The opinion of the Court, Whitman C. J. taking no part in the decision, having formerly had some agency with respect to the wharf, was drawn up by
Shepley J.
— The action is assumpsit, brought to recover compensation for the use and occupation of a strip of flats ground near Union Wharf, and also for the use and occupation of a part of that wharf, from August 31, 1842, to December 31, 1844.
The plaintiffs are admitted to be the owners of a strip of flats ground, extending from high water mark to low water [392]*392mark, near to which place the westerly line of the flats, being extended toward the channel of Fore river, w'ould include a part of the wharf. For some distance from low toward high water mark the sáme line runs so near to the wharf, that vessels lying on the easterly side of the wharf must cover a portion of the flats. The testimony shews, that vessels approached the wharf on that side, and there remained to lade and unlade as usual during the time, for which the compensation is claimed. That the proprietors of the wharf claimed and received wharfage for goods landed from them, but did not claim or receive dockage for the vessels.
The right to use the waters covering flats between high and low water marks, for the purposes of navigation, was not intended to be abridged by the ordinance of 1641. The owners of vessels, which at certain times covered a part of the plaintiffs’ flats, exercised only their legal right of navigation, by causing them to pass over those flats when covered by water, and to remain upon them for commercial purposes, from the ebb to the flow of the tide. With the exercise of this right the proprietors of the wharf do not appear to have interfered ; or to have claimed any compensation from the owners of the vessels for such use of the flats. There is no proof, that the proprietors of the wharf have ever occupied those flats. Nor that they have authorized or induced others to do so, unless they may be considered to have done it by preparing the facilities for navigation and commerce, afforded by their wharf. The conveniences for these purposes, obtained by the erection of a wharf on their own land, although they may induce more vessels to pass over or to lie upon flats in the vicinity, than would otherwise be found there, afford no legal cause of complaint to the owners of the flats. The rightful use of one’s own estate, whether covered by water or not, may not unfrequently have some effect to diminish the value of an adjoining estate, or to prevent its being used with the comfort, which might have been otherwise anticipated. This, however, is damnum absque injuria, for which the law does not, and cannot make compensation.
[393]*393The testimony shows, that the defendants had been required, formerly by an award of referees, and subsequently by a judgment recovered at law, to make compensation to the plaintiffs for the use of these flats : but it does not prove, that any contract or arrangement existed between the parties during the time, for which compensation is now sought; and it does not exhibit such a state of facts, that a promise to continue to make such compensation can be implied by law.
As the title to their flats, does not extend further toward the channel than to low water mark, the plaintiffs fail to show, that they have become the owners of any portion of the wharf which has been extended toward the channel, beyond that line. If the defendants by so doing have acted unlawfully or injuriously, they may be amenable to the sovereign power; but they cannot be called upon by those, who have no interest in the land covered by this part of their wharf, to make compensation to them for its use.
Without controverting this position, the counsel for the plaintiffs contend, that the defendants are estopped by their agreement with the plaintiffs, made on December 5, 1842, to deny, that the plaintiffs by certain former proceedings have become the owners of a part of that wharf. That agreement was made with the plaintiffs by a committee of the proprietors for an adjustment of all differences between them by the union of their respective estates, upon certain terms contained in the agreement and to be ascertained by referees. The proprietors at a legal meeting, holden in the month of January following, authorized their committee to carry that agreement into effect; but this was not done, and no further proceedings by virtue of it, ever took place. By that agreement the plaintiffs’ flats are described as commencing “ opposite of and on a parallel line with the lower end of the block of stores numbered eleven, standing on said wharf, and running southeasterly to the channel of Fore River with that part of the wharf and stone pier, standing thereon.’’ This recital and admission of the plaintiffs’ title would have operated to estop the defendants from denying it for the execution of the purpose contemplated [394]*394by that agreement. But it can not thus operate beyond its design, and for all other purposes. It did not become a part of, or work upon the title. The doctrine, that one is bound by an estoppel, when it does not become a part of, or work upon the title, only for the accomplishment of the purpose, for which the fact was admitted, will be found in many decided cases.
If an executor permit judgment to be entered' against him, it is an admission of assets, and on devastavit returned, he is estopped to deny it. But he is estopped for the purposes of that suit only. Rock v. Leighton, Salk. 310. Ruggles v. Sherman, 14 Johns. R. 446.
If a judgment be obtained against persons as partners, they will thereby be estopped to deny the partnership, but only to accomplish the purposes of that suit. Lord v. Baldwin, 6 Pick. 348.
If one by deed indented, accepts a lease of his own land as the land of another, he is thereby estopped to deny it to be the land of the other, only to accomplish the purposes' of that lease. 4 Co. 54; Co. Lit. 47, 6.
When an estoppel does and does not become a part of the title, or work upon the interest in land, may be illustrated by a couple of cases. If a tenant in a writ of entry plead the general issue, he thereby admits himself to be tenant of the freehold, and is estopped in that action, and for that purpose only, to deny it. Kelleran v. Brown, 4 Mass. R. 443. While if . he plead a disclaimer, he will thereby admit, that he has no title, and will forever afterward, and under all circumstances, be thereby estopped to deny it, because the disclaimer becomes a part of the title, and works upon the interest in the land.
There are other grounds also, upon which the defendants will not be estopped by that agreement to deny, that the plaintiffs do not own any part of the wharf extending beyond low water mark. That was but an executory agreement never executed. Such tin agreement does not estop a party to it, from acting in such a manner as to violate its stipulations. Gibson v. Gibson, 15 Mass. R. 106. That was not a sealed agree[395]*395ment; and one cannot be barred by an estoppel of his right to an estate, but by deed or record. Whitney v. Holmes, 15 Mass. R. 152.
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The opinion of the Court, Whitman C. J. taking no part in the decision, having formerly had some agency with respect to the wharf, was drawn up by
Shepley J.
— The action is assumpsit, brought to recover compensation for the use and occupation of a strip of flats ground near Union Wharf, and also for the use and occupation of a part of that wharf, from August 31, 1842, to December 31, 1844.
The plaintiffs are admitted to be the owners of a strip of flats ground, extending from high water mark to low water [392]*392mark, near to which place the westerly line of the flats, being extended toward the channel of Fore river, w'ould include a part of the wharf. For some distance from low toward high water mark the sáme line runs so near to the wharf, that vessels lying on the easterly side of the wharf must cover a portion of the flats. The testimony shews, that vessels approached the wharf on that side, and there remained to lade and unlade as usual during the time, for which the compensation is claimed. That the proprietors of the wharf claimed and received wharfage for goods landed from them, but did not claim or receive dockage for the vessels.
The right to use the waters covering flats between high and low water marks, for the purposes of navigation, was not intended to be abridged by the ordinance of 1641. The owners of vessels, which at certain times covered a part of the plaintiffs’ flats, exercised only their legal right of navigation, by causing them to pass over those flats when covered by water, and to remain upon them for commercial purposes, from the ebb to the flow of the tide. With the exercise of this right the proprietors of the wharf do not appear to have interfered ; or to have claimed any compensation from the owners of the vessels for such use of the flats. There is no proof, that the proprietors of the wharf have ever occupied those flats. Nor that they have authorized or induced others to do so, unless they may be considered to have done it by preparing the facilities for navigation and commerce, afforded by their wharf. The conveniences for these purposes, obtained by the erection of a wharf on their own land, although they may induce more vessels to pass over or to lie upon flats in the vicinity, than would otherwise be found there, afford no legal cause of complaint to the owners of the flats. The rightful use of one’s own estate, whether covered by water or not, may not unfrequently have some effect to diminish the value of an adjoining estate, or to prevent its being used with the comfort, which might have been otherwise anticipated. This, however, is damnum absque injuria, for which the law does not, and cannot make compensation.
[393]*393The testimony shows, that the defendants had been required, formerly by an award of referees, and subsequently by a judgment recovered at law, to make compensation to the plaintiffs for the use of these flats : but it does not prove, that any contract or arrangement existed between the parties during the time, for which compensation is now sought; and it does not exhibit such a state of facts, that a promise to continue to make such compensation can be implied by law.
As the title to their flats, does not extend further toward the channel than to low water mark, the plaintiffs fail to show, that they have become the owners of any portion of the wharf which has been extended toward the channel, beyond that line. If the defendants by so doing have acted unlawfully or injuriously, they may be amenable to the sovereign power; but they cannot be called upon by those, who have no interest in the land covered by this part of their wharf, to make compensation to them for its use.
Without controverting this position, the counsel for the plaintiffs contend, that the defendants are estopped by their agreement with the plaintiffs, made on December 5, 1842, to deny, that the plaintiffs by certain former proceedings have become the owners of a part of that wharf. That agreement was made with the plaintiffs by a committee of the proprietors for an adjustment of all differences between them by the union of their respective estates, upon certain terms contained in the agreement and to be ascertained by referees. The proprietors at a legal meeting, holden in the month of January following, authorized their committee to carry that agreement into effect; but this was not done, and no further proceedings by virtue of it, ever took place. By that agreement the plaintiffs’ flats are described as commencing “ opposite of and on a parallel line with the lower end of the block of stores numbered eleven, standing on said wharf, and running southeasterly to the channel of Fore River with that part of the wharf and stone pier, standing thereon.’’ This recital and admission of the plaintiffs’ title would have operated to estop the defendants from denying it for the execution of the purpose contemplated [394]*394by that agreement. But it can not thus operate beyond its design, and for all other purposes. It did not become a part of, or work upon the title. The doctrine, that one is bound by an estoppel, when it does not become a part of, or work upon the title, only for the accomplishment of the purpose, for which the fact was admitted, will be found in many decided cases.
If an executor permit judgment to be entered' against him, it is an admission of assets, and on devastavit returned, he is estopped to deny it. But he is estopped for the purposes of that suit only. Rock v. Leighton, Salk. 310. Ruggles v. Sherman, 14 Johns. R. 446.
If a judgment be obtained against persons as partners, they will thereby be estopped to deny the partnership, but only to accomplish the purposes of that suit. Lord v. Baldwin, 6 Pick. 348.
If one by deed indented, accepts a lease of his own land as the land of another, he is thereby estopped to deny it to be the land of the other, only to accomplish the purposes' of that lease. 4 Co. 54; Co. Lit. 47, 6.
When an estoppel does and does not become a part of the title, or work upon the interest in land, may be illustrated by a couple of cases. If a tenant in a writ of entry plead the general issue, he thereby admits himself to be tenant of the freehold, and is estopped in that action, and for that purpose only, to deny it. Kelleran v. Brown, 4 Mass. R. 443. While if . he plead a disclaimer, he will thereby admit, that he has no title, and will forever afterward, and under all circumstances, be thereby estopped to deny it, because the disclaimer becomes a part of the title, and works upon the interest in the land.
There are other grounds also, upon which the defendants will not be estopped by that agreement to deny, that the plaintiffs do not own any part of the wharf extending beyond low water mark. That was but an executory agreement never executed. Such tin agreement does not estop a party to it, from acting in such a manner as to violate its stipulations. Gibson v. Gibson, 15 Mass. R. 106. That was not a sealed agree[395]*395ment; and one cannot be barred by an estoppel of his right to an estate, but by deed or record. Whitney v. Holmes, 15 Mass. R. 152.
The counsel for the plaintiffs further contend, that the jury were erroneously instructed, if they “ should find the part of the wharf, where the plaintiffs’ western line struck it, to be below the ordinary line of low water, they should find their verdict for the defendants.” These instructions in effect declared, that the plaintiffs’ title to the flats extended by the ordinance only to the ordinary low water mark, and not to the place, to which the tide ebbed, when from natural causes it ebbed the lowest. The ordinance declares, that the proprietors of lands “ shall have propriety to the low water mark.” It evidently contemplates and refers to a mark which could be readily ascertained and established ; and that, to which the tide on its ebb usually flows out, would be of that description. That place, to which the tide might ebb under an extraordinary combination of influences and of favoring winds, a few times during one generation, could not form such a known boundary, as would enable the owner of flats to ascertain satisfactorily the extent, to which he could build upon them. Much less would other persons, employed in the business of commerce and navigation, be able to ascertain with ease,and, accuracy, whether they were encroaching upon private rights or not, by sinking a pier or placing a monument. It would seem to be reasonable, that high and low water marks should be ascertained by the same rule. The place, to which tides ordinarily flow at high water, becomes thereby a well defined line or mark, which at all times can be ascertained without difficulty. If the title of the owner of the adjoining land were to be regarded as extending, without the aid of the ordinance, to the place to which the lowest neap tides flowed, there would be found no certain mark or boundary, by which its extent could be determined. The result would be the same, if his title were to be limited to the place, to which the highest spring tides might be found to flow. It is still necessary to ascertain his boundary at high water mark in all those places, [396]*396where the tide ebbs and flows more than one hundred rods for the purpose of ascertaining the extent of his title toward low water mark. It is only by considering the ordinance as having reference to the ordinary high and low water marks, that a line of boundary at low water mark becomes known, which can be satisfactorily proved, and which having been once ascertained will remain permanently established.
Sir Matthew Hale, in his treatise de Jure Maris c. 4, says, “ the shore is that ground, that is between the ordinary high and low water mark.” He remarks also, “it is certain that, that which the sea overflows, either at high spring tides or at extraordinary low tides, comes not as to this purpose under the denomination of littus Maris, and consequently the King’s title is not of that large extent, but only to land, that is usually overflowed at ordinary tides.” This treatise has been received by judicial tribunals and by distinguished jurists, both during the earlier and later days of the law, with unqualified approbation and commendation. Vide the note to the case of Exparte Jennings, 6 Cow. 536. The rule, as therein stated, appears to have been received with approbation in the cases of Storer v. Freeman, 6 Mass. R. 435, and Commonwealth v. Charlestown, 1 Pick. 180. In the case of Sparhawk v. Bullard, 1 Metc. 95, low water mark was considered to be at that place, to which the tide ebbed, when from natural causes it ebbed the lowest. No authority is there cited, or reason stated for this difference of opinion. The former conclusions appear to be more in accordance with reason and authority.
The instructions on this point must be regarded as correct; but if they could be otherwise regarded, the plaintiffs do not appear to have been aggrieved by them ; for the jury found, that the defendants did not occupy the flats “ which were above low water mark, when the tide ebbs the lowest by natural causes.”
Judgment on the verdict.