Merrick, J.
The demanded premises consist.of a parcel of flats lying westerly of B Street in South Boston. Two ques[527]*527tians arise upon the facts reported by the judge who presided at the trial: first, whether the demanded premises, at the time of the conveyance from Mr. and Mrs. Denny,belonged to her; and, secondly, if they did, whether they were included in the description in that deed and passed by it to the demandant.
It appears from the report and the plan accompanying it, that the upland conveyed by said deed to the demandant was a pari of a parcel of land known as the Bird lot; and that the Bird lot was a small part of the tract of land or territory which was formerly included within the limits of the town of Dorchester, and which by the statute passed March 6th 1804 was annexed to the then town of Boston. St. 1803, c. 111. The Bird lot was then owned by said Harriet and others as tenants in common, and the whole of it, together with other land lying both to the east and west of it and owned by other persons, was bounded upon the cove which is mentioned and described in the case of Gray v. Deluce, as reported in 5 Cush. 9. - All those owners were entitled under the ordinance of 1647 to their proportions respectively of the flats adjoining the upland which belonged to them. Commonwealth v. Alger, 7 Cush. 67. And it is admitted by the tenants that upon a division of the flats within the cove, according to the rule established by the decision in the above named case of Gray v. Deluce, the demanded premises would be appurtenant to the tract of upland conveyed to the demandant, and would therefore in such case belong to him. It is upon the application and enforcement of this rule that he insists that his action to recover possession of it may be maintained.
But it is obvious that the only effect of the ordinance of 1647 is to transfer the title to the flats from the State to the owner of the adjoining upland. The land of which they consist is real estate, and of course subject to all the laws by which that species of property is held, controlled and regulated. It may be improved, sold, divided, and conveyed in separate and distinct parcels, like any other land, at the pleasure of the owner; and consequently the several owners of upland bounded on the sea have the right and power, by proper legal instruments and conveyances,o establish such lines of division between their [528]*528respective portions of the flats as they may find to be for their mutual advantage. The tenants contend that, in the exercise of this right, the proprietors of the upland bordering upon the part of the cove in question did, long before the conveyance to the demandant, make a division of the flats to which they were severally entitled, and established the boundaries of their respective shares, so that their title thereto was no longer to be ascertained by applying the rule laid down in the case of Gray v Deluce. They produce no deeds of such partition; but they rely upon proof of facts and circumstances from which they insist that such deeds, or grants to such effect, must be presumed to have been duly made and executed.
By the St. of 1803, c. 111, a large territory, consisting in part of lands belonging to many different owners, and bordering upon the sea, was annexed to the town of Boston; and the selectmen were authorized to lay out such streets and lanes through the whole of said territory, as in their judgment would be for the common benefit of the town and of the proprietors of the land. In the discharge of this duty, they were enjoined to pay reasonable attention to the wishes of the proprietors ; but no compensation was to be made to the owners for lands taken for such purposes, nor were the streets to be completed sooner than the officers of the town should deem it expedient to do so. In pursuance of the authority thus conferred upon them, the selectmen did on the 27th of February in the ensuing year, having first conferred with the proprietors on -the subject, lay out streets over all parts of the common territory, according to a plan drawn by Mather Withington. Wright v. Tukey, 3 Cush. 290. Henshaw v. Hunting, 1 Gray, 202. This location was obviously the result of a mutual agreement between the officers of the town and the proprietors of all the lands over which it extended, and indicates, certainly to some extent, the views and purposes of the latter in relation to the division, partition and appropriation of their respective estates.
Five years afterwards all the tenants in common of the Bird lot, except Harriet J.- G. Denny, instituted legal proceedings for its partition. The report of the commissioners making the [529]*529division, in pursuance of an adjudication to that effect, was returned into court in April 1810, and was there accepted and entered of record. From the whole of this report the implication is of the strongest kind, that none of the petitioners at that time made any claim or set up any title to any land or flats lying westerly of the line of B Street; but on the contrary that they did expressly claim all the flats adjoining their upland, included within lines drawn from points at the exterior limits on the shore, parallel to B and C Streets, and carried out to low water mark. And the partition was made accordingly. The commissioners, recognizing the location of streets in South Boston made by the selectmen in 1804, as delineated on the plan of Mather Withington of that year, make a subsequent plan by the same surveyor, corresponding with that one, a part of their description of the several lots set out in severalty to the tenants in common of the Bird lot. All the streets which extended to the sea were, in express terms contained in the location made by the selectmen, continued upon the flats into the sea as far as the right of the several proprietors extended; that is, to low water mark. Henshaw v. Hunting, 1 Gray, 206. And each of the lots bounded on the cove were in like manner, in the partition made by the commissioners, continued to the same line. Thus the first lot, which was assigned to Perkins, was bounded on the one side by B Street, and on the other by a line drawn from a point on Second Street eighty two and one half feet distant from B Street and parallel to it to low water mark. The next adjoining lot was assigned to Mason, and was bounded by Second Street, by low water mark, and by lines parallel to B Street. All the other lots assigned to several petitioners tenants in common, were described as bounded by like parallel lines. This whole partition was therefore necessarily predicated upon the assumption that the owners of the Bird lot had no interest in, or right to, any of the flats situated westerly of B Street. The report of the commissioners making this partition having been returned into court and duly accepted, the judgment rendered upon it is conclusive upon all the parties to it.
It appears that Perkins and Mason subsequently made convey[530]*530anees of the two lots assigned to them, bounding on the cove; and that by intermediate conveyances these lots became the property of Cains, who was the owner of them in 1845, when Mr. and Mrs. Denny made their deed to the demandant. All the other tenants, who were parties to the legal proceedings, as far as anything is known upon the subject, acquiesced in the division, and it is not shown, nor does it in any way appear, that either Mrs.
Free access — add to your briefcase to read the full text and ask questions with AI
Merrick, J.
The demanded premises consist.of a parcel of flats lying westerly of B Street in South Boston. Two ques[527]*527tians arise upon the facts reported by the judge who presided at the trial: first, whether the demanded premises, at the time of the conveyance from Mr. and Mrs. Denny,belonged to her; and, secondly, if they did, whether they were included in the description in that deed and passed by it to the demandant.
It appears from the report and the plan accompanying it, that the upland conveyed by said deed to the demandant was a pari of a parcel of land known as the Bird lot; and that the Bird lot was a small part of the tract of land or territory which was formerly included within the limits of the town of Dorchester, and which by the statute passed March 6th 1804 was annexed to the then town of Boston. St. 1803, c. 111. The Bird lot was then owned by said Harriet and others as tenants in common, and the whole of it, together with other land lying both to the east and west of it and owned by other persons, was bounded upon the cove which is mentioned and described in the case of Gray v. Deluce, as reported in 5 Cush. 9. - All those owners were entitled under the ordinance of 1647 to their proportions respectively of the flats adjoining the upland which belonged to them. Commonwealth v. Alger, 7 Cush. 67. And it is admitted by the tenants that upon a division of the flats within the cove, according to the rule established by the decision in the above named case of Gray v. Deluce, the demanded premises would be appurtenant to the tract of upland conveyed to the demandant, and would therefore in such case belong to him. It is upon the application and enforcement of this rule that he insists that his action to recover possession of it may be maintained.
But it is obvious that the only effect of the ordinance of 1647 is to transfer the title to the flats from the State to the owner of the adjoining upland. The land of which they consist is real estate, and of course subject to all the laws by which that species of property is held, controlled and regulated. It may be improved, sold, divided, and conveyed in separate and distinct parcels, like any other land, at the pleasure of the owner; and consequently the several owners of upland bounded on the sea have the right and power, by proper legal instruments and conveyances,o establish such lines of division between their [528]*528respective portions of the flats as they may find to be for their mutual advantage. The tenants contend that, in the exercise of this right, the proprietors of the upland bordering upon the part of the cove in question did, long before the conveyance to the demandant, make a division of the flats to which they were severally entitled, and established the boundaries of their respective shares, so that their title thereto was no longer to be ascertained by applying the rule laid down in the case of Gray v Deluce. They produce no deeds of such partition; but they rely upon proof of facts and circumstances from which they insist that such deeds, or grants to such effect, must be presumed to have been duly made and executed.
By the St. of 1803, c. 111, a large territory, consisting in part of lands belonging to many different owners, and bordering upon the sea, was annexed to the town of Boston; and the selectmen were authorized to lay out such streets and lanes through the whole of said territory, as in their judgment would be for the common benefit of the town and of the proprietors of the land. In the discharge of this duty, they were enjoined to pay reasonable attention to the wishes of the proprietors ; but no compensation was to be made to the owners for lands taken for such purposes, nor were the streets to be completed sooner than the officers of the town should deem it expedient to do so. In pursuance of the authority thus conferred upon them, the selectmen did on the 27th of February in the ensuing year, having first conferred with the proprietors on -the subject, lay out streets over all parts of the common territory, according to a plan drawn by Mather Withington. Wright v. Tukey, 3 Cush. 290. Henshaw v. Hunting, 1 Gray, 202. This location was obviously the result of a mutual agreement between the officers of the town and the proprietors of all the lands over which it extended, and indicates, certainly to some extent, the views and purposes of the latter in relation to the division, partition and appropriation of their respective estates.
Five years afterwards all the tenants in common of the Bird lot, except Harriet J.- G. Denny, instituted legal proceedings for its partition. The report of the commissioners making the [529]*529division, in pursuance of an adjudication to that effect, was returned into court in April 1810, and was there accepted and entered of record. From the whole of this report the implication is of the strongest kind, that none of the petitioners at that time made any claim or set up any title to any land or flats lying westerly of the line of B Street; but on the contrary that they did expressly claim all the flats adjoining their upland, included within lines drawn from points at the exterior limits on the shore, parallel to B and C Streets, and carried out to low water mark. And the partition was made accordingly. The commissioners, recognizing the location of streets in South Boston made by the selectmen in 1804, as delineated on the plan of Mather Withington of that year, make a subsequent plan by the same surveyor, corresponding with that one, a part of their description of the several lots set out in severalty to the tenants in common of the Bird lot. All the streets which extended to the sea were, in express terms contained in the location made by the selectmen, continued upon the flats into the sea as far as the right of the several proprietors extended; that is, to low water mark. Henshaw v. Hunting, 1 Gray, 206. And each of the lots bounded on the cove were in like manner, in the partition made by the commissioners, continued to the same line. Thus the first lot, which was assigned to Perkins, was bounded on the one side by B Street, and on the other by a line drawn from a point on Second Street eighty two and one half feet distant from B Street and parallel to it to low water mark. The next adjoining lot was assigned to Mason, and was bounded by Second Street, by low water mark, and by lines parallel to B Street. All the other lots assigned to several petitioners tenants in common, were described as bounded by like parallel lines. This whole partition was therefore necessarily predicated upon the assumption that the owners of the Bird lot had no interest in, or right to, any of the flats situated westerly of B Street. The report of the commissioners making this partition having been returned into court and duly accepted, the judgment rendered upon it is conclusive upon all the parties to it.
It appears that Perkins and Mason subsequently made convey[530]*530anees of the two lots assigned to them, bounding on the cove; and that by intermediate conveyances these lots became the property of Cains, who was the owner of them in 1845, when Mr. and Mrs. Denny made their deed to the demandant. All the other tenants, who were parties to the legal proceedings, as far as anything is known upon the subject, acquiesced in the division, and it is not shown, nor does it in any way appear, that either Mrs. Denny, who was the sole respondent in that case, or the owners of the land west of B Street, ever made any objection, or set up any claim in opposition to or inconsistent with it. This uniform acquiescence in the partition, for a period of at least thirty five years, by all parties interested in the Bird estate, and the positive action in conformity to it by some of them, without any resistance or objection made to it by proprietors of the adjoining upland, would seem to be amply sufficient to justify the presumption that before it was made the several proprietors of the flats lying within that part of the cove had, by proper instruments of release and quitclaim, established B Street as the boundary and line of division between the land of the owners of the Bird lot on the one side and the owners of the upland lot adjoining it on the west. And giving the just legal effect to this presumption, it becomes apparent that the rule established by the decision in the case of Gray v. Deluce is no longer to be resorted to, in order to ascertain the rights of the parties; but they are all bound by the convention into which it is to be considered that they have voluntarily entered. In this view, it is also apparent that no part of the flats west of B Street belonged to Mrs. Denny when she made her deed to the demandant, and consequently that the demanded premises could not have been conveyed to him by it.
But whatever may be assumed to have been her right or interest in the flats west of B Street, whether as tenant in common or as sole owner, in consequence of that land having been left undivided'under the proceedings for partition, it is very clear, upon a proper construction of the deed, that the demandant acquired no title thereby to any portion of it. The deed purports to convey but one single parcel of laud. It is de[531]*531scribed as “ a certain piece of land and flats,” bounded on the west by the land of Cains, and by a line parallel to B Street and at the distance of one hundred and sixty five feet from it, and by certain clearly designated lines on its other sides. This description is exact, and applies in explicit terms as well to the flats as to the upland. The true meaning of the further expression “ all the flats to said land belonging,” is, that the flats are contiguous and attached to the upland, the whole constituting one entire and compact parcel. Nor is the grant enlarged by the further recital in the deed, that the grantors, without intending to enter into any covenants of warranty as to the courses of the side lines over the flats, meant to sell and convey the described upland “ together with all the flats to said Harriet J. G. Denny belonging, situated on the westerly side of a line beginning at a point on Second Street three hundred and thirty feet easterly from B. Street, and running northerly at right angles with Second Street.” The only effect of this additional description is to assure to the grantor all the right and interest which Mrs. Denny acquired by means of the proceeding under the petition of the other tenants in common for partition. That is, that the grantors meant to convey all the flats within the parallelogram between the land of Cains, originally set off to Mason, on the one side, and the land set off to Helena Augusta Gardner on the other, if by means of the partition Mrs. Denny acquired a title thereto; but that they would not assume the responsibility of warranting that she did thereby acquire a title to the whole of it. It follows as a necessary consequence that the demanded premises, being in no part contiguous to or connected with the particular “ piece or parcel of land and flats ” described in the deed, but separated from it by the intervening parcels set off and assigned in severalty to Perkins and Mason, which were subsequently conveyed to Cains, were not included in the description contained in the deed of the estate sold, and did not therefore pass by it to the demandant.
On both grounds therefore he fails to show that he is entitled to maintain his action; and the nonsuit ordered must be affirmed, and
Judgment entered for the tenants.