10 Mass. 70 | Mass. | 1813
It is an unquestionable principle of [ * 71 J the common law, 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. It is upon this principle that so many acts of our legislature have been passed, authorizing the building of bridges over various rivers and streams within the commonwealth.
In this case, no such authority has been given; and the only claim of a right to continue the bridge rests upon the antiquity of the bridge, and the laying out of a road over the river in the year 1771. But we think that neither of these facts sanctioned the
With respect to the act of the Sessions in 1771, laying out a road across the river, nothing can be inferred from it in favor of the plaintiffs, because it was an act without authority, and void in law; as was determined in the case of the Commonwealth vs. Coombs,
Plaintiffs nonsuit
ADDITIONAL NOTE.
[See Hart vs. Mayor, &c., 9 Wend. 571. — Rogers vs. Rogers, 14 Wend. 131. — Wetmore vs. Tracy, 14 Wend. 13. — Meeker vs. Van Rensselaer, 15 Wend. 397. — State vs. Hyde, 11 Conn. 541. — Burnham vs. Hotchkiss, 14 Conn. 311. — Bemis vs. Clark, 11 Pick 452. — Baker vs. Boston, 12 Pick. 184. — Rowe vs. Granite, &c., 21 Pick. 344.
A building erected upon the public square of a town is a public nuisance, which maybe abated by any person aggrieved.—Rung vs. Shoneberger, 2 Watts, 23. But in the same state, (Pennsylvania,) it is held that a mill-dam, erected over a navigable stream by the owner of the land through which it passes, is not a public nuisance, to which the common law remedy of abatement may be applied.— Criswell vs. Clugh, 3 Waits, 330.
In an action for a nuisance, created by obstructing a stream made navigable by law, the owner of the erection is liable to an action, if the injury be remotely produced by causes which might have been foreseen, such as ordinary periodical freshets, or an accumulation of ice; otherwise, if by an act of Providence, which could not have been foreseen —Bell vs M'Clintock, 9 Watts, 119. — See Roush vs. Walter, 10 Watts, 86. —F. H.]
[2 Mass. Rep. 489. — Commonwealth vs. Inhabitants of Charlestown, 1 Pick. 180. --Ed.]
[Walcs vs. Stetson, 2 Mass. Rep. 143. — Ed.]