Tracy v. Norwich & Worcester Railroad

Seymoub, J. The premises of which the plaintiff in her writ demands possession became an island in the river Thames in 1845, in that year emerging from the flats above ordinary high water mark. The plaintiff’s father, Nathaniel Tracy, was a fisherman, and in 1818 he sunk an old scow filled with stones on the flats between channels of the river then navigable. He thus constructed a kind of pier by means of which and by the gradual accretion of sand an island was ultimately formed, which, as before stated, emerged from the flats about the year 1845. The plaintiff’s father died during this year 1845, having from 1818 down to the time of his death used the pier and the land formed, on and around it for fishing purposes and- for such purposes only, that being the purpose for which the'scow was sunk and the pier constructed. The record also states that the pier was from time to time re [392] paired by tlie plaintiff’s father and that in connection with this user he claimed the place as his own. The counsel for the_ plaintiff claim that upon these facts Nathaniel Tracy acquired title to the premises in dispute, or that at least he had such possession of them as is available towards the acquisition of title when connected with the subsequent user of his sons. In regard to these claims it is to be observed, first, that the user of the premises by Tracy is not found to have been exclusive of others ; on the other hand the record is that the pier and island were used by large numbers of persons for fishing without license from any one, and without payment for such use, except in one or two instances. And, second, that during the life of Nathaniel Tracy the premises were daily covered by the tide, and that the right to use the premises as portion .of the tide water of the state was common to all mankind. Mr. Tracy had no use of the property except such as was rightful; such, as he might, as one of the public, rightfully demand and enforce. The sinking of the scow and constructing a kind of pier for his own convenience as a fislrerman was lawful and subjected him to no civil action or criminal prosecution. By the exercise of his legitimate common right he could gain no private or exclusive right for himself. In this respect he is like a tenant in common who gains no title against his co-tenants by mere occupation and possession of the joint property, unless such possession is clearly shown tó be exclusive, and hostile to his companions. It is indeed stated that Nathaniel Tracy claimed the pier and the land formed on and around it as his own, and used it for fishing purposes, but this naked claim does not appear to have been recognized or acquiesced in by others, nor to have been.enforced or acted upon, nor indeed to have been made known, except in the one or two instances referred to. Such a mere claim, without acts hostile to the common rights of the public, subjected him to no legal liability. Neither the commonwealth nor any of its citizens were thereby disseized, dispossessed, or injured. Even if the user had been exclusive and adverse, still it [393] was for fishing purposes only, and was the user of a flat below ordinary high water-mark. It is difficult to.see how a title in fee to land could be acquired, or begin to be acquired, by such a user of such a subject. In 1845 the flatbecame an island, and thenceforth certainly the subject of a title in fee, and like other real estate capable of being acquired by continued and adverse possession. It .is settled law in Connecticut that the title to an island emerging as this, did, in navigable waters, vests in the state, and is also settled law that a grant from the state may be presumed in favor of long-continued exclusive and adverse possession. And this leads us to pursue the history of the property in. dispute after it became land. Daniel Tracy, a son of Nathaniel, and brother, of the plaintiff, claimed it as heir of his father, and used it until his death in 1864. He fished there and in the spring cleared it up. After'Daniel’s death another of the plaintiffls brothers claimed and used the island as heir of his father Nathaniel, until 1866, when he died. He fished there, and each year mowed the grass, and his interest was inventoried as part of his estate. Upon these facts, if these were all, a case is presented indicating a continued adverse holding of the premises under claim of title. But the record goes on to state that from the time the pier was built, in 1818, down to the death of Daniel, in 1864, the pier and island were used by large numbers of persons for fishing without license from any one, and, except in two instances referred to heretofore, without payment to any one for the use ; and after the flat became an island, it was used by others than the Tracys, when and as such others pleased, for various purposes detailed in the record, all without license from any one, and without interference with such use. Upon these facts it seems to us that the Tracys were never in exclusive possession so as to acquire title against the state or against any one else. The property after it became an island was used, it seems, in .common, being treated as continuing to be common and public property, just as the flat had been used before the island was formed. [394] The point was made by the plaintiff’s counsel that in this action of disseizin the plaintiff may recover upon proof of mere possession without showing title in liimself. Upon the view we have taken of the facts that question does not necessarily arise, for the plaintiff is not found to have been in exclusive possession at the time of the alleged ouster. We however ought to say that we regard it as elementary law in Connecticut that in this action of disseizin or ejectment the plaintiff must recover, if he recover at all, by the strength of his own title. Ample remedies are provided by actions of trespass and by proceedings for forcible entry and detainer for the disturbance of quiet possession, and we see no good reason for any change or mitigation of the familiar rule in respect to proof of title in ejectment. The Superior Court is advised to render judgment for the defendants. In this opinion the other judges concurred.