State v. Anthoine

Appleton, J. The bridge, for the removal of which the defendant was indicted, is part of a highway located by the County Commissioners over a creek navigable by canal boats and gondolas. The removal was made for the purpose of enabling the defendant to float down a small schooner which lay above. . The road in question was duly laid out, if the County Commissioners had jurisdiction. The question submitted for our determination is, whether they have authority to lay out roads and construct bridges over creeks or arms of the sea, where canal boats, gondolas and other small craft have been accustomed to be floated and where they may float. In Com. v. Charlestown, 1 Pick. 180, the defendants were indicted for not repairing two bridges over Miller’s river. When the lesser bridge was erected, the depth of water and its use for purposes of navigation was not materially different from that shown in the present case. The road was conceded to have been laid out in due form. The defence, which was sustained, rested on the ground that an inlet of the sea, which is navigable to any useful purpose, is public property; and that an order of the Court of Sessions for laying out a road across such inlet, was void; and that the inhabitants of the town in which the bridge was built were not bound to repair the same. “ There can be no doubt, therefore,” remarks Parker, C. J., in his elaborate opinion in the case just cited, “ that by the principles of the common law, as well as by the immemorial usage of this government, all navigable waters are public property for the use of all the citizens; and that there must be some act of the sovereign power direct or derivative, to authorize any interruption of them. The Legislature may, without doubt, delegate to the [438] magistrates of a county, or to any other body, the power of determining when public convenience requires that a bridge should be thrown over a creek or a cove, but until they have made such delegation in express terms, it is a branch of the sovereign power, to be exercised by the Legislature alone.” It has accordingly repeatedly been held that the Court of Sessions had not power to lay out such a way over a navigable river, so that the river might be obstructed by the bridge. Com. v. Coombs, 2 Mass. 489 ; Arundel v. McCulloch, 10 Mass. 10. In Henshaw v. Hunting, 1 Gray, 203, Merrick, J., says, that “ navigable waters cannot lawfully be obstructed by highways, whether laid out by towns or by County Commissioners, without previous permission given by the government.” No statute has been cited to show, nor are we aware, that an authority has been granted in this State to the County Commissioners to lay out roads over creeks or arms of the sea which are navigable, or to impede their use for the purposes of navigation by the erection of bridges. In Arundel v. McCulloch, 10 Mass., it was held, that as the Court of Sessions had no authority to locate a road across a navigable river, a bridge erected in pursuance of such location, was an obstruction, which any citizen having occasion to use the -river for the passage of his vessel, might lawfully remove. In accordance with the agreement of the parties, a nol. pros, is to be entered.