Peter Green et al. versus The Inhabitants of Chelsea, 24 Pick. 71

Morton J. delivered the judgment of the Court. It is sometimes said that ancient instruments prove themselves. And. it is an old and well settled rule of evidence, that registered deeds which appear to be thirty years old, and which have been followed by a possession under them, may be given in evidence without any proof of their execution. After such a lapse of time the witnesses are presumed to be dead.

And it is said to be a peremptoiy rule of law, found to be both safe and convenient, that after a lapse of thirty years, a deed unaccompanied by any circumstances of suspicion, may be admitted without any proof of its execution. Co. Lit. 6 6; 3 Eac. Abr. (Dodd’s ed.) 296, Evid. F. ; Bull. N P. 255, 1 Stark. Ev. 343 ; 1 Phil. Ev. (6th ed.) 458 ; Jackson v. Blanshan, 3 Johns. R. 292; Doe v. Phelps, 9 Johns. R. 169; Doe v. Campbell, 10 Johns. R. 475. This rule has been adopted in this State by direct adjudication, and has ever been recognised and practised upon in our courts. Stockbridge v.

West Stockbridge, 14 Mass. R. 257 ; Tolman v. Emerson, 4 Pick. R. 160. Its utility and wisdom have recommended it to universal acceptance, and we find it recognised wherever we can trace it. Joce’s Lessee v. Harris, 1 Har. & M‘Hen. 196 ; Hoddy v. Harriman, 3 ibid. 581 ; Carroll v. Norwood, I Har. & Johns. 174 ; Thompson v. Bullock, 1 Bay, 364 ; Middleton v. Mass, 2 Nott & M'Cord, 55 ; Roberts v. Stanton, 2 Munf. 129 ; Lee v. Tapscott, 2 Wash. 276 ; Shatter v. Brand, 6 Binney, 435 ; Mallory v. Aspinwall, 2 Day, 280. The deeds of B. Brintnall to J.

Green 1st, were more than sixty years old, and the grantee and his successors have held possession under them to the present day. Whether the occupation was exactly coextensive with the land described in the deed or not, is immaterial upon the question of its admissibility. The introduction of the testimony as to the handwriting of the grantor was supererogatory, but in no way objectionable, except on account of its inutility. That Brintnall’s deed of 1772 included the land in controversy, we entertain no doubt.

A boundary “ on the sea or salt-water,” with the aid of our ordinance of 1641, not only includes all above high-water mark, but also extends to low-water mark when it does-not exceed one hundred rods. It is true that the omission of the demanded premises in the mortgage to Putnam and the absolute deed to Dexter, and the frequent and unrestricted use of them by the public, tend to show that the grantee of the farm did not consider them included in the conveyance to him. But the small value, the inconsiderable use, and the open, unenclosed state of them, in some measure explain and account for this conduct.

But a man’s misapprehension of his legal rights will not impair his title, nor restrict the natural and obvious construction of his deeds. The demandants declare upon their own seisin, and to maintain their action they must show a seisin in themselves, since the death of their father. Jonathan Green 1st, oy virtue of and under his deeds, took possession of the land conveyed and became seised of all that was included in the description, whether in fact he ever put his foot upon every rod of it or not.

He conveyed the farm or tract of land to Dexter, excluding in the description the demanded premises ; and therefore remained seised of them, as well as of the fee of the land over which the road was laid. By the residuary devise in his will, he gave these premises to J. Green 2d. But the latter never had actual possession, or made any formal entry into them. And the tenants deny that he ever became seised during his life. If he ever had a seisin, it was conferred by mere operation of law. No adverse possession or actual disseisin interposed to arrest or obstruct his legal investiture.

The occasional acts of Dexter clearly could not, in direct contravention of the terms of his grant, indicate a claim of possession or amount to a disseisin of the true owner. Had J. Green 1st died intestate, the law would have cast the inheritance upon his heirs. But the law, wisely or unwisely, makes a difference in this respect between an heir and a devisee. And while, by its own force, it invests the one with a legal seisin, it requires of the other an actual entry or some equivalent act. Brown v. Wood, 17 Mass. R. 74.

Why the acceptance of a devise should not be deemed equivalent to an entry and place the devisee in as good a situation as an heir, it is not easy to discern. But without impugning the rule, we must refer to an exception, which exempts from its operation waste and vacant lands. In such cases, an entry would be a useless, unmeaning ceremony, ousting no one and giving notice to no one, and not required by any reasonable principle of law.

This is said to be peculiar to our Commonwealth, but it has long been established and acted upon here, has proved wise and beneficial in its operation, and is now a fixed and settled rule of property, which can only be changed by legislative power. Stearns on Real Actions, 33, 72 ; 4 Dane’s Abr. 21, § 17, Wells v. Prince, 4 Mass. R. 64 ; Ward v. Fuller, 15 Pick. 190. It is not, as the tenants’ counsel argue, confined to wild and uncultivated land ; but extends to all vacant unoccupied lots, whether in the city or in the wilderness.

And it is.some what remarkable that most, if not all the cases that have occurred, in which the doctrine has been enforced, related to lots in the city of Boston. That the demanded premises come within the description of vacant land, is apparent from all the evidence. No one ever pretended to have exclusive occupation of them; they never were enclosed ; but appear to have been used indiscriminately, and, as far as they were used at all, by townsmen and strangers, coming by land or by water, as they might have occasion to pass over them or make some brief and trifling use of them.

But nothing is shown indicating, in any one, the claim to a right to the possession, or the ownership either of the fee or an easement. Upon these principles, J. Green 1st, being seised at his death, might effectually devise the demanded premises ; his will acting upon them, vested the seisin in J. Green 2d, who devised them to the demandants. After his death, they became seised and must now prevail, unless the tenants can show some defect in their title or establish a better one in themselves. The first claim of the tenants is, that they have acquired a title to the estate by possession.

A corporation can only show possession by proof of corporate acts. The various acts of individuals upon the land, if they are evidence of the possession of any one, cannot enure to the benefit of the tenants They did not act by the authority of the town. And theii user of the premises, if it be evidence of any thing, may tend to show an easement in the inhabitants of the town or in the public ; but, instead of maintaining the possession of the tenants, is clearly adverse to their claim. Commonwealth v. Newbury, 2 Pick. 51 ; Commonwealth v. Low, 3 Pick. 408.

And although the grant of a fee as well as of an easement, and a grant to a corporation as well as to an individual, may be presumed ; yet an occupation, for any length of time short of twenty years, is not of itself even prima facie evidence of it. See cases cited in 3 Stark. Ev. 1215, 1221, and 1244. And there is no evidence that the town, by any corporate act, has asserted any claim or attempted any occupation for more than half that time. The earlier votes of 1742 and 1766, cannot aid them, because it does not appear that any act was done m pursuance of them, or that they refer to the premises.

It is therefore very clear that there is no evidence in the case from which a jury would be authorized to presume a grant of any kind to the town. And if the public acquired an easement, of which there is no sufficient evidence, it would be no obstacle to the demandants’ recovery. The doctrine of dedication, if it be adopted in this State, does not extend to land like the demanded premises ; and if it did, would not bar this action. Dedication must originate in the voluntary donation of the owner of the land and be completed by the acceptance of the public.

And to support a dedication there must be such a user and so accompanied by corroborating circumstances, as clearly to demonstrate both. Now here does not appear to be a user sufficient to show either. And it is unaided by any acts on the part of the owner indicative of an intent to give the use of this land, or on the part of the public to accept it. The occasional, trifling and irregular use made of the land or flats, is altogether too imperfect an occupation to prove a dedication.

But if a dedication were established, it would be only of the use and not of the land itself; a mere servitude, which leaves in the owner of the fee a right to recover and hold the possession for all purposes not inconsistent with the public easement. The justice who presided at the trial, went far enough in permitting the tenants to prove that the premises were called the town landing and known by that name, and did right in excluding evidence that it was reputed to be the town’s property. Reputation is never evidence of title, nor is it ever admissible in support of private rights.

There are some cases in which, for peculiar reasons or from necessity, it is received. But they are few, and this is not one of them. See 1 Stark. Ev 58 to 64, and cases cited. . Tenants defaulted. See Hobbs v. Lowell, 19 Pick. 405.