Low v. Knowlton , 26 Me. 128 ( 1846 )

The opinion of the Court was drawn up by

WhitmaN C. J.

By the agreed statement of facts it appears, that this is an action of the case, alleging an oh* struction of a water passage, claimed by the plaintiff, on a creek, into and from which the tide ebbs and flows, extending about eighty-five rods from Kennebec river, through the lands of both the parties, the plaintiff’s being next above and contiguous to the defendant’s. The creek, it also appears, is empty, at about half tide, and at full tide, is navigable for boats and gondolas, to the plaintiff’s land, where he has a landing place. The defendant, it appears, has erected a building on his land extending across the creek, the sills and sleepers of which, are about two feet above the water, at full tide.

Such creeks, according to the common law of England, would belong to the public; and individuals could acquire no property, in the bed of them, except by legislative grant, or prescription; and whoever should obstruct the navigation of them would be indictable, as the author of a public nuisance. But by the common law of this State, as at first adopted by a colonial ordinance, and continued by usage, after the ordinance had been virtually abrogated, the beds of such creeks became the property of the owners of the land through which they passed, except that such proprietor is not allowed “ to stop or hinder any passage of boats or other vessels in or through any creek or cove to other men’s houses or lands.” Any such proprietor, therefore, may make use of the land forming the bed of such creek, and of the space above it, provided he does not obstruct such navigation, over and upon it. Any such obstruction would be a public nuisance; and though abateable by any one, or indictable as such, could not form the subject of an action at the suit of an individual, unless he could make it appear, that he had sustained special damage thereby. 3 Black. 2IS*.

But in this case it does not appear, nor is it clearly inferable from the facts stated, that the erection in question, is a public nuisance ; and it is not ■ understood to be alleged, that the plaintiff has sustained any particular injury therefrom. The reservations contained in the conveyances, under which the parties claim, cannot aid the plaintiff. These seem to be, to the extent to which the law would have furnished security, and nothing more. The subjects here alluded to, are fully discussed and elucidated in Angelí on Tide Waters, ch. 8.

Plaintiff' nonsuit.