Towns of Wethersfield & Glastenbury v. Humphrey

Ellsworth, J. None of the errors assigned in this case, are of a serious character, or of difficult solution. 1. The first error is, that the county court refused to hear evidence that the ferry and roads were not of common convenience and necessity, i. e. to retry the facts which had been passed upon, by the committee. The county court is empowered, by section 28th of the act relating to ferries, to examine into the truth of the matters alleged, by the aid of the commissioners of the county, or otherwise. Of course, it could enquire by a committee of its own choice; and as this was done, and no objection is made to the fairness and regularity of their doings, there is no reason for a reexamination or reversal. Why should the county court reexamine the case, or rehear the testimony of witnesses, before the committee ? That committee was selected for the very purpose of repairing to the place itself, where the ferry was expected to be established, in order that, by their own observation, they could better decide upon its necessity, and the roads which might be needed. The court could not possibly be as well qualified, as were the committee, to decide upon the facts in controversy. Besides, the expenses of a re-hearing would constitute a most serious objection to such action by the court. In analogous cases of committees in chancery, or auditors, no such rehearing is allowed in mere matters of fact; though relief will be granted, if there is unfairness or informality in the proceedings. 2. The second error assigned is, that neither the court nor committee have laid out any roads leading to the ferry. This error is altogether unfounded in fact. The committee, in their first report, state, that they have " fixed and determined upon a location for said ferry,” and recommended its establishment. After this, the committee were directed (the [226] proceedings being in fieri,) in go forward, and lay out the necessary roads. Until the ferry had been established by the court, it could be known to the committee, that roads would be required ; and therefore, to lay them out, in the first instance, might, have been a useless expense. Besides, the court might have left it to the commissioners of the county, or to the select-men of Wethersfield and Glastenbury, to lay out the necessary roads to the ferry. 3. The third error assigned is, that the five rods adjoining the landing-place, is not laid out as a highway. We think the second report of the committee shows the fact to be otherwise. The committee say, they “ lay out, for the accommodation of said ferry, a tract of five rods in width on each side of the two rods of highway, to be used and passed over as a highway.” 4. The fourth error assigned is, that Mr. Welles transmitted to the committee, some two or three days after the hearing, a certain written statement, which unduly influenced them in their conclusions. Were this committee a jury, empanneled to act in court, and sworn to decide according to the evidence given in court, and to keep their own counsel, and suffer no one to speak to them about the business or matters in hand, but in court, the objection would have great force. But this is not the character of the committee. They may, and they are expected to, hear evidence from all persons who feel an interest, on the ground or elsewhere. Generally, they have a regular hearing, and receive testimony according to the rules of courts of justice; and they ought never, any where, to allow of unfairness or advantage in any party or their attorneys. We see nothing of this character, in this instance. On the trial, Mr. Welles stated, he had prepared a memorandum of what he claimed to be proved, but had mislaid it. Immediately after, he finds it, or prepares another, referring, for the truth of his facts, to the witnesses who had been examined, and sends it to the committee. We must presume, that the committee, in making up their judgment, made the necessary distinction between mere statement and proof; and that thev rejected all secret or unfair communications, if any there were, either before or after the public hearing. The plaintiffs do not pretend, that there was any fraud or design, on the [227] part of Mr. Welles; and we do not believe his paper statement had an influence beyond what it was entitled. 5. The fifth, objection is that the roads is laid across the neck of Kenney's cove. This objection is made on the ground that the bridge or causeway interrupts navigation ; that it is a public nuisance, not to be allowed, without the special consent of the legislature. If it be indeed a nuisance, as claimed, the objection would deserve serious consideration ; and if it be an obstruction to navigation, which is carried on between the states, or with foreign nations, even the consent of our legislature would not be enough to secure this interruption of commerce. But there is no such navigation here, which belongs to the jurisdiction of one or the other. This cove cannot be said to be navigable, by any craft whatever, though at times, a fish-boat, or skiff, or Indian canoe may be pushed through its waters; or, in the winter months occasionally, a small sea-boat is laid up to avoid the ice of the river. But this is not navigation. That only is such, and those only are navigable waters, where the public pass and repass upon them, with vessels or boats, in the prosecution of useful occupations. There must be some commerce or navigation which is essentially valuable. A hunter or fisherman, by drawing his boat through the waters of a brook or shallow creek, does not create navigation, or constitute their waters channels of commerce. Lord Hale says, in his treatise de jure maris, “ There be some streams or rivers that are private, not only in property and ownership, but also in use, as little streams and rivers that are not a common passage for the king’s property.” The doctrine contended for, by the plaintiffs, would convert numerous bridges over private rivers and inlets on the margin of Long Island Sound, into unconstitutional obstructions and public nuisances. And so, too, if this highway cannot be laid out, for the reason alleged, then most of the highways and private ways, crossing the inlets and coves, from Stonington to Greenwich, are unconstitutional and unlawful ; for they were not laid out by permission from the state or the United States, Such adoctrine has not received, and never can receive, the sanction of any court of justice. Nothing can be more preposterous. The whole matter is quite too trivial to warrant the grave questions, which have [228] been made by counsel The so called cove, is the mere outlet of “ Pewter-pot brook.” Besides, it appears, this piece of land, or water, has been crossed, for many years, by a bridge and road maintained by the owners of adjoining lands; and we do not readily perceive, that the proposed improvement will increase the interruption of navigation. And further, the county court will require the road, if necessary, to be so constructed, as to prove no obstruction. This might be done, by a draw-bridge, or in some other way, as should be found best. We do not deny the principles laid down in the cases cited at the bar from Massachusetts and Maine. But they are not like this case, in their material characteristics. They are cases of the navigation of wide, deep, navigable rivers, extensively used by vessels entering from the sea. The remaining errors are too trivial to demand our notice. We advise the superior court that there is no error. In this opinion the other Judges concurred. Judgment affirmed.