Burrows v. Gallup

Pabk, J. Complaint is made of the charge of the court to — 498 — the jury as to what it was necessary for the plaintiff, and the parties under whom he claims title, to have done in order to extinguish the right of the public to the locus in quo as a public landing. The court instructed them “ that in order to destroy the public right they must have excluded the public and every member of it.” It is said that this language gave the jury to understand that, during the running of the statute, the entry upon the premises of any member of the public, without permission of the party in possession, would prevent the acquisition of a prescriptive right in the plaintiff, whether the entry was made for one purpose or another, and whether' by stealth or otherwise. On the other hand it is said that the court, in a subsequent part of the charge, so qualified the language complained of, that the whole is rendered unexceptionable. It was claimed by the plaintiff, and the court adopted the theory, that if the public had acquired a right to the locus for a public landing, it was such a right as could be lost by prescription.- If this be true it is quite evident that the charge was calculated to mislead the jury in determining whether it was lost. The first part of the charge is specific. It requires the exclusion of every member of the public from the premises. The latter part is more general, and only renders it necessary that the public should be substantially excluded. The first part is more comprehensive than the last. The last does not purport .to have been given to qualify or explain the first; neither can it receive that construction. They are independent representations of the law concerning the same subject matter; and inasmuch as it can not be known which part of the charge was received by the jury as the law of the case, we are required to consider whether either part gives * the plaintiff cause to complain. A title by prescription is based upon a grant, conclusively presumed from an exclusive adverse possession of premises for a period of fifteen consecutive years. The owner must be ousted and the ouster must continue uninterruptedly for the prescribed period of time. But when a party is once dispos — 499 — sessed it is not every entry upon the premises -without permission that would disturb the adverse possession. He may tread upon his own soil and still be as much out of possession of it there as elsewhere. He must assert his claim to the land, perform some act that would reinstate him in possession, before he can regain what he has lost. It is evident therefore that an entry by stealth, under circumstances that go to show that the party claimed no right to enter, or an entry for other purposes than those connected with a right to enter, would not be sufficient to break the continuity of exclusive possession in another. It is quite probable that the court intended to be understood by the language used in the first part of the charge, that every member of the public must be excluded from the possession of the premises; buc in common parlance the language would be understood differently. It would be taken to mean a physical exclusion—an exclusion of mere casual entries upon the land, such as have been alluded to; and it may be that the- jury found for the defendants solely on this ground. But the defendants claim that judgment should be rendered in their favor, however the jury might find in regard to the possession. They say that the facts of the case show that the premises in question form a part of a public highway, at its junction with Mystic River, which is a navigable stream; and they claim that where a highway upon land comes in contact with navigable water, it is to be presumed that it was intended to have been dedicated to the uses of a highway and a public landing, and is not therefore the subject of prescription. Where a highway is laid out to navigable water and there terminates, there could be but little reason to doubt that it was designed for the purpose of loading and unloading freight and landing passengers from the water; and it would thereby become a public landing as an incident to the public highway. But suppose a highway in running from place to place incidentally comes in contact with tide water, and runs along the beach for a considerable distance, on account of facility in its construction or other cause, would the whole length of — 500 — the highway bordering tide water, which might bo many miles, ipso facto become a public landing, irrespective of its need or fitness for such a purpose, so that the owner of the soil could not appropriate any part of the shore to his own purposes although the fact was apparent that the public would not be thereby incommoded ? If the law is so a different principle prevails along the line of contact of these highways from that which governs each when separated. It has been adjudged in many cases that the owner of the soil may do such acts upon his own land, within the limits of a public highway, as do not interfere with the public easement. Bartlett v. Evarts, 8 Conn., 523; Burnham v. Hotchkiss, 14 id., 312; Hopkins v. Crombie, 4 N. Hamp., 520. And there is 'abundant authority that the owner of land along the sea-shore may do in like manner with his soil covered by the sea, if navigation is not thereby incommoded. Angell on Tide Waters, 159; East Haven v. Hemingway, 7 Conn., 186; Frink v. Lawrence, 20 id., 118; Groton v. Hurlbut, 22 id., 178. The principle running through these cases, and many more-that might be cited, is, that what remains, after giving the public full enjoyment of their rights, belongs to the owner of the soil. • And why should not the same principle govern in regard to a public landing arising from the contact of these highways ? Can any good reason be given in the case supposed, why the whole length of the contact should perpetually remain a landing, where the supposition is that a small part of it is capable of furnishing, and in fact does furnish, all the conveniences for the full enjoyment of the public right ? Can any thing more be .asked for such a right than full enjoyment ? If so it must be to gratify the caprice of some erratic navigator. It certainly would be a novelty in judicial proceedings if a prosecution could be sustained in such a case against the owner of the soil, who had erected a wharf for his own purposes at a place within the contact, but not required for any public use. Upon what principle the court could declare such erection a nuisance it is not easy to see. — 501 — It may be that public landings prima facie exist along the line of contact of all highways with tide water, as incident to such highways, as all water where the tide ebbs and flows is prima facie navigable, notwithstanding its unfitness for navigation in fact. But such general principles of law are brought within the bounds of reason when undergoing judicial examination. Judge Ellsworth, in giving the opinion of the court in one of the cases cited, says:—“ It is time the public should understand that not every ditch in which the tide ebbs and flows through the extensive salt marshes along the coast, and which serves to admit and drain off the salt water from the marshes, can be considered a navigable stream; nor is every small creek in which a fishing skiff or gunning canoe can be made to float deemed navigable; but in order to have this character it must be navigable for some general purpose useful to trade or business.” And so it might be said in relation to landings of the class we are considering^ that notwithstanding their prima facie character, they must be needed for public use, and must be restricted in extent to what is beneficial to the public. The cases cited fully establish the doctrine that the owner of land along the sea-shore may erect a wharf adjoining his land, and enjoy it as his own, taking care not to interfere with navigation. The enjoyment of a wharf necessarily requires a way, either public or private, connected therewith. Suppose the former exists. Now if the wharf no more interfei*es with the rights of the public in relation to a landing than it does in regard to navigation, the case clearly comes within the principle of those cases, and the party may enjoy his wharf. The application of these principles to the case in hand is readily seen and easily made. Although a public landing at the locus in quo may have existed prima facie, at the time the plaintiff’s ancestor erected the wharf, still, whether it was needed for the purpose, so that the wharf could not become the property of the plaintiff, would depend upon circumstances, and is a question of fact to be determined by the jury. The motion does not state the facts necessary to enable us to — 502 — decide this question, and to judge therefore whether substantial justice has been done by the verdict. It was stated however by the counsel for the defendants, that the highway was laid out in 1098, running “ by Mystic River side.” If this was so it would seem that the highway runs along the bank of the river for a considerable distance and only incidentally comes in contact with it; for the highway was laid out at a time when it may fairly be inferred that there was not commerce enough on this stream to require the laying out of a highway for its enjoyment. We can not say therefore that substantial justice has been done in the case, and a majority of the court are of the opinion that a new trial ought to be granted, and so we advise the superior court. In this opinion Hinman, O. J., and Dutton, J., concurred. McCurdy* J., dissented. Butler, J., having tried the case in the court below did not sit.