Salisbury in the province of Massachusetts Bay; and the case finds that the beach in controversy was at that time, and for many years prior thereto had been, in the possession of the commoners or proprietors of the common lands of Salisbury. After the establishment of the boundary line substantially as it exists between the states at the present time, a *431 charter was granted, May 25, 1742, “ at the petition of sundry inhabitants of the land bordering on Massachusetts, granting and confirming to the said inhabitants and their successors to be a town or parish incorporate by the name of South Hampton, bounded as follows: Beginning at the Atlantic ocean on the east, at a distance three miles north of the mouth of the Merrimack river, and thence to run northerly to the bounds of that part of Hampton called Hampton Palls, thence westerly to the parishes of Kensington and Kingston, . . . including all the inhabitants and their estates, from said three miles north of the Merrimack river northerly from Mitchell’s line [state line] to Hampton Palls, . . . excepting the lands, estates, and polls of Jacob French,” and certain others named in the charter, “ who are hereby annexed to the parish of Hampton Falls;” “To have and to hold all the privileges and immunities of a town corporate, and to be ruled and governed in all respects for the said town affairs by the laws of the province of New Hampshire, as other towns are.” The beach in controversy is within the boundaries of the South Hampton charter. December 4, 1742, upon a petition of sundry of the inhabitants of South Hampton, setting forth that “ by reason of their distance from the meeting-house it was difficult for them to attend public worship and other affairs of the town usually transacted there, and thereupon praying to be set off to the parish of Hampton Palls to which they were nearest, which having been considered and appearing reasonable,” it was enacted by the provincial legislature that “ all the inhabitants and their estates lying to the eastward of said line [now the westerly line of Seabrook] within the said part of South Hampton shall be annexed to Hampton Palls parish aforesaid, and are hereby determined and declared to belong to the same to all intents and purposes whatever, excepting only with respect to the duty of repairing highways below or to the eastward ” of a line described. As the set-off from South Hampton to Hampton Falls was of the “inhabitants and their estates ” in that part of South Hampton eastward of what is now the westerly line of Seabrook, without other description, it did not include the non-resident and uninhabited lands of South Hampton lying east of that line and southerly of the part set off, and did not extend to the Massachusetts line or to the ocean, and did not include the beach lands. June 3,1768, a charter was granted by the provincial legislature incorporating a new parish in Hampton Falls by certain boundaries (describing a line beginning on Kensington line and extending by sundry intermediate bounds to the mouth of Brown’s river, and being substantially the present lino between Hampton Falls and Seabrook), which is declared to be “ the dividing line between the old parish of Hampton Falls and said new parish, which contains all that part of Hampton Falls which lays southerly of said *432 line and easterly of Kensington line, and all the polls and estates within said boundaries are hereby erected and incorporated into a new parish by the name of Seabrook.” A clause in the charter permitted any person, within two months after the division was made, “ to poll off ” with his estate into the other parish, thus giving the inhabitants the privilege of choosing which parish they would belong to. The exercise of this privilege caused confusion afterwards in the matter of highway taxes; and in 1791 the legislature, upon petition, enacted that the inhabitants should work out or pay their highway taxes in the parish where they lived. The petition to the legislature recited that Seabrook was taken off from Hampton Falls and made a distinct parish on account of the dissent of the people from the settlement of the Rev. Mr. Win-gate as the minister of the parish of Hampton Falls, and that liberty was given to persons on either side of the division line to poll off with their estates into the other parish, “ that they might have the choice as to the enjoyment of the privileges of religious worship in one parish or the other.”] New Hampshire Town Papers, vol. 12, p. 151. It is apparent that Seabrook, when incorporated as a parish in 1768, was taken entirely from Hampton Falls, and included substantially the territory set off from South Hampton to Hampton Falls by the act of December 4, 1742, being separated from the ocean and from Massachusetts by the easterly portion of South Hampton. From a plan of South Hampton, filed in the office of the secretary of state under the act of December 30, 1803, requiring towns, parishes, and places to be surveyed for the purpose of obtaining a map of the state (Laws 1804, p. 207), showing among other things the extent other towns adjoined, it appears that what is now the southern portion of Seabrook was then included within the limits of South Hampton. This plan contains the following memoranda: “South Hampton joins Seabrook or runs down in or upon Seabrook 1901 rods.” “ South Hampton adjoins the ocean 433 rods.” “ South Hampton adjoins Salisbury Mass, as the line runs 3077 rods.” “ South Hampton taxes all the non-resident land below this double line [Seabrook west line] to the ocean but the inhabitants belong to Seabrook.” 52 N. H. 226. Thus it appears, and it is agreed, that the boundaries of the parish of Seabrook, as incorporated June 3, 1768, did not include the beach in controversy. If Seabrook has a- title to the beach, it has been acquired since its charter was granted. The only mode suggested by which a title could be gained is by the act of June 26, 1822. That act confirmed and established the westerly boundary line of Seabrook, and enacted that “ all the lands, non-resident as well as resident, and the waters lying easterly thereof to the sea, shall belong to the town of Seabrook for the purposes of taxation and jurisdiction and to all other legal and constitutional interests and pur *433 poses whatever. Provided, however, that any part thereof, which is now the public property of the town of South Hampton, shall be exempt from taxation so long as the same shall belong to that corporation.” The act did not purport to transfer any title or make any grant of land. It extended the municipal franchise over the territory, but it neither divested nor conferred any title. Its operation and effect were to make all the land, non-resident as well as resident, within the limits defined, subject to the municipal authority of the town of Seabrook, the resident land being already under its jurisdiction. The mere act of incorporation of the inhabitants of a territory confers no title to the land previously granted or ungranted. But if the law was otherwise, the recognition of the claim of South Hamptbn to the ownership of a portion of the territory by exempting it from taxation is conclusive that the legislature did not undertake or intend to transfer any land title from South Hampton to Seabrook. It does not appear that Seabrook ever acquired a title to the beach land in controversy. Judgment for the defendant. Carpenter and Chase, JJ., did not sit: the others concurred.