104 Me. 360 | Me. | 1908
The defendants stand indicted for creating a nuisance by obstructing a way. The case comes up on report. It appears that in 1871, a way, known as Old Orchard Street, was laid out in Old Orchard, beginning "at the north corner of Ebenezer C. Staples’ field, thence running south 41 degrees 15 minutes east 76 rods or to high water mark.” The street was built and has since been constantly used by the public. At the time the street was laid out it was exactly seventy-six rods from the point of beginning to high water mark on Old Orchard beach. This street was connected
It is settled law that the owner of land, bordering on a stream, a lake or the sea, which is added to by accretion, that is, by the gradual and imperceptible accumulation or deposit of land by natural causes, becomes thereby the owner also of the new made land. It follows that the defendants, owning to the center of the street as originally described, have gained title by accretion to so much of the added land as lies in front of their half of the street, and that the obstruction is on land of which they own the fee. Banks v. Ogden, 2 Wall. 57. So far there is no controversy.
But the State contends that as far and as fast as the ground in front of high water mark as it was in 1871 has been added to by accretion, so far and so fast has the public easement extended seaward by operation of law, that the definite terminus of the street in 1871 was "high water mark,” and that it continued to be and is now at "high water mark,” wherever that may be. In short, it is contended that the end of the street has kept pace with the receding high water mark, and hence that the locus of the obstruction is within the street. We think that this contention must be sustained.
The cases involving this precise question are very few, if there are any, but the trend of judicial thought appears in many decided cases, some of which we cite. In People v. Lambier, 5 Denio, 9, the court said that, in case of accretions from natural causes, while the alluvial additions would become the property of the owner of the land against which the deposit is made, "it would hardly admit of a question that in such a case a public street leading to navigable waters would keep even pace with the extension of the land so as to preserve an unbroken union between the easement on
There are in the books many cases of ways by dedication bordering on water ways. While ways by dedication are not strictly analogous to ways by statutory location, since the construction to be given to dedication depends upon the intent of the person dedicating, as a question of fact, and the construction of a statu-, tory laying out is a question of law, still the cases touching dedicated ways are useful as illustrations of the reasons which underlie the legal rule in statutory cases. It is said that when a highway to a water way is acquired by dedication, the presumption is that the intent was that the way should reach the water so as to enable the public to enjoy the navigation of the stream. The result is that if the adjoining land is gradually extended into the stream, the highway will follow the extension and continue to reach the water.
The principles declared in the cases we have cited seem to be consonant with reason. Here is the case of a street laid out to connect with the sea, a continuous way on land and water. The apparent purpose of extending the street to high water mark was to make such a continuous way, and yet unless it be true that the terminus of the street followed "high water mark” as it might be removed seaward by accretion, we have this curious result. In order to aiford the public continuous access to the water way, it would have been necessary for the authorities to lay out new additions to the street at least as often as the imperceptible accretion by accumulation became perceptible. Such a conclusion is not reasonable.
On the other hand, in the light of judicial reason and expression, we hold that when high water mark changed and the defendants’ land above high water mark was gradually extended seaward by accretion, the public easement which was attached to it originally at high water mark went with it, pari passu. The street ended, at all times at "high water mark,” which was declared in the laying out to be the terminus.
The defendants contend, however, that this conclusion is in violation of Article I, section 21, of the constitution, which declares that "private property shall not be taken for public uses without just compensation.” They say they have received no compensation, and that none has been awarded to them, on account of the way which we have said extends over their new made land by virtue of the laying out in 1871. We think this ground is not tenable. When the street was originally laid out, if any damage was sustained, compensation was awarded to and received by the defendants or their predecessors in title, or was waived. • The law conclusively presumes that the compensation was full and just. It covered all damages to
It follows that the entry must be,'
Judgment for the State.