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each was laid out to them upon the upland. Where a lost deed of upland is presumed, from long continued possession, it will carry the flats as appurtenant, without proof of actual possession, unless there is evidence showing a separation of the title to the two. If a demandant, in a writ of entry to recover flats, shows, that he, or those under whom he claims, had an actual seisin or possession prior to the tenant's entry, he is entitled to recover, although he may have no other title to the land than such possession, unless the tenant shows a better title in himself, or in those under whom he claims. But, if the owner of a parcel of flats covers the whole of the same, to low-water mark, with a wharf, he does not thereby assert the claim of a right to lay vessels upon the flats of an adjoining proprietor ; and therefore the silence of such proprietor, during the erection of the wharf, is no evidence of his tacit acquiescence in such a claim. An ancient location of flats adjacent to the flats demanded, by description in a deed between third persons, though unaccompanied by an open and notorious possession, will govern the line of the demanded premises, unless the party objecting can prove that the line ought to have been laid out in a different direction.5
1 Lapish v. Bangor Bank, 8 Greenl. (Me.) R. 85. · Valentine v. Piper, 22 Pick. (Mass.) R. 85.
Sparhawk v. Bullard, 1 Met. (Mass.) R. 95. Gray v. Bartlett, 20 Pick. (Mass.) R. 186. • Sparhawk, &c. sup.
By a grant of a parcel of land which is covered by the sea at high water, nothing passes, under the colonial act of 1641, except what is comprehended by the terms of the deed. Thus, where the plaintiff claimed under a right originally from the town, of a thatch bank, and it was found, that the locus in quo was a gully covered by the sea when the tide was up, where no thatch could grow ; it was held, that this gully did not pass by the deed or vote of the town, for nothing more would pass than would justify the terms; and the object was to enable the plaintiff to cut thatch. Nor was it a grant of the upland which would carry with it the flats to the channel. Flats and upland may be separated by an alienation of one without the other; and though ordinarily proof of title in the upland bounding upon tide water, carries with it, under the ordinance, evidence of title in the flats, yet a man may sell his flats without the upland, or vice versa, if he pleases;* as where land is granted as bounded on a way, which way adjoins the seashore, the ordinance and the usage do not apply: In Storer v. Freeman,' the question arose upon the construction of two deeds, whether the flats did or did not pass by the grant, and by Parsons, C. J., who delivered the opinion of the court: “As it appears that the shore mentioned in the first deed is not covered with rock, but forms a beach or flats, we shall for shore substitute flats. The land described will then extend to the flats, and be bounded by the flats. On this substitution, the construction is manifest. The land conveyed extends to the flats, but not over them: and the flats being a bound of the land conveyed, are not a part of it. Thus by a strict and technical construction of the description of the land conveyed, we are satisfied that no part of the flats passed by the first deed.
i Lufkin v. Haskell, 3 Pick. (Mass.) R. 359.
2 Valentine v. Piper, 22 Pick. (Mass.) R. 85; Mayhew v. Norton, 17 Ib. 357; Brown v. Lakeman, 15 Ib. 157.
3 Codman v. Winslow, 10 Mass. R. 146. • Storer v. Freeman, 6 Mass. R. 535.
“ The description in the second deed varies in one respect from the description in the former deed. In the first deed, the course runs to the shore, and thence by the shore. In the second deed, let us substitute flats for shore, and the course will run to a heap of stones by the flats at Elwell's corner, and thence by the flats to the land described in the first deed. Elwell's corner not being located by any evidence or admission, we cannot presume that the first course extended over the flats to that corner; for, especially when, being satisfied that by the technical construction of the first deed the flats were not conveyed, we observe that the boundary line from Elwell's corner runs by the flats to land which passed by that deed. For we cannot presume that this boundary line crossed the flats in its course. Adhering therefore to a technical construction of the two deeds, unassisted by any parole testimony to explain latent ambiguities, we are satisfied that the plaintiff has no title to the flats, derived under the two deeds, or under either of them.” So it is where the grantee is bounded by “high-water mark ;" he is not riparian proprietor, and therefore not entitled to the benefit of the ordinance of 1641 ; that is, his grant does not entitle him to the flats below “high-water mark.” But it is otherwise where the grantee is bounded by the “stream,” or “on the sea or salt water,” 3 in both which cases, the flats adjoining the upland conveyed, are included. In the case of a grant of land, with the flats belonging thereto, the tenant may show what flats belonged to the land, or that the demanded premises were not included in the grant. In an action to recover a parcel of flats to the south of Summer street, in Boston, it appeared that the land on the north, and that on the south side of the street, originally constituted one line of shore, and the several proprietors of the upland were coterminous proprietors of the flats; and there was evidence tending to show that some wharves had been erected in the first century
I Lapish v. Bangor Bank, 8 Greenl. (Me.) R. 83; Dunlap v. Stetson, 4 Mason (Cir, Co.) R. 349.
? Lapish, &c. sup.
of the settlement of the town, in conformity to which the land and flats had ever since been held; and in reference to this evidence, the jury were instructed, that if they should be satisfied that Summer street (which was laid out in 1683) was laid out over the flats, in conformity with the lines of the lots and of the wharves to the northward of that street, it would be evidence to show that the flats to the southward of the street were to be divided by the same course or system. This instruction, it was held, was correct.
A riparian proprietor on a cove, where the sea ebbs and flows, who is entitled, under the colony ordinance of 1611, to the adjoining flats, cannot always claim the flats in the direction of the exterior lines of his upland, but only in the direction towards low-water mark from the two corners of his upland at high-water mark. Thus, in the case of a circular cove, in which there is no natural channel, if a straight line across the mouth of the cove is one hundred rods in length, and the circular line of highwater mark is two hundred, each owner of a lot abutting on the cove is entitled to run his lines from the two corners of his lot in a direction towards lowwater mark, so as to include a parcel of flats, which, at the mouth of the cove, will be one half the width of the lot at high-water mark; and thus each will hold his share in severalty. In this manner, by con
1 Valentine v. Piper, sup.