Neeld v. Dixon

Bond, C. J., delivered the opinion of the 'Court. The question is whether a grant of part of a tract of land lying adjacent to the shore of Chesapeake Bay, with the lines on all sides exactly defined, and “with the privilege of the bay shore contained within said lines,” carries any title to fast land lying at present between the shore and the nearest line. A subsequent grantee of the whole remaining tract, or that which had not been included in the former grant, claims title to this fast land, and has sued the present holder under that former grant, in ejectment. At the conclusion of the testimony on the trial, the court instructed the jury that the defendant had at the time of his purchase, and still has, either a fee simple title to the land in dispute, or an easement therein, and that in either case the plaintiff could not recover in his suit, and the verdict should be for the defendant.

From the judgment entered as a result of this instruction the plaintiff has appealed. The defendant’s lot within the lines given is one acre and twelve perches in ⁴⁷¹ size, and about one third of an acre of land now lies between that lot and the shore. It was in 1869 that the lot was carved out of the larger tract. The reference in the deed to bay shore contained within the lines, amounts on its. face to a, declaration or admission of record by the grantor that there was bay shore within those lines, and we are required to accept that as the fact, unless it is made to appear impossible.

But it is possible, for all that appears in the evidence, that the eastern line of the lot and the shore line were contiguous in 3869, for we know that the shores of Chesapeake Bay, being of soft earth or sand, are constantly shifting, adding to the shore line in some places