Lockwood v. New York & New Haven Railroad

| Conn. | Oct 15, 1870

Seymour, J.

The question in dispute between these parties is whether the defendants’ right of way for their railroad covers the ground on which certain structures were erected by the plaintiff, which structures the defendants have removed as interfering with the right of way claimed by them.

The case depends' upon the construction and effect of a deed, set forth at length in the finding of facts, made by the plaintiff’s grantor to the defendants; so much of the deed as is 'particularly applicable to the question under consideration being that part which describes .the land over which the right of way is granted, as “ extending from the harbor on the west to the land of William H. Noble on the east.” At the time this grant was made the defendants’ road had been surveyed and located and the map of the road as thus located is referred to in the grant. The road thus mapped continues westerly across the harbor of the same width as on the plaintiff’s land. Tlie structures above mentioned are within .the limits of the road as thus surveyed, but are on what at the date of the deed were fiats between high and low water mark. The plaintiff has reclaimed a portion of these flats and erected the structures, claiming that the right of way granted by the deed extends only to high water mark as high water mark was at the date of the deed, and that as owner of the fee he may lawfully reclaim the flats between high and low water mark, and that he may hold and occupy these reclaimed premises unincumbered of any right of way in the defendants, except so far as the defendants have by actual occupation acquired a right by possession and user.

The plaintiff is undoubtedly right in the claim that in Connecticut the owners of land bounded on a harbor own only to high water mark, and that whatever rights such owners have of reclaiming the shore are mere franchises. When however such reclamations are made the reclaimed portions in general become integral parts of the owners’ adjoining lands. By means of such reclamations the line of high water mark is changed and carried into the harbor, and the owners’ lands have gained the reclaimed shore by accretion; the principles governing the case being the same as those which prevail where the sea recedes gradually by accession of soil to the land.

If the grant had been in terms of a right of way to and from the harbor the grantees would be entitled to come to the harbor, over whatever intervening accessions of soil might accrue between high and low water mark. If the line of high water mark should be changed by natural or by artificial causes the rights of way would follow the changed line of the harbor, and this deed in connection with the map shows that the object of the deed was to enable the grantees to reach the harbor and by means of the right of way therein granted to connect their road on the east, with the harbor and their road across the harbor on the west. The defendants by their charter had received from the state the general right to cross the public waters, and under this right so conferred and under the rights conferred by the deed in question the defendants have constructed their railroad and bridge and have without objection occupied so much of the surveyed way as they have had occasion to use. It is true that the actual occupation of the defendants has not extended to the place where the structures in dispute were placed, but we think their rights extend to the harbor along the entire water front of the land described in the deed, and that the map referred to truly marks the limits of the defendants’ rights, and that the plaintiff may not lawfully within those limits do any act interfering with or interrupting the defendants’ right of way.

We therefore advise that judgment be rendered for the defendants.

• In this opinion the other judges concurred.