Litchfield v. Ferguson , 141 Mass. 97 ( 1886 )

Deveus, J.

In view of the decision made in Litchfield v. Scituate, 186 Mass. 39, in which case it became necessary to consider the title of the plaintiff and of his grantor in the' beach alleged by the declaration in the case at bar to have been trespassed upon, it is not now contended that any record title can be shown to have been possessed by the plaintiff’s grantor in the premises in controversy.

The deed of A. D. Waterman, in 1795, to Ward Litchfield, who was the grantor of the plaintiff, bounded the tract conveyed “northeasterly on the beach,” and the boundary upon the beach necessarily excluded the shore, unless such boundary was controlled by.some other parts of the description, which did not appear. The plaintiff’s argument also concedes that the shore east of the Cud worth lot has not, since the death of Joseph Til-den, in 1764, been conveyed by any instrument of record so that title thereby can be shown to it. His contention is, that by reason of his possession of the upland and the sea-shore, through his own occupation and that of those under whom he claims, a case was presented where it was the duty of the judge, who tried the cases without a jury, to have found a lost deed of the premises to Ward Litchfield. This contention involves the inquiry whether the plaintiff has shown a title by disseisin, or, if not, whether he has shown an open and exclusive possession, which is sufficient against the defendants, who can themselves show no title by grant.

The plaintiff’s title to the premises comes from Ward Litchfield by deeds of November 8, 1824, and of February 16, 1826. These deeds by conveying to low-water mark include the beach in dispute. But if Ward Litchfield had himself no title, his deeds could convey none. Whatever they purported to do, the deeds would operate only to convey that which the grantor had. Bates v. Norcross, 14 Pick. 224, 229. Perry v. Weeks, 137 Mass. 584.

The evidence fails to show that the plaintiff or his grantor had acquired any title by disseisin which would be available against the true owner. In regard to wild lands, it has often been held that merely cutting the wood from time to time, and selling the same, is not enough to establish a title; that there must be a distinct and well-defined possession and occupation thereof, as by enclosing the land with a fence, or by similar acts done under such circumstances that they indicate that the possession taken is open, exclusive, and of such a character that it is clearly inconsistent with, and adverse to, title in any other person, before such acts can operate as a disseisin. Slater v. Jepherson, 6 Cush. 129; Morrison v. Chapin, 97 Mass. 72. Perry v. Weeks, ubi supra.

Neither the plaintiff nor his grantor had any such exclusive possession of the beach. The taking of sea-weed therefrom, and the selling from time to time of stones from this open and unenclosed beach, were acts of such a nature as, in regard to wild lands, have been held insufficient to operate as a disseisin of the true owner.

While this is so, and while the defendants have failed to show any record title to the premises, it is yet to be considered whether the plaintiff has had a possession which, even if it would not be available against the true owner, would still be available against the defendants. One being in possession, even if it is not such as would amount to a disseisin of the true owner, may maintain trespass against a mere intruder, without right, upon that possession, and if he is ousted by such an intruder may maintain a writ of entry against him. It is sometimes said that any possession is good against a wrongdoer. Tappan v. Burnham, 8 Allen, 65. But when two persons have a concurrent or mixed possession, and neither party has any other title nor any exclusive priority of possession, neither can maintain any action against the other. The possession of each is such that the other has no right to interrupt it. Barnstable v. Thacher, 8 Met. 289.

It was therefore a question of fact, in the case at bar, whether the plaintiff had shown an exclusive possession of the beach, others being prevented from coming thereon, or at least forbidden so to do, and whether acts similar to those done by the plaintiff, and on which he relies as establishing a title by possession, had also been done by others to such an extent, during the same period, that such persons had with the plaintiff a concurrent or mixed possession. This question was passed upon by the presiding judge, upon the evidence afforded by the auditor’s report and oral testimony. While he held that the plaintiff had sufficient possession of the beach to maintain trespass against a mere stranger having no right or title in or to the same, he also found that for more than sixty years before the date of the plaintiff’s writs, and prior to the deed to him under which he claims title, the defendants and their grantors gathered sea manure on said beach, and carried the same to and expended it upon their own lands, being the premises described in their answers; that said taking was open and adverse to the plaintiff, and under a claim of right not based on any supposed title in the town of Scituate; that it was continuous and also uninterrupted until the defendants were forbidden by the plaintiff, a few days before the date of his writs, to continue the gathering of said sea manure; and further, that' the possession of said beach by the defendants and their grantors was similar to that of the plaintiff and his grantors, and of equal duration. This finding was warranted by the evidence. The only acts done by the plaintiff which were not also done by the defendants were, that from 1821 to 1853 he made sales of paving-stones from the beach in different years which were not consecutive, and also sold gravel therefrom, and timber which had there been deposited by the waves. But the defendants were also proved to have taken sea manure for their farms and sand from said beach, without interruption or objection, and these acts were of similar character with those of the plaintiff. The acts of the defendants were also done by them under a claim of right, as it appeared both by their testimony and the character of the acts themselves.

The auditor found, indeed, that what the defendants did was under license from the town. Having found that the town owned this beach, which finding by him was erroneous, (Litchfield v. Scituate, ubi supra,) and the town having given by its votes an actual license to all inhabitants to go on its beaches and gather sea-weed, the auditor attributed the acts of the defendants to this license. No votes of the town related specifically to this beach, and a general license to enter upon all its beaches cannot be referred to one that it did not own. As there was evidence that each of the defendants did assert a right in himself, as the owner of his own farm and for the purpose of using the manure thereon, the presiding judge might properly have found that the acts done by the defendants were not referable to any license from or action of the town. The farms of the defendants were near each other, and there was an ancient highway that led therefrom, the only use of which was to afford the means of gathering from the beach the sand and sea manure, and whatever was deposited by the sea upon it. This evidence was sufficient to establish a mixed possession by the defendants. Whether the facts also might not be sufficient to show a right in the defendants appurtenant to their freeholds by prescription in the premises to gather sea-weed, sand, &c. there for use on their respective farms, so that, even if the premises described in the plaintiff’s declarations were actually the property of the plaintiff, the acts done by them could be justified, we have no occasion to inquire.

Judgments accordingly.