Forest River Lead Co. v. City of Salem , 165 Mass. 193 ( 1896 )

Holmes, J.

We see no reason for changing the master’s findings in any way that affects our conclusion. We start, therefore, with the fact that the boundary in question is Forest River. The question left open is whether the line at the lower bridge is the middle of the stream or high or low water mark. The conveyance to Humphrey in March, 1637-8, having been made before the ordinance of 1648, conveyed only to high-water mark. Tappan v. Boston Water Power Co. 157 Mass. 24, 26, and cases cited. It follows that, when in 1648 and 1649 Marblehead was made a town, “ the bounds to be the utmost extent of that land which was Mr. Humphrey’s farm and sold to Marblehead,” the line was at high-water mark unless the farm had been enlarged before the Salem vote of 1648. There is no ground for suggesting that the boundary had been extended to the middle of the stream. The only question is whether it had been carried down to low-water mark. Before 1648 the ordinance had been passed which gave the proprietor of the adjoining land “ propriety to the low-water mark, where the sea doth not ebb above a hundred rods.” The effect of the ordinance was that the title which the proprietor of land bounded by tide water had above high water was extended over the shore or flats, subject to the public rights reserved, and the ordinance applied to all the flats in the Colony which had not been granted away by the government before its passage. Boston v. Richardson, 105 Mass. 351, 354, and cases cited. But the latest moment which can be taken as fixing the boundary line according to the strict literal meaning of the words quoted above is the date of the sale to Marblehead. And although perhaps it would be possible to read the words as referring to the title as it stood at the time of the Salem vote of 1648, the practice of the parties to which we shall refer in a moment is in favor of the literal construction. As has been known for a long time, the part of the ordinance which deals with flats was not in the original Body of Liberties of 1641, but was an addition of 1647. Body of Liberties, Mo. 16, (Whitmore’s ed.) 37. Mass. Colony Laws, (ed. 1660) 50, (Whitmore’s ed.) 170. 28 Mass. Hist. Soc. Coll. 215. Boston v. Richardson, 105 Mass. 351, 354. So that the exact question is whether the conveyance to Marblehead was made before 1647. The deed has not been found. A memorandum in the registry of deeds is interpreted by the master as referring to it and as giving its date, but the words are “ excepting 50 Acres & 2 ponds formerly granted to Mr. Downing as p an Instrument bearing date ye 24th of ye 7 mo. 1645 appeereth,” and seem not to refer to the land or to the conveyance in question, but to a conveyance of the two ponds and so much high ground about the ponds “ as is needful to keep the duck cove private from the disturbance of plowmen,” etc. If we are right, the only direct evidence of the date is the testimony of Par miter in 1681 that the plain farm was bought of Major Hathorne about the year 1645 by Mr. Maverick and several other proprietors. Some doubt is thrown on this testimony by the above mentioned memorandum, which is a minute of such a sale dated 1655. But that the original boundary had not been changed is confirmed by indirect evidence. The practice of more than a century and general repute show that the Forest River is in Salem, and for a great number of years Marblehead has acquiesced in the taxation of the disputed territory by Salem. The ancient construction adopted by the parties, and adhered to until recent times, warrants an interpretation of the original set-off which most nearly justifies their conduct. See Chenery v. Waltham, 8 Cush. 327; Indiana v. Kentucky, 136 U. S. 479, 510. We are of opinion that the boundary is high-water mark.

As no objection is taken by either defendant to maintaining a bill of interpleader, both parties seemingly wishing to have the merits decided and having been at some expense for that purpose, we have expressed our opinion as was done in Hardy v. Yarmouth, 6 Allen, 277. The reasons for holding such a bill demurrable mentioned in' Macy v. Nantucket, 121 Mass. 351, are reasons of policy in favor of the prompt collection of taxes, which may be waived by the parties interested. The case seems to be a proper one for interpleader, except for the considerations to which we have referred. See Thomson v. Ebbets, Hopkins Ch. 272 ; Mohawk Hudson Railroad v. Clute, 4 Paige, 384, 391; Cooley, Taxation, (2d ed.) 786. Decree accordingly.