38 Mass. 344 | Mass. | 1839
delivered the opinion of the Court. This is a bill in equity, which comes before the Court upon regular pleadings and proofs. It goes substantially upon the ground of nuisance, and prays a perpetual injunction against the defendants.
The gravamen of the complaint is, that the plaintiffs are owners of a tract of salt marsh in Milton, and that there has been from time immemorial a salt water navigable creek through this marsh, which was of some benefit to them, in the use of their said land ; and that the defendants, having obtained an act of incorporation, and an' authority to build a road and bridge across Neponset River, and across this tract of marsh, were bound, in the execution of this authority, to erect a bridge over this navigable creek, so that the water might freely ebb and flow therein, as it has been heretofore accustomed to do, and so that the plaintiffs might use it, as a navigable stream for boats, gondolas and light craft.
The defendants, by their answer, deny that the creek in question is a navigable creek; they deny that they are under any obligation, in extending their road over this creek, to erect a bridge across it; they aver that they have strictly conformed to the terms of their act of incorporation, and have not exceeded the authority granted to them, and that if, by the taking a portion of their lands or otherwise, the complainants have suffered any damage, they have an adequate remedy at law.
It may be remarked in passing, that as set forth by the plaintiffs, the creek in question, as a navigable creek in which the tide ebbs and flows, would be a common highway, and the
But the question which has been mainly discussed in the present case is, whether the creek in question is a navigable creek, and this is a question of fact upon the evidence.
Before examining this evidence, it may be proper to consider what distinctly is meant by a navigable stream, when applied to tide water. It is not every ditch, in which the salt water ebbs and flows, through the extensive salt marshes along the coast, and which serve to admit and drain off the salt water from the marshes, which can be considered a navigable stream. Nor is it every small creek, in which a fishing skiff or gunning canoe can be made to float, at high water, which is deemed navigable. But in order to have this character, it must be navigable to some purpose, useful to trade or agriculture. It is not a mere possibility of being used under some circumstances, as at extraordinary high tides, which will give it the character of a navigable stream, but it must be generally and commonly useful to some purpose of trade or agriculture. [Here the court proceeded to consider and sum up the evidence.]
On the whole the Court are of opinion from the evidence, that this cannot be considered as a stream, navigable to any useful or beneficial purpose either of trade or agriculture. The claim, therefore, upon this part of the bill, cannot be maintained.
But it is further suggested, that the defendants have not only stopped all navigation along this creek by placing a solid structure across the same, but have obstructed the flow of the stream, and the drain of the water from the marshes
On the whole, the Court are of opinion, that the plaintiffs are not entitled to the relief prayed for, and that their bill must be dismissed, with costs.