Freeman v. Leighton

Emery, J. It is true, as contended by tbe defendant, tbat the colonial ordinance of 1641-7 concerning flats evidently intended tbeir annexation to tbe adjoining upland in ownership. The language of tbe ordinance is: “It is declared tbat in all creeks, coves and other places about and upon the salt water where tbe sea ebbs and flows, tbe proprietor of tbe land adjoining shall have propriety to low water mark,” etc. Tbe flats are thus made in a measure appurtenant to tbe adjoining upland. Conveyances of tbe upland are commonly expected to convey the adjoining flats. But tbe proprietor of tbe upland and adjoining flats or shore has tbe “propriety” of both, and hence may convey tbe whole or any part of bis “propriety.” He may convey tbe upland alone and retain tbe flats, or convey tbe flats alone and retain tbe upland. This is a familiar proposition enunciated in numerous decisions [545] from Storer v. Freeman, 6 Mass. 435, to Brown v. Heard, 85 Maine, 294. The question, therefore, often arises, as in this case, whether the language used in the conveyance of the upland shows an intention to exclude and retain the adjoining flats or shore. The land, the subject matter of this conveyance, is situated upon the west side of the river, a river in which “the sea ebbs and flows.” The grantor declared in terms that the south line should extend east “to the shore.” He then declai’ed that the next line, the east line, should extend northerly “by the shore and by the upland,” to the first bound. He thus fastened this last line to the eastern edge of the upland and the western edge of the shore. He drew it between the upland and the shore. The court cannot draw it in any other place or direction. This line, drawn by the grantor and accepted by the grantee, separates the shore from the upland and excludes it from the conveyance. The defendant reminds us that this last line is declared to run to the “first bound,” which ho urges is on the east or river side of the shore, and hence that the last line must run on that side of the shore to reach the first bound. Even if it were true that the first bound is on the river side of the shore, which fact does not appear, the line in question is too firmly wedged between the upland and the shore, by the explicit language describing it, to be wrenched away by the description “first bound” as the end of the line. The “first bound ” must be held to be the first boundary line, to which line or “ bound ” the last line extends, hitting it at a point between the shore and the upland. Action to stand for trial.