Prior v. Swartz
Decision Date | 30 June 1892 |
Citation | 62 Conn. 132,25 A. 398 |
Court | Connecticut Supreme Court |
Parties | PRIOR v. SWARTZ. |
Appeal from superior court, Fairfield county; Thayer, Judge.
Action by Arunah M. Prior against Christian Swartz to restrain defendant from digging channels through the oyster beds of plaintiff. Judgment fordefendant. Plaintiff appeals. Affirmed.
J. B. Curtis and H. W. R. Lloyt, for appellant.
S. Fessenden, for appellee.
It will not be necessary to state fully the finding in this case in order to understand the points involved. The defendant, owning land adjoining that, part of Long Island sound known as "Stamford Harbor," and within the navigable waters of this state, built a wharf opposite and contiguous to his land from the upland, above high-water murk, to low-water mark, and thence, below low-water mark, out to wards the channel of the harbor; and, for the purpose of connecting the end of his wharf with the harbor channel, he dug a channel between the two; also a channel in front of and alongside the end of his wharf. The wharf was built and the channels were dug to enable steamers and other vessels to receive and discharge passengers and freight to and from the defendant's adjoining upland, and in order that he might use the waters of Long Island sound opposite and contiguous to his land for the purposes of navigation. The plaintiff contends that, while it is the law of this state that the owner of the adjoining upland has the exclusive right of access to the water, over and upon the soil between high and low water marks, and the exclusive privilege of wharfing and erecting piers over the same, yet in no case has it been decided, and the law is not so, that he has a right to build his wharf below low-water mark. It is stated in Swift's System (volume 1, c. 22, p. 341) that This statement of the law is quoted in the opinion in East Haven v. Hemingway, 7 Conn. 186, with the suggestion that the court do not understand by it that the adjoining proprietors are seised of the soil covered by water, but that they have a right of occupation, properly termed a "franchise." The controversy between the parties regarded the title to the soil, with the wharf and store standing thereon, between high and low water mark on the east side of Dragon river, which is an arm of the sea where the tide ebbs and flows, and was navigable adjoining the premises for large vessels. That case decided that the proprietor of land adjoining a navigable river has an exclusive right to the soil between high and low water mark, for the purpose of erecting wharves and stores thereon. We do not recall any case in this state in which the precise point made in this case was in issue.
There are, however, expressions in the opinions in several cases which indicate the general views of at least the judges writing the respective opinions. Thus in Simons v. French, 25 Conn. 346, Judge Storks says: "In Connecticut it is now settled * * * that the owner of the upland adjoining such [adjacent] fiats becomes entitled, by virtue of his ownership of the upland, to the exclusive right of wharfage out over them in front of said upland to the channel...
To continue reading
Request your trial-
Port of Portland v. Reeder
...47; John J. Sesnon Co. v. United States, 9 Cir., 182 F. 573, 576; Langdon v. City of New York, 93 N.Y. 129, 151; Prior v. Swartz, 62 Conn. 132, 138, 25 A. 398, 18 L.R.A. 668; Geiger v. Filor, 8 Fla. 325, The defendants concede that cargo and passengers are not discharged at the defendants' ......
-
Port Clinton Associates v. Board of Selectmen of Town of Clinton
..." 'subject to the qualification that he thereby does no injury to the free navigation of the water by the public.' " Prior v. Swartz, 62 Conn. 132, 138, 25 A. 398 (1892), quoting Mather v. Chapman, 40 Conn. 382, 395 It is undisputed that Port Clinton has already built docks into the water o......
-
Shively v. Bowlby
...the upland, and the fee in flats so reclaimed vests in him. Society v. Halstead, 58 Conn. 144, 150-152, 19 Atl. 658; Prior v. Swartz, 62 Conn. 132, 136-138, 25 Atl. 398. The exercise of this right is subject to all regulations the state may see fit to impose, by authorizing commissioners to......
-
Inland Waterways Co. v. City of Louisville
...Co., 104 Ky. 796, 47 S.W. 1086; L. & N.R.R. Co. v. West Coast Co., 198 U.S. 483, 25 S. Ct. 745, 49 L. Ed. 1135; Prior v. Swartz, 62 Conn. 132, 25 A. 398, 18 L.R.A. 668, with note, 36 Am. St. Rep. 333; Weem's Steamboat Co. v. People's Steamboat Co., 214 U. S. 345, 29 S. Ct. 661, 55 L. Ed. 10......