29 Ind. 364 | Ind. | 1868
There are errors and cross-errors assigned, but all the questions involved turn upon the nature and extent of the rights of the riparian owners along the Ohio river.
The appellant owns real estate in the city of Madison, bordering on the river. The river front of this property extends from the west line of West street two squares down the river. This river front is graded from the top of the bank to the water line, and is known as wharf property. For many years the appellant has kept upon this property a wharf boat, subservient to the uses of river navigation and commerce. For the use of it he receives, from steamers and other watercraft navigating the river, from $3 to $25 for each landing, depending on the length of time a boat remains at the wharf, and the amount of business done. Two other public wharfs are maintained at Madison, viz., the “ Roe Wharf,” extending from the eastern line of West street up the river one hundred and sixty-eight feet to the west line of an alley, and the “City Wharf,” extending from the east line of that alley up the river one hundred and sixty-eight feet to Mulberry street. West street is sixty feet wide; it is the principal thoroughfare leading from the
• The appellees, The Cincinnati and Louisville Mail Line Co., have, for many years, owned and run a daily line of steamers each way, and daring a great portion of the time they have run a double daily line of boats each way. Por several years past, all these boats have landed at the “Roe Wharf,” making, usually, four landings each day. Sometimes a boat thus landed would remain two hours, but ordinarily from a quarter to half an hour. The results of this arrangement, so far as concerned the plaintiff, were that very frequently his wharf boat was struck and broken, and thrown out of water by defendants’ steamers, thus causing direct pecuniary damage; and that constantly, at least twice, and usually four times, a day, the large boats of the defendants rested upon plaintiff’s wharf, lapping over and covering up from one-third to one-half of his wharf boat. While his wharf boat was thus occupied by defendants’ steamers, no other boat could land at it without first pushing them out into the river, occupying from five to ten minutes each time. Another result of this arrangement was, and necessarily would be, that transient steamers approaching the plaintiff’s wharf, but finding it thus obstructed, would, whenever there was sufficient water, pass up outside, and land at an unobstructed rival wharf above.
The evidence given, and that offered by the appellant, and ruled out by the court below, tended strongly to show that the plaintiff" was damaged by this mode of landing. Is this, in legal sense, an injury, or is it damnum absque in
The inquiry that meets us at the threshold is, what are the rights of the navigator of this river, to the use of its banks and margins ? The Ohio river is a great navigable highway between states, and the public have all the rights that by law appertain to public rivers as against the riparian owner. But there is no “ shore,” in the legal sense of that term; that is, a margin between high and low tide — the title to which is common. The banks belong to the riparian owner, and he owns an absolute' fee down to low water mark. Stinson v. Butler et al., 4 Blackf. 285.
In Ball v. Herbert, 3 Term 253, the question considered was whether there existed a common law right to use the banks of the river Ouze for towing boats. That was a navigable river, and in the state of navigation then existing, the right thus to use the banks was essential. But all the 'judges concurred in holding that no such right existed at common law.
In Blundell v. Catterall, 5 Barn. & Ald. 268, (7 Eng. Com. Law 152) determined in the King’s Bench, the question was, whether, or not, the public had a common law right of bathing in the sea, and, as incident thereto, of crossing the shore for that purpose. This led. to a very general consideration of the subject of public and riparian rights, the result of which was a denial of the right claimed.
Justice Holkoyd, after recognizing the public right of passage over the sea and over navigable rivers, says: “These rights are noticed by Lord Hale; but whatever further rights, if any, they have in the sea or in navigable rivers, it is a very different question whether they have, or how far they have, independently of necessity or usage, public rights upon the shore, (that is to say, between high and low water mark,) when it is not sea oí covered with water, and especially when it has from time immemorial been, or has since become, private property. For the pur
Mr. "Washburn, in his work on Easements, states the law on this subject thus: “In regard to the right to'land upon other points, upon the banks of a navigable stream, than" those which have, in some way, become public landings, the law would seem to confine it to eases of necessity, where, in the proper exercise of the right of passage upon the stream of water, it became unavoidable that one should make use of the bank for landing upon, or fastening his craft to, in the prosecution of his passage.” 'Washburn on Eas. and Serv. § 9, p. 403.
The Supreme Court of the United States, in Dutton v. Strong, 1 Black 23, recognized the right of a riparian owner to erect, for private use, a pier extending into a lake, which served the purpose both of a landing place for freight and for its stowage.
The Ohio river is a great highway between states under national sanction, yet we suppose that it would not be in conflict with the authority of the general government for this state, within her territorial limits, to provide for and regulate by law public landing places along its shore for the
The right to the use of the river as a highway for pas» sage is distinct from the right to land for the purpose of receiving and discharging freight and passengers. The former is secured to the public; the latter must be exercised with reference to the rights of the riparian owner.
The river being public and its banks being private, it is not difficult to discover the true foundation of those riparian rights, known as wharf rights. It is essential to the successful prosecution of his business that the navigator shall make frequent landings, to lade and unlade, to receive and discharge passengers, and to receive supplies. But, except in case of some peril or emergency of navigation, he cannot thus land without the consent of the riparian owner, and, in return for the privilege of landing, a reasonable compensation may be demanded. This is the origin of wharfage.
In Blundell v. Caterall, supra, Best, J., who dissented from the opinion of the court denying the common law right of bathing in the sea, in the course of his opinion says: “ The owner of the soil of the shore may also erect such buildings or other things as are necessary for the carrying on of commerce and navigation on any parts of the shore that may be conveniently used for such erections, taking care to impede as little as possible, the public i’ight of way. This is not more inconsistent with a public right of way over it than the right of digging a mine under a road or the erecting of a wharf on a river are inconsistent with the right of way along such road or river. The former does not interfere with the use of the road; and although the latter, in order to be useful, must be carried out beyond the high water mark, and, while the tide is up, must somewhat narrow the passage of the river; yet such wharfs are necessary for the loading and unloading of vessels, and the right of passage must be accommodated to the right of loading and unloading the craft that pass.”
Chief Justice Abbott, in the course of his opinion in the
In the case of Dutton v. Strong, 1 Black 23, above cited, the court say: “Wharfs, 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.”
These wharfs,, if they would subserve the only purpose for which they exist, must approach at least to the edge of that portion of the river that is practically navigable. The right to place and maintain them even beyond this point, provided they do not unnecessarily obstruct navigation, is a well established incident to riparian title. The wharf boat is entitled to the. same immunity from trespass or obstruction by vessels navigating the river as the land itself.
If a navigator lands, without authority, on a barren bank, he is technically a trespasser for trampling over the pebbles. But incident to the ownership of that barren bank, is a vested right of great possible value — the right to hire it for the incidental use of navigation whenever and wherever a developed river commerce may bring it into demand. .The wharf boat represents this right or privilege in its condition of beneficial development. It would be but an idle benefit to the proprietor if the law protected him only against technical trespass upon the naked bank, but refused to protect him in the customary exercise and enjoyment of the only right that makes his title to the bank especially valuable. If the navigator cannot lay his boat in invitum against the soil, or obstruct the proprietor’s access to the river, still
Washburn on Ease. &Serv.,p. 400, has this passage: “So a party obstructed in the use of a stream as a highway, may himself remove it, as was held where one fastened a raft of logs to the bank in such a manner as to prevent another from landing at his own wharf in a boat,”
Rice v. Ruddiman, 10 Mich. 125, was a case involving the consideration of riparian rights. Judge Manning, in his opinion in the case, says: “Wharfs and piers are almost as necessary to navigation as vessels and ship yards, or the places for the construction of vessels,-are indispensable. * * * It seems to me, on principle as well as reason, that the owner
in his opinion in that case, says: “ They (riparian owners) have the right to construct wharves, buildings, and other improvements in front of their lands, so long as the public servitude is not thereby impaired. They are a part of the realty to which they are attached, and pass with it. Certainly no one can occupy, for his individual purposes, the water in front of such riparian proprietor, and the attempt of any person to do so would be a trespass.”
The theory on which the case at bar was tried in the court below, was substantially this: That in the exercise of their rights as navigators, the defendants might land upon and obstruct the plaintiff’s wharf as much as they pleased, provided they did it carefully and skillfully, and that, no matter to what extent the plaintiff' was actually damaged, he could not be deemed to be legally injured. The court erred in the instructions given and in those refused.
The defendants are presumed to know the natural result of their own acts. They had daily experience to show them that a landing at the “ Roe Wharf” would result in injury to the plaintiff'. As navigators of the Ohio river, they had no right to land on the wharf of the plaintiff, unless by his consent. The defendants were trespassers for each act of injury to the plaintiff caused by landing their boats. The court should have so instructed the jury. The evidence offered by the plaintiff, tending to show the extent of this injury, ought to have been admitted. It was not competent for the plaintiff' to prove the amount of damage by the opinion of experts, but this must be détermined by the jury from all the facts; the value of the right, the disturbance of that right; the value of the right subject to the injury caused by the unlawful acts of the defendants, are matters proper to go to the jury. The court below erred in overruling the appellant’s motion for a new trial.
In our- view of the case, it is unnecessary to pass upon
It is assigned, as cross-error, that the court erred in overruling the demurrers to the several paragraphs of the complaint. The objection taken to each paragraph is the lack of an averment that the plaintiff himself was guilty of no negligence.
The first paragraph of the complaint avers that defendants, “ without leave, wrongfully entered” upon the lands described, owned by plaintiff', and continuously used, took possession of and broke the wharf boat of the plaintiff' on, attached to, and connected with the land.
The second paragraph avers that plaintiff was the owner, &e., of a certain wharf boat, attached and annexed .to the same lands, and that defendants, on the first of June, 1867, and daily and continuously thereafter, ran their steamers upon and against the plaintiff’s wharf boat, thereby damaging it.
The fourth paragraph avers the ownership of the land and the wharf boat, and a prescriptive right to keep a wharf appurtenant to the land. That defendants, with their boats, unnecessarily and continuously struck against and damaged the wharf boat and obstructed the passage to and from'it; and. that they unnecessarily, and without cause, occupied the river in front of the wharf, interrupting and preventing ingress and egress.
The complaint is good, and the court below committed no error in overruling the demurrer. This case does not belong to that class of cases in which it is necessary to aver that the plaintiff' was without fault. A custom existing at other places could have nothing to do with the rights of the appellant.
The judgment is reversed, with costs, and the cause remanded, with directions to grant a new trial, and for further proceedings.