This is an action of trespass quare clausum fregit, for breaking and entering the plaintiff’s close, called “Grass Island” situated in St. Croix river, and cutting and carrying away the grass growing thereon. There is another count de bonis asjoortatis for taking and carrying away the hay cut upon the island. The writ is dated December 16, 1854. The case has just been submitted to the court for its decision.
The river St. Croix at Baileyville divides Maine from New Brunswick. The middle thread of the river is the boundary between them, dividing Grass Island about equally. The island is above tide waters. The plaintiff is the admitted riparian proprietor on both sides of the river, including the island. The plaintiff owning the lands on both sides of the river, he owns the island to the extent of the length of his lands upon it. Prima facie, therefore, he makes out a case.
The defendant, as the agent of the Passamaquoddy tribe of Indians, justifies under their alleged title.
The defence rests upon an agreement, or treaty, by which the commonwealth of Massachusetts, on the twenty-ninth day of September, 1794, for a valuable consideration, assigned to the Passamaquoddy tribe of Indians, and other Indians connected with them, certain islands in the St. Croix river, among which is found Grass Island. This agreement or treaty was recorded in the registry of deeds for Washington county on the ninth day of June, 1842.
But prior to the twenty-ninth day of September, 1794, the commonwealth of Massachusetts had by deed dated January 28, 1793, and recorded September 12, 1794, conveyed No. 7 (now Bailey-ville) to William Bingham, describing it as bounding westerly on *296townships numbered sixteen and seventeen in the East division, easterly and northerly on Schoodiac river, &c. The Schoodiac river is called likewise the St. Croix. By this deed the grantee acquired title to the middle thread of the river. Starr v. Child, 20 Wend., 149.
It is apparent therefore that the title to Grass Island did not pass to the Indians of the Passamaquoddy tribe by the agreement made with the commonwealth of Massachusetts, because that commonwealth had already parted with its title to the same, and its deed had been duly put upon record.
The case finds that the plaintiff had the title of William Bingham to river lot No. 14, in Baileyville which is opposite Grass Island, and that he had acquired the title of William Bingham before the agreement under which the defendant justifies was even placed on record. In addition to. this the plaintiff has the possessory rights of Joseph and William Thornton, who claimed to own the island, and who were in possession. His title is perfect.
It was determined in Penobscot Tribe v. Veazie, 58 Maine, 402, that the title of the government'was superior to that of the aborigines. The Passamaquoddy Indians had no title originally to this island in controversy. They acquired none by the conveyance from Massachusetts, nor have they since acquired any by adverse possession. The occasional occupation of the island by different, Indians for temporary purposes cannot constitute a title by disseisin. Defendant defaulted.
Cutting, Walton, Barrows, Daneorth and Peters, JJ., concurred.