President of the Delaware & Hudson Canal Co. v. Lawrence
This text of 9 N.Y. Sup. Ct. 163 (President of the Delaware & Hudson Canal Co. v. Lawrence) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
P. Potter, J.:
The Rondout creek is a navigable stream for vessels of light draft from the channel of the Hudson river, for the distance of about two miles up said creek westerly to a place called Eddyville, to which place the tide ebbs and flows.
The plaintiffs are a corporation, chartered under an act of the legislature of this State, and are the proprietors of a canal extending from Honesdale in the State of Pennsylvania, to Eddyville aforesaid, in the county of Ulster, upon which they transport coal and other freight.
The defendant is riparian owner of land upon the northerly or westerly side of said creek, holding title thereto from patents granted by this State, which patents, as shown by the maps attached as part of the case, convey lands which extend from the land on the shore, at high-water mark, to the channel of said creek.
The proposed structure of dock or wharf by defendant, is within the lines of boundary contained in the said patents from the State to the defendant and his grant.
The defendant is the owner of valuable cement lands and a lime quarry bordering upon this creek, and his purpose of erecting this dock or wharf in front of his said property, and for which he had commenced driving piles, is for the commercial purpose of using it to load and unload boats in his business as a manufacturer and shipper of cement and lime.
The above are now the'undisputed facts upon which this case depends. It is true, one of the maps in the case presents the defendant’s proposed line of wharf to be outside of his grant, but the finding of the referee, sustained by the evidence, shows it to be within; which finding we must regard as true.
1st. The plaintiff bases its claim for relief, first, upon the fourth finding of fact by the referee: “ That said piles as now driven, and said dock or wharf when completed, and as it is to be used for said purposes are, and will be, an obstruction to the navigation of said creek; ” and also upon the sixth finding, “ that by reason of said obstruction, the plaintiff!, as carriers and transporters, and because of the character and extent of their business in the navigation of said creek, suffer a special and peculiar injury.” The theory upon which the plaintiff’s case stands is, that this fourth finding is a [167]*167material finding of fact, and not at all a question of law, nor a mixed question of fact and law; and that the sixth finding that the manner and extent of the plaintiff’s business in navigating said creek, presents a case which authorizes him as an individual to bring this action. The decision of this case must depend upon the soundness of these positions.
The defendant’s exceptions to the finding of fact and law, and the undisputed facts in the case, are sufficient to present the whole case for our consideration.
Assuming the findings to be sustained by evidence, the case is not then free from complication and difficulty; and if the facts as found were all the facts in the case, and were all sustained by evidence, I am inclined to think they do not sustain a judgment of perpetual injunction. They come short of finding enough to sustain it. This is the first point I propose to discuss.
But the proper decision of the case also involves the necessity of examining the undisputed testimony to see if those findings are even legitimate deductions therefrom. Important evidence which is controlling of issues in the case, and necessary to be considered, is not passed upon by the issues found, and though we cannot, as the case is made, treat this as error, we may examine such evidence with reference to the issues that are found (except such as is in conflict), and give to all legitimate force.
These undisputed facts, not found but appearing from maps in the case, are, that the whole width of the Rondout creek, at the narrowest point, at the lower end of the defendant’s proposed dock or wharf, from shore to shore, is 690 feet, and at the upper end it is 900 feet wide.
The actual channel, as it is called by navigators, at the narrowest point opposite this wharf, is about 150 feet.
That the proposed dock, if allowable, was of a suitable size for practical business purposes, and could not be made any smaller for such purposes, and for practical use as a dock. The obstruction — ■the only obstruction—to the navigation of said creek to the plaintiff’s injury, as proved, and upon which the referee based his finding, is, to the movement of a cluster or a flotilla of boats moved or propelled upon said creek by what is called tugs or small steamers, towing canal boats and other small boats, so arranged as to move [168]*168three, four or five boats abreast in tiers; the number always depending upon the demand of patronage and state of the water, thus towing from three and four to twenty boats by one tug, sometimes occupying nearly the whole width of the stream.
These facts, it seems, it is necessary for a full understanding of the case, should be stated; for this, it appears, is the first case to be found in this country where the question of the obstruction of a navigable stream by the erection of a whcwf for the purposes of commerce, has been in the courts.
Cases for obstruction to navigation by the erection of bridges, dams and floats, are found in the books, but bridges and dams are not in general supposed to be erected in aid of commerce by water. A clear distinction is thus perceptible between obstructions by bridges or .dams, and obstructions by docks or wharfs. I take it that where there is no dispute about title, and an obstruction is claimed to exist, and the erection is intended to be in aid of -commerce, then the question which determines its legality is, whether the benefit arising from such aid is not greater than the injury resulting therefrom to navigation.
A structure which promotes the convenience of the public cannot be a nuisance to it.
In this ease there is no finding of a material obstruction.
It is not, therefore, every encroachment upon the navigable waters of a stream, that is, per se, illegal, or a nuisance. The exception is in cases of purpresture.
It is possible that the public benefit to commerce arising from the erection of a wharf, will more than countervail for the public injury to navigation resulting from a narrowing of the stream. Commerce is the superior, and comprehends or includes navigation, which is subordinate to commerce. Navigation does not control commerce.
The report of the referee in this case, is based upon the idea, as [169]*169appears from his opinion, that the whole width or waters of the creek, in respect to the right to use them for navigation, belongs to the people of the United States for the purposes of navigation; that neither docks nor wharves can be constructed upon the margins by an individual riparian owner, even for the purposes of commerce, which in any way restricts or narrows the stream or interferes with free navigation.
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P. Potter, J.:
The Rondout creek is a navigable stream for vessels of light draft from the channel of the Hudson river, for the distance of about two miles up said creek westerly to a place called Eddyville, to which place the tide ebbs and flows.
The plaintiffs are a corporation, chartered under an act of the legislature of this State, and are the proprietors of a canal extending from Honesdale in the State of Pennsylvania, to Eddyville aforesaid, in the county of Ulster, upon which they transport coal and other freight.
The defendant is riparian owner of land upon the northerly or westerly side of said creek, holding title thereto from patents granted by this State, which patents, as shown by the maps attached as part of the case, convey lands which extend from the land on the shore, at high-water mark, to the channel of said creek.
The proposed structure of dock or wharf by defendant, is within the lines of boundary contained in the said patents from the State to the defendant and his grant.
The defendant is the owner of valuable cement lands and a lime quarry bordering upon this creek, and his purpose of erecting this dock or wharf in front of his said property, and for which he had commenced driving piles, is for the commercial purpose of using it to load and unload boats in his business as a manufacturer and shipper of cement and lime.
The above are now the'undisputed facts upon which this case depends. It is true, one of the maps in the case presents the defendant’s proposed line of wharf to be outside of his grant, but the finding of the referee, sustained by the evidence, shows it to be within; which finding we must regard as true.
1st. The plaintiff bases its claim for relief, first, upon the fourth finding of fact by the referee: “ That said piles as now driven, and said dock or wharf when completed, and as it is to be used for said purposes are, and will be, an obstruction to the navigation of said creek; ” and also upon the sixth finding, “ that by reason of said obstruction, the plaintiff!, as carriers and transporters, and because of the character and extent of their business in the navigation of said creek, suffer a special and peculiar injury.” The theory upon which the plaintiff’s case stands is, that this fourth finding is a [167]*167material finding of fact, and not at all a question of law, nor a mixed question of fact and law; and that the sixth finding that the manner and extent of the plaintiff’s business in navigating said creek, presents a case which authorizes him as an individual to bring this action. The decision of this case must depend upon the soundness of these positions.
The defendant’s exceptions to the finding of fact and law, and the undisputed facts in the case, are sufficient to present the whole case for our consideration.
Assuming the findings to be sustained by evidence, the case is not then free from complication and difficulty; and if the facts as found were all the facts in the case, and were all sustained by evidence, I am inclined to think they do not sustain a judgment of perpetual injunction. They come short of finding enough to sustain it. This is the first point I propose to discuss.
But the proper decision of the case also involves the necessity of examining the undisputed testimony to see if those findings are even legitimate deductions therefrom. Important evidence which is controlling of issues in the case, and necessary to be considered, is not passed upon by the issues found, and though we cannot, as the case is made, treat this as error, we may examine such evidence with reference to the issues that are found (except such as is in conflict), and give to all legitimate force.
These undisputed facts, not found but appearing from maps in the case, are, that the whole width of the Rondout creek, at the narrowest point, at the lower end of the defendant’s proposed dock or wharf, from shore to shore, is 690 feet, and at the upper end it is 900 feet wide.
The actual channel, as it is called by navigators, at the narrowest point opposite this wharf, is about 150 feet.
That the proposed dock, if allowable, was of a suitable size for practical business purposes, and could not be made any smaller for such purposes, and for practical use as a dock. The obstruction — ■the only obstruction—to the navigation of said creek to the plaintiff’s injury, as proved, and upon which the referee based his finding, is, to the movement of a cluster or a flotilla of boats moved or propelled upon said creek by what is called tugs or small steamers, towing canal boats and other small boats, so arranged as to move [168]*168three, four or five boats abreast in tiers; the number always depending upon the demand of patronage and state of the water, thus towing from three and four to twenty boats by one tug, sometimes occupying nearly the whole width of the stream.
These facts, it seems, it is necessary for a full understanding of the case, should be stated; for this, it appears, is the first case to be found in this country where the question of the obstruction of a navigable stream by the erection of a whcwf for the purposes of commerce, has been in the courts.
Cases for obstruction to navigation by the erection of bridges, dams and floats, are found in the books, but bridges and dams are not in general supposed to be erected in aid of commerce by water. A clear distinction is thus perceptible between obstructions by bridges or .dams, and obstructions by docks or wharfs. I take it that where there is no dispute about title, and an obstruction is claimed to exist, and the erection is intended to be in aid of -commerce, then the question which determines its legality is, whether the benefit arising from such aid is not greater than the injury resulting therefrom to navigation.
A structure which promotes the convenience of the public cannot be a nuisance to it.
In this ease there is no finding of a material obstruction.
It is not, therefore, every encroachment upon the navigable waters of a stream, that is, per se, illegal, or a nuisance. The exception is in cases of purpresture.
It is possible that the public benefit to commerce arising from the erection of a wharf, will more than countervail for the public injury to navigation resulting from a narrowing of the stream. Commerce is the superior, and comprehends or includes navigation, which is subordinate to commerce. Navigation does not control commerce.
The report of the referee in this case, is based upon the idea, as [169]*169appears from his opinion, that the whole width or waters of the creek, in respect to the right to use them for navigation, belongs to the people of the United States for the purposes of navigation; that neither docks nor wharves can be constructed upon the margins by an individual riparian owner, even for the purposes of commerce, which in any way restricts or narrows the stream or interferes with free navigation. This, upon the broad ground claimed, I regard as serious error. It must be a material obstruction ; it must be a nuisance to justify an injunction.
Commerce, as we have already said, is not subordinate to navigation, but includes it, and what is for the benefit of commerce, is not made to yield to and give place to what is claimed for free navigation. They are not convertible terms. At all events, the rights of commerce when they conflict with the rights oí free navigation, have at least an equality of right to protection. Navigation, it is true, is one form of commerce, but it is not the whole of it; and is not to be protected at the expense of all others. Navigation would be but a helpless auxiliary to commerce, and an empty name without the aid of docks and wharves, where ships and other vessels can load and unload their cargoes. Where would vessels receive and unload their cargoes without wharves ?
According to the doctrines claimed by the plaintiff and substantially sustained by the referee, each individual possesses the absolute right to enjoy “free navigation” upon all navigable waters: That is to say, to sail over every part of a river or creek not previously occupied, up to the shore or utmost verge of the stream; and that any encroachment upon the stream is such an obstruction as amounts to a nuisance, and can be enjoined, because it obstructs “ free navigation.” This is not true as an absolute rule. This assumption is practically an impossible proposition. This question requires to be examined as well upon reason as upon elementary and judicial authority. If this is the law, then every structure or wharf in navigable water is an obstruction and a nuisance. Immemorial custom, the law of necessity, the demands of commerce, and all reason forbid that this should be the law. It is not true as to ports and harbors; it is not true as to large navigable rivers.
Wharves exist on all navigable waters known in the commercial [170]*170world, as will be seen hereafter. If not true as to large rivers, by what rule or standard is the stream to be measured which does exclude wharves for the benefit of commerce ? There is no such rule to be found applicable to American waters, in rivers, or navigable streams, large or small.
This was not even the rule by the old English common law, which went much further in this respect than our American law, as to navigable waters. Lord Hale, in his De Portibus Maris, “Pais Secunda,” chapter 7, page 85, says: “It is not every building below the high-water mark, nor every building below the low-water mark, that is ipso facto in law a nuisance. For that would destroy all the quays that are in all the ports of England. For they are all built below the high-water mark; for otherwise, vessels could not come at them to unload,” etc.
There is no more material aid to commerce, or even to navigation, than docks'and wharves and piers. Indeed, they are so indispensable to commeree by water, and to navigation, that, practically, neither could be conducted without them. They are a necessary part of their appendages; they exist everywhere, in rivers, in ports, in harbors, wherever vessels are laden or unladen.
. They are a part of the known fixtures and facilities, known to the common law, in aid of commerce and of navigation. We may take judicial notice of their existence in all the navigable waters of this and of other States. If the displacement of water at low-water mark upon the margin of navigable rivers and other waters, is an obstruction to free navigation that amounts to a nuisance to be abated or enjoined, then every dock or wharf or pier upon the Hudson and East and Harlem rivers, and in the bay or port of New York, Brooklyn, Albany, Troy and Hudson, are also obstructions, and could have been abated as public nuisances equally with this. They all encroach upon navigable waters.
The doctrine of “ free navigation,” claimed by the plaintiff, goes to the extent that every encroachment that interferes with any portion of a navigable stream, is an obstruction and a nuisance that can be abated, in that the right of navigation exists upon and over every part of the stream between the banks, by the public law of the right of navigation. Nothing short of this rule can sustain the judgment.
[171]*171There is no case to be found, in the books of American law, where this doctrine to that extent is laid down as law, in the sense claimed. This doctrine carried ont would exclude all. the commerce by water of the cities and towns on the Hudson river, because they would have no right to displace one foot of the water for the erection of commercial wharves; it would obstruct free navigation, which, according to this claim, demands the whole width of the stream from shore to shore.
It may well be conceded in general terms that every obstruction to navigable waters that amounts to a nuisance, which means a material obstruction, may be abated. But it is not every obstruction that amounts to a nuisance, and even the English doctrine does not go beyond this. This is the distinction that is controlling of this case. If the proposed wharf would have been such a construction that its encroachment amounted to a nuisance, then it could be abated. Then it was proper to have granted the injunction ; then the judgment is right. If it is not such an obstruction as to create a nuisance, then the judgment is erroneous. This is the material point in the case.
1. The obstruction is not found to be a nuisance by the referee.
2. A mere oT)st/ruction to navigation is not per se a public nuisance.
3. The court cannot pronounce a simple obstruction to be a nuisance. It is a fact to be found.
4. The finding of an obstruction merely, does not authorize a judgment of perpetual injunction.
It may well be conceded, for such is the law, that even the erection of a wharf may so far encroach upon the navigable channel of a stream, as to become a material obstruction, and, therefore, a nuisance, and may in such case be abated ; but the finding of an obstruction only, without finding it to be a material obstruction, or what is equivalent, without finding it to be a nuisance, does not authorize a judgment to abate it, or an injunction to restrain its erection, as the anthorities abundantly show. Obstructions of various kinds are authorized by the law of commerce, and commerce, at least, has an equality of right with the right of navigation. No obstruction erected for the benefit of commerce, can be a nuisance though it be an obstruction, unless it be also found [172]*172materially to impair the right of navigation. It is not enough that it impairs navigation, (doing to the radical English authority, the case of The King v. Russell,
I have made this extended extract from an English authority,' to show that even in England there is no such thing as absolute “ free navigation,” in the full sense claimed by the learned referee in this case; and as is claimed by counsel on the argument before us. What is claimed in this case as the right of “ free navigation,”- is an absolute - monopoly to na/oigation over every other interest of commerce, and to the exclusion of all rights of the riparian owners of land, and of all other persons residing upon the margin or borders of navigable streams. The claim is, that navigators, starting at the terminus of a navigable stream, possess the exclusive right not only of navigation but of commerce, to the whole width of the stream, and it excludes the exercise of the same rights to the dwellers upon the border of the stream! The latter, though desiring to enter into commercial dealings and to enjoy the common rights of navigation to that end, are excluded from the enjoyment [173]*173by this law of “ free navigation,” so called, except at the expense or burden of carting their products to the terminus of the stream. Under this claim every dock, every wharf, every erection for the loading or unloading of vessels, if they encroach upon one foot of water upon the margin of the stream, even at high-water mark, are obstructions to free navigation, and can be abated. Free navigation, I take it, is an abuse of terms, if all who desire its use in commerce, are not allowed equal rights in navigation. It is not free navigation that excludes every facility to transport one article of commerce, that another may enjoy the whole surface of the water for another article. Neither in law is one commodity of commerce subservient to the other. I am glad that I can find no American adjudication to sustain this unreasonable position, and even the more sensible English authority is against it to this extent. In King v. Russell,
The individual owner of a wharf, erected to aid commerce, is no more engaged in private interests than the owner of the vessel which transports private property. The public are equally interested in the commerce to be conducted by the one as by the other.
It is equally beneficial to the public, perhaps, that the commodities of cement and lime should be brought to market as it is for coals. They both equally belong to commerce; it is as useful to the public that a dock should be erected from which to load vessels with cement, as it is that a dock should be erected to unload coal. Docks and vessels are alike required by commerce for each commodity.
Each is equally in aid of commerce; neither is the superior of it.
Is the transporter of coals or the commerce of coals less private, less selfish, than is the transporter of cement ? Are not the facilities of docks and wharves for loading and unloading of vessels for the public benefit ? Do not all impediments thrown in the way of the commerce in cement increase its price ? Who but the public are benefitted in the reduction of the price of cement? Does not the facility of loading it into boats or vessels cheapen that commodity ? In the case of Pennsylvania v. Wheeling Bridge Company,
It may be stated, however, that the case of Rex v. Russell, from which we have quoted, is not without some conflict of opinion in the English courts, in criminal cases. It has been questioned in later criminal cases, but not overruled, nor is it affected, as I think, so far as it applies to the question in the case at the bar. Two cases are referred to as holding a different doctrine, viz., Rex v. Ward
The case of Rex v. Ward (pp. 386-387), though it questions King v. Bussell, I think decidedly sustains the position we have assumed above, that the finding of an obstruction only is not a sufficient ground for abating it, and is not a nuisance. Lord Denman, Ch. J., who tried the action, says: “ In summing up the evidence, after a long trial, I asked the jury to state their opinion whether the causeway the [obstruction complained of], in its altered state, was a nuisance to the navigation of the river, and whether the public benefit was greater than the inconvenience. The jury, after deliberation, stated that an impediment hadbeen created; but I declined to receive that expression as not necessarily equivalent to the word nuisance, which might be too trifling in degree to be properly so called. They said at length that they considered it to be a nuisance, but they added that the inconvenience was counter-balanced by the public benefit arising from the alteration made by the defendant.” This, it must be remembered, was the trial of an indictment for a nmscmce, which, in contemplation of law, is criminal. In such case, therefore, the finding of the jury, in addition to a verdict of guilty of a nuisance, could have no effect; it is like a recommendation to mercy from the jury; which is no part of the legal verdict, and the Lord Chief Justice properly said, “it is against first principles to say there can be a compensation by way of set-off for a crime,” and of course a new trial was refused. There is nothing, it is seen, in what was then decided in conflict with King v. Russell.
The case of King v. Tindall was also an indictment for a nui[176]*176sanee, by erecting and continuing piles in a harbor, and thereby obstructing it and rendering it insecure. The case was tried before Lord Denman, Oh. J., in 1837. The verdict of the jury was special, “ that by the defendant’s works, the harbor, in some extreme cases, was rendered less secure.” This verdict was in effect that the defendant’s works were in a degree injurious to navigation, rendering it, in extreme cases, less secure; but the question was, whether such a finding was equivalent to finding it a nuisance, Lord Denman held it was not ¡ and he directed a verdict of not guilty. Like the case at bar, the obstruction was some injury to navigation, but it is not every impediment to navigation that is a nuisance.
In the last cited case, all the former adjudications in the English courts, including King v. Russell, as well as English elementary law, were referred to as authority. But it must be observed that the law of waters, of navigation and of commerce in England, is not regulated there entirely by the common law. There is not an entire uniformity of law in that country in its application to all their navigable waters. Various statutes have been passed there regulating navigation and commerce upon different rivers and navigable waters, which are not alike applicable to each and to all; and what appears to be conflict of authority there, is attributable in degree to this want of one single system governed by uniform law. Nor are we in this country entirely governed in this respect by what is called the common law of England. Their common law is the outgrowth of peculiar circumstances, of necessities which relate to their condition, and which is not applicable here. We brought with us only so much of that common law as is applicable to our own situation and condition here, and their common law has hitherto been received by us with such modifications as will adapt it to the peculiar character of our streams, and to the commerce to which they may be used.
We will proceed, then, to examine some of the American authority, to see how far it agrees with the positions expressed above, as it regards the true question to be decided here upon this point. The leading case relied upon by the plaintiff, is The State of Pennsylvania v. The Wheeling Bridge Company
The difference in the eases is that, in that, the bridge was claimed to be a certain and an absolute obstruction, which impaired the rights of free navigation and commerce. The case at bar is for a partial, occasional and incidental obstruction, by a structure intended to facilitate commerce. In the Wheeling Bridge case, I find the following remarks from Justice McLean : “ The multiplication of commercial facilities, will, in the same proportion, increase the articles of trade.” * * “If the obstruction be slight, as a draw in a bridge, which would be safe and convenient for the passage of vessels, it would not be regarded as a nuisa/nce, where proper attention is given to raise the draw on the approach of vessels.”
Ch. J. Taney, in the same case, said: “ I am by no means prepared to say that this bridge would be a public nuisa/nce, even at common, law.” * "x" “A structure which promotes the convenience of the public, cannot be a nuisance to it.”
This argument proceeds upon the ground that even a bridge may promote commerce, though in degree it obstructs navigation.
The implication from this is, that commerce is the superior of navigation, and Justice Daniel, in the same case, referring to various adjudications of the court upon the subject of bridges being obstructions to commerce, says: “It follows, then, from these adjudications, not less than from the principles of common sense, that the conclusion, nuisance or no miisance, is dependent solely upon the character of the act complained of as being noxious or beneficial to the public.” And he adds that, when the charge is denied, it must be determined from circumstances, and is a question of fact for a jury. This remark proceeds upon the adjudged view also, that all obstructions to navigations are not nuisances. Justice Story says :
[178]*178If every obstruction was a nuisance, there would be no fact necessary to be found; an obstruction would then per se, as a matter'of law, be a nuisance.
The courts of our own State have also adopted the doctrine, that something beyond simple obstruction in navigation is necessary to make the act unlawful; in other words, it must be a nuisance to produce that effect. This was held in the People v. Sar. and Rens. Railroad Co.
We have already distinguished between the obstruction by a wharf, built in aid of commerce, and an obstruction that was not; and have asserted that navigation was the subordinate of commerce, and not its superior. If such a distinction exists in law, it is in favor of this case. In Gibbons v. Ogden, § Ch. J. Marshall says:
[179]*179“All America understands, and has uniformly understood, the word ‘ commerce ’ to comprehend navigation. It was so understood when the Constitution was framed.” In another part of the same opinion he specifies what other subjects beside navigation are included in the comprehensive term “ commerce.” In the same case, Judge Johnson says: “Commerce, in its simplest signification, means an exchange of goods. But in the advancement of society, labor, transportation, intelligence, care, and various mediums of exchange, become commodities, and enter into commerce; the subject, the vehicle, the agent, and their various operations, become the objects of commercial regulation.”
I have dwelt thus at length upon this point to demonstrate that a commercial wharf, which does not so obstruct navigation as thereby to become a public nuisance, is the equal, indeed the superior, of navigation, which is only another of the aids of commerce ; and also to prove that no finding of the fact of an obstruction, which fails to determine that such an obstruction is a material one or a nuisance, can sustain the judgment in this case. I have not, however, attempted to prove that a wharf may not be so constructed as to become illegal. I concede it may be so constructed as to become a nuisance, but it must be so found by the jury or referee. So too, doubtless, navigation may be so conducted — it may be so monopolizing and exclusive — as not only to become itself a nuisance to other aids to commerce, but even to become the destruction of other commercial aids, and of a commercial wharf legally constructed. A single individual or body of individuals, corporate or otherwise, may so exclusively possess and obstruct a narrow stream by a flotilla of boats, as to create a nuisance by a monopoly, or by excluding all other commerce; but this, of course, only in case of an unreasonable obstruction. In the case of Mississippi and M. R. R. Co. v. Ward,
The case of Grant v. Davenport,
I find an abstract note of a case in 12 American Law Register, 195, where a purchaser of lands, under the laws of the United States, bordering on a navigable stream, stopped at the edge of the stream and did not extend to the center. Yet it was held that he had the same right to construct suitable landings and wharves as riparian proprietors on navigable rivers affected by the tide.
There is, as we have said, no finding of law or fact in the case at bar to meet this requirement. I have thus far discussed this case upon the point that the finding of fact by the referee, that the wharf was an obstruction, is not sufficient in law to sustain his conclusion of law, nor to sustain the judgment.
I now propose to examine the acknowledged positions of the defendant as a riparian owner, claiming title to the land to low-water mark, upon which he proposed to erect his wharf, and that his proposed wharf was for purposes of extensive commercial operations. These are two circumstances that distinguish this case from a class of cases in our own courts, which are claimed to be in conflict with the views we have above expressed.
This distinction it may be necessary to show. It may be conceded that an individual, for his own private purposes, without title to the soil, would be guilty of an obstruction which would be a public nuisance, who should erect a wharf or make any other encroachment upon a navigable stream, port or harbor. It is a class of cases of this kind that are set up as being in conflict with the views expressed in this opinion, but which clearly are not so. Among these is the case of Hart v. Mayor, etc., of Albany
That was a case of clear, tmauthorizecl and illegal encroachment for private purposes.
It is what, in law, is properly called a purpresture, which is a “ clandestine encroachment and appropriation of the land of another, [181]*181or upon land or waters that should be common, or public.”
It was an encroachment upon lands the city did not own, had no power to convey, and to which the legislature could confer no title. There is no conflict of that case or that class of cases with the views expressed as the law in the case at bar. The same doctrine of illegal encroachment was held as an unauthorized obstruction of streets, in Davis v. The Mayor of N. Y.
This was said in a case where the wharf was erected for private purposes, and the proprietor sued a navigator for injury done to his wharf or pier by the mooring of a vessel to it in a storm.
The judge who tried the case charged the jury that, though the pier was private property, it was still for the accommodation of commerce. The court in bank held this charge sound. They said “ piers or landing places and even wharves may be private, or they may be in- their nature public, although the property may be in an individual owner.” * * “ Undoubtedly a riparian proprietor may construct one of these improvements for his own exclusive use and benefit, if confined within the shore of the sea or unnavigable waters,” etc., and then again (say the courts), “ the obstruction to navigation must be plainly a nuisance before it can be removed by decreeP But the obstruction, as claimed in the case at bar and as found by the referee, was for a public purpose—for the purpose of commerce. In such case the acknowledged law of this country is the same as is laid down in the English case of King v. Russell,
This presents really the whole question in controversy in law. This last proposition I cannot concede to be the law. The claim, in short, as it is insisted upon, is summed up in the words, “ an unqualified right to free navigation in every part and portion of the stream.” We have no such law of “ free navigation.” The contrary has been expressly adjudged. The same thing was claimed in the case of Mississippi and M. R. R. Co. v. Ward,
2. “ Navigation within any State, is the subject of State legislation.”
It js pressed with great earnestness, because the right of navigation is a natural one, that it may be enjoyed as a right existing under the superior authority of the government of the United States, that it is specially subject to its fostering care and protection as against all other rights. It is true that navigable streams are natural means of commercial intercourse, but natural reason and common experience teach us that commerce cannot rely upon nature alone to this end. How is commerce to be practically conducted upon natural streams without the appliances of art and science and civilization ? How progressed without the construction of ships, and steamboats, and sloops, and canvas, and wharves, and piers, and docks %
It is made a question whether the patents from the State of New York, to the defendant and his grantor, conveyed any title to the lands between high and low-water mark upon the margin of this creek. It is not necessary in this case to inquire as to the title beyond the line of low-water mark, and the discussion of that point would be obiter.
First, I regard it as clear from elementary authority, as well as upon adjudged cases, that all sovereignties, within which are navigable rivers, have aright to exercise jurisdiction over their waters.
The question upon this point is not what is the potential jurisdiction of congress over the subject of controversy; not how far congress may interfere with the question at issue between the parties, but how far has it exercised the power. All this, also, has been well adjudicated, even in the case of obstructions by bridges, in the case of Pennsylvania v. The Wheeling Bridge Co.
After reviewing a varie.ty of cases in that court, and among them that of Wilson v. Black Bird Creek Marsh Co.,
Limited or partial obstructions, which but partly impair navigation, do not authorize an injunction, and will not sustain a judgment to abate it, so held in Palmer v. Commissioners of Cuyahoga.
The power as to State action over navigable waters, and of commerce thereon, was again the subject of the fullest consideration by the Court of the United States, in the case of the City of New York v. Miln.
In more than one point it is certain that it differs from the case at bar, that of being a bridge, and that of it being found to be a material obstruction. Another suggestion on the question of conflict : the injury complained of in the case in 6 McLean, was two years prior to the decision in the United States Court in the Wheeling Bridge case, from which we have made the above extracts. But if the case upon this point can be settled by judicial authority, the ease of Gilman v. Philadelphia, which was decided in 1865, reported in 3 Wallace Reports, 713, etc., must put even the case in 6 McLean
Judge Swayne says in this casé: “The States have always exercised this power, and from the nature and objects of the two systems of government, they must always continue to exercise it; subject, however, in all cases, to the permanent authority of congress, whenever the power of the States shall be exerted within the sphere of the commercial power wdiich belongs to the nation.” The case of Wilson v. Black Bird Creek Marsh Co. was again approved as sound in City of New York v. Miln.
[192]*192The freedom of navigation granted by these coasting licenses is like every other freedom in a free country — a freedom to be ascertained and regulated by law. When congress shall speak, they will have the right to obey her voice. When congress omits or refuses to speak, then it is duty to obey the voice of the jurisdiction in which the navigation is carried on. In this case congress has failed to speak. I do not propose to consider this point further upon authority. We think that we have already demonstrated that the soil under navigable rivers, within the territory of the State, especially to the extent of low-water mark, is in the State. A discussion of the law beyond this point would be obiter. This case shows that the plaintiff applied to the proper authorities of the State for a conveyance of title to that extent, for the purpose of erecting a wharf, required or designed as a facility to transact an extensive commercial business in certain commodities. The State granted the right and the soil to that end. For that purpose he commenced the construction of such a wharf. This is found by the referee to be an obstruction to the free navigation of the stream by the plaintiff.
It is not found to be a material obstruction, nor an obstruction amounting to a nuisance; yet, notwithstanding, judgment of perpetual injunction against the construction of such .a wharf for such a purpose, by virtue of such authority, is given in the case. This, in my opinion, upon the authorities cited, is clearly erroneous. I think it is my duty to hold in this case that, in the absence of any legislative action by congress affecting this creek or the soil under it, that the defendant’s patents from the State of New York, gave him title to the soil upon which he. was constructing this wharf, as against all other claimants thereto; that such construction being within low-water mark, as the referee finds, and for commercial purposes, the structure could not, in law, be a nuisance or an illegal obstruction that justified a judgment that it be abated; that as, upon the law of the cases above cited, the advantages to commerce by the construction of a wharf, are first to be encouraged ; and if it in any degree interferes with passage or navigation of the stream by one individual, or for transportation of one article of commerce, the slight inconvenience to the transportation of such traffic is no sufficient reason for asking equitable relief by one hav[193]*193ing only the same common right of passage on the waters, against another possessing the same common right.
I am inclined to hold also that the sixth finding of the referee, called a finding of fact, but which contains a reason or argument that makes it also a finding of law, cannot be sustained by the evidence, and is not sound, even if it would justify, if true, the right to bring the action.
The ground of this finding is “ the character am,d extent of their business.” I cannot admit, and am not prepared to hold, that the extent to which a party is conducting business, gives him superior rights — rights which another, with the same common claim of navigation, with right to use it to the same extent, may not exercise or enjoy also, even though he may desire to exercise it to a less extent. The creek in question is a common highway, equally free to all citizens who desire to use it, and it is under control of State authority as we have shown, and is subject to State regulation, at least so far as the soil thereunder is the soil of the State.
The granting of the right to the soil to low-water mark, to build a wharf thereon, is a franchise. It was said by Chancellor Walworth, in Beekman v. S. & S. R. R. Co.,
The learned judge then proceeds to show the true legal difference between an authorized obstruction and a purpresture or an unauthorized obstruction. He says: “ If it was authorized, the inconvenience must be submitted to; but if placed there without right, the authors of the act could not defend themselves from the charge of nuisance.” Again, * * * “ The law regards an unauthorized obstruction of a highway as a nuisance per se; ” and among the authorities cited to this end are the English case of King v. Russell and Hart v. Mayor of Albany, and others relating to purpresture.
5. The grounds taken by the referee, that “ the extent and character of business” authorizes the plaintiff to sue in his name, is. directly in the face of the authority of the case of Davis v. The Mayor, etc.
This authority has been adopted, where the injury is consequential, since, and is sustained by various cases before its publication.
The case of Doolittle v. Supervisors of Broome Co.
[195]*195is, that for wrongs against the public, whether actually committed or only apprehended, the remedy, whether civil or criminal, is by a prosecution instituted by the State, in its political character, or by some officer authorized by law to act in its behalf. * * * Where a crime committed against the public also includes a private injury, the latter may, it is true, be prosecuted at the suit of the party injured. But where there is no direct individual injury no action can be maintained by a citizen on the ground that his interests as a member of the State have been interfered with or disturbed.” At page 160, the rule is illustrated by various cases:
The nuisance in that case was a powder mill; the injunction was refused until the action should be tried at law. This case was adopted as establishing the proper rule in the United States Court, in The City of Georgetown v. Alexandria Canal Co.
The same rule was held in Massachusetts in Smith v. City of Boston.§ The court says: “The creation of a public nuisance can only be punished and suppressed by a public prosecution; and though a man who lives near it and has occasion to pass it daily, suffers a damage altogether greater than one who lives at a distance, he can have no private action, because in its nature it is common and publicS In Doolittle v. Supervisors of Broome, || the court reviews all the cases which are at all in conflict with the views therein expressed, and upon the authority of that, and the cases cited herein-above, I think the referee was in error in holding that the plaintiff sustained a special and peculiar injury because of the character and extent of their business. Every other navigator of the Bondout [197]*197creek had an equal right to extend his business in the same or in any other traffic. What rule is to determine the line which measures the case where the extent of business is sufficient to authorize a private action? Suppose each navigator conducted business to the same extent, could each then bring his private action against the defendant ? Does the law recognize a rule that large dealers or navigators can bring actions that smaller ones cannot ? Is this free navigation equally free to all ? Is it, then, the character of the plaintiff’s business, as found by the referee, that confers this right ? What is that character of business? It is the transportation of coal. What then gives the transporter of coal a special claim to damage, to which the transporter of any other kind of freight or commodity is not entitled ? How is the transporter of coal affected by special, peculia/r or i/rrepardble injury, that is not common to every other citizen and every other transporter of every other commodity. Every other citizen has an equal right to transport coal to the same extent. Certainly, the learned referee did not intend to hold that because the plaintiff is now exercising the whole trade in coal, this gave a private right of action. If that trade should be quadrupled and the flotilla of boats engaged be doubled, the whole surface of the creek would be not only insufficient for such navigation, but would amount to such a monopoly of possession as to drive off every other attempt of every other transporter from the common right and equal enjoyment of the navigation of the stream, and create a nuisance by monopoly. In fact, the whole stream itself would be insufficient for the plaintiff’s purposes of transportation alone. These little streams, it will be found, cannot supply the great, the increasing, demands of commerce of the future. Nature has made no provision for their expansion to meet those wants now. What then shall be done when it is doubly increased ? As the demands of commerce require increased means and facilities to this end, the enterprising spirit of the age has been and is providing artificial resorts, by canals and railroads to meet that demand. It is little short of an absurdity to suppose that the little Rondout creek will be found equal to these growing public wants of commerce in that direction. But to the extent of its capacity, it is, it must, it will remain a free, common, public highway, equally free and equally common to every commodity [198]*198that its narrow surface can accommodate. Nor is it reasonable that because of its limited capacity, any one commercial commodity — whether it be grain, or cement, or lime, or coal — shall be crowded out to give exclusive privileges or place to another; nor is it any reason, in my opinion, that because of its limited capacity, docks and wharves and piers, for commercial advantages, should be excluded, enjoined or forbidden, to aid in whatever of the rights of commerce it may accommodate. If the Rondout creek, with its present limited capacity, is found insufficient to meet all the growing wants of internal commerce passing in that direction, instead of a rivalry between parties entitled to common rights thereon, and litigation in the courts to determine preference of rights, it will be wiser, more in accordance with the spirit of the age, to the growing demands of commerce and to the public necessities, to add to the facilities of transportation by the artificial aids of canals and railroads. What nature has failed to supply in this regard by great rivers, art and enterprise, and in fact self-interest, will imperatively demand to have done by artificial aids. The same commendable spirit of enterprise that projected a canal from Honesdale to Eddy-ville, if carried on by the same spirit two miles farther by canal or railroad, would make the interposition of the courts to regulate rights unnecessary. The day has passed away when the whole commerce of this country can be conducted by the natural water channels. Many of these, especially those as limited in.capacity as the little Rondout creek, are found insufficient to supply all its growing demands. The day has more than dawned when commerce is to convert and call into exercise the facilities of transit afforded by land as well as water channel. The same beneficent providence which established the seas and deepened the channels of great rivers, has endowed man with wonderful powers of invention, and with a spirit of enterprise which has allowed him to overcome the obstacles of nature, and to force artificial channels of commerce through mountains and across rivers. Individual, or corporate, or State enterprise only, can supply the necessary facilities of commerce, which the capacity of this little creek cannot supply. The courts cannot enlarge the capacity of the Rondout by decree.
They cannot exclude one commodity to favor another ; they can[199]*199not enjoin small commercial enterprises to give place to larger ones. Nor can they exclude any citizen from exercising the common rights of navigation thereon. The courts, when their interposition is sought to determine these conflicting rights, must, in the just and faithful exercise of judicial duty, declare that every branch and commodity of commerce, whether extended or limited in degree, and every aid and facility intended for its advancement, are entitled to equal protection and an equal status in the rights of enjoyment of free navigation, and in furnishing the facilities and aids thereto. Placing the rights of the parties in the case before us upon this broad platform of equality of rights before the law, the judgment in this case should be reversed with costs, the injunction dissolved and a new trial granted, the costs thereof to abide the result. Reference discharged.
Miller, P. J., and Parker, J., concurred.
Judgment reversed, with costs; injunction dissolved, and a new trial granted; the costs thereof to abide the result. Reference discharged.
Wheeling Bridge Case, 13 How. (U. S.) R., 592, 605.
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