
    Joseph Hamblet and Ux. versus Joseph Francis.
    What possession of flats is sufficient to enable the tenant to take a release, [Using them by having occasionally vessels thereon, launching boats therefrom, graving boats on them, and bringing materials by water over them, to the wharf, is sufficient for this purpose, though there be a mixed possession. — Ed.]
    In this action, which was a writ of entry sur disseisin, the demandants claimed certain flats in Boston, described in the writ, counting on the seisin of Joseph Hemmenway, their father, within fifty years.
    Upon nul disseisin pleaded, the cause was tried at the last November term in this county, before Parlcer, J., from whose [ *76 ] * report of the case, it appears that Thomas Kemble was seised of the demanded premises in 1779; that on the 12th day of July, 1785, he made a deed, by which, for the consid eration of five pounds, he “ remised, released, and forever quit-claimed,” the same premises, to Arthur Noble, to hold to him, his heirs and assigns forever, with a covenant of warranty against the grantor, and all persons claiming under him.
    On the 4th of August, 1802, Noble conveyed the demanded premises to Francis, the tenant, who produced and examined sundry witnesses, who testified that on the said 12th of July, 1785, and from that time to the said 4th of August, 1802, and since, whenever occasion required, the said Noble and Francis successively, by their tenants of a wharf adjoining the demanded premises, had used the said flats, by laying wood-coasters and other larger vessels thereon, and that no vessel of the common size of a wood-coaster could lie at the said wharf without lying in part on the premises.
    The demandants also produced a deed of the demanded premises, dated May 12, 1794, from Kemble to Joseph. Hemmenway, from whom they derived their title. Witnesses also swore that Kemble and Hemmenway, by their tenants of a wharf on another side of the demanded premises, successively used the premises, by launching boats from said wharf, on which was a boat-builder’s shop, by graving fishing-boats on a part of said flats, and also by bringing materials for boat-building by water up to said wharf.
    The judge directed the jury, that the estate in question, being flats covered by every tide, and used as a dock, was not susceptible of that exclusive possession which might be had of a dwelling-house or farm ; that there appeared to have been a concurrent or alternate possession by both parties ; 
       that the possession by Arthur Noble in July, 1785, and by the present tenant in August, 1802, as testified by witnesses on the part of the latter, was sufficient to give effect and operation to the deeds of those dates; and that, if the jury believed the witnesses, they ought to find a verdict for the tenant.
    The jury found a verdict accordingly, and the demandant, waiv ing his right of review, moved for a new trial, for the misdirection of the judge, on the report to be made by him.
    * And now Sullivan, in support of the motion, observed [ * 77 ] that the whole question in the present stage of the action arises upon Kemble’s deed to Noble; and he contended that the direction of the judge was wrong, inasmuch as there was not evidence of such a possession in Noble as would give effect to this deed, which he considered to be merely a release.
    Releases are said to enure in four ways. There can be no ground to consider the release in this case as enuring but in two of those ways, viz., either per mitter le droit, or per enlarger Vestate. Now, that it did not operate in the former of these two ways is apparent from this, that the whole case shows that Noble was not in by disseisin, which is the only case in which a release can enure per mitter le droit. Neither could it operate by way of enlarging an estate, for the facts do not show any previous estate in Noble to support such an operation. 
    
    The judge directed the jury that property of this particular de scription was not susceptible of the same exclusive possession as a farm or a house. But the law knows no distinction as to-the mode of transferring estates between land which is sometimes covered with water, and the most valuable tenements. The same rules, the same formalities, must be observed in one case as in the other. Indeed, in our seaport towns, property of this description has acquired an immense value.
    
      Jackson, e contra.
    
    That the deed in question must operate as a release is agreed. Noble was in possession by right or by wrong; if by right, he must have been at least a tenant at will, for he could not be a tenant by sufferance, and a tenant at will may take a release of the fee  If he was a mere disseisor, then the deed operated as passing the right. So that in one way or the other it is a good and operative conveyance.
    It is a general rule of law, to give effect to the intention of parties to a deed, if it can be done consistent with the policy of the law. Under this rule, our common deeds of bargain and sale have been construed a feoffment, for the purpose of producing [ *78 ] a discontinuance of an estate tail pursuant to the * apparent intention of the parties. In this case, there is an express covenant of warranty against the releasor and all claiming under him ; from which it is very apparent that he intended to convey all his estate in the premises.
    Though this peculiar species of land is subject to the common rules of law, as to its passing from one tenant to another, yet it is apparent that the same kind of exclusive possession cannot be had in it as can be had in upland, as by fencing or other permanent monuments ; and this was the amount of the judge’s direction as to this point. The possession of the tenant in this case was all the possession that could be had of land thus situated.
    
      
      
         [Codman vs. Winslow, 10 Mass. 146. — Commonwealth vs. Dudley, 10 Mass. 403 Leach vs. Woods, 14 Pick. 461. —Poignard vs. Smith, 8 Pick. 272 — Ed.]
    
    
      
      
        Co. Lit. 274, § 466. — Hargrave’s Notes to ditto, 208, 219, 237, 242.
    
    
      
      
        Co. Lit. 271, a.
      
    
   The opinion of the Court was afterwards delivered by

Parsons, C. J.

In this action, the demandants count upon the seisin of their father, and upon a disseisin by the tenant. On the issue nul disseisin, a verdict was found for the tenant, agreeably to the direction of the judge, which the demandants move to set aside.

The parties claim under Thomas Kemble by separate conveyances; and the tenant derives his title immediately under the deed of Arthur Noble to him, dated August 4th, 1802; and it is agreed that if Noble was then seised in fee of the tenements demanded, which are a parcel of flats below high-water mark, and they were conveyed by that deed to the tenant, then the verdict is right. Noble purchased of Kemble by a deed, July 12th, 1785, when it is agreed that Kemble ivas seised in fee, and that if by his deed the tenements were conveyed to Noble, then Noble was seised in fee when he executed his deed of August, 1802, to the tenant.

But the demandants insist that no estate in the tenements' passed by Kemble? s deed to Noble, he not then being in possession, and the deed being only a release. The evidence for tho tenant was, that Noble, at and after the execution of Kemble's deed to him, used the flats for the purpose of laying wood-coasters and other vessels on them. This we consider as proper evidence of Noble's possession, to be left to the jury.

If Noble was in possession, it cannot be presumed, without evidence, that he occupied for a particular purpose by a special license, or that he was a tenant at sufferance. He must, * therefore, be in possession either by right or by [ * 79 ] wrong; either as tenant at will or as a disseisor. If the former, the release operated to enlarge the estate; if the latter, it passed the estate; and qu&eunque vid data, Noble, by virtue of it, was seised in fee.

When Noble's deed to the tenant, which is also a release, was executed, the tenant had the same possession which Noble had when Kemble's deed to him was executed. The same conclusion must be inferred, — that Noble's estate in the tenements passed to the tenant, and that the verdict must stand.

As the releasor was seised in fee, and a valuable consideration was paid, whether the release might or might not be considered as a bargain and sale, or other conveyance to effect the intent of the parties, we give no opinion.

Let judgment be entered on the verdict.  