« ՆախորդըՇարունակել »
title thereto may be lost by disseisin,1 and a title to the upland, acquired by long-continued possession, carries the adjoining flats as appurtenant or parcel without proof of actual possession, unless there is evidence that the title to the upland has been separated from that to the flats.2 A disseisin of flats is made by a continued, exclusive, and adverse occupation thereof for the statutory period, usually twenty years ; as by enclosing them with a boom, which rests thereon, when the tide is out, under a claim of title to the flats,3 by enclosing a small pond with a wall, and the use of the same for the purpose of a tide-mill and for storing logs;4 by filling them up and using them for a highway,5 or erecting a wharf thereon and using the adjoining flats for mooring vessels,6 or maintaining fences of stakes or twigs, erected for fish weirs.7 The habitual and continued taking of wreck or seaweed from unenclosed flats, and licensing others to do so, or cutting grass thereon, under a claim of right, may or may not, it seems, establish a disseisin according to the circumstances of the case.8 But sailing over unimproved flats when covered by the tide, or anchoring upon them, or using
1 Wheeler v. Stone, 1 Cush. 313; Boston v. Richardson, 105 Mass. 351; Clancey v. Houdlette, 3!) Maine, 451; Treat v. Chipman, 36 Maine, 34.
» Valentine v. Piper, 22 Pick. 85; Porter v. Sullivan, 7 Gray, 441, 445; Commonwealth v. Alger, 7 Cush. 53, 80; Sparhawk v. Bullard, 1 Met. 95; Thornton v. Foss, 26 Maine, 402; Brackett v. Persons Unknown, 53 Maine, 228, 238. As one tract of land cannot pass as an appurtenance to another tract, the flats go with the upland as parcel rather than as appurtenant. Ammidown v. Granite Bank, 13 Allen, 285, 291; Central Wharf v. India Wharf, 123 Mass. 501, 560.
3 Stetson v. Veazie, 11 Maine, 408.
'Tufts v. Charlestovn, 117 Mass. 401.
'Tyler v. Hammond, 11 Pick. 193. It was also held in Tyler r. Hammond that the lessee of an easement in a dock may disseise the lessor by taking
exclusive possession and holding against the hitter's will, and that an easement docs not become merged or lost by a disseisin or wrongful claim of title against the owner of the servient tenement. Stetson v. Veazie, 11 Maine, 408; Locks & Canals v. Nashua Railroad Co., 104 Mass. 1, 8.
• Wheeler r. Stone, 1 Cush. 313; Rust v. Boston Mill Corporation, 6 Pick. 158; 9 Gray, 524; Hamblet v. Francis, 4 Mass. 75; Treat v. Chipman, 35 Maine, 34; State r. Wilson, 42 Maine, 9.
7 Treat v. Chipman, 35 Maine, 34.
8 Hale, De Jure Maris, c. 6; Hargrave's Law Tracts, 27; Hall on the Seashore (2d ed.), 32; East Hampton v. Kirk, 84 N. Y. 216; 08 N. Y. 459; Commonwealth v. Roxbury, 9 Gray, 451, 499; Thacher v. Cobb, 5 Pick. 423; Tappan v. Burnham, 8 Allen, 65; Thornton v. Foss, 26 Maine, 402; Clancey v. Houdlette, 39 Maine, 467.
them for the purpose of approaching a wharf from the sea, or taking shell-fish therefrom, being the exercise of a public right, is not such possession as constitutes a disseisin.1 So a grant by the State of a several fishery in a public navigable river cannot be presumed from the uninterrupted use and enjoyment of such fishery by an individual in common with others for more than twenty years.2 The mere user of the seashore by the turning on of cattle, although continued for a period of sixty years, is not such an act of ownership as to raise a presumption of title in the owner of the cattle, without proof of the exercise of the right in the face of opposition on the part of the person interested in resisting the right, or of knowledge and acquiescence on his part, inasmuch as the seashore is property of such a nature that it cannot easily be protected against intrusion, and would not usually be worth the trouble and expense of fencing.3 In case of a mixed possession, the seisin of flats follows the legal title;4 and, if the claim is doubtful in extent, or not to the entire parcel, a title by disseisin is limited by the actual occupation, and is not to be extended by construction.5 If the individual inhabitants of a town use land upon the seashore as a landing place, this does not support, but is adverse to, a claim of possession by the town in its corporate capacity,6
■Drake v. Curtis, 1 Cush. 395; Pick. 171; Wheeler v. Stone, 1 Cush. Curtis v. Francis, 9 Cush. 466; Brim- 817; I) Gray, 523; Barnstable v. mer v. Long Wharf, 5 Pick. 139; Thacher, 3 Met. 239; Tappan v. Gray Bartlett, 20 Pick. 192; Wes- Burnham, 8 Allen, 65, 70; Coleman ton v. Sampson, 8 Cush. 347; Porter v. San Raphael Road Co., 49 Cal. 517; r. Sullivan, 7 Gray, 441; Tracy t>. Stearns v. Woodbury, 10 Met. 27. Norwich Railroad Co., 39 Conn. 382; 5 Boston v. Richardson, 105 Mass. Boulo u. New Orleans Railroad Co., 55 372; Kennebeek Purchase v. Springer, Ala. 480; Deering v. Long Wharf, 25 4 Mass. 416; Boston Mill CorporaMaine, 65. tion v. Bulflnch, 6 Mass. 229; Brown
* Delaware Railroad Co. v. Stump, v. Nye, 12 Mass. 285; Brimmer v.
8 Gill & J. 479. Long Wharf, 6 Pick. 131; Porguand
1 Attorney General v. Chambers, v. Smith, 8 Pick. 272; Wheeler v.
4 De Gex & J. 55; Thomas v. Marsh- Stone, 1 Cush. 313, 317, 322; Allen v.
8eld, 10 Pick. 364; 13 Pick. 240; Holton, 20 Pick. 458; AVatkins v.
Donnell r. Clark, 19 Maine, 174, 183. Holman, 16 Peters, 25, 55; Thornton
4 Codman v. Winslow, 10 Mass. v. Foss, 26 Maine, 402. 151; Hamblet v. Francis, 4 Mass. 75; 0 Green v. Chelsea, 24 Pick. 71. In
Brimmer v. Long Wharf, 5 Pick. 136; Boston v. Richardson, 105 Mass. 351,
Rust v. Boston Mill Corporation, 0 evidence was held admissible, in supalthough the use and enjoyment of the landing place by the inhabitants of other towns, as well as by those of the town in which it is situated, would be sufficient to establish a right by prescription in all the inhabitants of the State.1 So the acts of such individual inhabitants, during a long period of time, in taking seaweed from a beach for the purpose of manuring their lands, is not competent evidence of a lost grant to the town from the owners of the beach.2 Perambulations are not evidence against the State that a town possesses the title to flats within its limits;3 nor do votes of a town, which grant annually to individuals the right to take shell-fish from beaches within its limits for a specified price paid to the town, and which provide for the preservation of the beaches, tend to establish in the town an absolute title to the beaches.4
§ 38. In Corfield v. Coryell,6 the question was whether a statute passed by the legislature of New Jersey, which prohibited any person, not an actual resident of the State, raking or gathering clams, oysters, or shells in any of the rivers, bays, or waters in the State, was repugnant to the provision of the constitution of the United States that " the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States."6 It was held that the control of fisheries was not ceded to the United States by the commerce clause of the constitution; that this
port of a claim of title by disseisin, in favor of a city, that it had maintained a fish-house and engine-house at the end of a highway toward the sea, and had repaired a eapsill standing on a stone wall at the head of the dock; with respect, at least, to the land covered by the buildings.
1 Coolidge v. Learned, 8 Pick. 604; Commonwealth v. Newbury, 2 Pick. 51. Reputation is evidence upon the question whether a landing place is public or private property, and there is no distinction between the evidence of reputation to establish mid to dis
parage the public right. Drinkwater v. Porter, 7 C. & P. 181; Rex v. Sutton, 3 N. & P. 009.
! Sale r. Pratt, 19 Pick. 191.
3 Commonwealth p. Roxbury, 9 Gray, 457. But see Hale, De Jure Maris, c. 4; Ilargrave's Law Tracts, 27.
'Lynn v. Nahant, 118 Mass. 433; West lio.xburv r. Stoddard, 7 Allen, 158.
»4 Wash. C. C. 371; Bennett v. Boggs, 1 Bald. C. C. 72; Thompson v. Whitman, 18 Wall. 457.
8 Art. 4, § 2.
is a right of property vested in certain individuals, or in the State for the use of its citizens; and that the provision just quoted did not amount to a grant of the common property of the State to the citizens of all the other States. In the case of Smith v. Maryland,1 in the Supreme Court of the United States, the question was whether a vessel, which was owned by a citizen of Pennsylvania, and was enrolled and licensed for the coasting trade under an act of Congress, was lawfully condemned to he forfeited to the State of Maryland for the violation of an act of that State designed to protect the growth of oysters in its waters by prohibiting the use of particular instruments in dredging them. The court expressed no opinion upon the questions considered in Corfield v. Coryell, but held that it was within the legislative power of the State to interrupt the voyage and inflict the forfeiture of a vessel enrolled and licensed under the laws of the United States for a disobedience, by those on board, of the law in question. In the recent case of McCready v. Virginia,2 the same court held, with respect to a statute of Virginia, similar in its provisions to that considered in Corfield v. Coryell,3 that the power over fisheries had not been granted to the United States, and that the right to gather oysters is a right of property, which, though common to all the citizens of the particular State, is not a general privilege or immunity of citizenship. The same has frequently been held in the State courts.4 In Dunham v. Lamphere,5 in Massachusetts, the defendant was a citizen of Rhode Island, and had a fishing license under the laws of the United States, and the action was brought to recover a penalty imposed for the violation of a statute of Massachusetts, which made it unlawful for any person to take fish with seines within one mile from the
1 18 How. 71; Thompson v. Whit- State r. Medbury, 3 R. I. 138; New
man, 18 Wall. 457; The Ann, 24 Alb. England Oyster Co. r. McGarvcy, 12
L. Journ. 515. R. I. 385; Crandall v. State, 10 Conn.
* 94 U. S. 391; McCready r. Com- 340; Dunham v. Lamphere, 3 Gray,
monwealth, 27 Gratt. 085, 082; Mar- 208; People r. Coleman, 4 Cal. 40;
tin r. Waddell, 10 Peters, 307. Slaughter r. Commonwealth, 13 Gratt.
'4 Wash. C. C. 371, cited above. 707 ; Johnson v. Drummond, 20 Gratt.
4 Haney v. Compton, 30 N. J. L. 419. 507 ; Day r. Compton, 37 N. J. L. 514; 4 3 Gray, 208. shores of Nantucket and other small islands. It was held that this law, which applied to the coast fisheries in the outer sea as well as in the waters within the islands, was not repugnant to the Federal Constitution. This decision was prior to the Massachusetts statute, which extended the territorial jurisdiction of the State one marine league seaward from its seashore at low-water mark,i and the statute declared to be constitutional was treated as making the sea within a mile from the islands a part of the territory of the State.2 It follows from these authorities that the coast fisheries, as well as those in inland tide waters, and the taking of both shell and floating fish, are under the control of the respective States, and that each State may lawfully exclude the citizens of other States from these privileges.
§ 39. The United States is the source of title to lands within its limits which are not within the boundaries of the States, and the new States, being admitted into the Union upon an equal footing with the original States, become entitled to all the rights and privileges possessed by the latter.3 They have the same rights, sovereignty, and jurisdiction, as to the soil of navigable waters, as the older States;4 and neither the right of the United States to
i Mass. St. 1850, c. 0; Gen. Sts. and, in ascertaining the line of shore, c. 1, § 1; Ante, § 16. this limit does not follow each narrow
2 Shaw, C. J., here said (3 Gray, inlet or arm of the sea; hut when the 269, 270): "The fact of taking fish inlet is so narrow that persons and by a seine within a mile of the shore objects can be descried across it by of Gravel Island, which constitutes the naked eye, the line of territorial part of the territory of the State, after jurisdiction stretches across from the act went into operation, is plainly one headland to the other of such contrary to the letter of the statute, inlet."
and leaves the only question to be, 3 Pollard c. Hagan, 3 How. 212. whether the statute itself has the 4 Pollard v. Hagan, 3 How. 212;
force of law. Being within a mile of Goodtitle v. Kibbe, 9 How. 471; Hal
the shore puts it beyond doubt that it lett v. Beebe, 13 How. 25; Withers v.
was within the territorial limits of the Buckley, 20 How. 84; St. Clair Co. v.
State, although there rm>ht in many Lovington, 23 Wall. 46,68; Mumford
cases be some difficulty in ascertaining v. Wardwell, 0 Wall. 423, 436; Weber
precisely where that limit is. We v. Harbor Commissioners, 18 Wall. 57;
suppose the rule to be that these lim- Friedman v. Goodwin, 1 McAll. 142;
its extend a marine league, or three Teschemacher v. Thompson, 18 Cal.
geographical miles, from the shore; 11; Gunter v. Geary, 1 Cal. 402;