Thomas v. Inhabitants of Marshfield

Wilde J.

delivered the opinion of the Court. This process is founded on the statute of 1826, c. 81, for the preservation of Marshfield beach and the marshes adjoining, against the encroachments of the sea, and which provides that no neat cattle, horses or sheep shall be allowed to go at large on the beach, and further provides that every person having any legal title to the beach or any part thereof, shall be compensated by the town of Marshfield for any injury he may sustain under the provisions of the statute. The complaint alleges, that at the time of passing the act, the complainant was seised in fee of a farm adjoining the beach, and that he had, as appurtenant to the farm, from the time whereof the memory of man is not to the contrary, a right of commonage on a part of the beach for all such neat cattle, horses and sheep as were levant and couchant upon the farm. At the trial the complainant proved that he had occupied the farm, which descended to him from his father, it being assigned to him in the division of his father’s estate, and that time out of mind there had been no fence between the complainant’s farm and the beach ; and that the pasture in which he usually depastured his cattle &c., adjoined the beach, and that his cattle &c. fed at pleasure on the beach and were occasionally seen on all parts of it from Hewitt’s island to South river, which is more than half the length of the beach.

It was proved on the part of the respondents, that in tlie year 1692 a highway was laid out the whole extent of the beach from Green’s Harbour river to South river and from the beach through the complainant!s farm to the county *248road, and that for more than sixty years last past the owners of the farm had kept a gate across such way leading to such county road near the complainant’s dwellinghouse.

It was also proved, that the beach was a place of common resort for fishermen, fowlers and haymakers, coming from all parts of Marshfield and the adjacent towns, who time out of mind had been used to turn out their horses on the beach for depasturing, the fishermen and haymakers at the fishing and haying seasons, and the fowlers at all times of the year.

The principal question is, whether the complainant, on these facts, has made out a good title by prescription to any part of the beach, within the true meaning of the statute. To make a good title by prescription, a party must show that the privilege prescribed for has been possessed and enjoyed for a term beyond legal memory, which by our law is limited to forty years, as was lately decided in the case of Melvin v. Whiting; and in this respect no objection can be made to the complainant’s title, if the possession or enjoyment has been such as the law requires, to uphold a title by prescription. Lord Coke remarks that such a possession must have three qualities; it must be long, continual, and peaceable ; and he afterwards adds, citing Bracton, longus usus, nec per vim, nee clam, nec precario. As a title by prescription is founded on the presumption of a grant, the possession must be such as to render such a presumption reasonable. It must, therefore, be adverse or under a claim of right, and not by the voluntary permission of the owner of the land. So if any thing appears to show that the possession commenced in wrong, that will rebut the presumption of a grant and defeat the title by prescription. Rights of common, says Mathews, in his treatise on presumptions, p. 315, cannot be sustained where it appears that the enjoyment was plainly an act of encroachment and arose either pur cause de vicinage, or in consequence of the boundaries of two contiguous farms being ill defined. “ This,” says Blackstone, “ is indeed only a permissive right, intended to excuse what in strictness is a trespass in both, and to prevent a multiplicity of suits ; and therefore either party may enclose and bar out the other.” 2 Bl. Com. 33.

*249The same doctrine is laid down, by Lord Coke. In common pur cause de vicinage, “ no man can put his beasts therein, but they must escape thither of themselves by reason of vicinity ; in which case one may inclose against the other, though it hath been so used time out of mind, for that it is but an excuse for trespass.” Co. Lit. 122 a.

So no one will acquire a title by prescription by pasturing his cattle on an open common, training field or highway ; for these being kept open for public use, no one by using them can raise any presumption of a particular grant in his favor; no one can prescribe for a privilege which is common to every one. First Parish in Gloucester v. Beach, 2 Pick. 60, note.

In applying these principles to the facts proved, admitted and reported, we find it quite impossible to maintain any title in the complainant by prescription. Whether the fee in the beach remains in the commonwealth, or vested by the ancient grant in the town of Marshfield, it was left open for the public use and convenience as a highway, common and landing place, and has been so used for more than a century. Here was a highway laid out the whole extent of the beach, and from thence to the county road. The erection of a gate across the way near the county road did not essentially obstruct the use of it by the public. Such erections were not unfrequent in the early settlement of the country, and are in many instances kept up to the present day even across county roads leading through meadows. They are erected for the convenience of the owners of the meadows, and after a long continuance they are presumed to have been erected with the consent of the town, or to have been authorized by the Court of Sessions. The way still remained a public way, and the beach was used as such, and as a common, by every one having occasion to use it, -—by fishermen, fowlers, and haymakers, who turned out their horses upon it to feed ; and although the complainant may have been more accommodated than others, there is nothing in the case to show that he has any better right, or that he has acquired any title whatever in the beach

*250It is also equally clear, that if the beach was not laid out as a highway or common, but remained as a mere waste, the complainant’s title must nevertheless fail. He acquired no right of common except pur cause de vicinage, which gives no right or title to the land; it only operates as an excuse for trespass. If the complainant obtained any title to the beach by erecting and keeping up a fence or gate near the county road, it would be a title by disseisin ; a title which the complainant does not attempt to maintain, and for which there is no pretence. Where one not claiming any right or title to land enters on it, he acquires no seisin but by the ouster of him who was seised ; and to constitute an ouster of him who was seised, the disseisor must have the actual exclusive occupation of the land, claiming to hold it against him who was seised, or he must actually turn him out of possession. Kennebeck Purchase v. Springer, 4 Mass. R. 418. The complainant has never made any such claim, nor has he had exclusive possession, and the title he sets up admits that he has no such claim or title. He claims a right of commonage only in the beach, and upon the facts reported, we think it very clear that a jury would not be authorized to presume a grant of such a privilege.

The complainant having thus failed to show title to any part of the beach, the judgment of the Court is, that he take nothing by his complaint.