Curtis v. Fay.

material evidence in favor of the plaintiff. After the plaintiff rested, the defendant introduced a number of witnesses, who testified that Jones' reputation for truth and honesty was bad, and that they would not believe him as a witness. To sustain him, the plaintiff produced several witnesses who testified that his character was good, and that they would believe him as a witness. Among them was Hiram Pritchard, who testified that he knew Jones, and had known him since May next previous to the trial. That he (Pritchard) lived in Corning. That "I have taken pains to inquire concerning his character, of business men at Geneva, and from business men living there concerning his character; I made the inquiries for the purpose of ascertaining what his character was. I had business transactions with Mr. Jones, and I made inquiries to satisfy myself what his character was, and went to Geneva expressly for that purpose. I do not know the people in Geneva where he lives. I did not make the inquiries for the purpose of becoming a witness here."

The plaintiff here proposed to ask the witness what the general character of Jones was, and whether the witness would believe him under oath. To this the defendant's counsel objected, on the ground that the witness was not sufficiently acquainted with the general character of Jones to testify on that subject. The court overruled the objection, and the defendant's counsel excepted. The witness then testified, that so far as he knew, Jones' character was good, and he most certainly would believe him on oath.

The witness Pritchard was not qualified to testify in relation to Jones' character or reputation. He did not know, himself, any thing about Jones' reputation. All he could testify on the subject of his reputation was what some persons at Geneva, whom he did not know, told him it was. An impeaching or sustaining witness is not to speak of the reputation unless he knows it, and such knowledge must be founded upon an acquaintance and intercourse with the neighbors and acquaintances of the individual whose character is

37b 70 41ap340

37b 70 59ad 91

Wetmore v. The Atlantic White Lead Company.

in question, and that intercourse must be of some length of time-sufficient, at least, to enable him to gather the general estimation in which he is held in the community where he resides.

The objection to Pritchard's evidence is that of necessity he could only testify what others told him of Jones' reputation, not what he knew of it himself-which would be nothing but reputation of reputation. (1 Greenl. Ev. § 461. Douglass v. Tousey, 2 Wend. 352.)

There are various other questions raised upon the argument, founded on exceptions taken at the trial; all of which I have examined, and am satisfied they were properly disposed of at the trial.

But upon the last two above considered, I am of the opinion that a new trial should be granted, with costs to abide the event.

Ordered accordingly.

[MONROE GENERAL TERM, March 3, 1862. Welles, Smith and Johnson, Justices.]

WETMORE VS. THE ATLANTIC WHITE LEAD COMPANY.

The effect of the act of the legislature of March 31, 1848, as amended in 1850, (Laws of 1848, ch. 156; Laws of 1850, ch. 313,) authorizing the owners of certain lands on the East river in the city of Brooklyn to erect, construct, build and maintain bulkheads or wharves on the lands under water in front of their lands, as far into the river as the permanent water line established by the act of 1836, was to convey and confirm to such owners a title to the lands under water in front of their premises, as far as the exterior line of 1836, or to the use of them for piers or bulkheads, so far as the state was concerned.

And so far as any other individuals, or the public at large, are concerned, the act of March 31, 1848, must be construed as conferring upon the owners of lands therein mentioned an absolute and exclusive right to the possession and enjoyment of wharves, bulkheads, &c. erected by them in front of their lands, up to the permanent water line established in 1836.

Wetmore v. The Atlantic White Lead Company.

The public rights of navigation and passage were relinquished by the act of 1848, in respect to the land under water in front of the property of the persons mentioned in the act, and not in front of the streets. And when wharves have been erected by such persons in front of their lands, the only access of the public to the navigable waters of the stream is by the existing highways upon the land or their direct prolongation or continuation. If there is no public highway running through the land so made by the proprietors in front of their premises, neither the public nor an individual has a right to use the wharves erected thereon, for the purpose of reaching an adjacent street, against the will of the owner, on the ground that the wharves having been erected upon ground covered with the waters of a navigable river, cannot be appropriated to private use, but must still continue a highway.

A building below low water mark is not in itself a nuisance. Whether it be so or not depends upon its effect upon the channel or the navigation of the stream, and is always a question of fact.

It is impossible, in the face of the act of 1848, and of the act of 1836, establishing a permanent bulkhead line in front of the city of Brooklyn, to regard the appropriation of the waters of the East river by wharves erected by the property owners mentioned in the first named act, even as a purpresture; but if it were so, it would not follow, as long as the wharves were not a nuisance, that a private individual could either abate them, or enter upon them without the consent of the owners. Per EMOTT, J.

In the absence of any pretense that the channel, or the navigation, have been injuriously affected by such wharves, no right to abate or to pass over them, can be asserted against them as a nuisance.

The acts of the legislature authorized an appropriation of the lands under water, by an artificial accretion to the adjoining lands. They permitted the conversion of the premises from water into land, and relinquished the rights of the public to their use as a part of the channel of the river. When reclaimed, and covered with artificial structures, they became a part of the bank of the river, and were no longer subject to the public easement which affected the channel.

As far as such artificial accretions are made to public highways upon the bank of a shore, they become a part of such highways; but when added to a portion of the bank over which no such right of passage existed, they are a gain to the adjoining proprietor, and do not bring with them a right of use or passage over the land, in consequence of the right of navigation which had existed over the waters that had been displaced by such additions to the land.

THE complaint in this action alleged that the defendant, in

June and July, 1860, occupied certain lands in Brooklyn fronting on East river. That said lands were and are beyond

Wetmore v. The Atlantic White Lead Company.

and below low water mark, and the East river is an arm of the sea and a public highway. That the front of said premises is a bulkhead or wharf where vessels engaged in commerce lie, moor, lade and unlade, &c., and the legal and customary use of such a structure is such use and occupation by vessels. That the plaintiff was owner of certain vessels used in the transportation of merchandise, and prior to June 20, 1860, was engaged in transporting merchandise in one of such vessels from New York to Brooklyn, having contracted to deliver the same to Messrs. Longman & Son of Brooklyn, and deliver the same to them at the wharf, bulkhead or pier nearest to the place of business of Longman & Son, and most accessible to them, that should be found vacant and unoccupied, and to which the vessel could be safely moored. That Longman & Son's place of business was in Marshall street, between Gold street and Hudson avenue. That the plaintiff proceeded with said vessel and merchandise to perform such contract. That on June 20, 1860, the plaintiff's vessel arrived with such merchandise at the bulkhead or wharf in front of premises occupied by the defendant. No vessel was there, and it was the nearest and most accessible to Longman & Son's. The vessel was duly moored to said bulkhead or wharf, and the usual preparations made to discharge and deliver the merchandise. That the defendant obstructed and prevented such unlading and discharge and delivery, and continued to obstruct and prevent the same for 14 days, to the damage of the plaintiff of $140. The answer avers: That the defendant is owner of the lands, premises and bulkhead and wharf. That the same were gained out of the East river below original low water mark, by the defendant or its predecessors, in estate, by the erection of the bulkhead and filling in with solid substances. Denies that at the time the same were so gained out of the East river, that portion of the East river now converted into said lands, bulkhead, &c. was or ever since hath been or is a public highway. Denies that the public had, on the 20th June, 1860, or since, any right

Wetmore v. The Atlantic White Lead Company.

of way over said lands, premises, &c. Alleges that the defendant, or its predecessors, erected said bulkhead as part of its lands, and for the purpose of gaining the same out of the East river, and for the private use only of the then present or future proprietors, and has hitherto kept said bulkhead, lands, &c. inaccessible for use as a wharf on the part of the public, or any person, but the proprietors and their servants, and has inclosed the same by a wall or fence having gates for such private use, and that the bulkhead has never been used as a wharf by the public, or any persons, but the proprietors and their servants. That the lands have been and are exclusively occupied by the defendant for the manufacture of white lead, and access to the bulkhead from and over the land can be obtained only through lands of the defendant, and that said bulkhead is not susceptible of use by the public, except by the additional use of the defendant's land as a highway, and great injury, &c. to the defendant. Denies that vessels engaged in commerce, other than the vessels of the defendant and vessels engaged in its business, have been accustomed to use said bulkhead, or that the bulkhead was constructed for such use except by vessels of the proprietors of the premises, or vessels engaged in their business. Admits that the plaintiff's vessel came there on 20th June, and moored at said bulkhead, no other vessel being there, and the master claimed the right to unlade and discharge the cargo, and insisted the defendant should remove the fence on the edge of the bulkhead, or open the gates therein; which the defendant denied and refused to do, as it had a right; and while said vessel lay along side said bulkhead kept the gates fastened, and thus obstructed and prevented the unlading and discharge of said cargo. As to all other allegations not answered, the defendant alleged that it had no knowledge, &c.

The action was tried at the King's county circuit, in March, 1861, before Justice BROWN and a jury. The following facts appeared, on the trial.