9 Conn. 46 | Conn. | 1831
As the sea-weed on the sea-shore, andón navigable rivers, has become a very considerable article of manure, conflicts, in many instances, of late, have arisen, respecting the rights of riparian proprietors and others, to gather and appropriate it. Hence, it becomes important to settle these questions, so far as cases which occur will afford opportunities.
The Court, however, would incline to confine their decision to the case before them — to give “ strict measure, not over, running.”
Some incorrect notions on this subject, i. e. as to the rights of proprietors on navigable rivers, arms of the sea and the sea-coast, have been entertained in consequence of the suggestions of Judge Swift, in his System, vol. 1.p, 341. He says, “ all adjoining proprietors on navigable rivers and the ocean have a right to the soil covered with water, as far as they can oceu-
The doctrine of the common law is, that the right to the soil of the proprietors of land on navigable rivers, extends only to high water mark: all below is publici juris — in the king, in England. That is the law in Connecticut; for we have no statute abrogating it. It was the law brought by our ancestors : — it is our law ; — the soil being not indeed owned by the king, but by the state.
A distinction is always maintained between rivers navigable and those not navigable. — Of the former the public alone has right; — of the latter, individuals may, and generally do own
This question was much investigated in the case of East-Haven v. Hemmingway, 7 Conn. Rep. 186., and the opinion of the Court, by the Chief Justice, p. 198, fully justifies the doctrine here laid down; and this doctrine was still more recently recognized, at the last term of this Court, in the case of Middletown v. Sage & al. 8 Conn. Rep. 221. In Kent’s Comm. and Angell on Tide-waters, passim, this doctrine is laid down, and treated with industry and ability.
I am well aware, that there may be an individual right to a navigable river ; but it must be acquired by grant from the king or sovereign authority, or by prescription. This shows, clearly, the principle now insisted on. Harg. Law Tracts, 16, 17.
The same doctrine is also established, by the principles of law, in the case of reliction. The general rule is, that the land which is relicted and left dry, by the receding of the water, is the property of the sovereign, as being a part and parcel of that, which was previously the domain of the sovereign ; and the jus proprietatis or ownership of the soil, which is covered with water, is not changed, because the water has receded from it. Angell on Tide-waters, 75,76. Harg. Law Tracts, 14, 15. 30, 31. 1 Swift’s Syst. 342. 2 Bla. Com. 262. If the increase be gradual, then the accretion belongs to the adjoining proprietor. 2 Bla. Com. 262. So again, in case of islands arising in the sea or navigable rivers, they belong to the king. Angelí on Tide-waters, 79. 1 Swift’s Syst. 342. 2 Bla. Com. 262. Middletown v. Sage & al. 8 Conn. Rep. 221.
The adjoining proprietors have the right to the shore subject to the paramount right of the public. The usage of the owners of land to high-water mark to wharf out against their own land, has never been disputed. The interests of navigation have been subserved ; and the consequenses have been altogether salutary. On the death of the owner to high wa
There is a very able opinion on the subject of the right to sea-weed collected on the shores of navigable rivers and arms of the sea, in Emans v. Turnbull & al. 2 Johns. Rep. 313.323. The learned judge, in that case, considers “ sea-weed thrown up by the sea, as one of those marine increases arising by slow degrees, which belongs to the owner of the soil. Its usefulness, as a manure and as a protection to the bank, will vest the property of the weed in the owner, and forms a reasonable compensation to him for the gradual encroachments of the sea to which other parts of his estate may be exposed. The jus alluvionis ought to receive a liberal encouragement in favour of private right.” Angelí on Tide-waters, 86. Appendix, 90.
These considerations are entitled to much respect. They do not, however, at all, apply to the case before the Court. This sea-weed, as the case states, was not collected on the shores, but “ grew and accumulated, below low water mark.” In no sense, then, could the adjoining proprietor be entitled to any exclusive right to it. He might, with equal propriety, insist on an exclusive right to the weed or the fish below low water mark, because they were against his land. There is no principle of law for such a pretence.
A new' trial ought to be granted.
New trial to be granted.