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HomeMy WebLinkAboutJudith Wegner - Letter to Conservation Commission dated Dec. 3, 2018From: Judith Wegner <judithwegner@gmail.com> Sent: Wednesday, December 12, 2018 6:20 PM To: Erika Mooney <EMooney@nantucket-ma.gov> Cc: Libby Gibson <LGibson@nantucket-ma.gov>; Judith Wegner <judithwegner@gmail.com>; Jason M. Bridges <jmbridges@nantucket-ma.gov>; Dawn Hill Holdgate <dhillholdgate@nantucket-ma.gov> Subject: Additional research on Sconset beach rights and historical significance Hello Erika. Please accept this submission of additional research relating to the SBPF and Baxter Road applications. I submitted this material to the Con Com for last week's meeting and it now appears at https://www.nantucket-ma.gov/DocumentCenter/View/23221/J-Wegner-50-Quidnet-Letter-12_03_18. I'd ask that this information also appear on the portion of the Select Board's website relating to these applications and that these materials be distributed to the Select Board and others as appropriate. I hope that by writing you and copying the Manager, chair and vice-chair of the Select Board, that I have followed the proper protocol in making that request. I have completed and documented more about the public property rights in this area, as well as the area's significance as a matter of history and natural science. It is clear that William Flagg (the developer who build the Baxter Road development) was aware of the natural history significance, since it is documented that he hosted visiting geologists. The geologists of the time concluded that this area was one of the most important natural history sites in New England. The Select Board is apparently unaware of these facts and the town has not apparently tried to make inquiry about these important public rights and their significance. My efforts to document the history are intended to urge the Select Board to look more closely at these considerations and to protect public rights from further compromise to benefit private interests. Sincerely, Judith Wegner -- Judith Wegner 50 Quidnet Road Nantucket, MA 02554 judithwegner@gmail.com (919) 280-5608 1 December 3, 2018 Nantucket Conservation Commission c/o Jeff Carlson, Natural Resources Coordinator Via Email: jcarlson@nantucket-ma.gov RE: Baxter Road Erosion Control Project Dear Members of the Conservation Commission: I am writing to provide additional evidence and analysis for your consideration in connection with ongoing review of applications by the Siasconset Beach Preservation Fund (SBPF) to retain and expand geotube structures on the beach below the Sankaty Bluff. As the comments that follow indicate, I oppose the project because of its harmful impacts as understood in legal, historical, and environmental terms. A. Harm to Legally Protected Public Rights Introduction. I am a retired law professor who taught for 35 years at the University of North Carolina-Chapel Hill in the areas of property law, land use, and state and local government law. My husband and I retired to Nantucket in 2017 and I soon began a research project relating to public rights in Nantucket’s beaches. I have previously presented some of the comments that follow to meetings of the Select Board in April and July 2018. To date, it appears that the Town has received general legal advice on implied public trust rights to accessing waters in the Commonwealth but has not yet conducted an adequate title search to document pertinent explicit public rights relating to the beaches in Sconset in the area below the Sankaty Bluff and along the surface of the Bluff itself. In my view, the Conservation Commission should directly request the Town to commission a title search of this area in order to order to determine the extent that such explicit public rights will suffer significant harm as a result of the current or expanded SBPF proposals. Appendix A (in several parts) provides detailed documentary evidence of express public rights in the beach below the Baxter Road development and the Bluff itself. Here are the relevant highlights: William Flagg’s Purchase, Development and Protection of Baxter Road Area The Proprietors of the Common and Undivided Lands of Nantucket, and William Flagg, the developer of the Baxter Road area who received his lands from the Proprietors, reached explicit, recorded understandings intended to protect key features of the area around the Sankaty Bluff expressly for public use, forever. 2 a. Initial Grants of Public Rights in Beach Easement and Bluff Footpath. Two studies by Nantucket historians provide a narrative history of property rights in the Sankaty Bluff/Baxter Road area and are included in Appendix A1: Eduard A. Stackpole, The Path Along the Bluff, Historic Nantucket, Vol. 20, No. 3 (April 1973), pp. 19-27; Frances Ruley Karttunen, A History of Roads and Ways in Nantucket, 2008, 14-17 (available at https://nantucket-ma.gov/DocumentCenter/View/1096/History-of-Roads- and-Ways?bidId=) . To the extent available, key documents referenced in these documents are included in Appendix A2. William J. Flagg was one of the major developers of land in Sconset during the late 19th century.1 After initially acquiring nearby property from the Proprietors in 1873, Flagg sought additional property in 1883, including much of the Plainfield division, eastward toward the Squam Division area and Sesachacha Pond. The Proprietors agreed but required a reservation of certain rights to themselves, and on December 20, 1883 two deeds were simultaneously recorded: one from the Proprietors to Flagg, and a second from Flagg back to the Proprietors. The deed from the Proprietors to Flagg included a description of property to be conveyed, as well as an express statement of intent to hold the interests to be transferred back from Flagg: with the understanding that said Flagg is to reconvey a certain portion thereof to said Proprietors, to be held in trust by them and also to secure to said Proprietors a roadway two rods wide over and across those portions of said land by him reserved as set forth in the draft of his quitclaim deed to said Proprietors to be herewith recorded, The deed back to the Proprietors from Flagg on the same day incorporated the following terms: The lands hereby released to be forever held by the said Proprietors and their successors for the purpose of roadways or other public uses and purposes and not to be granted or set off by them in severalty to any individual person or persons. And I also hereby convey to the said Prop’s a right of way, two rods wide, along the shore above the line of high-water mark, over and across the tracts of land, hereinabove excepted and reserved, said right of way being forever secured to said Prop’s notwithstanding any changes that may hereafter take place in the beach, affecting the position of said line of high water mark. Thus, from the very outset, the Proprietors retained rights to create “roadways” or other public uses and purposes” that were not to be “granted or set off by them in severalty to any individual person or persons.” Moreover, the Proprietors expressly retained rights along the shore above the line of high-water mark, two rods (33 feet) wide, notwithstanding any changes that take place in the beach. These documents were recorded in Nantucket Deed Book vol. 68, pages 516-518 (a transcript is included in Appendix A2). Flagg’s recorded plan of “Sankoty” Heights, dividing the area into 87 lots, is also included in Appendix A2. Notably, this subdivision plan uses lot lines 1 For a presentation on William J. Flagg, by Betsy Tyler, Nantucket historian, on August 15, 2016, see https://www.youtube.com/watch?v=WvIrSY_vciw&t=1067s . 3 that do not reach the actual edge of the cliff along the property, perhaps reflecting Flagg’s understanding about the risks associated with erosion. According to Stackpole, Flagg realized that there was a long-standing path along the top of the Bluff, running from Sconset to Quidnet and beyond, on which the Sankaty lighthouse had itself been situated when it was built in 1845. Flagg (a lawyer) ultimately recognized that in conveying portions of his land to other private parties, there needed to be a recognition of this path. Accordingly, in August 1892, he again petitioned the Proprietors, this time requesting that: The undersigned requests the Proprietors of the Common and Undivided Lands of Nantucket to accept a certain tract of land in that part of Nantucket known as Sankaty Heights, but in perpetual trust nevertheless, for the residents and visitors of Nantucket, and to be used as a foot-path or foot promenade and for no other purpose or purposes whatsoever. It is provided, however, that the same Proprietors may, when they choose, to convey and transfer the said land in like perpetual trust and for the purpose above-named to the Town of Nantucket or other corporation or body known to control the highways of the Town of Nantucket. William J. Flagg On September 3, 1892, the Proprietors agreed to Flagg’s request and on September 21, 1892, Flagg conveyed to the Proprietors the tract including land lying between the easterly tier of lots on the west and the beach upland belonging to said Proprietors on the west. He specified that the strip of land conveyed was to be held by the Proprietors in trust for the purposes of a footpath along the bank, with authority to convey the land to the town. The deed was recorded in Book 76, page 342 of the Nantucket deed registry. b. Subsequent Legal History of the Bluff Footpath and the Bluff Itself An additional plat, dated 1921, more clearly shows the extent to which lots along Baxter Road were deliberately crafted not to run to the edge of the cliff, evidently in recognition of public rights to use the path along the Bluff. This plat is included in Appendix A2. Nonetheless a dispute about land rights to the footpath arose in connection with three lots conveyed by Flagg to Mary Mitchell on September 1, 1892, even though that conveyance had expressly referenced a path along the bluff. In 1924, according to Stackpole, the Town sought to clear title to the Bluff path through land court proceedings. A survey of the Bluff path was conducted. On May 1, 1925, the Proprietors voted to give the town a "deed of release to not only the Path, but all the land between the top and bottom of the Bluff along the Path," on condition that registration through the Land Court would be pursued. In 1929, the Land Court rejected the Mitchell estate’s claim that they had acquired full rights and extinguished the Bluff path by adverse possession. The decision on appeal to the Supreme Judicial Court, dated 1930, is included in Appendix A2. This portion of the Bluff path’s history is also recounted in the Karttunen study dated 2008 4 (referenced above), along with subsequent legal issues relating to the Bluff path that are not directly relevant here. c. Implications. The conclusions to be drawn from this history of legal rights to the beach below the Sankaty Bluff, and indeed to the Bluff’s surface itself, seem relatively clear. The Proprietors, from the beginning, took steps to reserve property rights to be held “in trust” by them. They assured that Flagg’s contemporaneous deed back to them included an express, two-rod (33-foot) wide easement along the Sconset shore, below the Sankaty Bluff. The deed back to the Proprietors from William Flagg, the developer of Baxter Road, specified that these rights were to be “forever” secured to the Proprietors notwithstanding any changes in the high-water mark along the beach. The latter statement made clear that the beach easement was not to be adversely affected in the event of erosion but would always be moved inland as necessary and exist above the high-water line (not just in the area between high and low tide). The Proprietors’ subsequently transferred their remaining rights in the Bluff footpath, along with their rights to the surface of the Sankaty Bluff itself to the town on condition that the town would register these rights with the Land Court so that they would be fully protected. The town fulfilled the condition and prevailed against claims by private property owners that private rights should outweigh the protections afforded the public from the beginning of development in this area. The nature of the rights preserved by the Proprietors, and subsequently passed down to the town, were acknowledged from the outset to be rights for “public uses and purposes” to be held “forever,” and “not to be granted or set off in severalty to any individual person or persons.” The transfer of rights from William Flagg back to the Proprietors (and in turn transfers of rights to the town) are accordingly subject to these stated restrictions. To allow disruption of public rights to the beach easement or indeed to allow defacement of the Bluff itself would seem to amount to a significant public harm to the public’s legal rights that the Conservation Commission should not allow. B. Harm that Compromises Nantucket’s Significant Environment Assets as Historically Understood Introduction. In order to understand the contemporaneous views of the Proprietors and William Flagg at the time that public easements were created on the Sconset beach below the Sankaty Bluff and later the protection afforded the Bluff itself, I have undertaken addition historical research. As best I can ascertain the record before the Conservation Commission, the Select Board, and the public does not document the extent to which the Sankaty beach and Bluff were regarded as truly significant resources, revealing important natural history, at the time that public rights were being created in the beach below the Bluff, the Bluff itself, and the Bluff footpath. In order to evaluate the extent that the SBPF’s project would create harm to these areas, it is important for the Conservation Commission to evaluate the exceptional affirmative value placed on these unique natural resources in the late 19th and early 20th century. The beach and 5 the Bluff are themselves demonstrably significant historical resources to Nantucketers, visitors, and others in New England and beyond. The extensive range of studies undertaken during this period are ample proof of the area’s true importance. Indeed, the historic importance of these natural resources and assets make it even more important to consider alternative measures that could mitigate damage to private property off Baxter Road without simply allowing the integrity of the beach or Bluff to be compromised as a matter of preference or convenience. Scientific Studies Contemporaneous with Creation of Legal Protections Nantucket, and the Sankaty Bluff area in particular, was the focus for significant attention from distinguished geological and naturalist researchers from the mid-19th century through the early 20th century. Some of the leading research studies of the era include the following: Desor, M.E., & Cabot, Edward, On the Tertiary and More Recent Formations in the Island of Nantucket, The Quarterly Journal of the Geological Society of London, ... v.5, page 340 (1849) (available from Haithi Trust, https://babel.hathitrust.org/cgi/pt?id=mdp.39015006918240;view=1up;seq=7) Verrill, A.E., Post-Pliocene Fossils of Sankoty Head, American J. of Science, 3rd Series, Vol. 10, pp. 364-375 (1875) (noting at page 366, his appreciation to William J. Flagg for facilitating his visit to the Sankaty field site). Shaler, Nathaniel S., The Geology of Nantucket, Bulletin 53, United States Geological Survey, 1889 (especially at pages 30-45). Wilson, J. Howard, The Pleistocene Formations of Sankaty Head, Nantucket, The Journal of Geology, Vol. 13, No. 8 (Nov. - Dec. 1905), pp. 713-734. Cushman, Joseph A., The Pleistocene Deposits of Sankoty Head, Nantucket, and Their Fossils (Publications of The Maria Mitchell Association, Vol. I, Issue 1, February 1906, reprinted May 1931) (available from Haithi Trust at https://catalog.hathitrust.org/Record/006753487)2 These researchers treated the Sankaty Bluff and its adjacent beach as particularly important because the area’s continuing erosion revealed long-standing remnants of the geological and fossil record, matters of crucial significance to understanding the natural history of New England. Their depiction of the Sankaty Bluff demonstrated the importance of this area as a lens for understanding the geological history of Nantucket and Cape Cod more generally. 2 For a more recent study of the area including these and other sources in its bibliography, see Oldale, R.N. et al, Stratigraphy, structure, absolute age, and paleontology of the upper Pleistocene deposits at Sankaty Head, Nantucket Island, Massachusetts, Geology, v. 10. p. 246-252. (May 1982). 6 For example, United States Geological Survey scientist Nathaniel S. Slater described the Sconset Bluff, writing in 1889 (during the interim period between the deeds of the Proprietors and William Flagg, dated 1883 and 1892, as discussed above). Slater used particularly stirring terms: The section at Sankaty Head is at present almost entirely hidden by the thick growth of grass and other plants, which have found a hold upon the surface since the sea has been fended from. it by the considerable northward extension of the Siasconset apron-like beach. This is to be regretted, for the reason that it is from a geological point of view by far the most interesting section of the island and one of the most important found on the New England coast.3 Shaler then provided an extensive analysis of much of the prior research listed above. In addition, his contemporaneous sketches demonstrate the nature of the natural resources and public uses envisioned by William Flagg and the Proprietors.4 Scientific studies of the Sankaty area, contemporaneous with the William Flagg’s and the Proprietors’ legal dedication to the public of the beach below the Bluff and the Bluff itself, indicate the significance associated with this area of the Island as a matter of natural science and as a key marker in Nantucket’s history. Significant deterioration of or the destruction of the natural character of the beach (and related public easement) below the Bluff and the Bluff itself thus constitutes significant harm that the Conservation Commission should prevent if at all 3 Shaler at 30 (emphasis added). 4 Shaler at Plate VII. 7 possible. Instead, all possible mitigation measures for relocation of the houses on Baxter Road (and if necessary, the road itself) should be explored. Conclusion. Thank you for your hard work in evaluating the difficult factual, legal, scientific, economic, historical and policy issues raised by both the current “temporary” SBPF geotube project and the proposals to expand that project significantly. I hope that the information provided here will prove helpful to you. I regret that because of a family medical emergency off-Island I am not able to attend the Commission’s December 3 meeting. I have asked my husband Warren to attend in my stead in order to submit these comments. If desired, I will do my best to attend a future Conservation Commission meeting to answer any questions you may wish to address to me. Sincerely, Judith Welch Wegner 50 Quidnet Road Nantucket, MA 02554 (508-228-4270) judithwegner@gmail.com Appendix A A1: • Stackpole article, The Path Along the Bluff • Roads and Rights of Way Study excerpt re Bluff Path A2: • December 1883 Deeds: Proprietors and Flagg • Sankoty Heights Plat • Revised 1921 Plat • 1930 Land Court Ruling in Mitchell Case (re Bluff Path) Appendix B • Shaler, USGS Bulletin 53 Excerpt (1889) • Verrill (1875) NHA Home |Historic Nantucket Articles | Originally published in the Historic Nantucket, Vol 20, no. 4 (April 1973), p. 19-27 "The Path Along The Bluff" BY Edouard A. Stackpole In recent months there has been a considerable study made of roads and rights-of-way outside the perimeter of the town, and of the original layouts and acceptances by the town. Some of these ways have been difficult to trace but one of the most unusual has had the good fortune to have been carefully documented--the "Path Along the Bluff"--that extensive footpath which leads all the way from the village of 'Sconset to Sankaty Head. Situated as it is at the top of the bluff, always commanding intriguing glimpses of the sea and the heathland on either side, the "Path" curves and dips as it follows the conformation of the bluff, and provides an entirely unique opportunity for a stroll to and from the famed lighthouse at Sankaty. Undoubtedly, the most unusual feature of the path is that it is public (being owned by the town) and yet that it leads directly across the front yards of all those owning property fronting on the bluff. A number of years ago there was an attempt by one property owner to close that section of the path running through her front lawn, but a decision rendered by the late Judge Davis of the Land Court upheld the town's contention that the "Path" was a public way. The owners of the adjacent fronting property have, in most cases, had their grounds landscaped, so that the stroller apparently is walking on and across a series of front lawns and gardens, with only a gap in the hedges to locate the actual "Path." In other instances, the path winds through natural terrain and thickets and in one case wanders through a thicket of Scotch broom. For at least half its mile-length, however, the adjoining property owners have actually maintained the path for public use. But the fact that it does lead into and across private property has not created a nuisance to the owners of the residences along the bluff. This result has been occasioned by a comparably simple fact that those who take advantage of the opportunity to walk the mile-long path are too deeply appreciative of the experience, and it is rare, indeed, that private property is not respected. The story of the origin of the "Path Along the Bluff" is interesting from both the legal and esthetic viewpoints. It began three quarters of a century ago, when a summer resident of Nantucket, William J. Flagg, decided to invest in a real estate development at the east end of the island. It was early in 1873 that Mr. Flagg obtained title to a large section of land between 'Sconset and Sankaty, in that portion of the island laid out by the original Proprietors as "Plainfield," bordering on Sesachacha lots. Although the original title gave him ownership to the foot of the bluff itself, the "Proprietors" reserved for themselves the beach land from the foot of the bluff to mean high water. This later became part of the present Codfish Park. At the same time, or soon after, Mr. Flagg acquired other land at the east end and made plans for dividing the section into house lots. He was careful, however, to run the easterly boundary of these lots at what he no doubt considered a safe distance from the edge of the bluff. The "Proprietors of the Common and Undivided Land," controlling as they did the outlying land on the "Path Along The Bluff" Historic Nantucket article from the Nantucket Hi...https://www.nha.org/library/hn/HN-april73-stackpole-bluff.htm 1 of 4 3/24/2018, 9:55 PM island, were petitioned in July, 1883, by Mr. Flagg, for another set-off. The petitioned requested the Proprietors to "...set off to him [Flagg] by metes and bounds, all the common land lying eastward in the Plainfield division, and by the Atlantic house. Also, all lying between these lines and the lines of Squam division, except the Pond." The Proprietors duly convened to consider this petition, but it was some months later-—December 8, 1883-—that they agreed to "set off the land to said Flagg" at the same time requesting him to "account said Proprietors with an equivalent of ten sheep commons;" also, "to secure to said Proprietors a roadway two rods wide, over and across those portions of land by him reserved as set forth in the quit claim deed from Flagg." This set-off by the Proprietors is entered in the town records under date of December 8, 1883, although it was decided upon three months previous. The grant reads: Pursuant to a vote of the Proprietors of the Common and Undivided Lands of the Island of Nantucket, passed Sept. 26, 1883, we have this day set off to William J. Flagg, of the city and State of New York, as follows: All the common land lying Eastward of the east line of the Plainfield Division and of the South line of said division of Plainfield on the South, and the south line of the Squam division on the North, with the understanding said Flagg will reconvey a certain portion thereof to said Proprietors, to be held in trust by them. This was signed by Andrew Myrick, William C. Folger and Allen Coffin, as lot-layers. This "quit claim deed" referred to as given by Flagg is recorded in Book 68 of the town's registry records. It conveys the land requested by the Proprietors, with exceptions, as follows: First, all the land lying eastward of the land lying eastward of the land conveyed to me and Eliza Flagg, my wife, by deeds respectively of Frederick M. Pitman (see Book 62, Page 464), and James H. Wood (See Book 66, Page 498), and between the extension of the northern boundary line of the said land purchased of Pitman and the southern boundary line purchased of Wood. Second, all that tract of land lying eastward and between the extension of the northern and southern boundary lines of a certain tract of land conveyed by me and Eliza Flagg to William Ballantyne, by a deed recorded with the town records. The land hereby released to be forever held in trust by the said Proprietors and their successors for the purpose of roadways and other public uses and purposes and not to be granted or set off by them in severalty to any individual person or persons. And I also convey to said Proprietors a right-of-way two rods wide along the shore above the high water mark over and across the tracts of land hereinabove excepted and reserved, said right-of-way 2 rods wide being forever secured to said Proprietors notwithstanding any changes that may hereafter take place on the beach affecting the position of said line of high water mark. There can be little doubt in the established purpose for the land that Flagg reconveyed to the Proprietors, and which that corporate body agreed to guarantee. It was in the spring of 1892 that Mr. Flagg sold to a Mr. Heath the most northerly of the lots which he had laid out ten years before. It was then recorded for the first time that the easterly boundary was "a foot path along the top of the bank." This lot was later owned by the Grice family. Mr. Flagg called his real estate development "Sankaty Heights." He was aware of one fact that has not been fully appreciated-—that there had been in existence for many years (perhaps as long as 'Sconset had existed) a footpath along the bluff top, which was used by the villagers and by farmers and fishermen. Sheep grazed here by the hundreds, sometimes straying down the bluff. Fishermen used the gullies "Path Along The Bluff" Historic Nantucket article from the Nantucket Hi...https://www.nha.org/library/hn/HN-april73-stackpole-bluff.htm 2 of 4 3/24/2018, 9:55 PM from the village to 'Sachacha Pond to haul up their dories and their catch of fish. The "Path" probably ran all the way along the bluff to the pond. The government's erection of Sankaty Lighthouse in 1849 literally cut the "Path" in half. Mr. Flagg must have recognized this fact, for on August 1892, he entered the following petition: The undersigned requests the Proprietors of the Common and Undivided Lands of Nantucket to accept a certain tract of land in that part of Nantucket known as Sankaty Heights, but in perpetual trust nevertheless, for the residents and visitors of Nantucket, and to be used as a foot-path or foot promenade and for no other purpose or purposes whatsoever. It is provided, however, that the same Proprietors may, when they choose, to convey and transfer the said land in like perpetual trust and for the purpose above-named to the Town of Nantucket or other corporation or body known to control the highways of the Town of Nantucket. William J. Flagg. On Sept. 1, 1892, Mr. Flagg sold a block of three lots to the late Mary K. Mitchell, and the warranty deed stipulated that the easterly boundary was the footpath along the bank. On Sept. 3--two days later--the Proprietors voted to accept the tract of land offered by Mr. Flagg as a footpath, and on Sept. 21, 1892, Flagg conveyed the tract to the Proprietors, the tract including that land lying between the easterly tier of lots on the west and the beach upland belonging to said Proprietors on the east, excepting certain lots previously sold and not material to this controversy, the strip of land so conveyed to be held by the Proprietors in trust for the purposes of a footpath along the bank, with authority to convey the land to the town. This deed was recorded in Book 76, Page 342. On Sept. 22, 1892, Mr. Flagg gave the Mitchell estate a quit-claim deed of all interest in the land lying eastward of the lots theretofore conveyed to her, with the condition that all of the land lying between the east line of said lots and the edge of the bank be kept open for a footpath along the bank; and further reciting : This deed being subject to my deed of Sept. 21, 1892, conveying the same premises to the Proprietors of the Common and Undivided Lands in Nantucket in trust for uses and purposes therein specified, recorded in Book 4, Page 342. From the fact that Mr. Flagg had made doubly sure that the "Path" would be preserved it appears that he was cognizant of the long use of the path as a traveled way. His efforts to protect it were further urged by his awareness of its appeal to the summer visitor as a perfect way for a stroll. The second in the series of legal steps to protect the "Path" came in the next year. The Mitchell estate filed with the Land Court a petition for registration of title to her land, claiming easterly to the ocean. In that case, as in other cases which followed out of this same tract, Judge Davis of the Land Court ruled that title to the strip between the easterly line of the tier lots on the west and the line at the foot of the bank to the east, passed to the Proprietors under said deed of Sept. 21, 1892, and not to the respondent under her deed of Sept. 22, 1892. Meanwhile, the Mitchell estate had extensively landscaped its grounds, including that portion occupied by the "Path," and had also erected a number of buildings on the beach below. It was in 1924 that the town voted to seek title to the "Path" through the Land Court. A conference between the late Joseph Kenney, of New Bedford, the town's counsel, and Franklin E. Smith representing the Proprietors, cleared away legal problems, with Mr. Smith suggesting that the Proprietors resign as trustee of the strip (as appointed by Flagg) and that the town be appointed as trustee. The Proprietors met on May 1, 1925, and voted to give the town a "deed of release to not only the Path, but all the land between the top and bottom of the Bluff along the Path," a distance of some 7,000 feet. "Path Along The Bluff" Historic Nantucket article from the Nantucket Hi...https://www.nha.org/library/hn/HN-april73-stackpole-bluff.htm 3 of 4 3/24/2018, 9:55 PM In September, 1924, William S. Swift made a survey for the town, and the plan was accepted by the Proprietors in its release to the town. When the case came before the Land Court the Mitchell estate claimed the land fronting it (including the Path) by reason of adverse possession. On December 1, 1929, Judge Davis of the Land Court rendered his decree which legally established the "Path Along the Bluff." In regard to the respondent's claim, he found: The Sankaty Path is in constant use, and is a matter of importance to all lot owners along the bluff. It is a well-defined path, but, owing to inroads from the sea, needs care and repair. It is in good condition in front of the respondent's house, and her lawn has in no way interfered with the path. There has been nothing in her care of the bluff that has been in any way adverse to the rights of the Proprietors, or of the Town as their successor in title, nor in any of the said acts of the respondent has there been anything adverse to the purpose of the trust under which title to the strip of land has been held, namely, the maintenance of the path. That portions of it have been used by the respondent for access to the beach and for bathing purposes, or for the housing of her gas engine for lighting her summer residence, has not been inconsistent with a reasonable inference of permission of the part of the Proprietors. "...There is a decided difference between a user of open tracts of seashore property and similar user in a settled community. Title acquired by adverse possession rests practically on estoppel as a matter of public policy. When an owner has permitted himself to be ousted and another to be in open, notorious and exclusive occupation of his land under a claim of right for a period of twenty years, he has lost the right to assert his title. He does not lose it by a reasonable allowance of the use of a portion thereof by a neighbor and on the while to himself, which does not in any way interfere with his own control of the property for which he himself uses it. In such case permission is to be inferred; and the more so where title to land is in a public body like the Proprietor. On the facts of this case I find that title by adverse possession has not been acquired against the petitioner and its predecessor. The Sankaty path runs from the Sankaty Lighthouse southerly to a considerable distance beyond the limits of the Flagg land. The petition and accompanying plan cover the entire path. The southerly boundary line of the Flagg tract, title to which is now in the petitioners, is the northerly line of the public way shown on the filed plan immediately south of the Judkins lot, a little over one-half way down the plan. The northerly line of the strip owned by the petitioners is the southerly line of the respondent Grice which is to be shown on the decree plan. Many are familiar with Bliss Carmen's poem describing the Path, beginning with the line, "Have you ever heard of 'Sconset," but there is another verse which deserves to be equally well known, as written by Mrs. Abbie Ransom. In part, this reads: "Have you ever followed the path along the bluff, When the sky is gray and the sea is rough? When, shoreward thickening, the fog drifts down Until homes are the wraiths of a phantom town? I have followed the path to Sankaty Light, When the moors were brown and the frost was white, With the sun a ball on the ocean rim, Where the Indian Summer breathes with Him, From the north to the south, a curve is swept, On the far horizon a soft haze slept. To the west the moorlands, above the sky, In all the vast silence, Just God and I." "Path Along The Bluff" Historic Nantucket article from the Nantucket Hi...https://www.nha.org/library/hn/HN-april73-stackpole-bluff.htm 4 of 4 3/24/2018, 9:55 PM 14 Trustees of Reservations, the Boy Scouts of America, the Sconset Trust, the Madaket Conservation Land Trust, and private individuals. Abutters’ ways and alleys Many access points between streets and roads parallel to the shoreline and the beach itself are by narrow lanes between private properties. Likewise, there are narrow grassy alleys between houses in Siasconset and similar ways between Baxter Road and the public footpath between Sankaty Head and Siasconset. The assumption has been that these are public ways, and the blockage of any such way is greeted with vociferous protest. In some cases, protest has been well founded, but in a relatively large number of cases, it has been ruled that these are not public ways but abutters’ ways. This means that the property owner on each side owns to the middle of the way. If adjacent neighbors decide to close the abutters’ way entirely, they may do so. Over years this has led to the loss of many ways traditionally used by the public to reach the shore or the footpath or to take a shortcut between streets. The reason that so many access points turn out to be private abutters’ ways rather than public ways is that the Town of Nantucket never took the ways as public ways or, in a dismayingly large number of cases, the town initiated the process of taking them but failed to carry out all the steps mandated by the Commonwealth of Massachusetts, specifically the acceptance of the ways at Town Meeting and the recording of them thereafter. When the town became belatedly aware of this failure with respect to early 20th-century takings of ways, action was undertaken to rectify the situation, but abutters had closed a significant number of ways in the meantime. ‘Sconset footpath Nantucket historian Edouard A. Stackpole wrote in 1973, “Undoubtedly, the most unusual feature of the path is that it is public (being owned by the town) and yet that it 15 leads directly across the front yards of all those owning property fronting on the bluff.” Here is how that came about. In 1873 William Flagg, a summer resident of Nantucket, obtained title to a large section of land between Siasconset Village and Sankaty Head in the section traditionally known as Plainfield. The title as originally obtained by Flagg gave him ownership to the foot of the bluff, but the Proprietors of Nantucket’s Common and Undivided Land reserved for themselves the beach from the foot of the bluff to the high water line. At the same time or soon after, Flagg acquired more land and made plans for subdivision into house lots. In this subdivision, he ran the easterly boundary of the house lots at what “he no doubt considered a safe distance from the edge of the bluff.” Ten years later Flagg petitioned the Proprietors for another set-off of “all the common land lying eastward in the Plainfield division and by the Atlantic House. Also, all lying between these lines and the lines of Squam division, except the Pond [i.e., Sesachacha Pond].” On December 8, 1883 the Proprietors agreed to this set-off (valued at ten sheep commons), requiring that Flagg “secure to said Proprietors a roadway two rods wide, over and across those portions of land by him reserved.” The quitclaim deed specified that the right of way two rods wide was forever secured to the Proprietors “notwithstanding any changes that may hereafter take place on the beach affecting the position of said line of high water mark.” Clearly this was a right of way on the beach at the base of the bluff and not the footpath in question. Nonetheless, when Flagg sold some of his northerly lots in 1892, it was recorded that the easterly boundary of these lots was “a foot path along the top of the bank.” In August 1892 Flagg petitioned the Proprietors to accept a tract of land “for residents and visitors of Nantucket to be used as a foot-path or foot promenade.” What is more, 16 the land conveyed to the Proprietors was “the strip of land covering the path and running to the foot of the bluff” where it joined with the land at the foot of the bluff that the Proprietors had reserved for themselves in the 1883 quitclaim. The Proprietors voted to accept the footpath on September 3, and Flagg conveyed the land to the Proprietors on September 21, 1892. In the meantime Flagg had sold a block of three lots stipulating that the eastern boundary was the footpath along the bank. The following year the estate of the buyer petitioned the Land Court for title to land easterly all the way to the ocean. The Land Court judge ruled against this petition in light of the September 21, 1892 conveyance of the footpath to the Proprietors. Nonetheless the estate landscaped across the path and erected a number of buildings on the beach below the bank. In 1924 the Town of Nantucket voted to seek title to the footpath through the Land Court, and the suggestion was made that the Proprietors resign as trustee of the strip containing the footpath and that the Town of Nantucket be appointed as trustee in their place. On May 1, 1925 the Proprietors voted to give the Town of Nantucket “a deed of release to not only the Path, but to all the land between the top and bottom of the bluff along the Path.” This brought the town into conflict with the above-mentioned estate, a conflict that the estate lost. On December 1, 1929 the Land Court legally established the footpath as belonging to the Town of Nantucket. Since then there have been numerous complaints about blockage of access to the footpath from points along Baxter Road. Owners have put in driveways and playground equipment and landscaped across what have long been believed to be public rights of way. A 1991 investigation on behalf of the Nantucket Board of Selectmen led to the opinion that “Although the public does indeed have right of passage over the Sankaty Footpath, there do not appear to be recorded easements granting the public clear access to the footpath over the small lanes or ‘abutters’ ways’ along the path. Neighbors have used 17 these ways over the years, but the present abutters to at least two of them have effectively prevented this continued access by adding rose bushes or a driveway. It is unclear if the original subdivision plan prepared by William Flagg in 1892 granted any access rights to owners of parcels in this area other than the immediate abutters to the ways. Consequently, it appears that short of taking some or all of the paths, neither the County nor the Town can ask the abutters to refrain from preventing use of the abutters’ ways as long as the public is able to continue to use the Sankaty Footpath itself.” 1975 Road takings An annotated 1952 document lists 41 “Public Right of Ways to Harbors and Shores” with indication of which had been properly taken and accepted. A dozen more at various steps in the taking process were subsequently penciled in. A note at the end of the document recommends that “all accepted right of ways to harbors and shores, be permanently marked as such, by cement post with brass plate embedded and inscribed; this would be of great benefit to public and could be designated on future information maps.” Twenty years later the Town of Nantucket engaged Dr. Mary Brown to prepare a list of all Nantucket streets and roads. The product of this project is a 34-page document named “Corrected list as of 11-7-1973.” The data in the document are arranged in fourteen columns. The first column contains streets listed 1-625, with an additional page listing York Street as number 262 (although number 262 in the main list is India Street). The rest of the columns provide information such as whether the street was legally taken; the year of the taking; whether a 1799 street, a private way, or an abutters’ way; information about registration and recording; the number of the plan on which the way appears; and notes about special circumstances. These two documents provide the background information for the taking of 62 “Roads and/or sections of Roads Taken under Chapter 44 of the Acts of 1975 and in Accordance with the Vote under Article 17 of the Town of Nantucket Annual Town Meeting, April, 1975.” There is a document listing these roads on file at the Town Building (records of Nantucket Deed Book vol. 68, pages 516-518 Props. to Flagg Nantucket, Dec. 8, 1883 Pursuant to a vote of the Proprietors of the Common and Undivided Land of the Island of Nantucket, passed Sept. 26, 1883, we have this day set off to William J. Flagg of the city and state of New York all the common land lying Eastward of the east line of Plainfield Division, and of the extension of said line Northward and between the extension, Eastward, of the South line of said division of Plainfield on the South, and the South line of the Squam Division on the North, with the understanding that said Flagg is to reconvey a certain portion thereof to said Proprietors, to be held in trust by them and also to secure to said Proprietors a roadway two rods wide over and across those portions of said land by him reserved as set forth in the draft of his quitclaim deed to said Proprietors to be herewith recorded, and said Flagg is also to account to said Proprietors with an equivalent of ten sheet commons of all the common and undivided land of the island of Nantucket. William C. Folger ) Andrew M. Myrick ) Lot Layers Allen Coffin ) See Prop’s Records, Lib. 6, p. 12 Recorded December 20, 1993, 11h. 30 min. a.m. Attest Andrew M. Myrick Flagg to Props. Know all men by these presents that I, William J. Flagg of the city, county and state of New York in consideration of One Dollar paid by the Proprietors of the Common and Undivided land of the Island of Nantucket, the receipt whereof is hereby acknowledge, do hereby remise, release, and forever quit- claim unto the said Proprietors of the Common and Undivided Land of the Nantucket, all that tract of land lying near the Eastern shore of the Island of Nantucket, near the division known as Plainfield, Sesacacha, and Squam as the same was set off to me by said Proprietors on the eighth day of December 1883, as will appear by reference to the Records of said Proprietors, see Book No. 6, page 12, also Records of Deeds for Nantucket County, Book No. 68, page 516, excepting the following described portion of said land, viz.: First, all that tract lying Eastward of the land conveyed to me and Eliza L. Flagg, my wife, by deed respectively of Fred’k M. Pitman, see Records aforesaid between the extension of the Northern boundary line of said land, purchased of Pitman, and the Southern boundary line of said land, purchased by Wood. Second, all that tract of land lying Eastward of and between the extensions of the Northern and Southern boundary lines, of a certain other tract of land conveyed by me and Eliza L. Flagg to Wm. Ballantyne, by deed recorded with Records aforesaid, Book 68, p 317. The lands hereby released to be forever held by the said Proprietors and their successors for the purpose of roadways or other public uses and purposes and not to be granted or set off by them in severalty to any individual person or persons. And I also hereby convey to the said Prop’s a right of way, two rods wide, along the shore above the line of high-water mark, over and across the tracts of land, hereinabove excepted and reserved, said right of way being forever secured to said Prop’s notwithstanding any changes that may hereafter take place in the beach, affecting the position of said line of high water mark. To have and to hold the granted premises with all the privileges and appurtenances thereto belonging to the said Proprietors of the Common, Undivided Lands and their successors and assigns, to their own use and, behoof forever, but in trust nevertheless for the uses and purposes herein set forth. And, I also do hereby for myself and my heirs, executors, and administrators covenant with the said grantees, a covenant with said grantees and their successors and assigns that the granted premises are free from all incubrances, made or suffered by me, and that I will and my heirs, executors, and administrators shall warrant and defend the same to the said grantees and their successors and assigns forever against the lawful claims and demands of all persons claiming through and under me but against none other. And for the consideration aforesaid I, Eliza L. Flagg, wife of said William, do hereby release unto the grantees and their successors and assigns all right of or to both dower and homestead in the granted premises. In witness whereof we the said William J. Flagg and Eliza L. Flagg hereunto set our hands and seals this 15th day of December in the year one thousand eight hundred and eighty-three. Signed and sealed in presence of Otto Bauman as to signature of Wm. J. Flagg ) William J. Flagg, seal Matilda Neuman, as to both ) Eliza L. Flagg, seal State of New York City and County of New York. On the 15th day of December, 1883. There personally appeared the above named William J. Flagg, and acknowledged the foregoing instrument to be her free act and deed before me, Otto Baumann, Notary Public N.Y Co. (217) (S.L.) Recorded December 20, 1993, 11h 30 min. a.m. Attest Andrew M. Myrick, Reg. WEGNER, JUDITH 3/28/2018 For Educational Use Only Inhabitants of Nantucket v. Mitchell, 271 Mass. 62 (1930) 170 N.E. 807 © 2018 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by La Chance v. Rubashe, Mass., December 1, 1938 271 Mass. 62 Supreme Judicial Court of Massachusetts, Bristol. INHABITANTS OF NANTUCKET v. MITCHELL. March 25, 1930. Synopsis Exceptions from Land Court, Bristol County; C. T. Davis, Judge. Petition by the Inhabitants of Nantucket to register title to a strip of land, opposed by Mary K. Mitchell. Decree for petitioner registering title, and respondent brings exceptions. Exceptions overruled. Attorneys and Law Firms *64 **807 J. M. Swift, of Boston, and A. P. Curran, of Jamaica Plain, for petitioner. N. B. Vanderhoof, of Boston, for respondent. **808 Opinion RUGG, C. J. This is a petition to register title to a strip of land in that part of the petitioning town known as Sciasconset. The petitioner claims title ultimately through one Flagg and immediately under deed from the proprietors of the common and undivided lands of the Island of Nantucket, hereafter called proprietors, subject to trusts therein declared. In 1873 Flagg owned a large tract of land including a part, if not the whole, of the locus. So far as concerns the present controversy, it was (as found by the trial judge) bounded easterly by a line substantially at the foot of a high bank or bluff, between which and the Atlantic Ocean at mean high water is an expanse of beach upland owned by the proprietors. Flagg had plans made dividing his tract into lots, the easterly line of which was at a reasonably safe distance westerly of the edge of the bluff. A foot path ran along the top of the bluff. By deed dated September 1, 1892, Flagg conveyed to Mrs. Mitchell, hereafter called the respondent, a tract composed of three of the most easterly tier of his lots bounded easterly by a foot path along the bank. By deed dated September 21, 1892, Flagg conveyed to the proprietors the tract of land (with exceptions not here material) lying between the easterly boundary lines of the most easterly tier of said lots, being in part the easterly boundary of the respondent’s tract, on the west, and the beach upland belonging to the proprietors, on the east, the strip so conveyed to be held by the proprietors in trust for the purpose of a way or foot path along the bank and for no other purposes, with authority to convey said tract to the petitioner for the same purposes. By instrument dated the following day, Flagg gave to the respondent a quitclaim deed of all his interest in the land lying eastward of and between the extension of the northern and southern lines of the tract theretofore conveyed by him to her with the *65 condition that all of the land lying between the east line of the tract previously conveyed to her and the edge of the bank be kept open for the purpose of a way or foot path along the bank, and reciting further: ‘This WEGNER, JUDITH 3/28/2018 For Educational Use Only Inhabitants of Nantucket v. Mitchell, 271 Mass. 62 (1930) 170 N.E. 807 © 2018 Thomson Reuters. No claim to original U.S. Government Works. 2 deed being subject to my deed of September 21, 1892, conveying the same premises to the Proprietors * * * in trust for uses and purposes therein specified.’ All these deeds were recorded in the order of their respective dates. The trial judge states: ‘Flagg conveyed many, if not all, of his front lots in a similar way. Just what interest he thought he had, or was conveying by the quitclaim deeds, does not appear. The respondent and other purchasers obviously thought they were acquiring some interest in the bank or bluff, subject to the foot path. The respondent Mitchell in 1922 filed a petition for registration of title to her land, claiming easterly to the ocean. In that case, as in other cases out of this same tract, I ruled that title to the strip between the easterly line of the tier of lots on the west, and the line at the foot of the bank on the east, passed to the Proprietors under said deed of September 21st, and not to the respondent under her deed of September 22nd.’ Other relevant facts found by the trial judge are these: ‘The respondent built a house on her lots to the west of the foot path, and in 1893 secured the edge of the bank from crumbling by a sort of bulkhead of boards, filled in between her house and the edge of the bank with soil, and made the space into a lawn, leaving a well defined foot path over it as a part of the continuous foot path from Sankaty Head Lighthouse southerly along the top of the bluff; planted rose bushes and broom on the face of the bluff, both for ornamentation and to secure it from washing; built a flight of about one hundred steps down the bluff from in front of her house; built two bath-houses, each containing three compartments, at the foot of the bluff, but to the west of the boundary line of the strip conveyed to the Proprietors in 1892; and a few years later erected on said strip at the foot of the bluff a small engine house used in connection with a gas plant for her house. For a period of over twenty years she has cut the lawn, cared for the bushes, replaced the soil *66 and maintained said structures on said strip. She has occupied her property each year from June to October. She claims title acquired by adverse possession to the portion of the strip conveyed to the Town in 1925 between her northerly and southerly boundary lines extended. I find that she has acted as above stated under a claim of right, and she supposed, until the decision in her registration case in 1926, that she owned some interest in said strip. The Sankaty Path is in constant use, and is a matter of importance to all lot owners along the bluff. It is a well defined path, but, owing to inroads, by the sea, needs care and repair. It is in good condition in front of the respondent’s house, and her lawn has in no way interfered with the path. There has been nothing in her care of the bluff that has been in any way adverse to the rights of the Proprietors, or of the Town as their successor in title, nor in any of the said acts of the respondent has there been anything adverse to the purpose of the trust under which title to the strip of land has been held, namely, the maintenance of the path. That portions of it have been used by the respondent for access to the beach and for bathing purposes, or for the housing of her gas engine for lighting her summer residence, has not been inconsistent with a reasonable inference of permission on the part of the Proprietors. The Proprietors are the original body of land owners, holding as tenants in common and incorporated for purposes of management and division of the common lands. They are one of the last remaining bodies of Proprietors **809 in the Commonwealth, and have little land remaining undivided. They peculiarly represent the common interests of the land owners as a collective body. They have no particular means, however, of protecting or carrying out the trust established by the Flagg deed of September 21st, and that deed expressly provided for their transferring the title, together with the trust as to this strip of bluff on which is located the path, to the town. That they should permit an owner of lots abutting on the path to adorn and care for the adjoining strip of bluff and beach upland at its foot, and to use it in any way beneficial to the house lots and in no way detrimental to the Proprietors for *67 the maintenance of the path, seems to me reasonable and natural. There is a decided difference between a user of open tracts of sea-shore property and similar user in a settled community.’ Apparently as a finding of fact commingled with views of the law he further stated: ‘Title acquired by adverse possession rests practically on estoppel as a matter of public policy. When an owner has permitted himself to be ousted and another to be in open, notorious and exclusive occupation of his land under a claim of right for a period of twenty years, he has lost the right to assert his title. He does not lose it by a reasonable allowance of the use of a portion thereof by a neighbor, beneficial to the neighbor and on the whole to himself, which does not in any way interfere with his own control of the property for the purposes for which he himself uses it. In such a case permission is to be inferred; and the more so where title to the land is in a public body like the Proprietors.’ The trial judge granted the request of the respondent for a ruling to the effect that she entered upon the disputed premises under claim of title based on her deed of September 22, 1892, from Flagg, and thereafter her occupation and possession were under color of title, denied certain other requests for rulings, found that she had not acquired title by adverse possession against the petitioner and its predecessor in title, and ordered a decree for the petitioner. Exceptions by the respondent bring the case here. WEGNER, JUDITH 3/28/2018 For Educational Use Only Inhabitants of Nantucket v. Mitchell, 271 Mass. 62 (1930) 170 N.E. 807 © 2018 Thomson Reuters. No claim to original U.S. Government Works. 3 The respondent states expressly that she does not rely on the deed from Flagg dated September 22, 1892, except so far as it may give color of title to her entry upon the disputed premises. She contends that she has acquired title to the disputed premises by adverse possession subject to the rights of the public to use the foot path. [1] [2] [3] [4] [5] [6] [7] [8] The judge before rendering his decision took a view of the premises. He also knew the situation of the property of the respondent and surrounding properties and the use by the public and by adjacent owners of the foot path from prior proceedings before him, and it was agreed that he might use this knowledge in deciding the present case. He also made his findings of fact adverse to the respondent upon *68 testimony and evidence which is not reported. The general order for registration of title of the petitioner imports a finding of every primary and subsidiary fact necessary to that conclusion. Adams v. Dick, 226 Mass. 46, 52, 115 N. E. 227; Prentiss v. Gloucester, 236 Mass. 36, 52, 127 N. E. 796; Gottsman v. Jeffrey-Nichols Co. (Mass.) 167 N. E. 229. Confessedly the record title to the locus is in the petitioner. The respondent disputes the validity of that title by the contention that she has acquired a superior title by adverse possession. That is an affirmative proposition. The burden of proof rested upon her. Title of that nature can be sustained only by proof of open, adverse, exclusive, continuous and uninterrupted possession under claim of title for the requisite period of twenty years. Proprietors of Kennebeck Purchase v. Call, 1 Mass. 483, 488; McDonough v. Everett, 237 Mass. 378, 129 N. E. 681. Whether there is proof of these matters is a pure question of fact. Findings of fact by the trial judge upon unreported evidence and a view cannot be reversed, but must be accepted as final. Curtis v. Brown, 219 Mass. 157, 159, 106 N. E. 569; Bessey v. Ollman, 242 Mass. 89, 91, 136 N. E. 176; Webber v. Cox, 256 Mass. 595, 597, 153 N. E. 457; Erickson v. Ames, 264 Mass. 436, 441, 162 N. E. 70. The circumstance that the respondent entered upon the disputed parcel under color of title by virtue of the deed to her from Flagg does not affect in any degree the rule of law that title by adverse possession is wholly a question of fact. Entry made under color of title might be evidence or even proof as to the extent of possession if and when the requisite possession is shown. Actual possession of a part of a large tract, when proved, is not limited to the part so possessed but gives constructive possession of the entire parcel when the entry was made under color of title. Dow v. Dow, 243 Mass. 587, 590, 137 N. E. 746. Ordinarily and in the case at bar that factor has no further effect. That deed from Flagg to the respondent is of no avail in proof of the character or of the fact of possession by her, because it bore on its face as a part of the ‘interest’ attempted to be released and quitclaimed the assertion that it was ‘subject’ to the grantor’s earlier deed to the proprietors. At most that deed was a piece of evidence to be weighed by the trial judge together with all the *69 other evidence in deciding the vital issue between the parties. It was different from a merely void deed apparently good on its face. It declared its own limitations in express terms. There is nothing in decisions like Higbee v. Rice, 5 Mass. 344, 352, 4 Am. Dec. 63; Parker v. Proprietors of Locks and Canals on Merrimack River, 3 Metc. 91, 100, 101, 37 Am. Dec. 121; **810 Warren v. Bowdran, 156 Mass. 280, 282, 31 N. E. 300, which aid the respondent on the facts here disclosed. The point open to the respondent for argument is that the findings of special facts made by the trial judge are of such nature, or so contradictory and incompatible, that as matter of law the order for the decree in favor of the petitioner is not warranted. [9] [10] When the respondent entered upon the disputed tract under the Flagg deed, by its terms she had express notice of the deed from Flagg to the proprietors and of the trust thereby created. That trust was ‘for the purpose of a way or foot path along the bank.’ There is no finding that any act done by the respondent was incompatible with that trust. No act of the respondent in pursuance of her alleged possession was inconsistent with the trust for the maintenance of the way or foot path. The construction by the respondent of the bulkhead, and the other means taken to support the bluff, were not adverse to the trust but were in truth in aid of it although not designed to that end. The building of the steps and the erection of the two small buildings did not in any degree interfere with the title of the proprietors or with the public trust for which they held title. The inference of permission by the proprietors for these incidental and subsidiary purposes cannot as matter of law be pronounced impossible or inconsistent with the acts done by the respondent. Notwithstanding the acts of the respondent, given their collective weight, the trust was at all times in force and the proprietors were under no obligation at their peril to put a stop to comparatively trifling trespasses on the land in no way impairing the trust estate or preventing them from doing whatever might be required with the lapse of time for the active support of the purposes of the trust. The facts taken together do not require the further finding of actual disseizin or ouster of *70 the proprietors as the owners of the record title, a finding essential to the establishment of title by adverse possession. Boston Mill Corp. v. Bulfinch, 6 Mass. 229, 233, 4 Am. Dec. 120; Melvin v. Proprietors of Locks and Canals on Merrimack River, 5 Metc. 15, 26, 32, 38 Am. Dec. 384; Barker v. Kennard, 226 Mass. 586, 589, 590, 116 N. E. 391; Dead River Fishing & Hunting Club v. Stovall, 147 Miss. 385, 399, 113 WEGNER, JUDITH 3/28/2018 For Educational Use Only Inhabitants of Nantucket v. Mitchell, 271 Mass. 62 (1930) 170 N.E. 807 © 2018 Thomson Reuters. No claim to original U.S. Government Works. 4 So. 336. The inference of permission by the proprietors for all the things done by the respondent upon the disputed premises was justified. Arnold v. Stevens, 24 Pick. 106, 110, 111, 35 Am. Dec. 305. The nature of the occupation by the respondent, as found by the trial judge, was consistent with the condition in her deed that her title was subject to Flagg’s prior deed of the same premises to the proprietors upon the trusts there declared. Hence the presumption is that it was under and in pursuance of that condition and not adverse to it, notwithstanding that her entry was under color of title. Atkins v. Bordman, 20 Pick. 291, 302. The findings of facts made are not inharmonious one with another, and they are consonant with the ruling to the effect that the respondent entered under claim of title and that thereafter her occupation and possession, such as shown by the findings, were under color of title. It is not necessary to review one by one the requests for rulings, which were denied. It is enough to say that no error of law is disclosed, either in the facts found or in the refusals in view of those facts to grant requested rulings. Exceptions overruled. All Citations 271 Mass. 62, 170 N.E. 807 End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. 30 GEOLOGY OF NANTUCKET. [BULL. 53. So far as I am informed this is perhaps the clearest evidence which has been obtained showing recent subsidence aloug this partgf the New England coast. As to the date of the subsidence no evidence seems obtainable from this locality. The peaty matter has a very fresh and unconsolidated aspect. The roots of the rushes which it con- tains are singularly recent-looking; they are little decayed, and indeed seem to retain some part of their color and odor. No other of the depressed fresh-water peats of this island exhibit their beds in place even at the lowest tides. They appear elsewhere than on the north shore to be covered by the deposits of sand, or are perhaps too deeply submerged to be exposed at the lowest stages of the tides. Still they contain fragments of roots of trees of considerable size, which may belong to some of the many species of shrubby plants which are tolerant of fresh water. The evidence of marine deposits above the present level of the sea is, as has been long known, abundant on Nantucket. These deposits, so far as exhibited by natural sections, are limited to the east side of the island. This apparent limitation is probably due to the absence of natural sections elsewhere than on that part of the shore, for it is only on this eastern face of the island that we have any very extensive sec- tions which clearly expose the stratified sands to a considerable depth. I am informed that at various points in and about Nantucket village deposits of shells have been encountered in digging the shallow wells, which never descend below high-tide mark. I have been unable to ob- tain any specimens of these fossils; but, as their presence is attested by Prof. Henry Mitchell, there can be no doubt that sands and gravels of the last stage of the Glacial Period containing scattered patches of fossiliferous beds, probably of the same age as those exposed at Sankaty Head, exist in other parts of the island. FOSSILIFEROUS DEPOSITS OF SANKATY HEAD. These fossiliferous beds of Sankaty Head appear in a cliff which has a height of about eighty feet above the high-tide mark. This cliff is cut through a portion of the kame gravels, which form a sort of elevated rolling terrace near the southern border of the true frontal moraine. The top of this terrace has a broadly rolling surface, and may be re- garded as forming the zone of passage from the frontal moraine to the plain which lies on the southern part of the island. (See PL VII.) The section at Saukaty Head is at present almost entirely hidden by the thick growth of grass and other plants, which have found a hold upon the surface since the sea has been fended from it by the consid- erable northward extension of the Siasconset apron-like beach. This is to be regretted, for the reason that it is from a geological point of view by far the most interesting section of the island and one of the most important found on the New England coast. It has been the ob- (628) . U. S. GEOLOGICAL SURVEY BULLETIN NO. 53 PL. VII SANKATY HEAD, LOOKING NORTH FROM A POINT 150 YARDS SOUTH OF LIGHTHOUSE. 8HALEK.] FOSSILIFEROUS DEPOSITS OF 8ANKATY HEAD. 31 ject of considerable study by several distinguished naturalists. In 1849 Messrs. E. Desor and Edward C. Cabot published in the proceedings of the Geological Society of London a short paper giving an account of this locality. At that time and for many years afterwards the contin- ued inroads of the sea preserved a fresh face on the escarpment.1 The section as given by Messrs. Desor and Cabot is shown in Fig. 10. It differs from any I have been able to obtain in the present condi- tion of the escarpment in certain important parts. It will be observed that at the base of the section the above-named authors indicate a bed of brown clay of unknown thickness which rises for 20 feet above the sea level. Above that point to the height of 33 feet they place suc- cessive layers of sand, gravel, and clay containing fossils, still higher 'in the section for a distance of 52 feet successive layers of sand and gravel without fossils, then a thin layer of peat one foot in thickness capped by six feet of dune sands, the whole forming an escarpment which rises 92 feet above the beach. The total height of the cliff as given by them is at least 15 feet greater than its actual altitude. It will be noticed also that the lower stratum of brown clay, which according to this section extends to a height of 20 feet above the sea level, is shown to be uuconformably related to the gravelly layers which appear above it» It was the opinion of these observers that this lower clay belonged to the series ot deposits which appear at Gay Head, and on this hy- pothesis they construct a highly ideal section, shown in Fig. 2 of their report, in which the Gay Head clays appear in the form of a syncline, the trough of which includes all the area between Sankaty Head and the western extremity of Martha's Vineyard. There is at present no trace of this brown clay at any part of this escarpment, nor was the thin layer one foot in thickness of tough clay, occurring according to their section at the height of 26 feet above the water line, found in my examinations. (See Fig. 10.) The exhibition of this lower clay at the time Messrs. Desor and Cabot made their examination must have been clear, and the unconformity which they note was probably evident, as will be seen from the follow- ing extract from their report: The strata thus enumerated seem at first horizontal, but in digging along their edges we soon ascertained that they all dipped to the west, their inclination varying from fifteen to five degrees, the upper beds being generally less inclined than the lower ones. The inferior clay stratum, however, was found to differ considerably from the others, its dip being nearly thirty degrees to the southwest, and in some places even as much as forty degrees. These circumstances induced us to examine this lower clay stratum more carefully. Having made ont a spot where the overlying gravel bed was seen in immediate con- tact with the top of the clay, wo could distinctly trace its uncouformable cleposi- 1 On the Tertiary and more recent deposits in the Island of Nautucket, Messrs. E. Desor and Edward 3. Cabot, in a letter to Sir Charles Lyell, president of the Geolog- ical Society: Quart. Jour. Geol. Soc. London, vol. 5, 1849 (proceedings), p. 340. , (629) 32 GEOLOGY OP NANTUCKET.[BULL. 53. tion, the gravel being seen dying out towards the more inclined clay stratum, as shown in the above section taken on the side of a gully in the cliffs. * * * A 6 feet, o. Dune sand.137- 5 10 2 3 11 4220 6.c. d.e.f.q. h.i.7.ii. Peat.Sand with an occasional stra-tum of coarse gravel- Ferruginous gravel.Sand.Worn shells.Ser'pula.Oysters.Tough clay.Homogeneous white sand.Gravel.Brown clay. . Fig. 10. Section at Sankaty Head. considerable change of level must have taken place between the> deposition of the clay and that of the gravel. * This statement compels us to believe that the lower clay was exposed to view at the time when McoSis. Desor .and Cabot made their exami- nation. This was probably in the year 1847. It will be noticed, as is indicated in the section, that a slight recession of the cliff in the direc- tion in which, it was then rapidly wearing would carry the shore-line across the exposure of the brown clay, and that a wearing back of 20 feet would in good part, if not entirely, destroy the exposure. It is not improbable that this recession has taken place and that this bed lias disappeared from view. This hypothesis is borne out by the results of a study of this section made in 1874 by Mr. S. H. Scudder, which is contained in a memoir by Prof. A. E. Verrill, On the post-Pliocene fossils of Sankaty Head, Nantucket Island.1 At the time when Mr. Scudder made his observa- tions the clay described by Messrs. Desor and Cabot was still visible. As his observations differ in an important way from those made by the above-named gentlemen, I give his note in full : The sands and gravels forming the bluff at Sankaty Head, Nautncket, rest at base upon a thick bed of light-brown sandy clay of uncertain thickness, but extending upward to about 20 feet above the sea level. As the beds which rest upon it dip to the southwest, and as the anchor brings up clay from Sankaty Head eastward for half a mile, this clay bed is probably of great thickness. The brown clay is overlaid by 4 feet of gravel and coarse sand, the coarser parts mostly confined to three or four inches of the uppermost levels; the upper bed is more or less ferruginous, and hardens on exposure into a rather compact conglomerate. 1 Am. Jour. Sci., 3d series, vol. 10,1875, pp. 364-375. (G30) 8HALER.J FOSSILIFEROUS DEPOSITS OF SANKATY HEAD. 33 To this stratum must doubtless be referred a single specimen of a bivalve (proba- bly a mactra), with valves half open, picked up on the bluff, embedded in a gravel conglomerate, and like it strongly impregnated with iron. The gravel is followed by about four feet of sands, subdivisible into separate beds, viz: At base, an inch or two of a very fine loose white sand, followed by nearly two feet and a half of a lit- tle less fine, closely packed, white sand, with irregular ferruginous streaks through its mass; this is covered by 9 inches of a coarse beach sand, with a still coarser sand in pocket; and this again by 9 inches of a very fine white sand. Above this comes a foot of ferruginous sand closely packed with masses of tough blue clay, much exceed- ing the sand in bulk, and forming the floor of the fossiliferotis beds. These consist first, at base, of 22 inches of coarse sand, in which the oyster, qua- hog, and common clam are the prevailing forms, the first predominating to such a degree as to make the name of oyster-bed the most appropriate. This merges into a serpula-bed, about 28 inches in thickness, made up almost altogether of large masses of serpula packed in sand and almost wholly devoid of other fossils. The bed of worn shells superimposed on this is about 22 inches in thickness and closely resembles coquina, except in the entire want of adhesion between the fragments. This bed is followed by about 10 feet of fine, white, thinly bedded sand, and this by the stratified drift of the island, to a depth, as estimated by Desor and Cabot, of 42 feet. The foot of peat mentioned by them is wanting at this exact locality (though present a few hundred feet farther south), leaving the drift covered by five or six feet of dune-sand, more or less intermixed with loam below. On following the bed of broken shells along the face of the cliff it was found to thin out to about a foot in thickness 25 feet on either side of the most prominent point, where the section was made, and which has doubtless been longer protected than the other parts of the bluff by the former presence of a great mass of clay next the water's edge, called "Antony's Nose;" beyond these 25 feet the bed of broken shells becomes more or less obscured by an admixture of sand, gravel, and serpula, and is entirely lost at 40 feet distance on either side. The strata, from the lowermost clay to the bed of worn shells, all dip to the south- west. The uppermost beds incline along the face of the cliff three degrees to the south, while the inclination to the west (along the section dug out of the cliff) is eleven degrees, making a dip of nine degrees to the southwest. All the beds below this also incline eleven degrees to the west, but the inclination of their face to- ward the south increased gradually in passing downward until that of the upper edge of the lower clay reaches eleven degrees, making a southwesterly dip of this bed seventeen degrees to the southwest. There is no evidence of any thinning out of the gravel-bed, as stated by Desor and Cabot, nor of any uuconformability between this bed and the underlying clays; but, on the contrary, every appearance that the latter belong to the same continuous series as the former. It is worthy of note that the fossils of this locality lie above the clays instead of in the clays, as in most of the New England localities of post-Pliocene marine shells. It will be clearly observed that Mr. Scudder seems to have seen the clay, or rather sandy clay, found by Messrs. Desor and Cabot, but he failed to find any evidence of unconforinability between this clay and the overlying fossiliferous sands. It is likely, however, that the aspect of the section had changed a good deal in the score of years which had intervened between these two observations. I think it probable that the observations made by the earlier geologists were good in the con- ditions of the cliff at the time when they were made. I am disposed to believe that this lower sandy clay is not related to the deposits at Gay Head, but that it represents the upper portion of Bull. 53 3 (631) 34 ' GEOLOGY OF NANTUCKET. [BULL. 53. the lower till at Nantucket, which, as is shown in some parts of Squam Head, in the neighborhood of Polpis Harbor, on the north shore, and in the village of Nantucket, often contains very few pebbles, and presents in general the appearance indicated by the terms applied to it by the above-named observers. It is possible, however, that although not synchronous with the Gay Head deposits, it may be of the same age as the clays which occur on the southern shore of Chilmark.1 The most interesting portion of Professor Verrill's important memoir concerns the distribution of the fossil contents of this section. He divides this section into an upper and lower series of strata, between which there are considerable differences as to the character of their fossil contents. The exact line which separates these two portions of the section is not indicated save in the description given by Mr. Scud- der. Inasmuch as this list of fossils is of great value to those who may be engaged in the study of quaternary fossils we give it in full. List of species from the lower shell-led. MOLLUSCA. Tritia trivittata Adams. Common. ?. Florida to Gulf of St. Lawrence; low water to 40 fathoms. Fossil in the post-Plio- cene of Point Shirley, Gardiner I., Virginia, and southward; in the Miocene of Mary- land, South Carolina; etc. Ilyanassa obsoleta Stimpson. Common. Florida and Gulf of Mexico to southern Maine; local in the southern part of the Gulf of St. Lawrence; littoral to 2 fathoms. Fossil in the post-Pliocene of Point. Shirley, Virginia, South Carolina, etc. Urosalpinx cinerea Stimpson. Common. Tampa Bay and eastern Florida to Massachusetts Bay and local farther north to Gulf of St. Lawrence; littoral to 10 fathoms. Post-Pliocene fossil at Point Shirley,, Gardiner I., Virginia, and southward; in the Miocene of Maryland. Eupleura caudata Adams. One fine specimen. Gulf of Mexico and eastern Florida to Cape Cod; low water to 8 fathoms. In the post-Pliocene from Virginia to Florida; Miocene of Maryland and South Carolina. Astyris lunata Dall. One specimen. Alabama and Florida to Massachusetts Bay; low water to 14 fathoms. Fossil in the post-Pliocene of Gardiner I. and South Carolina. Cerithiopsis Greeni Verrill. Four specimens. South Carolina to Massachusetts Bay ; 2 to 10 fathoms. Crepidula fornicata Lamarck. Abundant. Gulf of Mexico to southern Maine, and local in the southern part of the Gulf of St. Lawrence; low water to 15 fathoms. Post-Pliocene fossil at Gardiner I., South Carolina, etc.; and Miocene in Maryland and South Carolina. CrepidulaplanaSay. Common. Distribution same as the preceding, from which, however, it is very distinct. Crepidula convexa Say. Not common. Distribution like the two preceding, from both of which it is perfectly distinct (al- though confounded with C. fornicata by Tryon and others). Fossil in the post-Pliocene of Virginia and South Carolina. Odoslomia trifida Gould. Common. New Jersey to Massachusetts Bay : low water to 5 fathoms. 1 Geology of Martha's Vineyard : Seventh Ann. Kept. U. S. Geol. Survey. (632) SHALBB.] FOSSILIFEKOUS DEPOSITS OF SANKATY HEAD. 35 Odostomia impressa Stimpsou. Common. South Carolina to Vineyard Sound ; low water to 5 fathoms. Turlonilla interrupta Adams. Several specimens. South Carolina to Cape Cod; local farther north to the southern part of the Gulf of St. Lawrence, near Prince Edward Island; low water to 15 fathoms. Post-Plio- cene fossil at Gardiner I. and in South Carolina. Saxticava arctica Deshayes. Rare and small. Arctic Ocean to Georgia; local and rare south of Long Island; low water to 50 fathoms. Fossil in the post-Pliocene of Maine-and everywhere northward. Mya arenaria Linne". Abundant. Arctic Ocean (lat. 78° N.) to South Carolina; low water to 40 fathoms. Post-Plio- cene fossil from South Caroliua and Virginia to Greenland and northern Europe. Cortula contracta Say. One valve. Florida to Cape Cod. Ensatella Americana Verrill. Common. Labrador to Florida; low water to 25 fathoms. Fossil in the post-Pliocene of Port- laud, Me., Point Shirley, Gardiner I.,Virginia, and South Carolina ; Miocene of Mary- laud, etc. Angulus tener Adams. Several specimens. Florida to Gulf of St. Lawrence; low water to 12 fathoms. Cumingia tellinoides Conrad. Common. Florida to Cape Cod; 3 to 12 fathoms.. In the post-Pliocene and Miocene of South Carolina, etc. Petricola pholadiformis Lamarck. Kare. Gulf of Mexico to Massachusetts Bay; local in Gas co Bay and southern part of the Gulf of St. Lawrence; low water to 4 fathoms. In the post-Pliocene and Pliocene from Florida to Virginia. Venus mercenaria Liune".' The variety abundant; a nearly typical form not un- common. Florida to Massachusetts Bay; local on the southwestern coast of Maine and south- ern shores of the Gulf of St. Lawrence and Bay of Chaleur ; low water to 8 fathoms. In the post-Pliocene of Point Shirley, Gardiner I., Virginia., Florida; Miocene from Maryland to South Carolina. V. mercenaria, var. antiqua Verrill. By this name I propose to designate the unusually massive and strongly sculptured variety to which most of the fossil shells belong, and which has been discussed on a previous page. The shell is rather obtusely rounded posteriorly, and is thickly covered with prom- inent concentric lamelliform ridges, which mostly extend entirely across the shell, but are often reflexed, appressed, and more or less confluent over the middle region, where the ordinary variety is nearly smooth (except when young). The violet color can still be traced in some specimens entirely around the inner marginj as in many recent Nantucket examples. Tottenia gemma Perkins. Few specimens obtained. South Carolina to Labrador; low water to 4 fathoms. Gouldia mactracea Gould. One specimen. Florida to Cape Cod ; 3 to 15 fathoms. Scapliarca transversa Adams. Very abundant and large. Florida to Cape Cod; low water to 15 fathoms. In the post-Pliocene of Cape Cod, Gardiner I., Virginia, South Carolina; Miocene of Virginia and North Carolina. Mytilus ed'iilis Linne". Common. Circumpolar; Arctic Ocean to North Carolina; littoral to 50 fathoms. In the post- Pliocene from Florida to Greenland and northern Europe. Modiola liamatus Verrill. Common. Gulf of Mexico to Long Island Sound and Narragansett Bay; littoral. Crenella gldndula Adams. Few specimens obtained. (633) 36 GEOLOGY OF NANTUCKET. [BULL.53. Labrador to Long Island; 5 to 60 fathoms. In the post-Pliocene of Montreal. Anomia glalra Verrill. Florida to Cape Cod; and locally farther north to Nova Scotia; littoral to 20 fath- oms. In the post-Pliocene and Pliocene of South Carolina. Ostrea Virginiana Lister. Abundant and well-grown. Gulf of Mexico to Cape Cod, and locally farther north, at Damariscotta, Me., and in the southern part of the Gulf of St. Lawrence; low water to 5 fathoms. In the post-Pliocene of Point Shirley, Gardiner I., South Carolina, etc. Both the short, rounded specimens and the much-elongated and narrow forms occur, as well as all the intermediate states, just as in many modern oyster-beds, showing that in post- Pliocene times the same kind of individual variations prevailed that have perplexed many modern systematists, but they have not yet become specific, nor even definite .varietal characters. BRYOZOA. HippothoavariaUlisV. (Escharella variaUlis Verrill, in Report on Invert.) Common on Serpula, etc. Florida to Massachusetts Bay ; low water to 20 fathoms. ' Biflustra tennis V. (Membranipora tennis (Desor); Verrill, in Report on Invert.) Common on shells. Delaware to Massachusetts Bay; low water to 15 fathoms. Hembranlpora catenularia Smitt. Common on shells; Arctic Ocean to Long Island Sound; low water to 50 fathoms. Northern Europe. CRUSTACEA; ANNELIDA; PORIFERA. Panopeus sp. Several claws were found. Eupayurus pollicaris Stimpson. A claw, probably from this bed, is recorded by Desor. Florida to Massachusetts; 2 to 15 fathoms. Balanus eburneus Gould. Common. "West Indies to Massachusetts Bay ; littoral to 3 fathoms. .Balanm crenatus Bruguie're. Common. West Indies to the Arctic Ocean; 3 to 15 fathoms. JSerpula dianthus Verrill. Very abundant. North Carolina to Cape Cod; low water to 15 fathoms. Cliona siilplmrea Verrill. The excavations are abundant in oyster-shells. Florida to Massachusetts Bay; 1 to 15 fathoms. List of species, found only in the upper shell-bed.1 MOLLUSCA. Buccinum undatum Liune". Common. Arctic Ocean to New Jersey ; northern coasts of Europe; low water to 100 fathoms. In the post-Pliocene, Maine to Labrador and northern Europe. Neptunea curta Verrill. Several specimens ; one of large size. Labrador to Massachusetts Bay, and in deep water farther south to Long Island. Lunatia heros Adams. Common, but badly broken. Georgia to Gulf of St. Lawrence ; low water to 40 fathoms. Post-Pliocene, Canada, South Carolina; Pliocene, South Carolina ; Miocene, Maryland to South Carolina. L. heros, var. triseriata. One specimen occurred. Neverita duplicata Stimpson. One broken specimen. 'A valve of Saxicava Norvegica was found after this list was put in type. Arctic Ocean to Massachusetts Bay. -Foot-note in Am. Jour. Sci. (634) BHALKB.I FOSSILIFEEOUS DEPOSITS OF SANKATY HEAD. 37 Yucatan to Massachusetts Bay; low water to 10 fathoms. Post-Pliocene, Virginia to Florida; Pliocene, South Carolina ; Miocene, Maryland to South Carolina. Crucibulum striatum Adams. One large specimen. New Jersey to Bay of Fundy ; low water to 40 fathoms. Scalaria Groenlandica Perry. Recorded by Desor, and doubtless from this bed. Arctic Ocean to Block Island; 10 to 109 fathoms; northern Europe. Fossil in post- Pliocene of northern Europe. Diodora Noachina Gray. Two good specimens. Arctic Ocean to Cape Cod; 8 to 70 fathoms. Northern Europe. Mya truncata Linne". Several large specimens. Arctic Ocean to Nantucket Shoals; low water to 10 fathoms. Northern Europe. In the post-Pliocene, Maine to Labrador. Thracia truncata Mighels and Adams. A few valves, special bed not indicated. Greenland to Long Island; 10 to 60 fathoms. Clidiophora trilineata Carpenter. One valve. Florida to Gulf of St. Lawrence; low water to 30 fathoms. Macoma fragilis Adams, var. fusca (Say). A few valves. Greenland to Georgia; littoral to 6 fathoms. In post-Pliocene from South Carolina to Greenland. Ceronia arctata Adams. Abundant and large. Gulf of St. Lawrence to Long Island. Mactra solidissima Chemnitz. Common, fragmentary. Florida to Labrador; low water to 12 fathoms. Post-Pliocene of Point Shirley, Mass. Cyclocardia lorealis Conrad. Common. Labrador to New Jersey; 3 to 80 fathoms. In the post-Pliocene of Gardiner I, Point Shirley, Labrador. Cyclocardia Novanglios Morse. A few valves. Gulf of St. Lawrence to Long Island Sound; 3 to 40 fathoms. Astarte undata Gould. One worn valve. Long Island Sound to Northumberland Straits in Gulf of St. Lawrence; low water to 100 fathoms. In the post-Pliocene of Gardiuer I. and Point Shirley. Astarte castanea Say. Abundant. New Jersey to Nova Scotia ; 5 to 40 fathoms. In the post-Pliocene at Point Shir- ley. Modiola modiolus Turton. Many worn valves. Circumpolar; Greenland to New Jersey; low water to 80 fathoms. In the post- Pliocene of Point Shirley, Canada, and northern Europe. Anomia aculeata Gmelin. Common. Arctic Ocean to Long Island Sound; low water to 100 fathoms. BP.YOZOA. Eschara verrucosa Esper. On shells of Ceronia. Arctic Ocean to Nantucket Shoals; 3 to 45 fathoms. Northern Europe. In the fossil examples the surface of the cells is covered with radiating ridges, often rising into an eminence in the middle, and is perforated with numerous pores in the grooves. Orifice somewhat semicircular, with a median avicularium in front of the proximal edge. ' Celleporaria incrassata Smitt ? . Several. Off Martha's Vineyard to Spitzbergen ; 10 to 160 fathoms. The specimens are thick, irregular masses. The apertures are small, rounded, oblong, constricted on the sides by small points projecting inward near the middle, and sometimes with a small prox- imal spine. (635) 38 GEOLOGY OF NANTUCKET.[BULL. 53. CRUSTACEA AND ECHIXODERMATA. Balanmportatus. Very abundant and large, but broken. Arctic Ocean to Long Island Sound ; 2 to 90 fathoms. Strongyloceytrotus Drobachiensis A. Agassiz. Spines only. Arctic Ocean to New Jersey; circumpolar; low water to 430 fathoms. Post-Plio- cene of Maine and northward. List of species found in both shell-beds. Species. TritiaTrivittata... ............................... Lower bed. Few.............................. ......do........................... ......do........................... Few .............................. ......do ........................... Few.............................. ......do........................... Upper bed. One. T7rtTir do. do. do. do. Few. ' do. Professor Verrill is of the opinion that The fossils of the lower bed indicate, for the water, a summer temperature of 70° to 75° Fahr., while those of the upper bed correspond to a temperature of 55° to 60°, thus showing plainly the influence of the Arctic current along the coast. All the species still inhabit the waters of southern New England, except Diodora Noachina, found in the upper bed, but this occurs in Massachusetts Bay, and will probably be found hereafter in the deeper channels among the Nantucket Shoals. All the species found in this section appeared to Professor Verrill identical with those now found along the shores of this region except the quahog (Venus mercenaria). In these shells he notes certain slight but apparently unimportant peculiarities. It does not seem possible to conclude from the difference in the character of the shells in the up- per and lower parts of the section that any general climatal change in the temperature either of water or of air took place at the time when these two portions of the section were formed. The result may have been due altogether to changes in the direction of the ocean current, changes dependent on geographical modifications, which may have oc- curred at considerable distances from this point. A diagrammatic section of the cliff, as far as it is determinable in the present condition, is given in Fig. 11. It will be seen that, as shown at present, the fossils occur at various levels in the bed, some of the species occurring as much as fifty feet above the surface of the water. The deposit is, throughout, composed of alternating layers of sand and pebbles. Save in the upper fifteen or twenty feet of the section, the peb- (636) FOSSILIFEROUS DEPOSITS OF SANKATY HEAD.39 bles are rather small, few exceeding three inches in diameter; near the top they are coarser and more angular, resembling the matter of a frontal moraine which h.as been stratified. In this uppermost section the fossils are wanting. Contact/ <z£.cLJb.:no£&eens. FIG. 11. Diagrammatic section of beds at Sankaty Head, a, peat beds; 6, tops of glacial drift. The distribution of the fossils in the part of the section where they are found is extremely curious; they occur as small isolated patches, lying generally at a considerable angle, clipping in most cases to the southwestward. The specimens are usually in a fragmentary condition and are packed together as if by the action of waves or by motion of swift currents. It is evident that a larger part of these remains were not formed just where they lie, but were swept into their position after having been comminuted by the waves. As will be seen from the list of fossils given above, the species are all those which belong to shallow water in the parts of the shore-which are open to the wide sea. This leads me to the belief that the fossiliferous deposits now exhibited at Sankaty Head were formed along an old beach line. The considerable thickness of the section in which they occur, which is 50 feet or more in depth, makes it necessary to suppose that the shore line remained nea.v this place for a considerable time. The upper part of this section for ten to twenty feet is pretty sharply divided from the lower fossiliferous portion, not only by the absence of fossils in its strata but by the disposition of its materials. The bed- . ding from the base to the height of about fifty feet is, wherever observa- ble, of the irregular, stratified type characteristic of the shore. Above that point, where the fossils cease to appear, the bedding becomes more horizontal, in this resembling our ordinary terrace drift, such as is found on the main-laud and is exhibited in the terraces on the southern part of the island. Here, as everywhere else, so far as observed, these reg- (637) 40 GEOLOGY OF NANTUCKET. [BULL. 53. ular stratified terrace deposits are devoid of organic remains. Above this last-named deposit lies a mass of apparently unstratified coarse pebbles, which, though wanting the clay element so generally found in the till, probably is of that nature. This is capped by a layer of blown sand of very recent origin. At a point about five hundred yards south of Sankaty Head light- house there is a section exposed which differs in an interesting way from that on the higher and more northern section of the cliff. The es- carpment has a height of about thirty feet. The general nature of the ore deposits, which are fairly well disclosed) is indicated in Fig. 12. It will be observed that besides the variation arising from the presence of peat deposits and layers of bog iron ore, which may be fairly consid- ered unimportant, the section departs in essential regards from that fig- ured in the section given by Messrs. Desor and Cabot and that which represents the present condition of the higher cliffs. The till like de- posit near the top of the main section has apparently become in a south- ward extension of a few hundred yards a stratified clayey sand with an- gular pebbles. The sands next lower in the sections are apparently alike in thickness and character. But the fossiliferous sand is entirely wanting, unless it be represented by some small fragments of shells found on the talus at the point indicated in Fig. 12. The lower green- ish gray clay appears to be identical with the deposit which I have con- sidered as till in other parts of the island, where its character is much more distinct than at this point. e I am disposed to believe that this blue clay may be the equivalent of the deposit which Messrs. Desor and Cabot considered of Tertiary age. In color and character it closely re- sembles the clay which overlies undoubted till at other points on the island. The contact between this stratum of clay and the overlying sands has not been seen, but from the imperfect indications I am inclined to believe that it is probably irregular, i. e,, that the surface Of the Clay was, to a certain extent, eroded by the action of water or of ice before the sands were laid down. (See PI. VIII.) This sudden change in the character of the section is possibly due to the fact that within the interval which separates it from that at San- katy Head we pass from the southernmost limit which the ice0 sheet at- tained in its last advance to the region where the sea-floor received the deposits of sand and gravel which came from the subglacial streams. It is likely that during the second stage of the last Glacial Period, the ice for a time extended beyond the southern shores of Nantucket. This is indicated by the rounded character of the mass of till which lies be- tween the two arms of Hummock Pond, as well as by the extensive de- posits of apparently rnorainal matter which exist in the ridges of Nan- tucket Shoals. But in its retreat the glacier made a considerable pause, in which the ice-front lay near the line of the center ridge of this island. The southernmost point occupied by the ice-front during this division of the period was near the portion occupied by the sections shown in (638) U. S. GEOLOGICAL SURVEY BULLETIN NO. 53 PL. VIM ^^ *.^^-;i^*P^^v^;. ^llfi^:^r;.^^^ :^ £i VIEW OF COAST ESCARPMENT, 500 YARDS NORTH OF SANKATY LIGHT. SHALER.] FOSSIL1FEROUS DEPOSITS OF SANKATY HEAD.41 Figs. 10 and 11. The section shown in Fig. 12 lies about four hun- dred yards south of the inorainal accumulations. Brorrn, samZ. 2ft Srorm, Sand, -Sin*. , G to Sin. a--pe6b~le» liog irmaret 4fC. liYliftidu tlaycysanc^mOifery anguhvpeSbteSt fifl/, 'law sand, niSfuml clay or 8ft. Contact "not ob$&TefL+ FIG. 12. Section south of beds at Sankaty Head. In my opinion the history of this Sankaty Head section is as follows: After the first advance of the ice and its subsequent retreat, a movement which left the underlying till of the island in its present position, there was a considerable period in which this part of the shore was occupied by the sea. During this time the Sankaty beds were deposited, the sea shore probably sinking as they were formed; when, with the readvance of the ice, the organic life was expelled from these waters and the ter- race deposits were formed above the level of the fossil-bearing bed§. The passage from the obliquely stratified to the horizontal drift is so sudden that it must be taken to indicate a rapid change in the condi- tions which prevailed on the sea-shore at this point. This horizontal (639) 42 N GEOLOGY OF NANTUCKET. [BULL. 53. stratified drift, which contains no fossils, is capped on the top by irreg- ular patches of bowlder material, which seem to me to be essentially till-like and to indicate that after the period of the fossil-bearing sands the glaciers again eroded this surface. It is, however, likely that only the extreme and thin edge of the ice attained to this point in its re- advance. This description of the section at Sankaty Head applies to the higher part of the cliff alone; a little to the southward the section changes greatly, as is shown in Fig. 12. SUCCESSION OF GEOLOGIC EVENTS. We are now in a position to consider the general history of this island during the Glacial Period, the only chapter of the geologic record which we can trace in its structure. First in this history is the series of events which led to the formation of the blue, pebbly clay or till, which, as before shown, appears to underlie the island, though it occasionally rises above the level of the sea. This deposit apparently must have been formed during the stage of the Glacial Period when the ice sheet was over this section. The unstratified nature of the mass compels us to believe that it was formed as ground moraine beneath the surface of the ice sheet, or immediately in its front. There is no evidence that this deposition continues to any distance south of the present shore of the island, but the occurrence of the mass on the ridge between the branches of Hummock Pond makes it clear that it extends about as far south as the southern shore. It does not appear possible to deter- mine whether this region was above or below the level of the sea when this deposit was formed. After the deposition of this mass the ice sheet retreated from the district and the climatal conditions became such as admitted the return of the marine life to the shore line, which must have been near its pres- ent position. This was certainly the case if the broken shells and coarse bedded sands at Sankaty Head be properly taken as evidence of sea-shore action. The level of this shore at one time must have been at least fifty feet below the present high tide mark. This condition in which the region was reoccupied by a marine life must have continued for a considerable period. After the fossiliferous beds were formed the ice again advanced until its southern front came at least to the middle of the island. The first result of this readvahce of the ice was to erode the surface of the till and of the stratified deposits which had been formed above it. At certain points, probably over the greater part of the district, the beds were eroded all the way down to the till, as for instance at Pocomo and at some points in the center of Nantucket village. At other points, as on the north shore near the water-works, the stratified clays, which rest directly upon the till and which were probably deposited while the retreating ice front was still near the island, were not altogether removed by the later incursion of the ice. (640) SHALER.] SUCCESSION OF GEOLOGIC EVENTS. 43 At Sankaty Head, where the ice appears to have acted with much less energy than on the north shore, the fossiliferous beds, which doubtless lie at a considerable height above the surface of the till, and the strat- ified clays and sands, which normally covered it, were not removed, though they doubtless lost a portion of their thickness. As a result of this erosion by the second advance of the ice the beds containing the fossils, which possibly at one time covered the whole of the island, were left as separated patches. During this readvance, or, perhaps, in several successive readvances, were accumulated the existing heaps of stratified and amorphous sand, gravel, and bowlders as well as the southern sand plains which con- stitute the principal features of the island. The conditions of their accumulation are, as far as determinable from the evidence, as follows, viz: (1) The surface was below the present level of the sea. This is shown by the fact that there are no, drainage channels leading out of the many valleys between the sand hills, such as would have been formed if the masses had been accumulated above the level of the sea, as are mo- raines at the front of a land glacier, as well as by the numerous bowl- ders apparently dropped from icebergs. (2) The drift materials were partly shoved forward by the glacier and partly deposited by the streams which escaped from beneath the ice. This is shown by the intermingling of confused or amorphous drift with large bowlders and with stratified deposits of fine sands. (3) The existence of considerable streams rising from the ice front and extending to the south is shown by the numerous deep channels which are excavated in the southern terrace or sand plains. These valleys originate in the hills and extend southwardly as distinct chan- nels. They are comparable to the channels which are cut through sand deposits below the level of the water at the mouth of estuaries where considerable streams escape into the sea. It should be observed that all these valleys do not clearly head up against the base of the sand hills, though all of them trend in that direction. It appears likely, from what we know of the tendency of subglacial streams to change their position, that all of these streams may not have been flowing at the same time; indeed, they may have been made in succession by the changing direction of a few of these rivers which emerged from beneath the ice. The irregular accumulation of de"bris near their points of es- cape from beneath the ice sheet would of itself have a tendency to direct these streams to new channels. Clearly, we can not suppose that these channels were formed after the ice left this region, for there is no form of water action disconnected with glaciation which can be imagined to have produced them.1 (4) The sand plains on the southern part of the island, which exist nowhere else upon its surface, were deposited during the time when the Geology of Martha's Vineyard: Seveatli Auu. Kept. U. S. Geol. Survey. (641) 44 GEOLOGY OF NANTUCKET. fBi'LL.53. detrital hills of the northern section were being accumulated. This is shown by the fact that they at some points pass by gradual changes of form into these hills. The fact that they are intersected by the ancient valle'ys which originate in the morainal hills is evidence that the plains were here before the glacial sheets formed the hills or that they were formed at the same time as th'ose elevations. The shape of the valleys, as is shown in the section (Fig. 7) and on the map, is best reconcilable with the hypothesis that they were formed as the sands of the plains were deposited. The whole of this work of deposition appears to have taken place beneath the surface of the sea, for, as before remarked, the whole character of the topography is inconsistent with subaerial action. (5) After the foregoing stages of the re-advancing ice the glacier ap- pears to have again retreated to the northward for the last time. Dur- ing or after the process of retreat the surface must have been suddenly elevated above the level of the sea. Probably this process of reeleva- tion was extremely rapid, for unless we suppose that there was at that time some barrier on the south to protect the coast from the waves of the Atlantic, a barrier which has since been swept away, these delicate hills of sand and gravel would have been subjected to swift destruction by the action of the sea. The supposition that such a barrier ever ex- isted finds no support from the facts. This sudden uplift of the moraines and kaines of this coast after the ice sheet went away is the most puzzling feature of its history. The evidence of this uplift seems to me ample; it does not rest upon the evidence presented on this island alone, but on the proof of the same nature afforded by the coast line from north of Boston to New York City. Everywhere along this part of the coast we have the same series of delicately molded kames that occurs on this island. We are com- pelled, therefore, to believe that they were formed below the surface of the sea and uplifted above its surface after the last retreat of the ice, I can not here discuss the whole array of evidence on which this assertion rests; that evidence will be considered in a special report on this sub- ject, but one consideration in addition to those already adduced in this memoir will serve to show most essential grounds for this opinion. On the mainland, where there are extensive terraces of stratified drift de- posits clearly formed beneath the surface of the sea, we often find these terraces passing gradually into sand hills or kames, the tops of these hills being on the same level as the upper part of the terrace. Now, these terraces were certainly formed below the level of the sea. The kames lying upon and inclosed within them must have been formed at the same time; for, if formed before, they would have been effaced in the construction of the terraces. They could not have been formed afterward for they are often completely inclosed in the terrace de- posits. Accepting, then, the hypothesis that these drift hills of Nantucket were accumulated below the level of the sea and afterward lifted above (642) SHALEH.J SUCCESSION OF GEOLOGIC EVENTS.45 its surface, it is evidently very important to de- termine whether there was any action of the waves on their surface during the process of uplift. We may be sure that if they were exposed even for a few days to the action of the At- lantic surf and tides they would bear the unmistakable marks of water action. If we could plant these hills in the open sea on Nan- tucket Shoals, for instance, they would in one month have benches cut in their sides and a detrital apron formed on their front which would endure even longer than the delicate curves which now char- acterize their forms. On the south side of the kanie ridges between Nautucket village and the east end of the island where the hills are highest there is a faint- ly indicated shelf which possibly marks the action of the sea during a very brief period. (See PI. VI.) This scarf is only a steeper slope of the hills and a faint terrace of sands with an inclined surface at its base. Although this may possibly indicate a temporary pause in the process of uprising which brought this surface from the bottom of the sea to above its level, it does not relieve us from the need of supposing that the ele- vation was really paroxysmal in its suddenness; for the fact that the summits of the sharp sand hills have not been planed down to the level is still before us. At one stage in the inquiry it seemed to me possi- ble that these kames might have been worn down on their tops and become again pointed by the* action of the rain; but a careful examina- tion of the circular valleys between these ridges shows this not to have been the case, for these depressions (643) i-.'i-i 9 JWl3%.; . »v:;^.:tf>,''i 364 A. E. Verrill-Post.pHocene f08sils of 8an1coty Head. ART. L.--Brief Contributions to Zoology from the ~£useum if Yale College. No. XXXVI.-On the Post·p[£ocene fossils of 8ankoty Head, Nantucket Island,. by A. E. VERRILL; wt"th a note on the Geology,. by S. H. SCUDDER. AN account of the beds at Sankot'y Head, with a list of the fossils obtained, was published by Messrs. Desor and Cabot in 1849,* and most of our knowledge of the locality has hitherto been derived from their description. During the past summer the headquarters of the U. S. Fish Commission were at 'Vood's Hole, Mass., where an excellent and permanent biological station has been established under its auspices. In connection with the investigation of the marine invertebrates it was considered desirable to examine the fos· siliferous deposits to ascertain the facts in regard to the former distribution of the species, and the physical changes that have occurred on our coast. Accordingly on~ of our dredging parties, consisting of Prof. A. Hyatt, Mr. Sanderson Smith, Mr. C. H. Merriam, and others, visited the locality, while on one of the excursions to Nantucket Shoals, and made a collection of the fossils. Later Mr. S. H. Scudder, of Cambridge, Mass., with the kind coopel'ation of'Mr. W. J. Flagg, made an excava· tion into the clift~ so as to expose the fossiliferous beds more fully, and Mr. Richard Rathburn visited the locality~ and made for the Commission, a large and very valuable collection of the fossils, in which the specimens from the lower and upper beds were kept distinct. Some of our most interesting results have been due wholly to tbe care with which he made and labelled this collection. From it we learn that the two layers, though only a few inches apart, contain very different assemblages of fossils and were deposited under quite different circnmstances; the lower bed contains only such southern species as now inhabit the warm quiet waters of sheltered bays on the southern coasts of New England and farther soutb; while the upper bed con· tains many northern species, many of them fragmentary and beach·worn, and all of them, with one unimportant exception, the same species that are now found cast upon the outer beaches of Nantucket and Cape Cod by storms, and living in the colder outer waters, off' the same coasts. In the list published by Desor and Cabot seventeen species were enumerated, and those from the different beds were not kept separate. In our collections there are about sixty species, * Quarterly Journal of the Geological Society of London, vol. v, p. 340, Feb., 1849. An abstract of the article has been printed by Dr. Packard iu the Memoirs of the Boston Soc. of Nat. History, vol. i, p. 252, 1866. See also Proc. Boston Soc. Nat. Hist., vol. iii, p_ 79, and this Journal, II, xiv, 50. A. E. Verril~Post-pHocene fossils of Sankoty Head. 365 nearly aU of which can now be assigned to their actual POSI- tions in the strata. Mr. Scudder made a study of the stratification, and as his observations do not agree perfectly with the account given by Desor and Cabot, he has kindly furnished the following descrip- tion of the locality. The most important point from which it differs from the former one is his conclusion that the fossilifer- ous beds are conformable to the strata of sandy clay, forming the base of the cliff. Mr. Desor stated that the.y are uncon- formable, alld referred the clays to the Miocene Tertiary, like those of Martha's Vineyard. Note on the Post-pliocene Strata of Sankoty Head j by S. H. SCUDDER. "The sands and gravels forming the bluff at Sankoty Head, Nantucket, rest at base upon a thick bed of light brown sandy clay of uncertain thickness, but extending upward to about twenty feet above the sea·level. As the beds which rest upon it dip to the southwest, and as the anchor brings up clay from Sankoty Head eastward for half a mile, this clay bed is probably of great t.hickness. The brown clay is overlaid by four feet of gravel and coarse sand, the coarser parts mostly confined to three or four inches of the uppermost levels; the upper bed is more or less ferruginous and hardens on exposure into a rather compact conglomerate. To this stratum must doubtless be referred a single Rpecimen of a bivalve (probably a Mactra), with valves half open, picked up on the bluff, imbedded in a gravel conglomerate, and like it strongly impregnated with iron. The gravel is followed by about four teet of sands, subdivisible into separate beds, viz: at base, an inch or two of a very fine loose white sand, followed by nearly two feet and a half of a little less fine, closely packed, white sand, with irregular ferruginous streaks through its mass; this is covered by nine inches of a coarse beach sand, with a still coarser sand in pockets; and this "again by nine inches of a very fine white sand. Above this comes a foot of ferrugillou~ sand closely packed with masses of tough blue clay, much exceeding the sand in bulk, and forming the floor of the fossiliferous beds. These consist first, at base, of twenty-two inehes of coarse sand in which the oyster, quohog, and common clam are the prevailing forms, the first predominating to such a degree as to make the name of oyster-bed the most appropriate. This merges into a serpula-bed, about twenty-eight inches in thickness, made up almost altogether of large masses of serpula, packed in sand and almost wholly devoid of other fossils. The bed of worn shells superimposed on this is about twenty-two inches in thickness and closely resembles coq1.tina, except in the entire want of adhe- sion between the fragments. This bed is followed by about ten feet of fine white thinly bedded sand, and this by the stratified drift of the island, to a 366 A. E. Verrill-Post-pliocene fossils of Sankoty Head. depth, as estimated by Desor and Cabot, of forty-two feet; the foot of peat mentioned by them is wanting at this exact locality, (though present a few hundred feet farther south,) leaving the drift covered by five or six feet of dune-sand, more or less intermixed with loam below. On following the bed of broken ISh ells along the face of the cliff it was found to thin out to about a foot in thickness twenty-five feet on either side of the most prominent point, where the section was made,* and which has doubtless been longer protected than the other parts of the bluff by the former presence of It great mass of clay next the water's edge, called" Antony's Nose"; beyond these twenty-five feet, the bed of broken shells becomes more or less obscured by an admixture of sand, gravel and serpula, and is entirely lost at forty feet distance on either side. The strata, from the lowermost clay to the bed of worn shells, all dip to the southwest. The uppermost beds incline along the face of the cliff three (3) degrees to the south, while the inclination to the west (along the sectioll dug out of the cliff) is eleven (11) degrees, making a dip of nine (9) degrees to the southwest. All the beds below this also incline eleven (11) degrees to the west, but the inclination of t,heir faee toward the south increased gradually in passing downward, uptil that of the upper edge of the lower clay reaches eleven (11) degrees. making a southwesterly di~ of this bed seventeen (17) degrees to the southwest. There is no eVIdence of any thinning out of the gravel-bed, as stated by Desor and Oabot, nor of any unconformability between this bed and the underlying clays; but, on the contrary, every appearance that the latter belong to the same continuous series as the former. It is worthy of note that the fossils of this locality lie above the clays, instead of in the clays, as in most of the New England localities of post-pliocene marine shells." Mr. Rathburn informs me that. in tbe lower shell-bed the shells are extremely abundant and mostly entire, but generally break in pieces when the matrix is removed, and tbat when first taken out they appear to be soft, but harden on exposure to the air. r.I'he matrix is a coarse yellowish ferruginous sand with small pebbles, and the shells have a rusty stain. None of the specimens give any evidence of having been worn by tbe waves, and many of the most delicate, like (}I.lmingia tellinoides, Angulus tener, etc., are entire, and sometimes have·the valves still united. This is the case, also, with some of the oysters. A. large proportion of the quohog-clams (Venus mercenaria) are broken into angular fragments with sharp edges and angles. I have ascertained by an exall1ination of large numbers of speci- mens, both entire and broken, that the breaking is due wholly to lines of fracture developed in the shell by drying or weath- * I must here express my indebtedness to William J. Flagg, Esq., of New York, who freely gave me the unlimited assistance of his workmen, and enabled me to make a much more thorough exploration than could otherwise have been possible. A. E. Verrill-Post·pliocene fossils of Sankoty Head. 367 ering, just as similar shells often crack into angular fragments in the dry heated air of our museums. Many of the entire specimens of the fossil quohogs, etc., sbow such fractures ex· tending in different directions across tbe shell, so that they are ready to break up into several angular fragments under the least strain, or even by a cbange in the moisture or tempera· ture. This condition of fossil shells is a very frequent one in other localities, and will account for very many cases where the shells are found broken into angular fragments in rocks of other periods. It is evident, both from the condition of the shells in tbe lower bed and from the peculiar assemblage of southern species, that it was deposited in tbe very quiet waters of a sandy sheltered bay, entirely protected from the action of the oceanic waves. Tbe assemblage of species is similar to that now living in tbe protected bays of Southern New England at the depth of ~ to 5 fathoms.* The quohog·clam, oyster, j,Iodiola hamatus, Oumingia tellinoides, A rca transversa, Urosal· pinx cinerea, and the three species of Orepidula are the most abundant and characteristic shells. The Serpula bed consists mainly of convoluted masses of the tubes of Se'rpula dianth'lts V., mixed more or less witb sand, but without many otber fossils. This Serpula is still abundant all along the coasts of Soutbern New England, and soutbward to the Carolinas, in all sheltered bays and harbors where the water is not brackiRb, from low·water to 8 fathoms or more. It is often particularly abundant on oyster·beds. and in such localities often completely overgrows the shells, if neglected for a year or two. The upper shell·bed, according to Mr. Rathburn, consists almost wholly of broken shells, with a little quartzose sand, which is light colored, and not at all ferruginous. so that the shells from this bed are not stained rusty yellow by the oxide of iron, like those of the lower one. Many of the frag- ments are distinctly water-worn and rounded, and most of them have the appearance of those shellR thrown on the outer beaches by the surf, or of the dead shells often dredged up in large quantities on sandy bottoms in shallow waters near the shore, or in the vicinity of sand-shoals. where the waves break during storms. The abundance of northern forms, such as Buccimtm undatum, Oel'onia arctata., Asta'l'te castanea, Oyclocardia borealis, Mya truncata, Balanns pOl'catus, etc., shows that the 'bed was * That the depth could not have been less than 3 fathoms is probable because those species that abundantly inhabit the eel-grass (Zostera), which grows in shel- tered localities at all depths down to about 2t fathoms, are either rare or entirely absent, viz. Bittium nigrum, Astyris lunata, Triforis nigrocincta, Lacuna vincta, Littorina rudis, Pecten irradians, etc. That the depth was probably not above 5 or 6 fathoms, I infer because the quohog and oyster, when adult, are seldom found in any abundance below 5 fathoms. 368 A. E. Ver'rill-Post-pliocene fossils of Sanlcoty Head. deposited by the cold waters of the outer coast, and their water- worn condition proves that the deposit was made in very shal- low water near the shore, or near sand-shoals, swept by the waves. Such deposits may be made at any depth less than about 12 fathoms, but are more commouly made in 2 to 8 fathoms, on our coast. This locality shows, therefore, that although important changes in the distribution of the land and water, as well as in the level of the land, must have occurred in this region during the time when these strata were being deposited, and subseqently, the temperature of the waters must have been nearly the same then as it is now, and that there must have been, at that time, the same contrast that now exists* between the coldness of the waters on the outer shores and the heat of the sheltered bays and harbors. The fossils of the lower bed indicate, for the water, a summer temperature of 70° to 75° F., while those of the upper bed correspond to a temparature of 55° to 60°, thus showing plainly the influence of the Arctic current along the coast. All the species still inhabit the waters of Southern New England, except Diodom Noachina found in the upper bed, but this occurs in Massachusetts Bay, and will probably be found hereafter in the deeper channels among the Nantucket Shoals, where we found this year many northern species that had not * The nature of the changes that caused the alteration of the temperature and difference of the life indicated by these two beds of fossils will be discussed else- where more fully. It may be well, however, to state that my conclusion is that when the lower shell-bed and serpula-bed were forming, a shallow bay existed at this place, from which the outer waters were excluded, either by an island to the eastward of the site of Nantucket, or else by a southward prolongation of Cape Cod. The extensive submerged shoals south of Cape Cod and east and southeast of Nantucket may be the remuants of snch lands. Some of these shoals are now covered with stones and rocks (probably drift boulders). Before the deposition of the upper bed some portion of the dry land eastward of the locality mast have been submerged by subsidence, or else washed away by the eucroachment of the sea (the latter most probably, to judge from the nature of the fossils), thus allowing the cold outer waters to occupy ti,e bay, and the Atlantic surf to fill it with broken shells and beach sand. 'l'he protectiug land must have been at least 50 feet higher. in its lowest parts, than the present level of the sea. As the shoals east of N an- tucket have now several fathoms of water over them a vast amount of denudation must have taken place since that time. This is also shown by the great thickness of the strata of sand and gravel resulting from that denudation, and still remaining above the fossiliferous beds, and doubtless these strata have themselves also suf- fered great denudation dnring the period of their emergence from the sea, and subsequently. The partial destruction of islands formerly existing in the region of Nantucket Shoals would also result in partially filling the channels and deeper depressions between them, the final result of surf-action being a levelling one, and this would have been the case both during the period of submergence, and subse- quently during that of emergence, but during the period of greatest depression (100 feet or more below the present level) there would have been comparatively little denudation of the deeply submerged islands, but there may have been islands high enough to have been out of water even then, which have since disappeared by denudation. The same reasoning will also apply to St. George's Bank and the great shoals adjncent, all of which are probably islands which have been worn down by the waves below the level of the sea. A. E. Verrill-Post.pliocene fossils oj Sankoty Head. 369 previously been found south of Cape Cod. JJfodiola hamatus, which occurs in considerable numbel's in the lower bed, is a southern shell, common in the Gulf of Mexico, and on the southern coast as far north as Virginia, but occurring on the southern coast of New England, only locally, in harbors, etc., and generall.y on beds of oysters that have been transplanted from farther south. For this reason it has been generally sup· posed that it is not indigenous but has in all cases been intro- duced with the oysters. However this may be now, it is evi- dent that it was a native species in Post-pliocene times. The only species that shows any noteworthy variation, when compared with the modern shells from the same region, is the quahog (Venus mercenaria). Most of the specimens of this spe- cies differ considerably, in the rounder form, thicker shell, and in the greater development of the concentric ridges, from the ordinary quohog-clams seen in our markets. In a lot of large shells of this species obtained from a fisherman at Nantucket, this season, there are many that are equally massive and have the same rounJed form, and although the concentric sculp- ture is not so strongly developed as in many of the fos- sil shells, there is a decided approach toward them in this respect also. These living Nantucket quohogs certainly re- semble the fossil ones more closely than do those from any other locality known to me. But among the fossil specimens (as also among the recent ones from Nantucket) there are some specimens that are as smooth, thin and elongated as the ordi- nary variety found in our harbors; and intermediate specimens also occur, so there is no reason to suppose that the variation in the fossil shells was anything more than a local variation, such as often occurs in many species at the present time. N ever- theless it may be convenient to designate such special condi- tions of a species by a particular variety-name. 1'he general absence of such variations in the Post· pliocene shells of the New England coast, as compared with those now living upon it, is certainly very remarkable, considering their great anti- quityand the many important changes that have since taken place in the physical conditions of the land and water. Such instances give us the best evidence in regard to the constancy and stability of tme specific characters, even when apparently of little or no importance in the economy of the animal itself. List of Species from the lower Shell-bed. The names of the species are those used in the Report on the Invertebrata of Southern New England, by the author and Prot S. I. Smith, in 1st Report of the United States Com· missioner of Fish and Fisheries, 1874. A~r. JOUR. Sm.-THIRD SERIES, VOL. X, No. 59.-Nov., 1875. 24 370 A. E. Verrill-Post.pliocene fossils of Sankoty Head. In each case the relative abundance is indicated. I have also added the present distribution on the American coast, in a general way, as well as a few notes on the geological distribu- tion of each species. Fuller information on the distribution of the species has been given in the Report referred to. MOLLUSCA. Tritia trivittata Adams. Common. Florida to Gulf of St. Lawrence; low-water to 40 fathoms. Fossil in the Post-pliocene of Point'Shirley, Gardiner's I., Vir- ginia and southward; in the Miocene of Maryland, South Caro- lina, etc. Ilyanassa obsoleta Stimpson. Common. Florida and Gulf of Mexico to Southern Maine; local in the southern part of the Gulf of St. Lawrence; littoral to 2 fathoms. Fossil in the Post-pliocene of Point Shirley, Virginia, South Carolina, etc. Urosalpinx cinerea Stimpson. Common. Tampa Bay and Eastern Florida to Massachusetts Bay, and local farther north to Gulf of St. Lawrence; littoral to 10 fathoms. Post-pliocene fossil at Point Shirley, Gardiner's 1, Virginia and southward; in the Miocene of Maryland. Eupleura caudata Adams. One fine specimen. ' Gulf of :Mexico and Eastern Florida to Cape Cod; low- water to 8 fathoms. In the Post-pliocene from Virginia to Florida; Miocene of Maryland and South Carolina. Astyris lunata Dan. One specimen. Alabama and Florida to Massachusetts Bay; low-water to 14 fathoms. Fossil in the Post-pliocene of Gardiner's 1 and Sou th Carolina. Oerithiopsis Greenii Verrill. Four specimens. South Carolina to Massachusetts Bay; two to 10 fathoms. Orepidulafornicata Lamarck. Abundant. Gulf of Mexico to Southern Maine, and local in the southern part of the Gulf of St. Lawrence; low-water to 15 fathoms, Post-pliocene fossil at Gardiner's 1, South Carolina, etc.; and Miocene in Maryland and South Oarolina. Ol'ept'dula plana Say. Common. Distribution same as the preceding, from which, however, it is very di.stinct. Orepidula convexa Say. Not common. Distribution like the two preceding, from both of which it i.s perfectly distinct (although confounded with 0. fornicata by rrryon and others). Fossil in the Post-pliocene of Virginia and South Carolina. Odostomia,tl'ijida Gould. Common. New Jersey to Massachusetts Bay; low-water to 5 fathoms. A. E. Verrill-Post-pliocene fossils of Sankoty Head. 371 Odostomia impressa Stimpson. Common. South Carolina to Vineyard Sound j low-water to 5 fathoms. Turbonilta interrupta Adams. Several specimens. South Carolina to Cape Cod j local farther north to the southern part of the Gulf of St. Lawrence, neal' Prince Ed- wards' Island; low-water to 15 fathoms. Post-pliocene fossil at Gardiner's 1 and in S. Carolina. Saxicava arctica, Deshayes. Rare and small. At'ctic Ocean to Georgia, local 'and rare south of Long Island; low-water to 50 fathoms. Fossil in the Post-pliocene of Maine and everywhere northward. JIya arenaria Linne. Abundant. Arctic Ocean (lat. 78° N.) to South Carolina; low-water to 40 fathoms. Post-pliocene fossil from South Carolina and Virginia to Greenland and Northern Europe. Oorbula contracta Say. One valve. Florida to Cape Cod. Ensatella Ame1'icana Ven'ill. Common. Labrador to Florida; low-water to 25 fathoms. Fossil in the Post-pliocene of Portland, Me., Point Shirley, Gardiner's I., Virginia and South Carolina; Miocene of Maryland, etc. AnguhtB tener Adams. Several specimens. Florida to Gulf of St. Lawrence; low-water to 12 fathoms. Oumingia, tellinoides Conrad. Common. Florida to Cape Cod; three to 12 fathoms. In the Post- pJiocene and Miocene of South Carolina, etc. Petricola pholadiformis Larnal'ck. Rare. Gulf of Mexico to Massachusetts Bay; local in Casco Bay and southern pal't of the Gulf of St. Lawrence; low-water to 4 fathoms. In the Post-pliocene and Pliocene from Florida to Virginia. Venus mercenaria Linne. The variety abundant; a nearly typical form not uncommon. Florida to Massachusetts Bay j local on the southwestern coast of Maine and sonthern shores of the Gulf of St. Lawrence and Bay of Chaleur; low-water to 8 fathoms. In the Post- pliocene of Point Shirley, Gat'diner's 1, Virginia, Florida; Miocene from Maryland to South Carolina. Var. antiqua VerrilL By this name I propose to designate the unusually massive and strongly sculptured variety to which most of the fossil shells belong, and which has been already dis- cussed on a previous page. The shell is rather obtusely rounded posteriorly, and is thickly covered with prominent concentric lamelliform ridO'es, which mostly extend entirely across the shell, but are ofteno re- flexed, appressed and more or less confluent over the middle region, where the ordinary variety is nearly smooth (except 372 A. E. Verrill-Post-pliocene fossils of Sallkoty Head. when young). The violet color can still be traced in some specimens entirely around the inner margin, as in many recent Nantucket examples. Totten£a gemma Perkins. Few specimens obtained. South Oarolina to Labrador; low-water to 4 fathoms. Gonldia mactracea Gould. One specimen. Florida to Oape Ood; 3 to 15 fathoms. 8caplzarca transversa Adams. Very abundant and large. Florida to Oape Ood; low-water to 15 fathoms. In the Post· pliocene of Oape Cod, Gardiner's I., Virginia, South Oarolina ; Miocene of Virginia and North Oarolina. Mytilus eduhs Linne. Oommon. Oircumpolar; Arctic Ocean to North Oarolina; littoral to 50 fathoms. In the Post-pliocene from Florida to Greenland and Northern Europe. Modiola hamatu8 Venill. Oornmon. Gulf of Mexico to Long Island Sound and Naragansett Bay; littoral. Crenella glandula Adams. Few specimens obtained. Labrador to Long Island; 5 to 60 fathoms. In the Post- pliocene of Montreal. Anomia glabra Ven-ill. Florida to Oape Ood; and locally farthel' north to Nova Scotia; littoral to 20 fathoms. In the Post-pliocene and Plio- cene of South Oarolina. Ostrea Virginial/a Lister. Abundant and well-grown. Gulf of Mexico to Oape Ood, and locally farther north, at Damariscotta, Me., and in the southern part of the Gulf of St. Lawrence; low-water to 5 fathoms. In the Post-pliocene of Point Shirley, Gardiner's 1., South Oarolina, etc. Both the short, rounded specimens and the much elongated and narrow forms occur, as well as all the intermediate states, just as in many modern oyster-beds, showing that in Post-pliocene times the same kind of individual variations prevailed that have perplexed many modern systematists, but they have not yet become specific, nor even definite varietal characters. BRYOZOA. Hippothoa variab,:lI's V. (Escharella variabilis Ven-ill, in Report on Invert.) Oommon on Serpula, etc. Florida to Massachusetts Bay; low-water to twenty fathoms. Biflustra temu's V, (llfembrallipora tenuis (Desor); Ven'ill, in Report on Invert.) Oommon on shells. Delaware to Massachusetts Bay; low-water to 15 fathoms. Membranipora catenularia Smitt. Oommon on shells. Arctic Ocean to Long Island Sound; low-water to 50 fathoms; northern Europe. A. E. Verrill-Post.pliocene fossils oj Sankoty Head. 373 CRUSTACEA; ANNELIDA; PORIFERA. Panopeus, sp. Several claws were found. Eupagur-us pollicaris Stimpson. A claw, probably from this bed, is recorded bv Desor. Florida to Massachusetts; 2 to 15 fathoms. Balanus eburneus Goulel. Oommon. West Indies to Massachusetts Bay; littoral to 3 fathoms. Balanus crenatu.s Brugniere. Common. West Indies to the Arctic Ocean; 3 to 15 fathoms. Serpula dianthu.~ Verrill. Very abundant. North Oarolina to Cape Ood; low·water to 15 fathoms. Cliona. sulphurea Verrill. The excavations are abundant in oyster shells. Florida to Massachusetts Bay; 1 to 15 fathoms. List of Species found only in the upper Shell·bed.* Buccz"num ttndatum Linne. Common. Arctic Ocean to New Jersey; northern coasts of Europe; low·water to 100 fathoms. In the Po<!t·pliocene, Maine to Labrador and Northern Europe. Neptunea curta Verrill. Several specimens, one of large size. Labmdor to Massachnsetts Bay, and in deep water farther south, to Long Island. Lunatia heros Adams. Oommon, but badly broken. Georgia to Gulf of St. Lawrence; low·water to 40 fathoms. Post· pliocene, Canada, S. Carolina; Pliocene, S. Carolina j Miocene, Maryland to S. Carolina. Var. trise1·/ata. One specimen occurred. Neverita dupHcata Stimpson. One broken specimen. Yucatan to MaRsachusetts Bay; low·water to 10 fathoms. Post·pliocene, Virginia to Florida j Pliocene, S. Carolina j ~fiocene, Maryland to S. Carolina. Orucibulum strzatum Adams. One large specimen. New Jersey to Bay of Fundy; low·water to 40 fathoms. Scalaria Grrenlandica Perry. Recorded by Desor, and doubt· less from this bed. Arctic Ocean to Block Island; 10 to 109 fathoms; Northern Europe. Fossil in Post.pliocene of Northern Europe. Dz'odora noacht'na Gray. Two good specimens. Arctic Ocean to Cape Cod; 8 to 70 fathoms; northern Europe. Mya. truflcata Linne. Several large specimens. Arctic Ocean to Nantucket Shoals; low·water to 10 fathoms; northern Europe. In the Post·pliocene, Maine to Labrador. Thracia truncata Mighels and Adams. A few valves, special bed not indicated. Greenland to Long Island; 10 to 60 fathoms. * A. valve of Saxicava Norvegica was found after this list was put in typ A.rctic Ocean to Massachusetts Bay. 874 A. E. Verrill-Past-pliocene fossils of 8ankoty Head. Olidiophora trilineata Carpenter. One valve. Florida to Gulf of St. Lawrence; low-water to 80 fathoms. Macomafragilis Adam1', var.fusca (Say). A few valves. Greenland to Georgia; littoral to 6 fathoms. In Post- pliocene from S. Carolina to Greenland. Ceronia arctata Adams. Abundan~ and large. Gulf of St. Lawrence to Long Island. Mactra 80lidissima Chemnitz. Common, fragmentary. Florida to Labrador; low-water to 12 fathoms. Post-pliocene of Point Shirley. Mass. Oycloca1'd~'a borealis Conrad. Common. Labrador to New Jersey; 8 to 80 fathoms. In the Post- pliocene of Gardiner's I.; Point Shirley; Labrador. Cyclocardia Nova;;gh're Morse. A few valves. Gulf of St. Lawrence to Long Island Sound; 8 to 40 fathoms. Astarte undata Gould. One worn valve. Long Island Sound to Northumberland Straits in Gulf of St. Lawrence; low-water to 100 fathoms. In the Post· pliocene of Gardiner's Island and Point Shirley. - Astarte castanea Say. Ablllldant. New Jersey to Nova Scotia; 5 to 40 fathoms. In the Post- pliocene at Point Shil'ley. Modiola modiolus TlHton. Many worn valves. Circumpolar; Greenland to New Jersey; low-water to 80 fathoms. In the Post-pliocene of Point Shirley, Canada, and northern Europe. Anomia aculeata Gmelin. Common. Arctic Ocean to Long Island Sound; low-water to 100 fathoms. BRYOZOA. Eschara verrucos.a Esper. On shells of Cerol1ia. Arctic Ocean to Nantucket Shoals; 3 to 45 fathoms. North- ern Europe. In the fossil examples the surface of the cells is covered with radiating ridges, often rising into an eminence in the middle, and is perforated with numerous pores in the grooves. Orifice somewhat semicircular with a median avicn- larium in front of the proximal edge. Celleporaria incras.~ata Smitt ('/). Several. Off Martha's Vineyard to Spitzbergen; 10 to 160 fathoms. The specimens are thick. irregular masses. The apertures are small, rounded, oblong, constricted on the sides by small points projecting inward near the middle, and sometimes with a small proximal spine. CRUSTACEA AND ECHINOD.ERMATA. Balanus porcatus. Very abundant and large, but broken. Arctic Ocean to Long Island Sound; 2 to 90 fathoms. 375 Strongylocentrotus DrObachiensis A. Agassiz. Spines only. Arctic Ocean to New Jersey; circumpolar; low-water to 430 fathoms. Post-pliocene of Maine and northward. List of ''''peciesfoundin both Shell-beds. Lower Bec!. Upper Bed. Urosalpinx cinerea_ _ _ _ _ _ _ _ _ _ _ _ _ _ Common. One. Tritia trivittata,_ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ Few. Common. Ilyanassa obsoleta _ _ _ _ _ _ _ _ _ _ _ _ _ _ Few. Few. Crepidula fornicata _ _ _ _ _ _ _ _ _ _ _ _ _ _ Abundant. Few. Crepidula plana_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Commou. Few. Ensatella Americana_ _ _ _ _ _ _ .. _ _ _ Abundant. Few. Mya arenaria ___________________ Abundant. Few. Saxicava arctica_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Few. Common. Venus mercenaria_ _ _ _ _ _ _ _ _ _ __ _ _ _ Abundant. Few. Scapharca transversa_ _ _ _ _ _ _ _ _ _ _ _ Abundant. Few. Mytilus edulis __________________ Few Common. Crenella glandula_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Few. Several, large. Ostrea Virginiana _ _ _ _ _ _ _ _ _ _ __ _ _ _ Abundant. Few. Most of these belong to the fauna of the warm sheltered bays. and theil' OCClll'l'ence ill the upper bed may have been accidental in many ca"es. The few worn shells of such species, though found in the upper bed, ma.y have been originally deposited in the lower one and afterward washed out by the waves and redeposited in the upper one. The absence of many species ordinarily abundant in the clay-beds of our New England Post-pliocene, (e. g., the species of ~v-ucula, Yoldia, Leda, etc.), is doubtless due to the fact that such species lived only on muddy bottoms, while both of these deposits were made on sandy bottoms. They are, lD fact, characterized by tbe nearly complete absence of all true muddy-bottom specie".