right to do the acts in question, or give permission to others to do them. Cook v. Stearns, 11 Mass. 533; Stevens v. Stevens, 11 Metc. 251; Clapp v. Boston, 133 Mass. 367.

line between their respective lots was estab-|quires that contracts respecting any title or lished by a straight line that "ran through interest in real estate shall be by deed or in the center of the brick wall separating the writing. It gives the licensee no estate or two houses, and by the north-easterly side of interest in the land. It excuses acts done a wall separating the two yards." The brick which would be trespass, or otherwise unlawgarden-wall which separated the two yards ful. It is revocable, not only at the will of was 54 feet in length and 8 inches thick, with the owner of the property on which it is to the exception of a 12-foot section, which was be exercised, but, by his death, by alienation 12 inches thick. Ten inches of the 12-foot or demise of the land by him, and by whatsection was on the plaintiffs' land, and 2 inch-ever would deprive the original owner of the es on that of the defendant; the remainder of the garden-wall being wholly on plaintiffs' land. In September, 1871, Robert Burr having deceased, his widow and son were his executors with power to mortgage, sell, or lease his real estate. By the will of Robert Burr, Mrs. Burr was the owner in fee of onethird of this parcel of real estate, having a life-estate in the other two-thirds, the fee in which was in his children. It was agreed orally by Robert Burr, the younger, and his mother, that James W. Merriam, who then owned the Blanchard estate, and who desired to extend his building, might top out the garden-wall and let his timbers into the same as thus built up, but that it must remain a part of the Burr estate. Burr supposed, although no agreement to this effect was shown. that Merriam would line the old wall four inches in width on his own land, and, although he might on inquiry have ascertained, did not in fact know that Merriam did not make the wall twelve inches in width for its length, and thus carry it up. It does not appear that Burr was in any way intentionally deceived by Merriam as to this matter, who underpinned and carried up the garden-wall to the requisite height, (a part of his extension being four stories in height,) and inserted his timbers therein, adding nothing to the width of the wall on his own land.

To the rights of licensees the defendants are entitled. Before there had been any alienation of the land by the Burrs the structure of their grantor was completed. It has been maintained during the successive changes of title, without any objection by the respective owners of the plaintiffs' estate to the additional erection on the wall or its use as a support to defendant's building, until very shortly before the bringing of this bill the plaintiffs notified the defendant to remove the timbers resting on their land. The plaintiffs, when they purchased, knew the situation of the wall, and the support of the defendant's timbers therein, and that the wall, with the exception of the two inches of the twelve-foot section, was on their land. Under these circumstances, before the defendants could be treated as trespassers, they were entitled to know that the permission received or assented to by former proprietors was withdrawn, and that they could no longer rely on any license. That which a licensee has already done does not become unlawful by the revocation of the license, if it be an act done on the premises of the licensor, as if he has erected a structure thereon; but he loses his right to continue to maintain it. The erection of the superstructure on the wall, in the case at bar, built by defendant's grantor, and the insertion of the timbers therein, were not unlawful when constructed, but the defendants have lost the right to continue them. they do not remove them, the plaintiffs have the right to do this, or have it done, even if serious injury thereby results to the defendants. The fact (if it be so) that the plaintiffs will suffer no substantial injury if the wall remains as it is, while the defendants will suffer a heavy loss if the wall is removed, and they are thus compelled to take out their timbers and erect a new wall on their own land to support their building, cannot give them a right to the plaintiffs' prop

The defendant Farrington claims title through several mesne conveyances from Merriam. The deed to him, the mortgage, and the lease to Johnson, who was also made defendant, exclude in their description all that portion of the wall alleged by plaintiffs to be his. nor has either of them repaired or interfered with the wall, except by allowing the timbers to remain where they were inserted therein. We cannot perceive that the defendants can have any higher rights to this matter than those of licensees. Even if the Burrs, by their authority as executors, or Mrs. Burr, by her ownership in fee of one-third of the estate, and her life-tenancy in the other two-thirds, could have created an interest in the real estate, they did nothing which could bind the Burr estate, or subject it to an incumbrance when it became the property of another. A paramount right to hold another's land sub-erty if they have no legal interest therein. ject to a particular purpose, to enter upon it In Stevens v. Stevens, ubi supra, the defendor maintain structures upon it without the ants' grantor erected a dam on the land of consent of the owner, is an important interest plaintiffs' grantor. The plaintiffs, subsein the land, which cannot pass without the quently acquiring title to the land, notified formalities required by the statute. Rev. the defendants to remove it, and, the notice St. c. 59, § 29; c. 74, § 1. A parol license to being disregarded, commenced its removal. do any act on the land of another does not While the plaintiffs were thus engaged, the trench upon the policy of the law, which re-defendants entered and restored so much of

The

the dam as had been removed, making some| who requested in February following the deadditions to it. A bill in equity was then fendants to remove their building from the brought to have the dam abated as a nui- wall, and who brought their bill in March. sance. It was held that while, for several The defendants have not been prejudiced by years, the defendants had enjoyed the privi- any delay of the plaintiffs' predecessors in leges allowed by their license, they were not bringing the bill, and the plaintiffs themresponsible for any acts done by them in pur- selves have acted with promptitude. suance of said license and permission, be- discovery (as it may be called, perhaps) of fore the same was countermanded by the the situation of the wall was made as such plaintiffs; that they were not, therefore, lia- discoveries have often been made,-when the ble to pay any expenses for the removal of proposed erection of new buildings has renthe old dam, although the same might be re-dered it necessary carefully to investigate moved by the plaintiffs. So far as they had the boundary lines of conterminous estates. built a new dam, or repaired and made addi- Owners of property are not bound at their tion to the old one, after the license was peril to prevent every illegal encroachment countermanded, the defendants were held on their estate. Even if by reason of misliable, and the plaintiffs were deemed enti- take on their own part buildings are erected tled to have the same abated at the expense on their premises by their own consent, they of defendants. It is said in the case at bar, may be relieved from the incumbrances thus by the defendant Farrington, that it is created where they have not continued for enough for him to establish the fact that the 20 years. Proctor v. Machine Co., 137 Mass. addition to the wall was lawfully erected, 159. The principle upon which it has been and the timbers of his building lawfully in- held that a party plaintiff applying for equiserted, and that this will be a sufficient an- table relief will be refused when he has unswer to plaintiffs' bill as framed. The de- reasonably and without proper objection fendant, by his answer, denying the allega- permitted another to erect any structure on tions of plaintiffs' bill, practically asserts his his own land in violation of some contract, right to have the wall maintained as it now condition, or agreement which the plaintiff is exists, and to keep his timbers inserted there- entitled to enforce, has no application where The plaintiffs are not compelled, in the the structure complained of is on plaintiff's assertion of their rights, to actually remove own land, and where the act of the defendor attempt to remove the wall and timbers, ant in erecting or maintaining it is an invaand thus encounter the danger of a collision sion of the owner's rights therein. Whitney with the defendant. When their claim is v. Railroad Co., 11 Gray, 359. The defenddenied, it is a much safer and more pacific ants, in their answer, offer to pay the plainproceeding to have the validity ascertained tiffs their damages caused by the retention by a court than to undertake to assert it in of the wall on its present site, and request any forcible way. Applying the principles that the bill may be dismissed with costs, of Stevens v. Stevens, ubi supra, the plain- unless the plaintiffs grant them an easement tiffs are entitled to a decree authorizing them in the wall or the fee to one-half the soil upto remove the wall, so far as it stands upon on which it stands, upon payment of an their land, and also the timbers, so far as equitable sum as compensation therefor. We they project over it,-but at their own ex- have no right to refuse the plaintiffs the repense, as these structures have become un- lief to which they are entitled if they decline lawful only since the license under which to sell their land, or to grant an easement they were erected has been countermanded, therein. therein. The embarrassment in which the and to an injunction forbidding the defend- defendants find themselves simply results ants from interfering with them in so doing, from their acts and those of their predecesunless within a brief time, to be named in sors in failing to observe the well-known the decree, the defendants shall themselves rules of law as to the creation of easements remove the wall and timbers. in the real estate of others, and in seeking to establish rights therein without any proper title. Decree for plaintiffs.

in.

It is claimed that the plaintiffs are bound by the acquiescence and laches of their predecessors in title so that they cannot maintain this bill. Easements by prescription in land are only to be acquired by ad verse user thereof for 20 years. Even if the user by the successive owners could be tacked one to the other, this time has not elapsed. Leonard v. Leonard, 7 Allen, 277. It does not even appear to have been known to any one of these owners before Mrs. Collamore, the plaintiffs' immediate grantor, that the whole wall was on plaintiffs' land, with the exception of two inches of the twelve-foot section; nor does it appear that she then knew of the defendants' claim to a parol license. This was in November, 1887, and in December, 1887, she conveyed to the plaintiffs, as her trustees,

(149 Mass. 582) HENRY . CITY OF NEWBURYPORT. (Supreme Judicial Court of Massachusetts. Essex. Sept. 5, 1889.)

RIPARIAN RIGHTS-TIDE-WATERS.

149) gave to the proprietor of uplands property in the shore between high and low water mark where the sea did not ebb more than a certain distance, subject to the public right of fishing, passage, etc., power to hinder the passage of vessels "to other and provided that such proprietor should not have men's houses or lands." Held, that the owner of uplands not accessible by navigation from the sea had no right to have the tide ebb and flow to her premises over the flats owned by others, for the purpose of drainage, so as to entitle her to dam

1. Ordinance 1647 (ancient Chart. Mass. 148.

ages for the filling up of such flats by which such | nuisance, the remedy therefor is by indictebb and flow was prevented.

3. In such case, the fact that plaintiff was actually enjoying the ebb and flow of tide-water for drainage purposes, when the filling took place, was immaterial, as she had no right to have it con

tinued.

Exceptions from superior court, Essex county; CHARLES P. THOMPSON, Judge.

Tort by Anastasia Henry against the city of Newburyport for cutting off her alleged rights of drainage in certain premises on the sea-shore. Verdict for plaintiff, and defendant excepts.

H. I. Bartlett, for plaintiff. F. W. Hale and N. N. Jones, for defendant.

2. Nor was such right given by Pub. St. Mass. ment, unless the plaintiff shall show that she c. 19, which vested the general control of all har- has sustained some special and peculiar dambors, tide-waters, and flats, with certain excep- age. She does not show this, unless she has tions, in three harbor commissioners, and provided shown that she has a right as against the that all filling done or erection made without their license or that of the general court should be a pub-public or the owner in fee of the landing lic nuisance, and indictable as such, as that act was place to have the water ebb and flow over it for a public purpose, and did not affect private and the flats in the rear of her premises, rights. which are a part of it, in order that she may continue to use it (the tide-water) as she has heretofore done. Whether she has acquired, or could acquire, by prescription, a right to an ebb and flow of the water for this purpose over the lands of others, is a question not be fore us, as it was not upon any such asserted right that she was allowed to recover; nor was any question submitted to the jury in relation thereto; nor does the instruction of the court treat the inquiry whether the defendant actually owned (as it claimed to do) the fee of the landing place as of any importance. The learned judge who presided held that the plaintiff "was entitled to have the DEVENS, J. Assuming, in the first in- tide ebb and flow up to her premises, as it stance, but without so deciding, that the de- naturally would, and what advantage or benfendant city is responsible for the filling up efit might accrue especially to her estate by of the landing place complained of, and that reason of it she had a right to," etc. "She the work done for this purpose is to be treated had the right to have the water flow in under as the act of its servants, we proceed to in- this building if she saw fit to. It would be quire whether any injury has been done the one of her rights. She had the right to have plaintiff for which she is entitled to a remedy the tide flow in and flow out, and they have by this action. Her buildings were appar- no cause of complaint for her doing that." ently erected partly on a ledge and partly on The question is thus presented whether it is flats, forming a sort of wharf, faced with the right of an owner of land situated in the stone towards the water, and formed of solid vicinity of tide-water to have the water flow earth. The rear and one side, which were over the premises of others owning flats or faced with the stone wall, were bounded by the shore between high and low water mark the ancient landing, and the tide was accus- to her own. The ordinance of 1647, which tomed to flow across it and the flats connect- gave to the proprietor of the upland, property ed with it, up to and about the plaintiff's in the shore between high and low water premises, and to some extent flowed into and mark to low water mark, where the sea did out of her cellar until the filling complained not ebb more than 100 rods, subject to the of. There was no evidence that the filling public right of fishing, fowling, passage over was done in any negligent or improper man- the same, etc., had but a single reservation ner. She had no title to any part of the which would prevent its inclosure, "that landing, the fee of which was claimed by the such proprietor shall not by this liberty have defendant, nor to any flats between her prem-power to stop or hinder the passage of boats ises and low-water mark. The plaintiff had been accustomed to drain the surface water and the refuse of her premises into tide-water or to the landing place, according as the tide was in or out, and drains from the cellar led out on the flats. She had also a row of privies projecting over the edge of her premises, so that the droppings fell onto the landing place or into the water. There was no evidence that the defendant knew that the premises were thus drained, except that the superintendent of streets, before the land in the rear of the premises was filled, prevented the plaintiff from digging a cess-pool there, into which drains were to empty. There was no access to the plaintiff's premises by water, and thus no interference therewith by the filling of the landing, but she claims a right to have the tide flow over it, and up to her premises, so that she may thus dispose of her sewage. Even if the filling by the defendant was an unauthorized act, and thus a

or other vessels in or through any sea, creeks, or coves, to other men's houses or lands." Ancient Chart. 148, 149. This secured to such proprietor not merely an easement, but a property in the land in fee, with full power to reclaim the flats by building wharves or inclosing them so as to exclude navigation, provided he did not wholly cut off his neighbors' access to their houses or lands. He could erect wharves or other structures thereon, could fill up the same, and plant stakes thereon, even to the obstruction of the public right of fishing. Obviously every erection on such flats would interfere to some extent with the pre-existing right of navigation, but it has been deemed a reasonable construction of the proviso in the ordinance, in view of its purpose to encourage the building of wharves, etc., to hold that so long as no one other proprietor was deprived of access to the sex thereby they might lawfully be erected. Com. v. City of Roxbury, 9 Gray, 451, 519, author

ities cited, and note. The legislature could, made or done within tide-water, without aufor the protection of the rights of the public thority from the general court or from said in navigation, or for the security of the coast, board, or in a manner not sanctioned by said regulate the use of the territory between board, where a license is required as hereinhigh and low water mark, and could, with- before provided, shall be considered a public out compensation, prohibit taking gravel nuisance, and liable to indictment as such, from a beach, or building upon flats, when--or the same may be restrained by injuncever in its opinion such prohibition was nec- tion at the suit of the attorney general or disessary. Com. v. Tewksbury, 11 Metc. 55; trict attorneys, within their respective disCom. v. Alger, 7 Cush. 53, 82, 104; Attorney tricts, upon the direction of the harbor comGeneral v. Railroad Co., 118 Mass. 345-349. missioners. While this statute materially While the object of the ordinance has often diminishes the right of owners of flats in rebeen declared to be the erection of wharves gard to the erection of structures upon or the and similar structures and the reclaiming of filling up or inclosure thereof, it confers no the flats, we have found no case in which it additional rights upon adjacent or contermihas been held that the owner of lands not nous proprietors. If the defendant has, unaccessible by navigation from the sea had der the statute, created a public nuisance, any cause of complaint because of having there is no liability therefor to the plaintiff. been deprived, by the erection of wharves or The infringement of the public right is to be other solid structures, or by the filling up of redressed by indictment or other public proflats, of the ebb and flow of the tide to his ceeding as for an injunction. While, if an premises, or any right thereby to drain over individual suffers a special and particular the lands of others. Flats and the beach may damage by reason of a nuisance committed be, and often are, sold separately from the by another, he may maintain an action thereupland, and the only provision in the ordi- for, it can only be so when some right of his nance which limits the right of the owner own has been invaded. The statute did not thereof in favor of other proprietors is that give the plaintiff any right to the ebb and in reference to access by the water to their flow of the tide-water over defendant's land lands, already quoted. In Davidson v. Rail- to her own. It was passed for a public purroad Co., 3 Cush. 91-105, the petitioners were pose,-the preservation and security of the the owners of tide-mills, across whose flats coasts and harbors, and for the benefit of the respondents had been authorized to con- navigation; but it left the rights of adjacent struct a railroad. It was contended that and conterminous proprietors inter sese as they had a right to have these flats kept open, they before existed. If the act done by the and to the free and unobstructed flow and re- defendant was wrongful, it was a wrong of flow of water over them, so that, when de- which only the public could complain. Nor prived thereof by the construction of the is the fact that the plaintiff was actually enrailroad, they would be entitled to damages joying the ebb and flow of the tide, for the therefor. It was held that the owners of purposes of her drainage, when the filling tide-mills had no right, either against the took place, important, unless she had a right public or as against conterminous or adjacent to have it continued. She has sustained no proprietors, to have their flats kept open for private or individual wrong. In Breed v. the use of their mills, but only to the flow of Lynn, 126 Mass. 367, the owners of a wharf water in the channel below low-water mark, and dock, who had dredged out a channel and where the tide does not ebb. "The ad- from their dock to some extent over flats bejoining proprietor," it is there said, "to the longing to others, and beyond the limits of extent of one hundred rods, may build solid their own ownership, which channel was instructures, and thus obstruct the flow and re-jured and filled up by the discharge of sewflow of the tide without objection, provided he does not wholly cut off his neighbor's access to his house or land; and if the millowner or conterminous proprietor suffers in consequence, it is damnum absque injuria." We have discussed the case at bar thus far without reference to the statute of 1866, c. 149, which, with the amendment thereto, is embodied in Pub. St. c. 19. By this statute "the general care and supervision of all the harbors and tide-waters, and of all the flats within the commonwealth," with certain exceptions, is intrusted to three harbor commissioners. The erection of all structures, and the filling of all flats below high-water mark, is to be done only by license from them, under their supervision, and subject to such terms as they may prescribe. Pub. St. c. 19, § 17, provides: "Every erection and work

age from a common sewer into the dock, were entitled to recover so far as the injury was within the limits of their ownership, but not beyond. The fact that they had prepared this channel on the lands of others gave them no special right that it should be kept open and clear, although its filling seriously interfered with access to their wharf. The instruction that the plaintiff had a right to the ebb and flow of the tide over the landing place and flats to and over her premises was, in the opinion of a majority of the court, erroneous. Unless she had such a right, the loss or inconvenience she sustained did not proceed from any injury inflicted by the defendant of which the plaintiff can complain. The view we have taken of the question renders it unnecessary to consider the other exceptions presented. Exceptions sustained.

120 Ind. 30)

CONTINENTAL INS. Co. v. MUNNS. (Supreme Court of Indiana. Sept. 17, 1889.)

INSURANCE-ASSIGNMENT OF POLICY.

On a sale of insured property and an assignment of the policy to the purchaser, duly assented to by the company, a new contract of insurance arises between the company and the assignee, which is not affected by a default of the assignor before the assignment amounting to a forfeiture of the policy.

Appeal from circuit court, Montgomery county; E. C. SNYDER, Judge.

Action by William Munns against the Continental Insurance Company upon a policy of insurance. Judgment was rendered for plaintiff, and defendant appeals.

Crane & Anderson, for appellant. H. H. Dochterman, for appellee.

consumed by fire, entailing a loss amounting to $1,700. After the destruction of the property the company learned of the mortgage executed by Bittle, when it refused payment of the loss, on the ground that placing the incumbrance above mentioned on the property was a violation of the condition of the policy which rendered it null and void.

Whether the judgment shall be affirmed or reversed depends upon whether or not the company can avail itself of the default of Bittle in an action on the policy by the plaintiff. It must be assumed as a matter of course that the latter, when he purchased the farm and took an assignment of the insurance policy, had knowledge of the mortgage on the land and of the condition relating to incumbrances in the policy. Imputing to him knowledge of these facts, the question MITCHELL, J. This is an appeal from a remains, did he take the property strictly as judgment rendered by the Montgomery cir- assignee, subject to all the infirmities, decuit court, in favor of William Munns against fenses, or any forfeiture which the laches or the Continental Insurance Company. The default of the assignor may have imposed upquestions for decision arise upon the follow-on it, or did the assignment, with the coning facts: On January 17, 1883, the insur-sent of the company, constitute the policy in ance company above named delivered to John effect a new and original contract between Bittle a policy of insurance by which it in- the latter and the assignee, unaffected by any sured his dwelling-house and its contents, previous forfeiture that may have occurred? consisting of household furniture, etc., his If the transfer of the policy simply substibarn, sheds, and granary and their contents, tuted the assignee to the rights which the asseverally, consisting of farming utensils, signor then had in the contract, it may well wagons, carriages, grain, horses, etc., for a be said that if the latter had no rights by period of five years, for a gross premium of reason of the forfeiture, which occurred pri$37. At the time the policy was issued, Bit- or to the assignment, the next transfer contle owned the farm upon which the several ferred no new rights on the assignee. If, on buildings insured were situate, and the per- the other hand, the assignment of the policy, sonal property covered by the policy was in with the assent of the company, constitutes the buildings therein described, the insurance a new, original, and independent contract being apportioned in specified sums upon the between the assignee and the insurer, then several buildings and the property therein it is quite clear that no act of forfeiture situate. The policy contained a stipulation committed by the assignor before the sale, of the following purport: "If the applicant assignment, and consent is available against shall mortgage or otherwise incumber the the policy in the hands of the purchaser property hereby insured, without notice to newly insured. A contract of insurance is and consent of the company indorsed here- purely a personal engagement, by which on, this policy shall become null and void." the insurer, for a consideration paid, agrees On the 27th day of June, 1885, Bittle, with- to indemnify the person insured against out notice to the company, and without its loss, arising from damage to his propknowledge or consent, mortgaged the farm erty.. The contract appertains to the perupon which the house, barn, and other build- son with whom whom it is made, and does ings insured were situate, to the Provident not run with the property insured. NorLife & Trust Company of Philadelphia, to dyke & Marmon Co. v. Gery, 112 Ind. 535, secure a loan of $5,000. In the month of 13 N. E. Rep. 683; Cummings v. InsurSeptember following, he sold and conveyed ance Co., 55 N. H. 457. It is abundantly the land, with the buildings thereon, to Will- settled that upon a sale and transfer of propiam Munns for the consideration of $12,000, erty covered by a policy of insurance, and an and in a few days thereafter, without any assignment of the policy to the purchaser, new consideration, transferred the policy of duly assented to by the company, a new and insurance to the purchaser. The latter soon original contract of insurance arises between afterwards presented the policy to the com- the insurance company and the assignee, pany's general superintendent, who indorsed which the latter may enforce without regard its consent thereon that the policy might be to what may have occurred prior to the asassigned to the purchaser, subject to all the signment. The policy, it is said in such a terms and conditions mentioned or referred case, expires with the transfer of the estate, to therein. The company had no notice or so far as it relates to the original holder; but knowledge of the existence of the mortgage the assignment and assent of the company at the time it gave its consent to the transfer of the policy. On July 27, 1886, the barn, shed, and granary and their contents were

thereto constitutes an independent contract with the purchaser and assignee, the same in effect as if the policy had been reissued to