delivered the opinion of the Court. It is admitted that if the deed of Matthew Mayhew to William Pease, dated July 19, 1756, conveyed the flats which lay adjoining to the upland, the title to the land described in the first count is m the defendant.
By the Colonial ordinance of 1641 the owner of the upland became entitled to hold the adjoining flats, to the low-water mark, not however exceeding one hundred rods.
Now it is contended for the plaintiff, that the grantor excluded the flats, by means of the very accurate description of the premises, as well in regard to quantity, as in regard to the length of lines.
It is the duty of'the Court to adopt that construction, which will best effectuate the intent of the parties ; and monuments are more to be regarded than the courses and distances. If the deed had bounded the land southerly by the sea or salt water, and the description in all other respects had been the same as it is found in the instrument, there can be no question but that the flats would be included, to the low-water mark ; for if it were not so, when the tide bad left the flats bare, the description of the boundary could not be satisfied without extending to the sea or salt water.
But the words employed in the deed under consideration are, that the premises bound “ by the harbour of Edgartown.” We think that phrase necessarily is as extensive as if the grantor had bounded by the sea, or salt water, or low-water mark. For the harbour includes not only the land covered Dy the sea below low-water mark, but also the land or flats where the tide ebbs and flows between high-water mark and low-water mark. And the whole of that land is used occasionally as a harbour for vessels and other maritime purposes.
*360If an insurance were upon a vessel in Plymouth harbour, for example, and she were burnt by lightning or otherwise after the tides had left her upon the flats, could it be contended that she was not in the harbour because she happened not to be afloat at the time of the accident ? The same remark would apply, if she were hove down to be graved as near to the high-water mark as she could be floated. Bounding by the harbour of Edgartown, we think, means by the sea or salt water. If the tide should be out, still the line goes to the salt water, which makes the harbour.
It is true, that a man may sell his flats separately from his upland, or vice versa, if he pleases. The principles of the ordinance of 1641 have been extended and applied to the old colony of Plymouth, and form a part of the common law. The propriety of - the flats was annexed to the propriety in the upland. And when the upland was alienated and bounded by the salt water, without any reservation, the flats passed as part and parcel. And so here, the grantor conveyed by words equivalent to u bounding by the sea or low-water mark.”
There is a circumstance which fortifies this presumption, arising from the grant of the way of one rod wide between the premises and the land granted to Bunker on July 7, 1756. It was to be laid out for the use of the town of Edgartown. The way was coextensive with the grants to Pease and to Bunker. If the premises were bounded by the shore or high-water mark, and the grantor had reserved his flats, it is very difficult for us to see what occasion the inhabitants of Edgartown could have had for a way of five rods in length between those two lots. But it is most manifest that this was intended as a way to the harbour. It was to enable the town to go and come to and from their vessels in the harbour.
The second count, for filling up and destroying the spring, is waived by consent.
The third count is for laying logs, &c. upon the way at the bead of the wharf.
Now the proprietor of the soil laid out this way for the use of the inhabitants of Edgartown. If it were obstructed, the remedy against the party making the nuisance would be by *361ndictment, or-a special action of the case for a particular injury. But this declaration is in trespass, which may be supported by the owner of the soil for taking away the grass or herbage, but will not lie for any incumbrance or nuisance erected. If however the stones, timbers, &c., were put upon the way with an intent to repair it, and they were appropriated accordingly and the way made better, it would be perfectly clear, that the owner of the soil, who bad dedicated the locus to the town fot a way, could not maintain any action for those acts.
Plaintiff nonsuit.