Hollister v. Union Co.

Daggett, Ch. J. The act of the legislature of 1800, by which this company was incorporated, is declared, in its title, to be, “ an act for incorporating a company to clear the channel of Connecticut River.” In the fifth section, it is enacted, among other things, that the company may “ erect and build such wharves, piers and hedges in said river, or on the banks thereof, as they may judge necessary, they paying to the owner or owners of the land where such wharves maybe erected, such sum or sums as may be assessed, by the county court of the county where such land may lie.” There were many points raised in the county court, which are quite unnecessary to be considered ; such as, whether the county court ought to have admitted the testimony of the commissioners appointed by a supplemental act of 1806; and whether the statute of limitations could be interposed as a bar to the plaintiff’s recovery. This Court is called upon now to decide, whether the defendants can be liable, in any action, for damages for a consequential injury arising to the plaintiff’s land, occasioned by the prudent erection of the defendants’ works, without any intention to injure him or others, but in the honest and discreet execution of their powers. Tam well — 451 — satisfied, that such an action will not lie: and consequently, the judgment of the superior court must be affirmed; hence all the other points may be laid out of the case. The plaintiff in the county court, now defendant, ours to place himself on this ground; that if there cannot be a recovery in this case for the injury, then a fundamental principle of the common law, and of the constitution of this State, and of the United States, is subverted. The doctrine on which he relies, is this: “ The property of no person shall be taken for public use, without just compensation therefor.” This is, indeed, a fundamental principle of constitutional law. I feel no inclination to impugn it, or in any degree to affect it. The act in question, under which the defendants have operated from their incorporation, expressly recognises this princi-pie. It provides, in terms, that all lands taken for the purpose of erecting wharves, shall be paid for, according to an assessment of the county court. But the principle now assumed, is much broader. The charge of the county court to the jury, was, that the defendants were liable for any injury to the land of the plaintiff, occasioned by the diversion of the water from its natural course, by the erection of their works. By this charge, the jury were to lay out of their consideration all acts of the defendants, designed to injure the plaintiff’s land — • all imprudent and improper acts, in the construction of their works, — and solely to enquire if the works caused the injury complained of. Such a doctrine cannot be sustained. The following positions relating to this subject, may, I think, be sustained, by reason and the most approved authority. 1. Connecticut river, being a public navigable river, prima facie and of common right belongs to the sovereign powrer. This position has been repeatedly advanced, by this court, in several recent decisions. East-Haven v. Hemingway & al. 7 Conn. Rep. 186. 198, 9. Middletown v. Sage & al. 8 Conn. Rep. 221. Chapman v. Kimball & al. 9 Conn. Rep. 38. It is also the well established doctrine of the common law. Harg. L. T. 17. 18. 35. 2. The lands of individuals, bounded on this public navigable river, are granted to those individuals, or to those under whom they claim, by the state ; but the state did not there - by divest themselves of the right and power of improving the navigation of the river; for the rule in relation to such grants — 452 — js> that they shall be construed most favourably for the public, for whose use the state hold, and against the grantee. 7 Conn. Rep. 199. 3 Kent’s Comm. 492. (2d ed.) 5 Rob. Adm. Rep. 182. 3. Upon these principles, the state of Connecticut now hold this river, for the purposes of navigation and fishery, (unless indeed, any individual has gained title by grant or prescription to any particular use of it, which is not pretended in this case,) and therefore, upon well established principles of law, may do every thing for the full enjoyment of their rights, not inconsistent with the great constitutional principle,, that private property shall not be taken for public use, without just compensation. 4. There is no duty imposed upon this company, by the charter, to protect the banks of this river from incroachmenls by the water. This is the duty of the individual proprietors; they having accepted their grants with this burden, and have a compensation in many ways. This idea is supported by a late decision of the King’s Bench. Henly v.The Mayor and Burgesses of Lyme, 5 Bing. 91. (15 Serg. & Lowb. 376. 384.) 5. The public, being the owners of this river, have an unquestionable right to improve the navigation of it, without any liability for remote and consequential damages to individuals. Lansing v. Smith & al. 8 Cowen 146. This is a very recent decision of the supreme court of the state of New-Yorh. The marginal note of the case is as follows: “ The statute (of New-York) authorising the construction of a basin in the Hudson river, in the city of Albany, and erections whereby the docks, &c. owned by individuals alone, were rendered inaccessible or less easily approached by vessels, &c, and therefore, much depreciated in value, though it provided no compensation for such a consequence, is not unconstitutional, either as taking private property for public use, without just compensation, or impairing the obligation of contracts. This not being a direct invasion of property, but remote, and consequential merely", arising from a public improvement, the injury is one to which individuals must submit, as the price of the social compact; and in the eye of the law, the injury is ‘ damnum absque injuria.’ The injury being common to a large class of the community, it is the subject of indictment only, as a common nuisance.” — 453 — The ease was much stronger for the plaintiff than the pres-enl. There, by the erections of tiie defendant in the river, the docks, &c. owned by the plaintiff were much depreciated jn value. The principles and reasoning of that learned court are so very apposite to the case under consideration, that they very readily meet my assent. The court say : “ If the act be unconstitutional it must be on the ground, that the plaintiff had either at common law, as owner of the adjacent soil, or by virtue of the patent from the state, for the land under water opposite to the shore, a claim to the natural flow of the river, with wdiich the state had no right to interfere, by any erection in the bed of the river, or in any other manner. This proposition appears to the court too extravagant to be seriously maintained. It denies to the state the power of improving the navigation of the river, by dams or any other erections, which must affect the natural flow of the stream! without the consent of the proprietors of the adjacent shore, within the remotest limits which may he affected by the operation. Every new dock which is erected, partially diverts the natural course of the stream ; and upon the principle contended for by the plaintiff, violates the rights of the proprietors of all the docks below it.” P. 148. It would be extremely difficult to see to what extent, the doctrine of the plaintiff would not lead. It would certainly lead to this extent, that if any proprietor of land below or above these erections of the defendants, could prove any damages tohispos-sessions, by any diversion of the water from the natural stream, by their operations, he could recover. Such a doctrine, I cannot admit. There is also another case, quite in point. I refer to The Governor and Company of the British Cast Plate Manufacturers v. Meridith & al. 4 Term Rep. 794. It was there decided, “ that where the acts of commissioners appointed by a paving act, occasion a damage to an individual, without any excess of jurisdiction on their part, the commissioners, or paviors acting under them, are not liable to an action.” Lord Kemjon, in that case, thus expresses himself: “ If this action could be maintained, every turnpike act, paving act, and navigation act, would give rise to an infinity of actions. If the legislature think it necessary, as they do in many cases, they enable the commissioners to award satisfaction to the individuals who happen to suffer; but if there be no such — 454 — power, the parties are without remedy, provided the comm is sioners do not exceed their jurisdiction.” “ Some individuals suffer an inconvenience under all these acts of Parliament; but the interest of individuals must give way to the accommodation of the public.” These decisions and opinions are v( rv satisfactory reasons to shew, that the plaintiff cannot recover. Again, the ,doctrine of the plaintiff, in my judgment, woo'd lead to this result; that when any person sustains any damage, however remote or consequential, by any turnpike road, improvement of the navigation of a river, any n< w avenue or street into a large commercial place, or any other alteration of the existing state of things, an action will lie : gainst those who are authorised by the legislature to accomplish such object, if they act within the scope of their powers, and with entire honesty and sound discretion. Such a principle is alike opposed to common sense, common law, and adjudged cases. I cannot assent to it. The defendants have not directly invaded the property of the plaintiff. They have not taken the property of the plaintiff for-public use, without just compensation: — they have not, therefore, brought themselves under the constitutional interdiction; but they have, under the sanction of the authority of the legislature, to which appertained the power of regulating a public navigable river, operated upon this river so as to produce an inconvenience — a remote and consequential injury, to the plaintiff’s land. For such an injury, no action can be sustained. On this ground, the constitutional objection is sufficiently avoided. But in a recent case before the supreme court of the United States, that tribunal has gone still further, and decided, that the provision in question is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states. Barrow v. The Mayor and City Council of Baltimore, 7 Pet. U. S. Rep. 243. The judgment of the superior court, must, therefore, be affirmed. Bissew, and Church, Js. were of the same opinion. Peters, J., concurred in the result, but in coming to it proceeded solely on the ground, that a corporation is not liaable for a tort. — 455 — *10 opinion. Williams, J., being interested in the event of the suit, gave Judgment affirmed.