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to the same, be dug up, demolished and abated, at the expense of them the said William Wright and Abraham A. Dame; and that a warrant issue to the sheriff of the county of Suffolk, to cause the said wharf, with all the piers and timbers, and materials, under and belonging to the same, forthwith to be dug up, demolished, and abated ; and to levy the expenses thereof
upon the money, goods, chattels or estates of the saidilliam W Wright and Abraham A. Dame, of them or of either of them; and for want thereof, upon their several bodies; all which is according to law.""
In the court of oyer and terminer at Philadelphia, in the year 1783, there was an indictment for a nuisance in erecting a wharf upon the public property. . The defendant offered witnesses to prove, that the erection of the wharf had been beneficial to the public, and therefore was not to be considered a nui
The court held this to be no justification.' In the year 1796, an individual was charged with obstructing, by a wharf, a navigable river, and it appeared, that a part of the wharf was below low-water mark. He contended, that although his wharf extended thus far, it was no obstruction to the navigation, and no injury to the public; and that, as the channel alleged to be obstructed, only led into a small dock, enclosed with wharves of private persons,
Respublica v. Caldwell, i Dallas, R. 150.
the injury complained of, if any, could only be the ground of a civil action. The court held, that it was no obstruction, provided a sufficient passage-way was left for the public. The jury had a view, and being satisfied that there was not a sufficient passage-way left for the public, their verdict was against the defendant as to a small part of the wharf which was in the channel.1
Though by the colonial ordinance of Massachusetts of 1611,' a riparian proprietor holds the lowwater mark, to the distance of one hundred rods from high-water mark, the right given was a qualified right to use the interest granted in such a manner as not to interrupt the rights of the public as secured by the ordinance; and the right of navigation was expressly reserved by the ordinance. The erection of a wharf below low-water mark, without authority from the legislature, gives the builder no possession, and no color of title beyond the limits of the land under water actually covered by the wharf, and does not draw after it any exclusive right to the use of the open space by the side of it, for the purposes of a dock, by way of easement as appurtenant to the wharf. Such open space, below low-water mark, being a public domain, the use of it by the builder of the wharf for the purposes of a dock, with the acquiescence of any individual, does not establish an easement as against such individual.
1 Commonwealth v. Crowninshield, contained in 2 Dane's Abr. 697. ? Anc. Chart. 148. 3 Parker v. Cutler, Milldam Corp. 2 App. (Me.) R. 357.
The first settlements in this country were on harbors or arms of the sea, and commerce being among the earliest objects of the attention of the first emigrants, wharves for the purposes of that pursuit were necessary. Accordingly, as the colony of Massachusetts was not able to erect them at the public expense, in order to induce individuals to do so, the common law of England was altered by the ordinance of 1641 above mentioned, providing, that the proprietor adjoining on the sea or salt water, shall hold to low-water mark, where the tide does not ebb more than one hundred rods from high-water mark, but not more where the tide ebbs to a greater distance. Although this ordinance was annulled with the charter by the authority of which it was made, yet from that time to the present an usage has prevailed, which now has the force of a local common law, that the owner of land bounded on the sea or salt water shall hold to low-water mark as provided by the terms of the ordinance. This usage applies to the shores of the sea, as well as to “creeks and
Gray v. Bartlett, 20 Pick. (Mass.) R. 186. 2 Storer v. Freeman, 6 Mass. R. 435. 3 lb. and Sale v. Pratt, 19 Pick. (Mass.) R. 191.
" and it has ever been held, that although the public have a right to pass and repass on the waters, so long as the owner of the adjoining land suffers them to remain open and unobstructed, yet the owner of the adjoining land may, whenever he pleases, enclose, build and obstruct to low-water mark, and exclude all mankind. The ordinance never extended to the colony of Plymouth, as positive law, but it is nevertheless a settled rule of property throughout the state of Massachusetts. A usage for two centuries, uniform and unbroken, must be taken as sufficient evidence, it has been held, that the terms of the ordinance of 1641 was adopted by those who had the right and power of establishing it, in such form as to give it the force and effect of a rule of law. The ordinance has been recognized both in Plymouth colony and in Maine, not as a point adjudicated, because never called in question, but because it has been assumed and acted upon as a settled rule.
Under this ordinance and usage, it is “the ebb of the tide, when, from natural causes, it ebbs the lowest, and not the average or common tide, which
Austin v. Carter, 1 Mass. R. 231; Commonwealth v. Charlestown, 1 Pick. (Mass.) 180; Barker v. Bates, 19 Ib. 255.
2 Storer v. Freeman, 6 Mass. R. 435; Parker v. Smith, 17 Ib. 413 ; Barker v. Bates, 13 Pick. (Mass.) R. 255; Mayhew v. Norton, 17 Ib. 357 ; Lapish v. Bangor Bank, 8 Greenl. (Me.) R. 85 ; Emerson v. Taylor, 9 Ib. 43 ; Moore v. Griffin, 9 Shep. (Me.) R. 350.
is to be taken as low-water mark."1 If the tide does not ebb entirely from a creek, it is a boundary beyond which the owner of the flats, as the riparian owner, cannot recover. The flats will pass agreeably to the terms of the ordinance by a conveyance of a wharf and its appurtenances ; : and if in a deed of conveyance of the upland, it be bounded by a “harbor” (as “the harbor of Edgartown") that phrase is necessarily as extensive as if the grantor had bounded by the sea, or salt water, or low-water mark, for the harbor includes not only the land covered by the sea below low-water mark, but also the land or flats where the tide ebbs and flows between high-water mark and low-water mark." A proprietary grant in 1680 of " a piece of land below high-water mark, to set a shop upon, not exceeding forty feet in width,” was construed to extend to low-water mark.5 The settlers of land in Bangor, who, by a resolve of 1801, were to be quieted in their possessions of a hundred acres each, whose lands adjoined the river, are entitled to the flats lying in front of their respective lots, notwithstanding the full complement of a hundred acres
| Sparhawk v. Bullard, 1 Met. (Mass.) R. 95; and see Storer v. Freeman, sup.
Sparhawk, &c. sup. : Doane v. Broad Street Association, 6 Mass. R. 332 ; Sparhawk, &c. sup.; Ashby v. Eastern R. Ro. Co. 5 Met. (Mass.) R. 368.
4 Mayhew v. Norton, 17 Pick. (Mass.) R. 355, * Adams v. Frothingham, 3 Mass. R. 352.