USA > Massachusetts > Essex County > Ipswich > Town annual report of Ipswich 1940 > Part 9
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(The underlining done above was done by me and does not so appear in any deed) .
In the LeBaron deeds the description of the premises runs by the Atlantic Ocean and Castle Neck River to low water mark.
Between 1800 and 1921 there were five conveyances by the title owners of Castle Hill and of Wigwam Hill to the United States of America. There were also certain layouts of ways from Argilla Road near the foot of Castle Hill to the light house and to the Beach, one layout being by the County Com- missioners, one by grant from Humphrey Lakeman to the County of Essex, and one a relocation of the way to the light house and the beach by the County Commissioners. The first of these conveyances to the United States of America was in 1809 by James F. Lakeman and Mary Lakeman of 1800
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square feet of land for the purpose of erecting a beacon. The measurements however in that deed was 55 feet in length and 30 feet in width. The second grant to the United States of America was in 1809 by Stephen Choate and Elizabeth Choate, his wife, to the United States of America of 900 square feet of land, 30 feet in length and 30 feet in width near the dwelling house of said Choate. The third grant to the United States of America was from Humphrey Lakeman in 1837 of four acres of land on "Wigwam Farm" so called and it may be assumed it is where the light house keeper's residence is now located and bounded as follows :-
"Four acres of land on Wigwam Farm, so called in said Ipswich bounded beginning at a stake at the North corner of said 4 acres about 5 rods from high water mark, & beach of John Baker, 3rd & Tristram Brown, thence East 40 rods; thence South 16 rods, thence West 40 rods; thence North 16 rods to first bound, being bounded sides and each by land of said Lakeman with a right at all times forever hereafter to go from the gate on the road leading from Baker's Farm to said 4 acres in the most convenient way, with teams, carts, horses &' men & also a right to land & place boats, gondalos & timber & other materials on my beach, & to pass & repass from thence to said 4 acres & if the said United States shall hereafter choose to fence the same 4 acres the said Lakeman is not to pay for, or bear any expense for fencing the same."
The fourth grant was from John Baker, 3rd. to the United States of America in 1837 of privilege and right to pass and re- pass over the Baker land and described as follows :-
"The privilege & right at all times hereafter of passing and repassing over our beach by Castle Hill so called in said Ipswich in any direction what so ever with teams, carts, horses or men, any vehicle that may be useful or necessary for carrying on free intercourse with the River & the 4 acres of land recently purchased by the said United
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States for a site of Light houses. Also a rgt. to land & place boats, vessels, timber and other material or to build on said beach a breakwater or any other work for the con- venience of laying vessels & boats, or to facilitate access from river to beach or beach to river, or to prevent harm . to vessels or boats, from the Sea surges or for any other purpose that may be useful to the Government and the public safety and convenience. To hold to the U. S. during the time they own the 4 acres and no longer."
The fifth grant was from Manasseh Brown to the United States of America of land for a range light in connection with the light house and described as follows :-
"Whereas the United States of America has heretofore erected and has to this time maintained and does now maintain a lighthouse in Ipswich in the County of Essex & Commonwealth of Massachusetts upon a piece of land 4 acres in extent, conveyed to the said United States by Humphry Lakeman, by his deed dated July 14, 1837, rec. Bk. 302, P. 96, & whereas it has become advisable to re- build the said lighthouse, repair the dwelling & purchase a site for a beacon or range light, to be used in connection with said lighthouse, and the Congress by its Act of March 4, 1879 has made an appropriation therefore, and whereas Manasseh Brown of said Ipswich is the owner of certain land, to wit :- Certain sand beach, which it is necessary & desirable for the United States to use in the construction, maintenance & operation of said beacon or range light and is willing for himself, his heirs, executors & adminis- trators to give & grant to the said United States the use for all time of any or whatever of his said land, to wit :- said sand beach, that now is or may hereafter be necessary or desirable for the said United States to use in the con- struction, maintenance and operation of said beacon or range light, which said beacon or range light is to be placed from time to time in such position upon the said land, to
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wit :- the said sand beach of the said Brown, as to be on a line with the channel over the Bar, wherever said Channel may from time to time be, & the light in said lighthouse aforesaid.
Now therefore the said Brown hereby gives & grants to the said United States the full, free & uninterrupted use for all time, in the construction, maintenance & operation of said beacon or range light, or of any new beacon or range light, which in the course of time it may become necessary or advisable to erect from time to time in place of the beacon as range light first erected after the execution of this conveyance, of the following described portion of his said land to wit :- (Portion of sand beach described in deed) .
In the deeds to the United States of America it may be noted that the "Wigwam Hill' Owners made grants of the land other than beach lands. The "Castle Hill" Owners made grants of beach lands. I call attention to these statements in such deeds as evidently the "Wigwam Hill" owners intended to con- vey some land that they understood were included in the devise to Mary Lakeman, and the Castle Hill owners intended to con- vey some lands that they understood were included in the devise to Elizabeth Choate under the will of John Patch, 3rd.
James Baker, one of the owners prior to 1830 of Castle Hill and property connected therewith, and Humphry Lakeman owner of Wigwam Hill property had a dispute as to the division line between Castle Hill property and Wigwam Hill property and a committee selected by said owners determined the dividing line between such properties. After such determination James Baker conveyed to John Baker, 3rd, and Tristram Brown as follows: -
"All my right title & interest in and to the beach and clam flats lying Southeast of a division line between my farm and the farm now occupied by Humphrey Lakeman
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of Ipswich aforesaid, as settled by a committee appointed for that purpose consisting of Jonathan Story, Esq., Jacob Story & Samuel Newman, as will appear by the return of said committee, reference thereto being had or by reference to the last will & testament of John Patch, Esq., late of Ipswich deceased. Together with all other the estate right title interest use property claim & demand whatsoever of him the said James Baker, which I now have or at any time heretofore had of in or to the aforementioned premises, with the appurtenances or to any part thereof, or which at any time heretofore has been held, used, occupied or enjoyed as part or parcel of the same."
It may be noted that this conveyance was of such rights as were granted under the will of John Patch. It was after this conveyance that the proceedings Tristram Brown et al vs. Humphrey Lakeman were begun and reported in Pickering Reports.
I have referred above to the cases of Brown vs. Lakeman in the 15th and 17th Volumes of Pickering Reports Pages 151 and 444, respectively. Quotations from these cases are as follows:
15 Pickering 151 :- "We proceed upon the ground that the Plaintiffs are lawfully entitled to all the right and title in the locus in quo &c. which was devised to Elizabeth Choate by the last will and testament of John Patch. The whole of the beach was devised to his daughters Mary Lakeman and Elizabeth Choate."
"The place where the supposed trespass was committed was within the half of a mile of the beach devised to Elizabeth, measuring as it was when the devisor died. But the defendant offered evidence tending to prove that the spot was more than half of a mile from the lower end of the beach as it terminated at the time of the supposed
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trespass: and he contended that this was a movable bound- ary, and that it shifted as the beach was washed away by the sea. But the judge instructed the jury, that the half mile of beach was to be measured as it was when the de- visor died, and that it was a fixed and stable freehold. And we all think that that instruction was correct. Ă different rule would be productive of great uncertainty and litigation, and there is nothing in the will from which we can infer that the testator intended that the measurements should not be made as the beach then existed."
"We are all however of opinion, that the testator gave a fee simple to Elizabeth".
"The devise of the castle-hill farm is expressly to Eliza- beth and her heirs and assigns, bounding it, and immedi- ately adding "and half a mile of the lower end of the beach, to be measured at high water mark".
If the will had stopped there, it would be very clear to us, that the beach was given to the heirs and assigns of the devisee, as well as the castle-hill farm.
But the devisor proceeds to say, "for drift wood and timber of all sorts"; and it is contended in the ingenious argument for the defendant, that the last words limited the previous words to a devise of a mere easement; and the remainder of the beach was given with the same limited intent. But we think this construction does not give the true meaning of the devisor. He had given the fee simple in the farms to his daughters. The beach might be con- sidered as a necessary or convenient wood lot, which should be divided between them. In the course of the argument at bar, it appeared, that the beach was valuable chiefly, if not entirely, for the drift wood and timber."
17 Pickering 444. "It was a gift of the land itself, under the name of beach, and not a right or easement in the land; and declaring the object and purpose of the gift,
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did not constitute a limitation, so as to make it an ease- ment. It was therefore by necessary implication construed to be a reservation of so much of the land as was included within this description, out of the devise of the lower farm."
"It follows therefore that the Plaintiffs are owners in fe? of that part of this beach, lying Northerly of Mary Lake- man's one mile, or between that and the dividing line of the two estates.
But a different and very difficult question now arises, which is, what portion of land passes under the name of beach; a difficulty partly arising from the indefinite sig- nification of the term, and partly from the shifting nature of the soil described by it."
"This being a devise of the right of soil and freehold in a portion of the beach, we think it manifest, as well from the nature of this species of property, as from the declared purpose of the will, that it was the intent of the devisor to enable the devisee to take all the drift wood and timber which would ordinarily be thrown upon the beach; and for that purpose, it must necessarily include that por- tion of the soil of the beach, upon which drift wood will ordinarily come, by force of the action of the elements, in ordinary seasons. Such a line is usually marked on the shore or upper part of the beach, by a row of sea drift there formed. The devise therefore must be limited by that line of shore, inward from the sea, to which sea-weed and drift wood are usually carried by the sea, in ordinary seasons, by the highest winter floods, and which is usually marked on the land by the line of such sea drift. But it will not include lands occasionally covered by sea-water, by extraordinary inundations.
This is certainly not so definite a description, as to ap- ply to all cases, and preclude doubts; but it is perhaps as
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definite as the nature of the subject will admit. And like other gifts and grants, made in terms somewhat loose, general and indefinite, it is to be applied to the subject matter by the discreet judgement of those whose pursuits, and whose experience and observation, in relation to simil- lar subjects, will enable them to make such application with a good degree of certainty. Probably an experienced surveyor, conversant with the situation and admeasurement of beaches, and having some experience as to the action of the winds and tides, would have no great difficulty in fix- ing a line conformable to this description."
In view of the statements contained in the above cases it may be asked what property was devised to Elizabeth Choate and Mary Lakeman by the word "beach". Did it include any property other than that land bordering the Sea between the Sea and the line made in ordinary seasons by the highest winter floods (not such land as is covered by excessive and un- usual inundations). In all deeds executed subsequently to the death of John Patch, 3rd, it appears that any conveyance of beach is the beach devised under the will to Elizabeth Choate under the will of John Patch, 3rd. It would appear that what was conveyed is a question for a Court to determine.
In no deed has there been any attempt to define the amount or description of land contained in the devise of "beach". The deeds since 1800 simply contain the statement "including the Beach devised to Elizabeth Choate under the will of John Patch, 3rd". Did John Patch, 3rd, have title to any beach that could be devised under his will. In the cases in Pickering Volumes 15 and 17, the Court decides that there was a devise of fee in the beach land, whatever was meant by that term. However the Town of Ipswich, as successor to the Commoners, was not a party to such proceedings and may not be bound by such de- cisions as to the ownership of John Patch, 3rd to such prop- erty. Again that is a matter for determination by the Court.
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AS TO RIGHTS OF WAY
In 1845 Humphrey Lakeman and others represented to the County Commissioners that public necessity and convenience required a layout of a way from Argilla Road to Wigwam Hill and to the Beach. The petition recited :-
"that there is no convenient road to Patch's Beach so called in Ipswich in said County; that frequent complaint has been made of the want of such a road as would be safe at all seasons of the year and accommodate the travel to said beach; that there is much travel to said beach, a considerable part of which is from other towns than said Ipswich: that teams with heavy loads and carriages of all description have occasion to travel to & from said beach; that when vessels have been wrecked upon said beach much inconvenience has been experi- enced in going to their relief over the existing road and that common convenience and necessity require the location and construction of a highway to said beach commencing at a con- venient point on the existing road between the house of John Patch and the house now occupied by Manasseh Brown in said Ipswich and terminating at a point near the light houses on said beach or at such other point as may be thought best, after a review of the premises. And pray that after due proceedings had such highway may be laid out according to law."
The Road was laid out by the County Commissioners. For a period of about ten years the matter of building the way as laid out by the County Commissioners was continually before the Town of Ipswich at its Town Meetings. Objection was made by Manasseh Brown to the layout of the way as done by the County Commissioners and the matter was before the Supreme Judicial Court which determined that the objections to such a layout were overruled, and the acts of the County Commissioners were duly confirmed and said way thereby es- tablished as a Town Way and that it was legally laid out. This way went through part of the land of John Baker, as damages
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were awarded him, he then being the owner of Castle Hill, the exact location of which I have to this time been unable to de- termine. It further appears that 1856 Humphrey Lakeman made a conveyance to the County Commissioners of a way to the Beach particularly describing such way and a plan of such way was recorded in Essex South District Deeds, Book 543, Page 115, and a photostatic copy of said recorded plan, is annexed to my Report.
In 1921 the County Commissioners were again petitioned to relocate the way that had been determined as the way to the Beach and the Commissioners viewed the property and again fixed the boundary lines of said way and same was recorded with Essex South District Deeds; blue prints of said way as determined by the County Engineer and showing the location of said way as determined by the Commissioners are also an- nexed to my Report. Said way runs from the entrance of the road leading from the causeway to the light house; thence run- ning Northerly on various courses approximately 68 rods; thence Easterly 44 rods; and Northeasterly 26 rods, stopping at high water mark; and the width of said way is 40 feet. A copy of the relocation as made by the Town Commissioners in 1921 is annexed to the blue prints and filed herewith.
TO SUMMARIZE
Castle Neck in 1634 belonged to the Commoners of Ips- wich. Said Commoners made certain grants from Castle Neck, namely Castle Hill, Wigwam Hill, and trees and woods standing and lying on Castle Neck beyond Wigwam Hill. The owners of Castle Neck and Wigwam Hill down to 1800 had made various deeds and in these deeds included by general description lands on Castle Neck. Castle Hill and Wigwam Hill and such lands adjacent thereto to which the owners of Castle Hill and Wigwam Hill had title came into the possession of John Patch, 3rd. By his will, after giving certain property to his children
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including his two daughters to one of whom he gave Castle Hill and the other Wigwam Hill, he gave beach property and since 1800, the time said will was probated, conveyances made of Castle Hill and Wigwam Hill have referred to beach or beaches devised under the will of John Patch, 3rd.
Between 1800 and the time of filing my report there have been conveyances made by the owners of Castle Hill and Wig- wam Hill to the United States of America, and controversies between such owners relative to ways over Castle Neck; the grantors in the deeds making such transfers, have described the lands conveyed as belonging to the parties executing the deeds.
Ways have been laid out over Castle Neck to the beach and in one case the owner of Wigwam Hill gave the deed of the way over land claimed to be owned by him. These ways if differ- ent from the relocation as made in 1921, are included in such relocation.
It would appear that the Town of Ipswich acquired some title to Castle Neck by virtue of the 1788 conveyance by the Commoners to the Town of Ipswich. Unless the prior con- veyances above mentioned by the Commoners to owners of the lands known as Wigwam Hill and Castle Hill conveyed all of Castle Neck, the Town of Ipswich still has right to claim own- ership to such unconveyed land.
I think there are certain legal questions that will have to be determined by the Court in case any controversy arises to the Town rights in Castle Neck or Ipswich Beach. I suggest that the Town endeavor to arrange conferences with parties claiming ownership adversely to the Town to see if an amic- able adjustment of the controversy can be made.
Respectfully submitted,
GEORGE H. W. HAYES
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Report of Beach Committee
To the Citizens of Ipswich:
The Ipswich Beach Committee, consisting of Edmund Kelleher, Samuel Gordon, Wallace J. Lathrop, William Morrill and Raymond M. Sullivan, beg to report on the doings of your Committee since the last Annual Town Meeting in March 1940. Since that meeting we have suffered the loss of Roger Warner, a member of this Committee, than whom no one lab- ored more hard or diligently for the interests of the Town in protecting its interest in Ipswich Beach and endeavoring to acquire for the Town full enjoyment of its rights in the Beach. Roger Warner was a wise counsellor and an able lawyer, whose opinions were listened to with great respect and whose well con- sidered judgement was eagerly sought by this Committee. More than any one, not a year round resident of the Town, Roger Warner captured and understood the spirit of the townspeople at large and his exhaustive studies relating to the title of Ipswich Beach he made available to us, and we feel that with his passing this Committee and the Town has lost a valuable citizen.
This Committee has been directed by the Town to inquire into the rights of ways and easements to Ipswich Beach, to sur- vey and lay out a portion of the upland adjacent to the Beach for the future acquisition by the Town for municipal purposes, and they were further authorized and directed to obtain counsel. to be named by this Committee and the Board of Selectmen, to gather all the evidence and facts relating to the title of the Town in the beach and its interests in any rights of way, and pur- suant to this vote this Committee, together with the Selectmen, have engaged the services of Judge George H. W. Hayes, who. together with our Town Counsel George W. Schofield, has
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made investigation of the records and evidence which would throw any light upon the interests of the Town in and to Castle Hill and Castle Neck. Their report is filed elsewhere and may be read in the Town Report.
We feel that decided progress has been made by your Com- mittee in discharging the duties which were entrusted to it. No one desires to involve the Town in litigation which may be pro- tracted, uncertain and expensive. This dispute as to the title to Ipswich Beach, which has been going on for many years, however we believed should be settled, amicably, if possible. In referring to the report of the Town Counsel and Judge Hayes, it appears that ever since John Winthrop in 1637 received from the Commoners a grant of Castle Hill, there has been an almost · continuous dispute as to the ownership of Castle Neck. The conveyance to Winthrop was made upon condition that he re- side in the Town, although as a matter of fact he left Town shortly after Castle Hill was set off to him. We should call attention to the citizens that in any consideration to the title of property in this part of the town there are three separate di- visions which may be considered; first, Castle Hill, where the Crane house is located; second, Castle Neck, which is generally described as the Beach and lowlands lying between Castle Hill and Wigwam Hill on the Castle Neck River, and third, Wig- wam Hill.
There seems little doubt that the Commoners alienated their interest in Castle Hill and Wigwam Hill. There is con- siderable doubt that they ever alienated any interest in and to any other part of the three divisions described above, other than a conveyance of wood, standing, lying or growing on any part of Castle Neck so-called, beyond Wigwam Hill. We wish to point out also that it is a fair comment that no conveyance ap- pears to have been made of any land lying below high water mark; that the first conveyance of any beach below high water mark appears in the deed from Joseph Fairhall of Danville, Illinois, to Richard T. Crane, Jr. on January 10, 1910.
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Without attempting to trespass upon the duties of the counsel employed by your Committee, it would seem that the Town has some claim of title at least to the Beach from high water mark into the sea and also to Castle Neck. It may be argued that with the possible exception of Castle Hill and a portion of Wigwam Hill, Mr. Crane's title is founded not upon any conveyance from the Commoners, but by the extension of boundaries by residents of Castle Neck and Wigwam Hill, un- supported by any conveyance of record to this land. There is ample evidence that the Commoners never intended to part with any title to the sands and beaches of Castle Neck. We have that from the records of the Commoners themselves, not only in their conveyance to the Town on June 9, 1788 of all their lands to be sold by the Town and the proceeds of such sales to be applied to the payment of the Commoner's debts, sand and clam flats excepted. There is further record at the Town Meeting held February 1664 of those appointed by the Town to divide Plum Island, Hogg Island and Castle Neck, wherein they state that they did lay out in division Plum Island and Hogg Island and left no common there, but that they found Castle Neck unfit for division and made such report to the Town, from all of which it may be concluded that the Com- moners never alienated Castle Neck and that their title succeeded to the Town. There seems to be no doubt also that there are several rights of way to the Beach, which are not now available to the townspeople and which could, and perhaps should be opened up to them.
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