Ockerhausen v. Tyson

Baldwin-, J. Every owner of land bounded on tidewater has a right to use this water for access to his land, and for any other beneficial purpose for the enjoyment of which his littoral title gives him peculiar opportunities. He has also the right to extend his lands hito the water by means of wharves, and a title by accretion to whatever lands by natural or artificial means are reclaimed from the sea; subject, however, to certain qualifications which need not be here detailed. Mather v. Chapman, 40 Conn. 382, 395; Lyon v. Fishmongers’ Co., L. R. 1 App. Cases, 662, 682, 683. The plaintiffs’ complaint is broad enough to found their action upon any and every right which they may have as riparian proprietors, whether those of a private nature or those having the character of a public franchise. The rights and franchise of any such proprietor must, of course, be exercised at all times with due regard to whatever rights or franchises others may have; either general, such as thvse of navigation or fishery, enjoyed by the public under [37] the protection of the sovereign; or special, such as those belonging to adjoining proprietors, or derived from them. The plaintiffs and the defendant were adjoining riparian proprietors on a tide-water cove of a navigable river or arm of the sea. The original deeds under which the defendant claimed, bounded him on high-water mark, but a later one from the grantor’s heir, purported to convey to him the title to the shore; and for the purposes of the appeal we shall consider him as invested with the full riparian franchise naturally appurtenant to his upland. The cove was a small one, somewhat resembling in form a shallow vase or bottle, the mouth being less than a hundred and fifty feet in width. Most of the land by which it was surrounded belonged to the defendant, and all that which was opposite its mouth and faced the channel of the river. The plaintiffs’ land had a water front westerly on the river as well as one easterly on the cove. This fact did not lessen their rights in the waters of the cove or in the flats over which they flowed. It is unnecessary to determine how far or for what purposes the plaintiffs could have extended their lands by filling in. It is enough to support the judgment that they had any right of this nature at all. The defendant, by filling up the flats immediately contiguous to the plaintiffs’ land, has gone outside of any lines of wharf-age, the benefit of which he could claim on any possible theory of riparian right. His northerly line certainly could not be pushed out without regard to the tongue of land belonging to the plaintiffs which was interposed between his land and the channel of the river. If it was necessarily a straight line, it could not be run north of one connecting the northwest corner of his premises with the point of the tongue. If it should have been a curved line, so far conforming to the interior configuration of the cove as to allow the plaintiffs also to fill in to a continuation of it, it would have been also removed from the upland which belongs to them. Further than this we express no opinion as to the proper limits of the wharfage right of either party. [38] That that of the plaintiffs had never been exercised, did not impair or abridge it. It was in its nature a continuing one to be put to use at their own convenience, as and when their interests might require. For any act which directly tended to obstruct its full enjoyment, whenever, in the future, they might see fit to exercise it, they were entitled to bring immediate suit. An action in the nature of ejectment will also lie by a riparian proprietor to recover possession of what had been unreclaimed tide-water flats adjacent to his land, upon which the owner of the adjoining land has wrongfully, though under a claim of right, constructed a wharf. Nichols v. Lewis, 15 Conn. 137, 143; Ladies’ Seamen’s Friend Society v. Halstead, 58 id. 145, 152. In such a case, the wharf, as soon as it is built, becomes by accretion the property of him who alone had the right to build it; the flats upon which the filling rests being turned into real estate, the title to which follows the franchise. These principles were correctly applied by the Superior Court to the case at bar. The defendant, by filling up the flats immediately adjacent to the plaintiffs’ upland, which were the subject of their riparian rights and franchise, converted the shore of the river within the cove, north of a line connecting the point of the tongue at its entrance with the northwest corner of his own upland, into real estate. He thus did what only the plaintiffs could lawfully do, and the land so made became an accession to their land, precisely as if they had made it. We have no occasion to inquire whether they had a right to claim a mandatory injunction to prevent him from continuing to maintain his filling on these flats, for they do not complain of the denial of an equitable remedy. The substantial point in controversy was whether they had a riparian franchise or other rights with respect to their tide-water frontage upon the cove, which the defendant violated; and as to this, the decision of the court below is supported by a long series of judicial precedents. Each party had a certain right to reclaim the flats which adjoined his premises. It was one to be exercised with due [39] regard to the like rights held by others. Its limits were to be determined by the simple rule, sic utere tuo, ut alienum non laedas. Simons v. French, 25 Conn. 346, 354; State v. Sargent & Co., 45 id. 358, 375; Morris v. Beardsley, 54 id. 338, 341; Lowndes v. Wicks, 69 id. 15, 29. This unerring test of human conduct forbade the defendant, on the strength of his ownership of the land opposite to the mouth of the cove and the channel of the river, to fill out to that channel in such • a way as to blot the whole cove out of existence. It also precluded his gaining title by reclamation to the shore immediately contiguous to the plaintiffs’ land. It is unnecessary to determine whether anything which he did was justified by his franchise. Everything which he did certainly was not, and it is enough to sustain the judgment appealed from that the plaintiffs had any riparian rights, either in the shore or in the water of the cove, for these were necessarily invaded by the defendant’s filling up to high-water mark against their land, and neither party complains of the amount of the damages assessed against him. There is no error. In this opinion the other judges concurred.