Preston v. West's Beach Corp.

Knowlton, C. J. This bill is brought to restrain the defendant from erecting bath houses and other structures on the plaintiffs’ beach at Beverly Farms. The case was heard at great length, first before an auditor and then before a jury, upon eleven issues which were framed for trial' by the jury. It involves an investigation of titles, beginning with a grant from the town of Salem in 1635 and extending to deeds made only a few years ago. Questions were raised as to the validity and effect of two acts of incorporation of proprietors, one under a general law and the other under a special statute. A contract was made between the defendant and the plaintiffs’ predecessor in title, which the defendant seeks to avoid on the ground that it was ultra vires. Both parties rely upon prescription, as well as conveyances, to establish a title that shall be available in support of their respective contentions. The plaintiffs own about an acre and a half of land, near the sea, by a title that is unquestioned. They contend that their absolute title by deed extends to high water mark, and that, in addition to a tenancy in common by deed in the shore and the adjacent flats to low water mark, they have acquired rights in them by prescription. The defendant contends that the plaintiffs’ boundary next the sea is a bank, separating the upland from the sand of the beach below at a distance of several rods from high water mark. A great many requests for rulings were made by the defendant, and numerous important questions of law have been argued before us, some of which it will be unnecessary to decide. The decision of the case will turn upon a few propositions. — 491 — The parties have filed a stipulation that the plaintiffs are owners of an estate in fee in the disputed tract, as tenants in common with others. As against a stranger to the title, such a share is sufficient to entitle them to the relief for which they ask in this bill. We may therefore turn at once to the defendant’s claim of title. The defendant was incorporated under the St. 1852, c. 157. This is a very peculiar act, which incorporates all the “ resident inhabitants” of a certain territory, comprising most of two school districts in the town of Beverly, and which authorizes them to take and hold a described portion of the seashore, beach and flats at Beverly Farms. It puts upon them the burden of keeping in repair a certain causeway across a creek and marsh, and provides that they “ may use and occupy said described portion of sea-shore, beach, and flats, for the purposes of gathering drift-stuff and sea-weed, and of boating and bathing, as said premises have heretofore been used and occupied by them and their predecessors.” It contains a requirement that the legal voters who are members of the corporation shall be assessable a certain amount for the erection and maintenance of a stone wall at the causeway, and it makes regulations as to the removal of sand and gravel from the beach, and the gathering of drift stuff and sea weed. It declares that “ nothing contained in this act shall be so construed as to . . . impair the legal rights of any person.” Although the defendant relies somewhat upon an incorporation of proprietors under the general law in 1840, claiming the same property, we consider this of no further significance than to show that this beach had previously been treated almost like common property. The defendant corporation has derived nothing from the former corporation. It seems to have been supposed that there was a charge or a condition affecting this land, in reference to the maintenance of the causeway, according to the terms of the original grant from the town of Salem. But it appears that, so far as the land now in dispute is concerned, this was a mistake. The charge or condition was in a grant which did not include this part of the beach, although it included a part of that described in the statute. What was the effect of this statute ? It assumed to give the — 492 — corporation a possessory title in the beach, if it chose to take and hold it. The corporation, having been duly organized, undertook the work required of it in the repair of the causeway, and did it to the satisfaction of the selectmen of the town. By a board of officers regularly elected from year to year, it has attempted to manage and control the property described in the act. Considering the situation and nature of the real estate, we think the defendant took it within the meaning of the statute, and has held it generally, although for the most part without reference to nice questions in regard to boundaries. The statute did not purport to take any property by right of eminent domain, and it expressly provided that it should not impair the legal rights of any person. Therefore the statute gave the corporation no valid title as against the legal title of any private owner. If there were any public or common rights in the tract included in the grant they passed to the corporation. The defendant’s counsel argues that the Legislature “ intended to gather up the fragmentary and unascertainable interests held by a great multitude of persons, and vest them immediately in a corporation, for the purpose of securing to those who appeared to be the owners and those who would otherwise become the future owners, the" beneficial use of West’s Beach, for the purposes to which it had long been devoted.” Yery likely he is right in this; but, if he is, the law-makers were careful not to attempt to interfere with private property. Doubtless they recognized their constitutional limitations. As against individual owners, nothing more than a possessory title was created, and as against them no rights have been acquired by the corporation otherwise than by disseisin. If we assume, in favor of the defendant, that, by reason of the publicity of the different proceedings before the Legislature and the town, and the notoriety of its acts in regard to the beach, it has now acquired a title by disseisin to all the property described in the statute, as against all private owners who have made no claim since the corporation took possession, we come to their relations with the plaintiffs and the plaintiffs’ predecessors in title, and ask whether they have acquired any rights against them. After negotiations between the parties and votes of the corporation, an agreement under seal was entered into between the — 493 — defendant and Jonathan Preston who then owned the estate of the present plaintiffs, whereby the defendant was to release to him “ all interest they may have to that portion of the beach which fronts upon his land situated to the westward of a line commencing . . . reserving only such privileges as may have been acquired by usage or otherwise, to collect seaweed and drift wood and to pass and repass over said beach which privileges are still to remain to be enjoyed by them in common with the owner of said land, said corporation further agreeing that the sixth and seventh sections of their act of incorporation shall not apply to said portion of the beach.” Then followed a stipulation that no sand should be removed from this portion of the beach, under a prescribed penalty. Sections 6 and 7, referred to, relate to the- removal of sand, gravel, drift stuff and seaweed. This instrument was executed in 1856. The defendant contends that the agreement was ultra vires of the corporation and void, because, by the eighth section of the act, the beach is forever to remain for the use of the present and future residents within the limits designated, and the transfer of his right by a member is forbidden. We have no doubt that a sale of the beach as a whole was forbidden. But here was a small part of it, claimed by the plaintiffs’ predecessor, and there was much reason to believe that he had a good title to high water mark. He was willing to give the defendants valuable rights in the disputed portion, and they entered into the agreement in order to settle, for all time, rights that otherwise would be doubtful. He and his successors treated the agreement as binding, and it seems that, for a long time, the defendant did also. In this .trial the plaintiffs consented that the third issue, as to the right of the defendant and its members to enter upon and pass and repass over the land to and from the sea, and the fourth issue, as to the right of the defendant and its members to gather drift stuff and sea weed on the land and to carry it away, should be answered favorably to the defendant. We are not prepared to say that the corporation could' not bind itself in this way for the settlement of doubtful questions affecting its rights. On the contrary, we think the defendant was bound by the agreement, at least by way of estoppel, since it was acted upon by both parties. — 494 — The agreement becomes very important, as bearing upon thé nature of the subsequent occupation of the parties, and upon the question whether the corporation has acquired aiiy right by disseisin or prescription against the plaintiffs. So far as the defendant has exercised the rights secured to it by the writing, its occupation, as between these parties, must be deemed permissive, and not adverse to the plaintiffs. Beyond the exercise of these rights, nothing is shown which approaches proof that the corporation has acquired any title or easement against the plaintiffs by a continuous adverse use and occupation for twenty years or more. If, as against other tenants in common who have made no claim to any part of the property, it has acquired, by its general occupation and supervision of the beach, a title to their shares by disseisin, its occupation has been all the time in subordination to the rights of the plaintiffs under this writing. The rights of others, which it may have acquired, are not their full former rights, because the defendant was subject to these written provisions in favor of the plaintiffs’ predecessor in title. Or, to put the proposition in another form, so far as the defendant has acquired prescriptive rights from others, they have all the time been limited by this agreement while they were coming into the defendant’s ownership, and as soon as they were held by a prescriptive title, good as against others, they were controlled, as between these parties, by the agreement which was made for their regulation. The ease stands with a conceded title in the plaintiffs as tenants in common, and with no title in the defendant, as against the plaintiffs, as to any of the matters in dispute. It therefore becomes unnecessary to decide whether the judge was right in his ruling that the plaintiffs have a perfect title by deed to high water mark, or whether the auditor was right in finding that the description of their land in the deed stopped at the bank, a considerable distance away from high water mark. We have little doubt that there was evidence before the auditor which would have warranted a finding in favor of the plaintiffs on this point. Whether the judge could rule on this point, as matter of law, against the finding of the auditor, is a different question. There is no ground for the defendant’s contention that the judge could not direct the jury to answer the tenth issue “ Yes, — 495 — as tenant in common.” The addition of the words, “ as tenant in common,” showed partly the nature and extent of Jonathan Preston’s ownership in fee. If it was not necessary in answering the issue as it was framed, it was desirable and not objectionable. If the judge had chosen, he might have then amended the issue so as to require such an answer. An error in the trial of any of the issues is immaterial, provided the answers to the issues rightly tried enable the court to dispose of the case. It therefore becomes unnecessary to consider the exceptions to the exclusion of testimony. Hone of this testimony had any bearing on the plaintiffs’ conceded title as tenant in common, nor on the question whether the defendant had acquired a title by disseisin or prescription against the plaintiffs. It follows that the judge was right in ordering a decree for the plaintiffs, and the exception to that order is overruled. Upon the reservation of the case on all the questions before the court, the order is Decree for the plaintiffs with costs.-