Partridge v. Luce , 36 Me. 16 ( 1853 )

The opinion of the Court was drawn up by

Wells, J.—

It was suggested at the argument of the exceptions, that some of the petitioners- had conveyed their in-» terest in the premises since the appointment of the commis-sioners-. If such conveyance to third persons had been made after the commencement of the petition and before the- inter-» 1-ocutory judgment, that partition shall be made, no advantage could be taken of it without a plea in bar. Upham v. Bradley, 17 Maine, 423. The petitioners- would be at liberty fly-take issue upon suefe plea, and to have if tried by a jury. Mitchell v. Starbuck, 10 Mass. 5. But the interlocutory judgment establishes the rights of the petitioners, and they cannot be investigated anew without setting aside that judgment. It is then too late in the present stage of the proceedings, to enter into the inquiry as to the proper parties to the process.

It is contended by the respondent-,- that the petition does? not require a division of the flats, that they are not embraced iff the description of 1¿be' premises-of which partition is sought, and that the statute does- not authorize a partition- of them.

In the petition the premises are bounded u easterly by Owl’s Head bay.” Whatever is included within that boundary would by the interlocutory judgment belong to the petitioners, so far as it was the subject of private property. A bay is an arm of the sea, extending into the land. It is a part of the sea. And the boundary is to be regarded in the same manner as if it had been stated, that the premises were bounded on the east by the sea.

The principle of the Colonial Ordinance of 1641 has been adopted in this State, so that the owner of lands bounded on the sea shall hold to low water mark, where the tide does not ebb more than one hundred rods, but he cannot claim beyond .those limits, where the fide ebbs to a greater distance. The owner of the upland bounded on the sea ean hold the flats for one hundred reds from highwater mark, provided they extend so far, but not beyond that distance. Storer v. Freeman, 6 Mass. 435 ; Lapish v. Bangor Bank, 8 Greenl. 85; Mayhew w. Norton, 17 Pick. 357; Winslow v. Patten, 34 Maine, 25.

No satisfactory evidence was presented to the Court to show, that the flats were incapable of a division, and .such a result cannot be .anticipated. The exceptions must be overruled, and the order of the presiding Judge, that the report should ¡be recommitted for the purpose of dividing the flats, is confirmed.

Shepley, C. J., and Howard, Rice and Hathaway, J. J., concurred.