The opinion of the Court
Putnam J.
We are all agreed respecting the general principles of law applicable to this action.
The instruction given by the judge who tried the cause, — that if, in point of fact, the parties had had a mixed posses[135]*135sion, and exercised acts of ownership indiscr minate y, then there was no such exclusive possession proved by either party as would of itself give a title, and that consequent!) the issue must be determined according to the legal title,1 *—■ is correct.
It is also well settled, that where there is evidence of a lawful title, accompanied with seisin and possession, it is presumed to continue in the lawful owner, and his heirs and assigns, until an actual ouster and disseisin shall be proved. Thus the owner who is seised of upland bounded by the salt water, is supposed to have the seisin of the flats to the channel, not exceeding one hundred rods.2 So the owner of a wharf who is seised of the wharf, is supposed to have the seisin of the flats appurtenant to the wharf, until severed by grant, disseisin, or in some other way, from the upland or wharf.
And it is also to be observed, that acts of disseisors are, m respect to the lawful owner or true proprietor, to be limited to an actual ouster and exclusive occupation of such disseisors, and shall not be extended by construction according to their claims under invalid deeds or other conveyancing.3
There is another rule of great importance in the case at bar, which is equally indisputable, viz. that where a claim is made under a deed or other conveyance or assurance, and the description of the distances or length of the lines differs from the distances of the monuments referred to, the monuments shall control the description of the distances.4
The case finds that both parties claimed under what was anciently called the barricade or outwharves. That title is connected with an interesting historical fact relating to the colony of Massachusetts. War had been proclaimed at J m r Boston against the Dutch in 1672. In March 1673 the castle, which was built of timber, was burnt; and in August of that year, “ advice came to Boston, that the Dutch, after taking several ships at Virginia, had possessed themselves of New York, and that the Dutch force were bound further northward; and this intelligence caused great alarm in tire colony.” It appears by the records, that in September 1673, the barricade or sea wall before the town was projected, not only to defend the town against the approach of fire ships, but to be raised fourteen or fifteen feet high, and twenty feet wide on the top, to make a convenient breastwork “to play guns on,” as the vote of the resolute inhabitants expressed it. As a compensation to the builders, the town granted to them the property in the wall or wharf which they should build, and 200 feet inwards, towards the town, and so, on the other side, of the same width, to the channel in the harbour. In an act of the colonial government of May 1681 it is said, that this sea wall had been built and almost finished at the great loss, pains, and hazard of the undertakers, for the safety of the town and his majesty’s colony.
The land in controversy is between the middle and the south gaps, which are agreed to be 350 feet apart. The plaintiff claims 180 feet from the middle gap. The defendants admit that he has 150, but contend that the 30 feet next southerly of the 150 belong to them.
It is well ascertained, that the locus in quo is part of the 60 feet of land originally granted to Eliakim Hutchinson, who was an original subscriber to build 60 feet of the sea wall. And its position is well fixed by reference to the deeds and papers which are in the case. It will appear by them, that one Woodmancy undertook to build 120 feet. His heirs describe his lot in 1711, as bounded by the middle gap on the northerly side, and upon the wharf and flats of Eliakim Hutchinson on the southerly side. There is no dispute as to the position of the middle gap, nor as to the length of Woodmancy’s sea wall, nor as to the length of Eliakim [136]*136Hutchinson’s sea wall, nor of its being next to the southward Woodmancy’s wall. It is satisfactorily ascertained, that ^ie l°cus 'i,n 9M0 is the southerly half of the flats ground inwards and towards the town, that belonged to Eliakim Hutchinson as the builder of 60 feet of the sea wall. He was the true proprietor. He had the actual seisin and exclusive possession of the sea wall or wharf itself, and by force of the grant he had the legal seisin of the flats on each side. It is proved or admitted, that he and those claiming under him have continued to be actually seised and exclusively possessed of the 60 feet of wharf, built by him, now constituting the neck of the T. The title of Eliakim Hutchinson the builder is regularly traced to Eliakim Hutchinson the absentee, whose estate was confiscated in 1781. In virtue of the information, proceedings, and judgment against him, the commonwealth became seised of all the estate of the absentee, between Minot’s T on the north, and the land belonging to the proprietors of the long wharf on the south, notwithstanding the distance between those monuments exceeded 30 feet. Such would have been the construction of a deed from the absentee, and the same rule applies to the information and judgment.
The plaintiff claims all the confiscated estate in virtue of the deed of a majority of a committee appointed to sell it on the part of the commonwealth. If it should be eventually decided that nothing passed by the deed of a majority of the committee, and that both parties are strangers to the original title granted to Hutchinson the builder, then the entry and claim under Ruck’s deed or otherwise, and the evidence arising from the division deed of the proprietors, as to the extent of the claim of the proprietors, would give them a better title than the claim and mixed possession of the plain tiff long after those transactions. As between these parties the defendants would upon comparison have the better title.
But it has been contended for the plaintiff, that the defendants, being strangers, cannot controvert the validity of that deed on the ground that it was not executed by all of the committee. And the trial proceeded upon the assumption, that all the estate of the commonwealth did pass by the [137]*137deed of the majority of the committee to the ancestor of the plaintiff. If that was not the effect of it, the estate and title of Hutchinson remains in the commonwealth, and it could confirm the title according to the intent of the original parties. The effect of that deed is not intended now to be determined, but it is now considered, as it was at the trial, as passing all the estate of Hutchinson, the absentee, to the ancestor of the plaintiff; subject to a revision as to its validity, if it should be hereafter thought proper to question it.*,1
The title of the proprietors of the long wharf originated about forty years after the barricado title, and was expressed to be made subject to all the rights acquired by the accomplishment of that meritorious undertaking. The long wharf intersected the barricado nearly at right angles.
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The opinion of the Court
Putnam J.
We are all agreed respecting the general principles of law applicable to this action.
The instruction given by the judge who tried the cause, — that if, in point of fact, the parties had had a mixed posses[135]*135sion, and exercised acts of ownership indiscr minate y, then there was no such exclusive possession proved by either party as would of itself give a title, and that consequent!) the issue must be determined according to the legal title,1 *—■ is correct.
It is also well settled, that where there is evidence of a lawful title, accompanied with seisin and possession, it is presumed to continue in the lawful owner, and his heirs and assigns, until an actual ouster and disseisin shall be proved. Thus the owner who is seised of upland bounded by the salt water, is supposed to have the seisin of the flats to the channel, not exceeding one hundred rods.2 So the owner of a wharf who is seised of the wharf, is supposed to have the seisin of the flats appurtenant to the wharf, until severed by grant, disseisin, or in some other way, from the upland or wharf.
And it is also to be observed, that acts of disseisors are, m respect to the lawful owner or true proprietor, to be limited to an actual ouster and exclusive occupation of such disseisors, and shall not be extended by construction according to their claims under invalid deeds or other conveyancing.3
There is another rule of great importance in the case at bar, which is equally indisputable, viz. that where a claim is made under a deed or other conveyance or assurance, and the description of the distances or length of the lines differs from the distances of the monuments referred to, the monuments shall control the description of the distances.4
The case finds that both parties claimed under what was anciently called the barricade or outwharves. That title is connected with an interesting historical fact relating to the colony of Massachusetts. War had been proclaimed at J m r Boston against the Dutch in 1672. In March 1673 the castle, which was built of timber, was burnt; and in August of that year, “ advice came to Boston, that the Dutch, after taking several ships at Virginia, had possessed themselves of New York, and that the Dutch force were bound further northward; and this intelligence caused great alarm in tire colony.” It appears by the records, that in September 1673, the barricade or sea wall before the town was projected, not only to defend the town against the approach of fire ships, but to be raised fourteen or fifteen feet high, and twenty feet wide on the top, to make a convenient breastwork “to play guns on,” as the vote of the resolute inhabitants expressed it. As a compensation to the builders, the town granted to them the property in the wall or wharf which they should build, and 200 feet inwards, towards the town, and so, on the other side, of the same width, to the channel in the harbour. In an act of the colonial government of May 1681 it is said, that this sea wall had been built and almost finished at the great loss, pains, and hazard of the undertakers, for the safety of the town and his majesty’s colony.
The land in controversy is between the middle and the south gaps, which are agreed to be 350 feet apart. The plaintiff claims 180 feet from the middle gap. The defendants admit that he has 150, but contend that the 30 feet next southerly of the 150 belong to them.
It is well ascertained, that the locus in quo is part of the 60 feet of land originally granted to Eliakim Hutchinson, who was an original subscriber to build 60 feet of the sea wall. And its position is well fixed by reference to the deeds and papers which are in the case. It will appear by them, that one Woodmancy undertook to build 120 feet. His heirs describe his lot in 1711, as bounded by the middle gap on the northerly side, and upon the wharf and flats of Eliakim Hutchinson on the southerly side. There is no dispute as to the position of the middle gap, nor as to the length of Woodmancy’s sea wall, nor as to the length of Eliakim [136]*136Hutchinson’s sea wall, nor of its being next to the southward Woodmancy’s wall. It is satisfactorily ascertained, that ^ie l°cus 'i,n 9M0 is the southerly half of the flats ground inwards and towards the town, that belonged to Eliakim Hutchinson as the builder of 60 feet of the sea wall. He was the true proprietor. He had the actual seisin and exclusive possession of the sea wall or wharf itself, and by force of the grant he had the legal seisin of the flats on each side. It is proved or admitted, that he and those claiming under him have continued to be actually seised and exclusively possessed of the 60 feet of wharf, built by him, now constituting the neck of the T. The title of Eliakim Hutchinson the builder is regularly traced to Eliakim Hutchinson the absentee, whose estate was confiscated in 1781. In virtue of the information, proceedings, and judgment against him, the commonwealth became seised of all the estate of the absentee, between Minot’s T on the north, and the land belonging to the proprietors of the long wharf on the south, notwithstanding the distance between those monuments exceeded 30 feet. Such would have been the construction of a deed from the absentee, and the same rule applies to the information and judgment.
The plaintiff claims all the confiscated estate in virtue of the deed of a majority of a committee appointed to sell it on the part of the commonwealth. If it should be eventually decided that nothing passed by the deed of a majority of the committee, and that both parties are strangers to the original title granted to Hutchinson the builder, then the entry and claim under Ruck’s deed or otherwise, and the evidence arising from the division deed of the proprietors, as to the extent of the claim of the proprietors, would give them a better title than the claim and mixed possession of the plain tiff long after those transactions. As between these parties the defendants would upon comparison have the better title.
But it has been contended for the plaintiff, that the defendants, being strangers, cannot controvert the validity of that deed on the ground that it was not executed by all of the committee. And the trial proceeded upon the assumption, that all the estate of the commonwealth did pass by the [137]*137deed of the majority of the committee to the ancestor of the plaintiff. If that was not the effect of it, the estate and title of Hutchinson remains in the commonwealth, and it could confirm the title according to the intent of the original parties. The effect of that deed is not intended now to be determined, but it is now considered, as it was at the trial, as passing all the estate of Hutchinson, the absentee, to the ancestor of the plaintiff; subject to a revision as to its validity, if it should be hereafter thought proper to question it.*,1
The title of the proprietors of the long wharf originated about forty years after the barricado title, and was expressed to be made subject to all the rights acquired by the accomplishment of that meritorious undertaking. The long wharf intersected the barricado nearly at right angles.
The proprietors of the long wharf now claim 30 feet of the flats originally granted to Eliakim Hutchinson, the builder of 60 feet of the barricado. And they produce a deed from Ruck to Noyes, of April 10, 1712, as covering the disputed ground. It is very uncertain where the land described in that deed is to be located. It is “ somewhat to the northward of the southerly open," or gap. But if it were certain, and if it contained a part of the flats granted originally to Eliakim [138]*138Hutchinson the builder, there is no evidence of any grant from the latter, or from any person claiming under him, to Ruck. So that Ruck and his assigns must be considered as disseisors in respect to the estate of Eliakim Hutchinson the builder, who was the true proprietor ; and they must therefore be limited to their actual and exclusive possession, and cannot extend their claim by construction, upon the principles before stated, against the true proprietor, but only against strangers. The claiming of the flats under that deed, and the occasional passing over the same, and mooring vessels on them, would not in law be considered as such an ouster and such an exclusive possession against the true proprietor, as to amount to a disseisin of him, while he actually held the barricado itself, and claimed and occupied the flats originally granted with it, as occasion required. If Ruck or his assigns did take actual and exclusive possession, and oust Eliakim Hutchinson the builder, or his assigns, prior to the proceedings against the absentee, in such way as that the absentee was not seised of the whole of the original grant to Eliakim Hutchinson the builder, it would be clear, that that part, of which the absentee was not seised, would not pass by the judgment and proceedings against him ; and the bounds of the confiscated estate would be limited by the fixed boundaries of the proprietors of the long wharf, so obtained by disseisin.
The extent of the plaintiff’s estate must be determined by a reference to the information and the judgment of confiscation. The flats are there described as being 30 feet wide, and as being bounded northerly on the wharf and flats called Minot's T, and southerly on flats belonging to the proprietors of the long wharf. If no monuments can be ascertained, the length of line must govern and determine the width of the demanded premises and the southern boundary of them. But if the northern line of the proprietors of long wharf can be ascertained, that must prevail, although it give a width of 60 instead of 30 feet. If, however, the proprietors of long wharf can show title to one line and possession up to another still further north, the words in the description might wrell be construed to refer to the land in the possession of the proprietors of long wharf. But this possession must be such as [139]*139will furnish a distinct boundary, and of course must be open and exclusive.
A new trial is granted, to give an opportunity to ascertain the northern boundary of the land belonging to the proprietors of long wharf: which maybe proved by their title deeds, &c., or by their possession. If they cannot show an exclusive possession, they must rest on their title. And if by either their northern boundary can be ascertained, that must be the southern boundary of the confiscated estate ; and to that must the plaintiff’s estate extend and be limited.
The Chief Justice did not sit in this cause.