Franklin Wharf Co. v. City of Portland

• Decision Date: 02 April 1877
• Citation: 67 Me. 46
• Parties: FRANKLIN WHARF COMPANY v. CITY OF PORTLAND.
• Court: Maine Supreme Court

67 Me. 46

FRANKLIN WHARF COMPANY v. CITY OF PORTLAND.

Supreme Judicial Court of Maine.

April 2, 1877

ON REPORT.

CASE in tort, for obstructing entrance to plaintiffs' wharf in Portland, by solid deposits of sewage.

The plaintiffs are a corporation established and holding wharf property, in Portland, by virtue of Private Laws of 1850, c 415, of Private Laws of 1857, c. 98, and of Private Laws of 1871, c. 661.

The plaintiff corporation offered to prove that in 1860 the defendant corporation constructed a sewer through Thames St and made an outlet for it, into and at the head of the dock on the easterly side of the plaintiffs' wharf; that this dock before the construction of the sewer had been wholly below the line of low water; that the dock was public property, a collection of water open to the sea, below the line of low water, and from time immemorial had been resorted to by large ships for landing goods at the wharves of the plaintiffs and their grantors and that the plaintiffs and their grantors had been accustomed to pass and repass over the same.

That the sewer leading into the dock, and the other sewers and drains leading into said sewer, were constructed without traps or cess-pools or other contrivances to catch earth, gravel and other solid matter, coming into the sewers, and prevent the same from being washed into the dock.

That from 1860 down to the present time, the dock in question has been gradually filling up with earth, sand, gravel, mud and filth, brought down in said sewer, and deposited in said dock, until the dock has become so obstructed thereby that the upper portion thereof has become wholly unnavigable and the lower portion unnavigable for vessels of large tonnage, and the plaintiffs have been obliged, in order to use their wharf, to dredge the dock at large expense.

That the plaintiffs have suffered special damage by reason of this deposit of earth, sand, mud and filth, and by the depreciation of the value of their wharf property by reason of the docks being filled up, and by reason of their being obliged to pay out moneys to partially dredge the dock, and by the loss of wharfage and dockage which would have accrued from vessels loading and unloading at plaintiffs' wharf, if the dock had not been so obstructed.

That the defendants have been requested by the plaintiff corporation to remove the sewer deposit in the dock by dredging, before the commencement of this action, but have neglected so to do.

That the construction of said sewer and other sewers leading into the same, with traps, cess-pools and other contrivances to catch and hold the solid matter passing through said sewers and drains, would have effectually prevented a great portion of the fill and deposit complained of, and of the consequent injury to plaintiff corporation.

The city solicitor contended that the foregoing facts, if proved, would not sustain an action against the city of Portland.

Thereupon it was agreed by the parties to report the case to the law-court for the determination of the following questions of law:

1. Whether the city of Portland have a right to construct a sewer opening into one of the docks of the city, so as to cause a filling up of the same, as above stated, to the injury of the adjoining wharf owners.

2. If so, whether it is not the duty of the city to cause the dock to be dredged and cleared of such deposits, from time to time, as the same shall become an obstruction to navigation.

All ordinances and by-laws of the city of Portland, and all acts of the legislature, bearing upon these questions, are made part of the case. When these questions of law have been determined, the action is to stand for trial.

C. P. Mattocks & E. W. Fox, for the plaintiffs, contended that the general authority conferred upon municipal corporations did not authorize them to construct and maintain sewers in such manner as to obstruct the navigation of public navigable waters.

That there was nothing in the acts of the legislature authorizing the construction of sewers by the city of Portland, which grants any peculiar privileges to that city as regards the filling up of the docks, harbor, or public navigable waters surrounding that city, referring to R. S. of 1857, c. 16, §§ 2 and 3, as amended by c. 153, of the public laws of 1860.

That any obstruction of navigable waters is a public nuisance, especially if made below low water mark.

That a public nuisance can be legalized only by legislative enactment, explicit, definite and unequivocal.

That while it is said that the sea is the natural receptacle of the offscourings of the land, and that the filth and refuse of great cities, which must be deposited somewhere, can be deposited in the sea with the least expense and detriment to public health; this argument has little force in view of the fact that sewers may be so constructed that their deposits may be made in the sea without injury to navigation.

That it is the duty of the city either so to construct their sewers that the solid refuse shall never reach the docks, or else to remove it therefrom as soon as it becomes an obstacle to navigation.

That the rule once laid down in Rex v. Russell, 6 B. & C., 566, " If that which in itself is a public nuisance, as there is no question but what an obstruction to public navigation is, benefits a vastly larger number of people than it incommodes, and in a vastly more important way, then it ceases to be a public nuisance and becomes a public benefit," has been overruled in Rex v. Ward, 4 Ad. & E., 384, where Lord Denman says, " there is no practical inconvenience in abiding by the opposite principle, for daily experience proves that great and acknowledged public improvement soon leads to a corresponding change in the law, accompanied, however, with the just condition of being compelled to compensate any portion of the public which may suffer for their advantage," and that the law of this country and of this state is that the fact of such obstruction being a benefit to the greater number does not render it any the less a nuisance.

The counsel, in their argument, discussed the following cases. State v. Freeport, 43 Me. 198. Knox v. Chaloner, 42 Me. 150. Garey v. Ellis, 1 Cush. 306. Gerrish v. Brown, 51 Me. 256. Sherman v. Tobey, 3 Allen 7. Eames v. N. E. Worsted Co., 11 Met. 570. Renwick v. Morris, 3 Hill 621. Hickok v. Hine, 23 Ohio St. 523. Proprietors of Locks v. Lowell, 7 Gray 223. Pennsylvania v. Wheeling & Belmont Bridge, 13 How. 518. Gunter v. Geary, 1 Cal. 462. Pilcher v. Hart, 1 Humph. 524. Washburn & Moen Man. Co. v. Worcester, 116 Mass. 458. Boston Rolling Mills v. Cambridge, 117 Mass. 396. Brayton v. Fall River, 113 Mass. 218. Child v. Boston, 4 Allen 41. Merrifield v. Worcester, 110 Mass. 216.

In their closing summary they said:

I. That the city of Portland have no authority, express or implied, to empty their sewers into the public docks, if by so doing the docks are partially filled with deposit and navigation obstructed. We claim this irrespective of the question whether or not the sewer could be so constructed as to avoid the deposit of matter. If deposit necessarily results in the dock, it is the duty of the city to carry its drain elsewhere.

In this view of the case it follows that the city being a wrongdoer in making the deposit, a fortiori, it is their duty to remove it.

II. That even if by any implication absolute authority to enter the docks be conferred upon the city, it is their duty so to exercise the power that no obstruction of the docks shall result, as could be done by the use of suitable traps,--or if such obstruction does necessarily result, then, inasmuch as there is no express authority conferred upon the city to obstruct the docks and it is well known that the obstruction can be removed by dredging, the more reasonable inference is that the city is to be allowed to enjoy the privilege of drainage subject to the burden of repairing the evils it does by dredging.

III. We claim that the sewer in question, though built by the defendant corporation, was never located according to law, and that whatever authority over the docks the city may possess, as regards sewers legally located, they are as regards this particular sewer, wrong-doers in opening it into the dock in question, and consequently liable for all injuries inflicted upon the plaintiff corporation thereby.

T. B. Reed, city solicitor, for the defendants.

Unless the legislature had authorized the plaintiffs to construct their wharf where it now is, wholly below low water mark, it would have been itself a nuisance, with no rights which a person of any color would be bound to respect.

I. The question before the court is, whether a wharf corporation, building its wharf by authorization of the legislature out into the public navigable water, has rights which are paramount or subservient to the rights of the inhabitants of the city of Portland. Before any wharves were built below low water mark, no one would doubt or question the right of the city to build drains through their own property into the tide water. Did they lose any of their rights in consequence of the act which incorporated the plaintiff? This is believed to be an entirely new question, and as yet undetermined. It will be noticed that there is an essential difference between this case and the Massachusetts cases, cited by plaintiffs' counsel. In this case, the wharf alleged to be injured is wholly below low water mark. Outside the permission of the legislature they have no rights whatever.

In the Massachusetts cases, the parties complaining had direct proprietary rights in the dock or other navigable stream alleged to have been filled up or injured. This will be seen more clearly by an...