State v. Franklin Falls Co.

* Smith, J. Some facts, material to a decision of this case, though oniitted in the agreed statement, are not understood to be in controversy. The Winnipiseogee river is the outlet of Lake Winnipiseogee. About sixteen miles from the lake it joins the Pemigewasset river, and the two united form the Merrimack river, which flows in a southerly course through New Hampshire to Massachusetts, and in a winding course through Massachusetts to the sea. The' Winnipiseogee river is above the ebb and flow of the tide, and is not used for purposes of navigation. † The Merrimack, within New — 250 — Hampshire, is not a tidal river. Lake Winnipiseogee is of such an irregular shape, that it is not easy to calculate its area. Its greatest length is about twenty-five miles; the width varies from one to ten. The lake is considei-ably used for purposes of navigation. Before the establishment in the Winnipiseogee and Merrimack rivers of dams without fish-ways, shad were accustomed to pass to and fro between the sea and the lake, ascending to their breeding grounds and descending thence to the sea. These migratory fish are not now found in the lake. It is extremely difficult, if not impossible, for them to ascend the river while obstructed by dams without fisli-ways. Was the maintenance of the darns, thus obstructing the passage of the fish, a criminal offence at common law? If it be admitted that the right of fishing in the Winnipiseogee river belongs exclusively to the riparian propritors, and that the wrong done to one of these riparian proprietors by the act of another in obstructing the passage of fish is not of the nature which the law will redress by a criminal prosecution, it does not follow that the obstructions now complained of are not criminal. The riparian proprietors are not the only persons injured. The right of fishing in the lake is not limited to the proprietors of the shores, but is common to all citizens of the state, just as much as the fishery in the tide waters of the Piscataqua. “In this country, our great navigable lakes are properly regarded as public property, and not susceptible of private property more than the sea.” 3 Kent’s Com. 429, note b; West Roxbury v. Stoddard, 7 Allen 158; State v. Gilmanton, 9 N. H. 461. The obstruction of this public right of fishing is a public nuisance, punishable at common law by indictment. If the tide waters of the Merrimack were within the limits of this state, it might be necessary to consider whether the dams do not obstruct another public right; the fishery in the tidal part of the river. If the effect of a barrier at a point between the tidal limits and the upper breeding grounds is to diminish and to gradually annihilate the stock of migratory fish in the tidal part of the river, it might be urged that the effects of the barrier ‘ ‘ extend into the area of the water used by and in the hands of the public.” This' subject is discussed in the judgment of the English fishery commissoners, reported in Leconfield v. Lonsdale, L. R., 5 Com. Pleas, 657, page 663-666 ; but no opinion need be given on it here. If the fishery statutes in force some sixty years ago superseded, for the time being, the common law, the repeal of those statutes in 1823 and 1831 revived the common law; see 1 Kent’s Com. 465-6. Section 28 of chap. 1 R. S. not having been enacted till after the repeal in 1831, does not affect the question. The repealing acts of 1823 and 1831 have not “the force of a positive grant,” as contended by respondents, but merely leave the rights and liabilities of alhparti.es where they were before the statutes thus repealed were first enacted. Whether in any event the repeal of a prohibitory law ipso facto confers a license, irrevocable by the state, is a question which it is not now necessary to decide. — 251 — If the maintenance of the dams constituted a criminal offence at common law, the recent statutes (G. S. chap. 251 sec. 20; Laws of 1868, chap. 1 sec’s 57, 62) would be clearly constitutional, merely enforcing a common law liability. If the Merrimack river is obstructed in Massachusetts by dams without fish-ways, that fact does not necessarily confer impunity upon the respondents. New Hampshire has the right to punish acts committed within its limits, which, alone and of themselves, are sufficient to cause a public nuisance, although similar acts are clone in Massachusetts which would cause the same result in New Hampshire, if no acts whatever had been done in New Hampshire. Upon any other theory public rights in rivers extending through two states, might be utterly destroyed without remedy in either jurisdiction. We are not, however, to assume the existence of such obstructions in Massachusetts, in the face of the statement in sec. 57 of chap. 1, Laws of 1868, that fish-ways have been erected “over the dams on the Merrimack river, below the boundary of this state.” It appears that throe of the clams were maintained in their present condition more than twenty years prior to the enactment of chap. 2622, Laws of 1862 ; and it is claimed that the owners thereby acquired a'prescriptive right against the public. If this claim is well founded, the provisions of the General Statutes and of the Laws of 1868, so far as they relate to these three clams, are unconstitutional. These statutes cannot be supported as an exercise of the right of eminent domain, because no compensation is provided for the property-owners although the value of the property may be materially diminished by the enforcement of the statutes. The only other ground on wdiich they can be plausibly supported is the police power of the state. (See 2 Kent’s Com. 9th Ed. 420-421.) This power is often properly exercised in a manner very prejudicial to individual property owners, and its limits are not easy to define ; but we think it does not extend to a case like the present. If it be admitted that the right of the state to regulate the mode of enjoying or using property, may in some cases be legally exercised in such a manner as to practically prohibit the use of the property for any purpose beneficial to the owner, (see Coates v. Mayor of Mew York, 7 Cow. 585) still this right of regulation, like the right of eminent domain, is not to be exercised on all occasions. The restoration to the public of the shad fishery in the lake, has not such a direct relation to the public health as the prohibition of interments within city limits; nor the same direct relation to the public safety as the prohibition of the erection of wooden buildings in the midst of a populous village. The obstructions in the river, do not cause positive annoyance or damage to the public. The injury is negative in its character. The indirect benefits to the public health, or to the means of support, do not seem to warrant the legislature in depriving the respondents of valuable rights without compensation. Any rights which the respondents may have acquired by prescription, are as much their property as any other property they possess. — 252 — This view renders it necessary to decide, whether the respondents could, by twenty years’ adverse user, acquire a right against the state. The legislature has fixed on twenty year’s as the proper time of limitations for bringing actions to recover real estate. By analogy to the rule, that twenty years’ adverse possession gives a title to real estate, the courts have held that adverse user, for the same length of time, is sufficient to give title to an easement belonging to real estate. Wallace v. Fletcher, 30 N. H. 434, p. 447. The rule of law on this subject is evidently based, iu part, upon the presumption that the average of mankind will seek to enforce their private rights, if they really have any, before the expiration of twenty years, and that few persons will loose valuable rights by the adoption of this period of limitation. Experience does not justify the presumption that the community at large will assert their public rights, with the same promptness with which individuals assert their private rights. The opposite is notoriously true. “ Individuals may reasonably be held to a limited period to adverse occupants, because they have interest sufficient to make them vigilant. But, in public rights of property, each individual feels but a slight interest, and rather tolerates even a manifest encroachment, than seeks a dispute to set it right.” Sargent J., in Com v. Alburger, 1 Wharton, 469, says, “In private nuisances and civil actions, presumptions of grant from length of time may be rebutted by proof that the enjoyment was acquiesced in, not by the owner of the inheritance, but by one who possessed a temporary interest only; such a tenant for life or years, whose negligence or laches cannot be allowed to prejudice the owner of the inheritance. * * * * How much less, then, ought the acquiescence of the neighbors in a public nuisance affect the public right?” Duncan, J., in Com. v. M'Donald, 16 Sergent & Rawle, 390, p. 400. The state is impersonal. “ The people do not, and cannot legally, act in a body.” Their power must of necessity be exercised only through agents. It cannot be expected that these agents will manifest the same vigilance in detecting and resisting encroachments on public interests, that individuals evince in the protection of their private rights. Moreover, the state officials are generally few in number and fully occupied with the regular routine of official duties. They do not generally institute proceedings to punish violations of the laws, except at the instigation of individuals. It may be doubted whether these officers are ever aware of a very large pi’oportion of the infringements on the rights of the state. It has been thought by some that the maxim, “ nullum tempus occurrit regí,” is an oxxtgrowth of monax’chical despotisxn, and, therefore, inapplicable xuxder our republican form of government. But, whatever may have.been its origin, this maxim has now for a long time-been maintained as a part of the common law, not for the personal convenience of the sovereign, but “ for the security and benefit of the people.” The true reason of the maxim, according to Judge Story, “is to be found in the great public policy of preserving — 253 — the public rights, revenues, and property from injury and loss, by the negligence of public officers. And though this is sometimes called a prerogative right, it is, in fact, nothing more than a reservation or exception, introduced for the public benefit, and equally applicable to all governments.” U. S. v. Hoar, 2 Mason, 311, p. 313-4; see, also, Parker Baron, Hardres, p. 27, Weston, J., in Willion v. Berkley, Plowden, 223, p. 242-3 ; Co. Litt. 90, b. “ All the reasons in support of this rule in the case of a king, apply with greater force here, where the people are the sovereign.” The maxim in question is not a part of the common law “ repugnant to the rights and liberties contained in the constitution of New Hampshire ;” and may well be held to “ remain in force here ;” constitution of N. H. article 90. It seems, however, unnecessary to decide in the present case, whether the maxim, “ nullum temjpus occurrit regi,” in its strict literal meaning, is a part of the common law of New Hampshire. For the question here is not, whether the public right can be barred by adverse user for an indefinite length of time, extending back so far that its origin cannot be certainly known; but, whether an adverse user which begun within the memory ot persons now living, and which clearly has existed without right, shall bar the public. If it be admitted that lapse of time will, if sufficiently extended, bar the public right, or authorize a presumption of a grant from the state, the question still remains whether a longer lapse of time is not necessary to accomplish this than is considered sufficient to bar the rights of private persons. See 1 Green, on Ev., sec. 45. The position that a jury might in this case from long user be authorized to presume a grant from the state, may be answered in the emphatic language of Duncan, J., in Com. v. M’Donald, 16 Sargent & Rawle 390, p. 400: “ To presume a grant, would be presumption run mad, it would be against the positive proof in the case.” There is no room for presumption where the defendant’s title is shown and proves insufficient to justify his encroachment on the public right; see Sargent, J., in Com. v. Alburger, 1 Wharton 469. If the public right is held to be barred in this case, it must be by mere lapse of time, without any other circumstances to justify a presumption of a grant, and against evidence that no grant ever was made. We are aware, that it has been held in this state, that the exercise of the corporate powers of a town, under a claim of right, for the period of twenty years, without interruption and with the assent of the state government, furnishes a conclusive presumption of a grant of a charter from the state. Bow v. Allenstown, 34 N. H. 351. Without laying stress on the fact that, in Bow v. Allenstown, the state did not appear and question the right of Allenstown, it is apparent that there are at least two marked distinctions between that case and the present. First, it was a'material fact in Bow v. Allenstown that some of the acts were done with the assent of the state government. It appears that statutes had been enacted by the leg — 254 — islature, “incidentally recognizing the town of Allenstown as a town.” See Bell, J., 34 N. H. 370 ; Upham, J., in New Boston v. Dunbarton, 12 N. H. 409, 412. Secondly, there is a fundamental difference between the act of the state presumed in Bow v. Allenstown, and the act sought to be presumed here. The grant of a to wn charter is not an act presumptively prejudicial to the public, like the grant of a right to obstruct a public fishery. In the present case the obstruction was, at the outset, a public nuisance, and it is so still, unless mere lapse of time has transformed a criminal act into an indefeasible right. We do not now decide that adverse user, whose origin is involved in obscurity, and which has continued for a great length of time, will in no case bar a public right. We simply decide that an adverse user, which is known to have originated without right within the memory of persons now living, will not alone and of itself, legitimate a public nuisance, or bar the public of their rights. This view is supported by what we regard as a decided preponderance of direct authority in England,—Fowler v. Sanders, Cro. Jac. 446; Folkes v. Chad, 3 Douglas 340; Ellenborough, C. J., in Weld v. Hornby, 7 East, 195, p. 199 ; Rex v. Cross, 3 Campb. 224; Vooght v. Winch, 2 Barn. & Ald. 662,—and also in this country; Knox v. Chaloner, 42 Maine, 150 ; Stoughton v. Baker, 4 Mass. 522 ; Com. v. Upton, 6 Gray, 473; Simmons v. Cornell, 1 B. I. 519 ; Mills v. Hall, 9 Wend. 315 ; Renwick v. Morris, 3 Hill, 621; S. C. 7 Hill 575 ; People v. Cunningham, 1 Denio 524; Phil. Wilm. & Balt. R. R. Co. v. State, 20 Maryland 157; Com. v. M’Donald, 16 Sergent & Bawle, 390 ; Com. v. Alburger, 1 Wharton 469 ; see, also, Phipps v. State, 7 Blackford, Ind. 512; State v. Phipps, 4 Ind. 515 ; Elkins v. State, 2 Humph. 543. It is also strongly supported by the established doctrine that the state cannot be disseized (see Kent, C. J., in Jackson v. Winslow, 2 Johns. 80, p. 83 ; Cary v. Whitney, 48 Me. 516 ; 2 Wash. on Real Property, 1st Ed. 525) ; and by the well-settled principle that the state is not bound by general statute of limitations, unless expressly named therein. (See People v. Gilbert, 18 John. 227 ; and U. S. v. Hoar, 2 Mason 311.) Some of the cases which may seem opposed to this view aro not well considered, and others are distinguishable from the case at bar. Rex v. Samuel Neville, Peake 93, note, and Rex v. Bartholomew Neville, are nisi prius rulings of Lord Kenyon; Rex v. Smith, 4 Esp. 111, is a nisi prius ruling of Lord Ellenborough; and, if in point, must be regarded as overruled by the nisi prius decision of the same judge, in Rex v. Cross, 3 Camp. 224; see, also, Lord Ellenborough, in Weld v. Hornby, 7 East 195, p. 199. In Johnson v. Ireland, 11 East, 280, if we understand the case aright, the user had continued upwards of one hundred and fifty years, and there was evidence of acts of. the government tending to support the theory that there had been an enfranchisement by the crown. We do not — 255 — regard the facts in Hillary v. Waller, 12 Ves. 239, as raising the question here presented; and we consider Lord Erskine’s remarks, on p. 2(55-6, merely as dieta. The decision in Chad v. Tilsed, 2 Brod. & Bingh. 403, ivas not understood by the judges who pronounced it as conflicting with the' decision in Vooght v. Winch, 2 B. & Ald. 662,—see the express statement of Park, J., 2 B. & B. p. 407,—nor as establishing the doctrine that forty years’ usage can destroy an admitted public right. Rex v. Montague, 4 Barn & Cress. 598, if viewed in the light most favorable to the respondents in this case, goes no farther than this, that the court may in some instances presume that one public right has been extinguished in favor of a conflicting public right (see the comment of Walworth, Chancellor, in Renwick v. Morris, 7 Hill 575, p. 576). The question arose between a public road and a creek claimed to have once been navigable. The road had existed a long time; there was no direct evidence that the creek was navigable at the time the road was made, and all the members of the court in banc seem to have thought that upon the evidence there was no proof that a public right of navigation ever existed ; although they also gave their opinions as to the presumption of extinguishment, supposing the right to have existed. In that case, Littledale, J., said, p. 605 : “ I am not disposed to act upon the presumption, either of an act of parliament, or a writ of ad quod damnum, or proceedings byyiommissioners of sewers, unless there be some evidence to warrant that presumption.” Elliotson v. Fectham, 2 Bingh. N. C. 134, and Bliss v. Hall, 4 Bingh. N. C. 183, are not in point; and if the opinions contained any remarks favorable to the respondents, they are merely dicta. In Com’rs of Georgetown v. Taylor, 2 Bay. S. C. 282, there was no proof which satisfied the court that the locus in quo had ever been a public highway, the court saying, “ it is essential to constitute a highway, that it should not only be actually laid off but used as such;” there was no evidence of laying off or user. In Beardslee v. French, 7 Conn. 125, the only evidence introduced on the trial to prove the existence of the highway was a record of laying out ninety years before, which record was in the court above, held to be fatally defective. On the trial, plaintiff offered to prove that ever since the laying out bars, had been constantly kept up by plaintiff’s grantors at the place whore defendants took them clown. lu deciding that this evidence should have been received, Hoser, C. J., made the remarks quoted in 42 M. 332-3. In Fox v. Hart, 11 Ohio 414, the court said it was not necessary to decide “whether the maxim, ‘■'■nullum tempus occurrit regi” is applicable or not to a highway; Birchard, J., p. 416. In that case a road was laid out in 1794, but only a part of the width was opened or used till 1838, when the supervisor opened the whole width on land claimed by plaintiff. The court said that the right to a highway might.be lost by non-user, that “the law would raise a presumption of an extinguishment of the right, when the road had been aban — 256 — cloued for a long periodbut they held, that in that instance there was nothing to authorize the presumption» of abandonment. In Knight v. Heaton, 22 Vt. 480, the disputed tract was within the limits of the highway as laid out; but we do not understand that it had been opened or used as pai*t of the highway. The language of the court certainly tends strongly to sustain the respondents here, but the decision may have been in a considerable degree induced by the legislation referred to in the close of the opinion by Redfield, J., in the following terms: “The sense of the legislature upon this subject is sufficiently indicated by a recent statute, by which it is expressly provided, that, in such cases as the present, the proprietor or occupier of land for twenty years, which was originally a portion of the highway when the same is again reclaimed by the public, shall be entitled to compensation, the same as in other cases. The statute of limitations now in express terms providing that the state shall not be exempt from its operation, we see no good reason, why one may not set up prescriptive and presumptive rights against the public, the same as against individuals. And there is perhaps no good reason, why such prescriptions should not apply as well against the public as in their favor.” In Rowan's Ex’r v. Town of Portland, 8 B. Monroe 232, the question of adverse user does not seem to have received very full consideration, other points being discussed at greater length. Neither the decision in that case, nor the language used in Alves v. Henderson, 16 B. Monroe 131, seem entitled to outweigh the authorities adverse to the views there advanced. This subject has been discussed here at considerable length, in consequence of the apparent conflict between the result now arrived at and the decision in Webber v. Chapman, 42 N. H. 326. In that case, there was no evidence except user of the existence of the alleged-public right; and the court expressly said that it was not called upon to decide that a twenty years’ continuance of a public nuisance, admitted to be such, would give the individual any rights as against the public. That case may, perhaps, be further distinguished from this, on the ground that the public right there under consideration is one which numerous public officers are annually appointed to preserve and protect; whereas the right of fishery has, till recently, been left very much to take care of itself. Moreover, the public highways can in general be obstructed only by some physical obstacle erected in the highway itself, but a public fishery may be obstructed, “ not merely by things done within the area of the public fishery, but by something done beyond the area, in private waters communicating with such area.” The inference to be drawn from adverse user in the former case may be stronger than in the latter. ¥e might often decline to re-examine a question which had recently been decided by this court. In the present instance, however, if the decision in Webber v. Chapman, is regarded as in point, there is a special reason which seems to justify us in re-examining-the — 257 — question. The next year after that decision, the legislature * enacted a statute (laws of 1862, chap. 2622), which established from that time forward exactly the opposite rule to that promulgated iu Webber v. Chapman. On so important a topic, it has been found quite embarrassing in practice to apply one rule up to 1862, and the contrary rule after that date. Under these circumstances, we do not feel bound to adhere to the former decision, if upon examination it is found to be opposed to reason, and to the weight of authority, as well as to “ the spirit of our legislation.” The justice who delivered the opinion of the court in Webber v. Chapman, concurs in this decision. For the purpose of allowing the respondents an opportunity to try questions of fact, the order is Case discharged. Footnotes [*] Bellows, C. J., Nesmith, J. and Foster, J., did not sit.