Alden v. Pinney

12 Fla. 348 | Fla. | 1868

WESTCOTT, J.,

delivered the opinion of the court.

Pinney, in the court below, filed his bill against Geo. J. and Sevilla Alden, in 1866, alleging that he was the “ owner of so much of lot E, in the city of Pensacola, as lies east of a line-beginning on Recova street ninety feet from Commendancia street, and running south to the bay;” that this lot was formerly the property of the city of Pensacola, and that on the 16th March, 1827, the city, in exchange for another lot, conveyed that portion of lot IS, described above, to one Manuel Gonzalez, from whom, by several mesne conveyances, Pinney tlerives title; that at the time said deed was executed by the city to Manue! Gonzalez, the southern boundary of the lot was the hay, and that he was entitled to all the rights and privileges of a riparian owner; among which he alleges are those of accretion, free access to the harbor from the lot, an unobstructed view, a free circulation of air, as well as all the other privileges appertaining to a lot fronting- on the hay.

Pinnoy alleges that in disregard of these, his rights, the defendants have built an ice liouse in the shoal water, directly in front of his lot, and about one hundred and fifty feet from the situation of the front door of his storehouse, which was destroyed during the late Avar; that they claim other parcels of the submerged land in front of Ms lot, upon which they intend to erect, or authorize the erection of, other structures, which will still further irreparably impair Ms rights.

Ho alleges further, that he and those under AA'hom he claims, haAre been in actual possession of said lot E, and all the rights and privileges incident to a -lot fronting on the bay, -for a period of forty years; that during all this time and before, the beach and bay in front of said lot Avei-e free from obstruction until this ice house Avas erected.

The bill prays that defendants may be ordered to remove the Ice house, and for a perpetual injunction against erecting other buildings, or structures of any hind, in front of complainant’s lot.

The answer under the statute sets up, by Avay of demurrer, that tlie matters stated in tbe bill may be tried and- determined at law, and that complainant is entitled to no relief in a court of equity. It denies, upon information and belief, that complainant is a riparian proprietor; avers that his lot extended south from Recova street only fifty-eight feet eight inches; that it never extended to or was bounded by the waters of the hay; but that, on the contrary, at the time of the execution of the deed of the city to Gonzalez, in 182?, there was a space of more than eighty feet in width between lot E and the bay; that said space had • existed from time immemorial, and had been used as a street or highway; that Gonzalez, at the date of his purchase, was restricted by well-defined metes and bounds; that the lot was not bounded by the bay, and that complainant has no right to the soil under the waters of the bay, upon which the ice-house is constructed.

Defendants admit the construction of the ice-house, and allege that they are the owners of the soil upon which the ice-house is constructed, as well as other lots, upon which they claim the right to build other structures, by virtue of “ a purchase from the city of Pensacola and the heirs of Vincente Pintado, deceased,” and that said heirs held and possessed the aforesaid land by virtue of a valid Spanish grant.

After evidence and hearing, the relief prayed was decreed; and from this decree an appeal is taken to this court, by the defendants in the court below.

The case is here without any formal assignment of the grounds upon which a reversal of the decree of the court below is prayed, and the court is thus constrained to treat the case as it was argued by counsel.

Appellants urge that the demurrer was not disposed of in the court below, and that for this reason the case should be remanded, as well as that the demurrer was well taken and should have been sustained.

Under the statute of this State, the defendant is authorized to set up special matter by way of answer, and if in his pleading he prays the same benefit from it as if lie had pleaded it or demurred to the bill, he can have the benefit of it in most cases at the hearing. There is a class of cases, however, among which are such as where certain objections are taken as to parties, where this objection must be disposed of in limine.

In the other eases', and where the practice is to urge it at the hearing, it is presumed here, withofit any special allusion to the matter in the body of the final decree, that it was urged, and that it was considered by the court in arriving at its conclusions. In many cases, in fact in most cases, ex abundante cautela, it is usual to insert in the beginning of the answer that defendant prays the same benefit of the several special matters set up therein, in the same manner as if he had demurred or plead to the bill. Often, in this class of cases, the pleader has little or no confidence in this defense, and nothing further is said at the hearing. This would he an abandonment, and it is stated by the appellee, without express denial by appellant, that this demurrer was not urged, at the hearing below. All this, however, is immaterial in tins case. The objection here is, that there was adequate remedy at law, and we can consider this matter whether raised by demurrer or not. 19 How., 278. In this case, however, we know of no. common law remedy or action which would at once prevent the erection of structures upon his laud in the event complainant was a riparian proprietor, and this structure and the contemplated structure was an obstruction to the navigation, the case being that free access to the harbor is obstructed, as well as private injury, as stated by the bill. He might perhaps recover damages, but he should he entitled by the aid of the courts to prevent specia) damage occasioned by continued trespasses, if it is threatened, 'and he is a riparian proprietor. In a case of this character, where an undisputed possession of forty years is alleged, and where in an appellate court the claim of title which complainant sets up to the locus in quo is met in argument, not by establishing or urging title in the defendants, or in those from whom their rights are derived, but by a simple denial of the extent of the boundaries of complainant, and of his alleged riparian proprietorship, the jurisdiction should attach. The principal defense made in argument 'here is, not that there was title in the heirs of Pintado, or in the city, *but with but slight allusion to the title of these parties, or attempt to sustajn them, that the property of complainant was limited by well-defined boundaries, and was never bounded by ordinary high tides in calm weather.

Riparian proprietors, too, under the Act of 1856, have a title coupled with a trust for the benefit of the public, (2 Story’s Eq., 927,) and this seems to be the only view consistent with the case of Geiger vs. Filor, (8 Fla., 325,) upon the subject of jurisdiction, and we are not disposed to establish a new rule, although the old one may be questionable. Even then, could the demurrer be available here, it should be overruled.

This leads -us to the consideration of the case upon the proofs, and the first question to be determined, is: Has the complainant established that the “ southern boundary of the lot ” conveyed to Gonzalez on the 19th February, 1827, from whom he derives title, “was the bay,” or that it extended to the line of ordinary high tides in calm weather at that time ? What may be the effect of the reservation of lot E for a market house and storehouses, as designated on the plan of the Cabildo, we do not determine, as no point is made of it by defendants, and we treat the case as though an absolute and proprietary right is in the complainant to whatever passed under the deed.

The question of boundary here is a fact to he determined by a consideration of the whole evidence. The portion of lot 3£ conveyed is described in the deed as “ the easterly part of the now market lot, where the flag-staff formerly stood, and marked by the city surveyor, ninety feet in front on the hay, and fifty-eight feet-inches in width, agreeably to the allotment of the Cabildo and the new plan of the city.” This is followed by a covenant that Gonzalez, his heirs and assigns, shall forever enjoy the peaceable and quiet possession of the premises as against the city and all persons claiming under it. This deed was executed by the mayor of the city by virtue of an ordinance passed on the 19th February, 1827, as follows:

An ordinance to carry into effect an arrangement with Mr. Manuel Gonzalez.

Be it ordained by the Board of Aldermen of the city of Pensacola, That on condition of Mr. Manuel Gonzalez conveying. and delivering to the city of Pensacola the old market lot now in his possession, the mayor is hereby authorized to convoy to the said Manuel Gonzalez the eastwardly part of the new market lot, where the flag-staff formerly stood, and marked by the city surveyor, ninety feet in front on the bay and fifty-eight feet-Inches in width, agreeable to the allotment of the Cabildo, and the new plan of the city.

It is apparent from the title of this ordinance that it was passed to consummate an arrangement previously made.

On the same day the following appears on the minutes of the .’Board of Aldermen:

Hesolved, That the city surveyor be requested to survey and make an accurate plan of the building-lots, as they now stand, and also a plan of the original grants on the bay front, from the east corner of the market house to Yillaseea’s corner, in order to enable the City Council to determme»on a permanent bay front and building line.

The subsequent action of the board of aldermen shows that this resolution was passed to devise means, to stop encroachments by front proprietors upon an open road or street between the proper limits of their lots and the bay.

Agreeably to the plan of the Cabildo and the new plan of the city, the map referred to in the deed, lot E was contained within defined lines. It was bounded on the north by Recova street, on the east by Commandancia street, on the west,by a street or space not named, and on the south by an open space between the south line of the lot and, the vmter,for a distance of at least fifty or sixty feet, the lot being a parallelogram. This map, alluded to in the deed to Gonzalez in 1827, was made in 1814.

It is insisted that the call of the deed is for “ ninety feet in front on the bay,” and that this is a call for the water as a natural boundary; that it must control the' call for fifty-eight feet-inches, which is a call for distance, and that the refcrence to the new plan of the city is simply to indicate locality and not boundary.

“ It is a general principle that course and distance must yield to natural objects. The reason of the rule is, that ‘all lands-are supposed to he actually surveyed, and the intention of the grant is to convey the land according to that actual survey; ’ consequently if there are marked trees and marked corners, or other natural objects, distances must be lengthened or shortened and course carried so as to conform to those objects. It is con" ceived to bo the general intention of the grant to convey the land actually surveyed, and mistakes in course or distance are more probable and frequent than in marked trees, mountains,-, rivers, or the natural objects capable of being accurately described.” 6 Fla. Rep’ts, 506.

While this is true, it is no less well established, that a plat of a town referred to as containing- a designation of boundaries, fixes them as satisfactorily as any natural objects; and if in such case one natural boundary, a river for instance, is inconsistent with all the other designated boundaries, according to the map, the plan, or map will control unless it appears satisfactorily that the natural call has not been inserted through inadvertence or mistake.

It is not correct, however, to conceive that the call for “ ninety feet in front on the bay ” is or can be nothing else but a call for the water of the hay as a natural boundary. These terms indicate aspect as well as boundary;.for instance, in the second line-of appellee’s brief they are used as indicative of aspect, and so are they repeatedly used in the record evidence embraced in this case. Independent of the other, calls, the argument is at least as good to sustain the one position as the other.

These terms, therefore, must receive that construction and signification which is most consistent with the other calls and the evidence in the case. While the reference to the new plan, of the city and the allotment of the Cabildo indicates locality,., as was urged by appellee, yet we cannot sanction the view that it is to indicate locality alone, in the sense intended. This reference certainly gives us the northern and eastern boundary. The call is for “ the easterly part of the new market lot, where the flag-staff formerly stood,” and the other calls are only further descriptive of its boundaries and width. When we have found upon this plan the new market lot, we have certainly ascertained the eastern boundary of this lot; and so also have we in like manner the north boundary, for the north and east boundary of the lot. sold to Gonzalez cannot be other than the northern and eastern boundary of the lot agreeably to the plan on this map.

This is the only method in which we can fix the north and east boundary of the lot; and this, too, seems to be the view of the appellee so far as the north boundary is concerned, for he claims, in his bill, to own “ so much of lot E in the city of Pensacola as lies east of a line beginning on Recova street, ninety feet from Commandancia street,” and Recova street is the north boundary of lot E, and a straight line.

In Barclay vs. Howell’s Lessees, 6 Peters; 500, the deed called for the lot by its number as marked on the plan of the town, and bounded by Front street, the river Monongahela, and lots number 182 and 184. The court, in spealdng of the effect to be given to the reference to the plan, say, “ the plat of the town, which is referred to as containing a designation of the boundaries of the lot, fixes these boundaries as satisfactorily as any natural objects. So in this case, the northern and eastern boundary of the new market lot contain a designation of the boundaries of the property sold to Gonzalez as satisfactory as if natural objects were posted at each angle or termini.

We thus see that the northern boundary is a straight line of ninety feet, commencing from a point on Commandancia street, and running West on the southern boundary of Recova street, and we come now to ascertain the length of the eastern boundary. The deed in the first place restricts the whole body of the grant to the “ easterly part of the new market lot” and where is the authority to extend the boundary of the grant beyond the marked eastern boundary of lot E ? But this is not all. The words of the deed are, “and marked by the city surveyor, ninety feet in front on the bay, and fifty-eight feet-inches invñdth.” Now if the plan of the Cabildo is to govern this eastern boundary, to reach the bay must be at least one hundred •and ten féet or more. Here is a call for a southern boundary of ninety feet in front on the bay, which if these terms denote aspect makes a consistent whole, while if they indicate a water boundary, and- the plan of the Cabildo governs, you extend aline to a distance of one hundred and ten feet, which ,the deed expressly says was marked by the city surveyor to be fifty-eight feet--inóhes. Wo must accept the consistent construction.

Again, it is urged that these apparent inconsistencies between the plan and a water boundary are explained, and the explanation is that the plan indicates the line of the -bay in 1814, while the deed on the other hand speaks with equal' authority of that line in 1827, and that in 1827, owing to the abrasion of the shore, it- was washed, and the south line of lot E was covered by the water.

It has not and could not well escape the attention of the court, that while there is one witness examined in this Case who testifies fully that no structure has been placed upon the shoal water in front of this lot between the year 1815, one year after the plan of the Cabildo, and the year 1866; and while there are others 'who-must be -acquainted with the-position of the waters'Of the bay between 1815 and 1827, yet there is not a particle of positive testimony to establish an abrasion of the Shore between 1814 and 1827. The testimony of Moreno shows that, according to the scale of the plan, the distance from the north boundary of lot E to the south boufidaryj as marked on the map, is sixty feet, while the deed describes it as fifty-eight feet-inches, : and upon this dzffezezzce a presumption is cozzstructed that between 1814 and 1827, owing to the abz-asion of the shore, the line of the water had encroached upon the south bozzndary of lot E, and that when the surveyor l'amiiis line from the north boundary towards the south boundary in 1827, he struck the water at fifty-eight feet--inches, and thus the words “ in front on the bay ” indicate a water boundary. This is certainly a violent presumption in the absence of even the slightest particle of testimony going to establish an abrasion, or anything like a washing away of the soil, between 1814 and 1826 ; nor is the existence of even one of the artificial or temporary causes generally producing such results established, although it is alleged they may have existed. Besides, as the width of the lot was never marked on the plan of the Cabildo, and the surveyor, no doubt, run the line actually in 1827, and did not estimate the distance according to the general scale of the map, it is not very remarkable that there should be a slight difference between a line actually run by him in 1827, and an estimate according to the scale in 1866, especially when upon a reference to the plan of the Cabildo a difficulty in determining the initial and terminal points of the line with entire certainty is very apparent.

While the testimony of Touart, in the record, who seems to have known nothing of the metes and bounds of the lot, is not as positive or explicit as it might be, yet from liis testimony, uncontradicted, it might be admitted that in 1842, (a date more remote from the deed than the date of the plan,) the water did strike the south boundary of the lot, and still it is not seen how this could make the appellee a riparian proprietor in 1866, or Gonzalez in 1827; but even if that was the date in issue, we could not come to an affirmative conclusion upon the testimony of this witness, with such other contemporary proof as is in this case. A reference to the almost contemporary proceedings of the board of aldermen, and the report of the commissioners in 1825, leaves r¡£ room for a reasonable doubt that in 1827, at the date of the execution of the deed to Gonzalez, there was a road or open space between the lots of the city fronting on the bay and the water. The commissioners in 1825, in speaking generally of the lots fronting- on the bay, refer to “ a-public road on1 the beach,” and there was in 1866 about the pne distance from the south boundary of lot E to the water as there was in 1814.

We have, in the record, the following report of a committee of the board of aldermen, of the date of August 4th, 182Í :

“ The committee who were directed by resolution of the 16th July ‘ to examine the size and dimensions of the water lots,’ and also to inquire into the ‘ expediency of establishing- a building line on the bay ’ beyond which no building should be erected, and declaring a water street in front of said line; and likewise what disposition should be made of the space in rear of the building line; and further, if any encroachments have been made by persons who have built upon water lots, how they are to be disposed of, beg leave to report:

“ Your committee being apprised of the difficulty and importance of this subject, with the deep interest that is involved in the questions that may grow out of the investigations of the -rights of the corporation and those of individuals, have bestowed upon it a careful and attentive examination so far as their means of information extended. It is apparent, upon the English plan of Pensacola, that the water lots loere never designed to extend to the margin of the bay ; the same thing is equally clear upon the Spanish plan. Both these plans show clearly and distinctly that the space between the water lots and the bay was reserved as a-common property for the use and benefit of the city, and designed for the erection of wharves and docks, th c, establishment of streets, and other general uses for the common benefit. If this space between the true lines of the water lots and the building line in front of the city be the common property of the corporation} every encroachment upon it is an injury done to the common interest, and should be subject to its consequent damages.

“ To carry into full effect the plan of the city, and to maintain the ground already contended for that the bay should be kept open for common use and common benefit, Mansfield street according to the English, Zaragossa according to the Spanish plan, was made the base of the water lots. Agreeably to the first plan, the water lots were laid out 80 feet front, and extending towards the hay 170 feet, with garden lots corresponding to each of 105 by 208 feet. Those grants by water lots were made by the British government in the year 1765. After the Spaniards became possessed of the city, nearly all of the English titles to the water lots were forfeited, and consequently became Spanish property. The Spanish adopted the same plan of basing the water lots upon Zaragossa street, but at least some of them did not extend towards the bay. If these water lots had extended from Zaragossa street to the water’s edge, or from the margin of the bay to Zaragossa street, no claim could be sot up by the corporation for the space between the true lines of the lots and the building line, as already alluded to; but as the facts of the case are, so will be the result. It appears very clear to your committee that this space belongs to the corporation as an interest in common to the inhabitants of the city, and that all that can be asked by the individuals claiming water lots is the full extent of their lots according to their respective grants; for by what rule of right can an individual ask and claim that which has not been granted to him, or sold to him, nor for which he has paid his money ? The zigzag appearance of the present building line on the bay is of itself sufficient to convince your committee of the necessity of establishing a street and building line on the bay, beyond which no building shall be erected.”

The committee, then, after recommending a building line, further advise that the space between the true lines of each water lot, according to its grant, and the building line referred to, be paid for by the individuals owning back of it in improvements to be done upon the line of Water street, &o.

With this report an ordinance is submitted to accomplish the end desired. The mayor disapproves the ordinance, but he affirms in what he states the general views of the board of aider-men as to a street on the bay front.

The memorial, in the record, is a protest against any action to straighten the road along the bay. Its language is, that such action will be “ extremely inj uricms to the public by straightening the wagon road,'and greatly embarrassing the most commercial part of the city.”

It needs no argument to show that the fact that the southern boundary of lot E reached the water in 1827, is inconsistent with these almost contemporary expressions. They allude to no abrasions of the shore, and no such changes in the line of high tides as appellee contends for. It would be little less than absurd for'the city to be urging a permanent line for a bay front, with an open space between the lots and the bay, and yet be selling lots with a water boundary, and giving a covenant for a quiet and exclusive possession of grounds Avhich were, in their judgment, dedicated to the public.

A complainant seeking relief in a court o£ equity must produce “ that degree of certainty, based upon-appropriato evidence, either positive or circumstantial, which creates a moral conviction in the mind of the court ” that the facts are as he alleges, or he cannot have the relief he asks. 7 Fla., 144-5.

Our conclusion is, that the complainant has failed to prove that Gonzalez was a riparian jmojuietor in 1827, or that complainant in 1856 had a water boundary, and this whether the act of 1.856 vests the rights therein conferred upon parties other than “ those owning lands actually bounded by and extending to low water mark,” or not, a question which is not determined.

The case made by the bill is that of a riparian proprietor strictly, but being most ably argued in other respects, by both counsel, we consider it in those respects.

This street or space between the southern boundary of lot E being subject to the use of the public, it is insisted that the erection of this structure, at the point designated in the water, is such an interference with this right of the public and his right, as to vest the appellee with an equity to have it removed. Without determining any question of jurisdiction in the event it was held that it was an. interfei'ence with any public right, it is enough to say that we cannot see how, in fact — and that is the point to which pur inquiry must be directed — the construction of this house at a point considerably distant from the road or street, and not immediately bordering on it, can interfere with any right which the individual may have to the use of the road, or that his property is impaired or injured by any misuse of-the road.

If the construction of this building, at this distance from the south boundary of the street or road, produce such results, then it is not perceived what could modify the principle when buildings are constructed within the same distance north of the street.

Again, it is insisted that, as a front proprietor, he is entitled to have this obstruction removed. Whether the title to the .soil under the water between the southern boundary of the road or street and the channel of the bay is in the heirs of Pintado, or whether, not being in the heirs of Pintado, the dedication of this road or street (bounded as it is with the water of the bay) to the use of the public anterior to the incorporation of the city, under the circumstances and at the remote period of its dedication, vests the title to this passage or road in the city upon its subsequent incorporation, or whether the city has title to this submerged soil under the acts of Congress, or whether, having title to the soil of the passage or road, and being thus the owner of lands “actually bounded by and extending to low water mark,” within the meaning of the statute, the city by virtue of this ownership and the act of 2'7th Dec., 1856, became vested with title to all the land covered by water as far as to the edge of the channel, with the right and privilege to build wharves into the bay, and do whatever else may be for the benefit of commerce, are all questions which it is unnecessary for the decision of this case to determine; and this court would be justly subject to censure should it volunteer the results of its investigation of these subjects.

Whatever rights Pinney has in reference to the space from the channel to the southern boundary of the passage along the coast, do not result from any title to the soil in him, and these rights, therefore, whatever they are, must exist independent of title; and whether the title be in the city, in the heirs of Pintado, or in Alden, the rights of Pinney are the same.

Wherever the title to .this soil is, whether it be in the city, or the heirs of Pintado, or in the State, it cannot, under existing laws, be used in any event to obstruct navigation or commerce. If the grantees of the State hold it, it is coupled with this trust, and if it is put to such use, or such use is threatened, there are circumstances under which complainant can properly seek a court of law or equity to redress injuries. If this ice-house, or any other structure which defendants intend to construct, will be an obstruction to navigation, a hindrance to commerce, or impede or transgress the rights of the public in this respect, the remedy to correct this public evil, while it exists in the State courts, is not at the suit of an individual citizen, lie can only seek a court of law 01*'equity in cases of sp>ecial damage to himself. Such special damage, in case of a public nuisance, must be beyond and in addition to that which falls alike upon all, and he must seek relief in a court of law or equity, as the nature of Ms special injuries and the remedies for them should determine to be appropriate. 9 Howard, 28; Ang. on Tide Waters, 119, 120, 121.

Tn this view, Avhat character of case have avo here presented upon the pdeaclings and proofs ? The rights Avhich are claimed to be affected are “ the right of accretion, free access to the harbor without let or hindrance, an unobstructed aúcav, a free circulation of air, as Avell as all the other privileges appertaining to a lot fronting on the .bay.”

The particular act or grievance set forth is, that defendants have built an ice-house in the shoal water directly in front of his lot, about one hundred and fifty feet from the point where was situated the front door of Ms storehouse, which structure Avas destroyed during the war, and that the defendants claim other parcels of the submerged land in front of his lot, upon which it is intended to erect other structures, which will still further irreparably impair his rights. The answer admits the erection of the ice house, and claims the right of erecting buildings upon the other lots in front of the lot of complainant, and a reference to the deed and map in the record shoAvs that the other lots claimed by Sevilla Alden occupy about the same relative position to the property of Pinney as the one upon Avhich the ice house has been constructed.

The erection of this structure by defendants is a mark of title and of exclusive enjoyment. A mere question of title is one which a court of equity should not try. 19 How., 278. Beyond the simple erection of this structure there is but little evidence as to the character of the structure. There is nothing but the deed, Avhich gives its dimensions. The individual at common laAAr has no right, independent of the question of injury, to himself, to have such a structure removed. Such soil Avas the King’s, and ho could demolish or seize the structure, the only limitation upon his authority being that in case it was a public nuisance the ci'OAvn could not license it. Subject to Avhatever modifications this principle may have undergone by virtue of the legislation of 1856, it is presumed the State may proceed, as a general rule, in like manner by information or bill.

All obstructions to navigation not occasioned by misfortune or inevitable accident, and Avithout any fault on the part of the owner, and which .are not authorized by the Legislature, are public nuisances, and as such, subject the authors to indictment. Russell on Crimes, 274. Yet Avhat is in fact such an obstruction to commerce is not so clear-. Buildings in the waters of navigable bays are not ipse facto nuisances. Whether they are so, is a question of fact, to be determined in each case, and when especicd damage is proven, an action on the case for such particular damage may bo maintained by the individual. 1 Hill, So. Ca., 365; 3 Dowling, Pr. Cases, 61; 4 Watts, 437; 4 H. & McH., 540; 6 Pick., 94

It is also true that a court of equity may interpose by injunction in cases of alleged apprehended irreparable mischief; but there must be something more than a speculative injury to invite its preventive and. corrective power. 6 Pick., 94; 21 Pick,, 344; 9 How., 10. Were the complainants in the court below riparian proprietors, with the peculiar incidents attaching to that property under the statute, we have seen that the expressed intention of further trespasses and injuries, with the other circumstances of this case, among which is a possession of lot E for forty years, would be sufficient to give a court of equity-jurisdiction. 12 Peters, 95. But this is not the case here. There is no right of accretion in-Pinney to be disturbed. Should it clearly appear that free access to the harbor was obstructed, this would not of itself give him a standing either in a court of law or equity, unless lie presented a case of special damage, and then the nature of the threatened injury would determine the jurisdiction.

The claim of an unobstructed view and free circulation of air cannot prevent the building of structures at this distance, and there is no such case of obstruction here as comes within the authorities. There is no evidence in this record which enables the court to'know anything of the distance of the channel from this house, and no obstruction to the navigation of the bay is proved.

It is not made to appear that ajjpellee has suffered any such special or irreparable damage, or that any injury is threatened, which would call for the intervention of a court of equity. 21 Pick., 344; 9 How., 27; 12 Peters, 91; Ang. on Tide Waters, 120-121; 19 Ves., 616.

If, independent of the question of riparian ownership and the requirements .of commerce, the complainant has a right to have this structure removed, and to prohibit the erection of “any other structures,” then even wharves, which facilitate commerce, would bo a violation of this right. Ang. Tide Wat., 196-197. The bill should have been dismissed upon the hearing.

It is therefore' ordered, adjudged, and decreed, that the decree-in this case is reversed and set aside, and that the causo be remanded for further proceedings, in accordance with this opinion.