67 Me. 46 | Me. | 1877
Though the case does not show the precise time when the outlet to the sewer in controversy was built, it is reasonable to conclude from the order of the mayor and aider-men passed Jan. 20, 1860, “authorizing the committee on drains, &c., to construct and extend the sewer which has its outlet in Thames street through Thames street to the dock,” and the report of that committee to the mayor and aldermen on March 30, 1860, “that they had built a portion of the same” and “recommending that the completion thereof be referred to the next city council,” that it was built under the authority of §§ 2 & 3 B. S. of 1857, as
Under the general authority conferred by this section of the statute upon the municipal officers of towns and cities, to improve the public drainage and sewerage in their respective municipalities, we have no doubt but they had the right to construct a suitable outfall for a sewer in the public dock below low water mark, whe'never they deemed it-necessary for “public convenience or health.” Indeed, without such authority, the section would be a nullity, in many»cases not unlikely to occur in the larger cities where the difficulty, inconvenience and expense of providing suitable cess pools for retaining the rubbish and filth that naturally seek an outlet through sewers, would render it next to impossible to supply them. The power of these municipal officers is limited in the statute by the demands of “public convenience or health,” which obviously require that the refuse matter and impurities in large cities should be deposited and dissipated in the sea, which is the great receptacle provided by nature for the offscourings of the land. . If the adjudication of the municipal officers of the city of Portland upon the question of “public convenience or health” was open for revision, we see no objections to affirming their decision. But their adjudication is conclusive upon that matter.
° When the outlet of the sewer was built, the plaintiff company had extended their wharf into tide waters below low water mark under the authority of a grant from the legislature. Neither party had any right to make any erections there so as to obstruct navigation without legislative authority therefor. With such permission, they respectively had the right to make and maintain erections according to their respective grants and the law in such cases. The act under which the sewer was built is silent as to the
The right to build the sewer and outlet implies the right to use them for the purposes for which they were intended, to wit, for the collection and discharge of the debris of that part of the city, where they should be constructed, into the dock below low water mark. But it is to be borne in mind that the right to do this being in contravention of the right of the public, at common law, to use the sea as a public highway, should be construed strictly and made to harmonize, as nearly as may be, with this paramount right of the public; for wo do not, by any means, assent to the proposition of the counsel for the defendants that the right of navigation is subordinate to the right of sewerage. No authority has been cited to sustain that position, nor is it reconcilable with the well established doctrine of the common law.
The public right to tile navigation of the sea is not qualified or limited, at common law, by any private or municipal right of sewerage. “It is an unquestionable principle of the common law,” say the court, in Arundel v. McCullock, 10 Mass. 70, “that all navigable waters belong to the sovereign or, in other words, to the public, and that no individual or corporation 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.” So in Commonwealth v. Charlestown, 1 Pick. 180, Parker, C. J., says : “There can be no doubt that, by the princij pies 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 the sovereign power, direct or derivative, to authorize any interruption of them.” The same doctrine has been repeatedly held and applied in this state to tide waters and navigable streams. In
The statute under which the defendants built the sewer and outlet is not to be construed, therefore, as authorizing an unnecessary infringement of existing rights and privileges ; but it is to have such a construction that the wharf company shall be no further limited or restricted in these respects than may be reasonably necessary to accomplish the purpose of the statutes; and it is the duty of the defendants to exercise the power thus conferred in accordance with this rule. State v. Freeport, 43 Maine, 198, 202. Newburyport Turnpike v. Eastern Railroad, 23 Pick. 326.
The city have the right to use the sewer, and the wharf company the right of navigation and the use of their wharf. These respective rights are to be reasonably enjoyed. Neither party can destroy, or unreasonably and unnecessarily impair the rights and privileges of the other. The purpose of the defendants’ erection under the statute is substantially accomplished by the discharge of the deposits at the outlet of the sewer. It cannot be presumed or implied that the statute contemplated the erection of a public nuisance below low water mark, by allowing the deposits from the outlet of the sewer to accumulate and remain there in such quantities as to menace the public health, obstruct navigation and seriously to impair, if not entirely to destroy, the plaintiffs’ erections, previously made under an act of the legislature of equal authority with that under which the defendants made their erection. Nor is it reasonable to conclude that the grant under which the plaintiffs extended their wharf into tide waters, implies the right thereby to create a public or private nuisance either in the manner of using their wharf or by its disuse and allowing it to go to decay.
The purpose of the legislative grant to the wharf company was, not to destroy or obstruct navigation and commerce but to facilitate them. So the purpose of the statute under which the city
The legal status of the defendants is analogous to that of persons using a public highway, whether upon the land or water, who have a right to the reasonable use thereof, for all legitimate purposes of travel and transportation, though this not unfrequently involves the necessity of a temporary obstruction of the highway. In Davis v. Winslow, 51 Maine, 264, 297, the court use this language : “Firemen in extinguishing fires, builders in erecting or removing buildings, teamsters in hauling logs or masts to market, truckmen in loading or delivering merchandise, shipmasters and boatmen in receiving, transporting and delivering their cargoes, raftsmen in managing their rafts, river drivers in running logs, and mill owners in securing them, oftentimes, of necessity, require so much of a highway as temporarily to obstruct it; but, in such cases, they must so conduct themselves as to discommode others as little as is reasonably practicable, and remove the obstruction or impediment within a reasonable time, having regard to the circumstances of the case; and when they have done this, the law-holds them harmless.”
The view we have taken of this case corresponds with the recent decisions upon this important subject, as the cases cited by the counsel for the plaintiff abundantly show. Haskell v. New Bedford, 108 Mass. 208, 214, is directly in point. In that case the court say: “The owner of any lands bordering upon the sea.
A more recent case in Massachusetts, that of Brayton v. Fall River, 113 Mass. 218, 230, is substantially a duplicate of the present case in its facts and legal status. The court there held that the plaintiff could maintain an action of tort against the defendants for obstructing his wharf erected upon a tide water creek, with the rubbish from their sewer. “An individual,” say the court in that case, “cannot maintain a private action for a public nuisance, by reason of any injury which he suffers in common with the public. The only remedy is by indictment or other public prosecution. But if by reason of a public nuisance, an individual sustains peculiar injury differing in kind, and not merely in degree and extent, from that which the general public sustains from the same cause, he may recover damages in a private suit for such peculiar injury.
. . . We are of opinion that this was an injury, special and peculiar to him, for which he may maintain this action. He has a right to the water at his wharf at its natural depth. By the filling up of the dock, his use of his wharf for the purposes for which it had been constructed and actually used, were impaired, and he was subject to an inconvenience and injury which,was not common to the public.”
We understand that this is precisely what the plaintiff's complain of in this case, the diminution of the depth of water about their wharf by deposits from the defendants’ sewer, so as materially to interfere with vessels taking in and discharging cargoes there, as they had been accustomed to do. The report of the case sets
Taking the view of the purport of the report of the case, as before stated, we have come to the conclusion that the defendants under the statute have the right to construct sewers opening into the public docks of the city, and to use them in a reasonable manner for conducting and depositing therein, refuse matter and impurities, but that it is their duty to cause such docks to be cleared of such deposits, whenever they become an obstruction to navigation, or injurious to the public health. If they neglect to do this within a reasonable time, they are guilty of creating a public nuisance and are liable to an indictment; and if such obstruction cause damage to the owners of wharves by diminishing the depth of water about them and thereby impair their use for the purposes for which they were constructed and have been used, causing inconvenience and injury not common to the public, they are guilty of imposing a nuisance upon the wharf-owners, and become liable to an action of tort therefor. If the injury to the wharf owners is merely an injury to the right of navigation in common with the public, the defendants will not be liable in a civil suit. With these qualifications and limitations we answer both of the questions submitted, in the affirmative. Action to stand for trial.
