Engs v. Peckham

• Decision Date: 04 August 1875
• Parties: SAMUEL ENGS v. JOB A. PECKHAM et al.
• Court: Rhode Island Supreme Court

11 R.I. 210

SAMUEL ENGS v. JOB A. PECKHAM et al.

Supreme Court of Rhode Island.

August 4, 1875

A. and B. owned each a projecting wharf. These wharves were separated by a dock. B. also owned the land at the inland end of the dock. After the establishment by the state of a harbor line, running in front of the wharves, B. proceeded to fill up the dock. A. filed a bill of complaint asking that B might be enjoined. A. claiming relief, - 1st. Because he had a private right or easement in the dock which would be destroyed by filling it. 2d. Because the fee of the dock was in the state, and filling it, if not a public nuisance, was an unlawful intrusion or purpresture which would be especially injurious to him: -

Held, that the bill could not be sustained.

The establishment of a harbor line in Rhode Island gives to proprietors within the line the privilege of filling out and extending their land to it.

Query . How far the establishment of a harbor line is an absolute grant of all within the line.

Semble, that only the state can proceed against a purpresture either to abate it or to prevent it.

BILL IN EQUITY to enjoin the respondents from filling a dock adjoining the complainant's wharf in Newport, and from obstructing the said dock, and access to the said wharf from the sea; for a decree ordering the respondents to remove the obstructions already placed by the respondents in the said dock, and for general relief.

Under the rule that establishing a harbor line gives to proprietors within the line the privilege of filling out and extending their land to it, an owner of one of two projecting wharves separated by a dock cannot, after the establishment by the state of a harbor line running in front of the wharves enjoin the owner of the other wharf, who also owns the land at the inland end of the dock, from proceeding to fill up the dock, on the grounds that complainant has a private right or easement in the dock which would be destroyed by filling it, and that the fee of the dock is in the state, and that filling it, if not a public nuisance, is an unlawful intrusion or purpresture, which would be especially injurious to complainant.

William P. Sheffield, for the complainant.

The complainant claims the rule by which the rights of the parties on the harbor line, in the event of the authorization of the parties to fill out to that line, to be as follows, namely: to ascertain the length of the riparian line, and the width of the lot of each riparian proprietor on that line, then ascertain the length of the harbor line, and apportion it among the several proprietors according to the width of their respective lots on the riparian line, by drawing lines from each side of these lots at the shore to the points in the harbor line to which they may fill out. See Angell on Tide Waters, pp. 258, 259.

Long Wharf, which is the northern boundary of the inner harbor of Newport, does not extend out in a west course, but inclines to the south, and thereby creates the difference between the length of these two lines; and if the riparian owners elect to fill to the harbor line they will have to extend in the same direction in which the Long Wharf is extended. This will leave a dock in front of the complainant's land of about six feet in width, which, if the respondents' views of their right to fill out to the harbor line are correct, they have no right to fill in; and the complainant has the right to have a decree requiring the respondents to remove the obstructions which they have placed in this part of the dock, even upon the respondents' theory of the case.

The complainant calls the attention of the court to the act of the General Assembly in reference to shores, & c., passed in May, 1707; and also calls attention to the fact that all of the records of the city of Newport were destroyed up to 1779.

The complainant's wharf, with slight alterations, is shown from " the Blastwitch map" to have existed since 1778, and it had the appearance of being an ancient structure as far back as the recollections of any witness now living extends.

The complainant claims title to the dock in dispute: I. By Grant. II. By Prescription.

I. By grant. " Whether the lost grant be brought in question by a special plea or by the general issue, its original, or probable existence may be proved by indirect and circumstantial evidence. It must always depend upon the circumstances of each particular case whether the evidence is sufficient to support the plea; but generally, enough must be proved to indicate a commencement of the right, and to point out the maker and circumstances of the grant.

" In a certain class of cases the easement is not referred to a grant of its own, but is presumed by law to be included in the subject matter of another grant without being expressly mentioned therein. These are cases where the easement is either substantially part of the subject granted, or especially necessary to its proper enjoyment." Phear on Rights of Water, p. 70; Chad v. Tilsed, 2 Brod. & Bing. 403; Hill v. Smith, 10 East, 476.

In Trotter v. Harris, 2 Young & Jervis, 285, it was held that a grant of a ferry franchise would be presumed after an enjoyment of thirty-five years. See also upon the general question, 1 Greenleaf Evidence, § 45, and Jackson v. McCall, 10 Johns. Rep. 379, 380; Coolidge v. Learned, 8 Pick. 504; Melvin v. Whiting, 10 Pick. 297; Angell's Tide Waters, ch. 9, p. 270, & c.; Gould v. James, 6 Cow. 369.

In Stanley v. White, 14 East, 332-40, Lord Ellenborough said: " The terms of an ancient grant now lost must be collected from the manner in which the right presumed under it has been exercised."

The use of the right is to serve as the record of its grant.

In Holcroft v. Heel, 1 B. & P. 400, the grant of a market from the crown was presumed after twenty years.

" When the uniform course of enjoyment has been with the plaintiff, the court will presume everything necessary for the support of it." 16 East, 341. In the same case Lord Ellenborough said: " When documentary evidence does not exist, we will rule in conformity with Lord Kenyon, who said that he would presume 200 deeds if necessary." Ibid. p. 339.

II. Prescription. It seems to be too well settled upon authority to admit of question that the citizen can acquire by prescription any right or franchise in the sea, or soil covered by the sea, by the exclusive occupation and enjoyment of the right for a sufficient length of time, unless the enjoyment of the right would be a public nuisance, or, in other words, an indictable offence.

It also seems to be a well settled law that a citizen can gain title by prescription to a right in common with others.

Here the complainant claims an exclusive right to bring vessels through this dock to the side of his wharf, and to have them lie there moored, or while they are loading and unloading. This claim, however, he limits to the purposes of the business carried on from his wharf, conceding a similar right to the respondents for the purposes of the business carried on from their wharf.

III. The Harbor Line Act of January, 1873. At the common law every intrusion into the public lands below high water-mark is primâ facie a purpresture, but every purpresture is not an indictable offence.

If there is a grant from the state for the intrusion, it is no purpresture.

Every purpresture may be abated upon information filed by the attorney general on behalf of the state. Angell Tide Waters, 200.

The question of nuisance or no nuisance is always a question of fact, to be settled upon the trial of an indictment. Hargrave Law Tracts, 85; Angell Tide Waters, 199; Rex v. Ward, 4 A. & E. 384.

These general definitions bear not only upon the Harbor Line Act, but upon both the questions of grant and prescription; for at the common law there could be neither grant nor prescription to maintain a common nuisance.

The only effect of the act under consideration, as the complainant claims, is to provide affirmatively that every person who shall fill out beyond the harbor line shall be subject to indictment; and under the maxim expressio unius exclusio alterius, that a person who does not build out beyond this line shall not be subject to indictment.

This leaves the state and individuals all other remedies for injuries from obstructions placed in the harbor below high watermark which existed at the time of the passage of this act.

Abraham Payne & John F. Tobey, for respondents.

I. The complainant has obtained no title to what he terms the " dock in dispute" by grant.

It is admitted that there is no evidence of a grant. The argument of the complainant is, that a grant must be implied. None of the authorities cited by him sustain his position that a grant can be implied in such a case as this. On the contrary, it is clearly established by the weight of authority, that the presumption is against such a grant.

The shore between high and low water-mark is the property of the state, as appears by many of the authorities cited by the complainant. And see State v. Jersey City, 1 Dutch. 527.

The law respecting an implied grant in such a case is summed up in Tyler's Law of Boundaries, p. 35, as follows: -

" It has been questioned whether private individuals can gain a right to the soil of the sea shore, either by charter or grant, or by long continued possession."

II. The complainant has acquired no right by prescription such as he claims. See Washburn on Easements & Servitudes, 124-136, 137, 140, 164; Thomas v. Marshfield, 13 Pick. 246.

III. It follows that the respondents should not be enjoined from filling up the northern portion of their wharf estate as they propose, because it is a well established rule that a riparian proprietor may...