Burke v. Commonwealth

186 N.E. 277, 283 Mass. 63, 1933 Mass. LEXIS 986
CourtMassachusetts Supreme Judicial Court
DecidedMay 23, 1933
StatusPublished
Cited by18 cases

This text of 186 N.E. 277 (Burke v. Commonwealth) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burke v. Commonwealth, 186 N.E. 277, 283 Mass. 63, 1933 Mass. LEXIS 986 (Mass. 1933).

Opinion

Rugg, C.J.

This is a petition to register title to land on Duxbury Beach in that part of the town of Marshfield called Green Harbor. The respondents are the Commonwealth, the town of Marshfield, and certain owners of other lots on the beach. The rights of the Commonwealth were guarded in the decision and it is no longer a contestant. Facts not now in dispute and material to the grounds of this decision [65]*65are these: The town was the owner of a considerable number of lots shown on a plan dated in 1883 and filed and recorded in 1895 with Plymouth County deeds. The selectmen of the town were authorized to convey lots shown on the plan. By deed dated March 26, 1890, and duly recorded, the selectmen conveyed to one Cole a lot as shown on the plan, title to which by mesne conveyances has come to the petitioner. The description in the original deed, repeated in substance in the intervening conveyances, was of this tenor: “Lot No. 37 situated on the east side of Bay Street or Avenue, as shown on a Plan of Lots on Duxbury Beach in Town of Marshfield drawn by C. W. Howland and to be on file in the Registry of Deeds for said County of Plymouth and in the Selectmen’s Office in said Town, containing nearly 4800 square feet bounded as follows: Northerly on Lot No. 38, 80 feet, being separated from it by an Avenue; Easterly on the Ocean, 60 feet; Southerly on Lot No. 36, 80 feet; Westerly on Bay Avenue, 60 feet.” Since the time of the deed to Cole a substantial area of land has gradually formed by accretion so that the present normal high water mark of the ocean in front of the lot of the petitioner is approximately seven hundred feet easterly of the high water mark of 1890. The building of stone breakwaters was commenced in 1898 and completed in 1899 under St. 1898, c. 469, for the purpose of improving Green Harbor by protecting the entrance channel. These breakwaters were built on both sides of Cut River. Most if not all of the area added by accretion easterly of the petitioner’s land and the other beach lots has been created gradually since the building of the breakwaters. The formation of this new land arose from natural causes so far as the petitioner is concerned. This new land is similar in character to beach property along the South Shore and is partly covered by beach grass and vegetation such as commonly grows along the shore front. The inference was drawn by the trial judge that the causes of this accretion were aided by the building of the breakwaters. The coast line at the time of the deed to Cole in 1890 was practically a straight line and the lines over the foreshore to low water line would [66]*66be normal or at right angles to the same. The present high water mark is considerably further to the east. As it extends north and south, it meets the 1890 line and the area of land formed by accretion is somewhat triangular in shape.

The petitioner claims title to low water mark so as to include that part of the area added by accretion lying easterly of his lot and adjacent thereto. The town does not contest the petitioner’s right to register title to lot 37 as shown on the plan mentioned in his deed, but does contest his right to register title to any land lying easterly and between it and the low water mark of the ocean. The answers of the Commonwealth and the town put in issue the question of the ownership of so much of the land which the petitioner seeks to have registered as was formed by accretion.

Upon these facts the judge by decision filed May 19, 1931, found and ruled “that the petitioner has acquired title to land formed by accretion easterly of said lot 37 as shown on plan Exhibit B. His easterly boundary will be 'by the ocean. ’ The petitioner has no title to the breakwaters or jetties built by the Commonwealth or to the land under the same. As, however, other lot owners on said plan may also have acquired land by accretion they must have notice of these proceedings before the petitioner’s side lines can be determined. Petitioner to furnish names and addresses of such lot owners. The petitioner’s land is subject to any and all public rights legally existing in and over the same below mean high water mark but there is no public right of bathing in such a way as to make use of the petitioner’s land between high water mark and low water mark.”

The other lot owners were notified. Thirty-five of them appeared and filed similar answers to the effect that they had acquired land by accretion and were entitled to such equitable division of the land so formed as the circumstances and physical features of the shore line at present existing will allow. The lots owned by these persons as shown in deeds given by the town bounded “on the beach”; the lot owned by the petitioner bounded “on the Ocean.” By de[67]*67cisión filed on October 23, 1931, the judge apportioned the land formed by accretion as follows: “Assuming that” the other lot owners “have acquired title to land so formed it is plain that a determination of the side lines of locus may have a bearing of the side lines of their respective lots under the doctrine of equitable division of such lands. As the high water line” on the Howland plan “was practically a straight line I find and rule that lines drawn at right angles from said 1890 line to the present shore line would be an equitable division of the land of the proprietors which was made by accretion.” The town appealed from each decision by the judge, and the lot owners from that of October 23, 1931.

Appeals of this nature bring before this court only questions of law apparent on the record. Findings of fact cannot be revised and must be accepted as true. G. L. (Ter. Ed.) c. 185, § 15. Bessey v. Ollman, 242 Mass. 89, 91. Willard v. Kimball, 277 Mass. 350, 358. If upon all the facts thus displayed and the reasonable inferences of which they are susceptible, the ultimate finding cannot be justified as matter of law, it must be set aside. Hartt v. Rueter, 223 Mass. 207, 212.

The deed under which the petitioner holds title gives the easterly boundary as “on the Ocean, 60 feet.” A boundary of this description “with the aid of our ordinance of 1641, not only includes all above high-water mark, but also extends to low-water mark when it does not exceed one hundred rods.” Oreen v. Chelsea, 24 Pick. 71, 77. Saltonstall v. Proprietors of Long Wharf, 7 Cush. 195, 200. Boston v. Richardson, 105 Mass. 351, 354. Haskell v. Friend, 196 Mass. 198, 201. The flats lying between the lot of the petitioner and the sea passed by the deed although the description as to both the quantity of land conveyed and the length of the lines would have been satisfied by application to the upland alone. Mayhew v. Norton, 17 Pick. 357. Burnham v. Hoyt, 216 Mass. 278. “Whenever, in the description of land conveyed by deed, known monuments are referred to as boundaries, they must govern; although neither courses, nor distances, nor the computed [68]*68contents, correspond with such boundaries.” Davis v. Rainsford, 17 Mass. 207, 210. Cashman v. Bean, 226 Mass. 198, 203. Holmes v. Barrett, 269 Mass. 497, 499-500. This principle governs the description of the petitioner’s land as given in the original and intervening deeds. The reference in the original deed was not merely to the number of the lot on the plan but was followed by a particular description including the ocean as a monument. The particular description is controlling over the reference to the lot number on the plan. Smith v. Strong,

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Bluebook (online)
186 N.E. 277, 283 Mass. 63, 1933 Mass. LEXIS 986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burke-v-commonwealth-mass-1933.