The instructions given to the jury at the trial of this case were correct.
The description in the indenture of partition bearing date February 16, 1716, clearly excluded the flats comprehended within the limits of the creek, so that they did not pass as appurtenant to the land described by virtue of the provision contained in the colony ordinance of 1641, 1647. Anc. Chart. 158. The boundary is by a creek “betwixt said land and land of Joseph Lynde.” This shows that the creek was regarded as separate and distinct from the adjoining land, and was intended *514by the parties as an abuttal by which the extent of the proprietary right in the premises described in the indenture was defined and limited. The peculiar phraseology of the indenture, fixing the boundaries by a creek which is described as lying between the premises set off to the ancestor of the demandants and the owner of the estate on the opposite shore or bank, takes the case out of the rule that an owner of land bounded on the sea or on a creek or cove shall hold to low water mark, and brings it within the exception that, where the boundary is by the shore or flats, the grant is limited to the upland, and the flats do not pass as appurtenant. They are excluded by the terms of the grant. Storer v. Freeman, 6 Mass. 435.
The evidence of declarations by a former owner of the premises, with whom the demandants are in privity, was rightly admitted. They were statements made in disparagement of title against the interest of the party making them, and contemporaneous with his possession and enjoyment of the premises now owned by the demandants. Plimpton v. Chamberlain, 4 Gray, 320. Ware v. Brookhouse, 7 Gray, 454. Niles v. Patch, 13 Gray, 254, 256. Nor is it any objection to the competency .of these declarations, that they were made by a person who held the estate, now owned by the demandants, as trustee. The legal title was vested in him. It was his duty to ascertain and set boundaries to the premises, to protect the title and to prevent any encroachment upon the estate by adverse possession or otherwise. His interest in the estate was coincident with his duty, and any declarations made by him against his interest were clearly admissible. The ancient plan of the premises, which was in the possession of the persons under whom the demand-ants claim, and which was referred to by them as showing the true boundaries and limits of their estate, was admissible in evi dence on the same ground. Bul. N. P. 248. Bridgman v. Jennings, 1 Ld. Raym. 734.
Exceptions overruled.