The first of these actions was a writ of entry, by Andrew Drake, to recover land, declaring on his own seizin, and the disseizin of the tenant. The demandant having died during the pendency of the action, leaving a will, purporting to devise his real estate, in terms which would embrace the premises, an application was made in writing, on the part of his devisee,-for leave to come in and prosecute the suit.
This right was claimed in virtue of Rev. Sts. c. 93, § 14, which provides, that “ in all real and mixed actions, if the demandant shall die before final judgment, his heir may appear and prosecute the suit, in the same manner, as if it had been originally commenced by him.”
It was insisted, that a devisee is within the reason and equity of the statute, the object of which is to avoid unnecessary delay in the prosecution of suits. Some color is given to the argument by the terms of the statute of 1826, c. 70, <§, 1, which gave the right to come in to the heir, “ or such other person as would, in case the action were abated," be entitled to commence the like action.” Had this clause been adopted in the revised statutes, the argument would have derived some further support from the Rev. Sts. c. 62, § 2, which provides, that a party disseized of lands may devise them, or, if, after the devise, he be disseized, they shall still pass, and the devisee shall have the like remedy by entry or *410action, that the heir might have had. The words in the statute of 1826, following the word “ heir,” might perhaps, by description, be held to include “ devisee,” as such other person. But the statute of 1826 is in terms repealed; and the legislature, by retaining the provision for heirs, and omitting the other description, indicate their purpose to limit it to the case of heirs.
Upon the revised statutes, which now furnish the only rule on the subject, the case is certainly not within the words of the statute, and, in the opinion of the court, is not within its reason.
An estate of inheritance passes by law to persons fixed and designated as heirs, with all the qualities under which it was held by the ancestor. But an owner in fee may create new estates, in the whole or in any part of the land held by him ; he may devise to one for years, to another for life, (the devisee’s own or that of another), remainder in tail, remainder in fee, with contingent remainders, executory devises, with uses, powers, trusts, and every other species of depending interests.. This consideration gives significance to the maxim, not always apparently intelligible, that a devisee takes as a purchaser. Instead of an estate of a fixed character, cast upon one by descent, by operation of law, there may be every species of estate carved out by will, as effectually, as if done by deed on a consideration paid. Under these circumstances, it would often be difficult for a court to ascertain who the person is, who stands in place of the heir, and whether he would be entitled to prosecute the same kind of action, which was pending at the time of the decease of the testator. We are therefore of opinion, that it was with a just regard to the difference between the case of an heir and that of a devisee, that the legislature confined the right to appear and prosecute a real action, on the decease of the demandant, to an heir, and that it is not given to a devisee. See Brown v. Wells 12 Met. 501.
But the main question in the case was that of disseizin The case had before been under consideration by the court, *411and various points had been decided, upon the respective titles of the parties. The demandant having established a prima facie title by deed and the operation of the colony ordinance, respecting the rights tó lands flowed by tide waters, it was contended by the tenant, that he and his ancestors had dis-seized the demandant and his ancestors, and held the estate, until the statute of limitations had barred the remedy of the disseizee, and all persons deriving title under him, so that by force of such disseizin, he had acquired a complete-and indefeasible title. This being a question of fact, it was ordered to be tried by a jury; the trial to be confined to this question only. Such a trial has been had, and this case comes before the court on a report of that trial, and the questions reserved thereon.
The case then begins with the assumption, that the demandant has established a prima fade title, by deed, to the upland or shore bordering on tide water, to which the land in controversy would belong, as parcel, if not alienated and separated by a deed of the proprietor, or by a disseizin and lapse of time, which, in law, would work such alienation. Another assumption is, that the demanded premises consist entirely of flats, that is, land lying on the shore of a bay or cove, open to the sea, between high and low water line, covered by salt water at the flow of the tide, and left uncovered by water at the ebb. It was admitted or proved, and assumed on both sides, that the tenant was in possession of a wharf covering a portion of the flats in question, and that he and his predecessors have had a peculiar, not to say exclusive, possession of the sides of the wharf, and of the end thereof towards the sea, to place vessels thereon, attached and secured thereto, and kept there at the convenience of the owner, to receive and discharge cargoes. To this extent, the verdict was for the tenant. But, beyond this, he claimed a title by disseizin to flats lying around and beyond the structure of the wharf, and beyond the sides and end thereof, thus used for docking vessels; flats, over which the tjde still flowed, unenclosed by piles driven into the ground, or by any other fixture.
*412The report states the evidence offered at the trial, and refers to the deeds, plans, and other evidence offered at former hearings. By this evidence, it appears, that the demandant had a wharf, hounding on Boston harbor, which he and his predecessors had extended from time to time, and used as a wharf, occupying the sides and end for the dockage of vessels, beyond which, towards the sea, lie the flats in question, constituting part of the harbor of Boston, covered with water at every flood tide.
In considering this case, it will not be necessary to go at large into the vexed subject of what constitutes a disseizin of the true owner, where he does not elect to regard himself disseized for the sake of his remedy. All the authorities agree substantially in holding, that there must be a possession taken, which is open, notorious, exclusive, and adverse to the title of the owner. The differences seem to have arisen from the application of the rule to the condition and circumstances of various states, which, in regard to the law of real property, follow the rules of the common law. It was stated in argument, that, in some respects, the rules adopted in Massachusetts, in regard to such application, differ somewhat from those of the other states. But the rules thus referred to all apply to the case of land alike in its nature and qualities, in respect to title and possession, and subject to the same rules; but they do not apply to estates in Massachusetts, lying upon creeks, coves, and other places, about and upon salt water, where the sea ebbs and flows. The title to flats, under the colony ordinance of 1641, and the constructions which have been put upon it, is of a peculiar character. By the ordinance, it is declared, that “ such proprietor shall have propriety to the low water mark, where the sea doth not ebb above one hundred rods, and not more wheresoever it ebbs further, provided that such proprietor shall not, by this liberty, have power to stop or hinder the passage of boats or other vessels, in or through any sea, creeks, or coves, to other men’s houses or lands.” By a grant of land- thus lying about or upon salt water, the grantee takes a fee in the soil of the *413flats to low water, or one hundred rods, as parcel, and as incident to the upland, without words of description. The effect of the ordinance is, to make the upland extend to low water mark; proof of title to the upland, therefore, is prima fade proof of title to the flats. Valentine v. Piper, 22 Pick. 85, 94. But it is prima fade only, because, being an estate in fee, the owner may sell the flats without the upland, or the upland without the flats. Mayhew v. Norton, 17 Pick. 357. It follows, therefore, that, after a separation, by a conveyance of the flats without the land, a conveyance of the upland would not convey the flats.
But, though the riparian proprietor has thus a fee in the soil of the flats, it is limited and qualified by the proviso above stated. The construction of the ordinance, with the proviso, has been, that, although such proprietor has a fee in the soil of the flats, he holds it sub modo; he may build a wharf or other permanent structure upon it, or he may enclose it with rows of piles, so as to exclude other persons from sailing over it; yet, until he does so, whilst the tide is in, and the flats covered, it is public navigable water, like that which lies beyond one hundred rods, over which all persons have a right to pass and repass with their boats, and from which the owner has no legal right to exclude them, by notice, warning, or proclamation, or any act short of an actual exclusion, by an enclosure or wharf, with the dockage incident thereto. Any person, therefore, entering upon the flats of such riparian proprietor, with his boat or vessel, and using it for the ordinary purposes of navigation, commits no breach of the owner’s close, subjects himself to no action of trespass, but is in the. exercise of a right as perfect in its kind as that of the riparian proprietor. Comm'th v. Charlestown, 1 Pick. 180. Such was the nature of the estate, of which the tenant claimed title by disseizin, and a bar of any entry or action by the statute of limitations. Both parties offered evidence which is stated in the report ; no evidence was offered and rejected on the ground of incompetency, or for any other cause.
*414Upon this evidence, a prayer for instructions was presented to the judge, on the part of the defendant, which he declined giving, and this is the ground of exception. We can perceive no error in law, in withholding this instruction, because there was no evidence to call for or to warrant it. It is a good reason for declining to give the jury precise and special instructions, at the instance of either party, that they are irrelevant; that they turn on abstract questions of law, not applicable to the case in hand. Such instructions would have a tendency to divert the attention, if not to mislead the judgment, of the jury, as to the true questions for their consideration. It appears to us, confining ourselves, as we must, to the report, that there was no evidence in the case, to which several of the propositions, in the prayer for instructions, though correct in point of law, could be applied; and, therefore, the judge was right in declining to give the instructions prayed for; giving those instead, which, in his judgment, were applicable to the evidence.
It was urged in the able argument for the tenant, that, as the judge refused to give the instructions, we are now to assume that the facts thereby supposed were true, in order to test the correctness of the propositions contained in the instructions, in point of law. But we cannot consider such to be the course of proper practice. Where evidence is offered, with a view to prove a certain state of facts, and the evidence is rejected by the judge, on the ground, that it is not pertinent to the issue, and that the facts, if proved, could not avail the party tendering it, then, certainly, in revising the decision, we are bound in justice to assume, that the evidence, if it had been admitted, would have proved the case stated. But it is far otherwise, where the evidence is received, and the judge is called on to state the law in reference to the facts, which, in the opinion of the jury, the evidence proves. There must be competent and relevant evidence, tending to prove a state of facts; and, then, the judge must instruct the jury, hypothetically, that if, in their judgment, certain facts are proved by the evidence. *415then such would be the rule of law, applied to the facts so proved, and such the conclusions in which it results, affecting the rights in controversy. In no other way, where a general verdict is to be given, can the judge direct in matter of law, for which he is responsible, and yet leave the jury free to judge, as they are bound to do, upon the weight and effect of the evidence. It is not the duty of the judge, —it has sometimes been denied that he has the right,— to state his opinion upon conflicting evidence, whether it is or is not sufficient to establish certain facts, but only to state how each fact, if proved, would apply in its effect on the right in issue.
But we are further of opinion, that, as applied to the subject matter, and the evidence in the case, the instruction prayed for could not be given. The object was to prove a title to the flats by disseizin ; it being admitted that the legal title was in the demandant. It was admitted in the tenant’s argument, that there must be a seizin and possession proved, on the part of the tenant, and that mere claiming was not enough : and, also, that the possession must be exclusive, for, if mixed, the seizin is according to the title. It may be proper to add another familiar proposition, though not expressly conceded in the argument, that, where there is no actual and exclusive possession in either, the constructive possession follows the title, and is in the true owner.
The first clause, in the prayer for instructions, is this :
“ That if the jury are satisfied, on the whole evidence, that the .tenant and those under whom he claims entered upon and took and held visible and exclusive possession of part of the demanded • premises, and exercised acts of open and exclusive ownership therein, and, as to the residue of the premises, used and enjoyed the same, by passing over them with vessels to and from his wharf, with intent thereby to possess and hold the whole premises on a claim of right, and by regular paper title up to the present line,” &c. The sentence is not carried out, but as the prayer afterwards speaks of such “ entry and possession,” the request was in effect to instruct the jury, that such entry on a part, with *416a claim to the whole, was an entry upon and possession of the whole.
The proper business of jurisprudence is to apply rules of law, which are necessarily expressed in general terms, to the circumstances of each case, with such modification and adaptation, as the particular case requires. It is under this consideration, that the pertinency and correctness of the instruction asked for are to be examined.
When this proposed instruction speaks of the whole and of part of the premises, there is nothing to indicate, that the premises were not all of one kind and quality of estate. But when applied to the subject matter, wharf and flats, and substituting the specific terms of the actual case, in place of the general terms of the proposed one, the instruction in question, we think, would stand thus: If the jury are satisfied, on the whole evidence, that the tenant, &c., entered upon, and took and held visible and exclusive possession of the wharf, and exercised acts of open and exclusive ownership in that wharf, and, as to the flats, between the wharf and low water line, used and enjoyed the same, by passing over them with vessels, when covered with tide "water, to and from his wharf, with intent thereby to possess and hold the flats as well as the wharf, on a claim- of right, and by regular paper title up to the present line, it would be an entry upon and possession of the flats.
This, we think, would not have been a tenable, legal proposition. Sailing over the flats, which every one had a legal right to do, would not have been a pedis possessio, an entry, or the first step towards getting possession. Every disseizin is a trespass, although every trespass is not a disseizin. When, therefore, the tenant’s predecessor first passed over these flats, with a boat, he had a perfect right to do so, under the common right of way for vessels. Without such right, it was a trespass and a wrong. Now it is perfectly well settled, that when an act may be either rightful or wrongful, it is not for the actor to say, that it was done with a wrongful intent, and to claim rights under it; his act shall be attributed to his right.
*417However long such a use is continued, it can confer no possession ; and whatever may be the intent of the party, or whatever his declarations, it cannot render that an entry and an act of possession, which is only the use and enjoyment of a common right of way. But, could such a use of the flats, by sailing over them, be regarded, in any view, as a possession, it is neither adverse nor exclusive. No action would lie against the party thus sailing over the flats, and no power would exist, on the part of the owner, to prevent his entry, or to remove him therefrom. These are the tests, to show that such act of sailing would not amount to a technical breach of the owner’s close. It is impossible to deny, that the owner has an equal right with the rest, of the community to pass over these flats ; if the tenant therefore could have any possession, it would be but a mixed possession, in which case, the legal and constructive possession follows the title.
These considerations apply exclusively to the flats; the wharf stands on different grounds, and, in regard to that, the instruction is not objected to. Then, if there were no entry and no possession of the flats, all the other acts stated amount to a mere parol claim, not qualifying any act done. And, if we are right thus far, it seems hardly necessary to pursue this prayer for instructions further. If there were no entry and possession, or if there were no adverse and exclusive possession, there could be no notice to the demandant of such adverse possession, and the claim must have been a mere parol claim. So, if by conveyances and other equivalent acts, the demandant, or those, &c., recognized and yielded to such claim and possession. If, by the use of the term “ conveyances,” were intended any deed affecting the title of the demandant by way of grant, release, or estoppel, this would be a question of documentary title, and not a question of disseizin. We understand, therefore, by this expression, conveyances between the demandant or his predecessors, and third persons, containing express or implied admissions. This would amount to nothing more than parol admissions insufficient to affect title. Any other case of recognition of, and *418yielding to, the tenant’s claim and possession, could not be shown, until such adverse possession had been established..
As to yielding or resigning by the demandant, if it were a mere claim in words, without act done on the part of the tenant, and an admission of that claim, in words, on the part of the demandant, it would be no bar or estoppel; it would be a parol release, inoperative without deed. Such yielding and submission, to be of any legal effect, must be to some act of entry and possession. Acquiescence, even in an open and visible act of entry or possession done by another, does not render such entry or possession adverse, unless the party, whose acquiescence is claimed, could have resisted it, or maintained an action upon it. Gray v. Bartlett, 20 Pick. 186.
Perhaps this case, of an estate consisting partly of flats built upon and enclosed, of which the owner may have open, adverse, and exclusive possession, as in other cases of solid land, and partly of open flats, upon which, until built upon and enclosed, all persons have a right of passage, with vessels, may be illustrated by a familiar case. By the law of Massachusetts, the laying of a highway over land does not divest the title of the owner; he is then seized in fee of the land, subject to the easement. Suppose the case of a highway laid over a farm. A person, not in possession, and not establishing a title by deed, has claims upon the whole farm against the owner; and, for the purpose of asserting such claim, he passes over such highway, declaring to the owner and to all other persons, that it is his intent and purpose to consider this act as an entry and adverse possession, as against the owner. The soil under the way is part of the premises; he therefore enters upon a part of the premises, with intent to take possession of the whole, and with full and express notice of such intent to the owner, and uses the way constantly with a like intent thirty years. Inasmuch as the owner could not prohibit him from such entry upon and use of the way, or sue him for it, his acquiescence would impair none of his rights ; such use of the way would not be an exclusive, or an *419adverse, or an actual possession of the residue of the farm. The cases are analogous.
These difficulties, in regard to the title to flats, under the colony ordinance, are not now disclosed for the first time; they are intrinsic and unavoidable. In most other cases of controverted claims to real estate, defective titles may be strengthened, inchoate ones perfected and made certain, by actual possession, more or less exclusive, — by constructive possession, under deeds recorded or otherwise, — by presumptions of grant,—and by other ways, by means of which time becomes the great quieter of titles. But, in regard to flats, it is far otherwise. Most of the tracts of flats, within the commonwealth, are without value ; a large portion of the residue of very little value; a small portion, only, from the progress of commerce, has come to be of great value; but the same rules must apply to all. The first great difficulty is in ascertaining, in each particular case, the direction of the lines, to which the riparian proprietor is entitled, as between him and his conterminous proprietor. Valentine v. Piper, 22 Pick. 95. The rule is simple, but it is rendered complicated and difficult of application, by the infinitely diversified forms which the sea-shore may present. Add to this, that, by the same law, which vests the fee in the riparian proprietor, a general right of way is reserved to the public, until built upon, or actually enclosed, so as to exclude navigation, and it is obvious, that the ordinary presumptions and conclusions of law, arising from possession and use, can have no application, in regard to open and unenclosed flats. The constant use of such flats, by one not entitled to claim and hold them as the riparian proprietor, for the ordinary purposes of navigation, can give no exclusive or adverse possession; and such has been the law from the first settlement of the country to the present time.
Judgment on the verdict for the demandant.