Page images

ished with specific penalties. The intention to preserve the navigation unobstructed iu all navigable rivers of England was manifested in the ancient laws relating to sewers,1 the purpose of which was both to prevent inundations and to assist navigation.2 According to Coke and Callis, the king might, even before the making of any statute of sewers, grant commissions for surveying and repairing walls, banks, and rivers, and other defences,3 the decay of which might tend to choke up the navigable channels. The prerogative of the Crown includes, also, the right and duty to protect the realm from the inroads of the sea.4 The attorney general may proceed by information, on behalf of the Crown, to prevent a subject from removing a natural barrier against the sea,6 and the injuring of such a barrier appears to be an indictable offence at common law.6 In England the preservation of harbors, ports, navigable rivers, and docks is now entrusted to corporate bodies of trustees or conservators, and the powers of commissioners of sewers are restricted to such parts of the coast as are not under the regulation of these bodies.7

138; 13 Rep. 38; Flanagan v. Philadelphia, 42 Penn. St. 219, 229.

i See Callis on Sewers, passim; Woolrych on Waters, 8, 54 -63, 68; Hunt on Boundaries (2d ed.), 33.

• The King c. Hide, Styl. 00; Yeaw .>. Holland, 2 Wm. Bk. 717; Dore v. Gray, 2 T. R. 330; Callis on Sewers, 89; 4 Inst. 276; Rex v. Pagham, 8 B. & C. 355; Queen v. Baker, L. R. 2 Q. B. 621.

3 Case of The Isle of Ely, 10 Rep. 143; Callis on Sewers, 2, 25, 79; Royal Fishery of the Banne, Sir John Davies, 149, 153; Dore v. Gray, 2 T. R. 358; Jean v. Holland, 2 T. R. 305; 4 Inst. 270; Qneen v. Westham, 10 Mod. 159. The Commissioners of Sewers could not maintain trespass against one who broke down embunkmento, but the remedy is by indictment in the name of the king. New

castle v. Clark, 1 Moore, 666; Driver v. Simpson, Id. 682.

4 Attorney General v. Tomline, 12 Ch. D. 214; Hudson v. Tabor, 2 Q. B. D. 290; Callis on Sewers, 80; Woolrych on Waters, 42.

• Attorney General v. Tomline, 12 Ch. D. 214.

6 Ball v. Herbert, 3 T. R. 253, 263; Neweastle v. Clark, 1 Moore, 066; Driver v. Simpson, Id. 682; Attorney General v. Tomline, 12 Ch. D. 214, 222; Callis on Sewers, 73, 74.

7 Woolrych on Sewers, 49; Greenwich Board of Works v. Maudsley, L. R. 5 Q. B. 397. See authorities, post, § 115; Coulson & Forbes on Waters, 26, 80; Cory v. Bristow, 2 App. Cas. 262; Watkins c. Milton, L. R. 3 Q. B. 350; Forrest v. Greenwich, 8 E. & B. 890; Grant v. Oxford, L. R. 4 Q. B. 9; Rex v. London, 4 T. B. 21.

§ 92. All annoyances and impediments to navigation are prima facie public nuisances, whether created by the riparian owners or by strangers.1 The public may enforce their abatement or removal by indictment, or by an information in equity, and individuals to whom they cause special damage may recover damages at law against those who have created them.2 But no indictment will lie for a nuisance in a public river when the injury to navigation is likely to be only slight and of rare occurrence.3 Lord Hale instances4 the following nuisances, among others, that may be common to all having occasion to frequent ports: (1) silting or choaking up the port, either by the sinking of vessels in the port, or throwing out of filth or trash into the port, whereby it is choaked. (2) Decays of the wharfs, keys, and piers, which are for the landing of merchandize and safe-guard of shipping. (3) The leaving of anchors in the port without buoys or marks, whereby ships or vessels may strike against them and be spoiled. (4) The building of new wears or inhancing of old, whereb}T navigation or passage of vessels is obstructed.

(5) The straitening of the port, by building too far into the water, where ships or. vessels might have formerly ridden.

(6) "The impediment or hindrance of moreing of ships in the ground adjacent, if it hath been so anciently used, without paying anything for it. Or if it be a new port, yet it seems, the moreing of ships being for the general good of commerce, it must be suffered upon reasonable amends." If unreasonably large masses of oysters be planted or deposited in the bed of a navigable river, they are a nuisance so far as they obstruct the navigation.6 So logs or rafts, for mere private convenience, and for no purposes connected with the rights of navigation in a channel which is susceptible

1 Williams i>. Wilcox, 8 Ad. & El. 3 Rex v. Tindall, 6 Ad. & El. 143. 314; Brucklesbank v. Smith, 2 Burr. 4 Hale, De l'ortibus Maris, c. 7;

650; Commonwealth v. Caldwell, 1 Ilargrave's Law Tracts, 85. It is a

Dall. 150; Knox v. Chaloncr, 42 Maine, criminal offence in Georgia to throw

150; Veazie v. Dwinel, 50 Maine, out ballast in a harbor. Wallace v.

479, 484; Gerrieh v. Brown, 51 Maine, State, 40 Ga. 199. 260; Lancey v. Clifford, 64 Maine, 5 Colchester v. Brooke, 7 Q. B. 339,

487; Cox v. State, 8 Blackf. 193. 375; State v. Taylor, 27 N. J. L. 117.

Post, §§ 121-128.

of use for navigation, deposited for an unreasonable time, constitute a nuisance in judgment of law.1 The diversion of water from a river may so impair its navigable capacity as to amount to a public nuisance,2 and a city is liable for the detention of navigators caused by diverting the water for purposes subordinate to the right of navigation, as for use in the arts, for driving or lifting power, the washing of pavements, baths, etc., or even for domestic consumption beyond the requirements of necessitj'.3 The owners of lands bordering upon navigable waters may lawfully throw sewage and other refuse matter into them, provided they do not create a nuisance to others;4 for it is a natural office of the sea and of all running waters to carry off and dissipate, by their perpetual motion and currents, the impurities and offscourings of the land;5 but the public right of navigation is not limited at common law by any private or municipal right of sewerage.6 The filling up by a city, by means of a sewer, of any portion of its harbor, to the injury of the navigation, is an indictable offence;7 and if it causes injury to private rights, as by interfering with the access to a wharf or ferry slip, it affords a cause of action to individual^.8 The owners of mills and manufactories are bound to see that filth, trash, and other waste cast'from their Avorks into a navigable stream do not obstruct the navigation,9 and their negligence in this

'Commonwealth v. Fleming, Lewis's Crim. Law, 633, 534; Commonwealth v. Striekler, Id. 536; Moore v. Jackson, 2 Abb. (N. C.) 211; Hayward v. Knapp, 23 Minn. 431.

* Stokes v. Upper Appomattax Co., 3 Leigh, 318; Medway Navigation Co. v. Roniney, 9 C. B. N. S. 675.

3 Philadelphia v, Gilmartin, 71 Penn. St. 140; Philadelphia v. Collins, 68 Penn. St. 106; Commonwealth v. Tewksbury, 11 Met. 55, 67; Yolo Co. v. Sacramento, 36 Cal. 193.

* Haskell v. New Bedford, 108 Mass. 208, 214.

5 Gray, J., in Haskell v. New Bedford, 108 Mass. 208, 214.

9 Bray ton v. Fall River, 113 Mass.

218; Franklin Wharf v. Portland, 67 Maine, 46, 55; Boston Rolling Mills v. Cambridge, 117 Mass. 396; Washburn & Moen Manuf. Co. v. Worcester, 116 Mass. 458.

'Ibid.; Clark v. Peckham, 10 R. I. 35; 9 R. I. 465. But in such case, the obstruction must be against the front of the plaintiff's land. Post, § 97. And a municipal corporation may connect its sewers with a natural water-channel, without liability to keep the channel open to its mouth. Munn v. Pittsburgh, 40 Penn. St. 364.

• Ibid.; Sleight v. Kingston, 11 Hun, 694. .

'Ibid.; Veazie v. Dwinel, 50 Maine, 479; Dwinel v. Veazie, 50 Maine, 479; respect gives rise to private rights of action.i If a telegraph company, which is authorized by statute to lay its cable in navigable waters in such manner as not to "injuriously interrupt the navigation," causes the cable to be so laid or suspended that it comes in contact with vessels which would otherwise pass without difficulty or interruption, the cable is a nuisance, and the company is liable for any damage thereby caused to a vessel which is not at fault.2 The facts that other vessels and the vessel injured have passed the obstruction safely, and that a projecting iron on the vessel caused it to catch upon the cable, do not necessarily relieve the company of liability, since, as against a wrong-doer, the owners of a vessel are not bound to keep it in the best possible repair.3 The fact that an obstruction is a nuisance does not justify the master of the vessel in destroying or running upon it negligently, for one member of the public is not justified in causelessly injuring another's property by the fact that such property is so placed as to interfere with a public right.4 If the navigator casts his vessel upon the obstruction unnecessarily, he is guilty of contributory negligence, and cannot recover for the injury he may thereby sustain.6 A vessel which comes to anchor negligently, or is otherwise guilty of negligent navigation, is liable for injuring a telegraph cable, laid at the bottom of the sea, with which its anchor comes in contact.6 The relative rights and duties of persons navi

44 Maine, 167; Gerrish v. Brown, 51 man v. Bluck, 18 Q. B. 870; Bridge v.

Maine, 256; Davis v. Winslow, 51 Grand Junction Railway Co., 3 M. &

Maine, 264; State v. Bunker, 50 W. 244; Davies v. Mann, 10 M. & W.

Maine, 366; Washburn v. Gilman, 64 546; Butterfield v. Forrester, 11 East,

Maine, 163; Barrett v. Bangor, 70 60; State v. Antoine, 40 Maine, 435;

Maine, 335, 338; Brackelsbank v. Cummins v. Presley, 4 Harr. (Del.)

Smith, 2 Burv. 656; Simpson v. Sea- 315; Foster V. Holly, 38 Ala. 76;

vey, 8 Maine, 138. Steamboat v. McCraw, 26 Ala. 189,

i Haskins v. Haskins, 9 Gray, 390; 203; Inman v. Funk, 7 B. Mon. 538;

Washburn v. Gilman, 64 Maine, 163. Pileher v. Hart, 1 Humph. 524; Cas

s Blanchard v. Western Union Tele- tello v. Landwehr, 28 Wis. 522.

graph Co., 60 N. Y. 510; 67 Barb. 6 Ibid.; Lane v. The A. Denike, 3

228 ; 3 Supv. Ct. 775 ; Stephens Trans- Cliff. 117; Knowlton v. Sanford, 32

portation Co. v. Western Union Tele- Maine, 148.

graph Co., 8 Ben. 502. 'Ibid: 6 Submarine Telegraph Co. v. Dick

4 Colehester v. Brooke, 7 Q.B. 339; son, 15 C. B. ft. s. 759; The Clara

Dimes v. Petley, 15 Q.B. 276; Bate- Killam, L. R. 3 Adm. & Ecc. 161.

gating vessels apply equally whether in ports or rivers, or within the three-mile belt along the coast, or on the high seas generally.i

§ 93. The distinction between a purpresture and a public nuisance was stated in a previous chapter.8 Any unauthorized invasion of the soil of the seashore between high and low-water mark, or of the shore or alveus of a tidal river, or of the bed of an estuary or arm of the sea, while these remain the property of the Crown, or, in this country, of the State, is a purpresture.3 In strictness, the question whether a wharf or building erected in tide waters is a purpresture depends upon the ownership of the soil which it covers.4 At common law, if the person who makes such a structure establishes his right to the soil by producing a grant or license from the Crown, it is not a purpresture, although it may still be unlawful if it obstructs the navigation. In the latter case, the structure is abateable as a nuisance notwithstanding the king's license, for a common nuisance is not warrantable by the Crown.6 The law upon this subject is thus stated by Lord Hale:8 It is not "every building below the high-water mark, nor every building below the low-water mark, is ipso facto in law a nuisance. For that would destroy all the keys that are in all the ports in England. For they are all built below the high-water mark; for otherwise vessels could not come at them to unlade; and some are built below the low-water mark. And it would be impossible for the king to license the building of a new wharf or key, whereof there are a thousand instances, if ipso facto it were a common nuisance, because it straightens the port, for the king cannot license a common nuisance. Nay, in many cases it is an advantage to a port to keep in the sea-water from diffusing at large; and the water may flow in shallows, where it is

i See Ibid., per Willes, J., p. 779. Railroad Co. v. Ward, 2 Black, 485;

Ante, § 21. Nichols v. Boston, 98 Mass. 39, 41.

'Ante, § 21 ; Blundell v. Catterall, 6 Hale, De Portibus Maris, c. 7;

5 B. & Ad. 268. Hargrave's Law Tracts, 85; De Jure

* Ibid. Maris, c. 3, 5, II; Hargrave's Law 8 Hale, De Portibus Maris, c. 7; Tracts, 9, 21, 22, 23, 36.

Hargrave's Law Tracts, 85; Mississippi

« ՆախորդըՇարունակել »