Anthony v. Gifford , 84 Mass. 549 ( 1861 )

Bigelow, C. J.

Of the exceptions taken to the rulings of the court at the trial of these cases, only one is now insisted on. The defendants contend that the definition given to the word “ adrift,” as used in Gen. Sts. c. 83, § 20, in its application to the facts in proof, was erroneous. But it does not appear so to us. The word is to be construed with reference to the subject matter in relation to which it is used. By a liberal construction of the jus alluvionis, it is held that sea-weed, kelp and other marine plants, when detached from the bottom of the sea and thrown on the shore or beach, become vested in the owner of the soil. But these marine products do not become the property of the riparian proprietor until they are cast on the land or shore, so that they rest there and may be justly said to be attached to the soil. So long as they are afloat and driven or moved from place to place by the rising tide, it is wholly uncertain where they may find a resting-place; and no one can claim ownership in them as appertaining to the particular part of the .shore or beach which belongs to him. And this is true, whether they are wholly afloat so that they do not come in contact with the bottom, or only partially so, or to such an extent that they occasionally, by the motion of the waves or the rise of tide, touch or rest on the beach. Chapman v. Kimball, 9 Conn. 38. Emans v. Turnbull, 2 Johns. 313, 321. Phillips v. Rhodes, 7 Met. 322. Angell on Tide Waters, 260. It was clearly the intention of the legislature, by the provisions in the statute above cited, to give to any person the right to take and carry away kelp or other sea-weed, which had not actually rested or been deposited on the shore or beach, and thereby become vested in the riparian proprietor. Such we understand to have been the condition in which that taken by the plaintiff was found, when it was carried off" by him. We are therefore of opinion that the ruling of the court was sufficiently full and well adapted to the case. If the jury found, that the sea-weed was in the condition described by the language used by the court, and had never become vested in the defendants by having been cast on land belonging to them, under the colony ordinance of 1647, between high and low water-mark, the plaintiff was justified in taking it under the authority conferred by the statute.

Exceptions overruled.