it is proper to be considered by the jury in estimating land damages to such owners. But the owner of a tide-mill has no right to have such riparian flats, as he owns, kept open and unobstructed for the free flow of tide-water to his mill. 8 6. The adjoining owners of such flats in Massachusetts have the right to build solid structures to a certain extent, and thus obstruct the ebb and flow of the tide, if in so doing they do not wholly obstruct the access of other proprietors to their houses and lands; and if the mill-owner and other proprietors suffer damage * therefrom, it is damnum absque injuria. "Therefore," say the court, "so far as the railroad erected by the legislature affected the right of the claimants to pass and repass to and from their lands and wharves with vessels, it was a mere regulation of a public right, and not a taking of private property for a public use, and gave no claim for damages." 7. The grant of a railway" to the place of shipping lumber " on a tide-water river, justifies an extension across flats and over tide-water to a point at which lumber can be conveniently shipped.9 8. In a recent case in the House of Lords,10 it was held, that where a statute authorizes a company to construct certain works, as a harbor, it is to be presumed they have power to execute all works incidental to their main purpose, and which they deem necessary, provided they act bonâ fide. 9. Accordingly, when public trustees for improving the navigation of the Clyde were authorized by statute to acquire lands adjoining the river, and to construct a quay, or harbor, and having acquired part of A.'s land, proposed to erect a large goodsshed fronting the river, and between the rest of A.'s land and • Commonwealth v. Boston & Maine Railw., 3 Cush. 25; s. c. 1 Am. Railw. C. 482; Fitchburg Railw. v. Boston & Maine Railw., 3 Cush. 58; s. c. 1 Am. Railw. C. 508. 8 Davidson v. Boston & M. Railw., 3 Cush. 91; s. c. 1 Am. Railw. C. 534. 9 Peavy v. The Calais Railw., 30 Maine R. 498; s. c. 1 Am. Railw. C. 147. See also Babcock v. Western Railw., 9 Met. 553; s. c. 1 Am. Railw. C. 399. So the grant of a railway between certain termini, which line passes over navigable rivers, authorizes the company to bridge such rivers. Attorney-Gen. v. Stevens, Saxton, Ch. 369. 10 Wright v. Scott, 34 Eng. L. & Eq. 1; ante, § 63. the river, it was held, that although the statute gave no express power to erect sheds, it must be presumed that a harbor, equipped with all the most approved appliances for trade, was intended by the legislature, and that therefore a power to erect sheds was implied.10 10. An interesting case 11 has recently been determined by the Supreme Court of Iowa, in regard to the important question, to what extent the large rivers in this country, as the Mississippi, are to be regarded as navigable waters, above where the tide ebbs and flows. 11. It is there held, that all waters are to be regarded as navigable, above where the tide ebbs and flows, which are of common use to all the citizens of the republic for purposes of navigation, or that navigability, in fact, is to be regarded as the decisive test, rather than the ebb and flow of the tide. And it is here maintained, that the acts and declarations of the United States constitute the Mississippi a public highway, and that consequently the riparian proprietors have no interest in the lands below high-water mark. 12. And where one, upon the shore of a navigable stream or arm of the sea, is cut off by a railway or other public work from 11 McManus v. Carmichael, 5 Law Reg. 593. It is maintained in this case, with great labor and research, that a large number of the states have adopted similar views in regard to their large rivers. See also Bowman v. Wathen, 2 McLean's C. C. 376, where the learned judge of that circuit thus lays down the law, in regard to the shores of the river Ohio: "On navigable streams the riparian right we suppose cannot extend generally beyond high-water mark. For certain purposes, such as the erection of wharves and other structures for the convenience of commerce, and which do not obstruct the navigation of the river, it may be exercised beyond this limit. But in the present case this inquiry is not important. It is enough to know that the riparian right on the Ohio River extends to the water, and that no supervening right over any part of this space can be exercised or maintained without the consent of the proprietor. He has the right of fishery, of ferry, and every other right which is properly appurtenant to the soil. And he holds every one of these rights by as sacred a tenure as he holds the land from which they emanate. The state cannot, either directly or indirectly, divest him of any one of these rights, except by a constitutional exercise of the power to appropriate private property for public purposes. And any act of the state, short of such an appropriation, which attempts to transfer any of these rights to another, without the consent of the proprietor, is inoperative." See also Lehigh Valley Railw. v. Trone, 28 Penn. St. 206. all communication with the navigation, to the injury of wharves or other erections which the party made upon his land, it has been held that such person is entitled to damages under the statutes allowing parties compensation where their estate is “ injuriously affected." 12 13. And it seems to be regarded as settled, that where the grant of any authority, by the state legislature, in regard to navigable waters, in its exercise works an interference with the exclusive power of Congress to regulate commerce, whether foreign or internal, such interference being unlawful is a nuisance, and any private person suffering special damage thereby is entitled to an action at law, or to maintain a bill in equity for a perpetual injunction.13 14. The questions are very numerous which have arisen in regard to the conflicting rights of different grantees affecting franchises and easements of different kinds. In a late case in New Hampshire,14 some questions affecting the construction of grants, and reservations of this kind, are very extensively discussed. 12 Bell v. Hull & Selby Railw., 6 M. & W. 699. 15 State of Pennsylvania v. Wheeling Bridge Co., 13 How. 518; s. c. 18 Id. 421. The same principle is recognized in other cases. Works v. Junction Railw., 5 McLean, 425; United States v. Railroad Bridge Co., 6 Id. 517. When the case of Pennsylvania v. Wheeling Bridge Co. was last before the court, it was held, that the paramount authority of Congress, in the regulation of commerce, included the power to determine what was an obstruction to navigation. And Congress having legalized the bridge of defendants, after the judgment of the court to abate it, but before it was carried into effect, it was held, that the occasion for executing the judgment was thereby removed. Mr. Justice Nelson, p. 432, thus lays down the law, as to streams under state control: "The purely internal streams of a state, which are navigable, belong to the riparian owners to the thread of the stream," and they have a right to use them, "subject to the public right of navigation." "They may construct wharves or dams or canals, for the purpose of subjecting the stream to the various uses to which it may be applied, subject to this public easement. But if these structures materially interfere with the public right, the obstruction may be removed or abated as a public nuisance." "These purely internal streams of a state, as to the public right of navigation, are exclusively under the control of the state legislature." And although erections authorized by grant from the state legislature cause "real impediment to the navigation," they are nevertheless lawful, and the riparian owner has no redress. See also Morgan v. King, 18 Barb. 277. 14 Goodrich v. Eastern Railw. Co., 37 New H, R. 149. 15. It seems to be well settled, both in England and in this country, that if there is no legal authority for the erection of a pier in a navigable river, such erection will become a nuisance per se, and that no evidence can be received to show that although illegal it will do no harm, that question being wholly immaterial.15 * SECTION XVII. Obstruction of Streams by Company's Works. 1. Cannot divert stream, without compensa- | 4. Company liable to action, where mandamus tion. will not lie. tion. 2. Company liable for defective construc- 5. Company liable for defective works, done according to their plans. 3. So also if they use defective works, built 6. When a railway by others. cuts off" wharves from the navigation. § 79. 1. In regard to the obstruction of streams, by building railways, the better opinion seems to be, that the company are bound to do as little damage to riparian proprietors as is reasonably consistent with the enjoyment of their grant.1 The state cannot grant the power to divert a stream of water without compensation.2 2. Thus if by making needless obstructions in streams, in the erection of bridges, or by imperfect or insufficient sluices or ducts for the passage of streams, intersected by a railway, the land or adjoining property is injured, the company are liable.3 3. So, too, the company are liable to pay damages for an injury caused to the plaintiff, by flowing his land in a great freshet, in consequence of their bridges damming up the water, although the bridges were erected by another company, before the defendants' * company was chartered, and there had been no request to the defendants to remove the obstruction.5 1 15 The People v. Vanderbilt, 38 Barb. 282. Boughton v. Carter, 18 Johns. 405; Hooker v. N. H. & Northampton Co., 14 Conn. R. 146. 2 Gardner v. Newburgh, 2 Johns. Ch. 162. 3 Hatch v. Vermont Central Railw., 25 Vt. R. 49 et seq.; Mellen v. Western Railw., 4 Gray, 301; March v. C. & P. Railw., 19 N. H. R. 372. * Brown v. Cayuga & Susquehannah Railw., 2 Kern. 486. 5 Per Denio, J., 2 Kern. 486. But the question in regard to the liability of * 170, 171 4. And where the waters on certain lowlands were flowed back upon the plaintiff's land, by reason of insufficient openings in a railway constructed across such lowlands, it was held that the company were liable to make good the damages sustained by plaintiff, although no statute required them to make the openings, and they could not be compelled to do so by writ of mandamus. So, too, in regard to other public works, if damage accrue to others in consequence of their imperfect construction, the proprietors are liable, as a municipal corporation, for insufficient sewers, whereby plaintiff's factory was overflowed in a freshet, and the property therein seriously injured.7 6 5. In a late case, where the plaintiff's garden was overflowed, by the manner in which an excavation was made, in the course of construction of a railway across a road, or highway, by carelessly cutting into a drain, or culvert, and letting out the water,8 it seems to have been admitted, on all hands, that the company would have been liable for the injury if it had been done by persons under their control, or in accordance with the directions of their surveyor or engineers.8 6. And where the plaintiff owns a dock on the east side of Hudson River, on the margin of a bay, under a charter from the the company for continuing the obstruction, without notice to remove it, was not decided by the court. This subject, in regard to the necessity of a special request, is somewhat discussed in Norton v. Valentine, 14 Vt. R. 239, 244. In Hubbard v. Russell, 24 Barb. 404, it is held, that in order to recover damages of the "continuator of a private nuisance, originally erected by another," there must be proof of a request to remove the same. But where a railway company bought up a navigation company, and suffered the works of that company to fall to decay, so that damage was suffered by a municipal corporation, in regard to their harbor, it was held the company were liable; although only a nonfeasance in form, it operated substantially as a misfeasance, they having maintained and used the locks of the navigation company in such a state as to cause the injury. Preston v. Eastern Counties Railw., 30 Law Times, 288. • Lawrence v. Great Northern Railw., 4 Eng. L. & Eq. 265; s. c. 16 Q. B. 643, and 6 Railw. C. 656. ▾ Rochester White Lead Co. v. The City of Rochester, 3 Comst. 463. See also Radcliff v. Brooklyn, 4 Comst. 195; Mayor of New York v. Furze, 3 Hill, 612; Bailey v. Mayor of New York, 3 Hill, 531. 8 Steel v. Southwestern Railw., 32 Eng. L. & Eq. 366. See § 129, post, for a full statement of this case. But there is no liability incurred towards a millowner below, by cutting off springs, in sinking wells upon one's own land. Chasemore v. Richards, 29 Law Times, 230. |