Wetmore v. The Atlantic White Lead Company.

The defendant occupied, on June 20, 1860, a bulkhead or wharf, land and premises, on the East river, extending northerly from Marshall street out into the East river, and easterly from Gold street to Hudson avenue. All such bulkhead, land and premises, were and are beyond and outside of original low water mark. The easterly portion of said premises lying east of line A was filled in and made land upon the bed of the East river, in the year 1825, by Clarke & Coster, excepting the pier, as now existing, which was constructed in 1836. In 1855 and 1856, deeds were made and executed to the defendant, purporting to convey in fee the southerly part of this portion of said premises, and in 1858 a deed was made and executed by Smith & Bulkley to the defendant, purporting to convey in fee the residue of this portion of said premises, subject to the rights of the public, if any. The portion of the premises lying west of line A, excepting a narrow strip thereof on the north side of Marshall street, was filled in and made land upon the bed of the East river, and the present bulkhead or wharf built between the years 1843 and 1845, by Valentine G. Hall. In 1845 a deed was made and executed by Hall and wife to the defendant, purporting to convey in fee part of this portion of the premises, and in 1849 a deed was made and executed by John G. Murphy and wife to the defendant, purporting to convey in fee the residue of this portion of said premises. Marshall and Gold streets and Hudson avenue, (formerly called Jackson street,) have been for thirty years and upwards and still are public streets, the latter extending to the river. Down to the year 1858, all the land east of line A, north of a line 100 feet north from Marshall street, was vacant and uninclosed, except that Morrison, who collected wharfage from vessels using the pier, had a gate on Hudson avenue a portion of the time, which he closed at night. Both the pier and the bulkhead have been used by vessels, without discrimination, since they were respectively constructed. Shortly before June 20, 1860, the plaintiff being the owner of barges engaged in the trans

Wetmore v. The Atlantic White Lead Company.

cargo of the plaintiff's barge

portation of goods, &c. for hire, contracted with Randolph & Skidmore to transport in one of his barges, coal from the city of New York to Messrs. Longman & Son, doing business in Marshall street, between Gold street and Hudson avenue, in Brooklyn, and to deliver the same at the nearest place to Longman & Son, either Gold street or Hudson avenue. The plaintiff's barge proceeded with said coal, and came, June 20, 1860, to the bulkhead in question, the same being the nearest to Longman & Son, and the only vacant wharf, bulkhead or pier near them, and being then unoccupied. The barge was moored to the bulkhead, and preparations made to unlade and discharge the cargo. The pier was at that time piled up with brick, so that the could not be discharged there. The defendant had erected a fence along the edge of the bulkhead, with gates, through which goods and merchandise were constantly carried to and from other vessels, and laden and unladen therein and therefrom. On the arrival of the plaintiff's vessel these gates were closed and fastened, and kept so closed and fastened by the defendant, to prevent the unloading of said cargo and the use of said bulkhead or wharf by the plaintiff's vessel; and the defendant obstructed and prevented the unlading and discharge of said coal, and forbade the master of the vessel to lie at said bulkhead. From the place where the plaintiff's vessel lay there was abundant vacant and unoccupied space of ground along and over the outer portion of the bulkhead, within the fence to and over the ground lying east of line A, out into Hudson avenue, wide enough for horses and carts, and through and over which horses and carts have been. accustomed to travel in transportation of merchandise, to and from Hudson avenue and vessels lying at said bulkhead and pier, continuously, since the pier and bulkhead were made. The East river is a navigable stream or arm of the sea.

The testimony being closed, his honor the justice directed the jury to find a verdict for the plaintiff, and directed the

Wetmore v. The Atlantic White Lead Company.

jury to assess and find the amount of damages sustained by the plaintiff by the obstruction and detention complained of and proven. To which the defendant's counsel excepted, on the ground that on the pleadings and proofs the plaintiff is not entitled to recover. The jury rendered a verdict for the plaintiff for $75 damages. His honor the justice directed that the exceptions in this cause be heard in the first instance at general term, and the entry of judgment to be suspended in the meantime.

N. B. Hoxie, for the plaintiff. I. Every navigable stream or arm of the sea is a public highway. (Angell on Tide Waters, 2d ed. p. 112.) Every citizen is entitled to the free use of such highway, including access to the public streets and roads upon the adjoining land from the water, and to the water from the land. A public road or street leading to a navigable river and such river form together a continuous highway. (People v. Lambier, 5 Denio, 9.)

II. The title to all lands lying under the waters of an arm of the sea, such as the East river, is in the sovereign, i. e. the state, in trust for, and subject to, the use by the public of such waters as a highway. (Carter v. Murcott, 4 Burr. 464. Arnold v. Mundy, 1 Halstead's N. J. R. 1. Angell on Tide Waters, 2d ed. pp. 207, 270. Angell on Water Courses, 4th ed. p. 558, §§ 542, 559. Arundel v. McCullough, 10 Mass. R. 70. People v. Mauran, 5 Denio, 389, 395. Com'rs of Canal Fund v. Kempshall, 26 Wend. 413, 420. Canal Com'rs v. The People, 5 id. 444, and 17 id. 590.). III. No individual can acquire any title to such lands, except by express grant from the state. (3 Kent's Com. 8th ed. 505, 507, 521; marg. 413, 414, 427. Brinckerhoff v. Starkins, 11 Barb. 248.) And any title so acquired is subject to such public use. (Cases cited supra. Hale de Jure Maris, part 1, ch. 5, Hargrave's Law Tracts, pp. 22, 36. Furman v. City of New York, 5 Sandf. S. C. R. 33.)

IV. An individual cannot by any addition to or change

Wetmore v. The Atlantic White Lead Company.

of form of a highway, deprive the public of as full and free use of such addition or modification as belonged to and was had and enjoyed of the highway before such addition or modification. Such change of form cannot change the use. (Angell on Tide Waters, 2d ed. pp. 64, 218. Commonwealth v. Wright, 3 Am. Jurist, 185. Rogers v. Jones, 1 Wend. 237, 261.)

V. Every structure or erection upon such a highway which is adapted to or extends the use thereof as a highway, necessarily partakes of the same public character, and becomes part of the highway. It is considered as dedicated to the public use. (Blundell v. Catterall, 5 Barn. & Ald. 268, 277, 301, 305, 314. Bolt v. Stennet, 8 T. R. 606. Commonwealth v. Wright, 3 Am. Jurist, 185. Heaney v. Heeney, 2 Denio, 625. Lansing v. Smith, 4 Wend. 20. Gould v. Hudson River R. R., 12 Barb. 628. Furman v. City of N. Y., 5 Sandf. 43. Hale de Portibus pp. 84, 85. New Orleans v. United States, 10 Peters, 662, McLean, J. p. 715. Hart v. Mayor &c., 3 Paige, 217.)

Maris, chap. 7, Harg. L. T.

VI. If any structure or erection is made which is not susceptible of such public use, or if so susceptible the public is excluded from such use, it is an obstruction of the highway, a purpresture, a nuisance. (Bacon's Abr., Nuisance A. Hale de Jure Maris, chap. 5, Harg. L. T. p. 36. Hale de Portibus Maris, chap. 7, Id. 845. Woolrych on the Law of Waters, pp. 159, 165. Rex v. Ward, 4 Adol. & Ellis, 384, 404. Regina v. Randall, 1 Car. & Marsh. 496. Rex v. Russell, 6 Barn. & Cress. 594. Paige, 213, and 9 Wend. 571. 236.) And no lapse of time Water Courses, p. 271, § 254. Woolrych on Waters, p. 165.)

Hart v. Mayor &c., 3 Shaw v. Crawford, 10 John. will legalize it. (Angell on Mills v. Hall, 9 Wend. 315.

VII. Every person erecting or maintaining such a structure, and excluding any person from such public use thereof, is liable to such person for all loss and damage thereby sustained. (Hecker v. Balance Dock Co., Sup. Ct. 1st dist.

Wetmore v. The Atlantic White Lead Company.

1857. Lansing v. Smith, 8 Cowen, 161, 165, 166, and 4 Wend. 25. Chichester v. Lithbridge, Willes, 71. Corning Lowerre, 6 John. Ch. R. 439. Pierce v. Dart, 7 Cowen, 609. Rose v. Miles, 4 Maule & Selw. 101.)

VIII. A bulkhead, wharf or pier erected in or upon the East river, beyond low water mark, upon the lands of the state, inasmuch as its obvious and natural purpose is to advance the use and benefit of such a highway, must necessarily be public, in like manner as a turnpike or plank road. (Hale de Portibus Maris, chap. 6, Harg. L. T. pp. 76, 7. Cases cited supra, V.) And so, whether erected with or without the permission of the legislature. (Furman v. City of N. Y., 5 Sandf. 43. Lansing v. Smith, 4 Wend. 26.) (1.) The river front of the city of Brooklyn is a component part of the port or harbor of New York, open to the commerce of the world. The first necessity of a commercial port is free and abundant access to and from the land and water. (2.) Wharves are constructed for the uses and benefits of commerce, and necessarily require for the subservience of such uses, and the promotion of such benefits, freedom of access from the land and from the water. (Hale de Portibus Maris, chap. 2, Harg. L. T. p. 46. 3 id. 50. Angell on Highways, p. 51, §§ 73, 74.) (3.) The legitimate and necessary use of a wharf comprises not only the lying and mooring, lading and unlading of vessels thereat, but also freedom of access on and over it, to and from such vessels, i. e. the ordinary use of a highway for conveyance of persons and property, and the additional use for mooring vessels. (Hale de Portibus Maris, chap. 7, Harg. L. T. pp. 84, 85. 6 id. 76, 77. Rex v. Russell, 6 B. & C., Bailey, J., 594, 595.)

IX. The bulkhead and pier, and the made land occupied by the defendant, being built and made on the bed of the river, appropriated and occupied that portion of the river on and over which the plaintiff's barge might and would have been navigated up to the westerly side of Hudson avenue. And such bulkhead and pier, and made land, having