delivered the opinion of the Court. It appears to the Court very clear, that the extension by Mr. Gray, the plaintiff’s ancestor, in 1816, of bis wharf into the channel below the line of low-water mark, whether it was a public nuisance or not, or whether in any form the public could have interposed to prevent or remove it, gave the builder no possession, and no color of title, beyond the limits of the land under water, actually covered by some erection which would m fact exclude the use of the public waters to others. Of coirse,
The principle of prior occupancy by Mr. Gray, the ancestor of the plaintiff, and the acquiescence of the ancestors of the defendant, does not apply to any part of the premises in controversy, below low-water mark, because, as, to that the possession was not adverse, and Mr. Parkman, the defendant’s ancestor, had no power to oppose or resist it. It was a public domain, over which Mr. Parkman had no control ; and his right to use it, was a right in common with all the rest of the community, and one which it was not his peculiar duty or province to vindicate.
A point mainly relied on is this, that when the elder Mr. Gray extended his wharf within and beyond low-water mark, which was a great public improvement, he covered the whole width of his flats, or nearly the whole, with his wharf; that it was essential to the enjoyment of his wharf, that he should make use of the adjoining flats for dockage ; and that the adjoining proprietor must have known and understood this, and by his silence tacitly acquiesced in this claim, and gave him permission so to occupy the adjoining flats. But the Court are of opinion that this is making much too broad a claim, upon the foundation of tacit acquiescence. When Mr. Gray built out his wharf from high to low water mark, he had a right to use and occupy his own flats to the full breadth, in any manner which he thought fit. He might use the flats solely for wharf or solely for docks, or partly for one and partly for the other. But he could not use the same flats for wharf and for docks at the same time. If therefore it was his intention to use the sides of his wharf, or either of them, for dock age to lay vessels upon, it was in his power to leave open a sufficient part of the flats for that purpose, and for access to them. His not doing so, was rather an indication that it was
The principle was much relied upon, that where one stands by and sees another laying out money and making large investments upon property, to which he himself has some claim or title, and he does not give notice of it, he cannot afterwards, in equity and good conscience, set up such claim or title. This we think is a very just and well settled principle, when well understood and properly applied. But it does not apply to this case, because the acts of Mr. Gray did not tacitly or expressly amount to any claim upon the property or rights of the coterminous proprietors, whose estate the defendant now holds ; but were either such as'he had a right to do, within the exercise of his own rights, upon his own flats, or were done upon the public domain, against which those proprietors could make no legal resistance. Besides, the principle insisted on requires some qualification, and can be only held to apply against one who claims under some trust, lien or other right not equally open and apparent to the parties, and in favor of one who would be deceived or misled by such want of notice. But where the act of one is an encioachment on the soil or rights of another, an acknowledged tort, equally well known, or equally open to the notice of both parties, it gives no right, until it has continued for such a length of time without interruption, as to found the presumption of a grant, or give effect to the limitation of the right of action for the disturbance, as determined by common law or by statute.
In this suit, it must be remembered, that the plaintiff seeks to enjoin and inhibit the defendant from building out and extending his own wharf, within the limits of his own original mes, and upon an extension of those lines to low-water mark,
Plaintiff’s bill dismissed, with costs.