Treat v. Chipman , 35 Me. 34 ( 1852 )

Shepley, C. J.

—In the decided cases there has not been a perfect agreement respecting a rule to be applied to apportion flats to the owners of the adjoining uplands. There does not appear to have been any difference of opinion, that the Colonial Ordinance of 1641, makes no provision for it ,• that the intention was to have the flats apportioned justly and equally to the riparian proprietors ; that this cannot ordinarily be effected by an extension over the flats of the lines bounding the uplands.

In the case of Emerson v. Taylor, 9 Greenl. 42, this Court presented a rule believed to be generally applicable, which would effect an equal and just apportionment; and it has been affirmed in the cases of Treat v. Strickland, 23 Maine, 234, and of Kennebec Ferry Co. v. Bradstreet, 28 Maine, 374.

The rule adopted in Massachusetts in the case of Rust v. The Boston Mill Corporation, 6 Pick. 158, appears to have been recognized in the cases Sparhawk v. Bullard, 1 Metv. 95; Ashby v. Eastern R. R. Co. 5 Metc. 368, and Piper v. Richardson, 9 Metc. 155. While a different rule was deemed to be necessary to effect the same purpose in the cases of Dawes v. Prentice, 16 Pick. 435; Valentine v. Piper, 22 Pick. 85; Walker v. The Boston & Maine R. R. 3 Cush. 1, and Gray v. Deluce, 5 Cush. 9.

In the last named case the rale established by the case of Emerson v. Taylor, is alluded to with the remark that, “ in none of the cases, which we have been called upon to consider, have we found that rule practicable for want of a full survey of all the connected flats in and about Boston.” While such has been the state of facts presented in those cases, there has not hitherto been found any serious difficulty in the application of that rule to the flats found in the larger rivers and coves of this State. It has, however, been at all times admitted, that there may arise cases, in which the rule could not be applied.

In the case of Valentine v. Piper, after alluding to the difficulty of establishing a practical rule, it is said, “ but after possession has been long taken and locations originally made without regard to any fixed rule, have come to be settled and fixed by actual and continued possession, the question is much more complicated. Where enough has been done to raise a presumption, that lines have been settled by mutual agreement, considerable force ought to be attributed to actual possession.”

Such a settlement of lines upon their flats may be inferred from the long continued occupation of them by these parties in the manner described in their agreed statement.

The doctrine of disseizin, by adverse occupation, was considered to be somewhat extended by the provisions of the statutes of the year' 1821, c. 47, <§> 5, c. 62, <§> 6. It having been stated in many judicial opinions, that an adverse possession commencing without a recorded title could operate as a disseizin only to the extent of an actual and exclusive occupation exhibited by fences, cultivation or some act equivalent to a pedis possessio, these statute provisions were framed to declare, that a possession, occupation or improvement, open, notorious and exclusive, comporting with the ordinary management of similar estates in the possession or occupancy of those, who have title thereto, should be sufficient evidence of disseizin. These enactments were decided to be inoperative so far, as they might act retrospectively, while it was admitted, that they might act prospectively without any violation of the provisions of the constitution. Proprietors of Kennebec Purchase v. Laboree, 2 Greenl. 275. By an additional Act approved on Feb. 25, 1825, the effect of this decision was intended to be obviated by a limitation of those enactments to actions commenced after the fifteenth day of March, then next. The substance of them was retained on a revision of the statutes, c. 145, <§. 42; and it was admitted by this Court, that the provision might properly operate to effect the rights of parties. Tilton v. Hunter, 24 Maine, 29.

It is admitted by the agreed statement, that the parties and those under whom they claim, have occupied these flats in conformity to lines to be ascertained by an extension over them of the lines bounding their uplands for more than fifty years, “ by building fish weirs and occupying them during the usual season for talcing fish annually j” and that such occupation by each has been exclusive and uninterrupted. It must necessarily have been adverse, for each claimed to occupy the flats by an extension over them of his title to the upland. It was of course open and notorious, for it was within the sight and knowledge of the respective occupants.

A “ weir” is understood to be formed by a fence of stakes or twigs erected upon flats covered with water and remaining during the whole year, although used for taking fish only during the fishing season. Such fences would seem to exhibit the exercise of a claim to be the owner of the flats and a possession of them almost as clearly as by driving piles or by erecting a wharf.

The width of the respective lots is not named in the agreed statement. Nor does it state what portion of the flats was covered by the weirs. It is probable, that a small portion only of each lot was so covered, but the agreed statement fully authorizes the conclusion, that the lot claimed by each upon the flats was clearly designated by them; as clearly as their uplands would have been by monuments erected upon the line dividing their lots and recognized by the respective partios. If such facts should be regarded as insufficient to establish such a possession as would by the provisions of the statute amount to a disseizin, there can be little doubt, that they should be regarded as sufficient to authorize the inference, that the flats had been apportioned to each upland lot according to their long continued and exclusive occupation.

The plaintiff having no legal right to enter upon the fiats, to which the defendant had thus acquired a title, can maintain no action for a removal of that part of the weir erected on those flats. Plaintiff nonsuit.

Wells, Howard, Rice, Hathaway and Appleton, J. J., concurred.