NORTH SHORE BREEZE 
29 
of the statute, and has held it gener- 
ally; although for the most part they 
refer to nice questions in regard to 
boundaries. The statute did not pur- 
port to take any property by right of 
eminent domain, and did expressly 
provide that it should not impair the 
legal rights of any person. There- 
fore the statute gave the corporation 
no valid title as against the legal title 
of any private owner. If there were 
any public or common rights in the 
tract included in the grant they passed 
to the corporation. The defendant’s 
counsel argues that the legislature 
‘intended to gather up the fragmen- 
tary and unascertainable interests 
_held by a great multitude of persons 
and vest them immediately in a cor- 
poration for the purpose of securing 
to those who appeared to be the 
owners, and those who would become 
the future owners, the beneficial use 
of West Beach for the purposes to 
which it had long been devoted.” 
Very likely he is right in this; but if 
he is the law makers were careful not 
to attempt to interfere wlth private 
property. Doubtless they recognized 
their constitutional limitations. As 
against individual owners nothing 
more than a possessory title was 
created, and as against them no rights 
* have been acquired by the corporation 
otherwise than by disseizin. If we 
assume in favor of the defendant that 
by reason of the publicity of the dif- 
ferent proceedings before the legisla- 
ture and the town, and the notoriety 
_ of its acts in regard to the beach, it 
- has now acquired title by disseizin to 
all the property described in the statute 
as against all private owners who have 
made no claim since the corporation 
took possession, we could put their 
relations with the plaintiffs and the 
plaintiffs’ predecessor in title, and ask 
whether they have acquired any rights 
against them. 
After negotiations between the par- 
ties a vote of the corporation an agree- 
ment finder seal was entered into be- 
tween the defendant and Jonathan 
Preston, who then owned the estate of 
the present plaintiffs, whereby the de- 
fendant was to release to him ‘all in- 
terest they may have to that portion 
of the beach which fronts upon the 
land situated to the westward of. the 
line running” etc. . . “reserving only 
such privileges as may have been ac- 
quired by usage or otherwise to col- 
lect sea-weed and drift wood, and to 
pass and repass over said beach, which 
privileges are still to remain to be en- 
joyed by them in common with the 
owners of said land, said corporation 
further agreeing that the sixth and 
seventh sections of their act of incor- 
poration sha]] not apply to said por- 
tion of the beach.” Then followed a 
stipulation that no sand should be re-" 
moved from this portion of the beach 
under a prescribed penalty. 
Sections six and seven referred to, 
relate to the removal of sand, gravel, 
drift stuffand sea-weed. This instru- 
ment was executed in 1856. 
The defendant contends that the 
agreement was ultra vires of the cor- 
poration and void because by the eighth 
section of the act the beach is forever 
to remain for the use of the present 
and future residents within the limits 
designated, and the transfer of his 
right by a member is forbidden. We 
have no doubt that a sale of the beach 
as a whole was forbidden. But here 
was a small part of it claimed by the 
plaintiffs’ predecessor, and there was 
much reason to believe that he had a 
good title to high water mark. He 
was willing to give the defendant val- 
uable rights in the disputed portion, 
and they entered into the agreement 
in order to settle for all time rights 
that otherwise would be doubtful. He 
and his successors treated the agree- 
ment as binding, and it seems that for 
a long time the defendant did also. In 
this trial the plaintiffs consented that 
the third issue, as to the right of the 
defendant and its members to enter 
upon and pass and repass over the land 
to and from the sea, and the fourth 
issue, as to the right of the defendant - 
and its members to gather drift stuff 
and sea-weed on the land-and to carry 
it away, should be answered favorably 
to the defendant. We are not pre- 
pared to say that the corporation 
could not bind itself in this way for 
the settlement of doubtful questions 
affecting its rights On the contrary 
we think that the defendant was 
bound by the agreement at least by 
way of estoppel, since it was acted up- 
on by both parties. 
The agreement becomes very im- 
portant as bearing upon the nature of 
the subsequent occupation of the par- 
ties, and upon the question whether 
the corporation has acquired any right 
by disseizin or prescription against 
the plaintiffs. So faras the defendant 
has exercised the rights secured to it 
by the writing, its occupation as_be- 
tween those parties, must be deemed 
permissive and not adverse to the 
plaintiffs. Beyond the exercising of 
those rights nothing is shown which 
approaches proof that the corporation 
has acquired any title or easement 
against the plaintiffs by a continuous 
adverse use and occupation for twenty 
years or more. If as against other 
tenants in common who have made no 
claim to any part of the property, it 
has acquired by its general corpora- 
tion a supervision of the beach and 
title to their shares by disseizen, its 
occupation has been all the time in 
subordination to the rights of the . 
plaintiffs under this right. The rights 
of others which it may have acquired 
are not their full former rights, be- 
cause the defendant was subject to 
those written provisions in favor of 
the plaintiffs’ predecessors in title. Or 
to put the property in another form 
so faras the defendant has acquired 
prescriptive rights from others they 
have all the time been limited by this 
agreement while they were going into 
the detendant’s ownership, and as 
soon as they were made by the pre- 
scriptive title good as against others, 
they were controlled, as between those 
parties, by the agreement which was 
made for their regulation. 
The case stands with the conceded 
title in the plaintiffs’ as tenants in 
common, and with no title to the de- 
fendant as against the plaintiffs as to 
any of the matters in dispute. It 
therefore becomes unnecessary to de- 
cide whether the judge was right in 
his ruling that the plaintiffs have a, 
perfect title by deed to high water or 
whether the auditor was right in find- 
ing that the description of their land 
in the deed stopped at the bank, a 
considerable distance away from high 
water mark. We have little doubt 
that there was evidence before the au- 
ditor which would have warranted a 
finding in favor of the plaintiffs on 
this point. Whether the judge could 
rule on this point as matter of law 
against the finding of the auditor is a 
different question. 
There is no ground for the de- 
fendant’s contention that the judge 
could not direct the jury to answer 
the tenth issue “‘yes as tenant in com- 
mon.” The addition of the words 
“as tenants in common’ showed 
briefly the nature and extent of their 
ownership in fee. It was not neces- 
sary in answering the issue as it was 
framed, it was desirable and not ob- 
jectionable. If the judge had chosen 
he might have then amended the 
issue, So as to require such an answer. 
An error in the trial of any of the 
issue is immaterial, provided the 
answers to the issues rightly tried un- 
able the court to dispose of the case. 
It therefore becomes unnecessary to 
consider the exceptions and the exclu- 
sion of testimony. None of this tes- 
timony had any bearing on the plain- 
tiffs’ conceded title as tenant in 
common, nor on the question whether 
the defendant has acquired a title by 
disseizin or prescription against the 
plaintiffs. 
It follows that the judge was right 
in ordering a decree for the plaintiffs, 
and the exception to that order is 
overruled. 
Upon reservation of the case on all 
the questions before the court, the 
order is : 
Decree for the plaintiff with costs. 
