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Wetmore v. The Atlantic White Lead Company.

(Woolrych on the Law of Waters, &c., p. 149.) Already, as appears in evidence, access from the river to a great portion of this city is permanently obstructed, and the question presented in this case is one of immediate practical interest and importance.

B. D. Silliman, for the defendant. I. The plaintiff shows by his complaint (as well as by his proofs) that the defendant was in possession of the premises in question; that such possession was exclusive, and that the premises were actually inclosed by a fence or wall. He thus commences by showing that the defendant has the fee of the premises; for such possession imports a fee. (Day v. Alverson, 9 Wend. 223.) He then claims, in his action on the case, damages, because the defendant has not permitted him to use its property as a public wharf, to which use he asserts he had right. Such claim is inconsistent with the fee thus shown to be in the defendant.

II. But assuming that the plaintiff might prove that the defendant has not the title thus averred by the complaint, yet he has not done so. The possession of the defendant, and that of those from whom it claims, constitute a good title even against the state. The plaintiff has failed to show any right personal to himself to use the premises — that he ever had

any title to it-or that it is or ever has been a public wharf. Neither grant, dedication, nor appropriation of it by any legal proceeding, for that purpose, is shown. If, as claimed by the plaintiff, the defendant has constructed the premises on land below the original high water mark, and thereby encroached thereon by its structure, thus erecting a nuisance, such facts confer no right on the plaintiff to participate in the nuisance. He never had any right in the locus in quo, save that, before the dock was built, he might, in common with “ the public,” navigate the waters that flowed over it. The structure, if unlawful or an obstruction to navigation, is at most a purpresture, and can be abated only

Wetmore v. The Atlantic White Lead Company.

by the state. No one else can disturb it. The plaintiff has no personal right to use the premises if a purpresture. The plaintiff could not have maintained an action against the defendant, even if its structure had been an obstruction greater to him than to others. (Lansing v. Smith, 8 Cowen, 146.)

III. The plaintiff's action (claiming that because the defendant has constructed a wharf it is bound to permit his use of it) is in its nature like an action against a ferryman for not carrying a traveler over his ferry. But the law does not impose on a wharfinger any such duty. There never has been any such rule laid down in any book; a fortiori, the law would not impose such a duty without toll being paid or tendered to the wharfinger.

IV. The defendant has title in fee simple to the land and bulkhead in question. (1.) The defendant being the owner of the original ripa, had the exclusive title down to the water. No man could land thereon without its permission. “The public have no right to unlade goods, or to moor or tow their vessels on the shore, without leave.” (Lord Hale de jure Maris, &c., ch. 5, 6. Morgan's case, p. 51, same book. Pearsall v. Post, 20 Wend. 111, 128.) (2.) It is deducible from the English cases, that the public right to salt and tide water is to be understood with the restriction that such right is to be confined to what is of public use. By the civil law, if nobody sustains damage, he is to be protected who builds on the sea shore. (Dig. L. 43, 15, 8.) The common law and the legislature, by its enactments, recognize the same rule, and that the privilege of reclaiming and appropriating to private use a portion of the soil flowed by the tide, is a privilege appurtenant to the conterminous or adjoining upland; and that, therefore, the proprietors of the conterminous upland may inclose and embank upon the water, provided such inclosures or embankments are of no actual injury to the public. (Angell on Tide Waters, ed. 1826, 150. Hale de Portibus Maris, Harg. Tracts, 85.) The

Wetmore v. The Atlantic White Lead Company.

cases in which the sovereign has interfered against the extension by the riparian owner of his front, upon the land under water, have been where the extension was an interruption to navigation. (Atty. Gen. v. Richards, 1 Anst. 603. Same v. Philpot, Id. 607. Same v. Cleaver, 18 Ves. jun. 218. Bristol v. Morgan, Anst. 607. Dean of Durham v. New Castle on Tyne, 8 Bro. Par. R. 18.) Whether the encroachment was a nuisance was always held to be a question of fact, (Hale de Portibus, Harg. Tracts, 85,) and the rule is so held in the various English cases. Thus, conceding that the ultimate ownership of the land under water is in the sovereign, such ownership is asserted to the exclusion of adjacent riparian owners only when required by the public use. The land under water is to some extent appurtenant to the upland. (Doane v. The Broad Street Association, 6 Mass. R. 332. Bell v. Gough, 3 Zab. 624.) (3.) The sovereign also recognizes a special interest in the riparian owner to the land in front under water, by withholding express formal grants thereof from

than such owner. Thus the commissioners of the land office are forbidden to execute such grant to any other than the riparian owner. (1 R. S. 205, S 80, [67.] Laws of 1803, ch. 68. Hale de Portibus Mar. p. 73.) The cases in which the state has made grants to other than the riparian owner are strictly exceptional. (4.) The riparian owner has also the absolute right, even against the sovereign, of acquiring the land under water by accretion thereon. This right to the land in front of his original ripa is a peculiar incident of his title, and a qualification of that of the sovereign. (3 Kent, 428, and cases cited.) Such gain by accretion is not necessarily restricted to insensible increase and extension of upland from natural causes. Where there is a gradual accretion, which is the result of artificial causes produced by the lawful use of the land by the owner, such accretion does not belong to the crown, and in such case there is no distinction between accretion produced by natural and artificial causes. If, how

any other person

Wetmore v. The Atlantic White Lead Company.

ever, the artificial causes can be shown to have been wrongfully intended to produce the accretion, the crown would be entitled. (Atty. Gen. v. Chambers, 5 Jurist, N. S. 745. Deerfield v. Arms, 17 Pick. 41. Adams v. Frothingham, 3 Mass. R. 352.) (5.) It is clearly competent for the sovereign, by express grant, to enlarge the right of accretion, and to permit artificial structures by the riparian owner for the purpose of accelerating the accretion. (Gould v. Hud. River R. R. Co., 2 Seld. 522.) The state has made such express grant by the statutes below cited, authorizing artificial structures by such owners, for the purpose of producing such increase and a change of the ripa. (6.) The second section of the act of May 25, 1836, (Laws 1836, ch. 484) by its terms, makes the line of bulkhead to be located, in pursuance of its provisions, the permanent water line of the city of Brooklyn. It was therefore an appropriation of the space shoreward of that line as and for land; and with all the legal incidents attached that appertain in the law to land. There are no reservations of such incidents. The same section further declares: “And thereafter no bulkhead shall be extended from the upland in said city, into the East river, beyond such line, without the previous authority of the legislature, under the penalty of one thousand dollars,” &c. And by section 3 of the same act it is further provided : “Nothing in this act contained shall be taken or construed to destroy, abridge or in any manner impair the rights of the mayor, aldermen and commonalty of the city of New York, in respect to the land between the lines of high and low water, along the Brooklyn shore of the East river. Nor shall this act authorize any dock or wharf to be erected upon any of the lands belonging to the city of New York, without the permission of the common council of said city first had and obtained.” The act, therefore, indicates three results from its previous provisions: Firstly. That, except as against the city of New York, on and within the limits of the lands between high and low water mark belonging to that city, it does recognize, in

Wetmore v. The Atlantic White Lead Company.

some person or persons, other than the city of New York, the right, without any further authority, to work and effect the conversion into fast land of the space appropriated for that purpose. Secondly. That the persons on whom that right is conferred were the owners of the upland. Thirdly. That the state thereby relinquishes its right of abating any extension by the riparian owner within the limits thus fixed. (7.) This act is not in effect a license, but a grant of some estate in the soil, the action authorized being the permanent conversion of the locus in quo from river into fast land, and the perpetual exclusive possession and enjoyment thereof is not in the law a subject of license. (Mumford v. Whitney, 15 Wend. 384. Houghtaling v. Houghtaling, 5 Barb.379. Brown v. Woodworth, Id. 550.) On the conversion authorized by the act, an estate passed, commensurate with the conversion and structures so authorized, which were to be permanent, and the enjoyment thereof by the grantees to be perpetual, an estate not at will but a fee simple. It is true it is not stated that the rights granted by this act shall pass to heirs and assigns of the grantees, but this is not now, nor was it at the passage of the act, necessary in a deed, to convey a fee simple, much less is it in a statute where the intent and object govern, comparatively unrestrained by artificial rules. The act contemplates a large expense and outlay by the grantees, and this enlarges the operation of the grant as to the nature and character of the estate passing. The intent that the soil is to be occupied with permanent structures for the use and enjoyment of the grantees is undeniable, and the fee in the soil passes as appurtenant to these structures. (3 Kent's Com. 427. Adams v. Frothingham, 6 Mass. R. 332. Plowden, 170. Cro. Eliz. 704. Whiting v. Orney, 3 Mason, 280. S. v. Case, Cro. Jac. 526. Bryan v. Weathershead, Cro. Car. 17. Doane v. Broadstreet, 6 Mass. R. 332.) (8.) The first sections of the act of 1848, (ch. 156, Laws of 1848,) as amended by chapter 313 of the laws of 1850, reads as follows: "$ 1. It shall be lawful for the several owners of

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