61 Mass. 53 | Mass. | 1851
The opinion was delivered at March term, 1853.
In proceeding to give judgment in the present case, the court are deeply impressed with the importance of the principles which it involves, and the magnitude and extent of the great public interests, and the importance and value of the private rights, directly or indirectly to be affected by it. It affects the. relative rights of the public and of individual proprietors, in the soil lying on tide waters, between high and low water mark, over which the sea ebbs and flows, in the ordinary action of the tides.
The defendant has been indicted for having erected and built a wharf over and beyond certain lines, described as the commissioners’ lines, into the harbor of Boston. The case comes before this court, upon a report of the judge of the municipal court, who, deeming the questions of law involved in the case doubtful and important, with the consent of the defendant, pursuant to the statute, reported the same for the consideration of this court. Probably the opinion was given pro forma, and a verdict taken by consent, with a view to present the whole question to this court.
The case thus presented, must depend on the construction, validity, and effect of the laws in question, establishing the lines of the harbor, as they affect public and private rights ; regarding, as they do, the rights of the public in tide waters and the arms of the sea, and the nature, extent, and limits of the rights of private proprietors in flats and sea-shores.
We may, perhaps, better embrace the several subjects involved in the inquiry, by considering,
First, What are the rights of owners of land, bounding on salt water, whom it is convenient to designate as riparian proprietors, to the flats over which the tide ebbs and flows, as such rights are settled and established by the laws of Massachusetts ; and,
Second, What are the just powers of the legislature to limit, control, or regulate the exercise and enjoyment of these rights.
I. By the common law of England, as it stood long before the emigration of our ancestors to this country and the settlement of the colony of Massachusetts, the title to the land or property in the soil, under the sea, and over which the tide waters ebbed and flowed, including flats, or the sea-shore, lying between high and low water mark, was in the king, as the representative of the sovereign power of the country. But it was held by a rule equally well settled, that this right of property was held by the king in trust, for public uses, established by ancient custom or regulated by law, the principal of which were for fishing and navigation. These uses were held to be public, not only for all the king’s subjects, but for foreigners, being subjects of states at peace with England, and coming to the ports and havens of England, with their ships and vessels for the purposes of trade and commerce.
The charter under which the colony was formed and settled —-first, that of James I. to the Plymouth company, and subsequently that of Charles I. in 1628, reciting an assignment of part of the territory formerly granted to the Plymouth company, being all that part of said territory, which after-
This charter was not merely a grant of property within the realm of England, but it contained provisions for the esta blishment of a separate dependent government under the allegiance of the king; and the government thereby constituted was invested with all the requisite civil and political powers to enable it to establish and govern the colony, and to make laws for that purpose, not repugnant to the laws of England. It was so understood and practised upon, and a species of representative government was soon ingrafted on it in practice, and so it continued, and the colony grew up and flourished under it, until the charter was formally revoked and annulled, by a decree of the English court of chancery, in 1685. This decree we may have occasion to allude to again hereafter. At present it is not necessary to trace the powers of the colonial government further. They were then regarded and have ever since been acknowledged to be ample and sufficient to grant and establish titles to land and to all territorial rights and privileges, and to govern and control all the internal concerns of the territory over which it was established. To the grants and acts of that government all titles to real property in Massachusetts, with their incidents and qualifications, are to be traced as their source.
Assuming that by the common law of England, as above stated, the right of riparian proprietors, bounding upon tide waters, extending to high water mark only, and assuming that the first settlers of Massachusetts regarded the law of England as their law, and governed themselves by it, it follows that the earliest grants of land bounding on tide waters would be to the high water line and not below it, and would have so remained, but for the colony ordinance, now to be considered.
The whole article, as it stands in the Ancient Charters and in the edition of the colony laws of 1660, is as follows:
“ Sect. 2. Every inhabitantwho is an householder shall have free fishing and fowling in any great ponds, bays, coves and rivers, so far as the sea ebbs and flows within the precincts of the town where they dwell, unless the freemen of the same town, or the general court, have otherwise appropriated them: provided, that no town shall appropriate to any particular person or persons, any great pond, containing more than ten acres of land, and that no man shall come upon another’s propriety without their leave, otherwise than as hereafter expressed.
“ The which clearly to determine; Sect. 3. It is declared, that in all creeks, coves, and other places about and upon salt water, where the sea ebbs and flows, the proprietor, or the land adjoining shall have propriety to the low water mark, where the sea doth not ebb above a hundred rods, and not more wheresoever it ebbs further: provided, that such proprietor
“ Sect. 4. And for great ponds lying in common, though within the bounds of some town, it shall be free for any man to fish and fowl there, and may pass and repass on foot through any man’s propriety for that end, so they trespass not upon any man’s corn or meadow. [1641, 47.] ”
In analyzing this ordinance, which thus appears as one act, it appears that that part of it which relates to free fishing and fowling in all great ponds, and in creeks, coves, and rivers, where the sea ebbs and flows, was taken word for word from the “ Body of Liberties,” § 16, but no mention is made in that collection, of the rights of proprietors to low water mark. The latter provision, together with one declaring what should be deemed great ponds, was probably passed afterwards, in 1647. The subjects being connected together would, according to the usage of the time, be connected together as one article in the subsequent editions of the laws ; and this consideration shows the relation of these subjects to each other, and the fitness of connecting them together when published, for the information of the colonists.
The great purpose of the 16th article of the “ Body of Liberties” was to declare a great principle of public right, to abolish the forest laws, the game laws, and the laws designed to secure several and exclusive fisheries, and to make them all free. It expressly extended this right to places in which the tide ebbs and flows, then public domain, open to all. But when there afterwards came a provision, in effect declaring this territory, between high and low water mark, the private property of the riparian proprietor or owner-of the upland; this would seem to take away or abridge the right to the use of the shores, previously given; but this was accompanied by another, that, for fowling and fishing, persons may pass over another man’s property, of course including these shores thus made private property; this restores the public right to pass on foot over flats or places over which the sea ebbs and flows, so long as they are not actually reclaimed and converted into tillage or mowing land.
In construing this ordinance heretofore, and applying it to particular cases, courts have frequently had occasion to remark upon the difficulties and embarrassments attending its construction. But these have referred mainly, not to the question, what estate the riparian proprietor takes in flats acknowledged to belong to his upland, but to difficulties in determining, from the generality of the terms of the ordinance, and peculiar local circumstances, what particular flats do belong to any particular parcel of upland, arising from the line and conformation of the shore on which they lie, whether straight or curved, whether curved inward or outward, direct or having points or promontories, or broad or narrow indentations, or arising from the formation of the flats over which the sea ebbs and flows, the direction of the current, and the relative position of the flats to the channel or deep water, beyond which the sea doth not ebb. Adams v. Frothingham, 3 Mass. 352; Rust v. Boston Mill Corporation, 6 Pick. 158; Valentine v. Piper, 22 Pick. 85; Sparhawk v. Bullard, 1 Met. 95; Piper v. Richardson, 9 Met. 155; Walker v. Boston & Maine Railroad, 3 Cush. 1, 22; Gray v. Deluce, 5 Cush. 9, 12. These are some of the principal cases in which these difficulties, which are intrinsic and unavoidable, have been alluded to; and they all arose, so far as this point was concerned, in applying the rale to particular cases, in order to ascertain whether the flats in controversy .did or did not belong to the particular parcel of upland for which they were claimed. We mention them for the purpose of laying them out of the case, as having no bearing upon the present question.
Talting the terms of the ordinance, with a long course of judicial decisions upon its construction, nearly if riot quite uniform, the court are of opinion that the antecedent law limiting the right of private proprietors of land bounding on
Before proceeding to state these limitations and exceptions, and for the better understanding of them, it may be useful to state the grounds of our opinion in regard to the rule itself. The language of the ordinance, though quaint and peculiar, as might be expected in so ancient a document, seems yet to be clear and intelligible. The word “propriety” is nearly, if not precisely,- equivalent to “property.” It imports not an easement, an incorporeal right, license, or privilege, but a jus in re, a real or proprietary title to, and interest in, the soil itself, in contradistinction to a usufruct, or an uncertain and precarious interest. A suggestion has somewhere been made, founded on the use of the word “ liberty” in the proviso — “ provided, that such proprietor shall not by this liberty have power to stop or hinder the passage of boats,” &c.— and thence drawing an inference, that the whole ordinance was intended to confer only a license or permission, liable to be revoked or withdrawn by the power which conferred it. But it is manifest that the word was not so used in this proviso. The term “liberties” was used as synonymous with laws, or legal rights founded and established by law. In the published edition of the colony ordinances, generally, they are denominated the Laws and Liberties. The code already alluded to as having been accepted and adopted in 1641, was called the “ Body of Liberties.” It is said by Hutchinson, that they were composed by Bev. Nathaniel Ward, of Ipswich, who, he adds, had been a minister in England, and formerly a student
But, however this may be, we think it manifest, from the whole tenor of their legislation, that when the early settlers of Massachusetts, holding their lands under the freest and most liberal English tenure, that of tenants in fee simple in free and common socage, were making provision for granting and taking titles to real estate for themselves and their posterity, and when a certain valuable right and interest was annexed to and made part of such grants of estate by the government competent to impress such character upon it, they understood, both those who made and those who proceeded to take titles and settle the country under such grants, that the grantees acquired a legal right and vested interest in the soil, and not a mere permissive indulgence, or gratuitous license, given without consideration, and to be revoked and annulled at the pleasure of those who gave it.
We think this is confirmed by the use of the word “ propriety,” as used in two other places in the same ordinance. In the section immediately preceding the provision respecting flats, “ no man shall come upon another’s propriety without
And we believe that the course of judicial decision, so far as it can now be ascertained, tends to confirm the opinion, that, after the adoption of the colony ordinance, all riparian proprietors had a fee in the flats adjoining their land, over which tide waters ebbed and flowed, until severed by some deed or act of the owner, competent to convey or transfer real estate. We are not aware of any adjudication upon this subject prior to the revolution; and it is highly probable that the right was not drawn in question for many years, in the courts of justice. On the greater part of the coasts and shores, the bays and inlets of salt water, the right was for a long period, and in regard to many of them still is, of no value, and of course would not be the subject of litigation. It is only in and near populous towns, and frequented ports and harbors, and in consequence of the exigencies of navigation and commerce, that the lands flowed by the tides become useful and valuable. In Boston, which was for a long time the principal port of the colony, navigation was confined mostly to the cove lying on the easterly side of the town,
Since lands of this description have become valuable, the subject has often been brought before the courts, but as there were no regular reports published prior to 1804, it is difficult to trace the law to an earlier time, except as it was declared by those judges and jurists, whose memory and traditional knowledge extended to an anterior period. We will cite a few of them.
Mr. Sullivan, in his History of Land Titles in Massachusetts, published in 1801, alludes to the subject, cites the colony ordinance, and treats it as having effected a great change of the law of Massachusetts, in regard to the right of property m the soil in navigable waters, where the sea ebbs and flows. Sullivan, 284. Mr. Dane, who may be considered as a lawyer of the old school, and who had devoted many years of his life to the study and exposition of the laws of Massachusetts, treats this subject more at large. 2 Dane Ab. 694. After citing the usual authorities to show, that by the common law the property in the soil of land over which the tide ebbs and flows was in the king, he proceeds to state that the statute
The first reported case on this subject is that of Austin v. Carter, 1 Mass. 231. Though the report is exceedingly brief, which is much to be regretted, yet the judgment is quite decisive on several points: First, that the owner of land bounding on tide waters, has property in the flats to low water mark, and may maintain trespass guare clausum, against any one who shall enter and cut down piles placed there by the owmer, with a view to build a wharf, or otherwise inclose the flats: Second, that although the owner has a right to build on his flats and exclude all mankind, yet until he does so build, or erect some structure which may exclude others, and whilst the tide is up, and the land covered with salt water, every townsman, and every other person, has a right to pass through and over the same, with boats or vessels, and commits no trespass upon the owner in doing so.
Upon this last point, we may as well remark here, that the right of the riparian proprietor, under the ordinance, has always been held subject to this rule; that until he shall build upon his flats or inclose them, and whilst they are covered
Mr. Dane intimates, (2 Dane Ab. 700,) that the case of Austin v. Carter goes too far, in stating that the riparian proprietor has an absolute right under the colony law, so to build to low water mark and exclude all mankind. But it is to be considered, that the court gave no opinion; affirming only in general terms the doctrine advanced by the defendant’s counsel. No qualification, therefore, to the general rale was expressed, not even the limitation to one hundred rods, or the condition not to hinder the passage of boats and vessels, &c. And further, this judgment must be construed according to the subject matter, which was, the right to flats then in controversy, belonging to land adjoining Charles River, at or near the old ferry way, between Charlestown and Boston, where the river was broad, and where the channel or deep part of the river was quite wide, and afforded abundant room for any boats or vessels to pass along the river and to other men’s houses and lands. Had the court been giving an opinion in regard to flats differently situated, there is no reason to doubt that they would have qualified it by stating the proper conditions and limitations. The court were unanimous, and consisted of Dana, C. J., Strong, Sewall, Sedgwick, and Thatcher, Js.
The next case to which we would refer is that of Storer v. Freeman, 6 Mass. 435. It is to be remarked that this case concerned a parcel of flats, lying between hi!gh and low water mark, at Cape Elizabeth, in the county of Cumberland, Maine, and that the province of Maine was not within the jurisdiction of the colony of Massachusetts when the ordinance was passed, so as to be directly bound by its legal enactments. This circumstance is not taken notice of by the court, nor is
It was remarked by the court in the case of Storer v. Freeman, that the colony ordinance was annulled with the charter, by the authority of which it was made. The strict correctness of this remark may perhaps be doubted, even though the decree in chancery of 1685, by which the charter was adjudged forfeited, were regular and valid, which we believe has never been admitted here. In general, a revolution or change in the form of political government does not annul the municipal laws regulating property, or divest rights of property acquired under them. If the remark was intended only to intimate that the jus publicum, the right of governing, controlling, and regulating the sea and sea-shores, and the powers and prerogatives of the king for the protection of public rights, which had been transferred to the colonial government by the charter, would be taken away by a valid revocation of that charter, without affecting private rights already vested, it may be admitted to be correct. But, however that may be, it has become a mere question of speculation, and ceased to be of any practical importance, even within the old territory of the colony of Massachusetts, because the same rights and powers, and all doings under the' charter, were revived and confirmed by the province charter; and by the very first act under the provincial government, making a temporary pro. vision; and by a subsequent act, passed soon after, continuing
The case of Storer v. Freeman is of high authority as a precedent, and has a strong bearing upon the question we are discussing. The opinion was given by Parsons, C. J. It had been argued that the ordinance had annexed the flats to the upland rather as an appurtenance than as an extension of the limits of the owner’s land. The court first state, that, by the common law of England, the owner of land bounded on the sea, or on any arm of the sea where the tide ebbed and flowed, could not by such boundary hold any land below the ordinary high water mark, for all the land below belonged of common right to the king; but the subject might claim the land below high water mark against the Icing, either by grant or prescription. They then add, that to induce persons to erect wharves below high water mark, which were necessary to .the purposes of commerce, the common law of England was altered by an ordinance providing that the proprietor of land adjoining on the sea or salt water, shall hold to low water mark, where the tide does not ebb and flow more than one hundred rods ; but. that the rights of others to convenient ways are saved. This case decides that the flats are held by the riparian proprietor, subject to an easement for a convenient right of way; that he takes them as land, and not as an incorporeal right; and that whether they pass or not by a particular conveyance, depends on the question, whether they are included in the description so as to pass as parcel. The same points were decided in another case which soon followed. Codman v. Winslow, 10 Mass. 146.
The next case to which we would refer, is that of Commonwealth v. Charlestown, 1 Pick. 180. The whole of this case is very instructive. Several points are decided, which we will state without stating the case at large.
1. That by the common law the right of the soil of the shore between the high and low water mark, and all arms of
2. That by the letters patent and charter of Charles I., all right in the waters and shores of the sea was transferred to the company who undertook the settlement of the colony of Massachusetts, who were thereby made a body politic, giving them absolute property in the land within the limits of the charter, the power of making laws for the government of the colony, and full dominion, over all the ports, rivers, creeks, and havens, in as full and ample a manner as they were before held by the crown of England; and that by these charters, the acceptance of them, and proceedings under them, the people of the colony, in their politic capacity, succeeded to all the territorial rights, franchises, and immunities, which had ever belonged to the sovereign power of the parent country.
8. That among the earliest acts of legislation was an exer ■ cise of sovereignty with respect to the shore or flats of coves, creeks, &c., which abounded all over the coast. The desire and necessity for wharves, quays, and piers, were soon felt by individuals and the community, and to encourage them, the government transferred its property in the shore of all creeks, coves, and other places upon the salt water where the sea ebbs and flows, giving to the proprietor of the land adjoining, the property of the soil to low water, not exceeding one hundred rods. This was a grant of so much of the shore, &c.
4. That the exceptions and provisions in this ordinance show clearly that the principles of the common law, relating to this kind of property, were well understood by the colonial legislature. By this grant of the property, those who acquired it were restricted from such a use of it as would impair the public right of passing over the water in boats and other vessels, through any sea, creeks, or coves, to other men’s houses or o lands. The result is that the ordinance made no alteration in the use of places there described, while they are covered with water; and further, that the proprietor of the flats can lawfully erect nothing upon them which will obstruct or hinder such passage, though he may build wharves towards the sea, if he
5. That none but the sovereign power can authorize an interruption of such passages, because it has power to judge of what the public convenience requires, and may enact conditions to preserve the natural passages; that all navigable rivers are public property, for the use of all the citizens; and that there must be some act of the sovereign power, direct or derivative, to authorize any interruption of them.
The views, we believe, that the courts of this state have constantly taken of the construction of the colony ordinance, are these1: That it vested the property of the flats in the owner of the upland in fee, in the nature of a grant; but that it was to be held subject to a general right of the public for navigation until built upon or inclosed, and subject also to the reservation that it should not be.built upon or inclosed in such manner as to impede the public right of way over it for boats and vessels. We are not aware that this has been drawn in question by any judicial decision; but on the contrary we think that this construction has been uniformly recognized, adopted, and applied, as occasion has required. Instead, therefore, of pursuing this analysis of the cases further, we will enumerate some of the most important of them, coming down to the latest period. Rust v. Boston Mill Corporation, 6 Pick. 158; Valentine v. Piper, 22 Pick. 85; Gray v. Bartlett, 20 Pick. 186; Sparhawk v. Bullard, 1 Met. 95; Ashby v. Eastern Railroad, 5 Met. 368; Piper v. Richardson, 9 Met. 155; Drake v. Curtis, 1 Cush. 395; Walker v. Boston & Maine Railroad, 3 Cush. 1; Gray v. Deluce, 5 Cush. 9.
The same principles have been affirmed by a series of decisions of the supreme court of Maine, and the circuit court of the United States in Maine, holding that the principles of the Massachusetts colony ordinance have been established b;y usage and adoption, and long held as the common law of thai state. Knox v. Pickering, 7 Greenl. 106; Dunlap v. Stetson, 4 Mason, 349, 366; Lapish v. Bangor Bank, 8 Greenl. 85; Emerson v. Taylor, 9 Greenl. 42; Deering v. Long Wharf, 12 Shep. 51, 64.
1. That a writ of entry—a remedy exclusively appropriated to the recovery of lands—will lie for flats, though uninclosed by the owner, if he be disseised of them, as he may be by actual possession of them being taken by another.
2. That trespass quare clausum fregit lies for any injury done to the owner’s lawful possession of flats — a remedy wholly inapplicable to the disturbance of an easement or incorporeal right.
3. That flats will not pass as appurtenant to land, because it is an established rule that land cannot pass as appurtenant 'to land, although it may pass as appurtenant to a messuage; but it would pass, although land, as appurtenant to a wharf.
4. That the upland and flats may be severed by the owner, at his pleasure; he may aliene the flats or any part of them without the upland, or the upland without the flats; and it will depend on the descriptive terms of the conveyance, embracing or excluding them, whether any and what part of them will pass. Lufkin v. Haskell, 3 Pick. 356.
We have thought it proper to examine, with some care, the foundation, on which the right of property in land, situated between high and low water mark in Massachusetts, rests, though it has not been much contested in reference to these harbor lines, except indirectly, and in vague and general terms. And we think it is entirely clear that, since the adoption of the colony ordinance, every grant of land, bounding upon the
II. Assuming, then, that the defendant was owner in fee of the soil and flats upon which the wharf in question was built, it becomes necessary to inquire whether it was competent for the legislature to pass the acts establishing the harbor lines, and what is the legal validity and effect of those acts.
There is now no occasion and no ground to deny or question the full and sovereign power of the commonwealth, within its
But the power of the commonwealth, by the legislature, over the sea, its shores, bays, and coves, and all tide waters, is not limited, like that of the crown at common law. By the common law, the king was held to be the owner and proprietor of the soil under the sea, its shores, and all tide waters, and as such could grant the right of property therein to a subject; though this was not usually done without the previous execution and return of a writ of ad quod damnum, to ascertain
Supposing, then, that the commonwealth does hold all the power which exists anywhere, to regulate and dispose of the sea-shores, and tide waters, and all lands under them, and all public rights connected with them, whether this power be traced to the right of property or right of sovereignty as its principal source, it must be regarded as held in trust for the best interest of the public, for commerce and navigation, and for all the legitimate and appropriate uses to which it may be made subservient. Assuming, then, that the commonwealth does hold this power, within certain limits, the question recurs, whether the acts under consideration are within its just and legitimate exercise.
In considering this question, it becomes necessary to inquire, and ascertain as far as practicable, the nature and character of the laws in question, and the object which the legislature had in view in passing them. The first act, though not the one upon which this prosecution is founded, was passed on the 19th of April, 1837, St. 1837, c. 229, and is entitled “ an act to preserve the harbor of Boston, and to prevent encroachments therein.” It establishes a line by local objects designated along the easterly and northerly side of the city, from the lower South Boston Free Bridge, around to a point
The next succeeding act was passed on the 17th of March, 1840, Si. 1840, c. 35. It establishes the line of the harbor, from the lower free bridge, on the Boston side, to the old South Boston Bridge, and on the South Boston side, from the old South Boston Bridge to the Free Bridge, and thence easterly. The fourth section of the act of April 26, 1847, St. 1847, c. 278, establishing certain lines in South Bay, is the statute upon which the present prosecution is instituted. The premises of the defendant are situated on the South Boston side, immediately above the upper bridge. This act provides, § 1, that no wharf or pier shall ever be extended beyond said line into or over the tide water of the commonwealth. Section 5 reiterates this prohibition, and § 6 provides that any person, offending against the provisions of the act, shall be deemed guilty of a misdemeanor, and may be prosecuted therefor and punished, by indictment; and that any erection or obstruction, which shall be made contrary to the provisions and intent of the act, shall be liable to be removed and abated as a public nuisance. The other acts recited in the indictment, extend the line, with similar provisions, to other parts of the harbor, but do not materially affect the present question.
The manifest object of these statutes is to prevent injurious obstructions in the harbor of Boston, and to secure the free, common, and unobstructed use thereof, for the citizens of the commonwealth, and all other persons, for navigation with ships, boats, and vessels of all kinds, as a common and public right. If this can be done, without an unwarrantable encroachment on the rights of private property, it is an object of great importance, and one in which the holders of riparian rights, as well as all other holders of real estate, and the whole community, have a deep and abiding interest.
We think it is a settled principle, growing out of the nature of well ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it
This is very different from the right of eminent domain, the right of a government to take and appropriate private property to public use, whenever the public exigency requires it; which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power, the power vested in the legislature by the constitution, to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same.
It is much easier to perceive and realize the existence and sources of this power, than to mark its boundaries, or prescribe limits to its exercise. There are many cases in which such a power is exercised by all well ordered governments, and where its fitness is so obvious, that all well regulated minds will regard it as reasonable. Such are the laws to prohibit the use of warehouses for the storage of gunpowder near habitations or highways; to restrain the height to which wooden buildings may be erected in populous' neighborhoods, and require them to be covered with slate or other incombustible material; to prohibit buildings from being used for hospitals for contagious diseases, or for the carrying on oi
Nor does the prohibition of such noxious use of property, a prohibition imposed because such use would be injurious to the public, although it may diminish the profits of the owner, make it an appropriation to a public use, so as to entitle the owner to compensation. If the owner of a vacant lot in the midst of a city could erect thereon a great wooden building, and cover it with shingles, he might obtain a larger profit of his land, than if obliged to build of stone or brick, with a slated roof. If the owner of a warehouse in a cluster of other buildings could store quantities of gunpowder in it for himself and others, he might be saved the great expense of transportation. If a landlord could let his building for a smallpox hospital, or a slaughter-house, he might obtain an increased rent. But he is restrained; not because the public have occasion to make the like use, or to make any use of the property, or to take any benefit or profit to themselves from it; but because it would be a noxious use, contrary to the maxim, sic utere tuo, ut alienum non Icedas. It is not an appropriation of the property to a public use, but the restraint of an injurious private use by the owner, and is therefore not within the principle of property taken under the right of eminent domain. The distinction, we think, is manifest in principle, although the facts and circumstances of different cases are so various, that it is often difficult to decide whether a particular exercise of legislation is properly attributable to the one or the other of these two acknowledged powers.
These principles were somewhat discussed, and similar views were substantially adopted, in the case of Commonwealth v. Tewksbury, 11 Met. 55. Perhaps the facts in that case were imperfectly stated, or some of the positions and illustrations were expressed in too broad and unqualified a manner; but we are of opinion that the principle on which that judgment proceeded was correct. It assumes that all real estate, inland or on the sea-shore, derived immediately or
Supposing the principle itself to be well established, the great question then is, whether the act in question, fixing certain harbor lines, was within it; and we are of opinion that it is, although it may in some cases seem to trench somewhat largely on the profitable use of individual property. This opinion is founded on several considerations.
We have already alluded to the point, that a particular use of land, as well inland as on the sea-shore, which, in one situation, would be greatly injurious to common and public rights, in another position would be wholly harmless. A man having a hill of gravel on his farm, not constituting the embankment of a stream, may remove the earth at his pleasure, because such use can injure no one; when under other circumstances, it would be greatly injurious. Whether any restraint upon the use of land is necessary to the preservation of common rights and the public security, must depend upon circumstances, to be judged of by those to whom all legislative power is intrusted by the sovereign authority of the state, so to declare and regulate as to secure and preserve all public rights.
We think it is a consideration entitled to some weight, that the colony ordinance itself, which changed the tenure and extended the title of riparian proprietors to low water mark, so as to include the shore, was not absolute and unqualified. It contained a reservation, to the éffect that riparian proprietors should not, by this extension of their territorial limits, have power to stop or hinder the passage of boats and vessels, in or through any sea, creeks, or coves, to other men’s houses or lands. From these very general words, it is certainly difficult to prescribe exact limits to this reservation. That it was designed to impose some restriction in favor of the right of navigation is quite clear. To say, as it has sometimes been
Again ; the construction which has been put upon this act, in all the judicial decisions which have been made upon it, many of which are cited in the former part of this opinion, has been, that, notwithstanding the act vests a fee. in the soil in the riparian proprietor, analogous to the jus privatum, or right of property, which at the common law the crown could grant to a subject, yet that the land between high water and low water, until it was inclosed, built upon, or so occupied by the riparian proprietor, so far partook of its original character, that whilst covered by the tide water the public and all persons might lawfully use it, might sail over it, anchor upon it, fish upon it, and by so doing no person should be held to commit a trespass, or disseise the owner, or take adverse possession. The public used only a common right, by so using these lands when covered with tide water.
In putting a construction upon any statute, every part shall be regarded, and it shall be so expounded, if practicable, as to give some effect to every part of it. Looking at the terms of this law, and the purposes for which it was intended, the object seems to have been, to secure to riparian proprietors in general, without special grant, a property in the land, with full power to erect such wharves, embankments and warehouses thereon, as would be usually required for purposes of commerce, subordinate only to a reasonable use of the same, by other individual riparian proprietors and the public, for the purposes of navigation, through any sea, creeks or coves, with their boats and vessels
By the general rule of the common law, all real property capable of use and possession, and having no other acknowledged owner, is, in theory, vested in the king, as the head and sovereign representative of the nation. The sea-shore, and all coves, bays and arms of the sea, as well as all navigable rivers, extending on the sea-shore as far towards the land as the tide flows, are deemed vested in and held by the king. In this holding by the crown, two distinct rights are regarded; viz. 1. The jms privatum, or right of property in the soil, which the king may grant, and which may be held by a subject, and the grant of which will confer on the grantee such privileges and benefits, as can be enjoyed therein, subject to the jus publicum. 2. The jus publicum, the royal prerogative, by which the king holds such shores and navigable rivers, for the common use and benefit of all the subjects, and indeed of all persons of all nations at peace, with England, who may have occasion to use them for the purposes of trade. This royal right, ox jus publicum, is held by the crown in trust for such common use and benefit, and cannot be transferred to a subject, or alienated, limited or restrained, by mere royal grant, without an act of parliament. The king’s grant, therefore, although it may vest the right of soil in a subject, will not justify the grantee in erecting such permanent structures thereon, as to disturb the common rights of navigation; and such obstruction, notwithstanding such grant, is held to be a public or private nuisance, as the case may be.
Two or three passages from Lord Hale, the acknowledged authority upon this subject, will render this matter clear.
Hale de Jure Maris, chap. 4. “ It is admitted that de jure communi, between the high water and low water mark doth
Hale de Jure Maris, chap. 6. “ But though the subject may thus* have the propriety of a navigable river, part of a port, yet these cautions are to be added,” &c. “ 2. That the people have a public interest, a jus publicum, of passage and repassage with their goods by water, and must not be obstructed by nuisances,” &e. “ For the jus privatum of the owner or proprietor, is charged with, and subject to that jus publicum which belongs to the king’s subjects; as the soil of an highway is, which though in point of property it may be a private man’s freehold, yet it is charged with a public interest of the people, which may not be prejudiced or damnified.” 1 Hargr. Law Tracts, 36.
So in Lord Hale’s part second, De Portibus Maris, chap. 7. “ But when a port is fixed,” “ though the soil and franchise or dominion thereof primd facie be in the king, or by derivation from him in a subject; yet that jus privatum is clothed and superinduced with a jus publicum, wherein both native and foreigners in peace with this kingdom are interested, by reason of common commerce, trade, and intercourse.” “ They ought to be preserved from impediments and nuisances, that may hinder or annoy the access or abode or recess of ships and vessels, and seamen, or the unlading or relading of goods.” 1 Hargr. Law Tracts, 84.
It therefore appears, upon the authority of Lord Hale, that in regard to the sea-shore, arms of the sea, and navigable rivers, the king stood in two capacities, holding a jus privatum, or right of property in the soil, and also a jus publicum, or right, as sovereign, to hold such property under his royal authority, and power to regulate and govern, for the common use and benefit of all persons, for the purposes of navigation, The authority of Lord Hale, and the truth and soundness of
These cases distinctly affirmed the proposition, that whether an erection within tide water is a nuisance or not, does not depend on the question whether the party erecting it owns the soil or not, by a grant directly or immediately from the crown, but whether it is injurious to a port or harbor, or injurious to navigation, and to the common right and liberty of all subjects, and other persons, using the navigation.
We have already said that these rules could not be applied strictly in this state, either under the colonial or provincial government, or under the present constitution of the commonwealth, because there is no executive, holding two capacities, like the king of England, as head and sovereign of the kingdom. But as the colonial charter, in the first instance, and the province charter, reviving and confirming all the rights and powers granted by the former, if they had been in any degree impaired by its abrogation, were not made for regulating any rights within the territory of England, but were designed and intended to provide for a distinct colonial and dependent government, acknowledging continued allegiance to the king; they embraced as well the jus publicum, as the jus privatum of the crown, and embraced not only a grant of the soil of all seas, arms of the sea, and navigable rivers, but also conferred on the grantees so much of they ms regium, or royal prerogative, as might be necessary to control and regulate the admitted common-law right of all subjects and others, to the use of all benefits, both of fishing and navigation, connected with and dependent upon the sea and sea-shores, and all tide waters.
These principles are fully recognized and established in regard to other colonial governments, originating in charters granted by the crown of England in the early settlement of this country. Under the grant of Charles II. to his brother
We think it clear therefore, that the colony charter, revived and confirmed as it was by the province charter, was not a mere grant of the soil of the territory of Massachusetts, but carried with it so much of the royal prerogative, as was necessary for holding, appropriating, and governing the sea and its shores, arms and branches, and also so much, as was necessary for securing the acknowledged common and general right of the subjects to its free navigation and fisheries. These powers vested in the colonial and provincial governments, and were vested in the commonwealth after the revolution, together with all other royalties, rights of the crown, and power of regulation, which had at any time previously been held and exercised by the government of England. But for reasons already given, the distinction between the jus publicum and the jus pHvatum could not be applied to the colony ordinance, as if it were a grant of the crown, without the sanction of parliament, because both powers vested in the colonial government, and may be taken into view in giving effect to the colonial ordinance.
But the use which we think may be justly made of these
And so in the exercise of the more general power of government, so to restrain the injurious use of property, it seems to
Considering, therefore, that all real estate derived from the government is subject to some restraint for the general good, whether such restraint be regarded as a police regulation or of any other character; considering that sea-shore estate, though held in fee by the riparian proprietor, both on account of the qualified reservation under which the grant was made, and the peculiar nature and character, position and relations of the estate, and the great public interests associated with it, is more especially subject to some reasonable restraints, in order that the exercise of full dominion over it, by the proprietor, may not be noxious to others, and injurious to the public, the court are of opinion that the legislature has power, by a general law affecting all riparian proprietors on the same line of shore equally and alike, to make reasonable regulations, declaring the public right, and providing for its preservatic n by reasonable restraints, and to enforce these restraints by suitable penalties.
Wherever there is a general right on the part of the public, and a general duty on the part of a land owner, or any other person, to respect such right, we think it is competent for the legislature, by a specific enactment, to prescribe a precise, practical rule for declaring, establishing, and securing such
This principle of legislation is of great importance and extensive use, and lies at the foundation of most enactments of positive law, which define and punish mala prohibita. Things done may or may not be wrong in themselves, or necessarily injurious and punishable as such at common law; but laws are passed declaring them offences, and making them punishable, because they tend to injurious consequences; but more especially for the sake of having a definite, known and authoritative rule which all can understand and obey. In the case already put, of erecting a powder magazine or slaughterhouse, it would be indictable at common law, and punishable as a nuisance, if in fact erected so near an inhabited village as to be actually dangerous or noxious to life or health. Without a positive law, every body might agree that two hundred feet would be too near, and that two™thousand feet would not be too near; but within this wide margin, who shall say, who can.know, what distance shall be too near or otherwise ? An authoritative rule, carrying with it the character of certainty and precision, is needed. The tradesman needs to know, before incurring expense, how near he may build his works without violating the law or committing a
Many cases will suggest themselves, where the legislature interposes by statute to declare, protect and regulate public rights, although those rights are public easements only, over lands of which the fee of the soil is in private proprietors. Such are laws regulating the construction and repairs of roads, highways and bridges; declaring how they shall be graded, what barriers shall be erected to guard travellers against dan gerous places, and what obstructions shall be removed.
Without attempting to enumerate the various cases of legislation which fall within this principle, we would refer, by way of illustration, to one class of public rights, very analogous to those of navigation and of fishing in the sea and on the sea-shores, which have been recognized and acknowledged as public, and as such regulated by legislative enactments, and protected by specific statute penalties; that is, the rights of the public in rivers not navigable. Technically, those rivers are not navigable where the sea doth not ebb and flow, although they may be very serviceable for navigation with boats and rafts, and even for larger vessels moved by sails or steam. Such are the Connecticut, the Merrimac, and many others, above the ebb and flow of the tide. In these rivers, it is the established rule of law in this commonwealth, that the riparian owner has a fee in the soil from his own side to the middle of the river, or ad filum medium aquœ. King v. King, 7 Mass. 496; Lunt v. Holland, 14 Mass. 149; Hatch v. Dwight, 17 Mass. 289; Ingraham v. Wilkinson, 4 Pick. 268. In rivers not navigable, the riparian owner is deemed, in virtue of his title to the soil, to have a several fishery in that part of the river which lies against his upland, to the centre of the river. Freary
* These may be considered as private rights in the shores of rivers not navigable, and therefore not pertinent to the present subject; but in addition to these are two acknowledged public rights, which are regarded as such, to be preserved and maintained for general and common use, although every portion of the soil over which ■ the rivers flow, is the private property of the riparian owners. These are: 1. The right of passage with boats, rafts, and other vessels adapted to the use of such waters: 2. The right of the public to have these rivers kept open and free for the migratory fish, such as salmon, shad and alewives, to pass from the sea, through such rivers, to the ponds and head waters, to cast their spawn. Both of these rights are recognized as public rights in the case of Commonwealth v. Chapin, 5 Pick. 199.. The defendant was indicted for erecting a dam across Connecticut Fiver, near the head of South Hadley Falls, alleged to be a nuisance at common law in three respects: 1. As an obstruction to the navigation of the river: 2. As injurious to the health of the neighboring inhabitants: and 3. As an obstruction to the passage of fish through the river to its head waters. The jury, by their verdict, found that it did not obstruct the navigation, and did not injure the public health; but that it did hinder the passage of fish. The court decided that, though this river, at that place, was not navigable in the technical sense, yet that the right to navigate it with rafts, boats and other suitable vessels, was a public right, although the entire soil under it was owned by the riparian proprietors; that although such riparian owners had a several fishery on their own shores, it was the right of taking fish on those shores, but was subordinate to the public right, to have the fish, in their proper season, pass up to the head waters to cast their spawn, and that the riparian proprietors, although they owned the entire bed of the river, could not so use it as to obstruct the passage of fish; and lastly, that such public right might be declared, regulated and enforced by the legislature by statute.
Many judicial decisions have declared this right of passage with boats and vessels on rivers not navigable, to be a public right, and many acts of legislation have been passed, authorizing dams across rivers, and wing-dams, connected with locks and side canals, to secure and facilitate their public right of inland navigation.
But the other public right in these rivers, and the manner in which it has been enforced by statute law, is much more to the present purpose. The right of having the migrating fish pass in their seasons through these rivers, over the soil of riparian proprietors, has been declared and enforced by statute, as a public right; and the private rights of riparian proprietors are held subject to such regulation. Stoughton v. Baker, 4 Mass. 522; Burnham v. Webster, 5 Mass. 266; Commonwealth v. Ruggles, 10 Mass. 391.
The most important of these cases, and most directly bearing on the present question, is that of Stoughton v. Baker. It respected a mill erected in 1633 by Israel Stoughton, under a grant from the town of Dorchester, and confirmed by the colonial government, at Milton Lower Mills, and was probably the
One early act is so direct an exercise of legislative power to declare and enforce a public right, and so exemplary an instance of the caution and forbearance, and the just regard for private rights, with which it ought to be used, that we desire to refer to it. It is the provincial act of 15 George II., passed in 1741. After reciting the great damage occasioned by the erection of dams, notwithstanding the several acts made for the preservation of the fish, it provides that all dams after-wards to be built across streams in which salmon, shad and alewives usually pass up, shall be made with sufficient fish-ways, and in all dams made before the passage of the act, such sufficient fishways shall be made and opened, at the expense of the owner; with a proviso, that any owner of a dam built before 1709, who was required by the act to open such fishway, should be reimbursed the first cost thereof; but that all such dams should be afterwards maintained at the expense of the owners. In this act it is manifest that the right to the fishery was a public right; that mill owners and all other riparian proprietors took their title in the soil, subject to the
Now the only ground of principle on which these laws could have been made and sanctioned, and adjudged valid by the highest tribunals of the Commonwealth, is, that although the right of soil in rivers not navigable is in private proprietors, yet this is held subject to a public right; that although the violation of such public right by a riparian proprietor, or any one else, was a public offence, and as such might be punished at common law; yet, because it was a public right, the legislature might declare it, and regulate it by suitable enactments and penalties, by precise and positive rules, as to times and other particulars, better adapted to secure the right to the public, and guard all persons concerned against its infringement, than the general principle of the common law could be.
In the case of Stoughton v. Baker, the court say that the public, having a right to the benefits of this limitation, (for the passage of fish) there must be some remedy, by which this public benefit may be secured; and shortly after add: “the legislature may make all laws not repugnant to the constitution, and we do not know that this law is repugnant to it.”
This power of the legislature to declare and regulate the public right, is asserted, perhaps even more strongly, in the more recent case of Commonweath v. Chapin, 5 Pick. 199, in which it was decided that the provincial act of 15 George II. was still in force, and because it provided a different remedy for an injury to the public rights by building a dam, the com-
But in reference to the present case, and to the act of the legislature, establishing lines in the harbor, beyond which private proprietors are prohibited from building wharves, it is urged that such a restraint upon the estate of an individual, debarring him to some extent from the most beneficial use of it, is in effect taking his estate. If such restraint were in fact imposed upon the estate of one proprietor only, out of several estates on the same line of shore, the objection would be much more formidable. But we are to consider the subject matter, to which such restraint applies. The value of this species of estate, that of shore and flats, consists mainly in the means it affords of building wharves from the upland towards deep water, to place merchandise and build wharves upon, and principally to afford access, to vessels requiring considerable depth of water, from the sea to suitable landings. Now, if along a shore where there are flats of considerable extent, one were restrained to a certain length, whilst others were allowed to extend further, the damage might be great. So if one were allowed to extend, and the coterminous- proprietors adjacent were restrained, it would be obviously more injurious. The one extended would stop or check the current along the others, cause mud to accumulate near them, and thus render the water shoal at those wharves. But where all are permitted to extend alike, and all are restrained alike, by a line judiciously adapted to the course of the current, so that all have the benefit of access to their wharves, with the same depth of water, and the same strength of current at their heads, the damage must be comparatively less.
But of this the legislature must judge. Having once come to the conclusion that a case exists, in which it is competent for the legislature to make a law on the subject, it is for them, under a high sense of duty to the public and to individuals, with a sacred regard to the rights of property and all other private rights, to make such reasonable regulations as they may judge necessary to protect public and private rights, and
In regard to the case of Mr. Alger, the report states that a certain piece of wharf, called a triangular piece, was erected and placed in its position beyond the line, after the law fixing the line had been passed; but that some other portions, though actually beyond the line, were erected, and the obstructions complained of actually placed in their position, before the law was passed; and also that the wharf complained of does not obstruct the navigation of boats and vessels.
In regard to the first suggestion, it may be necessary to examine the facts more minutely before any final judgment is entered. If any portion of this erection, described in the indictment, had been actually made and placed in its position before the act was passed, the court are all of opinion that the owner is not liable to its penalties. These laws were future and prospective in their terms and in their operation. They proceed on the assumption, that before they were passed, every man had a right to build on his own flats, if the erection did not in fact operate to impede navigation, and render him indictable as at common law; and that the common law, in thus lending its aid in the prosecution of actual injuries to navigation, to be proved in each case as nuisances, would be sufficient to secure the public against encroachments, without legislation. But, for the reasons hereinbefore given, it seems to us highly important to have a more precise and definite law made and promulgated, by which all persons may more certainly know their own and the public rights, and govern themselves accordingly.
If, indeed, before the passing of these laws, any one had so Duilt into navigable water as to cause a public nuisance, he may be liable to indictment and punishment, but not by these laws, fixing harbor lines. It follows, therefore, that all persons who built on their own soil before these laws, in a manner not amounting to a public nuisance, independently of them, had exercised only their just and lawful right; and any laws, made to punish acts lawful at the time they were done, would
In regard to the other suggestion, that it is found by the case that the particular wharf of Mr. Alger did not obstruct or impede navigation, it is proper to say, that if we are right in principle, we are bound to hold that this circumstance can afford no defence. A consideration of this fact illustrates the principles we have been discussing. The reason why it is necessary to have a certain and authoritative law, is shown by the difficulty, not to say impracticability, of inquiring and deciding as a fact, in each particular case, whether a certain erection in tide water is a nuisance at common law or not; and when ascertained and adjudged, it affords no rule for any other case, and can have little effect in maintaining and protecting the acknowledged public right. It is this consideration, (the expediency and necessity of defining and securing the rights of the public,) which creates the exigency, and furnishes the legislature with the authority to make a general and precise law; but when made, because it was just and expedient, and because it is law, it becomes the duty of every person to obey it and comply with it. The question under the statute therefore is, not whether any wharf, built after the statute was made and promulgated, was- an actual obstruction to navigation, but whether it was within the prohibited limit.
On the whole, the court are of opinion that the act fixing a line within the harbor of Boston, beyond which no riparian proprietor should erect a wharf or other permanent structure, although to some extent it prohibited him from building such structure on flats of which he owned the fee, was a constitutional law, and one which it was competent for 'the legislature to make; that it was binding on the defendant, and rendered him obnoxious to its penalties, if he violated its provisions.
It has been decided, in a modem case in England, that land on the shore, in <ront of a wharf, does not pass by a demise of the wharf, because one piece of land cannot, in point of law, be appurtenant to another. But it does not affect the authority of the case cited, on the point for which it is referred to Buszard v Capel, 8 B. & C. 141.