The opinion of the Court was delivered at this term by
Mellen C. J.By the plan, which is made a part of the case, it appears that the upland part of the locus in quo, described in the second count, nolle prosequi having been entered as to the first count) is boun*43ded on the south easterly side by a lot of the defendant’s; and that the course of the side lines of both lots is northeasterly to Kenduslceag stream, and making an angle tvith the same of nearly forty-five degrees. The margin of the stream is straight where the upland of the lots adjoins it. The question submitted is, in what direction the side lines of’the plaintiff’s flats are to ruh from the termin•ation of the side lines of the upland. The flats in 'controversy where :the alleged trespass was committed, are-claimed by both parties ; each claiming them as appurtenant to his -upland lot, in virtue ¡of the Colonial Ordinance of 1641, or rather of the principle df •that ordinance, as a part 'of our common law. The language of ¡-the ordinance is “that in all creeks, coves and other :abovr% and upon salt ‘water, where the sea ebbs and flows, the proprietor of the land adjoining shall have propriety ‘to the water-mark, where the sea doth not ebb above a hundred rods, ¡and -not more, -wheresoever it ebbs further.” The above expression “ to the low-water-mark” seems evidently to imply to the low-water-mark in the nearest direction and without any regard to this •course -of the side lines of the upland to which the 'flats are adjoin'* ing and appurtenant; and the court appear to have adopted this principle in the case of Rust v. The Boston Mill Corporation, 6 Pick. 138, to which our ¡attention has been called. Such a corl-■struction seems more consistent than any other with the respective rights of contiguous owners of upland; and in some cases, where ■the upland adjoins a cove, and the contiguous lots are so laid out or bounded, as that their side lines strike the cove, as some of them necessarily must, obliquely, the above rule must be- applied as the general rule of construction ; otherwise the extension of the side lines of one of the upland lots in a straight direction, might, in some cases, deprive an adjoining lot of all benefit of flats; and, according to the following plan marked A, it would cut off from lot No. 6 most of the benefits of the flats adjoining it.
*44
After a careful examination of the subject, we perceive but one construction, or application of the principle of the ordinance which will do justice to all concerned. The mode of apylying the principle is this. Draw a base line from the two corners of each lot, where they strike the shore; and from those two corners, extend parallel lines to low-water-mark, at right angles with the base *45line. If the line of the shore be straight, as in the case before us, there will be no interference in running the parallel lines. If the flats lie in a cove, of a regular or irregular curvature, there will be an interference in running such lines, and the loss occasioned by it must be equally borne or gain enjoyed equally by the contiguous owners. as appear by the following plan, marked B.
*46By the foregoing plan it will be noticed, that the parallel lines, running at right angles with the base lines are merely dotted; while the base lines and the true division lines between the flats belonging to the respective upland lots are distinctly drawn. It will also be seen that each of the lots 1,2, 5, 6, have their appurtenant flats converging from the upland to low-water-mark, in consequence of the recess and curvature of its margin; while the lots 3 and 4 have their appurtenant flats wider at low-water-mark than where they join the upland, in consequence of the projection of eabh lot into the stream. On the same principle where there is an extended projection of upland of any form, or an island, belonging to different owners, each one’s lot being bounded on the sea, or the tide water in which the island is situated, the surplus width of the flats at low-water-mark, arising from the form of the upland, must be divided among the contiguous owners of such upland, and the mode of division and the result are to be ascertained by drawing base and parallel lines in the manner before mentioned, and then making an equal division of the surplus. By this process justice will be done and all interference of lines and titles prevented.
We are not aware of any cases, where, in apportioning appurtenant flats among contiguous owners of upland, the foregoing principles and mode of proceeding would not be properly applicable as the rule of decision. Still we do not undertake to affirm that there may not be some peculiarity in the form of the upland to which flats are appurtenant, and some peculiarity of manner in which the upland may be • divided among contiguous owners, the effect of which we have not anticipated, which would vary the principle. Should any such cases hereafter present themselves, requiring the application of a different principle, such new principle must of course be applied.
*47We have said that such is the true construction as to the effect of the principle of the ordinance and such the mode of its application, in ascertaining the extent and form of the flats adjoining the upland of different owners, holding the same in severalty. We do not mean to be understood as deciding that where a township or other tract of land belongs to one or more proprietors, to which flats are appurtenant by virtue of the principle of the ordinance, such proprietor or proprietors may not lawfully sell and convey the upland and the adjoining flats by such courses and monuments and in such form and to such extent as he or they may think proper. This may undoubtedly be done; or the flats may be conveyed in any form or by any courses without the upland. Our decision is to be considered as applying to those cases, and to those only, where the rights of contiguous owners of the flats depend on the principle of the Colonial Ordinance, as is the fact in the case under consideration. The result of our examination is the opinion that the action is maintained. Accordingly a default must be entered, and
Judgment for plaintiff'.