Bethum v. Turner , 1 Me. 111 ( 1820 )

Mellen C. J.

delivered the opinion of the Court.

In this case a new trial is moved for, on two grounds;— 1. that the locus in quo is a public landing, in virtue of a location of it for that purpose in the year 1804 by the Selectmen of the town of Piltston:—2. that after the lapse of thirty-five years, during which time it is said to have been actually used as a public landing, a grant ought to have been presumed to have been made of it for that purpose : in either of which cases it is contended that a verdict should have been returned in favour of the defendant.

As to the first point, we know of no authority given by law to the Selectmen of towns to lay out public landings. The constitution provides that private property may be taken for public purposes in certain cases, on payment of an equivalent therefor ; but the mode of proceeding is to be designated by law. The legislature, and not a board of selectmen, or the inhabitants of a town, arc to decide as to the cases in which this power is to be exerted, and the manner of using it. In certain cases the legislature has exercised this authority, as in the case of public highways, &c. But even if selectmen had the power contended for, as in the case of town roads, it does not appear that the location of the landing in the present case was ever approved by the town and accepted by them, as is necessary in the case of town ways.

As to the second ground of the motion, it is necessary to attend to some facts in the report of the Judge respecting the ownership of the locus in quo, the former owners of it, and the situation of the adjoining lots. It appears that there is a highway leading to the river through and over the land in question ; that there were no definite limits to the supposed public landing ; that it was usual for any persons to deposit their lumber on the lot adjoining the plaintiff’s for many rods on the bank of the river; that within one mile of the disputed close there were four other places denominated public landings and used as such; and that until a few months before the commencement of the present action the locus in quo was owned by persons not inhabitants of this State. Under these circumstances the land now belonging to the plaintiff was used as a public landing; and this user is urged as the foundation of a legal presumption that the place in question had formerly been granted as a public landing.

Numerous cases have been cited by the counsel for the defendant to establish this position, and shew that grants have been presumed after a user of little more than twenty years. With respect to these cases it may be remarked that they relate to claims of a private nature—of privileges or easements enjoyed by individuals—cases in which there was an exclusive enjoyment of the easement on the one side, and a knowledge of it and assent to it on the other.

In order to ascertain the nature of this kind of presumption, we must look to the reason of it. It is founded on implied consent. Thus if A. for a series of years permits B. to pass over his land, and makes no objection to it, it is presumed that this enjoyment is rightful; and if the user be continued a sufficient length of time, the legal presumption will be that A. granted the easement to B.—after which A. shall not disturb B. in this enjoyment.

Generally speaking, the cases in the books relating to this subject cannot be safely applied to lands a great portion of which has never been improved,—where proprietors reside at a distance ;—where settlements are made on small portions of large lots, without the knowledge of the owners, or any claim of title on the part of the settler ;—or where the usages of the country are such as to collect people near the margin of a river for the more easy transportation or more ready sale of their lumber ;—and where the persons thus resorting have no intern tion to appropriate the banks of the river to any other than a temporary use, on account of the facilities thus furnished.

In England, where the decisions alluded to were made, the lands generally are under improvement, under the inspection of some landlord or his agent, where any encroachments on the land, or improper appropriation of it, must be known. There, if undue indulgence is shewn, and these encroachments acquiesced in, there is room for presumptions of consent, or of a grant, to be allowed against those who will not guard their estates and protect them from legal conclusions affecting their rights. But the manner in which the shore of the river, in the present case, has been used, shew's the intention of those who have used it for the purposes which have been mentioned.Several landings of the same kind being thus used, we cannot, consider the user as any claim of right, or as intended to prejudice the rights of the true owner. For as a man ought not to be considered as disseized until he has the means of knowing that a person has unlawfully entered into his lands and claims to hold them adversely; so no man can be considered as a dis-seizor, unless by election, whose possession was not really adversary. And for the same reason a usage like that of depositing lumber on the banks of a river, when the usage is general, and not accompanied by a claim of title, or an intention of appropriating the soil to the exclusion of the owner’s rights, cannot furnish any legal ground for the presumption of a grant.

It has been urged that the plaintiff cannot maintain this action, not being in possession. But it is clear that the plaintiff has never been disseized by any of the acts stated in the report. To constitute such a disseizin, the land must have been inclosed by a fence, by persons claiming to hold the land adversely to the owner.

On the whole, we are all satisfied that for the reasons which have been stated the action is well maintained, and that there must be

Judgment on the verdict.