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wharf has caused a prejudice to the channel, by giving a new and more southern direction to the current.

“ He has argued, that although it may be convenient, in some cases, for vessels passing this wharf, to make use of it, for towing and warping by it, so as to approach the draw of the bridge in that way; yet, that no such right as that of towing exists; and that the defendants may exclude individuals from making that use of it.

“ I am of the opinion, as to this point, that if an individual erects a wharf upon the highway, he cannot exclude any of the citizens from going upon it, and using it, as if it were in its natural state. The improvements made upon it by individuals, do not change it from public to private property. But I do not consider, that the citizens may freely, and without the consent of the proprietor, enter upon a wharf which is erected within the line of low water, for the purpose of towing their vessels, or for any other. In such case, the proprietor would have a right to insist on compensation for the use made of his estate ; but one, who has intruded upon the public highway, may not only not claim any compensation for such use made of his improvement, but any citizen may rightfully abate the encroachment, and the officer of the government may enter upon it, and reinstate the public in its rights.

" That you may settle the facts in this case with

intelligence, you must examine impartially the testimony of the witnesses on both sides. They are numerous, thirty-five having been examined for the defendants, and thirteen for the commonwealth. It is your peculiar province to decide, whether they were honest, intelligent and independent witnesses ; to compare the degree of knowledge which they severally possess; and to ascertain whether it was the fruit of experience and observation, or derived from the information of others.

• The witnesses, on both sides, consist of masters of coasting vessels and lightermen, who have navigated this channel, and of experienced navigators and pilots, and of other citizens, who have done business in the vicinity of the wharf, or whose course of duty has called them frequently to that quarter. Most of them are acquainted with the harbor, and qualified to form a judicious opinion of the effect of this wharf upon the southern channel.

“ Here the judge, after referring to the length of time which the trial had occupied and to the several adjournments which had occurred, read the testimony of each of the witnesses from his minutes, the counsel on both sides comparing it with their own.

“ Now it may undoubtedly be true, that this wharf may occasionally have been useful to vessels passing through the channel in that quarter, and yet, if all the purposes for navigating vessels there, can be effected by a buoy, which is moveable, and causes no obstruction, then the necessity for this permanent wharf thrown into the channel is removed, and it will cease to be a benefit.

“ If the effect of building a wharf into the channel will be, in the course of time, to injure and destroy the channel here, by lessening the depth of the water, or by giving a new and injurious course to the current; and if such injurious effects will in your opinion exceed the benefit to navigation, you must, in that case, declare it to be a common nuisance.

- If the defendants have left it doubtful in your minds, whether this structure is a decided benefit to the navigation, they have failed in their defence.

“ Finally, you are witnesses sworn to decide what you believe to be true from all the testimony; and you are to apply to the case a sound and impartial judgment, not failing to exercise that common sense, which is the effect of your own experience in such matters, and without which the deepest research into books will fail of the truth. But as it is not to be expected, that in a case of so much interest, and which has led into such a field both of fact and argument, difference of opinion may not exist; you will permit me to add, that as you have exercised so much patience towards the parties, it is most reasonable that you should, in your deliberations, exercise like patience towards each other; and so, I doubt not, you will come to a united and just result.

Verdict. The jury find the defendants guilty, and declare so much of said wharf a nuisance as is contained in a triangular piece marked upon the plan, beginning at the southeast angle, and running fifty feet westerly, and from thence to the northeast angle, of said wharf; and not guilty as to the residue.

Municipal Court, February Term, 1830. Wednesday, February 10th. The defendants appeared in court, on this day, by order, and expressed their readiness to submit to the sentence of the court, without appealing from the judgment to the supreme judicial court, as by law they might. The judge informed them, that it must be part of the judgment, that the nuisance should be ordered to be abated at their expense. They then stated, that it would be attended with great difficulty and expense to remove the wharf. It was built on piers driven into the bottom of the channel, all of which must be drawn up, both for the safety of the channel, and for the good of that portion of the wharf, which would remain. They further said, that it had not appeared in the course of the trial, that

any

objection was made while the wharf was building, either on the part of the city, or of the commonwealth, to the same; and they denied, that any objection had been made to it by any one else. In consideration of their readiness not further to contend in law, they prayed that the court would not subject them to a fine, which would be oppressive in its amount.

“ The judge said, that from the information which he had received, he was satisfied, that it would be a difficult and expensive operation, to draw up the piers and piles, and that it would require much time. He presumed it would cost several hundred dollars. It was not usual in these cases, to assess a severe fine, in nature of a vindictive punishment, where the parties submitted to the judgment, and were willing that the nuisance should be abated. He should therefore assess a nominal fine only, and a warrant would be issued to the sheriff of the county to cause the nuisance to be removed; but as this could not be done advantageously till the warm season, the warrant would be made returnable on the first of July next.

“The following judgment was then entered.

“Whereupon it is considered by the court that they, the said William Wright and Abraham A. Dame, do, for the offence of which they have been convicted, severally pay a fine of twenty dollars, to the use of the commonwealth, to be disposed of according to law; that they pay the costs of this prosecution, taxed at seventy-six dollars and eighty-four cents, and stand committed, until they shall comply with this sentence.

666 And it is further ordered by the court, that so much of the said wharf, as is found in and by the verdict of the jury to be a nuisance, with all the piers and timbers under, and the materials belonging

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