By the old laws of Massachusetts, a littoral proprietor of land
owned down to low water mark, subject, however, to the condition
that until he occupied the space between high and low water mark,
the public had a right to use it for the purposes of
navigation.
The City of Boston had the same right as other littoral
proprietors, and consequently had the control over a dock which was
situated between two wharves, one end of the dock being at high
water mark and the other at low water mark. It had, therefore, the
right to construct a sewer for the purpose of carrying off the
drainage from the high water to the low water end of the dock.
The city had not dedicated the dock to public uses by merely
abstaining from any control over it. The principles which regulate
a dedication to public uses examined.
Although the presumption of such a dedication is a question of
fact for the jury, yet it is for the court to instruct them what
facts, if proved, will justify such a presumption.
This was a suit originally commenced in the Circuit Court of the
United States for the District of Massachusetts and removed into
the Circuit Court of Rhode Island upon the ground that MR. JUSTICE
CURTIS was so connected with the plaintiff as to render it, in his
opinion, improper for him to sit in the trial of the suit, and that
Judge Sprague was an inhabitant of Boston, and concerned in
interest in this cause, so as to render it, in his opinion,
improper for him to sit in the trial thereof. It was therefore
ordered, both judges concurring, that an authenticated copy of the
record and all proceedings in the suit, should be certified to the
Circuit Court of Rhode Island.
Lecraw, a citizen of New Hampshire, as surviving partner of the
firm of Lecraw & Perkins, brought an action on the case against
the City of Boston for erecting a public nuisance, which was
specially injurious to the plaintiff.
Lecraw was in possession of a wharf estate situated in the
southerly side of Boston. His wharf extended to the sea, and was
entirely unobstructed at the end seaward. Along the southerly side
of the wharf there was a dock about thirty feet wide, extending
from the end of Summer Street to the sea. In July, 1849, the board
of health ordered a drain or sewer to be constructed from one end
of the dock to the other so as to carry the drainage out to deep
water. It was constructed as follows:
The obstruction complained of, as appeared by the evidence, was
a drain composed of plank and timber 460 feet long, eight feet
wide, and eleven feet high to top of piles, and resting upon the
surface of the mud in the dock, which extended
Page 58 U. S. 427
from the head of the dock to within __ feet of the foot of the
same, and at the end of said drain was seventeen feet from the
plaintiff's wharf on the north and thirty-two feet from the other
wharf on the south.
For this obstruction to the approach of vessels to his wharf,
Lecraw brought his action, and upon the trial of the cause the jury
found a verdict in his favor, assessing the damages at $9,280.
The bill of exceptions taken by the defendant included all the
evidence and the numerous prayers offered to the court, which are
sufficiently noticed in the opinion of this Court.
Page 58 U. S. 431
MR. JUSTICE GRIER delivered the opinion of the Court.
The defendant in error, a citizen of New Hampshire, instituted
this suit against the City of Boston, charging it with the erection
of a public nuisance which was specially injurious to the
plaintiff. The declaration contains seven counts. As the jury,
under the instructions given by the court, gave a verdict for the
plaintiff below on the last two only, it will be unnecessary to
notice the others or the points of law applicable to them.
These counts set forth in substance that in the year 1849, the
plaintiff and a partner, since deceased, carried on the business of
buying and selling wood and coal in Boston, and were in possession
of a wharf known as the Bull Wharf; that the dock forming the
southerly boundary of said wharf, and extending from Summer Street
Wharf, was a part of the harbor of Boston,
Page 58 U. S. 432
and a public dock, slip, or way, navigable by vessels, and over
which the waters of the sea ebbed and flowed, and by reason thereof
the plaintiff ought to have been allowed to pass and repass as over
a navigable highway with boats vessels, over and through said dock
from the wharf by him possessed to the channel of the sea; that
defendant had erected piles and a drain in the dock, to the
destruction of the navigation therein and the special injury of the
plaintiff.
A congery of points or prayers of instruction, exceeding thirty
in number, and covering nearly as many folios, were submitted to
the court, some of which were given as prayed for, some with
"qualifications," and many refused.
If a judge, in answering such a mass of hypothetical and verbose
propositions, should occasionally contradict himself or fall into
an error, or if the jury, instead of being instructed in law,
should be confused and misled, it may be considered the legitimate
result of such a practice. We do not think it necessary, therefore,
to examine particularly each one of this labyrinth of propositions;
but after a brief history of the title of the parties, and the
admitted facts of the case bearing on its merits, we will state the
law as applicable to them, and thus be enabled to test the
correctness of the charge of the court in the instructions given or
refused.
The original charters to the Plymouth company of that part of
the territory which afterwards constituted the colony of
Massachusetts conferred on them not only the property in the land,
but all the "franchises, loyalties, liberties &c., and the
requisite civil and political powers for the government of the
colony."
By the common law of England, the right of littoral proprietors
bounding on public navigable waters extended to high water mark
only. But by an ancient ordinance, usually denominated the
ordinance of 1641, ยง 3, it is declared
"That in all creeks, coves, and other places about and upon salt
water, where the sea ebbs and flows, the proprietor of the land
adjoining shall have propriety to the low water mark, where the sea
doth not ebb above a hundred rods, and not more wheresoever it ebbs
further, provided that such proprietors shall not by this liberty
have power to stop or hinder the passage of boats or other vessels
in or through any sea, creeks, or coves to other men's houses or
lands."
This is the foundation of what may be called the common law of
Massachusetts on this subject. By it the grantee of land bounding
on navigable waters where the tide ebbs and flows acquires a legal
right and a vested interest in the soil of the shore between high
and low water mark, and not a mere indulgence
Page 58 U. S. 433
or gratuitous license, given without consideration and revocable
at the pleasure of the grantor.
See Austin v. Carter, 1
Mass. 231, and
Commonwealth v. Alger, 7 Cush. 71.
As a consequence of such ownership, it is ruled that the
proprietor of the land bounding on tidewaters has such a propriety
in the flats to low water mark that he may maintain trespass
quare clausum fregit against one who shall enter and cut
down piles placed there by the owner with a view to build a wharf
or otherwise enclose the flats. But the right of the littoral
proprietor under the ordinance has always been subject to this
rule: that until he shall build upon his flats or enclose them, and
whilst they are covered with the sea, all other persons have the
right to use them for the ordinary purposes of navigation; so long
as the owner of the flats permits the sea to flow over them, the
individual right of property in the soil beneath does not restrain
or abridge the public right. 7 Cush. 75. This property is also
subject to certain restrictions in its use, so that the state, in
the exercise of its sovereign power of public for the protection of
public harbors and to prevent encroachments therein, may establish
lines and restrain and limit this power of the owner over his own
property.
The whole territory now occupied by the City of Boston was
originally granted to and held by the town, which made grants
thereof from time to time, to such persons, and on such conditions
as it deemed expedient; and the City of Boston, as successor to the
town, continues to own such portions of the original territory as
have not been sold or otherwise disposed of. But while it
acknowledged the rights of its vendees of lands adjoining the shore
to wharf out opposite their respective lots, by virtue of the
police power exercised by it over the harbor, it superintended and
defined the limits within which the owner should exercise his
rights.
In 1683,
"the selectmen of Boston staked out a highway for the town's
use, on the southerly side of the land belonging to John Gill
deceased, under whom the plaintiff claims, being thirty feet in
width, from the town corner of said Gill's wharf, next the
sea."
This is the street since called Summer Street. They laid also
another street, "near the shore, on the proprietor's land, fifty
feet towards the seashore." But they ordered, at the same time
"that the flats and lands between the said highway and the sea
be granted to the proprietors of the land, which are abutters on
the way, in equal portion to their fronts."
Summer Street, as laid out, ended at high water mark, and has
not yet been extended, nor have the city made any erections on
their land between high and low water, previous to 1850; but the
public right of navigation over it has been exercised up to
Page 58 U. S. 434
the foot of Summer Street. The drains and sewers from that
street, and others connected with it, have hitherto been made to
discharge their contents at that point. In course of time, however,
as the city increased, this drainage increased also, to such an
extent as to become pestilential and a very great nuisance to the
neighborhood. In consequence thereof, the City of Boston has been
twice in 1848 and 1849 indicted for the nuisance and sentenced to
pay a fine. Since that time, the mayor and aldermen, acting as the
board of health, have directed the drains or sewers to be continued
out, on the land of the city opposite Summer Street, to low water
mark. This is the first attempt by the city to reclaim this land
from the sea and use it for their own benefit, and constitutes the
erection which is now the subject of complaint. The sewers are not
made to discharge their contents on the plaintiff's land, but into
the sea. No property of the plaintiff has been taken for the public
use, nor does he in these counts, on which the verdict was
obtained, claim any private right of way over the land of
defendants, but states his damage to have accrued by a public
nuisance, specially injurious to his public right of navigable way
over the lands of the defendant.
That the plaintiff had, in common with the rest of the world, a
right to navigate over the land belonging to the city on which the
erections complained of were made is not disputed. Nor is the title
of the city to the land so used, unless they have granted it away,
or otherwise disposed of it, a subject of dispute in the case.
Those under whom the plaintiff claims, as owners of the property
adjoining Summer Street, have exercised their right of dominion
over the land to low water mark by covering it with a wharf many
years ago, which is called Bull's Wharf. And those who adjoin the
street on the other side have in the same manner exercised their
right by erecting a wharf called Price's Wharf. The property of the
city being but thirty feet wide, and lying between these two
wharves, was thus, by the accidents of its form and position,
converted into a dock or receptacle for vessels without any act of
the owners of the land. A dock is defined by philologists,
according to the American use of the term, to be "the space between
wharves." No dock or slip has been made by the city or people of
Boston their land, either for their own use or that of any other
extraneous or indefinite public. So long as they did not elect to
exercise their dominion over this part of the shore, the public
right of navigation continued. It was a right defeasible at the
will of the owner of the subjacent land. It was a natural right,
not derived from any grant, real or presumed, originating with the
owner of the soil. But the adjoiners, by the use of this right of
navigation
Page 58 U. S. 435
in connection with their wharves, claim a right to enjoy the
benefit of defendant's property as a dock for their wharves, and
thus convert it to their private use under color of a public
right.
In order to effect this, it is contended that the people of
Boston, by not exercising their right of reclamation and by using
their property according to their own pleasure, have dedicated it
to the public, or world in general, as distinguished from the
public, or people of Boston, and have abandoned the full dominion
which they once might have exercised over it.
The people of Boston, who owned this land as their common and
private property, acted through a corporation, whose corporate
grants and licenses are matters of record. Their own use of their
own property for their own benefit cannot be called a dedication of
it to any other public of wider extent. Whether it was called "town
dock" or "public dock," which were used as synonymous terms, it
would furnish no ground to presume that they had parted with their
right to govern and use it in the manner most beneficial to the
people or public of the town or city.
The principles of law on which a presumption of the dedication
of private property to public use are founded are correctly stated
3 Stark. Ev. 1203 to be:
"That the law will not presume any man's acts to be illegal, and
will therefore attribute to long continued use and enjoyment, by
the public, of a right of way or other privilege in or over the
lands of another to a legal rather than an illegal origin, and will
ascribe long possession which cannot otherwise be accounted for to
a legal title upon a reasonable principle and very forcible
presumption that the acquiescence in such enjoyment for a long
period by those whose interest it was to interrupt it arose from
the knowledge and consciousness on their part that the enjoyment
was rightful and could not be disturbed, and also on consideration
of the hardship which would accrue to parties if after long
possession and when time had robbed them of the means of proof,
their titles were to be subjected to a rigorous examination."
It is evidence that these principles can have no application to
the present case. The exercise of the public right of navigation
over the soil of defendant is fully accounted for without any
presumption or grant or dedication by the owners. The public
enjoyed this highway of nature by a title reaching far before the
advent of the Pilgrims, and paramount to any grant to them or by
them, but by the law the enjoyment of this public right was made
defeasible by the owner of the land. Till he reclaimed his land,
the public needed no grant or dedication by him in order to their
enjoyment of the right of navigation over it. The
Page 58 U. S. 436
owner was not bound to exercise his right within a given time or
forfeit it. A man cannot lose the title to his lands by leaving
them in their natural state without improvement, or forfeit them by
nonuser.
See Butz v. Ihrie, 1 Rawle 218.
So long as the city chose to leave its land unreclaimed from the
sea, it could not hinder the public navigation over it when covered
with water, and could not, therefore, be properly said to acquiesce
in that which it could not hinder. Nor could a grant or dedication
of a right of way over its land be presumed in favor of the public,
who enjoyed it under a different and paramount tenure. The public
right has existed and been exercised for thousands of years, but is
not hostile to the defendants, though defeasible at their will. It
resembles the case of
Rex v. Hudson, 2 Strange 909, where
a dedication of land as a public highway was claimed by proof of
sixty years' use, but the defendant produced a lease of the way for
fifty-six years, and the court decided that no presumption of a
dedication could arise during the lease, for the owner could not
deny their right to use it, and there could be no presumption from
his acquiescence.
It is true that the presumption of a dedication is one of fact,
and not an artificial inference of mere law to be made by the
court, yet it is an inference which the court advise the jury to
make upon proof of certain facts. It is the duty of the court to
state what facts, if proved, will justify such a presumption. To
instruct the jury that certain facts are not "sufficient" evidence
on which to presume a dedication, without informing them what facts
would constitute sufficient evidence for that purpose, is devolving
on them the decision of both law and fact and permitting them to
dispose of men's property at their discretion by presuming grants
without a particle of evidence to authorize such presumption.
The counts on which the jury have assessed the damages in this
case claim no other right of highway over the lands of the
defendant save the public right of navigation, nor has the evidence
shown that he is entitled to any other. The title of the defendants
to the land was not disputed. The court ought, therefore, to have
instructed the jury that the public right of navigation over the
land of defendant was defeasible; that the owners had a right to
reclaim their land by wharfing out or making erections thereon
beneficial to themselves; that there was no evidence in the case
whatever by which the jury could presume that the city or people of
Boston had dedicated their land to the use of some other public
besides themselves; that it was consequently not only the right but
the duty of the authorities of the city to extend their sewers to
low water mark, for the
Page 58 U. S. 437
purpose of removing a nuisance injurious to the health of the
citizens; and having done so on their own land, the damage to the
plaintiff, if any, was
damnum absque injuria, and he was
not entitled to recover. The record shows that these or equivalent
instructions were prayed by the counsel of defendant and refused by
the court.
The judgment of the circuit court is therefore reversed and
a venire de novo awarded.
MR. JUSTICE DANIEL dissented.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Rhode Island, and was argued by counsel. On consideration whereof,
it is now here ordered and adjudged by this Court that the judgment
of the said circuit court in this cause be and the same is hereby
reversed with costs, and that this cause be and the same is hereby
remanded to the said circuit court with directions to award a
venire facias de novo.