Farist Steel Co. v. City of Bridgeport

Decision Date20 March 1891
Citation60 Conn. 278,22 A. 561
CourtConnecticut Supreme Court
PartiesFARIST STEEL CO. v. CITY OF BRIDGEPORT.

Case reserved from superior court, Fairfield county.

The Farist Steel Company appealed to the superior court from an assessment of damages by the common council of Bridgeport by which harbor lines had been laid out inclosing mud flats of the company. Case reserved for the advice of this court. Assessment annulled.

A. D. Beers, M. W. Seymour, A. M. Tallmadge, and H. H. Knapp, for plaintiff.

J. J. Phelan and G. W. Wheeler, for defendant.

SEYMOUR, J. The finding of facts states that the plaintiff is the owner in fee of certain real estate in the city of Bridgeport, consisting of uplands, and, as a riparian owner, of the mud flats adjacent thereto, on the east side of Bridgeport harbor. It further appears that in the year 1886 the common council of the city legally designated and established a harbor line on the east side of Bridgeport harbor, which line ran over the mud flats of the plaintiff and others, and assessed benefits and damages resulting therefrom to the respective parties interested. At that time, and for many years before, a bridge existed over the harbor, with which certain buildings were connected along the sides of the east end thereof. In pursuance of a vote of the common council passed December 5, 1887, the city proceeded to lay out a new bridge or public highway in substantially the same location as that of the bridge above mentioned, which new bridge was completed and opened as a public highway about December 8, 1888. At the time the new bridge was completed the buildings along the sides of the east end thereof were connected with it, and still continue to be so connected. On the 3d day of Sept mi her, 1888, the board of public works made the following report to the common council: "That in their judgment it would be wise, before the completion of the said new lower bridge, to take such action as would prevent the erection of buildings, either on the north or south sides of the iron portion of said structure, and connecting therewith on either side. Such action should be taken, however, in accomplishing this purpose as will result in the least injury to private rights. The board suggests the advisability of condemnation by the city, for public use, of so much of the adjoining property as will be necessary to secure the result desired, and recommend that the matter be referred to some appropriate committee for action." This report was accepted, and referred to the street committee by the common council. On the 10th day of December, 1888, the committee on streets reported to the common council on the report of the board of public works, and made the following recommendation: "That such action be taken as will result in preventing the erection of buildings on either the north or south sides of the iron portion of the new lower bridge. The committee fully agree with said board that this expensive and sightly structure should not be marred by placing buildings on either side thereof; and they further report that they have consulted the city attorney in reference to the subject, and, as a result of such conference, have come to the conclusion that the most desirable course to pursue, in order to accomplish the object desired, would be to establish harbor lines on both sides of said bridge." The committee recommended the adoption of the following resolution: "Resolved, that the committee on harbor improvements is hereby directed to take such preliminary action as will result in the establishment of harbor lines on both sides of the lower or Bridgeport bridge, extending from the present harbor lines at the western end of the eastern causeway of said bridge, westerly to the draw of said bridge." This report was accepted and the resolution adopted by the common council. On the 7th day of January, 1889, the committee on harbor improvements reported on the report of the street committee relative to establishing harbor lines on both sides of the lower bridge, and recommended the adoption of the following resolution: "Resolved, that the clerk is hereby directed to notify owners of property and parties in interest to appear before this common council at the council room, on Monday evening, January 21, 1889, at 8:30 o'clock, and be heard in relation to the establishment of harbor lines on the east side of Pequonnock river, as follows: Beginning at a point in the harbor lines as already established, at the old wall or point of rocks, on property belonging to the Favist Steel Company; thence north-easterly in the direction of the common center of Kossuth street and the new bridge, three hundred and forty feet; and thence northerly in a straight line to a point in the harbor line as already established at Howe's dock at the foot of Howe street, excepting that so much of said line as may lie upon or pass over the eastern approach to the new lower bridge shall remain inoperative and of no effect." The report was accepted and the resolution adopted by the common council. On the 21st day of January, 1889, the board of aldermen and the board of councilmen assembled in joint convention, and hearings were had relative to the establishment of said harbor line. On the 4th day of February, 1889, the committee on harbor improvements reported to the common council relative to the establishment of harbor lines on the east side of Pequonnock river, a hearing upon which was had before the common council January 21, 1889. They recommended the adoption of the following resolutions: "Resolved, that harbor lines be and are hereby ordered, laid out, and established on the east side of Pequonnock river, north and south of the new lower bridge, commencing at the old wall or point of rocks on property of the Farist Steel Company, and extending north-easterly in the direction of the common center of Kossuth street, three hundred and forty feet; and thence northerly, in a straight line, to a point in the established harbor lines at Howe's dock at the foot of Howe street. Resolved, that Messrs. John McNeil, Richard B. Cogswell, and Charles R. Brothwell be and are hereby appointed a committee, whose duty it shall be to make such lay-out of harbor lines, and report in writing their doings to the common council, which report shall embody a surveyand particular description of said lines. "On the 18th of February, 1889 the committee reported, recommending the adoption of the following resolutions: "Resolved, that harbor lines or dock lines be and are hereby established on the east side of Pequonnock river, in accordance with a map thereof herewith submitted, and the following description of survey: Beginning at a point in the harbor line, as already established, at the old wall 'or point of rocks on property belonging to the Farist Steel Company; thence extending north-easterly in the direction of the common center of Kossuth street and the new lower bridge, three hundred and forty-feet; and thence northerly in a straight line to a point in the harbor line, as already established, at Howe's dock at the foot of Howe street, except in that so much of the line as may lie upon or pass over the eastern approach to said lower bridge shall remain inoperative and of no effect. Resolved, that the mayor appoint appraisers to estimate the damages and benefits resulting from the foregoing layout of harbor lines." The resolutions were adopted, and the mayor thereupon appointed appraisers on said lay-out, who proceeded to assess benefits and damages thereon, and on July 1, 1889, reported to the common council. In their report they did estimate, ascertain, and determine that the appellant will receive an equal amount of damages and benefits from the establishment of the harbor lines. On the 15th of July, 1889, the common council accepted the report, whereupon this appeal was taken. It seemed to be conceded on the argument that the report of the appraisers, that the appellant's damages and benefits are equal to each other, proceeded upon the theory that he is entitled to no damages on account of the establishment of the harbor lines. The finding states that a tract of land is taken by the layout of the proposed harbor lines, and the appellant is deprived of the use, benefit, and worth of the same, and of all the privileges and franchises connected therewith, without compensation.

The first question, therefore, which we shall consider relates to the general right of the owner of lands abutting on navigable waters to damages for the legal establishment of a harbor line over the abutting flats, between high and low water marks. In Connecticut the public is the owner in fee of the flats adjoining navigable waters up to high-water mark, such title being vested in the public for purposes of navigation and commerce. Simons v. French, 25 Conn. 346. The owner of the adjoining uplands has the exclusive privilege of wharfing and erecting stores and piers over and upon such soil, and of using it for any purpose which does not interfere with navigation, and it may be conveyed separately from the adjoining uplands. Over it he has the exclusive right of access to the water, the right to accretions, and generally to reclamations. Because the soil, between high and low water marks, is held to be public! juris, the right of the owner of the adjoining upland in it is termed a "franchise." But it is none the less a well-recognized, substantial, and valuable right. It constitutes, as the court says in Simons v. French, supra, speaking of the right of wharfage, like other franchises, a species of property, which, like other property, is alienable by the owner, and alienable as well before the right has been exercised as it would be after a wharf had been actually erected. It is claimed by the appellee that, inasmuch as the fee of the...

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