
    The Boston Mill Corporation versus Jeremiah Bulfinch.
    Where one had driven piles into the ground which was covered by a mill-pond belonging to another, and had erected and maintained buildings on the said piles for sixty years, the water of the pond flowing between the piles, it was held to constitute a disseisin of the owner of the mill-pond, and he was barred of his right to the land so occupied.
    This was an action of entry sur disseisin, to recover possession of the land described in the writ, of which the demandants allege that they were seised within thirty years, and have been disseised by the tenant.
    Upon the general issue pleaded and joined, the action was tried at the last November term in this county, before Parker, J., from whose report it appears that the demandants proved their seisin of the mill-pond, so called, in Boston, within the time alleged, and that the same has been used by them, and those whose estates they have, time out of mind, for the purpose of working and improving several mills erected at different outlets of said pond, and also for the purpose of docking timber, masts, &c.
    The land described in the writ is part of the flats, which form the bed of the said mill-pond, and the water flows over it.
    The tenant proved himself to be the owner of the upland con tiguous to the land demanded, and he also proved that he, and those whose estate he has, had, for more than sixty years before the commencement of this action, erected and continued two certain buildings, used as stores and as stables, over the land demanded, which buildings rested * upon piles driven into [ * 28© ] the mud or flats, which piles were so far asunder that the water flowed under the said buildings up to the margin of the upland ; but boats or rafts could not pass under.
    There was a space of about five feet between the two buildings aforesaid, which was used, by the owners of the upland now belonging to Bulfinch, as a passage-way down to the water, for the convenience of their business, and during part of the time boards were fixed across from one building to the other; and the front of the piles, towards the water, on which the buildings stood, had been for a part of the time aforesaid planked up ; but the sides had always been left open.
    During all the time which the buildings aforesaid have continued, there was no recognition or denial, by those who ownea the mill-pond, of the ight to maintain the buildings as they stood but in the year 1798, when Bulfinch, the tenant, was carrying earth under his stable, to extend his upland, one Jonas Welsh, who then occupied the North Mills under his brother, who was one of several tenants in common of the mill-pond, forbade him, and he then desisted.
    There was no evidence that Bulfinch, or any other person under whom he claims, had straitened the pond, or filled it up, otherwise than by placing the piles aforesaid as a foundation for the said buildings.
    Upon these facts, about which there was no controversy, the jury were instructed that the tenant could lawfully maintain his possession against the demandants, and that he had not disseised them, as alleged in the writ.; and a verdict was accordingly returned for the tenant, subject to the opinion of the Court whether the direction aforesaid was right; and if it was, judgment to be entered on the verdict; otherwise a new trial to be granted.
    The cause stood over for argument to this term; and now the motion for a new trial was supported by Jackson and W. H. Sumner, of counsel for the demandants, and opposed [ * 231 ] * by the solicitor-general and Thatcher, oí counsel for the tenant.
    
      Sumner stated the question before the Court to be, whether the possession of the tenant, as it was proved at the trial, and appears in the judge’s report, was such as to constitute an ouster of the demandants. He went into a history of the demandants’ title to the mill-pond, which he traced up to a grant from the colony of Massachusetts Bay in 1642 ; and he contended that the occupation which the tenant had had, being entirely compatible with all the use the demandants made of their estate, had no tendency to oust them, or to affect their possession ; and he cited the opinion of the Court in the case of The Proprietors of the Kennebeck Purchase . vs. Springer 
       as in point — “ To constitute an ouster of him who was seised, the disseisor must have the actual exclusive occupation of the land, claiming to hold it against him who was seised, or he must actually turn him out of possession.” When the tenant attempted another kind of occupation, in 1798, by filling up the pond under his buildings, he was immediately forbidden in behalf of the owners of the pond, and his desisting forthwith amounted to a satisfactory confession of their right and title.
    
      Thatcher urged the hardship to the tenant, if the demandants’ claim should be established ; whose object, he said, was to but down the tenant’s buildings, which he and his predecessors had quietly possessed for more than sixty years; and he adverted to the filling up of the pond, which is now in operation by the demandants, for the purpose of converting it into building ground. Their title to the pond is not contested by the tenant, and they still have all the use and benefit of it intended them by the original grant, under which they claim to hold it. Or, if the tenant’s manner of occupation is inconsistent with this, it has now continued too long for the demandants lawfully to disturb it. There was no evidence that Welsh had any authority from the owners to intermeddle as he did; and without such * authority, his act was [ * 232 ] void, and no inference can be drawn from it.
    
      The solicitor-general contended that the tenant’s title was good to the soil by the deeds which were read at the trial; but without relying upon them, his sixty years’ quiet possession was enough to give him a valid title. This possession was as exclusive as property of this nature was capable of. It was absolutely so, except that at every tide the moon brought the waters of the ocean over our premises.
    There can be no such thing as a partial or half ouster. Eithei the demandants are not now disseised, or they have been disseised these sixty years, so that quácunque via data they have no good cause of action. All that the demandants have shown is a right to an easement; the soil may still be in the tenant, in perfect consistency with the whole title they have shown in themselves.
    Jackson, in reply, insisted that the demandants owned the soil ot the mill-pond. Their right to it had never been questioned since 1642. It was very far from a mere easement, as the filling it up, which had been alluded to, sufficiently proved. The point cited from the case of The Proprietors, &c., vs. Springer, precisely applied in principle; and, indeed, the doctrine of that case had never been disputed. The occupation of land, to constitute a disseisin, must be so notorious that the right owner may have notice, and be put upon his guard. The desisting by the tenant to fill up the pond, when warned to desist, was an acknowledgment both of Welsh’s authority, and of the right of those under whom he claimed to act; so that it is of no importance whether he was clothed with legal authority or not. While the sort of possession which the tenant has had of the land demanded, occasioned no inconvenience to the owners of the soil, it was not considered by them as hostile to their rights, and was indulged by them as an act of good neighborhood ; it is not in a court of law, therefore, to be shown in bar of theii recovering their rights.
    * The opinion of the Court, except the chief justice, [ * 233 who did not sit in the cause, was afterwards delivered by
    
      
       4 Mass. Rep. 416.
    
   Sedgwick, J.

The tenant relies upon the statute of limitations. If the demandants have for thirty years been disseised, whatever their right might otherwise be, they cannot recover.

The occupation on which the tenant relies as a disseisin, has continued uninterrupted for more than thirty years; and the only question is, whether that occupation is a disseisin ? The occupation is by two buildings standing within five feet of each other. They stand upon piles driven into the ground. The water flows under these buildings, but neither boats nor rafts can pass under them. The vacant space between the buildings has been used by the tenant, and those with whose occupation his own is connected, as a passage-way down to the water, for the convenience of their business; and during part of the time the piles in front of the building had been planked up, although the sides were always left open.

We have none of us any doubt that such an occupation, open and visible as it was, and almost the only one which, under the circumstances of the subject of occupation, could have existed, is a disseisin. It was independent and notorious, and a complete prevention of the rights of ownership of the demandants. They claim and demand the land; but there has been no time, during this adverse possession, that they could or attempted to use it. Water flowed round the piles and under the buildings. This was no prevention of the occupation of those who owned the buildings; but that occupation was an absolute prevention of any use of the demandants, and a complete exclusion of their possession.

This opinion we think not only consistent with the doctrine laid down in the case of The Proprietors of the Kennebeck Purchase vs. Springer, which was cited at the bar, but supported by it. [*234] *As to the vacant space between the two buildings, it seems to be appurtenant to them ; to have been used by the owners of them for the purpose of carrying on their business connected with them ; and occasionally so planked as to prevent the demandants from entering from the water. This is certainly such an open and visible occupation as must, from the nature of the subject, constitute a disseisin.

The controversy is relative to the land, and not the water; and from the possession of the land the demandants were as much excluded as if the buildings had rested on the firmest and most substantial foundation.

As to what took place between the tenant and Jonas Welsh in 1798, as to any construction from the tenant’s conduct, it is a sufficient answer, that long before that time the right of the demandants was gone.

There must be judgment accoiding to the verdict  