Prior v. Swartz

Seymour, J. 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 mark, to low water mark, and thence, below low water mark, out towards 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 exclu- . sive 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, vol. 1, chapter 22, page 341, that “ all rivers that are navigable, all navigable arms of the sea, and the ocean itself on our coast, may in a certain sense be considered as common, for all the citizens have a common *137 right to their navigation. But all adjoining proprietors on navigable rivers and the ocean have a right to the soil covered with water as far as they can occupy it, that is, to the channel, and have the exclusive privilege of wharfing and erecting piers on the front of their land. * * * Nor may adjoining proprietors erect wharves, bridges or dams across navigable rivers so as to obstruct their navigation.” 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 seized 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 Biver, 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., 345, Judge Stores says:—“In Connecticut it is now settled * * * that the owner of the upland adjoining such” (adjacent) “flats 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 of an arm of the sea adjoining such flats.” In Mather v. Chapman, 40 Conn., 382, the court says:— “It is conceded that by the settled law of Connecticut the title of a riparian proprietor terminates at ordinary high water mark. It is also conceded that, though his title in fee thus terminates, yet he has certain privileges in the adjoining waters. Among the most important of these privi *138 leges are—(1) that of access to the deep sea; (2) the right to extend his land into the water hy means of wharves, subject to the qualification that he thereby does no injury to the free navigation of the water by the public.” In State v. Sargent, 45 Conn., 358, the right of owners of land bounded on a harbor to “embark therefrom and go upon the sea,” is recognized. And in New Haven Steamboat Co. v. Sargent, 50 Conn., 199, the right of a party, owner of the upland, to extend his wharf, if he desires, to the channel of the harbor, in that case some nine hundred feet below low water mark, is expressly stated, and the words “ deep water ” and “ channel ” are used as synonymous. . Aside from these references, the reason ordinarily stated for giving to riparian proprietors the right of wharfage, to wit, to facilitate commerce and the loading and unloading of ships, together with the common sense of the matter, clearly indicates that the right should not be restricted as claimed by the plaintiff unless there are positive decisions to that effect or imperative reasons for so doing. If, in view of the opinions already quoted, the question is to be regarded as an open one in this state, we see no good reason why it should not be decided in accordance with the convenience of riparian proprietors, and for the encouragement of commerce, so long as there is no counterbalancing injury involved to others. Except in cases where navigability begins at low water mark, the right to wharf out to low water mark only would be no privilege to adjoining proprietors nor benefit to commerce. It is significant that the word “ wharf,” as ordinarily defined, implies a structure in aid of navigation and to which vessels have access. This is well stated in Landon v. Mayor etc., of New York, 93 N. York, 151, thus:—“A wharf is a structure on the margin of navigable waters, alongside of which vessels can be brought for the sake of being conveniently loaded or unloaded. * * * Hence water of sufficient depth to float vessels is an essential part of every wharf, a necessary incident thereof or appurtenance thereto, without which there can be no wharf and no wharfage. In *139 deed a wharf cannot be defined or conceived except in connection with adjacent navigable water.” It seems to us therefore that a proprietor of land adjoining Stamford Harbor,.and-waters of a like character in this state, has a right to connect himself with navigable water by means of wharves or channels extending from and adjacent to his uplands, so long as he does nothing to interfere with the free navigation of the waters. The defendant claimed that the legislature had passed an act, which was recited in the finding, which directly authorized the erection of the wharf in question. The grounds over part of which the wharf was built and the channels dug, were designated for the planting and cultivation of oysters by a committee of the town of Stamford in accordance with the statutes. The plaintiff claimed that the defendant had no right to wharf out into said grounds or to dig said channels in the same, the same being situated below low water mark and within the navigable waters of this state; that the plaintiff having acquired his title to the grounds through original designations of a competent committee appointed for that purpose, his rights therein could not be affected by adjoining land-owners, as the rights of such land-owners, in contemplation of the statute, only extended to low water mark; that the statute gave the defendant no right to build a wharf or dig a channel below low water mark and no right to build any wharf, and that even if it did it gave him such right only as subservient to the plaintiff’s right to plant and cultivate oysters, and the right to build such wharf could be exercised only by obtaining the plaintiff’s consent so to do. The court ruled adversely to the claims of the plaintiff •and rendered judgment for the defendant. The view we have taken of the law makes it unnecessary for us to examine the act of the legislature referred to. If, as we hold, the owner of the uplands in question had a right, as incident to such ownership, to connect the same by means of wharves or channels with the navigable water of the harbor, nothing has been done, so far as appears, to legally de *140 prive him of.that right, and the designation of the grounds for the planting and cultivation of oysters under the terms of the statute (sections 2848 and 2349 of the General Statutes,) are ineffectual for that purpose. There is no error in the judgment appealed from. In this opinion the other judges concurred.