| Mass. | Jan 12, 1875
This is an action of tort to recover damages for an injury to the plaintiff’s steamer John Romer, alleged to have been caused by the negligence of the defendant. The judge, before whom the case was tried, trial by jury having been waived, found as matters of fact, that the plaintiff was in the exercise of due care; that the defendant was negligent in the management of the scow which sunk, and upon which the steamer struck, “ in attempting to remove her from the mooring place,” and in allowing the scow, while the defendant was trying to raise it, to remain without any guard or signal to warn the public of the obstruction caused by it. At the trial there was conflicting evidence as to the place where the scow sunk and the accident happened, the defendant contending that the scow lay inside of the line of the flats which they were engaged in filling, and not in the channel. The judge ruled that this was immaterial, and the first exception is to this ruling. The defendant contends that the public right to travel over these flats was extinguished, and that therefore the plaintiff’s steamer had no right to be there.
The flats were formerly owned by the Commonwealth, and on July 21,1869, were conveyed to Harvey and others, trustees of the Boston, Hartford & Erie Railroad Company; on the same day, and as part of the same transaction, the Boston, Hartford & Erie Railroad Company and the Commonwealth entered into an indenture, by which the former agreed to build a sea wall and to fill the flats within a certain time, and according to the provisions of the indenture.
The effect of this arrangement was to give the Railroad Company the right to fill up these flats; but until they were filled up the public had a right to use them, at high water, for purposes of navigation.
The owner of flats holds them subject to the rule, that until he shall build upon them or inclose them, and while they are covered by the sea, the public has a right to use them for purposes of navigation. Anc. Chart. 148. Commonwealth v. Alger, 7 Cush. 53.
This right of the public is not an incumbrance within the usual covenant against incumbrances; it is rather an incident of the tenure by which property of this character is held by all. Therefore the covenant against incumbrances in the deed of the Com
In this case the place where the scow was sunk was not the place where the defendant was engaged in filling the flats ; it was in a part of the flats where the public right of navigation existed, and where the plaintiff’s steamer in the exercise of that right might properly go. It follows that the ruling excepted to was correct.
The plaintiff being rightfully in the use of these waters, as a public highway, the only other question is whether the presiding judge rightfully found that the defendant was liable for his negligence. He found that the defendant was unskilful and negligent in moving the scow from her place of mooring, and that the plaintiff’s injury was the result of this negligence; and also, that the defendant was liable for not adopting any signal, buoys or other means to warn the public, while he was engaged in raising the scow. We think the defendant was properly held liable upon either of these grounds. If a person negligently places an obstruction in a highway, he is liable for any injury caused thereby to a traveller using due care. So if a person negligently obstructs navigable waters, he is liable for injuries caused to vessels in the proper use of such waters.
But if the scow was sunk by an unavoidable accident, the defendant not having abandoned her, it was a question of fact whether it was practicable, and whether reasonable prudence required the defendant to give notice to the public of the obstruction by signals, buoys or some other mode.
When a vessel is sunk by unavoidable accident, in navigable waters, whether in the usual track of navigation or not, the owner, until he abandons, must use due care to prevent injury to other vessels. White v. Crisp, 10 Exch. 312. Brown v. Mallett, 5 C. B. 599.
The presiding judge, to whom the facts were submitted, having found that due care required the defendant to warn the public of the sunken scow while he was attempting to remove her, this finding is conclusive upon the defendant, and shows negligence for which he is liable to the plaintiff.
Exceptions overruled.