Inhabitants of Bremen v. Inhabitants of Bristol , 1876 Me. LEXIS 157 ( 1876 )

Virgin, J.

In creating and prescribing the territorial limits of towns, existing topographical facts such (as in the ease at bar) as rivers and large bodies of water are adopted by the legislature as the best defined and most permanent monuments of boundaries.' Considering the conformation of the territory about Museongns harbor, it seems very evident that the legislature did not intend to include in the town of Bremen, any part of the point of land on the south side of the harbor. To call such a line simply unreasonable would be so complimentary as to justly render us obnoxious to the charge of flattery.

This fact togther with the language of the act of March 6, 1830, “establishing the town line between Bristol and Bremen,” would seem to make it equally certain that the legislature supposed and believed that the limits defined in the act of incorporation did not include any portion of the point of land mentioned.

But whatever may have been the real intention of the legislature, it cannot be upheld at the expense of long established rules of law. The expressed intention is the one that must govern. If the commissioners cannot find on the face of the earth, sufficient evidence to enable them to “ascertain and determine the line” as formerly laid out, ( Wells v. Jackson I. M. Co., 48 N. H. 491,) then resort must be had to rules of construction; and the line run accordingly as if it were projected now for the first time. If the line thus ascertained cuts off a small part of the point contrary to the understanding and belief of the legislature, that department of the government which alone has jurisdiction of town boundaries, will undoubtedly on proper presentation thereof make the proper correction.

The town of Bristol is bounded on the east by the sea; and Bremen was constructed out of the north-east corner of Bristol, together witli certain islands. After defining the southern, western and northern boundaries of the new town, the act of incorporation takes its next departure from the sea shore in the following language : “Thence easterly so as to include Long island and Hog island crossing the bar between Hog island and Loud’s island, thence to the first mentioned bound.”

It is immaterial whether this language be viewed as one roving call or two, the result must be the same. It is evident by reference to the plan, that the' course “easterly” would not “include” the islands named. The inaccuracy of the course must therefore give way to the certainty of the island monuments; and to “include” the islands means the whole of the islands, (Cate v. Thayer, 3 Maine, 71,) i. e., to low water. “Crossing the bar” equi-distant between Hog island and Loud’s island, would “include” more than the whole of the islands, if such point be beyond low water mark. “Crossing the bar,” &c., means passing clear across the entire width of the bar on the line of low water, and when the western edge or limit of the bar on the line of low water is reached, then a straight line from that point “to the first mentioned bound” is the true line. Grant v. Black, 53 Maine, 373, 377. Hovey v. Sawyer, 5 Allen, 554. Bethel v. Albany, 65 Maine, 200.

Appleton, C: J., "Walton, DaNeorth and Peters, JJ., concurred. Libbey, J., having been of counsel, did not sit.