This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Massachusetts colonial ordinance of 1647, by which the proprietor of land on tidal waters is given the shore or "flats" to low water mark, has been the subject of numerous decisions by way of determination of the divisions between adjoining proprietors. The endeavor of the courts has been to divide the flats in such a way as to give to each piece of land above high water mark, "upland" as it is frequently called, a portion of the flats such that the width of such portion at its outer or seaward end will be proportioned to the width at high water mark.89a And in pursuance of this policy it has been ruled that, when practicable, the flats of each upland owner shall at the low water line be of a width equal to that of the upland at the high water line,89b while in the case of a cove from which the tide ebbs, and in which there is no channel, the flats are to be divided by straight lines from the external lines of each proprietor's upland to a base line across the mouth of the cove, so as to give to each proprietor a distance upon the base line proportioned to the width at the ordinary high water mark of his take ice from above land owned by the state is such that the-state itself cannot impose a license fee as a condition of taking ice for sale outside the state.
88. Higgins v. Kusterer, 41 Mich. 318, 32 Am. Rep. 160, 2 N. W. 13.
89. Washington Ice Co. v. Shortall, 101 111. 46; State v. Pott-meyer, 33 Ind. 402.
89a. Wonson v. Wonson, 14
Allen (Mass.) 71.
The bulk of the decisions on the ordinance are collated in the reporter's note to Com. v. Rox-bury, 9 Gray (Mass.) at p. 521 et sey. The decisions generally on the question of the division of shore frontage are referred to in notes 21 L. R. A. 776, 25 L. R. A N. S. 257.
89b. Gray v. Deluce, 5 Cush. 9; Tappan v. Boston Water Power Co., 157 Mass. 24, 16 L. R. A. 353, 31 N. E. 703.
In Maine, which was formerly a part of Massachusetts, the colonial ordinance is also in force, and there the rule asserted as regards the division of the shore or flats is that a base line be drawn between the two corners of each lot at the shore, and a line then be run from each corner, at right angles with the base line, to low water mark; and if the side lines diverge from or conflict with each other, the land excluded or included by both lines be divided equally between the two proprietors.89e This Maine rule has been criticized on the ground that the lines of division would change as any upland owner might dispose of part of his land or acquire more land.89f But it has been decided that after the lines have been fixed by the original division of the upland into lots, no subsequent division of any particular lot can affect the extent of the flats belonging to adjacent proprietors.89g navigable non-tidal river, and, in some jurisdictions, in the case of a navigable non-tidal river,89n the location of the side lines of any riparian proprietor, as regards that portion of his property under the water as well as that not under the water, is properly to be determined by the description in the instrument under which he claims. It may occur, however, that the description in terms carries the side lines only so far as the margin of the stream, and the question then arises as to the direction of such lines between the margin and the centre of the stream. Some courts have, in this connection, asserted a rule that, in the absence of evidence of a contrary intention, the lines under the water must run at right angles with the course of the stream.89o
As before stated, the owners of land on navigable waters usually have the privilege, by statute or otherwise, of reclaiming or wharfing out in front of their land, and the attempted exercise of such privilege will frequently involve a conflict as between neighboring owners. Occasionally a rule has been asserted in
89c. Ruet v. Boston Mill Corp., 6 Pick. 158; Tappan v. Boston Water Power Co., 157 Mass. 24, 16 L. R. A. 353, 31 N. E. 703.
89d. See note 9 Gray at p. 523. Stone v. Boston Steel & Iron Co., 14 Allen; Emerson v. Taylor, 9 Me. 42, 23 Am. Dec. 531.
The Massachusetts decisions in connection with this ordinance have been not infrequently referred to by the courts of other states in discussing questions of a more or less analogous character, involving conflicting claims by adjoining riparian or littoral owners to the bed of a stream, the apportionment of alluvion, and the right to reclaim or wharf out beyond one's land.
89e. Emerson v. Taylor, 9 Me. 42, 23 Am. Dec. 523; Treat v. Chipman, 35 Me. 36.
89e. Armstrong v. Wheeler, 52 Conn. 428; Stockham v. Browning, 18 N. J. Eq. 390.
89g. Call v. Lowell, 40 Me. 31.
[Sec. 307 this regard, based on the analogy of the rule developed in Massachusetts in connection with the Colonial ordinance of 1647, and also of the rule ordinarily asserted as regards the division of land formed by accretion89h that the lateral lines within which such rights of reclamation or wharfing out may be exercised are, as between adjoining proprietors, to be ascertained by apportioning the line to which the reclamations or improvements may be extended, that is, the harbor line or line of navigation, and extending side lines from such line to the shore in such a way as to give each littoral proprietor a portion of such line proportioned to the length of his shore line.89i Another method of division which has been suggested in this connection is to allow each littoral owner to reclaim or wharf out between lines running at right angles to the harbor or other line to which he is allowed to wharf out.89j In the case of a navigable river his rights in this respect have been regarded as fixed by the extension of his side lines at right angles to the general course of the stream.89k Under some circumstances the side lines should be run at right angles to the shore line,891 and in any case the lines may be fixed by the agreement or acquiescence of the parties interested.89m
"When riparian ownership extends to the thread of the stream, as usually occurs in the case of a non89h. Post Sec. 543.
891. Blodgett etc. Lumber Co. v. Peters, 87 Mich. 498, 24 Am. St. Rep. 175, 49 N. W. 917; Delaware etc. R. Co. v. Hannon, 37 N. J. L. 276; Northern Pine Land Co v. Bigelow, 84 Wis. 165, 21 L. R. A. 776, 54 N. W. 496.
89j. Aborn v. Smith, 12 R. I. 370.
89k. Panama Ice & Fish Co. v. Atlantr. & St. A. 3. Ry. Co., 71 Fla. 419, 71 So. 608; Montgomery v. Shaver, 40 Ore. 244, 66 Pac. 923; Manchester v. Point St. Iron Works, 13 R. I. 355; A. M. Campau Realty Co. v. City of Detroit, 162 Mich. 243, 139 Am. St. Rep. 555, 127 N. W. 365.
89e. Armstrong v. Wheeler, 52 Conn. 428; Morris v. Beardsley, 54 Conn. 338, 8 Atl. 139.
89m. Winnisimmet Co. v. Wy-man, 11 Allen (Mass.) 432; Stock-ham v. Browning, 18 N. J. Eq. 390; O'Donnell v. Kelsey, 10 N.
X. Animals and Fish.