Charles C. Wilson & Son v. Harrisburg

• Citation: 77 A. 787,107 Me. 207
• Parties: CHARLES C. WILSON & SON et al. v. HARRISBURG et al.
• Decision Date: 11 October 1910
• Court: Supreme Judicial Court of Maine (US)

77 A. 787

107 Me. 207

CHARLES C. WILSON & SON et al.

v. HARRISBURG et al.

Supreme Judicial Court of Maine.

Oct. 11, 1910.

Report from Supreme Judicial Court, Androscoggin County, in Equity.

Bill by Charles C. Wilson & Son and others against Harry Harrisburg and others. On report. Bill sustained.

Bill in equity asking that the defendants be enjoined by both temporary and permanent injunctions from cutting and removing ice from the Androscoggin river opposite the shore of their property situated on the east side of the river above the Maine Central Railroad bridge in Lewiston. A writ of temporary injunction was issued as prayed for. The defendants filed a joint and several answer, and the plaintiffs filed the usual replication. The cause was then heard before the justice of the first instance, and at the conclusion of the evidence the case was reported to the law court for determination.

The case is stated in the opinion.

Argued before EMERY, C. J., and PEABODY, WHITEHOUSE, CORNISH, and KING, JJ.

White & Carter and Newell & Skelton, for plaintiffs.

Ralph W. Crockett and Foster & Foster, for defendants.

WHITEHOUSE, J. This is a bill in equity asking that the defendants be enjoined by both temporary and permanent injunctions from cutting and removing ice from the Androscoggin river opposite the shore of their property situated on the east side of the river above the Maine Central Railroad bridge in Lewiston. A temporary injunction was issued as prayed for, and the case comes to the law court on report for final determination.

December 24, 1867, the Franklin Company, a corporation organized under the laws of Maine and located at Lewiston, was the owner of land on both sides of the Androscoggin river in Lewiston and Auburn, including the land in question in this case owned by the defendants, and land on the opposite side of the river in Auburn. The plaintiffs claim title to the annual ice crop opposite the defendants' land by virtue of a lease from the Franklin Company for the term of 12 years from January 1, 1906.

The contention of the plaintiffs is that the Androscoggin river at the point in question is a floatable stream; that in 1867 the Franklin Company, from whom the defendants' predecessors derived their title by deed of December 24, 1867, was a riparian proprietor on both sides of the river at the point in question, and as such was the owner of the entire bed of the river between the two banks, and of all rights growing out of such ownership, including title to the ice forming over the bed of the stream.

It appears from the Franklin Company's deed to Bearce and Coe, the defendant's predecessors in title, that the land thereby conveyed is bounded from the point of beginning according to the following call in the deed: "Thence westerly by the northerly line of Avon street extended about 491 feet to the outmost line or margin of the bank or shore of the Androscoggin river; thence up river by said line or margin to a point from which a line drawn parallel with the side line of High street extended would strike the point begun at." It is claimed that by this deed the Franklin Company obviously conveyed only to the top of the bank and retained in itself title to the bank of the river and the bed of the stream; and it is not contended that the defendants have any greater rights than their predecessors acquired by the above named deed.

On the other hand, it is argued in behalf of the defendants that the Androscoggin river at the point in question is "navigable" in fact, and should be held to be "navigable" and a public river in the technical sense as at common law, though above the ebb and flow of the tide; that the title to the ice forming on it is in the public; and that, whatever title the plaintiffs or the Franklin Company may have to the bank or the bed of the river, they have no greater right to the ice crop than the defendants or any other citizen of the state. But it is further argued that by the terms of this deed from the Franklin Company the defendants' ownership includes not only the hank, but the bed of the river, and extends to the thread of the stream, and that, even if their title does not go to the center of the stream, it is contended that in any event the defendants own the bank of the river and are riparian proprietors, and as such they, and not the plaintiffs, have the exclusive right to the ice crop opposite their land. Finally, it is contended in behalf of the defendants that, even if the plaintiffs have a superior title to the ice forming opposite the defendant's premises, the anticipated injury would not be irreparable, and that an adequate remedy for the trespass when committed would be first an action at law for damages, and not a bill in equity for an injunction.

1. The defendants' premises were situated above the Lewiston Falls, and the Androscoggin river at that point, being above the ebb and flow of the tide, was not a navigable river in the technical sense of the common law, but, upon the undisputed evidence in this case, it does appear to be navigable in a popular sense, or a floatable stream, according to the common law of this state. In its natural condition unaided by artificial means, it is susceptible of public use above the falls for the purposes of commerce, for the floating of vessels, boats, rafts, or logs. Brown v. Chadbourne. 31 Me. 9, 50 Am. Dec. 641; Pearson v. Rolfe, 76 Me. 380; and cases cited. In 1 Farnham on Waters, p. 117 (23f), the author says: "The difficulty with respect to the question as to what streams are navigable arises from failure to distinguish between streams which are navigable and those in which the title is in the public. The mere fact that the title to the bed is in a private owner does not prevent the use of the stream for the purpose of navigation by the public. The king's title to the land under the water was limited by the flow of the tide. But as far as the tide flowed he had the title in the soil, and the use of the water was public because he held the entire title in trust for his subjects. The only purpose for which it becomes a matter of importance to determine whether or not the tide flows is in ascertaining who owns the soil. The distinction does not affect the public easement in the water."

In Gerrish v. Brown, 51 Me. 256, 81 Am. Dec. 569, it was held that the Androscoggin river at Bethel and Berlin Falls, the points there under consideration, and between them, "though not technically a navigable stream, is of sufficient capacity to float logs and rafts, or, in other words, is a floatable stream, and as such, by the laws of this state, is deemed a public highway." Such rivers above the influence of the tide are regarded as public, not with reference to the property in the soil, but only with reference to the public use of the streams as highways.

2. With respect to the rights of the riparian proprietor in floatable and nontidal streams, it is the settled law of this state that he owns the bed of the river to the middle of the stream and all but the public right of passage. Pearson v. Rolfe, 76 Me. 385, and cases cited. This is in accordance with the doctrine laid down by Lord Hale in De Jure Maris, ch. 1, in a statement quoted in Farnham on Waters, p. 239, viz.: "Fresh waters of what, kind soever do of common right belong to the owners of the soil adjacent; so that the owners of the one side have of common right the propriety of the soil usque filum aquæ, and the owners of the other side the right of soil or ownership unto filum aqure on their side. And if a man be owner of the land on both sides, in common presumption he is the owner of the whole river according to the extent of his land in length."

But it is important to have a correct understanding of the force and meaning of the term "riparian proprietor," for it is obviously competent for a grantor of land owning to the center of a stream to fix the boundary lines and limit the grant as he may choose. If he wishes and intends to exclude the entire bed of the stream and all of the bank beyond a definite line on the top of it, he may undoubtedly do so by employing apt words to express his intention. "In all cases where the language used clearly shows such to be the intention of the grantor, the hank, side, margin, or shore become themselves monuments, and are to be treated as such." Bradford v. Cressey, 45 Me. 13; Haight v. Hamor. 83 Me. 457, 22 Atl. 369. In Bardwell v. Ames. 22 Pick., at page 354, Shaw; C. J., said: "The owner of the shore or the proprietor of the land bounding on the river generally is the owner of the soil to the central line of the stream, commonly called the filum aquæ or thread of the stream. * * * Such an owner is conveniently enough designated by the significant appellation of riparian proprietor. * * * By this designation, I understand an owner of land bounded generally upon a stream of water, and as such having a qualified property in the sail to the thread of the stream with the privileges annexed thereto by law."

3. At the time of the conveyance from the Franklin Company to the defendants in 1867 of the land in question on the Lewiston side of the river, the Franklin Company had become a riparian proprietor with title to the center of the river on each side, and had thus acquired the ownership of the entire bed of the river at that point. In the deeds by which it acquired its title on the Auburn side, its lands are bounded "by the river," and it appears that they extended up river beyond the defendants' lot. It also appears from the deeds that its land in Lewiston was "bounded westerly by the Great Androscoggin river." And a deed which describes a line along a nontidal river as running "with" or "along" the stream, or as running "by" or "on" the stream or "up" or "down" the stream, carries the title to the center of the stream, unless the contrary appears. Lowell v. Robinson, 16 Me. 360, 33 Am. Dec. 671; Lincoln v. Wilder, 29 Me....