Proprietors of Maine Wharf v. Proprietors of Custom House Wharf , 85 Me. 175 ( 1892 )

Peters, C. J.

The complainants and respondents are coterminous proprietors of upland and adjacent flats in the harbor of the city of Portland, having wharves on their respective properties. The respondents, in extending the structures on their premises towards the sea, built a wharf over the line between themselves and their neighbors about two feet upon the latter’s land. A litigation ensued .between the parties over the true location of the divisional line between them which settled the question in favor of the complainants. Thereupon the respondents removed so much of their wharf as was built upon the complainants’ land, the removal not however extending seaward below low water line. The result therefore is that the respondents now maintain their wharf upon the true line as far outward from the upland as low water mark, and from that point outward into deep water they still maintain their wharf for a space of two feet in width in front of complainants’ land. Of this obstacle in front of the complainants’ property they complain, and ask that the respondents be compelled to remove the same. Upon these facts and other facts stated in the bill, we think the prayer'of the bill should be granted.

The respondents urge objections to the complainants’ claim.

First: That a remedy at law should be first resorted to. This proposition is, that a court of equity will not undertake to restrain or remove an alleged nuisance until a court of law has first established the existence of the nuisance ; excepting where an immediate and irreparable injury be threatened, or the complainants are deprived of the use of property long enjoyed by them without question or interruption. The answer to this objection is,.that the right of the complainants has been substantially and sufficiently settled by the law. To be sure, the legal controversy was commenced by an action of trespass in which the allegation was that the respondents had encroached upon the land of the complainants (or their predecessors in title) by an erection thereon extending from high to low water mark. But when the court settled the rights of the parties, so far as pertaining to land or flats above low watermark, it settled their relative rights with each other beyond low water mark. The one case settles the other. It is really but one controversy, nothing appearing to indicate the contrary. The presumption is that an owner of land fronting on the sea has, as such owner, the right of egress and ingress from and to his land over deep, water for the whole width of such frontage. The bill asserts such a legal right of the complainants and the demurrer confesses •it.

Another objection against the bill is that it discloses facts from which it is clearly perceivable that the complainants have a complete and adequate remedy at law for all supposable injury suffered by them. That is not so. Frequent annoyances may be occasioned by the encroachment which would be' remediless at law. The injuries may be small, but would be many, and not easily measurable in damages. And the disfiguration caused by the overlapping structure, if allowed to remain, would be a blemish upon complainants’ property. Furthermore, the complainants desire to have their premises clear of all unauthorized occupation or obstruction and are entitled to have them so.

Equity will restrain the continuance of a nuisance by injunction whenever substantial damages might be recovered at law,, or when the nuisance'is permanent, however small the damages.. Crump v. Lambert, L. R. 3 Eq. 409 ; Atty. Genl. v. Sheffield Gas Co. 3 DeG. M. & G. 304. And see cases cited in note hr last case. Demurrer overruled.

Walton, Yirgin, Libbey, Foster and Haskell, JJ.„ concurred.