Wonson v. Wonson

Gray, J. By the well known colonial ordinance of 1647, “ it is declared, that in all creeks, coves and other places about and upon salt water, where the sea ebbs and flows, the proprietor of the land adjoining shall have propriety to the low water mark, where the sea doth not ebb above a hundred rods, and not more wheresoever it ebbs further: provided that such proprietor shall not by this liberty have power to stop or hinder the passage of boats or other vessels in or through any sea, creeks or coves to other men’s houses or lands.” By this ordinance, the general court, almost upon the first settlement of the colony, declared the title of the land next below high water mark, which by the law of England belonged to the sovereign, to be in the proprietor of the adjoining land on the shore. The Province Charter expressly confirmed all titles “ by or under any grant or estate duly made or granted by any general court previously held.” And the principle declared in the ordinance has always been considered part of our common law, and has been extended by usage and practice to the whole Province and Commonwealth, including those parts which were not within the limits of Massachusetts at the time of its passage. Anc. Chart 26, 27, 148, 149. Commonwealth v. Alger, 7 Cush. 70, 71, 76 79, 80, 81. Boston v. Lecraw, 17 How. 432, 433. 9 Gray 514—518. See also Nudd v. Hobbs, 17 N. H. 526; Dutton v Strong, 1 Black, 32. The ordinance declares the right in the most general term», — 79 — and, while it clearly defines the distance to which private ownership in land shall extend into the sea, lays down no rules for determining the boundaries or divisions between coterminous estates. This want has been supplied by judicial construction, applying the principle of the ordinance to the facts of particular cases. The leading rules thus established may be reduced to three. First, the dividing lines are generally to be drawn in the most direct course from high water mark towards low water mark. Walker v. Boston & Maine Railroad, 3 Cush. 23. Porter v. Sullivan, 7 Gray, 443. Attorney General v. Boston Wharf Co. 12 Gray, 558. Second, wherever it is practicable, each proprietor is entitled to the flats in front of his upland of the same width at low water mark as at high water mark. Valentine v. Piper, 22 Pick. 96. Gray v. Deluce, 5 Cush. 12. Third, which is perhaps the fundamental rule, underlying and controlling all others, the flats are to be so divided as to give to each parcel a width at its outer or seaward end proportional to that which it has at high water mark. Walker v. Boston & Maine Railroad, 3 Cush. 23. Gray v. Deluce, 5 Cush. 12. Porter v. Sullivan, 7 Gray, 443. See also Resolve of Magistrates in 1683, 9 Gray, 521. Where the general course of the shore approximates to a straight line, a compliance with all these rules is readily attained by drawing a straight line according to the general course of the shore at high water mark, and extending the side lines of all the estates at right angles with it towards low water’ mark. Sparhawk v. Bullard, 1 Met. 106. Knight v. Wilder, 2 Cush. 209. Porter v. Sullivan, 7 Gray, 443. The diversity and irregularity in the form of the seashore often increase the difficulty of a just division, and make a universal adherence to all these rules impossible. Where, for instance, the general course of the shore line is much curved, either outwardly, as around a headland, or inwardly, as in a cove, the parcel of flats belonging to each estate cannot be of equal width throughout, but must expand or contract, accordingly as the outer line of the flats is longer or shorter than the line at high water mark. Around a headland, where the line is longer at — 80 — low water mark than at high water mark, where each proprietor can have direct access to the sea without interfering with his neighbors, and the only question is of the distribution of the increase in the width of the flats, disputes rarely arise. The most frequent and the most embarrassing questions concern the division of flats in coves, bays or inlets, in which the form of the shore, while it affords a shelter for vessels and thus increases the value of the flats, makes it impossible to define each estate by parallel lines from the upland towards low water mark, without encroaching upon other estates; and it is often difficult to make such a division as will give each proprietor access to low water mark, to which all are equally entitled. This difficulty is peculiarly felt when the title to the flats is tried in the ordinary form of a real action between two parties only, with no means of bringing all the proprietors of different tracts of flats in the same cove before the court in one suit, whereby all may be heard before the lines of any one are established. The St. of 1864, c. 306, has created a more convenient and effectual method of adjudicating such questions, by providing that one or more of the persons holding lands or flats adjacent to or covered by high water may have the lines and boundaries of the ownership in such flats settled and determined by a petition to this court, the proceedings upon which shall be analogous to the ordinary form of proceedings for partition in a court of common law under certain sections of the one hundred and thirty-sixth chapter of the General Statutes, so far as the same are applicable. The sections thus referred to provide that a petition for partition shall set forth the rights and titles, so far as they are known to the petitioner, of all persons interested in the premises, who would be bound by the partition ; that any person interested in the premises may plead or answer to the petition any matter tending to show that the petitioner ought not to have partition as prayed for, in whole or in part, and thereupon the further proceedings shall be conducted as in actions at common law; that if upon the trial it appears that the petitioner is — 81 — entitled to have partition, whether for the share claimed in his petition or for any less share, the court shall award the interlocutory judgment that partition be made, and shall appoint commissioners to make the partition and set off to the petitioner the share belonging to him, which shall be expressed in the warrant to the commissioners; and that if the report of the commissioners is confirmed, judgment shall be rendered, affirming and establishing the partition. Gen. Sts. c. 136, §§ 6, 16, 20, 21, 29 32. If the parties, without raising any preliminary issue, agree to the appointment of commissioners to make partition, they cannot afterwards object to the want of an interlocutory iudgment quad pwrtitio fiat Symonds v. Kimball, 3 Mass. 299. Any disputed question of title in the land to be divided must be raised and tried before the appointment of commissioners, and cannot be passed upon by them, or submitted to the court in their return. Brown v. Bulkley, 11 Cush. 168. The title of the proprietors of lands bounding on a cove to the flats therein is somewhat analogous, though by no means precisely similar, to the title of tenants in common in the common estate. Such proprietors are not indeed seised in common of all the flats to be divided; but each is entitled to a proportional share of the flats, as appurtenant to, or, more strictly speaking, as parcel of his upland estate; and the limits of each share are often so difficult to be ascertained that no one of the proprietors can safely undertake to build upon or improve the flats, without a judicial investigation and decision. The duty of commissioners appointed under the statute of 1864 is to define the lines and boundaries of that share of the flats to be divided, which belongs to the estate of each proprietor under the colonial ordinance, as it is the duty of commissioners appointed to make partition under the General Statutes to determine the boundaries in severalty of the share of each tenant in common in the land of which partition is to be made But in either case, if the title of any petitioner to the share, or part of the share, which he claims in the land or flats of which partition or division is sought, is denied upon the ground that it has vested by deed or disseisin in another person, the — 82 — effect of such deed or disseisin must be tried according to the course of the common law by the court and jury, before a warrant is issued to the commissioners. The commissioners therefore in this case had no authority to pass upon the question of title, depending upon possession and occupation by wharves or other structures for twenty years or more; and, according to the agreement made by the parties at the time of the reservation of the case for the full court, that part of their report must be stricken out. Such questions of title should properly have been raised, tried and determined before the appointment of commissioners, and the result stated in the warrant to them. But it is unnecessary to dwell longer upon this point, since it was announced by counsel at the argument that the parties had mutually agreed to make conveyances of the flats thus occupied, either in accordance with the lines of such occupation as actually found by the commissioners, or with an independent agreement between the parties in the country. The court fully concurs with the commissioners in their view of the extent of the flats to be divided in these proceedings. The inner and outer limits of proprietorship under the colonial ordinance and the laws of the Commonwealth are well settled. The inner line is that of high water at ordinary tides. Commonwealth v. Charlestown, 1 Pick. 182. Commonwealth v. Roxbury, 9 Gray, 477, 483, 491. United States v. Pacheco, 2 Wallace, 590. Hale De Jure Maris, in Hargrave’s Law Tracts, 12, 25, 26. The outer line, as determined by repeated decisions of this court, is that of extreme low water, if within, one^hundred rods, because it is often necessary to the enjoyment of the rights granted by the ordinance to have a wharf extend to low water mark when the tide ebbs the lowest. Sparhawk v. Bullard, 1 Met. 95. Attorney General v. Boston Wharf Co. 12 Gray, 558. The fifth mode of division reported by the commissioners, by *mes running only to mean low water, need not therefore be further considered. The natural monuments indicating the boundaries of the cove are the headlands on either side. As the flats belonging to part of the upland which lies within the headlands extend to low — 83 — water mark outside of a base line drawn across the mouth of the cove from headland to headland at ordinary high 'water, it is plain that the division cannot be confined to the flats within that base line; and we agree with the commissioners that the rule adopted by them, for ascertaining what flats outside as well as inside of that line are to be treated as within the boundaries of the cove, is substantially accurate, and of more easy practical application than any other. The simple and natural way of ascertaining what flats outside of the base line are to be considered as belonging to, and to be divided among, the estates within the cove, is to draw side lines at each end of the base line and at right angles with it to low water mark. Gray v. Deluce, 5 Cush. 13. The commissioners fixed the side line at the northerly headland in this manner, there being nothing in the form of the adjoining shore to require a variation in it. But at the southerly headland it appeared that the side line of this cove, if so drawn, would conflict with the side line, drawn on like principles, of the cove next adjoining; and as the line dividing the two coves could not therefore be extended at right angles to the base lines of both, it was properly projected at an equal angle to each base line, so as to distribute equally between the two coves the angle of flats which would be included between the lines drawn from that headland to low water mark at right angles to the base lines of the two coves respectively. An analogous rule has been adopted in Maine for the division of flats between adjoining estates. Emerson v. Taylor, 9 Greenl. 42. Treat v. Chipman, 35 Maine, 36. Call v. Carroll, 40 Maine, 31. The objections which have prevented this court from applying such a rule to private estates, the boundaries of which depend upon the acts of man and are therefore changeable and often artificial, do not hold good as between two coves or other sections of the shore, the bounds and monuments of which are natural and invariable. All the flats within the limits of the cove as thus ascertained belong to the petitioners, or to the owners of the estates next adjoining theirs on either hand. It being admitted that there have been no conveyances or agreements which can affect the — 84 — case, it remains to be determined which of the various modes of division suggested in the report should be followed. The court is clearly of opinion that the mode preferred and selected by the commissioners is erroneous. It is novel and unprecedented, utterly different from and inconsistent with any of the principles and rules which have been laid down or suggested in the adjudged cases, and evinces more scientific ingenuity than practical wisdom. It is artificial and complicated, requiring much mathematical skill, minute surveys and elaborate calculations, to apply it to particular cases. It does not give to each proprietor a width on his outer line either equal or proportional to that which he has at high water mark. It determines the width of each parcel of flats and the direction of the side lines thereof, neither by the natural line of low water mark, nor by a base line drawn between the natural monuments at the headlands of the cove, nor by the outer line of proprietorship ; but by a series of arbitrary lines, many of which fall partly within and partly without the flats to be divided, and which in the deepest parts of this cove lose even the apparent consistency and approximation to a series of parallels with which they begin at high water mark. The dividing lines do not run in the straightest and most direct course to any points on low water mark or the seaward limit of proprietorship ; but are curved and serpentine, making each lot of a shape peculiarly inconvenient for the building and use of wharves while the flats continue to be appropriated to the purposes of commerce and navigation, and equally difficult of sale or improvement after the flats shall have been filled up. And in this case, this mode of division bears with singular irregularity and injustice upon the petitioner Davis, giving him a disproportionately narrow strip of flats, especially at low water mark, as is manifest upon referring to the plan. The report must therefore be recommitted to the commissioners. The ordinary mode, as recognized and established by the decisions of this court, of applying the general principles, stated at the beginning of this opinion, to the division of flats in a cove, is to take the whole length of the upland at high water — 85 — mark, ascertain each owner’s proportion, and give him the same proportion on the low water line, and in the same order, and then draw the side lines straight from each proprietor’s lines at high water to his corresponding points at low water. Ashby v. Eastern Railroad, 5 Met. 370. Walker v. Boston & Maine Railroad, 3 Cush. 22, 23. This mode of division is usually the simplest and the most convenient; it is governed by the natural and the legal lines of proprietorship; it extends from the inner to the outer limit of the tract to be divided; and it secures to each estate a proportional division of the flats and direct access tc the sea. It is essentially the same rule by which accretions by alluvion upon the bank of a river or lake are divided among the riparian proprietors. Deerfield v. Arms, 17 Pick. 41. Hopkins Academy v. Dickinson, 9 Cush. 552, 553. Jones v. Johnston, 18 How. 150 ; S. C. 1 Black, 209. 3 Kent Com. (6th ed.) 428. The court has sometimes been induced by the shape of thr shore to adopt the base line of the cove, instead of the line of low water, as the line upon which to fix the proportional width of each parcel of flats; but in the leading instances in which this has been done there was no natural channel or other depression from which the sea did not ebb at extreme low tide within the base line of the cove, to affect the division; and either the cove was deep and of a shape requiring converging lines in order to give to each proprietor access to the sea and a due share of the flats, in which case each proprietor has been held entitled to a width on the base line proportional to his boundary at high water mark; or else the curve of the shore line was so shallow that a base line drawn from headland to headland would nearly accord with the general course of the shore, in which case the side lines of each parcel of flats have been extended at right angles with the base line. Rust v. Boston Mill Corporation, 6 Pick. 158. Gray v. Deluce, 5 Cush. 12. Attorney General v. Boston Wharf Co. 12 Gray, 553. There may doubtless be other cases, the peculiar circumstances of which may require a modification of or departure from the general rule, and in which it may even be necessary, as suggested by Chief Justice Shaw in 3 Cush. 25, that each parcel of flats, after passing the mouth or narrowest part of the — 86 — cove, should widen and spread, in order to give to each owner his due proportion. And in ascertaining the length of the line, either at high water mark or at low water mark, the general line ought to be taken, and not the actual length of the line if it happens to be elongated by deep indentations or sharp projections. 17 Pick. 46. 1 Black, 223. But in this case there are no sudden or extraordinary indentations or projections, in either the inner or the outer line; and it is of great importance that the general rules which have been once deliberately adopted and acted on judicially, should be adhered to, whenever the form of the shore will permit, so as to leave as little as possible to the discretion of the court in individual cases. The inward curve of the shore of this cove is, as all the parties admit, too deep, and departs too much from a straight line, to allow the flats to be divided by lines at right angles with the base line of the cove ; and we are of opinion that in this case, in which that base line is far from parallel to the course of the outer limit of the flats to be divided, and in part outside of it, the commissioners rightly refused to follow the mode suggested, though not strongly urged, by the petitioners, of giving to each proprietor a width of flats on the base line proportionate to the width of his lot at high water mark, as indicated by the second set of lines in the report and plan; and that, for the reasons already stated, the appropriate mode of division is to give to each proprietor a front line at extreme low water mark proportionate in length to his shore line at ordinary high water mark, and to run the division lines of the flats straight from high water mark to low water mark, according to the third system suggested in the report and plan. The fourth mode of division reported by the commissioners, which assumes so much of the extreme low water line as is within the base line of the cove for the line on which to fix the proportional width of each parcel at low water, would give to the owners of the estates next the mouth of the cove a proportional part of the flats within the base line and all the flats outside of that line, and is so palpably unjust that it has not been contended for in argument and requires no special con«deration Report recommitted.