State v. Hutchins
| Decision Date | 07 January 1919 |
| Citation | 105 A. 519,79 N.H. 132 |
| Parties | STATE v. HUTCHINS. |
| Court | New Hampshire Supreme Court |
Exceptions from Superior Court, Belknap County.
Bill in equity by the State against Lee Hutchins. On transfer on the state's exceptions to the Supreme Court. The state's exceptions sustained, defendant's exceptions overruled, and decree modified.
Bill in equity, for the abatement of a public nuisance, consisting of a bridge which connects Governor's Island with the mainland, and obstructs a navigable strait in Lake Winnepesaukee. The case was heard by a master whose findings were confirmed by Pike, J., who transferred the case to this court, upon the state's exceptions, from the March term, 1913, of the superior court. It was briefed and argued orally in this court by James P. Tuttle, Attorney General, and Robert L. Manning, of Manchester, for the plaintiff, and by Charles B. Hibbard and Walter S. Peaslee, both of Laconia, for the defendant. After it had been submitted, it was remanded to the superior court for further proceedings there, because of the discovery of new evidence. The superior court, Sawyer, J., reopened and reviewed the case, heard further evidence modified and added to the findings made by the master, and transferred the ease from the October term, 1917, of the superior court, upon the state's exceptions.
The facts found were, in substance, as follows: Nathaniel Davis was the owner of Governor's Island (a tract of some 500 acres), and before 1808 had built a bridge over the strait to the mainland in Gilford. This bridge gave a clearance of 11 feet at high water. The Legislature of 1808 granted him authority to maintain a bridge there under the limitations quoted in the opinion. At later dates, before 1886, the owners of the island reconstructed the bridge from time to time, and at present it is much lower than in 1808, and prevents the passage of any but small boats. The fill at the ends has been extended so that the present opening is over shallow water, which is not navigable for the larger boats at times of low water. Most of the boats having occasion to pass there would be accommodated by an opening 11 feet above high water, but a few, including the United States mail boat, require an opening of 15 feet. The bridge is a common nuisance.
It was also found:
"That it would be unreasonable to require the defendant to personally bear the expense of the changes the court has outlined, and that equity and good conscience demand that the state, which has failed to attempt any oversight during the recoustruction of the structure during the past century, should bear one-hsilf the expenses of such changes, unless it is the legal duty of the defendant to bear them alone."
The decree was:
"That such bridge be raised to a height of 11 feet above the high-water level, and a new opening made therein as hereinbefore suggested (the expense thereof to be borne equally by the state and the defendant) unless the defendant is not required to do so as a matter of law, by reason of the law and the facts herein appearing."
The state excepted to the order for contribution, and to limiting the height to 11 feet.
Oscar L. Young, Atty. Gen., for the State.
Charles B. Hibbard, of Laconia, for defendant.
The state's exception to the refusal to order the raising of the bridge to a height giving 15 feet clearance above high water presents the question whether the public right of navigation in this strait has been granted away by the Legislature. If it has not been so granted, the defendant has no right to prevent such navigation. Conn. River Lumber Co. v. Olcott Falls Co., 65 N. H. 290, 21 Atl. 1090, 13 L. R. A. 826.
The defendant's rights in the premises are based upon an act passed by the Legislature in 1808. At that time his predecessor in title, Nathaniel Davis, had constructed a bridge at this place, and petitioned the Legislature for authority to maintain the same. The act provides:
The defendant contends that this is a grant of a right to maintain the bridge as it was in 1808, and that a permanent right to impede public travel to that extent was conveyed thereby. If this is not so, he further contends that the rights reserved to the state are only for the passage of rowboats and the like, and that as to larger craft the right to prevent travel was conveyed by the grant.
A legislative grant or release of public rights of navigation in favor of private parties is not to be presumed. It will not be inferred because it would make a private grant more beneficial to the grantee. The incidental power of discontinuing such right "cannot be implied from anything less than necessity." Conn. Rivor Lumber Co. v. Olcott Falls Co., 65 N. H. 380, 21 Atl. 1091, 13 L. R. A. 826. There is no necessity in the present case. A bridge can be maintained and still give free passage for the boats desiring to navigate the strait.
If a grant of a right to obstruct navigation could be inferred from the grant of "the right and privilege of said bridge, and of continuing the same," it is distinctly and in terms negatived by what follows. The provision "that it shall not be lawful for * * * Davis * * * to continue any bridge at the place aforesaid so as to prevent the passage of boats," is an express reservation of rights as against the structure then existing, as well as against those thereafter erected. The grant is not without limit as to the existing bridge. It conveys the right to maintain the bridge if and so far as it does not infringe upon the rights which are reserved. The Legislature were careful to negative the claim that the bridge Davis had built should be the measure of his rights. They chose to have the public rights remain paramount. It follows that whatever rights are described in the last sentence of the act belong to the public, whether infringed upon by the original bridge or not.
It is urged that this interpretation of the act renders it meaningless; that it leads to the conclusion that rights were granted by the first clause and taken away by the second. But it is by no means certain that Davis had any right as an incident to his title as littoral proprietor to maintain a bridge, even though it did not obstruct public travel. It is manifest that the existence of such right would at least be questionable, and that a legislative grant would be desirable. It is this right which the act grants, and the second clause was added to make sure there should be no claim of an implied grant of a right to obstruct navigation, or that the existing bridge measured the rights conferred.
The language of the act aptly expresses the legislative purpose to retain the public right for use whenever occasion therefor should arise in the future. If there were no boats on the lake, the passage of boats could not fairly be said to be prevented by the bridge. If there were only small boats, a small opening only would be required. But whatever their size, the right of passage for them was retained, and could be asserted whenever the occasion to use it should arise. As before stated, it is the public travel over this public waterway which measures the extent to which Davis and his successors were bound to keep the channel free from obstruction by them. The existing structure was legalized so far only as it did not prevent the passage of boats. His rights are similar to those of abutters to temporarily use a land highway. He may exercise them in any way not inconsistent with the needs of public travel. State v. Kean, 69 N. H. 122, 125, 45 Atl. 256, 48 L. R. A. 102.
What was meant by the term "boats and rafts"? The defendant concedes that the meaning of the word "boat" may be broad enough to cover all water craft, but claims that it was here used in a restricted sense, and that it applies only to rowboats and craft of a similar size. Definitions satisfying the claim of either party are to be found in the dictionaries, but we are not left to the expedient of merely choosing between these. There is other and more satisfactory evidence of how the term was understood by the legislators who used it in 1808. From 1792 until the passage of this act in 1808, the Legislature granted Charters for many canal companies, and from time to time passed acts changing the rates of toll. In these acts the craft plying upon the Merrimack and Connecticut rivers are uniformly described as boats. The matter of the size of craft is referred to, for the toll is fixed by tonnage. Such expressions as the following abound: "For every boat above one tons burthen"; "for every loaded boat three cents per ton"; "according to the tons said boats will carry"; for every ton "not exceeding live tons: ten cents, for every additional ton of said goods above five, six cents"; "for each boat and loading not exceeding two tons weight one dollar, if more than two tons fifty cents for each additional ton"; "boats of ten tons burthen." These and similar expressions are found in many different acts which were passed at about the time of the grant to Davis; three of them at the same session of the Legislature.1
Their bearing upon the question here is manifest. They afford satisfactory proof that the term was used in a broad rather than a narrow sense, and that the intent was to retain the whole of the public right of navigation.
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