The opinion of the court was delivered by
Barrett, J.
In this case the plaintiffs claim to recover possession of the premises in question, by reason of their title to an estate in remainder, under the will of their grandfather, Richard Fittoeks. In 1800, said Richard took a perpetual lease of water lot No. 10. Adjoining it on the south, was water lot No. 9. He took possession under said lease, and built a dwelling and storehouse on the easterly part of No. 10, the dwelling-house extending partly upon No. 9. He enclosed the easterly half of both of said lots with a fence, and occupied what was within said enclosure as a garden and orchard, having filled in some part of No. [236]*2369 for that purpose, which was before that time low and swampy. He occupied said lots in the manner stated till his death, August 10,1810. .
I. As to No. 9. It appears that he occupied only the easterly half, which was- separated from the other half by the fence made by him when he began to occupy. Of that lot, he had no color of title. Hence his possession was limited to what he enclosed and occupied. At his death, he had acquired no title to any part of that lot. His will purports to embrace only his estate, real and personal. He then had no estate in No. 9. Moreover, in 1805, he paid John Collard for half of the lot, and took a deed of warranty of it to his wife. After the taking of that deed, the possession held by himself, and by his wife after his decease, is to be referred to the apparent right acquired by said deed, and the color of title given thereby. Brooks v. Chaplin, 3 Vt. 281; Ford v. Flint, 40 Vt. 382; Hodges v. Eddy, 38 Vt. 327, 348.
Peggy Eittocks must be regarded as having been in possession after the death of her husband, under the deed of Collard, and not under the will of her husband, which will, as before remarked, did not purport to embrace No. 9 at all. She parted with her title to that lot, January 13, 1827, which titlé, together with the title and interest of her daughter Avis and children, in both No. 9 and 10, have been held by the defendant railroad company for several years.
In the other half of No. 9, the plaintiffs do not show that they have any title or interest. They claim in remainder under the will of their grandfather, upon the termination of the life-estate of their mother in 1870. It would be sufficient in this respect to say, that no part of No. 9 passed by the will. Yet it may properly be added that, if their mother Nelly supposed her possession, after the death of her father, to be under his will, still, she was in under color and claim of only a life-estate. So there could be no privity between her and the plaintiffs, who are claiming in remainder after the termination of that life estate under the same will. They take the title of, and from, the testator, and not of, and from, their mother. But again, it is not shown that her possession was for the period required in order to work a perfected [237] title in her, even if it was adverse as against all other rights, and could have enured- to the plaintiffs. Finally, it appears that Mayo, Follett, and the Bradleys, had claimed and occupied No. 9, from April 17, 1827, — the date of Pomeroy’s deed to Mayo and Follett, of the premises conveyed to Pomeroy by John Collard by deed of warranty dated July 4,18.25, — and that their interest and title have been in the defendants for several years, who, in virtue of such interest and title, have continued in uninterrupted possession. Such occupancy, with such title as was derived from Collard through said Peggy Fittocks, and said Pomeroy, gave the defendants a perfected title to lot No. 9. .
II. As to No. 10. The first question is, whether the plaintiffs own the west half of said lot, or are owners in common with the railroad company of an undivided moiety. They are owners in common, unless the instrument of partition between the tenants for life, effectuated a partition between those who took in remainder on the termination of the respective life-estates of said Avis and Nelly. We are satisfied that, as .Avis and Nelly were each to have a life-estate in a moiety, so the heirs of each one were to take a moiety in remainder in fee. But we find no warrant for holding that said tenants for life were authorized to make a division that should bind those entitled in remainder, or that the division which might be thus made should be operative beyond the rights of the parties to such division. Such division as was made by them, was valid and effectual as to their respective rights as tenants for life. And yet it does not appear that in fact such division was into moieties — “ equally divided ” — in the sense in which those in remainder would be entitled under the will.
That instrument of partition was made April 17, 1824. On the 14th of October, 1825, said Nelly and husband parted with their title, in part, toDurkee, and on the 24th of April, 1827, they parted with the rest to Mayo and Follett, since which time, in .the language of the exceptions, “ it was not claimed by plaintiffs that said Nelly and Rufus ever occupied or claimed any part of the premises in question.”
These plaintiffs, then, must stand upon the- provisions of the will, as against the other co-owner in remainder under the will. [238] And it seems plain to us that the will contemplated, in the matter of determining the rights of the owners of the successive estates, that the division to be made was such as the law provided for, unless it should be made by and between the respective successive owners.
III. On the decease of said.Nelly Austin on the 5th of January, 187.0, the plaintiffs succeeded in remainder to their rights of ownership, in common with the defendants, of an undivided moiety of said lot No. 10. As the defendants were holding a title in fee under Avis and her children, and a life-estate under said Nelly, it is conceded that they rightfully held the exclusive possession of the whole of .said lot up to the termination of said life-estate of Nelly. During such rightful exclusiye possession, the railroad was duly located upon said lot, and the whole of it was thus appropriated, and has ever since been held and used, and it still continues to be held and used for the ordinary, necessary, and legitimate purposes of the railroad, in exclusion of the plaintiffs from the possession, occupancy, and use thereof. There has been no appraisal or payment of land damages to the plaintiffs under the statute, nor in any other way. Upon this state of facts, it is claimed that the plaintiffs may maintain ejectment in virtue of their rights as tenants in common with the defendants. To this claim we are not able th assent. The defendants, in the language of the plaintiffs’ brief, “ during the life of said Nelly, might do what they pleased with the land, provided they committed no waste.” Being in possession, with such title and right, it was legitimate for them to locate and make the railroad as it was done, and to continue it, without payment of damages to any body,- up to the time that the plaintiffs could assert a right in themselves as against the defendants. It was incident to the tenure of the defendants, as well as to the title and. estate of the plaintiffs, that the railroad might be located, made, and used, without payment of damages to the plaintiffs, during the period of the defendants’ right to exclusive possession, by reason of such tenure. There was no life-tenant to be regarded. There was no remainder-man to be regarded, till such remainder-man’s right to claim possession was available to him.
[239] We think, then, that all the reasons for what was held in the cases of McAulay and the railroad, in 33 and 39 Vt. Reports, and in Troy & Boston R. R. Co. v. Potter, 42 Vt. 272, apply with unabated force in the present case. Saying nothing as to the matter of knowledge and implied assent on the part of some of the plaintiffs, upon which a point was made in the argument, it would seem that, when the defendants, in the exercise of their lawful right', as against these plaintiffs, located and made their road on the lot in question, they should no more be subjected to being ousted, or to having the plaintiffs let into co-possession, than in case the plaintiffs had been absolute owners of the whole lot throughout, and had assented to the doing of the same without first having the damages appraised and paid.
In the cases referred to, the point of the reason against permitting the land-owner to eject the corporation, or to be let into possession, joint, or otherwise, is, that the corporation had done a lawful act in locating and making the road through the land in question, without first having the damages appraised and paid. In those cases, the lawfulness of the act resulted from the consent of the land-owner. In the case before us, the act was equally lawful, it having been done by the party lawfully in possession, and who might lawfully do it by reason of his title and estate in the premises. This being so,.we think it would' contravene both the reasons and the rules that have had operation and force on this snbject, now to hold, that the lately accruing right to the plaintiffs of availing themselves of their estate in the premises, changes what the defendants have done in locating, making, and maintaining their railroad, into a wrong as against the plaintiffs, and the exclusion of them from a co-occupancy, into such an unlawful ouster, as to entitle them to maintain this action. On the other hand, the provisions of the statutes seem plainly to indicate the legislative sense of the state to be-in harmony with the judicial sense, as manifested in the decided cases involving the subject. Sec. 17, ch. 28, Gen. Stat., which makes provision for the appraisal of land damages, in case the parties do not agree about them, contemplates that land may be taken, and damage thereby sustained, before appraisal shall have been made; and it pro[240] vides for the appraisal and payment of damages in such cases, as ■well as in others.
In this connection it should be remarked that the provisions of the statute for the appraisal of damages before the railroad can be lawfully made, do not seem to contemplate, or to be adapted to, a case like the present. This case does not fall within the terms, or the meaning, of sec. 20 of that chapter, which section is applicable only to cases in which damage to right”of dower, or estate for life, or years, is to be appraised. ' Here was no estate for life to be damaged, for it was owned by the defendants ; and so it was not a case for appraising damages to the interests in remainder. Indeed, the inapplicability to this case of the other incidental details in the provisions for the appraisal of land damages before the making of the road, enforces the idea, that cases like the present were not intended to be subject to those provisions.
When we turn to sec. 26 of the same chapter, it is seen to be full and explicit in provisions for such cases. Thus : “ In every case where a railroad company have entered upon, taken possession of, and used, land and real estate for the construction and accommodation of their railroad * * * and shall not have paid the owner therefor, nor, within two years from such entry, had the damages.appraised, &c., the ordinary courts of law shall have jurisdiction thereof, to wit: justices, &c. and the county courts, &c.; and any person claiming damages may bring suit therefor in the usual form, &c.; and shall recover only actual damages.” This seems to contemplate that the company might have two years after such entry, taking possession, and using, in which to get such damages appraised, pursuant to the provisions of sec. 17. It seems difficult to suppose that it was contemplated at the same time, that, in the mean time, they should be liable to be ousted by action of ejectment. We think that the alternative remedy provided in sec. 26, clearly indicates that, after the lapse of said two years, without such appraisal having been made, not by ousting the company by action 'of ejectment, but by suit for damages, the land owner is to get what he would have realized as the fruit of the proceeding provided in sec. 17.
[241] These provisions of the statute seem to recognize the peculiar character of the subject-matter, much as the court, have recognized and regarded it in our own, and in other states. A most marked instance of such recognition is the case of Sturgis & Douglass v. Miller & Knapp, 31 Vt. 1. The samé is true of the other cases above referred to. We concur, then, in holding that, in this case, as it is now before us, the plaintiffs are not entitled to have a judgment giving them co-possession with the defendants of the land in question.
In the views thus presented, we design to propound the law only of the present case, leaving cases made up of other elements, and characterized by different features, to abide such consideration as may seem meet when they shall be before the court for adjudication. In holding as we do in this case, we are not unmindful that a party in ordinary cases, unaffected by peculiar statutory provisions, would be entitled to maintain ejectment against his co-tenant when wrongfully excluded from the possession of the common property by such co-tenant. We put the decision on the ground, as above indicated, that the subject-matter (when regarded with reference to the law ordinarily governing the action of ejectment, in its origin and development) is extraordinary and peculiar ; that the property was lawfully put to its present use by the defendants, as against these plaintiffs; that special statutory provision is made for ample remedy in-such case ; and, having reference to the public interests involved in, and affected by, the construction and operation of railroads, and in view of what has been held in other cases, standing upon the same reasons, it is fairly to be assumed that such statutory provision for remedy, was intended to supersede the common remedy by action of ejectment, which is available in ordinary cases between tenants in common.
We have not deemed it advisable to enter upon a discussion of the question, whether the plaintiffs would have a lien for the damages recovered by them under said § 26, as our attention was not called to it in the argument, except by a passage in the brief for the defendants, that “ plaintiffs’ rights to full damages are reserved to them by a specific lien on the lands,” — citing said §§ 17 and [242]*24226, Gen. Stat. oh. 28. Of course, aside from such resource, they would have all the rights of any judgment creditor for enforcing judgment against a judgment debtor.
IV. It is claimed for the plaintiffs that the land and dock that have been made by the defendants into the water of the lake further west than the land extended iiaturally, are embraced within the estate which they own under the will of their grandfather.
The township, by the charter, was bounded west “ on the shore of Lake Champlain.” The lot was bounded “ west by the waters of Lake Champlain.” In the year 1800, that lot, thus bounded, became the property of said testator. It remained unchanged in that respect, and in the condition of its water-front, during the life of the testator, and up to the time when the defendants made said additions of land into the water of the lake. Neither the testator, nor any one under him, made any erections or structures on the water-front in the character of pier, dock, wharf, or store-house, so nothing had been done in the nature of asserting or exercising any right in those respects, as appertaining to that lot, in reference' to the lake, for any purpose. The testator enclosed and occupied, during his life, only the east half of said lot. Defendants’ counsel understand that lot No. 10 extended to low water mark, and that the estate of the plaintiffs extends to the same line. The right of the plaintiffs is thus conceded to the utmost limit of title and ownership in the soil known to the law, as shown by the text books and decided cases, whether in the nature of a corporeal or incorporeal hereditament. All that can be claimed for the plaintiffs, as the ground of their alleged title and interest in the made land, is the right that the owner of said lot, as it originally was, had to pass to and from the water of the lake within the width of the lot, as it bordered on, and was washed by, said water. It is not denied that the lake is “ navigable water,” in the sense of the law governing public and private rights in respect thereto. There is no occasion, therefore, to discuss, or decide, whether the common law of England, or of Massachusetts, or of Connecticut, or of any other state, is the common law of Vermont, as to such rights. We remark, however, that there is no common law of Vermont, by which the owner of land bounded [243] on Lake Champlain, has a right beyond low water mark to appropriate as his own the bed of (the la,ke. Neither the legislature nor. the courts have recognized any such right, only as it has been conferred by act of legislation. And the whole course of legislation on the subject indicates that there was no such right by any kind of common law in this state. See act of 1802, granting to the Burlington Bay Wharf Co. the privilege of erecting and continuing a wharf; also-the act of 1825, giving the right to Messrs. Keyes to extend a wharf into the lake from low water mark ; also acts No. 41 and No. 42, in 1826, of a similar character.
The matter had thus proceeded up to 1839, when, in the Revised Statutes of that year, § 7, ch. 59, it was enacted that “ all persons who-may have erected any wharves, &c., agreeably to the provisions of any gra,nt ’heretofore made, or agreeably to the provisions of this chapter, their heirs and assigns, shall have the exclusive r ight to the use, benefit and control of such wharves, &c., forever.” This seems plainly to show the idea of the legislature to have been, that the right to build a wharf, or any other structure, beyond the land of the riparian owner into the water of the lake, depended on a legislative grant, either shown or presumed. And the same is as clearly shown by the preceding § 5, viz: “Any person owning lands adjoining Lake Champlain may erect any' wharf or store-house, and extend the same from the land of such person in a direct course into Lake Champlain * * between the lands of such person and the channel of the lake.” This contemplates that the right to build into the lake “ from the land,”' &c. is given by that provision of the statute.
There is no ground for claiming that those general legislative enactments were only in affirmance of already existing common law of the state; for, not only does the fact of such legislation and the terms and provisions of it, discountenance such claim, but the special legislation that preceded it, and which is emphatically recognized in said § 7, ch. 59, Rev. Stat., is altogether inconsistent with it.
The right, then, that existed in the testator as owner of lot No. ~ 10, was not a right appurtenant to the lot to build into the lake in front of it. He had only, and at most, so far as the lake was [244] concerned, a right, in common with all other persons, to use the waters of the lake in any proper way, aud for any proper purpose, As the absolute owner of said lot; he had the exclusive right to use it in passing to and from the lake. But this gave him no peculiar or additional right as to the lake itself. Of course it could not give him title to erections or structures made by others beyond the limits of his own land. _ If, in making- such erections and structures, others should violate any right of. his, as owner of the land to low water mark, he could seek redress in some proper way, but not by action based on his right as the-owner of them. If they should be a nuisance in the legal sense, the abatement of them might be invoked by a proceeding proper for that purpose.' The doctrines of the law as applicable to this feature of the case, are well developed and applied in Gould v. Hud. Riv. R. R. Co. 2 Seld. (6 N. Y.) 522, and in Pres't, &c. Harv. Coll. v. Stearns, 15 Gray, 1; also in Pat. & New. R. R. Co. v. Stevens, Law. Reg. March, 1871, p. 165.
In those cases the learning of the subject is so amply embodied, analyzed, and applied, that little would be gained by repeating what has been done by the learned courts in the decisions referred to. The case of Nichols v. Lewis, 15 Conn. 136, is not at odds with the views which we hold in the case in hand. In that case it was held, that the plaintiff owned a tangible property between high and low water mark, where the tide ebbed and flowed, of which he was entitled to the possession as against the defendant, by whom he had Seen ousted, and that he could recover by ejectment the possession of the locum in quo, notwithstanding the defendant had made on it a dump, or fill of earth, — so far as the dump was concerned, it being put on the same ground, “ as if a man builds on another’s land, the building belongs to the owner of the land.” The kind of estate which, in Connecticut, a riparian owner on navigable water, like the plaintiff in that case, has in the shore, is indicated by Ch. J. Hosmer, 7 Conn. 202, in commenting on a passage in Swift’s System. He says : “ By this expression I do not understand that the proprietors alluded to were seised, but they had a right of occupation, properly termed a franchise.” Those cases were very different from this. Here was no [245] building upon the plaintiffs’ land, only an abutting against it by a structure made outside of it. It is not a case of accretion or gradual reliction, which belongs to the riparian owner. It does not fall within the right usque ad ocelum, for that, of itself, does not often extend more widely than the solum of the owner, on which such right must be grounded. Most of the other cases cited by plaintiffs’ counsel arose with reference to the right to appropriate and use the shore, the space between high and low water mark, where the tide ebbs and flows. As to rights beyond low water mark, they countenance and maintain our views in this case. In Blundell v. Catterall, 5 B. & Ald. 268, it is shown that the exclusive right in the plaintiff, to the shore of the navigable water.in question, did not exist except by grant from the crown. In that case the learning on the subject of riparian rights along navigable waters is exhaustively developed by discussion and citation, and entirely in consonance with the present decision.
We have examined the cases cited in the U. S. supreme court reports, and find that none of them maintain a right of soil in the plaintiffs; and that must be maintained in order to entitle them to recover in ejectment the made land in question. The case of Dutton et al. v. Strony et al., 1 Black, 23, most confidently urged upon our attention by counsel for the plaintiffs, countenances precisely what we hold as to rights beyond low water mark. We cite some passages of the opinion, by Clifford, J., p. 31: “ Bridge piers and landing-places, &c., are frequently constructed by the riparian proprietor on the shores of navigable rivers, bays,' &c., as well as on the lakes; and where they conform to the regulations of the state, and do not extend below low water mark, it has never been held that they were a nuisance, unless it appeared that they were an obstruction to the paramount right of navigation.” * * * “ Our ancestors, when they immigrated here, undoubtedly brought the common law with them ; * * but they soon found it indispensable, in order to secure these conveniences, to sanction the appropriation of the soil between high and low water mark to the accomplishment of these objects. Different states adopted different regulations upon the subject, and in some the right of the riparian proprietor rests upon immemorial local [246] usage. * * * Wherever the water of the shore (of the lake) is too shoal to be navigable, there is the samé necessity for such erections, as in bays and arms of the sea ; and when that necessity exists, it is difficult to see any reason for denying to the adjacent owner the right to supply it; but the right must be understood as terminating at the point of navigability, when the necessity for such erections ordinarily ceases.” The question in that case was, wnether the defendants, who had built such a pier on the -shore of Lake Michigan, had such a próperty right in it as to entitle them to prevent the plaintiffs from causing its destruction by hitching their vessel to it in stress of weather : — a very different question from that of right of soil in land.made by another, outside of the testator’s water-front of low water mark, into the body of the lake. The other cases cited need no comment, for it is not claimed that they are more in point than those noticed above.
According to the foregoing views, the exception taken by the plaintiffs is not maintained. On the defendants’ exceptions, the judgment is reversed. The cause is remanded.