
    Briggs Thomas, Complainant, versus The Inhabitants of Marshfield.
    In a statute for protecting a beach from damage, a clause that any person having “ any legal title in any part thereof,” shall be compensated for any injury he may sustain under the provisions of the statute, is broad enough to cover an injury to a right of common in tile beach.
    It is not necessary, in order to sustain a grant by a vote of a town, to show a consideration for the grant.
    A grant of a right of common to the inhabitants for the time being (not incorporated) of a certain territory, conveys no right to persons who are not inhabitants at the time of the grant.
    The complaint alleged, that a statute was passed on February 21st, 1827, (St. 1826, c. 81,) revived on March 3d, 1829, (by St. 1828, c. 124,) and accepted by the town of Marsh-field on May 18th, 1829, by the authority of which all neat cattle, horses and sheep, were prohibited from going at large on Marshfield beach, in that town, and that it was enacted by the statute, that any person having any legal title to any part of the beach, should be compensated by the town of Marshfield for any injury he might sustain under the provisions of the statute, to be estimated in the manner provided by law for persons injured by the location of highways; that at the time of the enactment of the statute, the complainant was seised in fee of a farm situated in Marshfield, bounded east by the beach, with its privileges and appurtenances ; and that one of the appurtenances thereof was a prescriptive right of commonage on that part of the beach which lies north of Hewitt’s island, for all such cattle, horses and sheep as were levant and couchant upon the farm : — Also, that at the time of the enactment of the statute, the complainant was an inhabitant of that part of Marshfield which is called the Neck, he having been born and always heretofore resided and still residing in that part, and that he became seised, and now is seised, of a right of commonage on that part of the beach which lies upon “ the said neck of land between the South river and Green’s Harbour river, and Green’s Harbour river and the sea, that is to say, the beach from the South river’s mouth to Green’s Harbour river’s mouth, for the purpose of depasturing with horses and neat cattle and sheep, during the term of his natural life, provided he should so long continue to be an inhabitant of said neck,” by virtue of a grant of the town of Marsh-field to the inhabitants of that part of the town described as above, made and executed by the inhabitants of Marsh-field on October 13th, 1645. The complaint prayed that a jury might be awarded in pursuance of the provisions of the statute.
    The respondents pleaded, among other things, that the com plainant had no legal title to any part of the beach; and that he had not sustained any damages under any of the provisions of the statute. ¡
    A trial was had before Morton J. and a case was reserved, which turned chiefly on the effect of the supposed grant of 1645, whereof a copy from the town records was produced, as follows : — “ At the sáme time such commoning as lies upon the neck of land between the South river and Green’s Harbour river and between Green’s Harbour river and the sea, viz. the beach from the South river’s mouth to Green’s Harbour river’s mouth, to be given to that neighbourhood of the town from Duxbury-ward on the south side the South river to the mouth of Green’s Harbour river where it falls into the sea, and that it shall not be lawful for any other of this town or elsewhere to common there, nor for any within the present list to inclose any part thereof without special leave of the rest, nor any division thereof to be made amongst the present inhabitants, but to belong to the neighbourhood, as well such as may arise and shall hereafter, as those that are now raised upon the same.”
    
      oa. zm
    
    
      W. Baylies and Eddy, for the respondents.
    The extract from the town records does not show a vote or a grant by the town, but admitting it to be a grant, it is invalid for want of a consideration. 4 Kent’s Comm. 454 ; 4. Dane’s Abr. 123.
    There are no legal grantees named or described in the grant. The word “neighbourhood” is indefinite in its extent. Supposing it to mean the inhabitants of the Neck, they were not a corporation and were therefore incapable of taking. And if they could take, the grant was personal to the inhabit ants who were then in being. A creation of a succession of life estates ad infinitum, according to the interpretation given to this grant in the complaint, is a-new principle in the law. Barker v. Wood, 9 Mass. R. 419 ; Worcester v. Green, 2 Pick. 429 ; Com. Dig. Capacity, B 1 ; Shep. Touch. 237 ; Hornbeck v. Westbrook, 9 Johns. R. 73; Hornbeck v. Sleght, 12 Johns. R. 199 ; Com. Dig. Grant, B 1 ; Jackson v. Cory, 8 Johns. R. 301 ; Gateward’s Case, 6 Co. 60, 61.
    The grant is also void for uncertainty, there being no designation of the subject matter, whether wood, herbage, &c. in which a privilege was granted. Shep. Touch. 250, cites Dyer, 91 ; Worthington v. Hylyer, 4 Mass. R. 205.
    It is a grant of a common in gross without stint, and therefore invalid. Com. Dig. Common, D.
    
    
      Wood and Beal, for the plaintiff.
    The legislature intended to protect any interest in the beach ; so that whether the plaintiff has a right in the soil itself, or only in the grass, rocks, &c. he comes within the statute. Ellis v. Welch, 6 Mass. R. 251.
    Towns may pass a fee by vote, and whether any consideration is mentioned or not, is immaterial. In the case of a grant so ancient as this one, a. consideration will be presumed.
    The grant is merely of a franchise, and it is to the inhabitants for the time being, of the neck of land described in the grant. There is no uncertainty in regard to the extent of that territory ; and a grant of this kind will be sustained by the law. Rehoboth v. Hunt, 1 Pick. 224 ; Lufkin v. Haskell, 3 Pick. 356.
    Though the terms of the grant are general, they would be limited by the law to cattle levant and couchant on the neck of land described ; Mellor v. Spateman, 1 Saund. 343 ; they may also be limited by usage.
    
      Oct. 30th.
    
   Wilde J.

delivered the opinion of the Court. This process is founded on St. 1826, c. 81, which authorizes the town of Marshfield to build a sea-wall, palisade, or hedge fence, for the purpose of preserving and securing Marshfield beach and for other purposes. The 7th section provides, “ that if any person has a legal title in or to said beach, or any part thereof, he shall have a right to a compensation in damages, for any injury he may sustain under any of the provisions of the said statute.” The complainant alleges, that at the time of passing the statute, he had a right of commonage for his neat cattle, horses, and sheep, and he claims compensation for the damage he has sustained, under this statute, which prohibits the going at large of all neat cattle, horses and sheep, under cer tain penalties. There seems to be no doubt that a right of common of pasture is such a title in the land as may sustain, a claim for compensation under the statute. A commoner is not the absolute owner of the soil, but he has a special and limited interest in it; and the statute was intended to provide for compensation for damages to every one who had a legal title, whether it was absolute or limited. Therefore the main question is, whether the complainant had a right of common, as is alleged in the complaint. He relies on two titles ; first, a title by prescription to a right of common as appurtenant to his farm ; and secondly, a title by grant from the town of Marshfield.

The arguments have been confined to the latter title; it being understood that if this title should not be considered valid, a new trial is to be granted. Some of the objections to the grant do not appear to be well founded. The law'is now settled, that a grant by vote of a town, is by our laws good without a seal. Springfield v. Miller, 12 Mass. R. 417. And it is clearly not necessary to show any consideration for the grant.

But two objections have been made, which we think have not been, and cannot be satisfactorily answered.

1. The first objection is, that the grantees are not named nor designated with sufficient certainty.

2. The other objection is, that some of the intended grantees were not capable of taking, not being in existence at the time of the grant.

With regard to the first objection, it is not essential to the validity of a grant, that the grantee or grantees should be named ; but if. not named, they must be ascertained by description, so as to be distinguished from all other? ; and any uncertainty in this respect will render the grant void. The grant in question was made to the inhabitants of a certain neighbourhood, but the neighbourhood is not defined with sufficient certainty, and its exact limits have not been ascertained.

But if this difficulty could be avoided, an insuperable one remains. It was the intention of the town, that the right of common should be held in succession. It was a grant not only to those who resided in the neighbourhood at the time of the grant, but to those also who might reside there after-wards. And as this intention cannot prevail, the object of the grant is defeated. If, however, it gave a right to those residing in the neighbourhood at the time, they only took by the terms of the grant, an estate for life ; and if it had been a grant to them and their heirs, it would not aid the complainant, for he does not claim as heir. It is impossible for him, therefore, as the law and the facts are,'to maintain any tide under this grant.

As to the title by prescription no opinion is given, it being understood that the complainant’s title by grant failing, a new trial is to be had on the issue as to the other title.

New trial granted. 
      
       See Jackson v. Sisson, 2 Johns. Cas. 321 ; Reformed Dutch Church v. Veeder, 4 Wendell, 494 ; Duncan v. Beard, 2 Nott & M'Cord, 400.
     
      
       See Thomas v. Marshfield. 13 Pick. 240.
     