The opinion of the Court was drawn up by
Davis, J.This is an action of trespass quare clausam, to recover the value of a quantity of seaweed taken by the defendant from the shore of Yaughan’s Island, in the town of Kennebunkport. The defendant admits the taking, and justifies under several pleas, which will be separately considered.
1. The first plea alleges that, at the time of the taking, the title to Yaughan’s Island was in the town of Kennebunkport, and not in the plaintiff; and that the defendant, as one of the inhabitants, entered thereon and took the seaweed by the permission of the town.
Without going into a minute analysis of the testimony, it is sufficient for us to say that the evidence fails to prove such title in the town. No deed is produced; nor copy of any deed; nor is there any proof that one ever existed, Nor is there any evidence of possession, or any claim of title by the town, in its corporate capacity.
*92Is the title to the island in the plaintiff ? That it was in his possession, is not denied. And such possession is sufficient proof of title against a stranger. But various questions are presented, in other pleas, which render it necessary that we should determine the plaintiff’s claim of title, in fact, to the premises in controversy. He has put into the case a series of instruments as muniments of his title, extending back to, the ancient colony charters from the crown.
The whole of New England is embraced within the patent granted to the Plymouth Colony by King James, in 1620, which extended from the fortieth to the forty-eighth degree of north latitude, “ in length by all the breadth aforesaid, throughout the mainland, from sea to sea.” This patent was after-wards confirmed by King Charles, in 1628. The Plymouth 'Colony subsequently granted to Sir Perdinando Gorges a portion of their territory, extending from the entrance of Piscataqua harbor, northeastward, one hundred and twenty miles, including “all the islands and flats lying along the coast, within five leagues of the main.” This grant was confirmed to Gorges-by King Charles, in 1631, in the “charter of the Province of Mayne,” recorded in the Registry of Deeds for the county of York, in 1640. That Yaughan’s Island is within this grant admits of no doubt.
In 1643, Perdinando Gorges, by Thomas Gorges, then “Deputy Governor of the Province of Mayne,” conveyed certain premises claimed to embrace Yaughan’s Island to one John Smyth. They are described as “ one hundred acres of land, and one island, situate, lying, and being at Cape Porpoise, in length from northeast to southwest, and so up into the mainland on a northwest line, by all the breadth aforesaid, until one hundred acres are completed.” The identity is denied by the defendant; but the fact that Yaughan’s Island is one of the group near Cape Porpoise, is near the mainland, and has always been occupied with the farm adjacent on the mainland, is relied upon by the plaintiff to sustain this point. There are recitals, in some of the subsequent deeds, which strengthen the presumption for the plaintiff.
*93The deed of Gorges to Smyth appears to have subsequently come into the hands of one William Phillips, who claimed title under it, though without any written transfer to himself. He made a written assignment of it, under seal, to Bryan Pendleton, in 1666. The deed and the assignment were recorded in the registry of deeds, July 14th, 1680.
The records also show that Pendleton, in 1655, received a conveyance of the island from one Richard Ball, who appears to have been in possession of it, with the farm on the main land. In this deed it is called “Smyth’s Island,” and is said to contain “ about fifty acres.” There appears at that time to have been “ edifices, or buildings” on the island, erected for the purpose of “fishing or making of fish thereon.” The grantor in this deed claims to have derived his title, through mesne conveyances, from George Cleaves. That it related to the same premises conveyed to Smyth, cannot be doubted. Whether Cleaves claimed adversely to Smyth does not appear ; nor is it material.
It appears also, that Cleaves conveyed three other islands at Cape Porpoise, in 1651, to one Gregory Jeffery, of whom Pendleton purchased them in 1658. These three islands are designated by name, and are said, in the deed of 1658, to be “ the very next islands unto that which the said Bryan Penr dleton formerly bought.”
This deed is of no importance in this case, except in identifying the premises purchased by Pendleton of Ball and of Phillips. There is a clause in all of these deeds reserving a nominal rent to the original proprietors. But this cannot affect the title; as they all contain covenants of warranty, and are absolute grants, with no words of defeasance.
We are satisfied, from all the evidence, that Pendleton owned what is now called Vaughan’s Island, in 1680, together with the farm adjacent, on the mainland. By his last will and testament the premises were devised to James Pendleton, who conveyed them, in 1681, to William Vaughan. They appear to have been, at that time, in the occupation of one Richard Palmer; and, in the subsequent conveyances, the island *94has sometimes been called “ Palmer’s Island,” but generally “Vaughan’s Island.”
The chain of title from 1681 is not distinct at every point. Various defects are suggested in some of the earlier conveyances, which would be serious if they were of recent date. But much is to be presumed in favor of ancient deeds, if accompanied by possession ; and the same rule may be applied to wills, and to levies of executions, to some extent. The plaintiff invokes the maxim, ex diuturnitate temporis omnia praesumuntur, &c. This is not only a rule of evidence at common law; it has the force of legislative enactment in this case. It was not always possible to employ officers, or scriveners who understood all the requirements of the law; and “ sundry persons, having just and equitable titles to estates, were in danger of being evicted out of their just rights and possessions, because the deeds, or instruments, or other writings conveying such estates, were defective, or imperfectly made and executed.” An Act was therefore passed for “ quieting possessions,” which made such possessions, if continued until 1720, conclusive evidence of title. Province Laws, c. 49 and 115.
The plaintiff, in this case, claims under a warranty deed, duly acknowledged and recorded; and the claim of title by warrantors extends back from the plaintiff for a, period of nearly sixty years. There is nothing to break the force of these conveyances, except the fact that the inhabitants of the town, and others, have always been in the habit of going upon the island, at their pleasure, and taking seaweed from it. But, upon the question of title to the soil, both in the flats and the upland, this custom by no means outweighs the record evidence, corroborated by the fact that the plaintiff, and those through whom he claims, have had possession, cultivating such parts of the land as have been suitable for that purpose.
It is argued for the defendant, with apparent seriousness, that if the plaintiff owns the upland, he has no title to the flats, but that the latter belong to the public. The reasons suggested for this position are, that the ordinance of 1641 *95does not apply to islands, nor to any other lands not conveyed by the original proprietors before that time. But such a distinction has no foundation in reason; the ordinance itself indicates no such intention; and the cases cited by the counsel do not sanction any such doctrines.
It is contended,, however, that the defendant may justify under the following reservation contained in the deed to him, and in several of the deeds next earlier than his: — “reserving to the public any right that they may have to cross said island, and to take seaweed therefrom.”
Such a clause is frequently, as a matter of caution, inserted in deeds of lands in which the public have no rights. Highways are usually reserved by similar language. But no one could justify under such a reservation, without showing a previous location, prescription, or grant. Such a reservation in a deed confers no rights, proprio vigore, upon any one. It merely saves the grantor, upon his- covenant against incumbrances, from any liability if such rights have previously been granted or acquired. If not, it has no force whatever.
2. By the plaintiff’s exhibit of title, it appears that, in 1797, the premises were owned by Bbenezer Perkins and his wife; and that he devised his .interest to his wife, who conveyed the whole estate, by warranty deed, to other parties, under whom the plaintiff claims. And the defendant pleads, that said Perkins granted to the inhabitants of Kennebunkport, “ by a good and sufficient deed, free license to go on said close and take seaweed,” &c. There is no evidence of any grant or license such as is here pleaded. And if, under this plea, a parol license could be relied upon, there is no evidence of such a license that can avail the defendant. The case shows that Perkins, in his lifetime, permitted persons to take seaweed from the island, and that he supposed they had the right to do so. But, if he had been the sole owner, such a license could not be available for other persons, fifty years afterwards, against subsequent purchasers of the estate.
3. The defendant, in several other pleas, justifies as one of the public, and also as one of the inhabitants of Kennebunk*96port; and, in each capacity, by custom, and by prescription. And, in support of all or either of these grounds of justification, it is admitted, “ that for more than seventy years, all persons who chose, living in Kennebunkport and elsewhere, have hauled seaweed ad libitum from the locus in quo, until forbidden by the present plaintiff in 1854 or 1855.” If by this the public, or the inhabitants of the town, either by prescription, or by custom, have acquired any right that can be legally upheld, the plaintiff does not claim to recover. Or if such custom, with any other evidence in the case, establishes any prescriptive right in the town, in its corporate capacity, for the use of the inhabitants, the plaintiff cannot recover.
It appears by the evidence that large quantities of seaweed, a part of it growing on the beach, and a part of it floated by the tides from other localities, accumulate upon the flats of the island in controversy. These flats belong to the owner of the upland, as appurtenant to it. They maybe conveyed without the upland, and thus the dominant and servient estates be severed. Valentine v. Piper, 22 Pick., 85. But the title to the seaweed is in the owner of the flats; and both together, unless there has been a severance, belong to the riparian proprietor. Emans v. Turnbull, 2 Johns., 313.
Title by prescription arises by a presumption, from long continued use of an incorporeal hereditament, of a previous grant, which has been lost. 3 Cruise, 467. Therefore nothing can be prescribed for that cannot be the subject of a grant. Luttrel's case, 4 Coke’s R., 86. Eor the same reason, whatever can be acquired by grant, may be acquired by prescription. The owner of the whole estate to which flats are appurtenant, may convey the right to take seaweed, without conveying the soil, even of the flats. Phillips v. Rhodes, 7 Met., 322. Such a right is an incorporeal hereditament, and may be acquired by prescription. 3 Kent, 401.
Such a right may be personal. A man may claim it by long *97continued enjoyment, by himself and his ancestors, or grantors. The defendant does not claim upon this ground.
Or one may claim it as appurtenant to some particular estate, described in the plea, of which he is the owner. This is pleading it with a que estate. 2 Greenl. Ev., 540. No such right is sufficiently pleaded by the defendant; and, if it had been, there is no proof to sustain it.
If a prescriptive right is not personal, it must be a corporate right, under which any member of the corporation may justify. Coke Litt., 113, b. Such a right, in the town of Keunebunkport, the defendant claims by his pleadings. If sustained by the evidence, the justification would be good. But a lost grant to the corporation can be presumed only from corporate acts. The use by individuals is no sufficient basis for the presumption. Green v. Chelsea, 24 Pick., 71.
There is no evidence that the town of Kennebunkport, in its corporate capacity, ever claimed the right to take seaweed from Vaughan’s Island. There is no record of any corporate act regulating any such right, or exercising any control over it. The vote of 1724, that “ the islands should lay common forever, for the use of the inhabitants,” if it was intend- - ed to embrace this island, can avail nothing against those who now establish a good title to the soil. The survey of a lot to John Mussey, in 1723, was not followed by occupation, or possession, or claim of title, by him, or by the town. The location of the town way to the island was no assertion of any corporate interest, in this, any more than in other cases of location of public ways.
The fact that the inhabitants have always been accustomed to take seaweed from the premises, is set forth by the defendant in nearly all his pleas, and is relied upon by his counsel in support of all his positions. It was held, in the case of Sale v. Pratt, 19 Pick., 191, that such a custom by the inhabitants created no presumption of a lost grant to the corporation. If we should hold otherwise, there is another difficulty in this. case. This custom has not been confined to the *98inhabitants of Kennebunkport. It is suggested that the greater includes the less; but this is no answer. Eor, as title to lands by disseizin can be acquired only by an exclusive occupation, so a title to an incorporeal hereditament, unless an easement merely, can be acquired only by an exclusive enjoyment. The free participation of the public in it, rebuts any presumption of private or corporate right. Coke Litt., 110, b; Muston v. Yateman, 10 Mod., 301; Commonwealth v. Low, 3 Pick., 408.
It is claimed, however,- that if there was no prescriptive right in the town, in its corporate capacity, the inhabitants had acquired such a right for themselves. But, if such a right is an interest in, or right to a profit in the soil, and not a mere easement, this ground of justification fails. Eor, though a person, or a corporation, may prescribe for such an interest, it was held, as long ago as the case of Foxall v. Venables, Cro. Eliz., 180, that the inhabitants cannot prescribe for a profit in the soil. This doctrine was affirmed four years later, and the satisfactory reason given, that there could be no presumption of a grant, “ for an inhabitant cannot purchase to himself and his successors.” Fowler v. Dale, Cro. Eliz., 363. The old books abound in cases to the same point. Fowler v. Landers, Cro. Jac., 446; Whittier v. Stockman, 2 Bulstrode, 86; Weekly v. Wildman, Lord Raym., 405.
The inhabitants of a town, or of a State, could acquire such a right by custom, if it were an easement only, and not an interest in the land. Baker v. Brereman, Cro. Car., 419; Coolidge v. Learned, 8 Pick., 504. The case of Smith v. Gatewood, Cro. Jac., 152, more fully reported as Gateward’s case, 6 Coke, 60, is usually cited as the leading case on this point. The distinction was there made, and has since been recognized as an established principle of law, that, though custom may support a claim for an easement, nothing less than prescription can sustain a claim for a profit a prendre in alieno solo. The owner of the fee can be divested of it only by a grant from himself, or by such enjoyment in another as raises the pre*99sumption of a previous grant. Cocksedge v. Farnshaw, Doug., 126; Grinstead v. Marlow, 4 T. R., 717; Littlefield v. Maxwell, 31 Maine, 134.
The case at bar, therefore, turns upon the question, whether the right to enter upon the flats of another, and take seaweed therefrom, is an interest in, or a right to take a profit in, the soil.
That seaweed belongs to the owner of the soil upon which it grows, or is deposited, unless some other person has acquired the right to take it, the defendant admits. But he contends that it is not a part of the soil, nor a product of it where deposited; and that the right to take it is, therefore, no interest in the soil. It is said, and perhaps correctly, that if not taken away it does not become incorporated with the soil, but that much of it is washed away by the same tides that bring it to the shore.
The distinction between an interest in the soil, or a right to a profit in it, and an easement, is not always palpable. The line of separation is sometimes obscure, in some points unsettled, with no established principles by which to determine it.
All rights of way are easements. So is the right to enter the close of another and erect booths upon public days; or to dance, Abbott v. Weekly, 1 Lev., 176; or to play at any lawful games and sports, Fitch v. Rawling, 2 Hen. Bl., 393.
Aquatic rights, of whatever kind, when held by those not owning the soil, are considered easements. 3 Kent, 427. The numerous water privileges, and industrial enterprises of New England, have originated questions of this kind, in great variety. The same principle is found in the English cases. Thus, the right to enter upon the close of another, and take water for domestic purposes, from any natural fountain, as a pond, Manning v. Wasdale, 5 A. & E., 758, or a running 'spring, Race v. Ward, 82, E. C. L. 700, has been held to be an easement only, sustainable by proof of custom by the inhabitants. The grounds upon which these decisions rest, are, that running water is not a product of the soil, whether above *100or below the surface; and that it does not remain for any appreciable period of time in any one place. The Courts, in these cases, expressly affirm that the right to water in wells, or cisterns, would be an interest in the land, or a right to a profit a prendre.
The right to enter upon the lands of another for any of the following purposes has been held to be a right to take a profit in the soil; — to cut grass, Yiner, Tit. Prescription; for pasturage, Cro. Eliz. 180, 363; for the purpose of hunting, Pickering v. Noyes, 4 B. & C., 639; Wickham v. Hawker, 7 M. & W., 63; or for fishing in an unnavigable stream, Waters v. Lilley, 4 Pick., 145. So also to take away drifting sand from the beach, Blewett v. Tregonning, 3 A. & E., 554; or to pile wood and lumber thereon, for the purpose of sale and shipment, Littlefield v. Maxwell, 31 Maine, 134.
So far as any general rule can be deduced from these cases, they tend to the conclusion that the right to take seaweed is a right to take a profit in the soil. It does not come within the principles applied to aquatic rights. The subject of it is, in part, a product of the soil where it is found. And, in regard to that portion which is washed ashore by the tides, though not permanently remaining, the right which the owner of the flats has to it is much more analagous to the jus alluvionis of riparian proprietors, than to the right of appropriating waifs or derelict goods, to which it is compared by the counsel for the defendant. “ It may be considered,” says Kent, C. J., in Emans v. Turnbull,, before cited, “ as one of those marine increases arising by slow degrees; and by the rule of the common law, it belongs to the owner of the soil. , The jus alluvionis ought in this respect to receive a liberal encouragement in favor of private right.”
Upon a careful consideration, we are satisfied that a right to take seaweed is not an easement, but is a right to take a profit in the soil; that neither the inhabitants of a town, nor1 the public, can acquire any right to it by custom; and that the evidence in this case does not establish any prescriptive right to it in the defendant himself, nor- in the town of Ken*101nebunkport in its corporate capacity. According to the agreement of the parties, a default must be entered, with judgment for the plaintiff for the sum of twenty-five dollars, with costs.
Tenney, C. J., and Appleton, Rice and Kent, JJ., concurred. Goodenow, J., dissented.