Whitmore v. Gilley

65 A. 516, 102 Me. 47, 1906 Me. LEXIS 83

• Court: Supreme Judicial Court of Maine
• Decided: October 25, 1906
• Status: Published

Opinion

Emery, J.

Erom the bill; answer and evidence we find the following facts: On the south side of Mt. Desert Island is a small cove of tide water called “ Gil patrick’s Cove.” The defendants have a warranty deed of a lot of upland on this cove at its head or extreme northern end, and also of so much of the shore or flats of the cove as is included within the extension of the side lines of their upland across the shore or flats so as to include the structures hereinafter described. The plaintiff owns a lot of upland bordering on the cove next south-west of the defendants’ upland, but, so far as appears in this case, she does not own any part of the shore or flats of the cove. (100 Maine,‘410.) The defendants, being in possession under a warranty deed, must therefore be held to have a prima facie title to the flats named in their deed, at least as against the plaintiff. The defendants’ grantor some twelve years ago erected on the land included in his deed to them a wharf extending from the upland out upon t'heir flats in front, and also erected upon this wharf a building for trading purposes. This wharf and building have be.en maintained ever since, and are now maintained by these defendants and are wholly upon their land. They are'now proposing to widen the wharf by an addition to its eastern side within the side lines of their flats and not extending any further out from the upland. The present wharf was erected and has ever since been maintained without the license required therefor by the statute, 11. S., ch. 4, secs. 96 to 99 inclusive, and no such license has been obtained for the proposed extension. The statute prohibits the erection and maintenance of an unlicensed wharf. The plaintiff by her bill asks the court to enjoin the proposed extension of the wharf and also the further maintenance of the present structures on the flats upon the ground that being forbidden by the statute they are a nuisance in law, and injure the plaintiff “ in her comfort, property and the enjoyment of her estate,’’ (It. S., ch. 22, sec. 18) her land being used and valuable as a summer residence.

Tf the existing structures alone were the subject matter of this suit, the bill would need be dismissed under the settled doctrine of this court that it will not, except in extreme cases, exercise its equity powers to compel the removal of existing structures upon the land of the defendant though they may be a nuisance in law, but will leave the plaintiff to his remedy at law which in this state is “ plain, adequate and complete.” See the statute on nuisances, R. S., c. 22; Davis v. Weymouth, 80 Maine, 310; Tracy v. LeBlanc, 89 Maine, 304; Sterling v. Littlefield, 97 Maine, 479. In Prop. Maine Wharf v. Custom House Wharf, 85 Maine, 175, the structure was not on the defendant’s land and the rights had been settled at law. No such hurt or danger of hurt is shown by the evidence in this case as would take it out of that rule.

The bill would also need be dismissed under the general principle of equity jurisprudence that an equity court will not intervene where the plaintiff has long tolerated the alleged nuisance, but will leave him to establish his claim at law. These present structures had been tolerated for ten years, during all which time they were as much nuisance as now, having the same effect on persons and property at Gil patriek’s Cove. The danger of future hurt from them is no more imminent now than at first. After ten years the claim of the plaintiff for their removal is much too stale for the court to enforce by decrees in equity.

But (he claim of the plaintiff for an injunction against the proposed extension is cognizable in equity and hence requires consideration in this suit; and the already extensive and increasing occupation of lands bordering on the tide waters of the Maine coast for summer residences by citizens of this and other states and countries justifies, we think, a somewhat elaborate exposition of the law governing cases like this. The wharf extension, if erected, will, so far as appears, be wholly on flats owned by the defendants. Under our law, based on the Colonial Ordinance of 1641-1647, their ownership of their flats is as full and complete as their ownership of their upland, except that it is subject to some extent to certain public rights. State v. Wilson, 42 Maine, 9; Moore v. Griffin, 22 Maine, 350; King v. Young, 76 Maine, 76. In this case, however, we have to do only with the public right of navigation since no complaint is made of infringement of any other public right. Prior to the statute cited (R. S., ch. 4, secs. 96 to 99, inclusive,) the owner of flats could erect wharves on them as freely as upon his upland, provided he did not thereby actually interrupt or impede navigation. Com. v. Charlestown, 1 Pick. 180; Com. v. Alger, 7 Cush. 53; Low v. Knowlton, 26 Maine, 128; State v. Wilson, 42 Maine, 9. Whether a wharf did actually obstruct or impede navigation and thereby become a nuisance at common law or under R. S., ch. 22, sec. 5, was a question of fact, and sometimes a difficult one, to be determined in each case upon the evidence in that case. The legislature has now intervened and created a tribunal to determine that question, viz: the municipal officers of the town, and has prohibited the erection of wharves in tide waters without a license from that board (R. S., ch. 4, secs. 96 to 99, inclusive). If that license is duly granted, the wharf cannot under the state law be abated as an obstruction to navigation, even if it be such in fact, though, of course, the license will not. protect the wharf from complaints for infringement of private rights. If the license is not obtained, the wharf erected without it is an unlawful structure even if it does not in fact obstruct navigation. That the legislature has the power to thus require a license for the erection of wharves on flats is not questioned. Com. v. Alger, 7 Cush. 53.

Such being the rights of the defendants and of the state in and over their flats, we proceed to consider what right the plaintiff may have to an injunction against the proposed extension of the defendants’ wharf and also to an abatement of the existing structures, assuming for convenience of statement and argument the present suit to be appropriate for that purpose.

The mere fact that the structures are, or will be, erected and maintained without the required statutory license does not make them outlaws, to be lawfully assailed and destroyed by anyone, or abated at the private suit of any person. Brightman v. Bristol, 65 Maine, 426. Indeed the statute does not declare them to be a nuisance in law. An equity court will not at the suit of a private party restrain the erection of a building, not in fact a nuisance, merely because its erection is forbidden by statute or ordinance. St. John Village Corp. v. McFarlan, 33 Mich. 72; Mayor of Manchester v. Smith, 64 N. H. 380. Again, the mere fact that the existence of these structures upon the defendants’ flats do or will lessen the plaintiff’s enjoyment of her lot, even as a summer residence, and lessen its, commercial value, does not give her a right to an abatement or even to damages. A neighbor’s building on his own land, by its ugliness of architecture or by its mere proximity, may lessen one’s enjoyment of his own residence and lessen its market value; or a competing, neighboring factory may lessen one’s business profits and the value of his own factory, and yet no legal right be infringed. It is not enough, therefore, for the plaintiff to show that the structures on the defendants’ flats are there without the required statutory license and that they lessen the enjoyment and market value of her land. She must go further and show that they infringe some individual right recognized by the law as a legal, private right of hers. That they infringe the legal rights of others gives her no cause of action against them.

The present structures and the proposed extension are forbidden by statute, and to that extent are, and will be, illegal. Do they or will they infringe any individual legal right of the plaintiff? There is no evidence nor complaint that they do or threaten any injury to the plaintiff or her land by vitiating the air or water, by unhealthy or offensive odors, by disturbing noises, or by obstructing the passage of light or air, or by otherwise unfavorably affecting her health or physical comfort. The plaintiff practically advances but three propositions, viz: (1) that the structures are in law and in fact an obstruction to the navigation of the cove and thereby reduce the value of her land in the cove; (2) that the structures are unsightly and also obstruct the view of the scenery from her land, and thus lessen the enjoyment and value of her estate; and (3) that the structures materially impede the passage by water to and from her land, and thus lessen its value.

As to the first proposition, whatever the damage to. the plaintiff or her land, the right infringed, that of the unimpeded navigation of the cove, is a public right common to all the people of the state and not a right peculiar to owners and occupants of land bordering on the cove. It is the settled law of this state that structures which only infringe public rights can be dealt with only by the public, that is, by proceedings in the name of the state or some authorized person in behalf of the public. An individual affected has no separate right of action in his own name. To enforce the public right for his benefit he must set the public agencies in motion. It is only when the structures inflict upon him some special legal injury different in kind as well as degree from that suffered by others that he has an individual right of action against them. Holmes v. Corthell, 80 Maine, 33; Penley v. Auburn, 85 Maine, 281; Taylor v. P .K. & Y. St. Ry. Co., 91 Maine, 193.

The plaintiff contends, however, that boating privileges in and about the cove are attached to her lot, that these are a large and peculiar element in its market valúe and constitute a legal right appurtenant thereto apart from the public which has no right to make use of it to facilitate their use of their public right, and that the structures restrict and abridge these privileges. There may be appurtenant to her lot a right of passage by boats, &c., to and from it, Maine Wharf v. Custom House Wharf, 85 Maine, 175, but that is only the right of access to and departure from her land by water. Any other use of the water for boating or other navigation would be under the public right alone.

But the plaintiff further urges that, conceding the right violated to be a public right only, the violation of . that public right has damaged the value of her land, and that this damage is individual and peculiar, one not suffered by the public at large. The question, however, is not whether the plaintiff’s land has been damaged, but whether any of her legal rights have been infringed. The land owner has no legal right that the market value of his land shall not be disturbed.

Though by reason of her land being on this cove the plaintiff may have more need or occasion than other persons to make use of the public right to the unimpeded navigation of the cove, and her land may be more damaged by the violation of that right, the right itself is still public and not private. Her ownership of land on the cove gives her no greater nor different right to navigate it. Every other citizen has the same right in kind and degree. The plaintiff may have a greater interest than others in the right and a greater need of its enforcement, but that does not change the public right into a private right. Frost v. Wash. Co. R. R. Co., 96 Maine, 76. It may be that an individual actually obstructed by an unauthorized structure while in the actual exercise of the public right may maintain an action for damages resulting, as was held in Brown v. Watson, 47 Maine, 161; but that is a different case from this where the only complaint is of the unfavorable effect upon the enjoyment and value of the land.

The plaintiff further urges the hardship of her being left to the action of public officials to enforce the public right and relieve her from the damage done her by these unlicensed structures. She suggests that the officials, influenced by local, political, or other immaterial considerations, may improperly neglect and even refuse to act upon application and thus leave her helpless. Even if this apprehension be Avell founded, the court cannot afford relief in this suit. Her remedy against recalcitrant public officers is in some other procedure.

To the second proposition there are two answers. The law of this state does not recognize any legal right to an unobstructed view of scenery over and across the lands, even the flats, of others unless acquired by grant; nor does the law recognize as a cause of action the annoyance caused by the proximity or ugliness of otherAvise harmless structures upon the land of another. The pleasure of an unobstructed view and of a prospect free from unsightly objects may be great, but in the present state of the law it is too refined for legal cognizance. Again, the annoyances complained of, and the consequent loss in value of land, were not caused by the fact that the structures are or will be erected and maintained without the required statutory license. The plaintiff must prove that her damage was caused by the particular element in the character or use of the structure which renders it a nuisance. Burbank v. Bethel Steam Mill Co., 75 Maine, 373, at p. 382. The hurt to the plaintiff must come from the structure, qua nuisance, to give her a cause of action for maintaining it. Bowden v. Lewis, 13 R. I. 189 a case' in many respects similar to this. In the first case the plaintiff’s buildings were destroyed by fire communicated from the defendant’s steam mill situated on its own land but without the required statutory license therefor. The statute declared any stationary steam engine so erected without the license “to be a common nuisance,” and the statute R. S., ch. 22, see. 13, giving a right of action for injury from a common nuisance, was then in force. It was held, nevertheless, that the absence of the required license did not give the plaintiff a right of action, and that unless the steam mill was a nuisance in fact, its erection and use were not wrongful as to the plaintiff. In the second case the plaintiff was lessee of certain oyster lots from the state, and erected a building on them without the required statutory license therefor. This building somewhat impeded navigation, was unsightly, and also obstructed the view from the defendant’s villa lots near by. After the denial of a request for the removal of the building, the defendant himself removed it. In an action of trespass for such removal, it was held that neither the absence of the required license nor the described damage to the defendant’s villa lots justified his action. The plaintiff had judgment. In the case at bar had the license been obtained and the structures made lawful, the inconvenience to the plaintiff from the obstruction to navigation, the lessening of her enjoyment of her estate and of its value from the proximity and ugliness of the structures, would have been the same in kind and degree. Hence she was not injured by the lack of- the license and cannot maintain this suit on that ground. The two cases cited by the plaintiff, being from other states, are not compelling authority however closely in point, but we think they are each distinguishable from this case. In Wheeler v. Bradford, 54 Conn. 244, the plaintiffs residence fronted on a public park. The defendant undertook to enclose a large part of the park for his own use. The court enjoined him at the suit of the plaintiff. The park, however, was not established or reserved simply as a highway for purposes of passage, but to be kept open for air and prospect as well. Beside nees fronting on this park practically had annexed to them the privilege of air and prospect over the park, a distinct privilege appurtenant, and as such of material value. It was as if A. had granted to B. a privilege of prospect over his land as appurtenant to B’s residence, and C. should undertake to obstruct it. In the case at bar the flats are the defendants’ private property, subject only to certain public rights. Neither the public, however, nor the plaintiff Inis any privilege of prospect over them. In Tyson v. First N. Bank, 133 Ala. 459, (32 So. 144) the plaintiff owned a store on a business street. The defendant owned an adjoining lot on the same side of the street, and proposed to extend its building into the street of which it owned the fee subject to the easement of a public street. The plaintiff alleged that the proposed extension would obstruct not only the view of the street from his store, but also the view of his store from the street. It was held on demurrer that the plaintiff had stated an injury different in kind and degree from that suffered by the public. Granting that the owner of a store on a business street has as appurtenant thereto the right that nothing shall be erected by his neighbor on the street to hide 1ns store from the passing throng upon whose custom his store depends, the case is obviously not the one at bar.

Undoubtedly these structures do annoy the plaintiff and the occupants of her land, and do reduce its renting and selling value, but, so far at least, it appears to be a case of damnum absque injuria. It is clear, we think, that her first and second propositions do not, under our law, sustain her suit.

We come now to her third and last proposition, viz : that the structures in fact materially impede the passage by water to and from her land, and thereby infringe a legal right appurtenant to her land, and distinct from the public right. As to the structures in existence at the time she filed her bill, she must be remitted to her action at law under the rules stated in the early part of this opinion. As to the proposed extension, the evidence does not make it plain to us that it will materially impede passage by water to and from the plaintiff’s land. It is by no means so plain a case as that of Maine Wharf v. Custom House Wharf, supra. The defendant’s upland and wharf are at the extreme head of the cove.' The plaintiff’s land is wholly west of them. The proposed extension is on the east side of the wharf and no farther out toward the sea. Not being fully convinced of the fact alleged, we cannot make it the basis of a decree in equity for a permanent injunction, but must leave the plaintiff to establish it at law. A decree of absolute injunction is too sharp and heavy an instrument to be used unless the right to be protected thereby has been established by a judgment at law or made indisputable in equity.

We find no ground upon which this suit can be maintained in equity, and hence the decree dismissing the bill must be affirmed; but since the plaintiff may possibly be able to establish in an action at law some infringement of her individual legal rights, such as the right of access, the decree of dismissal should be without prejudice to such an action. Since the wharf and the proposed extension are confessedly in violation of the statute requiring a license, we think the defendants should not recover costs of appeal.

Final decree to be made in accordance with this opinion.