Mather v. Chapman

40 Conn. 382

Opinion

Seymour, C. J.

The first count of the plaintiffs’ declaration is in trespass for the taking and converting to his own use by the defendant of large quantities of sea-weed alleged to be the proper goods and estate of the plaintiffs. This seaweed was cast upon the shore adjoining the defendant’s land, and was there, below higli-water mark, taken by the defendant and converted to 1ns own use. The Court of Common Pleas, against the request of the plaintiffs, instructed the jury, in substance, that sea-weed cast and left upon the shore, (that is, between ordinary high and low-water mark,) primd facie belongs to the public and may lawfully be appropriated by the first occupant.

To' this charge the plaintiffs object, and the principal question in the case arises upon this objection.

A different question arises under the second count, which will be considered in its proper place.

It is conceded that by the settled law of Connecticut the title of a riparian proprietor terminates at ordinary high-water mark. It is also conceded that though his title in fee thus terminates, yet he has certain privileges in the adjoining-waters.

Among the most important of these privileges are — (1.) That of access to the deep sea. (2.) The right to extend his lands into the water by means of wharves, subject to the qualification that he thereby does no injury to the free navigation of the water by the public. (8.) The right by accretion to whatever lands by natural or artificial means are reclaimed from the sea, subject however to certain qualifications not necessary here to be mentioned.

The plaintiffs claim that among the privileges of the riparian proprietor is also that of the exclusive right to the seaweed which is cast upon the shore and left there by the recoding tide.

In respect to the weed cast by extraordinary floods upon the land of the proprietor and there left above ordinary high-water mark, the law of this state is settled, in conformity with what wc understand to he the common law of England. The owner of the soil has it ratione soli. No other person can then take it without a trespass upon the owner’s land, and as owner of the land he is deemed to he constructively the first occupant.

But below high-water mark the soil does not belong to the owner of the upland. The sea-weed in dispute was not taken from the plaintiffs’ land, and their title, if they have a title, is not ratione soli. No trespass on the plaintiffs’ land was committed by the defendant in taking the weed, for the taking of which recovery is sought in this count

Footnotes

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Upon what ground then can the plaintiffs sustain the title which they claim to the weed ? While it was floating on the tide it was publici juris. Why, when it is left on the shore by the receding tide, should it become their property ?

In Massachusetts and Maine, by virtue of the Colonial Ordinance of 1641, the individual title of proprietors adjoining navigable water extends to low-water mark. Sea-weed left by the receding tides being then on private property, the owner of the soil has title ratione soli, not only to sea-weed but to other articles cast upon and left on the shore. Thus in Barker v. Bates, 13 Pick., 255, a stick of timber was thrown up and had lodged on the shore within the old colony of Plymouth. The question is largely discussed by Shaw, Ch. J., whether the ordinance of 1641 extends to the colony of Plymouth. That being settled, the learned judge proceeds to say: “ Considering it as thus established that the place upon which this timber was thrown and had lodged was the soil and freehold of the plaintiff, the defendants cannot justify their entry for the purpose of taking away or marking the timber. We are of opinion that such entry was a trespass, and that, as between the plaintiff and defendant, the plaintiff had in virtue of his title to the soil the preferable riglit of possession, and that the plaintiff has a right to recover the agreed value of the timber.”

The cases therefore in Massachusetts and Maine which decide that sea-weed left on the shore belongs to the riparian proprietor have no application here. In New Hampshire the Massachusetts ordinance is adopted as law.

In New York the common law rule is adopted, as with us, in relation to the boundary line between the public and the riparian proprietor, and it is claimed that in Emans v. Turnbull, 2 Johns. R., 313, the question before us is decided in conformity with the plaintiffs’ claim. The judgment in that case is pronounced by a judge of profound learning, whose opinion upon the point now under discussion, if really given, would be entilied-to great weight; but we are inclined lo think that the sea-weed in that case was cast upon the land of the plaintiff. The main argument at the bar and on the bench relates to the title to the locus in quo. Chief Justice Kent says : — “ If the marine increase be by small and imperceptible degrees, it goes to the owner of the land. The sea-weed must be supposed to harm accumulated gradually.”

In the case avc are called on to decide the sea-Aveed could not be regarded as a marine increase of the plaintiffs’ land, for it had not reached their land and Avas not attached to it nor connected with it. To be a marine increase it must form part and parcel of the land itself. Being between high and low-water mark, at each returning tide it Avould be afloat, and even in Massachusetts sea-weed Avheu afloat is publiei juris, although floating over soil Avliicli is private property.

The sea-Aveed in this suit is not treated as part of the real estate which by small and imperceptible degrees had become part of the plaintiffs’ land. It is treated as personal property, and the defendant is sued for taking it as such and coi-iArerting it to his own use. In the case of Emans v. Turnbull the plaintiff’s title was held good upon a liberal construction of the jus alluvionis, which implies that the weed had then become part and parcel of the plaintiff’s land and must therefore have been aboAre or upon ordinary high-water mark. Title to personal property jus alluvionis would be a novelty in the law. 2 Black. Com., 262. Title by accretion is substantially the same as by alluvion. Both are modes of acquiring title to real property.

Title however to personal property may be acquired by what in law is called accession, but to acquire title by accession the accessory thing must be united to the principal, so as to constitute part and parcel of it. “ Accessio” is defined by Bouvier as “ a manner of acquiring the property in a thing which becomes united with that which a person already possesses.” The plaintiffs therefore seem to us to have no title by alluvion, or by accretion, or by accession, certainly none roblone soli, and they cannot be regarded as first occupants by construction merely because of the propinquity of their land to the property in dispute.

The question under discussion does not seem to be fully settled in England. The soil of the sea-shore is there, as with us, primd facie in the public, bitt it may become private property, and frequently is so, where the adjoining lands are part of the manor. The authority of Bracton is clearly in favor, (1st,) of the common right of all to the shores of the sea as part of the sea itself. (2d.) In Liber 2, speaking of the right of first occupancy, he says “Item, locum luibet eadem species occupationis in iis quae communia sunt, sicut in mare et littore marls, in lappillis et geminis et ceteris in littore maris inventis.” Sea-weed must be included within the et ceteris of Bracton in this passage, and upon liis authority belongs to the first occupant.

The opinion of Lord Hale in favor of the common right to take sea-weed on the shore is shown by the following passage in chapter 6 of Hale do Jure Maris. After speaking of three kinds of shore he says, “ This kind of shore, to wit, that which is covered by the ordinary flux of the ocean, may belong to a subject, and may be parcel of a manor, and the evidences to prove it parcel of a manor are commonly these, constant and usual fetching of gravel and sea-weed and sea-sand, between high and low-water mark, and licensing others so to do.”

In the case however of Bagott v. Orr, 2 Bos. & Pul., 472, the court expressed doubts upon the right of the public to come upon the shore and take shells which had been thrown up and left there by the tide.

In the case of Blundell v. Catterall there occurs a very learned and interesting discussion upon the right of the public between high and low-water mark, but the precise question now under our consideration is not made the subject of comment.

The case of Church v. Meeker, 34 Conn. R., 421, is relied upon by both parties. We think the opinion of Judge But ler in that case must he construed as applicable solely to seaweed found as it there was above high-water mark.

In the case of Peck v. Lockwood, 5 Day, 22, the plaintiff owned a portion of the shore below ordinary high-water mark, and it was held that he could not maintain trespass against the defendant, who entered the premises when the tide was out and dug for shell fish and carried the fish away. That is a strong case in favor of the common right of fishing.

But the right of taking sea-weed would seem to stand on the same ground as the right of taking fish. We see no reason for making a distinction between the vegetable and animal products of tlio ocean. Neither in the stale of nature is the property of any one; the title to both depends upon the first occupancy. It is agreed that while afloat both are alike common; why, when the tide recedes and leaves shellfish and sea-weed on the shore, should the sea-weed belong to the riparian proprietor when confessedly the shell-fish remains common properly ?

We think the charge of the judge in regard to the first count was correct.

In respect to the second count a different question arises.

The plaintiffs under that count claimed to recover for the throwing off from the defendant’s upland upon tlio shore a small heap of sea-weed which liad been gathered by the plaintiffs and laid there. The plaintiffs claimed the right to pile it on the upland where it was piled, and the defendant denied the right and justified the removal of the heap as a nuisance. The conveyances upon which this question depends are as follows.

Prior to January 7th, 1847, John J. Avery was the owner of a large tract of land in the town of Groton lying contiguous to the waters of Fishers’ Island Sound, divided into two farms, and hounding southerly for some distance on “ salt water.” On that day ho conveyed to his son, Albert L. Avery, the south part of the farm, reserving “ all the sea-manure privilege of the shore east of the mow lots north of Pine Island, <fcc., with the privilege of piling Tip said sea-manure on the shore, and then re-carting to the north farm; for the use of his son Erastus Avery, or whosoever should improve his said north farm.” On the 18th of March, 1847, he conveyed to his son Erastus Avery the north farm, and also “the manure privileges reserved in a deed from me to Albert L. Avery; said privileges consisting in the right to all the rock-weed on the shore from Latham’s Chair, on Eastern Point, easterly to a sharp rock at the East end of Elihu’s Beach, being at the west end of a clump of rocks, together with the drift manure on the west part of said beach, three-fourths of the length thereof; and likewise all the rock-weed and drift-manure from the shore, commencing on the east side of the Jonathan Latham lot, to the land of .John Baker, together with the right of way to and from said shores, to collect and to remove said manure in a proper manner, &c.”

The plaintiffs claimed title under the foregoing deed to Erastus Avery. The defendant’s title was under a deed dated the 27th of April, 1864, from Albert L. Avery, which convoyed to the defendant a portion of the south farm, which had been conveyed to him in 1847, bounding on the shore, “ excepting and reserving all the sea-manure privilege on the shore of the land hereby granted, said manure privilege having been sold and conveyed to other parties, the holders of which privilege, their heirs and assigns, are to have the right of way to the shores for the purpose of removing such manure in accordance with provisions granted.”

The court charged the jury that, as the plaintiffs are limited by their deeds to piling sea-weed “on the shore” they had no right by virtue of their deeds and reservations therein to pile it upon the upland. The defendant’s argument is that the word “ shore” has a definite and inflexible meaning in law, denoting the space between ordinary high and low-water mark. It is true that the word is now generally used in treatises on navigable waters in that sense, but Lord Hale says there be three kinds of shore. (Hale do Jure Maris, chap. 6.) One of these three kinds is the space between high and low-water mark. Both the other kinds embrace portions of the land above ordinary high-water mark.

Webster, in his Dictionary, defines shore thus: — “ The coast or land adjacent to the ocean, sea or a large lake or river.” He says we use the word to express the laud near the border of the sea or of a great lake to an indefinite extent, as when we say “ a town stands on the shore.” Bonvier defines shore as “land on the side of the sea or a lake or river.” He gives to the compound word “ sea-shore” the more limited meaning of land between high and low-water mark.

The privilege of piling the manure above high-water mark, on the margin of the land granted, is a valuable privilege and a proper subject of reservation, for it reserves a right in the thing granted, hut the land below ordinary higli-wator mark not belonging to the grantor, tlio reservation of a right to pile sea-weed there would be the reservation of a right not in nor upon the land granted, hut wholly outside of it. The reservation ought to ho construed as reserving something which but for the reservation would have passed by the deed; but the right to pile sea-weed between high and low-water mark is a right which, as we have already seen, does not pertain to the riparian proprietor. Besides, such a right would bo of small value, if indeed of any value, for each returning tide would probably scatter the pile.

In regard to this count, wo think the construction given to the reservation was wrong, and therefore adviso a new trial.

In this opinion the other judges concurred.

Both the judge and the counsel in discussing the abstract question of the title to sea-weed left upon the shore, speak of the adjoining upland as the land of the plaintiffs. The plaintiff's’ rights as to the sea-weed were precisely what they would have been if they had been in fact the owners of the upland, since they took whatever rights in this respect were originally owned by John J. Avery as owner of the upland ; those entire rights having been reserved in his deed of the land to Albert L. Avery, and afterwards conveyed entire to Erastus Avery, from whom they came to the plaintiffs. The plaintiffs therefore stood only upon an easement, but their rights under that easement, so far as the shore was concerned, were those of adjoining owners. It would require so much circumlocution to state their position with accuracy every time there is occasion to refer to it, that it as well to consider them, for the purposes of the discussion, as in fact owners of the upland. Ü.