
    Priscilla Adams versus Andrew Frothingham.
    A proprietary grant m 1680, of “ a piece of land below high-water mark, to set a shop upon not exceeding forty feet in width,” was construed to extend to low water mark.
    A conveyance of a moiety of a piece of land m quantity and quality, creates an estate in common between the grantor and grantee.
    Whatever addition is made to the shores of rivers, &c. by alluvion, from natural causes, or from a union of natural and artificial causes, belongs to the owners of tt e shores.
    Low-water mark is a description of the boundary of land in a judgment in a rea action sufficiently certain, to enable the sheriff to execute such judgment by at habere Jacios seisinam.
    
    This was a writ of right, in which the demandant claimed an undivided moiety of a certain parcel of land in Newburypcrt, bounded northwardly on Merrimack river. The writ was dated the 8th day of February, 1802, and alleges that Zaccheus Perkins, the 1 * 353 ] demandant’s father, was seised *of the same within sixty years from the date of the writ: that, on his death, the same descended to her as his daughter and heir, and that the tenant deforceth her.
    The demandant having obtained a verdict in the original action, the tenant brought his writ of review, upon which another trial was had before Parker, J., April term, 1806, when a verdict was again rendered for the demandant. The tenant moved for a new trial for the misdirection of the judge at the trial, and that motion came on now to be argued by Dane and Putnam for the tenant, and Jackson for the demandant, before Sedgwick, Seioall, and Parker, Justices • the Chief Justice not sitting, as he had been formerly of counsel in the cause.
    The report of the judge, who sat in the trial, states that the demandant, to prove the seisin of her ancestor, read in evidence the copy of a vote of the town of Newbury 
      , passed 8 March, 1680, granting William Noyes a piece of land below high-water mark, to set a shop upon, and not exceeding forty feet in the front; also the copy of another vote, passed 9 February, 1721, granting to the same W. Noyes another parcel of land above high-water mark, and bounded northwardly thereby. The demandant then read a deed of Parker Noyes and his wife, who had the estate of the said W. Noyes, dated 10 November, 1740, of the same two parcels of land to Zaccheus Perkins, her father.
    On the 28th of April, 1741, the said Z. Perkins conveyed the same two parcels of land by deed to Spencer Bennett, who, on the 2d of March, 1742, conveyed one half of the house which had been built on the upland, and of the land upon which it stood, by metes and bounds, together with one half of the land and flats below the house in quantity and quality, to the said Z. Perkins.
    
    It appeared in evidence, by depositions in the case, that Bennett had, in 1740, lived in a house on the premises, and built a shop below the house on a wharf or breastwork, also built by him ; but it did not appear under whom he so occupied. It also appeared that the west end of the house and * the land [ * 354 ] back of it was occupied under Z. Perkins, and that the flats below were used in common by the occupants of each part of the house.
    It was also proved that, by the shifting of the channel of the river, the flats were much increased in extent, since the year 1740.
    The tenant produced in evidence a deed from a committee of the proprietors of Newbury, dated 15th of June, 1750, conveying, besides a piece of upland, “ a piece of flats of forty feet in breadth, running from the rear of W. Noyes’s grant down to the channel,” to Spencer Bennett, under whom, by the deed of said Bennett to James M’Hei 1, and by deed of the heirs or devisees of M’Herd to the tenant, he claims to hold.
    The tenant’s ccrunsel insisted, at the trial, that Z. Perlcins could have been seised of the flats only as they in fact existed at his death, and that none which had been made by alluvion could be recovered by the present demandant. The judge directed the jury that, if Perkins was seised of the flats within sixty years, whatever increase there had been rightfully accrued to the demandant as his heir.
    They also contended that the grant of the proprietors to Noyes passed to him no more of the flats than were sufficient to set a shop upon. Upon this point the jury were directed that, by the legal construction of the grant, it extended to low-water mark; which appeared, by the evidence in the case, to have been the construction given by all who had occupied under said grant.
    It was then contended that the deed from Bennett to Perkins did not necessarily create a tenancy in common; and that, if such was the legal construction of the deed, the jury might presume that a uartition had been made by the parties. The judge directed the ury that, by virtue of the said deed, Bennett and Perkins became tenants in common, and, there being no evidence of any holding in severalty, except of the upland, which severance was in conformity with the deed, there was nothing in the case from which a partition of the flats could be inferred.
    Another point made by the tenant’s counsel was, that [ * 355 ] Bennett, * having entered in 1740, and built a wharf, and afterwards having purchased of the proprietors, must be considered as having entered under the proprietors, and not under Z. Perkins. Upon this point the jury were instructed that Bennett having conveyed to Perkins in 1742, his purchase of the proprietors in 1750, provided he acquired any title by that purchase, inured to the use of Perkins, whom he had made, by his deed, tenant in common with himself.
    Finally, the judge directed the jury, if they were satisfied with the evidence of the demandant’s title, as she had set it forth, they might by their verdict find that, to all the demanded premises above low-water mark, she had a better right to recover than the said Frothingham had to hold; and their verdict was accordingly. To all which opinions and directions the counsel for the tenant excepted.
    And now, Putnam, in support of the motion for a new trial, contended that the grant to W. Noyes, in 1680, of a piece of land below high-water mark to set a shop upon, could, by no legal construction, be intended a grant from high to low water mark. The extent northwardly towards the river was uncertain by the words of the grant. It is true it might be made certain by the grantee’s taking possession of, and actually occupying to a certain limit. But this was a question of fact belonging exclusively to the jury. The distance from high to low-water mark might contain a space sufficient to set ten shops upon. The observation of Justice Buller, in the case of Macbeath vs. Haldimand 
      , on the construction of letters, applies fully to this point. “ If they be written,” says the learned judge, “ in so dubious a manner as to be capable of different constructions, and can be explained by other transactions, the whole evidence must be left to the jury to decide upon; for they are to judge of the truth or falsehood of such collateral facts, which may !ary the sense of the letters themselves; but if they be not explained by any other circumstances, then like deeds, or other written, agreements, the construction of them is a mere matter of law.” In the case at bar, the tenant showed circumstances dehors the grant,- which went to explain * and limit the extent of [ * 356 ] the grant; yet the judge directed the jury, as a matter of law, that the grant should extend to low-water mark. In Doe vs. Burt 
      , Justice Ashurst says, “ that the construction of all deeds must be made with a reference to their subject matter. And it may be necessary to put a different construction on leases made in populous cities, from that on those made in the country.” In the same case Justice Buller observes, that, “ Where there is a convey anee in general terms of all that acre, called Black-acre, every thing which belongs to Black-acre passes with it. But whether parcel or not of the thing demised, is always matter of evidence.”
    Put the case that one, owning a tract of land abutting on a street on one side, and extending thence in depth a mile, grants a part of it under the description of a house-lot of a definite width on the street, but without limiting its depth; would it be contended that the grantee might extend his location the whole mile ? Actual and undisturbed occupation would be the only mean by which the extent of the grant could be ascertained.
    All that the present demandant can have a pretence of right to, is so much as her father died seised of. It was in evidence that from particular causes, other than natural ones, there has been a considerable accession of land to that which existed in 1742. The doctrine of acquiring property by alluvion is confined to such increase as arises by insensible degrees (laiens incrementuni). and from natural causes. The increase in this case was from the erection of wharves above and below the premises in question, which is wholly an artificial cause .
    If Bennett’s deed to Perkins created a tenancy in common in the-land below the house, yet we contend the evidence of a several possession, from the date of that deed to the commencement of this action, was sufficient to support a presumption that partition had been made. The tenant, and those under whom he claims, had always a right to compel partition. In the case of Vandyck vs. Van Beuren 8f AL 
      , it was held that a sole possession under [ * 357 ] claim of right *for forty years only by one tenant in common, amounts to an ouster; and the Court said not only that the facts raised the presumption, but that the jury were not at liberty to resist it. In Denn vs. Barnard 
      , Lord Mansfield said, “ If no other title appears, a clear possession of twenty years is evidence of a fee.” In Fisher & Al. vs. Prosser 
      , Ashurst, J., says the point was left to the jury, and the jury have presumed an actual ouster; and he adds, “ I think that after a quiet, uninterrupted and undisturbed possession of forty years, they were well warranted in so doing.” Now, if such a partition is presumed to exist, the demandant cannot recover in this form of action.
    The verdict in this case is so uncertain that the sheriff cannot deliver possession under it. Low-water mark is a very indefinite description of a boundary. Besides the difference between the receding of the water in spring and neap tides, the freshets, to which all long rivers, like the Merrimack, are subject, make a very essential difference.
    The Court will look with strictness on writs of right. They are not favored by the law. In the case of Charlwood vs. Morgan & Ux. 
      , the mistake of a single Christian name made in deriving the demandant’s title was refused to be amended, although shown by affidavit to have arisen from mere accident. The chief justice there said, if the proceeding had not been by writ of light, the Court would have been willing to grant the amendment. But, considering how much that process had always been discouraged, how much tenants have been permitted to avail themselves of every advantage to defeat the claims of demandants, unless the precedent could be produced, the soundest exercise of discretion would be not to allow the amendment. “ Every one knows,” adds his lordship, “ the consequence of overturning titles which have been supposed to exist for near sixty years. Many great purchasers consider sixty years’ possession as the best title which can be made, and it has often been lamented, by eminent lawyers, that the period has not been * shortened, who have thought that sixty [ * 358 ] years was too long a time for titles to remain in dubio.”
    
    It cannot escape the observation of the Court how strongly these sound and sensible observations apply to the case at bar, in which but twenty days of the sixty years remained unelapsed at the date of the writ.
    
      Jackson, for the demandant,
    contended that an inspection of the grant of 1680 would sufficiently explain its extent. The land was to be bounded by high-water mark on one side ; the width of forty feet gave two other sides; the fourth side, not being given, must be carried as far as the grantor owns, which in this case was to low-water mark, by the statute of 1641, on this subject. The actual and practical construction of all the occupants under this grant, from its date down to the year 1750, including Bennett himself, confirm this position.
    
      Alluvion
    
    is in nature of an appurtenance to land adjoining the sea or a river , and like other appurtenances follows its principal, whether actually used or not. Thus a right of way may exist, though it cannot be proved that the tenant ever used it; so of an advowson, though no vacancy happen in his time, so that he never presented. The pedis positio on every part of land claimed is never necessary ; a possession of any part claiming the whole, is always sufficient.
    If the doctrine contended for by the tenant in this action were established, then it would follow that one building a wharf to low-water mark, would have no right to extend it as the water receded, and that in consequence the privilege, which he contemplated himself to possess, becomes lost to him.
    The deed from Bennett to Perkins creates a tenancy in common in the tenements demanded by as apt words as can be found in conveyances of ancient or modern date. Whether a partition had or had not taken place, was a question of fact which the jury have settled. No partition in pais can be presumed but by sixty years’ quiet and uniform possession conformed to it. The only cases to the contrary were before the statute of frauds. The opinion of Ashurst, J., was *not supported by either [ * 359 ] of the other judges, who are silent on the point. There is in fact no reason why a deed of partition should be presumed against the operation of the statute of limitations, when no other deed is ever so presumed. The case of Fisher if Al. vs. Prosper 
      was ejectment, in which twenty years’ possession would be sufficient. A mere naked possession for a less time than 60 years has never yet been held sufficient to take the land of A., and vest it in B.
    
    When the Court are urged to lean against a w'rit. of right, it is a sufficient answer, that the law of the land has fixed the limitation to sixty years, and it is as improper to ask of the Court to lean to one side in the hearing of this cause as in any other legal question. It is in amount asking them to make a new law. The speculations of no man, whatever his rank may be, can have any effect in contradiction to the settled law of the land.
    
      Dane, in reply,
    observed that it was not necessary to show a strong ground of presumption that a partition had been made. If there was even a slight ground, it ought to have been left to the jury. If this fact had been found for the tenant, it would have been decisive of this action, and it is depriving him of his right to prevent his having the verdict of the jury on the point. If the fact should be found against him, the demandant will lose nothing by another trial. Perceiving the Court inclined against him, Dane forbore to pursue the points on which he had relied in support of the motion of a new trial.
    
      
       The town of Newbwnyport constituted a part of Newbury until 1764, when it wan incorporated by its present name.
    
    
      
       1 Term R. 182.
    
    
      
      
         Term R 703.
    
    
      
      
        Hargraves Law Tracts,28.
    
    
      
       1 N. Y. Term R. 84.
    
    
      
      
        Cowper, 597.—See also Fonblanque on Equity, 319.—3 Term R. 157.—3 East' R. 294.—4 Term R. 683.
    
    
      
      
        Cow. 220.
    
    
      
       1 Bos. & Pul. N. S. 66
    
    
      
       Lord C. J. Hale, calls it a perquisite to the land.—De Jure Maris.
      
    
   Curia.

This cause has been twice fully tried, once before a court competent to decide ultimately all questions of law, which arose in the trial, and the verdict has in both- instances been in favor of the demandant, with the approbation of the Court; yet as the new organization of the Court intervened between the first and second trial, the tenant has the right to take the course he now pursues, and if any misdirection of the judge can be shown, he will have the privilege of a third trial before another jury.

The points, in which the judge is supposed to have mistaken the law, are particularly specified in his report of the case before us.

[ * 360 ] * The first relates to his construction of the proprietary grant of 1680, which gives to William Noyes, under whom the demandant’s ancestor held, “ a piece of land below high-water marie to set a shop upon, not exceeding forty feet in width.” It is said by the tenant’s counsel, that no more land passed by the grant, than was actually covered by such shop as the immediate grantee may have placed upon it; whereas the judge directed that all the land and flats between high and low-water mark, of the width of forty feet, were the subject of the grant, provided they did nc t extend more than one hundred rods from the upland ; and we are all of opinion that, in this decision, the judge was correct. Whatevei might be the construction of analogous words in a recent convey anee, made in times of precision and accuracy, and when consider able value .s attached to flats in the beds of rivers, creeks, and coves, it is obvious that to apply rigid rules of construction to transactions which took place early after the settlement of the country, when conveyancing was little understood, and when the mud of a river or harbor was supposed to be worth nothing, would often be attended with injustice, and in many instances subvert the titles to property of almost incalculable value.

Whether a mere vote of a proprietary at the present day, without any deed or location in pursuance of such vote, would pass lands from such proprietary to an individual, not a member of the corporation, is questionable ; but it is well known that almost all the titles, which have been derived from proprietors of townships, have nothing better to depend upon than a vote recorded in the proprietors’ books; and where a possession was taken in conformity to the vote, and transmitted by the grantee to his heirs or assigns, titles so acquired have been respected and maintained in our courts of law .

Nor indeed can there be any doubt, that the construction given by the judge, as to the extent of this grant, was conformable to the true intent of the proprietors in making the grant. By the statute of 1641, it was declared that the owners of upland should own the flats to low-water mark, unless these should exceed the distance of one hundred rods from the upland, in which case they were to be restricted to that * distance. Under that [ * 361 J statute, the proprietors of Newbury became the proprietors of all the flats in the river Merrimack down to the channel, that being within the distance before mentioned. Now, it is very fairly to be presumed that, in 1680, these proprietors were desirous to settle their township, and they were inviting mechanics and other valuable settlers, by offering them advantageous situations upon the river, situations then of little consideration as to their value, though since become so important. William Noyes applied for a place below high-water mark to set a shop upon, which was granted him. The object of Noyes in seeking such a place must have been an access from the river to his shop. The proprietors take care to limit his extent upon the shore, confining him to forty feet. But they do not limit him towards the river. Is it to be supposed that they intended to reserve the flats between the grantee’s shop and the channel to themselves, and so have it in their power entirely to frustrate the manifest object of their grant to Noyes ? This would have been an extremely hard bargain on the part of Noyes, had such intention been expressed; but certainly so unjust a provision ought not to depend upon slight implication.

The common maxims of law, applicable to the construction of instruments, will come in aid of the probable intent of the parties, in ascertaining the legal effect of this grant. Doubtful words and provisions are to be taken most strongly against the grantor, he being supposed to select the words which are used in the instrument. In this grant of the proprietors, they give three sides of the lot which they convey, and leave indefinite the fourth ; it must be taken that they intended that the extent of the lot in the rear should be limited only by their claim. And the legal construction of their own words will not be thought to operate rigorously, if we carry our minds back to the year 1680, when, from testimony in the case, we may reasonably infer that the channel ran so much nearer the upland as to leave no flats between Noyes’s shop and the channel worth the attention of the proprietors.

But, in addition to all this, it appears in the case, that all those who occupied under the grant to Noyes, claimed and used the flats, as they needed them, in the rear of the breastwork, [ * 362 ] *upon which the shop was placed ; and this too in the view of the proprietors and their agents, for nearly the space of a century after the grant was made ; during all which time no complaint was made by the proprietors, and no act of ownership exercised by them. Here, then, was a practical construction by both parties, sufficient to remove all doubts as to the true extent of the grant. It is true that, in 1750, the proprietors undertook by their need to convey these flats to Spencer Bennett; but at this time Perkins, the demandant’s ancestor, was in possession as tenant in common with Bennett, claiming derivatively under Noyes, the first grantee, and immediately from Bennett himself, who, in 1742, sold to him one moiety of these very flats. Now, if any thing passed from the proprietors, it inured to the use of Perkins, as well as Bennett , and on this ground, the claim set up by the tenant, who claims under Bennett, is without foundation.

The second exception to the judge’s charge relates to his decision, that the deed from Bennett to Perkins in 1742, created a tenancy in common between the grantor and grantee of the flats in question. Previous to the date of this deed, Perkins had conveyec to Bennett all the flats, as also an upland lot which the proprietors had granted to the same William Noyes in 1721, and by this deed Bennett conveyed back to Perkins one half of the upland or house-lot by metes and bounds, and one moiety of the flats behind the house in quantity and quality. Can it be doubted that this created an estate in common and undivided in those flats? We are at a loss to imagine any form of words more technically proper for this purpose.

But it is said, and this constitutes the third exception, that the parties occupied in severalty, and that this several occupancy was a partition in fact, which ought to have concluded against the demand-ant’s action, which is brought for an undivided moiety. Whether there was a several occupancy or not, was matter of fact for the jury; and although the judge intimated an opinion that there was not sufficient evidence to prove it, yet we do not find that he withheld any evidence on this point, nor do we find any evidence in the depositions submitted to us, from which the jury could have inferred that fact.

* The fourth exception, relied upon by the counsel for [ * 363 ] the tenant, respects the opinion delivered by the judge relative to so much of the flats as may have gathered by alluvion since the death of the demandant’s ancestor. To give this objection its full force, we must recur to some of the testimony used in the case, by which it appeared that the channel of the river Merrimack, towards its mouth, had considerably receded from the shore on the Newbury side; and some of the witnesses imputed this to the numerous improvements, which have been made on the bank of the river, and on the flats, by the erection of wharves, &c. It is contended that the ancestor could have been seised only of so much of the flats as existed in his lifetime; and as the demandant has declared on the seisin of her ancestor, she cannot recover more than he was actually seised of.

But we do not think much of this objection. It has already been shown that the ancient statute, relative to the subject of flats, annexed them to the adjoining upland, to the distance of one hundred rods from the shore. Whatever increase, therefore, happened from natural causes, or from a union of natural and artificial causes, within that distance, must be to the benefit of the owner of the upland, or of him who owned the flats to which the increase- wns attacned. This increase is of necessity gradual and imperceptible . No man can fix a period when it began, no testimony can mark the exact margin of the channel on any given day or year.. The ancestor beinff seised of the estate, of which all the flats now demanded are part, and having the right by law to all such additions as should be made by the gradual retiring of the waters, he must be supposed to have been seised of all which now exists, for no one can show any parcel of which he was not seised. We think the opinion delivered at the trial right on this point; and, further, we think this an instance in which we may safely apply the maxim, l).i minimis non curat lex.

The form of the verdict constitutes the last exception. It is said this is uncertain, and no judgment can be rendered upon it.

[ * 364 ] * The verdict is conformable to the nature of the demand, and a judgment thereon will be sufficiently certain to. enable the sheriff to execute it by an habere facias. We are, therefore, all of opinion that judgment must be entered according to the verdict.

Note. The Chief Justice was of counsel in this cause, while at the bar, and of course was not on the bench during the argument or decision of it. 
      
      
        [Springfield vs. Miller, 12 Mass 415.—Codman vs. Winslow, 10 Mass. 146.-Baker vs. Fates, 16 Mass. 497.—Rehoboth & Seekonk vs. Hunt, 1 Pick. 224.—Ed.]
     
      
      
        [Porter vs. Hill, 9 Mass. 34.—But a quitclaim deed without warranty, will not operate to carry a title subsequently acquired.—Jackson vs. Winslow, 9 Cowen, 13.— No; it seems, will such a deed with a covenant of warranty against all ilaiming undei the 'eleasor.—Comstock vs. Smith, 13 Pick. 116.—Ed.]
     
      
       [Rex vs. Lord Yarborough, 4 D. & R. 790.—5 Bingh. 193.—Scrafton vs. Brown 6 D & R. 536.-4 B. & C. 485.—Ed.]
     