1

The business department of that court being divided between equity and law, included upon the equity side the investigation of purprestures in connection with the charge and collection of the public revenues, and the recovery and protection of the Crown lands; while the equity jurisdiction in this country corresponds to that administered by the High Court of Chancery in England, and our courts of equity, being incompetent to ascertain the pleasure of the State whether a naked purpresture should be seized, demolished, or arrented, appear to have rarely attempted the exercise of such power, and it has not, therefore, been always treated as a question of public justice. Upon this ground, the Supreme Court of California decided,2 that the district courts of that State had not, by virtue of their equity powers, jurisdiction to order the abatement of a naked purpresture, although the State may of its own motion bring ejectment. In New York it is held that purprestures, like public nuisances, may be abated by the courts upon proceedings on behalf of the people, and that a court of chancery may enjoin any such appropriation of public property to private uses as will injuriously affect the public interest.4 The question whether a structure erected upon the shore of a harbor or of any salt waters is a purpresture is thus of less practical importance in this country than in England; while the question whether such structure interferes with the public right of navigation, and is a nuisance, is equally important in the two countries. This change of view results in some States from statute; in others, from usages which have acquired the force of law.

13 Bl. Com. 44; 4 Inst. c. 13; Attorney General v. Richards, Anst. 606; Attorney General v. Parmeter, 10 Price, 378; Attorney General v. Burridge, 10 Price, 378; Attorney General v. Johnson, 2 Wils. Ch. 101.

2 People v. Davidson, 30 Cal. 379, 392; Courtwright v. B. R. Co., 30 Cal. 585.

3 People v. Vanderbilt, 26 N. Y.

287; 28 N. Y. 396; 38 Barb. 282; People v. New York Ferry Co., 68 N. Y. 71.

4 Ibid.; Attorney General . Cohoes Co., 6 Paige, 133; Delaware Canal Co. v. Lawrence, 2 Hun, 163; People v. Third Avenue Railroad Co., 45 Barb. 63; 30 How. Pr. 121; People v. St. Louis, 5 Gilman, 351.

§ 169. In Massachusetts the colony ordinance of 16471 provided that in all creeks, coves, and other places about and upon salt water, where the sea ebbs and flows, the proprietors of the adjoining lands should have property to the low-water mark, where the sea does not ebb above one hundred rods, and not more wheresoever it ebbs further; provided that such proprietors should not have power to stop or hinder the passage of boats or other vessels to other men's houses or lands. This ordinance conveyed to the owners of the upland flats which were within the bounds of towns already established, but not those previously granted to individuals or appropriated to public uses. It did not in terms extend to other colonies than that of Massachusetts; but it was a settled rule of property throughout the province of Massachusetts, after the union of the colony of Massachusetts with Plymouth and Maine, and also with Nantucket and Martha's Vineyard. It applies to the open seashore as well as to the creeks and arms of the sea,1 and to islands as well as the main land. It does not apply to fresh waters, except where, being pressed back by the influx of the sea, they rise and fall with the tide.

1 Also denominated the ordinance of 1641; 1647 is probably the correct ⚫date. Commonwealth v. Alger, 7 Cush. 53, 67; Commonwealth v. Roxbury, 9 Gray, 451, and note.

2 Boston v. Richardson, 105 Mass. 351; Tappan v. Burnham, 8 Allen, 65; Porter v. Sullivan, 7 Gray, 441; Commonwealth v. Alger, 7 Cush. 70; Berry v. Raddin, 11 Allen, 577.

3 Storer v. Freeman, 6 Mass. 435; Codman v. Winslow, 10 Mass. 146; Parker v. Smith, 17 Mass. 413; Barker . Bates, 13 Pick. 255; Sale v. Pratt, 19 Pick. 191; Mayhew v. Norton, 17 Pick. 357; Commonwealth v. Alger, 7 Cush. 53, 76; Weston v. Sampson, 8 Cush. 347, 354; Commonwealth Roxbury, 9 Gray, 451, and note, p. 523.

v.

4 Sale v. Pratt, 19 Pick. 191; Barker v. Bates, 13 Pick. 255; Commonwealth v. Alger, 7 Cush. 53, 76; Brackett 2. Persons Unknown, 53

It is the law of Maine,7

Maine, 238; Low v. Knowlton, 26
Maine, 128.

6

5 Hill v. Lord, 48 Maine, 83.

Lapish v. Bangor Bank, 8 Maine, 85; Attorney General v. Woods, 108 Mass. 436; ante, § 44.

7 Knox v. Pickering, 7 Greenl. 106; Lapish v. Bangor Bank, 8 Greenl. 85; Emerson v. Taylor, 9 Greenl. 42; Duncan v. Sylvester, 24 Maine, 482; Gerrish v. Union Wharf Co., 26 Maine, 384; Thornton v. Foss, Id. 402; Low v. Knowlton, 26 Maine, 128; Deering v. Long Wharf, 25 Maine, 51, 64; Partridge v. Luce, 36 Maine, 16; Moulton v. Libbey, 37 Maine, 485; Clancey v. Houdlette, 39 Maine, 451; Montgomery v. Reed, 69 Maine, 510; Parker v. Cutler Mill Dam Co., 20 Maine, 353; Moore v. Griffin, 22 Maine, 350; Storer v. Freeman, 6 Mass. 435; Barrows v. McDermott, 73 Maine, 441; Dunlap v. Stetson, 4 Mason, 349, 366.

and, as a usage, it has been recognized as applicable in New Hampshire.1 It did not create a mere easement, privilege, or license, but was a grant of the soil to low-water mark;2 and the State cannot take the flats of a littoral proprietor above that line, or diminish their value by causing them to be permanently flooded or laid bare, except in the exercise of the right of eminent domain, and by making reasonable compensation. One of its chief purposes was to aid commerce, and to give the littoral proprietors convenient wharf privileges; and it is therefore held in Massachusetts that the low-water mark referred to in the ordinance is not the line of ordinary low tide, but that of the lowest ebb, to which it is often necessary to extend wharves in order that they may be enjoyed to the best advantage. The State still owns the flats beyond that line, and the soil which is permanently submerged; and the public may use unenclosed flats within that line for navigation, and may there take fish, as well

1 Clement v. Burns, 43 N. H. 621. See Nudd v. Hobbs, 17 N. H. 527.

2 Austin v. Carter, 1 Mass. 231; Storer v. Freeman, 6 Mass. 435; Codman v. Winslow, 10 Mass. 146; Commonwealth v. Alger, 7 Cush. 53, 7081; Fitchburg Railroad v. Boston & Maine Railroad, 3 Cush. 58; Walker v. Boston & Maine Railroad Co., 3 Cush. 121; Commonwealth v. Boston & Maine Railroad Co., 3 Cush. 43; Porter v. Sullivan, 7 Gray, 443; Commonwealth v. Roxbury, 9 Gray, 451, 499, and note, p. 518; Boston v. Lecraw, 17 How. 432; Rust v. Boston Mill Corp., 6 Pick. 158; Drake v. Curtis, 1 Cush. 395, 412; Gray v. Deluce, 5 Cush. 9; Winslow v. Patten, 34 Maine, 25; Pike v. Munroe, 36 Maine, 309; Parker v. Cutler Mill Dam Co., 20 Maine, 353; Low v. Knowlton, 26 Maine, 128.

3 Ibid.; Boston and Roxbury Mill Corporation v. Newman, 12 Pick. 467, 482; Boston Water Power Co. v. Boston & Worcester Railroad Co., 23 Pick. 360; Ashby v. Eastern Railroad Co., 5 Met. 368; Haskell v. New Bedford,

108 Mass. 208; Drury v. Midland Railroad, 127 Mass. 571. See Walker v. Shepardson, 4 Wis. 486.

4 Sparhawk v. Bullard, 1 Met. 95, 108; Storer v. Freeman, 6 Mass. 435, 438; Commonwealth v. Charlestown, 1 Pick. 180, 183; Commonwealth v. Boston & Maine Railroad Co., 3 Cush. 1; Walker v. Boston & Maine Railroad Co., 3 Cush. 24; Commonwealth v. Roxbury, 9 Gray, 451, 491, and note; Attorney General v. Boston Wharf Co., 12 Gray, 553, 558; Wonson v. Wonson, 14 Allen, 71, 82; Attorney General v. Wood, 108 Mass. 436, 440. In Maine the limit under this ordinance is the ordinary low-water mark, as at common law. Gerrish v. Union Wharf, 26 Maine, 384.

5 Gray . Bartlett, 20 Pick. 186; Boston Mill Co. v. Newman, 12 Pick. 476; Sparhawk v. Bullard, 1 Met. 95; Garey v. Ellis, 1 Cush. 306; Commonwealth v. Roxbury, 9 Gray, 451, 499.

Boston Steamboat Co. r. Munson, 117 Mass. 34; Henshaw . Hunting, 1Gray,203; Commonwealth v.Charlestown, 1 Pick. 180; Drake v. Curtis, 1

those which are embedded in the soil as those which are moving in the water.1 Littoral proprietors may, however, exclude navigation from their own flats by building wharves or other structures to low-water mark, if not prohibited from so doing by the legislature, but have no right to erect structures which materially interfere with the passage of vessels or boats, or cut off the access to the neighboring houses or lands.2 By reclaiming flats, or by fixing stakes upon them, they may also exclude the public from exercising the privileges of fishing and fowling, and of digging for shellfish in the space so occupied. A littoral owner takes the adjoining flats as land and not as an incorporeal right, and his widow is entitled to dower in his flats which are unimproved at his decease. As land does not pass as appurtenant to land, it is established under this ordinance: first, that a writ of entry lies for flats, though unenclosed, when the owner is disseized; second, that trespass quaere clausum fregit lies for an injury to the owner's possession of flats;8 third, that the owner may convey the flats, or any part of them, without the upland, or the upland without the flats, the question of intention depending upon the terms of the

Cush. 395, 413; Boston v. Lecraw, 17 How. 426; Richardson v. Boston, 19 How. 263; 24 How. 188; State v. Wilton, 42 Maine, 9; Montgomery v. Reed, 69 Maine, 510. In the last case, it was held that the public right of navigation over unenclosed flats is not an encumbrance within the common covenant against encumbrances. See, also, Ballard v. Child, 46 Maine, 152. A grant of flats by the State, although by warranty deed with a covenant against incumbrances, to a person who agrees to fill them within a certain time, does not extinguish the public right of navigation until the flats are filled. Boston Steamboat Co. v. Munson, 117 Mass. 34.

1 Proctor v. Wells, 103 Mass. 216; Lakeman v. Burnham, 7 Gray, 437. 2 Boston v. Richardson, 105 Mass. 365; Kean v. Stetson, 5 Pick. 495;

Commonwealth v. Charlestown, 1 Pick. 180; Barker v. Bates, 13 Pick. 255; Deering v. Long Wharf, 25 Maine, 51; Davidson v. Boston & Maine Railroad, 3 Cush. 91.

3 Locke v. Motley, 2 Gray, 265; Ipswich Proprietors v. Herrick, 9 Gray, 529; Low v. Knowlton, 26 Maine, 128.

4 Storer v. Freeman, 6 Mass. 435; Commonwealth v. Alger, 7 Cush. 77. 5 Brackett v. Persons Unknown, 53 Maine, 238.

6 Doane v. Broad Street Association, 6 Mass. 332; Commonwealth v. Alger, 7 Cush. 53, 80; Valentine v. Piper, 22 Pick. 85; Piper v. Richardson, 9 Met. 155.

7 Commonwealth v. Alger, 7 Cush. 53, 80.

8 Ibid.; Austin v. Carter, 1 Mass. 231.

conveyance. If the grant is expressly bounded by the high-water mark, the grantee is not entitled to the benefit of the ordinance.2 But proof of title to the upland is prima facie evidence of title to the flats, and the latter are presumed to pass by a grant of the former if the conveyance does not disclose a contrary intent. The public may pass over such parts of the shore as are bare and unimproved, without hindrance or liability for damages to the littoral proprietors; and the public right of fishery in tide waters includes, as above stated, the right to take fish upon the shore to high-water mark.5 The State, as representing its citizens, or otherwise, has not such an easement or interest in flats appurtenant to or parcel of the upland, and owned by individuals, as requires a jury, in assessing damages for taking the same for a railroad, to deduct its interest from the ascertained value. It is not settled whether the ordinance was a recognition of a previously existing usage. In Massachusetts, a grant upon the sea-shore from the colonial government prior to the ordinance did not extend beyond high-water mark without express words. In Maine it has been held that private conveyances of flats before the ordinance are valid.8

§ 170. In Connecticut the privileges of the littoral proprietors, with respect to the shore, depend upon usage,

1 Lufkin v. Haskell, 3 Pick. 356; Mayhew v. Norton, 17 Pick. 413; Drake v. Curtis, 1 Cush. 395, 413; Porter v. Sullivan, 7 Gray, 447; Hartshorn v. Wright, Peters C. C. 64; Lapish v. Bangor Bank, 8 Greenl. 85; Deering v. Long Wharf, 25 Maine, 64; Treat v. Strickland, 23 Maine, 234; Pike v. Munroe, 36 Maine, 309; Erskine v. Moulton, 66 Maine, 276; Stone r. Augusta, 46 Maine, 137; Knox r. Pickering, 7 Maine, 106. Upon a petition for the partition of land, described as bounded on the sea, the flats as well as the upland are to be divided. Partridge v. Luce, 36 Maine, 16.

2 Lapish . Bangor Bank, 8 Greenl. 85.

3 Valentine v. Piper, 22 Pick. 85; Drake v. Curtis, 1 Cush. 395; 2 Dane Abr. 691, 699; 9 Gray, 524; Charlestown v. Tufts, 111 Mass. 348; Moore v. Griffin, 22 Maine, 350; Nickerson v. Crawford, 16 Maine, 245; Winslow v. Patten, 34 Maine, 25; Pike v. Munroe, 36 Maine, 309.

4 State v. Wilson, 42 Maine, 9. 5 Moulton v. Libbey, 37 Maine, 472; Weston v. Sampson, 8 Cush. 347.

6 Walker v. Boston & Maine Railroad, 3 Cush. 1.

7 Commonwealth v. Roxbury, 9 Gray, 451, and note; Boston v. Richardson, 105 Mass. 351.

8 Hill v. Lord, 48 Maine, 83.