Berry v. Carle

The cause being continued for advisement, the opinion of the Court was delivered at the ensuing August term in Oxford, by WestoN J. It is assumed in argument, by the counsel for the plaintiffs in error, that the Saco river, at the place where the logs of the defendant in error were found, is a public highway; and that, although he had a right to avail himself of that way, as a passage for his logs, yet he had no right to suffer them to remain stationary in the river; and that, being in that condition, and thus becoming a nuisance, the plaintiffs in error were justified in propelling them over the dam and along the stream; which was the injury complained of by the original plaintiff. By the common law rivers, as far as the tide ebbs and flows, are public and open for the use and accommodation of all subjects or citizens, and any obstruction erected or continued therein is a common nuisance; and may be abated as such. So rivers and. streams, above where the tide ebbs and flows, although the land over which they pass belongs to the owners of the adjoining banks, yet if they have been long used for the passage of »boats, rafts, or timber, although they have not the character of public rivers, within the meaning of the common law, yet they thus become public highways, and, like other highways, are to be kept open and free from obstruction. Sir Matthew Hale, de jure marts, in Hargrave’s law tracts, 5, 8, 9. 3 Caines 301. 10 Johns 236. In 4 Burr. 2164, Fates J. says “ The cited cases prove this dis-14 tinction, that navigable rivers or arms of the sea belong to the « crown, and not, like private rivers, to the land owners on each “ side, and therefore the presumption lies the contrary way in the “ one case, from what it does in the other.” And he cited with approbation a case from Sir John Davy’s reports, from which it appears that by the term navigable river is intended a river, where the tide ebbs and flows, [274] In the case of Dunbar v. Vinal, in the Supreme Court of Massachusetts in 1801, it was decided “ that the navigable waters oí the “ country were a common privilege for passing upon them, and “ that the plaintiff had no right to interrupt it by a dam.” But in the case of Spring v. Chase & al. it was in 1799, decided by the same Court to be otherwise, where the party owns the adjoining land, and no tide ebbs and flows. In that case the plaintiff, being the owner of the adjoining lands, erected abridge over Saco river above, but near the great falls and above the tide waters. The defendants threw down the bridge as a nuisance, for which they were called upon to answer in trespass. The plaintiff had judgment because, in the opinion of the Court, there were not navigable waters, where the bridge was built; although the river was there convenient for boats and rafts, and for many miles above. These cases are not reported at large, but are briefly stated in 2 Dane’s Abridgement 696. Notwithstanding the Saco, above the tide waters, may not be open to the public, as a highway of common right, yet by long usage as such, it may acquire this character. In the case before us, it is not stated as a fact that the Saco river is, at the place where the injury complained of was done, a public highway. It is above where the tide ebbs and flows; and it appears that it is obstructed by a dam quite across the river. We must be governed by the facts, as they appear in the exceptions; nor can we assume any other, except such as we are judicially bound to regard. The facts are imperfectly exhibited if the river has, in the place in question, by long usage, the attributes of a public highway, and the ground taken by the counsel for the plaintiffs in error is therefore insufficient to entitle them to a reversal of the judgment. But if the Saco is at that place to be deemed a public highway, it is by no means clear that the plaintiffs in error, under the circumstances of this case, had a right to treat the original plaintiff’s logs, in the manner they have done. Tucker, one of the plaintiffs in error justifies, and the others under him, not because the original, plaintiff’s logs were found in the river, but because they were stationary there to his annoyance. They were stationary, because arrested in their progress by an obstruction placed there, [275] by the concurrence and for the convenience of both the defendant in error and Tucker. If they happened to lodge on Tucker's land, or in waters of which he had the control, as his private property, they could be removed only with as little injury as possible, and the jury found, under the direction of the judge, that they might have been saved to the original plaintiff with little inconvenience to the original defendants. The exceptions are overruled, and the judgment of the Common Pleas affirmed, with costs for the defendant in error.