18 Mass. 180 | Mass. | 1822
The opinion of the Court was delivered at this term by
By the common law, it is clear, that all arms of the sea, coves, creeks, &c., where the tide ebbs and flows, are the property of the sovereign, unless appropriated by some subject by virtue of a grant, or prescriptive right, which is founded on the supposition of a grant. Hale de Jur. Mar. pt. 1, c. 1, 2, 3. The right, however, of fishing in such places, or sailing over them m boats, is common to all the subjects, but liable to be restrained or regulated by the sovereign power. So that the proprietor of upland contiguous has no greater right to the use of such privileges, than other subjects who are not the owners of upland.
And this right of the sovereign extends to ordinary high-water mark ; so that the shore, which is the space between high-water and low-water mark, belongs also to the sovereign ; the property of the owner of the upland reaching only to that line which limits the waters in the ordinary course of the tides. Storer v. Freeman, 6 Mass. Rep. 435.
This right in the waters and shores of the sea passed from the crown, by letters patent from James the First, to the council established at Plymouth, in the county of Devon, for the planting, &c. of New England, and from that council so much of their territory thus acquired as was contained in the colony of Massachusetts Bay was transferred to the company who undertook the settlement of that colony ; and their grant was confirmed by the charter of King Charles the First, which constituted the company a body corporate and 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, &c., in as full and ample a manner as they were before held by the crown of England. Anc. Charters, &c. 1.
Among the earliest acts of legislation was an exercise of sovereignty with respect to the shore, or flats, of coves, creeks, &c., which abounded all over the seacoast. By the common law, it has been seen, he to whom a house lot was granted, which was bounded upon the sea, would be the proprietor only as far as high-water mark. The desire and necessity of wharves, quays or piers was soon felt by individuals and the community, and the occupation of flats became indispensable. The government then, to encourage these objects, and to prevent disputes and litigations, 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 mark, where the sea does not ebb above one hundred rods. This was a grant of so much of the shore as would be contained within the exterior lines of the upland lot extended from high-water to low-water'mark, provided it did not extend more than one hun dred rods. Anc. Charters, &c. 148.
The exceptions and provisions in this ordinance show clear ly, ..hat the principles of the common law relating to this kind of property were well understood by the colonial legislature. Those who thus acquired the property of the shore were restricted from such a use of it as would impair the public right of passing over the water, in boats or other vessels, through any sea, creeks, or coves, to other men’s houses or lands ; by which it was intended to reserve a free passage over the water in such places, in the same manner as it existed before the public property in the shore was transferred. The ordinance of 1641
To build a bridge, therefore, from shore to shore over a navigable cove or creek, whereby the usual passage of boats or other craft would be impeded, could not be justified even by the owner of the soil; for he has, only a qualified property in it, under the ordinance of 1641. None but the sovereign power can authorize an interruption of such passages, because this power alone has the right to judge, whether the public convenence may be better served by suffering bridges to be thrown over the water, than by suffering the natural passages to remain free; and this power may exact such conditions as to the manner of building, as will sufficiently preserve the natural passage, at the same time that the public may be accommodated with an artificial one.
There can be no doubt, therefore, that, by the principles of the common law, as well as by the immemorial usage of this government, all navigable waters are public property for the use of all the citizens; and that there must be some act of
Upon this ground it was determined, in the case of Commonwealth v. Coombs, that the Court of Sessions, to which body was given by a general law the power of laying out public ways, had not power to lay out such a way over a navigable river, so that the river might be obstructed by a bridge.
The statute giving power to the Court of Sessions, it is there said, must have a reasonable construction. “ A navigable river is of common right a public highway, and a general authority to lay out a new highway must not be so extended, as to give a power to obstruct an open highway already in the use of the public.” And in the case of The Inhabitants of Arundel v. M'Culloch, the same principle is recognized. The Court say, “ It is an unquestionable principle of the common law, that all navigable waters belong to the sovereign, or, in other words, to the public ; and that no individual or cor poration can appropriate them to their own use, or confine or obstruct them so as to impair the passage over them, without authority from the legislative power. It is upon this principle, that so many acts of our legislature have been passed, authorizing the building of bridges over various streams and rivers within the Commonwealth.”
I do not know that this doctrine has been contended against, in the argument of the case before us. The question has been rather a question of fact than of law, to wit, whether the ■ streams over which the bridges stand, for not repairing which the defendants are indicted, are navigable streams, within a reasonable use of those terms, so as to be public property in the manner before stated.
It may be remarked, that, by the common law, the property of the sovereign is said to extend to all places where the sea ebbs and flows, whether such places are navigable or not; but
The evidence reported abundantly proves the navigableness of Miller’s River for boats, scows, and lighters, with heavy loads of manure, wood, &c. and several witnesses testified to the actual use of the stream, by such vessels, before and until the bridge was built.
The facts thus testified were not contradicted. The effect of them was attempted to be avoided by an argument, which probably would be successful with the legislature, on an ap
The principle upon which the public right to navigable streams rests having never been controverted, and the necessary inference being, that no subordinate power can authorize any use of them, inconsistent with that right, there could be no difficulty in settling this or any other question relating to them, were it not that the insignificance of some of the streams, and the little use made of them for purposes of transportation, render the application of the principle sometimes questionable, on the ground of expediency. But this difficulty is solved by referring all such cases to the legislature ; which will always relinquish the public control over such waters, when the public interest shall require it. There is but one principle for judicial courts to be governed by, and that is, to consider as public property all those inlets of the sea, which are capable of sustaining vessels of e-iv description, with their loading, for purposes really useful ;.o trade or agriculture. It has been urged, that the actual y*c
It was urged also in argument, that a stream, to be public, must be actually a highway, leading from county to county ; but there is no authority for this position. Highways, according to the common law, are places in which all the subjects have a right to pass ; and this is peculiarly the case with the sea and all its branches. It is by statute only, that those roads are denominated highways which lead from town to town, to distinguish them from those which are laid out for the use of one town only, or certain individuals in one town, with a view to the different tribunals which are to authorize the aying them out.
We have considered with much attention a position advanced by one of the counsel for the prosecution, viz. that a bridge being actually in existence, the defendants, by the general laws, are obliged to keep it in repair, without reference to the original lawfulness or unlawfulness of the establishment of it. This position may be true in regard to ancient ways, the origin of which cannot be traced, but which have immemorially been in use.
Though the reasoning, in the foregoing opinion, has been principally applied to one of the counts in the indictment, viz that which charges the inhabitants with neglect to repair the bridge over Miller’s River, it is equally applicable to the other count, with respect to which the evidence reported abundantly proves the navigableness of the stream therein described, and the former use of it for valuable purposes. The verdict therefore must be set aside, and a new trial granted.
See Commonwealth v. Breed, 4 Pick. 460.
See Commonwealth v. Pierce, 2 Dane’s Abr. 696. Rivers are considered navigable as far as the tide ebbs and flows, and not navigable above that point. Commonwealth v. Chapin, 5 Pick. 199; Hooker v. Cummings, 20 Johns. R. 90; Palmer v. Mulligan, 3 Caines’s R. 307; Scott v. Wilson, 3 N. Hamp. R. 321. Contra, Cates v. Wadlington, 1 M’Cord, 580; Carson v. Blazer, 2 Binney, 475; Shrunk v. Schuylkill Nav. Co. 14 Serg. & R. 79. See Berry v. Carle, 3 Greenl. 269; Adams v. Pease, 2 Conn. R. 481; Shaw v. Crawford, 10 Johns. R. 236.
Selectmen are not authorized to lay out a landing-place or a town way betwee' High-water mark and the channel of a navigable river. Kean v. Stetson 5 Pick. 492.
See Estes v. Troy, 5 Greenl. 368; Todd v. Rome, 2 Greenl. 55; Rowell Montville, 4 Greenl. 270.
See Jones v. Andover, 9 Pick. 146.