These were real actions brought to recover a *296large tract of fiats, lying in Cambridge, south of the old West Boston Bridge and Causeway, and west of the “ Little Bridge,” so called. It appears by the plans taken for and used at the trial, and admitted to be correct, that the western abutment of the main bridge adjoins a tract formerly salt marsh, or flats; it then passes over a causeway some distance, westerly, till it reaches a creek or narrow channel, through which the tide ebbs and flows. This is, or originally was, crossed by the structure, called the Little Bridge, and the way then continues over marsh or flats by a solid causeway to the upland at Cambridge, at a place formerly called Pelham’s Island, which was the western terminus of the bridge as fixed by the charter. Judging from Osgood Carlton’s plan, taken about the time, and for the use of the Proprietors of the West Boston Bridge, we should judge, that this place, called Pelham’s Island, was not a piece of land surrounded by water, according to the usual definition, but a tract of upland surrounded by salt marsh, not unfrequently called an island.
The demandant here, as in all cases of real actions, must recover by the strength of his own title, that of the tenants not being disclosed; nor is it necessary that it should be, until the demandant has made out a primâ facie case.
The demandant claims title under a deed from the Proprietors of the West Boston Bridge, made June 22,1849. This purports to be made to correct a former deed intended to effect the same grant, in which it is supposed there was some informality in the description. By this former deed, the Proprietors of the West Boston Bridge quitclaim to Joshua Harlow, his heirs, &c., a certain piece or parcel of land in Cambridge, described, See., beginning at a point on the causeway leading from the bridge formerly called the West Boston Bridge, but now the Hancock Free Bridge, distant forty-four feet in a straight line from the westerly abutment of the bridge upon said causeway, called the Little Bridge, thence turning and running northerly, perpendicularly to said causeway, one hundred feet, thence turning and running easterly, parallel to said causeway, eighty-two feet, then turning and running perpendicularly to said causeway, one hundred feet *297to said causeway, thence turning and running westerly on said causeway, eighty-two feet, to the point of beginning, “ together with all the right, title, and interest of said proprietors to all the flats adjoining the above, not previously sold and conveyed.”
It is in virtue of this last clause, that the very large tract of flats demanded in these actions, lying south of the bridge and causeway, are claimed; not as appurtenant or appendant, or as annexed by force of the colony ordinance, but as parcel, and by force of the description.
Several remarks arise, upon the terms of this grant, lying as it does wholly north of the bridge and causeway. 1st. The Little Bridge is called in the deed “ Causeway; ” the whole tract embraced in the direct words of grant bounding on the Little Bridge, the westerly line of the tract granted being east of the westerly abutment of the Little Bridge. 2d. The land granted bounds southerly on the northerly line of the bridge, here denominated “ Causeway.” 3d. There may be, and by the appearance of the plan, which is made part of the case, we think there was a portion of flats, in the creek, lying easterly of the land granted, and between the easterly line described, and the thread or middle line of the creek; and if there was any such, it would pass by this grant, and give some effect to the words used, “ together with the flats,” &c.
But the claim on the part of the demandant is, that the soil of the flats, under the Little Bridge, belonged, as flats, to the grantors; that the erection of the Little Bridge, though as a part of the bridge, causeway and road, which the proprietors were to erect and maintain, gave them an easement only; that ths flats under the bridge, adjoining the land granted, passed by force of the words cited, as “ adjoining,” and then the large tract of many acres, on the south of the causeway, adioined the flats under the bridge, and so passed as adjoining. In order to judge of the true construction of this deed, and the claims founded upon it, it is necessary to go out of the deed to ascertain the rights and relations of the grantors, in order to give effect to these words of grant.
The grant, on the face of it is to be construed, with two *298exceptions or limitations; first, that the flats in question had been the property, in fact, of the grantors, and adjoining the land conveyed; second, that they had not been previously sold and conveyed by the grantors.
It is not necessary, in determining the present case, to inquire what interest in the flats the Proprietors of the West Boston Bridge acquired, by the various conveyances of Chenery, Swan, Beal, Bond and others, by their various deeds, given soon after the bridge was erected, and for the purpose of building thereon their bridge and causeway, beyond the land and flats, covered by that structure. One circumstance in regard to that title is peculiar, which is, that by the amendment of their charter, they were authorized and empowered to take and hold land, on which to place their bridge and causeway, in fee, and by the deeds given them by the owners of the land, they did take estates in fee. By an enabling act, St. 1792, c. 87, § 1, this corporation was declared capable in law to take and purchase, hold and enjoy all such lands, &c., tor the better effecting the purposes of their incorporation, to them and them successors and assigns forever, not exceeding in value $40,000. And to show that this was not so done through inadvertence, there is a further provision that when the owners do not consent to sell, the corporation may take lands by appraisement, and such lands shall vest in the same proprietors, them successors and assigns in fee simple forever.
We have said that this is peculiar, because in most other cases in this commonwealth, of acquiring lands by the public, or by any corporation vested by legislative charter with the public right to establish highways, bridges, or turnpikes, the right in the soil, whether acquired by grant, or taken by an appraisement, is an easement only, and not a fee in the soil, which vests in the public, or in such corporation.
It is manifest, we think, from this view of the charter, and the facts agreed, that the grantors named to the West Boston Bridge, or some of them, were owners in fee of all the land, marsh, and flats covered by the causeway and that the Proprietors of the West Boston Bridge, in their corporate capacity, and as part of their franchise, took an estate in fee, in all the *299land thus covered by the causeway; and whether they took any other estate by their deeds, is not material to this inquiry.
It appears by the statement of facts, that the Proprietors, in pursuance of their charter, and the deeds aforesaid, took possession of a strip of land beginning at the westerly end of their main bridge, and running westerly in the same direction, one hundred and thirty feet wide, through its whole length, to the road leading to Cambridge, far west of the Little Bridge. In the centre of this strip, the causeway was constructed forty feet wide, supported by walls, with a canal on each side, as appears by the plan. In constructing this causeway, the Little Bridge was built as part of it, over a creek, in which the tide flowed, and from which, as we understand, the tide ebbed at low water. The flats of that creek, therefore, on both sides, were capable of being held and conveyed in fee as private property.
We now come to construe the grant made by the Proprietors of the West Boston Bridge to the demandant, dated June 22,1849. The description uses the terms “ causeway,” and “The Little Bridge,” indiscriminately, as meaning the same thing, and, indeed, the Little Bridge over this creek is a bridge regarded and described as part of the causeway. The grant is a piece of land, wholly on the north side of the Little Bridge, measuring eighty-two feet on the bridge, and extending one hundred feet northerly from it. After closing the description of this parallelogram of one hundred feet by eighty-two feet, the description adds, “ together with all the right, title, and interest of said proprietors to all the flats adjoining the above, not previously sold and conveyed.” Applying this description to the place, it would seem probable that the intention of the parties was, that the proprietors should convey their title to flats, being the soil of the creek, from an easterly line of the parcel specially described, easterly, to the middle line or thread of the creek, and north of the bridge throughout this description denominated “ causeway.” But as the easterly line of this parallelogram, was a straight line, and might not extend in all parts to the thread of the *300creek, the additional words, “ together with the flats adjoining,” were intended to include any portion of flats, lying between such straight line and the thread of the creek, and did not include any flats lying under the Little Bridge, or anywhere south of the north side of that bridge, described as a causeway.
But we do not place the decision of this question wholly or mainly on this construction of the deed; but upon what the proprietors had previously done by their conveyance to the Hancock Free Bridge, which was referred to by both parties at the argument as part of the case. The legislature having, by Si. 1846, c. 146, § 7, authorized the West Boston Bridge Proprietors, to sell and convey their bridge to the Proprietors of the Hancock Free Bridge, the price having been settled, and authority given to officers to make the conveyance, a deed was executed by one corporation to the other on July 1, 1846, which was prior to the date of the first of the three deeds executed by the Proprietors of the West Boston Bridge to the demandant, which was September 14, 1846; so that if these three deeds were considered as taking effect at the date of the earliest of them, it would still be later in time, and, of course, subject to the deed to the Hancock Free Bridge. By this deed, after all the appropriate recitals, the Proprietors of the West Boston Bridge convey to the Hancock Free Bridge Corporation, their successors and assigns, their bridge and franchise; “it being well understood, that in said franchise is included all the right, title, and interest which the Proprietors of the West Boston Bridge have in and to the causeway from the westerly abutment of said bridge.”
By this deed, the court are of opinion that the fee in the soil, being part of the flats in the creek under the Little Bridge, passed to the proprietors of the Hancock Free Bridge.
The act authorizing the purchase of the West Boston Bridge, with its franchise, St. 1846, c. 146, obviously contemplated the continuance of that public avenue, for the use and benefit of the public forever. The corporation who were to convey, had been invested with the franchise of purchasing and holding real estate in fee, on which to place their *301causeway. They did so purchase and hold land, and erected their causeway upon it. The conveyance of their bridge, causeway, and franchise, passed the fee of the soil on which the causeway was built. Such must have been the intent of the grantors and grantees. Otherwise, the object of the statute, and the purchase made under it, for the use of the public as a way, would be defeated. Conveying the causeway, was conveying all the grantors’ right to the land on which it stands; had that been an easement, as in case of common highways and turnpikes, this right may have been construed a perpetual easement; but as that right was a fee. the grantees took a fee; as the grant of a house is held to be a grant of the fee of the land under the house, if the grantor has the fee.
Such being the effect of the deed from the demandant’s grantors, the Proprietors of the West Boston Bridge, they have parted with their whole estate in the flats under the Little Bridge, and their subsequent deed to the demandant passed no title to those flats, under the term of “ flats adjoining the above, not previously sold.” The land granted being, in terms, wholly north of the north side of the causeway, called the Little Bridge, the flats under it had been sold and conveyed in fee, and, therefore, could not pass; and all flats, south of the Little Bridge, had ceased to be adjoining the parcel of land described, and, therefore, did not pass as flats adjoining.
We have already stated as doubtful, and at least not necessary to be decided in this case, whether by the deeds of Chenery and others in 1794, and succeeding years, the Proprietors of the West Boston Bridge took any land or flats beyond the one hundred and thirty feet for the causeway and lateral canals; but if they did, and intended by their deed to convey to the demandant any flats south of the causeway, it would have been easy to express that intent by a few additional words, as “ all their remaining rights to flats on the south side of the causeway or Little Bridge,” or “ on both sides,” or words equivalent.
The fact mentioned in the agreed statement, that actual *302.ivery of seisin was made by the proprietors, by the delivery of their deed by their agent on the premises, we think can make no difference. Livery of seisin cannot enlarge the estate expressed in the charter of feoffment. If not embraced in the deed, livery of seisin could not aid it.
It is said, in support of the demandant’s construction, that by the vote of the West Boston Bridge proprietors, the agent had authority to convey all their remaining fiats. Suppose it was so; the question is not one of authority but whether, however large his authority, the agent did in fact convey any flats south of the causeway. This must depend on the terms of their deed executed by him;
The view we have taken of the construction of this deed renders it unnecessary to consider, whether in form the deed executed by the agent of the Proprietors of the West Boston Bridge to the demandant was valid, either at common law or under the Si. 1809, c. 112. Our opinion proceeds on the hypothesis, that if the deeds were duly executed, the demanded premises did not pass by them, and the demandant is not entitled to recover. Demandant nonsuit.