Hathaway v. Wilson , 123 Mass. 359 ( 1877 )

Gray, C. J.

This is a writ of entry to recover a parcel of land or flats in Fall River. At the trial, both parties claimed title under James Brightman, who died intestate in 1809, seised of lands lying around a tide-water cove, and of other lands which did not abut on tide water, and leaving four children, Susan S. Hathaway, Hannah Sherman, Perez R. Brightman and George Brightman, and a widow, Betsey Brightman, who afterwards became Betsey Nichols.

In 1820, commissioners appointed by the Probate Court to set off the widow’s dower and to make partition of the rest of the estate among the heirs made a return, which was approved by the Probate Court, by which they set off to the widow for life, as her dower, “ one lot west of the highway, the north side of the cove, bounded as follows, viz.: Beginning at the northeast corner by the wall and land of Edmund Brightman; thence north seventy-two degrees west fifteen chains to a corner; thence north twenty degrees west three chains and seventy-five links to a corner; thence north seventy degrees west eight chains to the shore; thence south twenty-six degrees west three chains and fifty links; thence south seven tv degrees east three chains to George Brightman’s shore ; thence by said shore south twenty-one degrees east eleven chains and fifty links to a tree ; thence south fifty-five degrees west to the line of the south side of the cove; thence by said line to the road; thence by said road northerly to the first bounds; containing seventeen acres and sixty rods.” They then set off to the widow, by metes and bounds, three other lots of upland, not touching the shore nor in question in this case; “ and also a privilege to have and take off the one third of the seaweed that may wash up on the shore of the lots west of the road by the cove and river, which privilege last mentioned is to be divided equally between Betsey Nichols and Perez R. Brightman and George Brightman, on all the land adjoining the river and cove; all which four lots of land, together with the privileges above described, we have set off to the said Betsey Nichols for her dower or thirds in said farm.*

The commissioners then set off to Perez R. Brightman, the elder son, “ one lot of land situated on the west side of the road and the south side of the cove,” bounded “ westerly and southerly by the cove and river,” and further described by metes and bounds, “ excepting two thirds of the shore or seaweed that may wash upon the land or shore; ” also a wood lot on the east side of the road, the boundaries of which are not material, “ both of which lots of land we have set off to the said Perez for his share.” The lots set off to the other heirs did not touch tide water, and need not be particularly referred to.

The premises demanded in this action are the land lying between high and low-water mark on the north side of the cove, between the point where the boundary of the first lot set off to the widow, as described in the commissioners’ return, first comes “ to the shore,” and the bound therein described as “ George B’ightman’s shore.”

There was conflicting evidence upon the question whether thu line, as described by the commissioners, between these two points, corresponded with high-water mark, and there was evidence tending to show that the shore varied in width from sixty to eighty feet between high and low-water mark. The demand-ants introduced evidence that the land of George Brightman so referred to (which is not demanded in this action) was known as the George Brightman marsh, was owned by George at ttie time of James Brightman’s death, and was a parcel of marsh or meadow, including no beach, and extending to the tree mentioned in the assignment of dower.

The tenant, who holds deeds from the heirs of the land set off to the widow, contended that it extended to low-water mark, from the north line of the dower estate to the George Bright-man marsh. The demandants, who are the heirs of James Brightman, contended that, according to the true construction of the commissioners’ return, the widow’s dower at this place only extended to high-water mark.

The justice of the Superior Court, before whom the case was tried without a jury, “ruled and found that, according to the true construction of the commissioners’ report, in connection with other evidence in the case, the widow’s dower took all the land, from the George Brightman marsh' round to the north line of the dower, to low-water mark,” and found for the tenant; and the demandants alleged exceptions.

By the law of Massachusetts, the proprietors of lands abutting on tide water have a title in the shore or flats to low-water mark, where the tide does not ebb more than one hundred rods, and may convey the upland and the flats, either separately or together. The strict legal meaning of the word “ shore ” is doubtless the land between ordinary high-water mark and low-water mark; and such is its common meaning as a definition of a boundary, when used by itself, and uncontrolled by other expressions in the deed or instrument of conveyance. But it may be shown by a consideration of the whole instrument, and of monuments referred to therein, to have been used untechnically, and without legal accuracy, as importing low-water mark. Anc. Chart. 148. Storer v. Freeman, 6 Mass. 435. Jackson v. Boston & Worcester Railroad, 1 Cush. 575, 579. Saltonstall v. Long Wharf, 7 Cush. 195, 201, 202. Doane v. Willcutt, 5 Gray, 328, 335. Niles v. Patch, 13 Gray, 254, 257.

üpon examination of the whole return of the commissioners, (the material parts of which have been already quoted,) we are of opinion that it manifests their intention and determination that the land set off to the widow as her dower should extend to low-water mark at the place in question. This is apparent from several considerations. It was the duty of the commissioners to divide the whole estate, andis to be presumed that they have performed that duty. Doane v. Broad Street Association, 6 Mass. 332. Clark v. Parker, 106 Mass. 554. They have not assigned the fee of the shore in question to any other person. The land set off to the elder son on the other side of the cove, bounded “ by the cove and river,” clearly extended to low-water mark. Boston v. Richardson, 105 Mass. 351, 355, ánd cases cited. The right to “ the seaweed that may wash up on the shore of the lots west of the road by the cove and river,” “ on all the land adjoining the river and cove,” thus including both the land set off to the widow and that set off to the elder son, is assigned to the widow and the two sons, one third to each. In 'the absence of any such assignment, such seaweed would belong to the owners of the shores respectively; and the question of the nature of the right so assigned is not now presented for determination. See Cohasset Proprietors v. Tower, 24 Law Reporter, 734; Phillips v. Rhodes, 7 Met. 322; Cushing v. Worrick, 9 Gray, 382; Anthony v. Gifford, 2 Allen, 549. But the fact that the commissioners made a distinct assignment of the seaweed on both shores of the cove leads irresistibly to the conclusion that they understood they had set off, and that they did set off, the title in each of the shores. And their assignment of rights in the seaweed on both shores is followed by the concluding statement, that “ all which four lots of land, together with the privileges above described,” are set off to the widow for her dower. It may be added that the use of the words “ George Brightman’s shore,” to designate a parcel of land which the evidence introduced by the demandants tended to prove was above high-water mark, shows that the word “ shore ” was used by the commissioners in a loose and general way, and without exact appreciation of its technical meaning.

L. Lapharn J. M. Morton, Jr., for the demandants. J, Broten, (J. M. Wood with him,) for the tenant.

The conclusion is that, by the true construction of the commissioners’ return, the land set off to the widow at the place in question extended to low-water mark, and consequently that the tenant has a better title than the demandants to the demanded premises. Exceptions overruled.