Cutts v. Hussey

The case was continued for advisement, and the opinion of the Court was subsequently drawn up by

Weston C. J.

We do not, upon examination, perceive any sufficient evidence, that the title to the locus in quo was in the town of Biddeford. It appears, that more than an hundred years ago, Pendleton Fletcher conveyed to Bachelder Hussey the one half of Pendleton’s neck, the south side of which is the beach in question, with the marsh and beach. Soon after, Pendleton conveyed to his son the remaining half, as far as Booth’s mill, which •included the locus in quo. And it appears that the plaintiff, who owns a part of the land derived from the same title, has claimed and exercised over the contiguous beach all the ownership, of which the nature of the property is susceptible. Lots of land were located by the town surveyor, for several succeeding years after 1720, but whether any residuum remained to the town does not appear.

In the division of Bachelder Hussey’s estate in 1764, certain thatch beds, on the neck, were set off to the heirs by lines, which might exclude the beach, but this did not divest the heirs of their right to any portion of the beach, of which their ancestor died seized. The right of the town is principally based upon a Provincial statute of 1749, prohibiting cattle from running at large on Winter-harbor beach, and charging a committee, to be appointed by the town of Biddeford, with the execution of this law. Some public object was doubtless intended to be promoted by ibis regulation. It may have been for the better security of tbe sea wall, which it may have been apprehended might be injured, by the free range of cattle over and upon it. This was within the scope of legislative power; especially as it does not appear, that any valuable private right was impaired by it. The committee, although elected by the town, acted under public authority, in the discharge of the duties confided to them. The statute certainly gave to the town no title to the beach, nor can we regard it as evidence, that it was their property at the time of its passage. The statute of 1749, expired by its own limitation in 1771, and has not since been renewed. And although the town have continued to choose the committee, required by that law, ever since, and it was proved at the trial, that in a few instances individuals had submitted to their authority, we are unable to discover any legal ground, upon which it can be supported, after the expiration of the statute.

Besides, we do not see how the locus in quo can be considered as a part of the beach. It was above high water mark, and within the sea wall. By a beach, is to be understood the shore or strand; and it has been decided, that the seashore is the space between high and low water mark. Storer v. Freeman, 6 Mass. R. 435.

Bat although the locus in quo was not in the highway, or on any common belonging to the town, it is insisted, that being unin-closed ground, it was a common of the town, within the true intent and meaning of the statute of 1834, c. 137, under which the defendant justifies. His counsel has, with great industry and ingenuity, gone into an examination of a wide range of statutes in Massachusetts, Colonial, Provincial, and under the Commonwealth; together with some passed in our own State. They relate to common fields, to lands lying common and unenclosed, to cattle going at large generally, or going at large on the highways and commons. We have examined them with care; but they do not, in our judgment, justify the conclusion, that by “ commons of the town,” in the statute of 1834, can be understood the lands of individuals, lying common and unenclosed: , It would subject to the penalty of the statute, the cattle of the owner of the land, or the cattle of others, put there by his permission. And if there without permission, it is an invasion of a private right, rather than of a public regulation. That regulation would be sufficiently vindicated by seizing them, when they stray upon the highways, or commons properly so called. In an earlier stage of the settlement of the country, large tracts belonging to towns, may have remained unappropriated and undivided, to which this term might properly be applied.

As to any right to seize and impound the cattle in controversy, damage feasant, existing at common law, it is expressly abrogated by the statute of 1834, c. 137, when the land is unenclosed. Gooch v. Stephenson, 13 Maine R. 371.

With regard to the title of the town, it does not appear that any facts weye in controversy, upon which it depended. Whether upon the evidence exhibited, it was legally made out, was a question of law, which was properly decided by the presiding Judge.

Exceptions overruled.