The bill of exceptions in this case is very long, and contains much matter which is not relevant or material to the questions which were submitted by the court to the jury, and on which the decision of the case by them ultimately turned. In the aspect which the controversy finally assumed, under the ruling of the court, many of the objections taken by the plaintiff in the course of the trial became wholly unimportant. It seems to us that there are now only three points on which it is necessary for us to express an opinion.
1. The first arises on the ruling, made after all the evidence had been put in, that it did not appear that the plaintiff had such an exclusive possession of that portion of the locus lying below the line of ordinary high water mark, and constituting the beach in controversy, as to enable him to maintain an action of trespass for any act done thereon by the defendant. We see no reason to doubt the correctness of this view of the case, as it is disclosed by the evidence reported in the exceptions. It seems to us to be well supported on two grounds. In the first place, the evidence falls short of showing that the beach or any part thereof could in any just or legal sense be deemed the plaintiff’s close. He does not show any exclusive, separate right in the soil, or any exclusive possession thereof. The premises were open and uninclosed. The tide ebbed and flowed over them twice every twenty-four hours. The plaintiff exercised no acts of ownership over them, and had no possession of them except to take muck or seaweed therefrom when it was thrown up by the action of the winds and waves. Besides, it appeared that during the whole period of the plaintiff’s alleged possession and occupancy, and long prior thereto, many other persons had done similar acts *70on the premises in controversy. But there was no evidence that the plaintiff ever claimed to own the soil. He did no act and made no claim except to go on and take the drift weed. It was not shown that he ever forbade others from exercising the same right. It seems to us that such temporary and occasional occupation of a shore or beach, without any proof that it was separate and exclusive, was insufficient to support the allegations in the plaintiff’s declaration.
But there is a better and more decisive answer to the claim of the plaintiff to maintain this action. The defendant justifies his entry under a license from the town of Manchester. Upon the uncontradicted evidence in the case, it appears that the town was in possession of this beach, exercising acts of ownership and claiming the right to dispose of the seaweed or muck thereon, as early as the year 1837, long before the plaintiff’s alleged possession and occupancy commenced. There is no evidence in the case to show that this possession by the town was ever relinquished or abandoned. The legal presumption, in the absence of proof to the contrary, is that it continued. And there was much evidence in the case which tended to show that the right of the town to the beach and to the drift weed which accumulated thereon was not only not waived or given up, but was continued and asserted up to the time of the commencement of this action. In this state of the evidence, the most favorable view which could be taken of the plaintiff’s case was, that his possession was a mixed and concurrent one with that of the town. When he entered in 1847, the town were in possession of the premises. There is no pretence that his possession then became exclusive. The case, therefore, clearly comes within the principle, that where two parties have a concurrent or mixed possession of land, neither having other title or exclusive priority of possession, one of them cannot maintain an action of trespass against the other. Brimmer v. Proprietors of Long Wharf, 5 Pick. 131, 135. Barnstable v. Thacher, 3 Met. 239. The defendant could not be regarded as a stranger who had entered in violation of the right of the town as well as of the plaintiff. Under his license from the town, he had the *71right of one holding a common occupation and possession with the plaintiff.
2. So far as a title to the beach in controversy was shown by documentary proof offered at the trial, it seems to us to be now vested in the town of Manchester. By the records of the general court, it appears that on the thirteenth day of May 1640, 1 Col. Rec. 288, the following vote was passed : “ The petition of the inhabitants of Salem for some of their church to have Jeffryes Creeke, & land to erect a village there, for Mr Willi: Walton, John Blacke, Willi: Allen, Sam : Orchard, Geo : Norton, &c. campa; what land & inlargment may bee convenient, & is not granted to any other plantation, is granted them ; & it is referred to Mr John Winthrope, Junior, & Mr Symon Bradstreete, to settle the bounds of the said village.” By subsequent votes and proceedings of the general court, to be found in 1 Col. Rec. 304, and 2 lb. 4, 109, it appears that the territory included in the foregoing grant is the .same as that now embraced in the town of Manchester. Looking at the terms of the vote, we think it clear that it was not a mere cession of jurisdiction or corporate authority to the person designated, over the territory therein named. It is in terms a grant of “land and inlargment ” to divers persons and their associates, not to be held by them in severalty, but to them as proprietors, an aggregate body formed for the purpose of establishing a plantation or settlement, or, in the words of the petition, “ to erect a village.” It was in effect a grant to a proprietary, having certain corporate powers of a limited nature, by which they were enabled at the outset to manage, divide and alienate the lands amongst themselves, or to grant them to new settlers, and which subsequently, by usage or express grant, became enlarged into full municipal authority. This was the construction put on a similar vote of the general court in Commonwealth v. Roxbury, 9 Gray, 451, 496. And although the grant in this case preceded the colony ordinance of 1641—1647, Anc. Chart. 148, by which it was enacted that the proprietor of land adjoining “creeks, erves and other places about and upon salt water, shall have propriety to the low water mark ” to the extent of one hundred rods, yet on the *72passage of that ordinance the land in controversy became annexed. to the upland, so that it enured to the benefit of the town. Commonwealth v. Roxbury, 9 Gray, 498. It did not appear at the trial that the title to this beach, which thus became vested in the town of Manchester, had ever been alienated or lost. In the absence of evidence, the- legal inference is- that it continued in the town. And there was evidence in the case which tended very strongly to confirm this inference. On this point, the deed of the adjoining upland from Thomas Babcock to Samuel Eos ter in 1787, by which the land granted is bounded “ on land or the beach called Black Cove,” thus excluding the grantee from any right below ordinary high water mark, was competent and significant evidence, in connection with the fact that no conveyance of the beach by the. town was shown to have been made, that the title to it had never'passed out of the town.
3. In the view which we have taken of the nature of the plaintiff’s possession of the beach, and of the title of the town to the land below ordinary high water mark at the place in controversy, the court did not err in ruling that the only question to be determined by the jury was, whether the defendant took seaweed from the upland belonging to the plaintiff, or from a portion of the beach which, by the establishment of a conventional line between the town and the owner of the upland, might be deemed to belong to the plaintiff as part of his upland, because it was above the line fixed by the parties as the line of ordinary high water. If the jury found this fact in favor of the plaintiff, he was entitled to a verdict; and it was the' only ground on . which this action could be supported. That it is competent for adjoining owners to establish a line by agreement as the boundary of their estates, which shall be binding on them and those claiming under them, is too well settled to admit of a doubt. Whether any such agreement was proved in the present case, we cannot determine'on this bill of exceptions, which does not purport to contain a statement of all the evidence introduced at the trial on this point. ' Nor can we see that the case was stibmitted to the jury under instructions which precluded the plaintiff from obtaining a verdict, if the evidence satisfied them *73either that the defendant entered on the upland above the actual line of ordinary high water, or above the conventional line, if such line was proved to have been fixed and agreed on by the adjoining proprietors of the upland and beach.
Exceptions overruled.