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conditions they are to be allowed by law.' Where the legislature created a corporation, and empowered it to erect, repair, and rebuild a mill-dam on their own land across the head of a harbor, with floodgates thereto, so as to admit the passage of gondolas and boats at high water; it was held, that the corporation might erect their dam across the head of the harbor, although it might not only be below high-water mark, but across a part of the channel where the tide ebbs and flows; and that the corporation were not liable for any injury suffered by an individual, by altering the flux and reflux of the tide. The words "on their own land," in the act, were not intended, it was held, to fix the place of building, but were intended merely to exclude any inference that the legislature designed to authorize the corporation to take the land of others for that purpose.

The proprietors of Dighton bridge in Massachusetts, are bound by their charter to raise the draw of the bridge for the passage of loaded lighters, if the masts cannot, with convenience, be taken down, and without delaying their passage.3

Where the legislature authorized an individual to build a bridge over navigable water, with a draw not less than fifteen feet wide, it was held, that he was not bound to make the draw wider than that num

1 Commonwealth v. Breed, 4 Pick. (Mass.) R. 460. Parker v. Cutler Mill Dam Corp. 2 App. (Me.) R. 355. Hood v. Dighton Bridge, 3 Mass. R. 263.

ber of feet, although vessels of a greater breadth had been accustomed to sail in such waters; nor to make a wharf or pier to the draw, - -a wharf or pier not being an essential part of a draw.1

Where a charter for a bridge allowed three years for the completion of it, and prescribed, that it should be built with a draw and piers, and the corporation constructed the bridge, and received toll for more than a year, they were held to be indictable for neglect in not building piers, though the three years had not elapsed.2

Where the legislature authorized the building of a bridge "either solid or on piles, leaving sufficient passages for the water," as certain commissioners might deem necessary, and a bridge was built, by direction of those commissioners, two thirds of the length of which was solid, and the other third over the channel and deeper parts of the stream, was on piles; and scows, gondolas, boats and vessels without masts, or with movable masts, could and did advantageously pass under the bridge; it was held, that the stream had not ceased to be navigable, and that the county commissioners had derived no authority to lay out a highway over it.3

' Commonwealth v. Breed, 4 Pick. (Mass.) R. 460.

2 Commonwealth v. Newburyport Bridge, 9 Pick. (Mass.) R. 142. But held in this case, that an indictment which merely alleged, that the corporation had neglected to build piers at the draw, was defective, for want of a direct averment that a bridge had been built.

3 In. of Charlestown v. County Commissioners, 3 Met. (Mass.) R. 202.

It would seem agreeable to well established principles, that the legislature have at all times, as the guardian of the public interests, the right of regulating draws, and prescribing for what kind of vessels they shall afford a passage. The charter of a bridge company conferred the right of collecting certain tolls for seventy years, and provided that the bridge should have a draw of a certain width for the admission of vessels, and that the company, during the seventy years, should keep the bridge in repair, subject to the inspection of the legislature, and that the grant should not operate to injure the property of individuals. At the end of twenty-four years subsequent to the grant, the legislature by an act, directed the company to open the draw for the passage of any vessel, on a prescribed notice, without expense to the owner, under a penalty. This act, it was held, was not a violation of the rights of the company under their charter.1

In respect to the construction of a grant to build a bridge in its effect upon the private property of riparian proprietors, it has been expressly adjudged, that a charter authorizing the erection of a toll-bridge from one point to another across a river, confers upon the grantees no right to take the land of a riparian proprietor for the purpose of a toll-house at the side of the bridge; and that it gives nothing more than

1 New Haven, &c. Toll Bridge Co. v. Bunnel, 4 Conn. R. 54.

an easement in the land on which the bridge is constructed.1

2

All obstructions to navigation, whether by bridges, or in any other manner, without direct authority from the legislature, are public nuisances. Lord Hale, in his treatise de portibus Maris, notices the several nuisances which may be committed to ports as follows: tilting or choaking up the port by sinking vessels, throwing out filth or trash; decays of wharves, piers, or keys; leaving anchors without buoys; building new wears or enhancing old; the straitening of the port by building too far into the water; impeding the mooring of ships in the ground adjacent, if it has been anciently used without paying any thing for it; the towing or hauling of vessels up or down a river or creek to or from a port town; and the suffering a port or public passage to be filled or stopped, is a nuisance in those who are bound to repair it.3

The ancient colonial ordinance of Massachusetts of 1641, was made with an especial regard to free and uninterrupted navigation; for, although by it, the property of the shore and of the flats to the extent of one hundred rods, was transferred to the proprietor of the adjoining land, in order that he might build wharves towards the sea that distance,

1

Thompson v. Androscoggin Bridge, 5 Greenl. (Me.) R. 62.

2 See Brackelsbank v. Smith, 2 Burr. R. 656.

3 See also Russell on Crimes, 485.

yet it was intended that he should not thereby so straiten and interrupt the passage over the water as to constitute at common law a public nuisance.' The acts of assembly of Pennsylvania have recognized the right of the owner of the land bounding on the space between high and low-water mark to erect wharves down to low-water mark, but before this is done, the flats, when covered by water, may be passed over by boats and rafts. In an action of trespass for tearing away a bridge, the only claim which the plaintiff had to erect and continue the bridge, was its antiquity and the laying out of a road over the river; but neither of these facts, in the opinion of the court, sanctioned the obstruction of the river, so as to prevent those who had occasion to transport vessels up and down the river, from removing it, if necessary to a safe and convenient passage. A public highway cannot be laid out across a navigable stream (without authority from the legislature), because it destroys an existing highway- the river itself in which all the citizens have an interest.1 No evidence can be offered to prove that a wharf is beneficial to the public, and is therefore not to be regarded as a nuisance. To construct and moor a

5

1 Commonwealth v. Charlestown, 1 Pick. (Mass.) R. 180; Keen v. Stetson, 5 Ib. 492; Cutler v. Parker Mill Dam Corp. 533. Post, Ch. VII.

2 Ball v. Slack, 2 Whart. (Penn.) R. 508.

Arundel v. McCulloch, 10 Mass. R. 70.
Keen v. Stetson, ub. sup.

Respublica v. Caldwell, 1 Dallas, R. 150.

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