HUNT v. COMMONWEALTH

Way. A way laid out by a town in 1793 over a bar, above mean high water and covered by the sea only during the high courses of tides, does not cease to exist because, partly by the artificial removal of gravel and partly by the action of the great storm of 1851, the surface of the land over which the way was laid out has been lowered, so that since that year it has been below high water mark.

HAMMOND, J.

It appears from the statement of agreed facts that at the time of the proceedings in 1793 to lay out a way, the level of the bar connecting the mainland with the island so called, over which the way was laid out, was above that of mean high water and was covered by the sea only during the high courses of tides. The proceedings therefore were not beyond the jurisdiction of the town, and the way appears to have been legally established. Storer v. Freeman, 6 Mass. 435, 439. Commonwealth v. Charlestown, 1 Pick. 180, 182. Commonwealth v. Roxbury, 9 Gray, 451, 483, 491, and the authorities cited in the reporter's note, p. 503, ad finem. See also Commonwealth v. Weiher, 3 Met. 445.

That way still exists in law, notwithstanding the fact that partly by the artificial removal of gravel and partly by the great storm of 1851, the surface of the land over which the way was laid out has been lowered so that since 1851 it has been below high water mark. See authorities cited in Gould on Waters, §§ 158, 159. See also Hopkins Academy v. Dickinson, 9 Cush. 544. Macdonald v. Morrill, 154 Mass. 270. The result is that the ruling that there was a way from the island to the mainland was correct. The conclusion to which we have come upon this part of the case makes it unnecessary to consider the other grounds upon which it was claimed by the plaintiff that there was a way.

Judgment on the verdict for the larger sum.