mine is whether the defendant's return can | in this cause, that there was a final judgment be amended after a final judgment or proceeding, in the court below on a motion to quash the return, and a final decree of the Supreme Court on writ of error reversing the judgment of the lower court and quashing the return. It must be conceded that the proposed amendment cannot be allowed unless authorized by the constitutional or statutory provisions of this state respecting amendments, which provisions are as follows: "In all civil causes, when pending, the Superior Court shall have the power, before judgment, of directing, upon such terms as it shall deem reasonable, amendments, impleadings and legal proceedings, so that by error in any of them the determination of causes, according to their real merits, shall not be hindered." Section 24 of article 4 of the Constitution. or proceeding by the Superior Court on the motion to quash the return, and also that a final decree was entered by the Supreme Court reversing the judgment below, quashing the return, and remanding the case to the Superior Court for one purpose only, viz., to order the issuance of the peremptory writ in accordance with the opinion and direction of the Supreme Court. [2] The Superior Court has no duty to perform, and no power in the premises, other than to carry out the mandate of the Supreme Court, which is, to order the issuance of the peremptory writ as directed. This could not be done without substituting the execu、 trix of the relator in place of the relator who had died, and the substitution was accordingly made for that purpose. We are clearly of the opinion that this court cannot grant the motion made by the defendant for leave to amend his return, or make a new defense, after final judgment or proceed the court above, on the merits of the case. "In any civil cause pending before the Superior Court, the said court shall have power, at any time before judgment, to allowing, in the court below, and final decree in amendments, either in form or substance, of any process, pleading or proceeding, in such action, on such terms as shall be just and reasonable." Section 11 of chapter 112 of the Revised Code. It is manifest from these provisions that this court has no power or authority to allow the amendment asked for if a judgment, within the meaning of the Constitution and statute, had been rendered in the case, because both the Constitution and the statute, in granting to the court power to permit amendments, limit the right to a time anterior to the rendition of judgment. And it may be also observed that in order that an amendment may be made to a pleading or proceeding there must be something by which to amend. The effect of the decree of the Supreme Court was to quash the defendant's return, and consequently there was nothing left which might be amended. Practically, therefore, the defendant seeks by his present application to file a new return after there has been a final decision and judgment upon the merits of the case. There can be no authority for granting such an application, and it must be denied. Counsel for defendant in making their ap plication for leave to file an amended answer or return, evidently relied upon the case of State v. Hiram Grand Lodge, 2 Pennewill, 21, 43 Atl. 520, and but for that case we think the application would perhaps not have been made. Although no judgment was formally entered by the Superior Court in refusing to quash the return, it was decided by the Supreme Court, on a motion to dismiss the writ of error on that ground, that the decision of the lower court constituted a final judgment, or proceeding, within the meaning of In the Hiram Lodge Case, which was rethe Constitution, and one which might be re-cently decided in this court, a motion had viewed by writ of error. The Supreme Court, in reversing the court lator is therefore entitled to the peremptory writ of mandamus of the court to which this case is remanded, to be issued by that court under such reasonable regulations as to time and place as it may direct, commanding the defendant to suffer and permit the relator, or his duly authorized attorney, to inspect and make copies of such of the books, papers and accounts and writings of the defendant mentioned in his petition, and only of such of them that, under the direction of the said court, are found essential and sufficient to furnish the information whereby the relator may determine the value of his stock." It appears, therefore, from the proceedings been made to quash the return on the ground of insufficiency, and the court in concluding their opinion said: Inas "We adjudge the return insufficient, and grant the motion to quash the same. much, however, as leave has been asked by the respondent to amend his return, in case it should be considered by the court insufficient, and as such seems to be now the common practice, leave is granted the respondent to amend his return." This case cannot be regarded as an authority for the application made in the present case. It is clearly distinguishable because the leave granted was within the authority of the Constitution and statute above quoted. The fact was, and it sufficiently appears from the opinion, that the application to amend was made not only before judgment was entered, but also before the decision was [lines thus extended will be the boundaries of rendered on the motion to quash. In that case the motion to quash the return was argued with the full understanding that leave should be granted the defendant to amend if the court should be of the opinion that the return was insufficient. The court, in using the language, "and as such seems to be now the common practice," meant only that it had become the common practice in other jurisdictions to allow a return in mandamus to be amended before judgment upon just and reasonable terms, if in the opinion of the court the determination of the cause according to its real merits, would be promoted thereby. Such is the practice now usually observed, and it is not only supported by authority, but is entirely consistent with reason and justice. [3] If there is any reason why the executrix of Horace T. Brumley should not have been substituted as relator, that did not equally apply to Horace T. Brumley, we think it should have been urged at the time the motion to substitute was argued. The recollection of one of the judges now sitting, who sat at that time, is that the objection was then made, but not emphasized or discussed at any length. The right to substitute the executrix in place of the original relator was strongly resisted on other grounds, and but little stress was placed upon the point that there might be reasons personal to the executrix why she should not be made a party. each lot; but if the river line is curved reguof the lots diverge from or interfere with each larly or irregularly, so that the extended lines other, the triangular parcels thrown out or included thereby must be equally divided between the adjoining owners. [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. § 197; Dec. Dig. § 36.*] 2. NAVIGABLE WATERS (§ 36*) — FLATS — BOUNDARIES. Since the base line of a particular lot should run along the upland and not over the flats, it would be improper to draw the line from a point not a part of the upland, but a small rocky point usually surrounded by water, and located several hundred feet from the upland. [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. § 197; Dec. Dig. § 36.*] Report from Supreme Judicial Court, York County. Action by the Portsmouth Harbor, Land & Hotel Company against Lindsay Swift. On report. Judgment for defendant. Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, BIRD, and HALEY, JJ. William Frye White and John Lowell, for plaintiff. Aaron B. Cole, for defendant. HALEY, J. [1] This is an action of trespass quare clausum to recover damages for driving of stakes and mooring a boat upon flats appurtenant to Gerrish Island in the mouth of the Piscataqua river, in Kittery. The case is before the court upon an agreed statement of facts. Upon an examination of the proposed amended return we find that the only new question raised involves the point that objection might be made to the executrix hav-plained of, and justifies by a claim of owning the right to examine the books and pa-ership to the flats upon which these acts pers which the original relator asked to be permitted to examine, and which request the court granted. Such objections, as we have said, might very properly have been made at the time when the executrix was made party relator, and in fact was then made, and we are clearly of the opinion it cannot be made now. The application of the defendant for leave to amend his return is, for the reasons above given, refused. (109 Me. 17) The defendant admits doing the acts com The were done, and claims that, by the rule laid down in Emerson v. Taylor, 9 Greenl. 42, 23 Am. Dec. 531, in construing the Colonial ordinance of 1641, applied to this case, he was the owner of that part of the flats. plaintiff admits that, by the rule of Emerson v. Taylor, the acts complained of were committed upon the flats owned by the defendant, and asks the court to apply a different rule to this case than that laid down in the case of Emerson v. Taylor. PORTSMOUTH HARBOR, LAND & HOTEL ant's upland, the United States government CO. v. SWIFT. (Supreme Judicial Court of Maine. 1912.) owns a tract of upland, and southerly and easterly of defendant's upland is a tract Feb. 24, owned by the plaintiff; a part being upland and a part flats. The plaintiff's upland ex 1. NAVIGABLE WATERS (§ 36*) - FLATS-tends in the rear of the defendant's upland BOUNDARIES. Ownership of flats along a navigable river, as between adjoining upland owners, is properly determined by drawing a base line between the two corners of each lot, where they strike the bank, and extending from these corners parallel lines perpendicular to the base line, and if the line of the river is straight the across the island. The flats on the river begin above the upland of the United States and extend by the upland of the plaintiff and defendant to Pocahontas Point. The situation of the land, river, flats, and ocean are shown on the plan, marked "A". terference in running such lines, and the loss occasioned by it must be equally borne or gain enjoyed equally by the contiguous own The rule laid down in Emerson v. Taylor | lines. If the flats lie in a curve, or regular is: "Draw a base line from the two corners or irregular curvature, there will be an inof each lot, where they strike the shore, and from these two corners extend parallel lines to low-water mark at right angles with the base line. If the lines of the shore beers." straight, as in the case before us, there will The plaintiff asks us to rule that the debe no interference in running the parallel fendant's side line shall be extended in a straight line to low-water mark, or, in other words, straight overboard, and that all flats within the extended lines shall be the defendant's flats; and if that is the rule the defendant is guilty of trespass, because the acts complained of were done below the down-river side line of the defendant's extended line straight overboard. The plaintiff's upland is shown upon the plan by the letters B, C, D, E, F, G, H, I, J, K, L, M, and N, and the defendant's by the letters A, B, C, and D. The lines AA and BB are the extended side lines of defendant's lot, as the plaintiff claims they should be, run straight overboard. The acts of the defendant complained of were done on the land in the angle between the lines "B X," and "B Y," as shown on the plan, which is made by the rule of Emerson v. Taylor. The agreed statement does not show the source of title of either the plaintiff or the defendant, or when they or their predecessors acquired title; but from the agreed statement that the line upon the flats between them is to be run according to the rule of Emerson v. Taylor, if that rule applies, we take it for granted that, when there was a division of the upland adjoining the flats, the division included in one lot both the plaintiff's and the defendant's upland on the river side. "The flats of a lot established by the original and contemporaneous division of the upland cannot be altered or changed by each subdivision." Call v. Carroll, 40 Me. 31. The object of the law is to give to each owner of land bordering upon tidewater his proportional part of the shore or flats. If the side lines of the defendant's lot are run straight overboard, and the plaintiff's side line runs straight overboard, there will be a large triangular piece of flats undivided, which equity would say should be divided between the owners of the upland on the river side. The rule in Emerson v. Taylor would so divide it. The plaintiff objects to that method, and by the running of his rear line, instead of his side line, straight overboard accomplishes the object he desires, adds great value to his lot by giving him all of that triangular piece, and the lines of each owner of flats upon that side of the island, whose lands were acquired under the rule of Emerson v. Taylor, which give them their rights in the shore, must necessarily be changed. If the plaintiff's contention is adopted, it will give the plaintiff the triangular piece which should be divided between the owners on that side of the island. It will change all lines over the flats on the southerly side of Gerrish Island. It will take from all owners on that side title to flats now owned by them under the rule of Emerson v. Taylor. If this contention of the plaintiff be accepted as the rule on Gerrish Island, it should be the rule all over the state, and many titles along the coast will be affected and lines changed. Valuable wharves in tidewater, by the change of the rule, will change owners against the wishes of the present owners. [2] The plaintiff asks, if the rule of Emerson v. Taylor is the true rule in this case, that a line on his river side be run from where his upland adjoins the defendant's to Pocahontas Point, and that such line be called his base line. By that method, the defendant's base line would run a long distance over the flats that are sought to be divided by running the base line. The base line should run along the upland, not over the flats, because Pocahontas Point is not a part of the upland; it is a small rocky point, where the river flows into the ocean, several hundred feet from the upland, surrounded by water nearly all the time. The argument advanced, that because the plaintiff owns no flats in front of its lot, the ocean side being rocky and deep water, it should have more flats upon the river side, does not seem a valid reason for taking from the owners of the river side their flats and wanted land with flats, it should have bought giving them to the plaintiff. If the plaintiff lor was not hastily adopted. For 80 years land with flats. The rule of Emerson v. Tayit has been the rule in this state. Many cases involving the title to flats and shore land have been before the court during that period, and in all cases the rule has wrought justice between the parties. In Dillingham v. Roberts, 77 Me. 284, the court, in defining the rights of the defendant who was building a wharf upon the flats in front of upland, stated: "The lines across the flats must be located by the rules laid down in Emerson v. Taylor, 9 Greenl. 42 [23 Am Dec. 531]." The rights of the owners of upland in flats adjoining their upland in this state have become fixed by that rule, and property in flats bought and sold by it. Other courts have attempted to adopt rules, and they have been obliged to change them to fit the cases as they came before them; but the doctrine of Emerson v. Taylor has been the rule in this state for 80 years, and, as it makes an equitable division of the flats in this case, and as the running of the side lines of defendant's upland straight overboard would work injustice between the owners by giving to the plaintiff more than its proportional part of the flats, it is the opinion of the court that the rule of Emerson v. Taylor applies in this case, and the mandate should be: | Judgment for defendant. (109 Me. 48) Argued before WHITEHOUSE, C. J., and FOURNIER et al. v. COMMISSIONERS OF CORNISH, KING, BIRD, HALEY, and HANAROOSTOOK COUNTY. (Supreme Judicial Court of Maine. March 11, 1912. CONSTITUTIONAL LAW (§ 65*)-COUNTIES (8 34*)-COUNTY BUILDINGS-STATUTORY AU THORITY-CONSTRUCTION. SON, JJ. Hersey & Barnes and L. V. Thibodeau, for plaintiffs. Perley C. Brown, County Atty., Madigan & Madigan, and Leonard A. Pierce, for defendants. Pub. Laws 1911, c. 52, which provides for a slight change of the boundaries of the northern district of Aroostook county, and for the BIRD, J. This bill in equity is brought removal of the registry office to Ft. Kent or by certain taxable inhabitants of the town Van Buren as designated by the qualified electors of the district, and which provides that of Madawaska and of the county of Aroothe act should be void unless, before January 1, stook for the purpose of enjoining the de1912, one of the towns should render financial fendants from erecting a building in Ft. aid in the erection of a registry building, and Kent for the office of registry of deeds in the that, after determination of such matters, donations by the unsuccessful competitor should northern district of the county, and from be returned, is not invalid as delegating to the borrowing money for the purpose upon the electors the question of changing the bound-credit of the county. aries nor the question of removing the registry, nor is the requirement that financial aid be provided by the competing towns ambiguous, the act giving an option to render aid without compelling it; and Ft. Kent having been selected by the electors as the location for the registry, and it having complied with the financial requirement, it is unessential to the county commissioners' right to erect the building that the town of Van Buren be given opportunity to offer aid, since that would be required to be immediately returned under the act. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 116; Dec. Dig. § 65; Intoxicating Liquors, Cent. Dig. § 16; Counties, Cent. Dig. §§ 34-37; Dec. Dig. § 34.*] Report from Supreme Judicial Court, Aroostook County. Bill by L. B. Fournier and others against the County Commissioners of Aroostook County. On report. Bill dismissed. Bill in equity brought by the plaintiffs "L. B. Fournier, Fortuna W. Pelletier, Beloni Hebert, Thomas Hebert, Raymond Albert, and Eloi Albert, all of Madawaska, in said county of Aroostook, and all resident within the northern registry district of Aroostook county, all being six taxable inhabitants of said Madawaska in said county, against Samual C. Greenlaw, of Presque Isle, in said county, Lewis E. Jackman, of Sherman in said county, and Patrick Therriault, of Grand Isle, in said county, as they are the commissioners of said county of Aroostook," for the purpose of enjoining the defendants from erecting a building in Ft. Kent for the office of registry of deeds in the northern registry district in said county, and from borrowing money for that purpose upon the credit of the county. The defendants filed an answer, alleging, in substance, that they were legally authorized to erect such a building at Ft. Kent, that it was their legal duty as county commissioners to erect such a building, and that, unless enjoined, they intended to erect such a building. An agreed statement of facts was filed and the case reported to the law court "to render such final judgment as the legal rights of the parties require." The case is stated in the opinion. The respondents claim authority in justification of their proposed acts under chapter 52 of the Public Acts of 1911, which provides for a slight change in the boundaries of the northern registry district of the county, and the removal from Madawaska of the office of registry of deeds of the northern registry district of the county of either Ft. Kent or Van Buren as may be determined by a majority vote of the qualified voters of the district, for the erection of a building for such registry at the place selected, and for the procurement of funds therefor on the credit of the county by the county com missioners. Sections 3, 4, and 5 of the act referred to are: "Sec. 3. This act shall be void unless at a special election duly called and held on the second Monday of September, nineteen hundred and eleven, and participated in by the qualified voters in said district, said district accepts the same and determines by a majority vote which town said registry shall be located in. This act shall also be void unless a suitable lot in Van Buren village, and a similar lot in Ft. Kent, whereon to erect a building for the registry office, shall have been conveyed to the inhabitants of the county of Aroostook by each of said towns of Van Buren and Ft. Kent, and the sum of three thousand dollars paid by the citizens of said Van Buren into the county treasury, said sum to be expended by the county commissioners of said county in building a registry office on said lot if the same be located in Van Buren, on or before the first day of January, nineteen hundred and twelve. After the said election has been held and the foregoing matters determined, the lot of land so conveyed and the sum of three thousand dollars so paid by the parties failing to secure the location of said registry in their town, shall be reconveyed and paid back to such unsuccessful donors. "Sec. 4. At said election the question of whether the registry shall be moved to Ft. Kent or Van Buren shall be so presented For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 82 A.-35 |