1. Riparian proprietors have a right to erect bridge piers and
landing places on the shores of navigable rivers, lakes, bays, and
arms of the sea if they conform to the regulations of the state and
do not obstruct the paramount right of navigation.
2. The right to make such erections terminates at the point of
navigability.
3. Where they are confined to the shore and no positive law or
regulation is violated by their construction, he who alleges them
to be a nuisance or an obstruction to navigation must prove it, for
the presumption is the other way.
4. Piers or landing places may be either public or private, and
the question whether they belong to one or the other class depends
upon the purpose for which they were built, the uses to which they
have been applied, the place where located, and the character of
the structure.
5. A riparian proprietor may construct a pier for his own
exclusive use and benefit, and where he has reserved it to himself
and never held it out as intended for the use of others, no
implication arises, if a party without leave moors his vessel to
such a pier, that he has done so with the owner's consent.
6. Where a vessel is thus wrongfully attached to a private pier
without the consent of its owner, the peril of the vessel, no
matter how great, imposes no obligation upon such owner to allow
her to remain and hazard his own property to save that of a
trespasser.
This case came before the Supreme Court upon a writ of error to
the District Court of the United States for the District
Page 66 U. S. 24
of Wisconsin. It was, in its origin, an action of trespass on
the case brought by H. Norton Strong and William H. Goodnow against
Achas P. Dutton and Cyrus Hines.
In 1855, Messrs. Dutton and Hines, the plaintiffs in error,
owned a pier situated at Racine, upon Lake Michigan, and extending
into the lake, which served the purposes both of a landing place
for freight and for its stowage. This pier was private property,
and although its owners, who were forwarding merchants, sometimes
moored vessels, which came there upon their own business, to its
timbers, it does not appear that they ever suffered anybody else to
do so, or that any other person claimed the right. On the sixth of
May, 1855, the ship
Homer Ramsdell, owned by the
defendants in error, Messrs. Strong and Goodnow, was driven by
stress of weather to the neighborhood of this pier, and the
captain, fearful of going ashore, made his vessel fast to it. The
violence of the gale increased the pull on the hawser by which the
ship was moored to such a degree that the piles began to give way
under the strain, whereupon one of the owners of the pier warned
the master to cut loose or they would themselves set him adrift.
The master did not heed this warning, and the defendants, after
waiting to see if he meant to obey it, cut the hawser. The vessel,
as soon as set loose, was driven upon another pier, and to prevent
her utter destruction was scuttled and sunk.
The court below was requested by the defendants in error to
instruct the jury that if the evidence satisfied them that it was
material for the preservation of the pier to cut the vessel loose
from it, the person in charge of the pier had a right to do so, as
against all rights of property in the vessel, after reasonable
notice given and request made and refused for the vessel to leave.
This instruction the court refused to give, and charged the jury
that the pier was run out into the lake for the accommodation of
commerce, and was used as private property in public business; that
the vessel was liable for such damage as she was doing the pier,
and that the owners of the pier were not justifiable or excusable
in cutting the vessel loose if it was material for the safety or
protection of the pier. To this portion of the court's charge, and
to its refusal to grant two other
Page 66 U. S. 25
prayers of the defendant, not necessary to be noticed here
because not considered in this Court, the defendants excepted. The
verdict of the jury and the judgment of the district court were in
favor of the plaintiffs, whereupon the defendants took this writ of
error.
Page 66 U. S. 26
MR. JUSTICE CLIFFORD
*
This case comes before the Court upon a writ of error to the
District Court of the United States for the District of Wisconsin.
It was an action of trespass upon the case, and was instituted in
the court below on the seventh day of July, 1856, by the present
defendants. They were the owners of a certain vessel called the
Homer Ramsdell, and the plaintiffs in error, who were the
defendants in the original suit, were the owners and occupants of a
certain bridge pier situated at Racine, in the State of Michigan,
southerly of the harbor at that place. Like other similar
erections, it was connected with the land at the margin
Page 66 U. S. 27
of the lake, and extended into the water, so that vessels could
approach it for the purpose of taking in freight, serving both as a
wharf to the navigable water of the lake, and as a place of deposit
for merchandise designed for transportation by water. As stated in
the bill of exceptions, the defendants were forwarding merchants,
and the case shows that they had used the bridge pier for the
purpose of mooring vessels coming there in the course of their
business, but it does not appear that it had ever been used for
that purpose by any other persons. Another bridge pier, situated
south of the one owned by the defendants, had been constructed, and
was occupied by other parties, and was used for the same purpose by
its owners as that of the defendants. According to the transcript,
the declaration contained four counts, but they were all founded
upon the same transaction. Three of the counts were substantially
the same, and alleged, in effect, that the plaintiffs were the
owners of the vessel; that while she was lawfully employed in
navigating the waters of Lake Michigan, she had, by stress of
weather and the perils of navigation, been driven alongside of a
certain dock and common mooring place at Racine, commonly called a
bridge pier, to which she was then and there moored and fastened by
cables and lines, and that the defendants, on the seventh day of
May, 1855, wrongfully cut and severed the moorings by which the
vessel was fastened, and cast her loose from the pier, and that in
consequence thereof, she was driven, by the force of the wind and
waves, against a certain other dock and pier there situate, and on
to the shore of the lake, by reason whereof she was greatly
damaged, and so injured that she sunk in the lake.
Unlike the first three counts, the fourth alleged that the
defendants, at the same time and place, did, wrongfully and
unlawfully, erect, and cause to be erected, a certain permanent
bridge or structure on the navigable waters of Lake Michigan,
whereby the vessel of the plaintiffs was wholly unable to make the
harbor at Racine, or to put out into the lake, as she otherwise
might and would have done; and, in consequence of the obstruction,
was, by the wind and waves, driven on the shore, and against a
certain dock, and greatly damaged, as
Page 66 U. S. 28
alleged in the other counts of the declaration. To the whole
declaration, as more fully set forth in the transcript, the
defendants pleaded that they were not guilty, and on that issue the
parties went to trial. None of the evidence given by the defendants
is reported in the bill of exceptions; but it appears from that
introduced by the plaintiffs that the schooner was bound from
Chicago, in the State of Illinois, to Racine, in the State of
Wisconsin, and that she was sailing in ballast. Assuming the
testimony of the master to be correct, she left Chicago on the
sixth day of May, 1855, and arrived off the harbor of Racine
between twelve and one o'clock at night in perfect safety. When she
was about one-fourth of a mile from the harbor, the wind suddenly
changed from south to north-northeast, and blew hard. Those in
charge of the vessel state that they could see but one light at the
time; and, supposing it to be the light on the northern pier in the
harbor to which they were bound, they headed the vessel for that
light. Contrary, however, to what they supposed, there was no light
on either of the harbor piers, and, in point of fact, it was a
light on the bridge pier of the defendants. Heading for that light,
the vessel, as she advanced, was approaching the shore, and she
soon passed between the two bridge piers, already described as
situated southerly of the harbor. When they got close to the light
they discovered the mistake; but, instead of changing the course of
the vessel, they took in sail and let go the anchor, to prevent her
from going on to the beach. Whether these precautions were the best
that could have been adopted, or not, they had the effect to check
the speed of the vessel, and, as she ceased to make headway, she
sagged over against the southern bridge pier without receiving any
injury. Their next step was to get out lines on to the bridge pier
of the defendants, in order to work the vessel away from the
southern pier, and prevent her from pounding. Finding that the
lines were insufficient, they got out the large hawser and two
other lines, and finally, with the aid of six additional men, and
after getting out another hawser belonging to the vessel, and
purchasing a new one for the purpose, they succeeded in getting the
vessel up to the bridge pier of
Page 66 U. S. 29
the defendants, or near it, at four o'clock in the morning. Her
bow, as the master states, was still thirty or forty feet from the
pier, and he says he bought the new line and employed the
additional help to heave the vessel up to the pier, which was not
fully accomplished until ten o'clock in the forenoon. Seeing that
the wind and sea had increased in the meantime, they then concluded
to make her fast to the pier, and accordingly got out the chain and
fastened it to a pile on the opposite side of the pier, using, for
that purpose, the hawsers and lines previously got out to work the
vessel up to the pier. About twelve o'clock, the vessel commenced
pounding, and the pile to which the chain was attached started and
passed through the pier eight or ten feet, and the clear inference
from the testimony is that all the fastenings gave way, except the
new line and the chain.
Another witness, examined by the plaintiff, states that when the
vessel commenced pounding, the pier began to start; and he says it
was two o'clock in the afternoon when the pile to which the chain
was attached gave way. Although it gave way, it did not then pass
entirely through the bridge pier, but lodged against other piles on
which the pier was built; and consequently the chain would still
assist in holding the vessel, unless the pile broke, or that part
of the pier was carried away. At this juncture, one of the
defendants came upon the pier and directed the master to get the
vessel away from the pier, informing him that if he did not he
would cast her adrift, to which the master replied, that he would
leave, if possible; and if not, he would continue to hold on to the
bridge pier. But he did not make any attempt to leave, and a person
in the employment of the defendants cut the hawser. When the hawser
was severed, and the strain came upon the chain, the second mate of
the vessel says the rest of the piles gave way, and the vessel went
over to the south bridge pier, carrying away her stanchions and
bulwarks on her larboard side, and, to prevent further damage, she
was scuttled, by the order of the master, and presently sunk. Such
is the substance of the testimony introduced by the plaintiff, as
reported in the bill of exceptions. Several prayers for
instructions to the jury
Page 66 U. S. 30
were presented by the defendants, but, in the view we have taken
of the case, it will only become necessary to refer to the second,
and to the response given thereto by the court. By the second
prayer of the defendants, the court was requested to instruct the
jury that if they believed, from the evidence that it was material
for the preservation of the pier to cut the vessel loose from it,
the persons in charge of the pier had a right to do so, as against
all rights of property in the vessel, after reasonable notice
given, and request made and refused for the vessel to leave. But
the court refused to give the instruction as requested, and charged
the jury in substance as follows:
That if the vessel was attached to the pier towards its outer
end and was in peril, the owner of the pier could not put the
vessel in greater peril by cutting her loose for the safety or
protection of the pier. He also told the jury that the pier was run
out into the lake for the accommodation of commerce, and was used
as private property in public business, that the vessel was liable
for such damage as she was doing the pier, and that the owners of
the pier were not justifiable or excusable for cutting the vessel
loose, even if it was material for them to do so for the safety or
protection of the pier or of that part to which the vessel was
attached. Under the instructions of the court, the jury returned
their verdict in favor of the plaintiffs, and the defendants
excepted to the instructions given, and to the refusal of the court
to instruct the jury as requested.
It is insisted by the defendants, that the district judge erred,
as well in his refusal to instruct the jury as requested, as in the
instructions given.
On the part of the plaintiffs, both of those propositions are
controverted; and they contend, in the first place, that the bridge
pier was a nuisance, because, as they insist, it was an obstruction
to the public right of navigation; and secondly, they contend that
the defendants had no right to cut the hawser, and cast the vessel
adrift, however necessary it was for them to do so, for the safety
and protection of the bridge pier, because, as they insist, the
defendants, by erecting the pier in the waters of the lake, had
impliedly licensed the plaintiffs,
Page 66 U. S. 31
and all others navigating those waters, to come there with their
vessels, and moor them to the pier; and that the license, of
necessity, includes the right to use the pier, according to the
exigencies of the case.
1. Unless it be true, that every landing place and bridge pier
erected on the shore of navigable waters without a special
authority from the legislature, is necessarily a nuisance, it is a
sufficient answer to the first position of the plaintiffs to say,
that there was not a particle of evidence in the case to support
the theory of fact on which the proposition is based. All that
appeared upon the subject in the court below was that the bridge
pier in question extended several hundred feet into the waters of
the lake; but it was not even suggested that any less extension
would have answered the purpose for which the pier was constructed,
or that it was any greater than is usual in similar erections on
that shore of the lake, or that the pier, as constructed,
constituted any obstruction whatever to the public right of
navigation. On the contrary, the court adopted the theory that the
vessel or her owners would be liable for the damage done to the
pier, and sustained the right of the plaintiffs to recover,
entirely upon the ground that the peril of the vessel justified the
master in refusing to leave; and that the defendants, whatever
might be the consequences to the pier if the vessel remained, had
no right to cut the hawser, and thereby expose her to greater
danger, notwithstanding they were in the possession of the pier,
and it was admitted that it was their private property. Bridge
piers and landing places, as well as wharves and permanent piers,
are frequently constructed by the riparian proprietor on the shores
of navigable rivers, bays, and arms of the sea, as well as on the
lakes; and where they conform to the regulations of the state, and
do not extend below low water mark, it has never been held that
they were a nuisance, unless it appeared that they were an
obstruction to the paramount right of navigation. Whether a
nuisance or not is a question of fact; and where they are confined
to the shore, and no positive law or regulation was violated in
their erection, the presumption is that they are not an
obstruction, and he who alleges the contrary must prove it.
Wharves,
Page 66 U. S. 32
quays, piers, and landing places, for the loading and unloading
of vessels, were constructed in the navigable waters of the
Atlantic states by riparian proprietors at a very early period in
colonial times; and, in point of fact, the right to build such
erections, subject to the limitations before mentioned, has been
claimed and exercised by the owner of the adjacent land from the
first settlement of the country to the present time. Ang. on Tide
Wat. 196
Our ancestors, when they immigrated here, undoubtedly brought
the common law with them as part of their inheritance, but they
soon found it indispensable, in order to secure these conveniences,
to sanction the appropriation of the soil between high and low
water mark to the accomplishment of these objects. Different states
adopted different regulations upon the subject, and in some the
right of the riparian proprietor rests upon immemorial local usage.
No reason is perceived why the same general principle should not be
applicable to the lakes, although those waters are not affected by
the ebb and flow of the tide, and consequently the terms "high and
low water mark" are not strictly applicable. But the lakes are not
navigable in any proper sense, at least in certain places, for a
considerable distance from the margin of the water. Wherever the
water of the shore, so to speak, is too shoal to be navigable,
there is the same necessity for such erections as in the bays and
arms of the sea, and where that necessity exists, it is difficult
to see any reason for denying to the adjacent owner the right to
supply it; but the right must be understood as terminating at the
point of navigability, where the necessity for such erections
ordinarily ceases.
2. Piers or landing places, and even wharves, may be private, or
they may be in their nature public, although the property may be in
an individual owner -- or, in other words, the owner may have the
right to the exclusive enjoyment of the structure, and to exclude
all other persons from its use; or he may be under obligation to
concede to others the privilege of landing their goods, or of
mooring their vessels there, upon the payment of a reasonable
compensation as wharfage; and whether they are the one or the other
may depend, in case
Page 66 U. S. 33
of dispute, upon several considerations, involving the purpose
for which they were built, the uses to which they have been
applied, the place where located, and the nature and character of
the structure. Undoubtedly, a riparian proprietor may construct
anyone of these improvements for his own exclusive use and benefit;
and, if not located in a harbor, or other usual resting place for
vessels, and if confined within the shore of the sea or the
unnavigable waters of a lake, and it had not been used by others,
or held out as intended for such use, no implication would arise,
in a case like the present, that the owner had consented to the
mooring of the vessel to the bridge pier.
Looking at the statement of the facts, as derived from the
evidence reported in the bill of exceptions, it is obvious, that
everyone of the foregoing conditions substantially concur in this
case, and consequently it must be assumed that the master attached
the vessel to the pier without any authority from the defendants,
either express or implied. He had no business to transact with the
plaintiff, and the vessel was not going to the pier for freight, so
that all pretense of a license utterly fails.
That fact alone, however, under the circumstances of this case,
might not perhaps be sufficient to justify or excuse the defendants
for cutting the hawser. Every man is bound by law so to use his own
property as not to injure the property of another, and unless the
defendants are brought within the fair operation of that rule, they
cannot be justified or excused. But that rule is applicable to the
plaintiffs as well as to the defendants, and he who would invoke
the benefit of the rule must first comply with its
requisitions.
Failing to show a license to attach the vessel to the pier, the
plaintiffs set up the peril of the vessel, and insist that she had
a right to remain, notwithstanding the request to leave, during its
continuance, and consequently that the defendants cannot be
justified or excused for cutting her loose.
Suppose the right to remain during the continuance of the peril,
if she could have done so without danger or injury to the property
of the defendants, be admitted, still the admission
Page 66 U. S. 34
would not benefit the plaintiffs in this case, for the reason
that they or their agent had wrongfully attached the vessel to the
pier; and when it became obvious that the necessary effect of the
trespass, if suffered to be continued, would be to endanger and
injure or perhaps destroy the pier, the peril of the vessel imposed
no obligations upon the defendants to allow her to remain and take
the hazard that their own property would be sacrificed in the
effort to save the property of wrongdoers. On the contrary, they
had a clear right to interpose, and disengage the vessel from the
pier to which she had been wrongfully attached, as the only means
in their power to relieve their property from the impending danger.
They had never consented to incur that danger, and were not in
fault on account of the insufficiency of the pier to hold the
vessel, because it had not been erected or designed as a mooring
place for vessels in rough weather, and it was the fault of the
plaintiffs or their agent that the vessel was placed in that
situation.
Reference is made by the plaintiffs to the case of
Heaney v.
Heeney, 2 Den. 625, as asserting a contrary doctrine; but
after a careful examination of the case, we think it will not bear
any such construction. Recurring to the facts of the case, it will
be seen that the litigation arose out of a dispute about the title
of the dock before it was completed. With a view to get possession
of the dock, the plaintiffs attached their vessel to it, and the
defendants, who had previously had the possession, severed the
fastenings and cast her loose at a time when there was no danger
whatever to the dock; and it was held that inasmuch as the
occupancy of the plaintiffs was lawful, the defendants could not
terminate it by setting the vessel adrift, so as to endanger her
safety, until they had put the plaintiffs in fault. But the court
admitted that if the entry of the plaintiffs into the dock had been
tortious, then, indeed, the defendants would have had a right to
cut her loose, doing no unnecessary damage, in order to the
enjoyment of their rights.
In view of the whole case, we are of the opinion that the second
prayer for instruction, presented by the defendants, should have
been adopted by the court, and that the instructions
Page 66 U. S. 35
given to the jury in answer to their request were also
erroneous.
Judgment of the district court reversed, with costs, and the
cause remanded, with directions to issue a venire facias de
novo.
* The reader of these Reports will understand that an opinion
delivered by one judge is the opinion of the court in that case,
and it is the opinion of the whole Court unless a dissent be
reported.