This case comes before us on a motion of the defendants to dissolve a preliminary injunction, restraining them from the further erection of a wharf, already partly built, in Seekonk River, against their estate, which is situated on the west *Page 478 bank of said river, in the village of Pawtucket. The plaintiffs are the owners of the estate next below that of the defendants, and separated from it by Spring Street, so called. They are extensively engaged in the coal and lumber business, and, for the convenience of their business, have erected on their estate wharves and other expensive improvements. They insist upon a continuance of the injunction, upon the ground that the proposed wharf will be a public nuisance by reason of the obstruction which it will cause to the navigation of the river, the same being a tidal river, and will be especially injurious to them by incommoding the prosecution of their business, and by causing the river to shoal and fill up in front of their wharves, thereby destroying or greatly deteriorating their estate for the purposes to which it is adapted. The defendants, on the other hand, contend that the proposed wharf will not be a nuisance, and that it will not inflict any especial injury upon the plaintiffs, — at least none which will be irreparable in its effect or incapable of pecuniary compensation. In support of these contradictory views a great deal of testimony has been submitted, consisting of affidavits, plats, a chart of the river, and the record of the layout of a highway extending into the waters which the defendants propose to occupy with their wharf. The general scope and purport of this testimony we will briefly recapitulate.
The land constituting the estates of the plaintiffs and the defendants formerly belonged to one person, who sold to the defendants, in 1857, and to the plaintiffs afterwards. It lay on a bend or recess of the river, extending from Lamper Rock, so called, on the southeasterly part of the plaintiffs' estate, to a point opposite Seal Rock, so called, on the northeasterly part of the defendants' estate. After 1864 and 1865 both these estates were improved by the erection of wharves, and by filling out into the river; but in such a way that the flexure of the shore, though changed and lessened, was not destroyed. The estates were but a short distance below the head of navigation, and the river, in front of them, was narrow, with two channels which were ordinarily used for navigation, the one close to the east bank and the other in the centre. Sailing craft of the larger kind usually navigated these channels by the aid of tug-boats, or by being warped or hauled in and out. The plaintiffs claim, and in support *Page 479 of their claim, submit affidavits to the affect that there was, in addition to these two channels, a third, which left the middle channel at Lamper Rock, and, winding along near the west shore, reentered the middle channel a little above Seal Rock; that this third channel was navigable at all states of the tide, being from forty to a hundred feet wide, and from five to seven feet deep, at mean low water; that, up to the time when the proposed wharf was partly built, they were accustomed to use it with advantage in the navigation of vessels engaged in their business, and especially for the purpose of egress from their wharves when there were several vessels at them; that the portion of the proposed wharf now built obstructs the channel, and even somewhat incommodes the accustomed use of their wharf adjacent thereto; and that the proposed wharf, if carried to completion, will entirely close the channel to the north of their estate, and, by changing the current and accumulating a large mass of dirt and gravel in the river near them, will inevitably tend to shoal the waters in front of their wharves.
The defendants admit that the river is navigable in front of the plaintiffs' wharves; but they claim, and in proof of their claim, they submit affidavits to the effect, that at and above Spring Street, especially in the place of the proposed wharf, the river is much shallower, being only about three feet deep (and one witness says one foot deep) at ordinary low tide, except where the bottom is lowered by hollows and depressions; that the river was never used by the plaintiffs above Spring Street for their vessels when loaded, and only very seldom when unloaded, their usual course being, after unloading their vessels at their wharves, to haul them out stern foremost, the way they came in; and that only two loaded vessels ever made the attempt to pass up the river along past Spring Street, both being vessels of the defendants; one of which, favored by the tide, succeeded, and the other run aground. The defendants also submit affidavits to the effect, that the plaintiffs themselves, at one time, entertained a plan of filling out in front of their estate, across the alleged channel; that they also proposed the establishment of a harbor line, and agreed with the defendants that the front of their proposed wharf would be a proper limit for the line; and that, in their conversations with the defendants about the proposed wharf, *Page 480 they did not object on the ground that it would obstruct navigation, but only on the ground that it would extend in front of their estate, and one of the plaintiffs assented to the filling provided it was not carried in front of their estate. The defendants also submit the record of the layout of a highway by the town council of North Providence, which upon appeal was confirmed by the Court of Common Pleas. By the record it appears that the highway so laid out (the same never has been opened) passes across the place of the proposed wharf, and in front of the wharf of the plaintiffs. The record also shows that under the ruling given by the Court of Common Pleas, on the trial of the appeal, the jury could not have found in favor of the establishment of the highway, without also finding that the river where the highway was laid out was not of any practical use for the purposes of navigation. This highway was petitioned for by the owners of the estate now owned by the plaintiffs.
Besides the testimony above referred to, we have examined the chart copied from the United States Coast Survey. The chart conveys to us the impression that the river, at the place of the proposed wharf, is not so deep as the witnesses for the plaintiffs represent, and deeper than the witnesses for the defendants represent, being of a depth somewhere between — perhaps not far from half way between — the two representations.
We think it is pretty clearly shown by the testimony that the river, at the place of the proposed wharf, is navigable to an extent which, under certain circumstances, might be valuable, but which, in view of the two channels ordinarily used for navigation, is of no practical value to any one except the plaintiffs and the defendants; that to the plaintiffs it is of no practical value for navigation by loaded vessels, and only occasionally, when their wharves are crowded, for unloaded vessels, — the ordinary egress for unloaded vessels even, being an egress backwards past Lamper Rock.
The defendants contend that the erection of a wharf in tide waters, where the injury is so inconsiderable, is not a public nuisance. At common law the fee of the soil in tide waters below high-water mark is in the crown, and consequently, in England, every wharf that is built, and every rood of land that is filled in, by the riparian proprietor, without leave of the crown, is a trespass *Page 481 upon its right — technically termed a purpresture. But every purpresture is not a public nuisance; for the crown, while it may license a purpresture, cannot license a public nuisance. "It is not," says Lord Hale, "ipso facto a common nuisance, unless indeed it be a damage to the port and navigation;" and he adds, "whether it be a nuisance or not is quaestio facti and to be determined by a jury upon evidence, and not a quaestio juris." De Jure Maris, Harg. Tr. 85. The English cases, however, do not very clearly indicate the test or criterion which distinguishes a mere purpresture from a common nuisance. In Rex v. Grosvenoret al. 2 Stark. 511 (decided in 1819), the defendants were indicted for a nuisance committed by the erection of a wharf between high and low-water mark, and extending for a considerable space along the river. Lord Chief Justice Abbott instructed the jury that the public had a right to all the convenience which the former state of the river afforded, unless by the change some greater degree of convenience was rendered. The place occupied by the wharf had previously been a recess where, there was evidence to show, vessels could find shelter in time of storm at certain states of the tide, and his lordship instructed the jury that although vessels were not able to enjoy this benefit at all times, yet if they could derive benefit from it for the space of two hours each tide, they were entitled to that advantage, unless the want of it were compensated by some superior advantage resulting from the alteration. In Rex v. Russell, 6 B. C. 566 (decided in 1827), the nuisance complained of was the erection of two staiths for loading ships with coals, one of which extended nearly 150 feet, and the other 130 feet from high-water mark into the river, and each of which extended a few feet beyond low-water mark. The jury were directed by Justice Bayley to acquit the defendants, if they thought that the abridgment of the right of passage was for a public purpose and produced a public benefit, and if it was in a reasonable situation, and a reasonable space was left for the passage of vessels navigating the river; and he pointed out to them that the staiths were not merely a private benefit, for that by means of them the coals were brought to market at smaller expense and in a better condition, in both which respects the public were benefited. This direction, on review before the full bench, was approved, Justices Holroyd and *Page 482 Bayley concurring, and Lord Tenterden, C.J., dissenting. The ground of Lord Tenterden's dissent was, that the benefit which the public might derive from the staiths, by getting their coals cheaper in price and better in quality, could not be set off by way of compensation for any injury resulting from the staiths to navigation. He said the proper question was whether the navigation was injured, and that if the question had been left to the jury in that form, and a verdict had been found for the defendants, he did not see that any objection could have been properly made to it. Lord Tenterden and Chief Justice Abbott are the same person, and therefore, reading his charge in Rex v.Grosvenor, in the light of his dissenting opinion in Rex v.Russell, we may assume that he did not mean to say anything more in his charge than that the wharf in question would be a nuisance if it materially injured navigation in any way, unless in some other way it benefited navigation to a greater extent. InRex v. Ward, 4 A. E. 92, the doctrine of compensation, as laid down in Rex v. Russell, was pointedly condemned, and has never since been recognized. See Rex v. Morris, 1 B. Ad. 441; Reg. v. Betts, 16 Q.B. 1022. In Rex v. Tyndall, 6 A. E. 143 (decided in 1837, and affirmed in 1854, in Reg. v.Russell, 3 Ellis B. 942), it was held not to be a nuisance to erect piles and planking in a harbor if it was only in some extreme cases that the harbor was thereby rendered less escure. In Reg. v. Randall, 1 Carr. M. 496 (tried at nisi prius in 1842), the defendant was indicted for erecting a wharf between high and low-water mark, where boats were used before to pass, and Wightman, J., left it to the jury to say, whether the wharf was an impediment to the navigation of the river by any description of vessels or boats, and told them not to consider the circumstance that a benefit had resulted there from to the general navigation of the river. In Reg. v. Betts, 16 Q.B. 1022 (1850), it was held that a bridge built partly in the bed of a navigable river is not necessarily a nuisance, the true question being whether a damage accrues to the navigation in the particular locality, which is a question for the jury.
The doctrine deducible from these cases is, that the erection of a wharf in tide waters is not a nuisance, if the navigation is not injured by the erection. If, however, we inquire what is the degree of obstruction which, in contemplation of law, amounts to *Page 483 an injury to navigation, the cases do not furnish an entirely satisfactory answer. In some of the cases this question appears to have been left very much at large to the good sense of the jury; while in others, as in Rex v. Grosvenor, and in Rex v. Randall, language was used which would seem to imply that almost any inconvenience to navigation would constitute an indictable nuisance. And see Folkes v. Chad, 3 Doug. 340;The Mayor of Colchester v. Brooke, 7 Q.B. 339, 373; andGann v. The Free Fishers of Whitstable, 11 H.L. Cas. 192.
The law as declared in the English cases has been recognized by the courts of this country, and has been applied in some cases with liberality towards the riparian proprietor. The earliest cases are Commonwealth v. Pierce (1790), and Commonwealth v. Crowningshield (1796), reported in 2 Dane's Abr. 696, 697. These were both Massachusetts cases, and in that state the local law, originating in a colonial ordinance, confers ownership of the shore between high and low-water marks, for one hundred rods, if the tide ebbs so far, upon the adjoining proprietor, subject to the qualification that he shall not have power to stop or hinder the passage of boats or other vessels, Both were cases of wharves: the wharf in the first case being built out to the channel, or near it; and in the second, being partly below low-water mark. In the first case, the court said that wharves are useful and necessary to trade, and might, under the colonial ordinance, and by the common practice of the country, be built out to low-water mark, or further, if not injurious to the public interest. Verdict for the defendant, because the navigation was left convenient. In the other case, the court say, "It is no obstruction to build out a wharf, if a sufficient passage or way is left for the public." In Commonwealth v. Wright et al. 3 Am. Jur. 185 (1830), the defendants were indicted for erecting a wharf extending below the line of low-water mark and into the channel. Thacher, J., trying the case at nisi prius, directed a verdict against the defendants, unless the jury were satisfied that the benefit to navigation would exceed the injury. See alsoKeen v. Sutton, 5 Pick. 492; State v. Wilson, 42 Me. 9, 26. So also the right to wharf out, so long as the navigation is not impeded, or at least the fact that such a wharf is not a nuisance, has been recognized in Connecticut: East Haven v.Hemingway, 7 Conn. 186; New York: Wetmore v. The AtlanticWhite Lead Co, 37 Barb. 70, 96; and Florida: *Page 484 Geiger v. Filor, 8 Fla. 325. Likewise the rule has been recognized as applicable to our great inland rivers and lakes.Bainbridge v. Sherlock, 29 Ind. 364; Dutton v. Strong, 1 Black, 23. In New Jersey, by usage having the force of law, the riparian owner may, in the absence of restrictive legislation, reclaim the shore to low-water mark, and may hold it, when so reclaimed, as his own even against the state. Gough v. Bell, 2 Zabr. 441; S.C. 3 Ibid. 624; Stevens v. Patterson Newark R.R. Co. 34 N.J. 532. And it seems that the common understanding, in that state, carries the right even below low-water mark, provided there is no obstruction of navigation. See opinion of Elmer, J., 3 Zabr. 658.
In this state we have no reported decision on the subject. Here as elsewhere, doubtless, the public right is paramount; but, at the same time, we know of nothing in the policy of the state, as evinced either by legislation or by prevalent usage, which would lead us to regard a wharf as a nuisance, merely because it occupies water which, but for such occupation, might sometimes be used for navigation. The great end of navigation is commerce, and commerce cannot be carried on to advantage without convenient wharves. There are many wharves in the state which extend beyond low-water mark, and we have no reason to suppose that it would be a gain for navigation to reduce them within that limit. In deciding whether the proposed wharf is now, or will be when completed, a nuisance, we ought to bear this in mind; as we should also bear in mind the character of the river and existing modes of navigation. Regarding the wharf in that way, can we say that it is or will be a nuisance? Can we say that it will abridge or obstruct the navigation, — not in some strained or technical sense, but as practical men consider abridgment and obstruction? We are not prepared to say that it will; neither are we fully prepared to say that it will not. The question is eminently a question for the jury; and if the case were before us upon the prayer for a permanent injunction, and were not refused on other grounds, we should wait until the verdict of a jury could be obtained. But we are now to decide simply whether the plaintiffs make a case for a continuance of the injunction pending the litigation; for, considering the manner in which the injunction was obtained, we think it is for the plaintiffs to show cause for its continuance. *Page 485
The question then is, ought the defendants to be restrained, even by preliminary injunction, from the completion of their wharf, for the reason that it will be a public nuisance, when upon the evidence it is so very doubtful if it will be such. If we were satisfied that the defendants could not proceed without exposing the plaintiffs to the danger of a great and irreparable mischief, we should answer the question in the affirmative, and should not hesitate to enjoin them until their right to proceed could be fairly adjudicated. But we are not so satisfied. The only use which the plaintiffs have for the waters, proposed to be occupied, is as a way of egress for their unloaded vessels. This use is infrequent; their practice being to take their vessels in and out the same way, except when their wharves are crowded. They doubtless could take them out the same way always, though sometimes an egress the other way is more convenient. Smith Grant, one of the defendants, testifies that he never saw more than three vessels passing out up the river from the wharves of the plaintiffs; Geo. F. Newell, another defendant, that not more than two or three a year pass out in that way; and Richard M. Payne, who for two or three seasons has superintended dredging in the vicinity, testifies that he has observed that the vessels of the plaintiffs are hauled in and out the same way, and that he never saw one going out another way. When the plaintiffs first learned that the wharf was proposed, they objected to it simply on the ground that it would encroach upon the space in front of their estate; and one of them, when assured that it would not, said there would be no objection. If they had though the water of any great value to them as a way of egress, they would hardly have failed then to have objected to its obstruction. The defendants say, moreover, that when their wharf is built and the river dredged as they intend, its navigability will be improved rather than injured, even for the plaintiffs. This, of course, may not be so, though it seems not unreasonable. Very evidently, therefore, the injury which the plaintiffs will sustain, by the interruption of their passage up the river, will not be a very serious injury; and we do not think that, for an injury so slight and so contingent, they are entitled to have the defendants restrained from improving their estate, in a manner which will so greatly promote their trade and business, upon the ground that the improvement, *Page 486 when made, will be a public nuisance, without better evidence to support the charge. Irwin v. Dixon, 9 How. (U.S.) 10, 27;Bigelow v. The Hartford Bridge Co. 14 Conn. 565; Zabriskie v. Jersey City Bergen Railroad Co. 2 Beas. (N.J.) 314;Morris Essex Railroad Co. v. Prudden, 20 N.J. 530;Laughlin v. The President, c. of Lamasco City, 6 Ind. 223;Richards's Appeal, 57 Pa. State, 105; Attorney General v.United Kingdom Electric Telegraph Co. 30 Beav. 287.
The plaintiffs claim that the wharf, if built, will change the current of the river, and that, in consequence thereof, the mud and sediment of the river will fill in and shoal the water in front of their estate. We do not think the evidence to support this claim is sufficient to warrant an injunction.
They also claim that the dirt and gravel, of which the wharf is constructed, being uninclosed by walls, spreads into the water in front of their estate, and interferes with the accustomed use of their wharves. This, if the claim be correct, is an injury to which they ought not to be subjected; but the defendants, without being enjoined from completing their wharf, may be enjoined from so constructing it as to produce such a result.
We think, therefore, that the injunction should be dissolved, or should only be so far continued as to prevent the defendants from constructing their wharf in such a manner as will allow the materials of which it is constructed to spread into the water in front of the estate of the plaintiffs.
Decree accordingly.
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