
    Mary E. Flynn vs. City of Boston.
    Suffolk.
    January 27, 1891.
    February 27, 1891.
    Present: Field, C. J., W. Allen, C. Allen, Holmes, & Morton, JJ.
    
      Municipal Corporation — Boundary—Watercourse.
    
    The boundary line between that part of the city of Boston called Breed’s Island and the town of Bevere is, by force of the Prov. St. of 1788-39, c. 17, and the St. of 1846, c. 127, the middle line of the channel of Belle Isle Creek.
    Tobt, for personal injuries occasioned to the plaintiff by a defect in Beachmont Avenue.
    At the trial in the Superior Court, before Pitman, J., it was admitted or appeared in evidence that Beachmont Avenue was a public highway extending from that part of Boston called Breed’s Island to the town of Revere across Belle Isle Creek; that this creek was a salt water stream from 180 to 190 feet wide at high water, and at low tide only from three to five feet wide, having at low water a well defined channel of that width navigable by row-boats ; and that the defect in question was located, and the plaintiff sustained her injuries, at a point on the avenue between the middle line of the channel of Belle Isle Creek and the northerly or Revere shore of the same. The plaintiff contended that the defect was located within the limits of the city of Boston, and requested the judge to rule that the boundary line between Boston and Revere was on the northerly shore of Belle Isle Creek, and that the town of Revere did not extend to the thread of the stream. The judge refused so to rule, and instructed the jury that, for the purposes of this case, the boundary line between Boston and Revere was the thread of the stream, or the middle of the channel of Belle Isle Creek.
    The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.
    
      W. B. Orcutt & E. J. Jenkins, for the plaintiff.
    
      T. M. Babson, for the defendant.
   C. Allen, J.

When the town of Chelsea was originally created, it consisted of “ all the lands within the town of Boston that lie on the northerly and northeasterly side of the harbor, . . . excepting only the said islands called Noddle’s Island and Hog Island.” Hog Island has since been called Breed’s Island, and the portion of Chelsea nearest thereto now forms a part of the town of Revere; and at the point where the boundary line is now in controversy, Breed’s Island and Revere are separated by Belle Isle Creek. The land of which Chelsea was originally composed was described generally as bounded “southerly on the harbor ”; but the boundary line between Chelsea and Hog Island at the point now in controversy was not upon the harbor, but was Belle Isle Creek. Prov. St. of 1738-39, c. 17, 2 Prov. Laws, (State ed.) 969. This results necessarily from excepting Hog Island from the land set off. Belle Isle Creek is a salt water creek, 180 or 190 feet wide at high water, but at low tide only from three to five feet in width, having a well defined channel of that width, navigable by row-boats at low water. There was a public highway from Breed’s Island, which is a part of Boston, across Belle Isle Creek to Revere, and it became a question whether the "boundary line between Boston and Revere is in th.e centre of the creek, or on the northerly or Revere shore thereof.

Ordinarily, where a stream of water constitutes the boundary line between two nations, states, or towns, each holds to the middle of the stream. Ipswich, petitioners, 13 Pick. 431, 435. Cold Spring Iron Works v. Tolland, 9 Cush. 492. Harlow v. Fisk, 12 Cush. 302, 306. Boston v. Richardson, 13 Allen, 146, 157, 158. State v. Canterbury, 28 N. H. 195. State v. Gilmanton, 14 N. H. 467. Handly v. Anthony, 5 Wheat. 374, 379. Schooner Fame, 3 Mason, 147. The convenience of this rule is obvious, and we find nothing in either of the statutes referred to which makes it inapplicable to the present case. Prov. St. 1738-39, c. 17,2 Prov. Laws, (State ed.) 969. St. 1846, c. 127. The Legislature may fix and change boundaries of towns at will. When it is found that Belle Isle Creek was by necessary construction the boundary line between what was left of Boston and the new town set off from the original territory of Boston, it is not as if there had been a cession or grant by Boston of the lands beyond the creek, and we need not inquire what would be the rule in such a case as that. The boundary line between the two towns results from the action of the General Court, and there is no presumption to take the case out of the general rule. The instructions to the jury were correct.

Exceptions overruled.  