Donnell v. Clark , 19 Me. 174 ( 1841 )

The opinion of the Court was delivered by

WestoN C. J.

If the defendant has title to the beach adjoining his land, it had its origin in the deed of 1667, from William Hammond to William Symonds. That deed purports to convey four or five acres of sea-wall, but one of its bounds, “ so by the sea,” might be sufficient to convey the beach. The deed, however, from the heirs of Symonds, under which the defendant claims, bounds the farm upon the sea-wall. But whatever may have been his title to the beach, adjoining his own land, he has shown none to that, which adjoins the land of the plaintiff. He justifies the act, charged as a trespass, by setting up two. rights by prescription ; the one a right to depasture the beach, embracing that which adjoins the plaintiff’s land, the other that the plaintiff should fence his land against the defendant’s horses and neat cattle running upon and depasturing the beach. The second right of prescription is dependent upon, and ancillary to, the first.

The right, upon which the defendant relies in his brief statement, is what the law denominates a prescription in a que ,estate. If a man prescribes in a que estate nothing is claimable by this prescription, but such things as are incident, appendant or appurtenant to lands; “ for it would be absurd to claim any thing, as the consequence or appendix of an estate, with which the thing claimed has no connection.” 2 Bl. Com. 265; Coke Lit. 113, b. In Cortelyou v. Van Brundt, 2 Johns. 357, Thompson J. says, that prescription will in no case give a right to erect a building upon another person’s land. “ This is a mark of title and of exclusive enjoyment, and it cannot be acquired by prescription.” Title to land requires the higher evidence of corporeal seizin and inheritance. Prescription applies only to incorporeal hereditaments. “ Nc prescription can give title to lands and other corporeal sub* stances.” 2 Bl. Com. 264. The brief statement in this case in terms claims the right to have horses and neat cattle rue upon the beach, but from what precedes it is fairly deducible, that the right intended to be set up was, that they might run there for the purpose of depasturing. If a right of common was claimed, this is consistent with a prescription in a que estate. But if the prescription is for the exclusive usé of the herbage, growing upon land not his own, which the defendant has attempted to make out in proof, it may well be doubted, whether such a right can be claimed by prescription, as incident or appurtenant to another estate..

Who is ,the owner of the beach, adjoining the,plaintiff’s, does not appear, but it does appear, that the public, as far back as memory extends, have been in the exercise and enjoyment of a right of way over the whole beach, and that two roads thereon pass over that part, which adjoins the defendant’s land across which however there are gates. These roads are from time to time repaired by the town, and are to be considered as public highways, notwithstanding the gates. Thomas v. Marshfield, 13 Pick. 240. Whoever may be the owner of the beach, from which the defendant’s horses passed into the plaintiff’s close, it was lying waste, and there is no evidence that it has ever been fenced, or in any manner made available by the owner. The evidence for the defendant is, that he and those from whom he derives his estate, have been accustomed to turn their cattle and horses into their own pasture, and there being no fence on the seaside, they have been accustomed to run upon the beach generally, and upon that part of it, which adjoins the plaintiff’s land. It would seem that this has been rather the consequence of the want of a fence to restrain them, than an evidence of a right in the lands adjoining. The right exercised by the defendant was, that of turning his cattle and horses into his own pasture, the effect was, there being no fence in that direction, they run upon the beach. It does not appear to us, that this was of that adverse and marked character, which is sufficient to prove the proscription, upon which the defendant relies. It was in no degree injurious to the owner of the beach, and therefore not likely to produce any resistance or animadversion on his part.

There is much waste and uncultivated land in this State, upon which cattle belonging to the owners of farms adjacent are accustomed to run. The fact may not be known to the non-resident owner, or if known he has no motive to interfere to prevent it. If there is herbage upon it, which he does not choose to make available to his own use, it does not injure him to have it fed by the cattle of others. If he forbears to resist or to complain, where complaint would be so unreasonable, an accommodation thus enjoyed or suffered, ought not to ripen into a prescriptive right. The establishment of such a principle, would bo productive of extensive mischief. It is only long continued and adverse enjoyment, which is evidence of prescription. The case presented has some analogy to common pur cause de vicinage, whore “ no man can put his beasts therein, but they must escape thither of themselves, by reason of vicinity; in which case one may enclose against the other, though it hath been so used time out of mind, for that it is but an excuse for trespass.” Coke Lit. 122, a; Thomas v. Marshfield, 13 Pick. 240. No right arises in this way; but the party so circumstanced may defend against an action of trespass by the owner of the land, to which the cattle thus escape. He has no immunity in regard to lands contiguous to that upon which they run.

In the opinion of the Court, the defendant has not made out the right on the beach adjoining the plaintiff’s land, for which he prescribes. If he has no such right, he must fail in the incidental and attendant right, to require the plaintiff to fence against his cattle and horses. A prescription to fence at common law, was sustained in behalf of the tenant of the adjoining close, to enforce which he might sue out the writ of curia claudenda. Rust v. Low & al. 6 Mass. R. 90.