Thayer v. New Bedford Railroad , 1878 Mass. LEXIS 51 ( 1878 )

Lord, J.

When the facts upon which the petitioners rely are understood, we do not apprehend that there is any difficulty in arriving at a correct result. No land of the petitioners was taken by the respondent. The petitioners own a dock, and, as we assume, the land described in the petition; and the railroad is constructed at a distance from the petitioners’ property, not stated; the plan accompanying the papers having no scale upon it, that distance is not made known. Tlie land between the petitioners’ dock and the railroad is covered by navigable water. In that land the petitioners have and claim no interest or estate. Access to the petitioners’ dock from any point beyond the railroad, which is built upon piles, without a draw, is prevented by the railroad.

The claim of the petitioners is that they have a private right of way, for boats and vessels, over and through such navigable water, from some place beyond the railroad to their dock. We are not aware that there is any such estate known to the law of Massachusetts. Each individual, as one of the general public, has a right to use navigable waters with his boats and vessels at pleasure, but it is in the exercise of a public, and not of a private right. He cannot thereby acquire a private right; for his use cannot, in law, be adverse. Navigable waters are great highways, and no individual, by use, can acquire a private right therein, any more than a continuous use of a street by a man, from his home to his place of business, for any term of years, gives him a private right of way over the soil of the street. In Davidson v. Boston & Maine Railroad, 3 Cush. 91, 106, Chief Justice Shaw uses this language : “ The public have a right to regulate the use of public navigable waters for purposes of passage ; and the erection of a bridge, with or without a draw, by the authority of the Legislature, is the regulation of a public right, and not the deprivation of any private right, which can be a ground for damages. So far, therefore, as the railroad erected by authority of the Legislature affected the right of the petitioners to pass or 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 the petitioners no claim for damages.” Verdict set aside.