Franklin Wharf Co. v. City of Portland , 1877 Me. LEXIS 7 ( 1877 )

Dickerson, J.

Though the case does not show the precise time when the outlet to the sewer in controversy was built, it is reasonable to conclude from the order of the mayor and aider-men passed Jan. 20, 1860, “authorizing the committee on drains, &c., to construct and extend the sewer which has its outlet in Thames street through Thames street to the dock,” and the report of that committee to the mayor and aldermen on March 30, 1860, “that they had built a portion of the same” and “recommending that the completion thereof be referred to the next city council,” that it was built under the authority of §§ 2 & 3 B. S. of 1857, as amended by c. 153 of the public laws of 1860, which took effect April 19, 1860. The second section of that statute is as follows : “The municipal officers of a town, and mayor and aldermeff of any city, may construct drains or sewers in a substantial manner, through, along or across any public street, highway or town way therein, and over or through any lands of private persons or corporations, when they shall deem it necessary for public convenience or health, at the expense of the town or city, and they shall be under their direction and control.”

Under the general authority conferred by this section of the statute upon the municipal officers of towns and cities, to improve the public drainage and sewerage in their respective municipalities, we have no doubt but they had the right to construct a suitable outfall for a sewer in the public dock below low water mark, whe'never they deemed it-necessary for “public convenience or health.” Indeed, without such authority, the section would be a nullity, in many»cases not unlikely to occur in the larger cities where the difficulty, inconvenience and expense of providing suitable cess pools for retaining the rubbish and filth that naturally seek an outlet through sewers, would render it next to impossible to supply them. The power of these municipal officers is limited in the statute by the demands of “public convenience or health,” which obviously require that the refuse matter and impurities in large cities should be deposited and dissipated in the sea, which is the great receptacle provided by nature for the offscourings of the land. . If the adjudication of the municipal officers of the city of Portland upon the question of “public convenience or health” was open for revision, we see no objections to affirming their decision. But their adjudication is conclusive upon that matter.

° When the outlet of the sewer was built, the plaintiff company had extended their wharf into tide waters below low water mark under the authority of a grant from the legislature. Neither party had any right to make any erections there so as to obstruct navigation without legislative authority therefor. With such permission, they respectively had the right to make and maintain erections according to their respective grants and the law in such cases. The act under which the sewer was built is silent as to the rights, duties and liabilities of the city in respect to the disposition of the deposits that might accumulate at the outlet of the sewer, and the several legislative acts passed for the benefit of the wharf company contain no provisions upon this subject. The questions in dispute between the parties, therefore, are to be determined by a construction of these respective statutes and the rules of law applicable to the facts in the case, it being premised that both parties have rightfully made their respective erections.

The right to build the sewer and outlet implies the right to use them for the purposes for which they were intended, to wit, for the collection and discharge of the debris of that part of the city, where they should be constructed, into the dock below low water mark. But it is to be borne in mind that the right to do this being in contravention of the right of the public, at common law, to use the sea as a public highway, should be construed strictly and made to harmonize, as nearly as may be, with this paramount right of the public; for wo do not, by any means, assent to the proposition of the counsel for the defendants that the right of navigation is subordinate to the right of sewerage. No authority has been cited to sustain that position, nor is it reconcilable with the well established doctrine of the common law.

The public right to tile navigation of the sea is not qualified or limited, at common law, by any private or municipal right of sewerage. “It is an unquestionable principle of the common law,” say the court, in Arundel v. McCullock, 10 Mass. 70, “that all navigable waters belong to the sovereign or, in other words, to the public, and that no individual or corporation can appropriate them to their own use, or confine or obstruct them so as to impair the passage over them, without authority from the legislative power.” So in Commonwealth v. Charlestown, 1 Pick. 180, Parker, C. J., says : “There can be no doubt that, by the princij pies of the common law, as well as by the immemorial usage of this government, all navigable waters are public property for the use of all the citizens; and that there must be some act of the sovereign power, direct or derivative, to authorize any interruption of them.” The same doctrine has been repeatedly held and applied in this state to tide waters and navigable streams. In Gerrish v. Brown, 51 Maine 256, it was held that navigable rivers are public highways, and that if any person obstruct such a river by carting therein waste material, filth or trash, or by depositing material of any description except as connected with the reasonable use of such river as a highway, or by direct authority of law, he does it at his peril, and is guilty of creating a public nuisance.

The statute under which the defendants built the sewer and outlet is not to be construed, therefore, as authorizing an unnecessary infringement of existing rights and privileges ; but it is to have such a construction that the wharf company shall be no further limited or restricted in these respects than may be reasonably necessary to accomplish the purpose of the statutes; and it is the duty of the defendants to exercise the power thus conferred in accordance with this rule. State v. Freeport, 43 Maine, 198, 202. Newburyport Turnpike v. Eastern Railroad, 23 Pick. 326.

The city have the right to use the sewer, and the wharf company the right of navigation and the use of their wharf. These respective rights are to be reasonably enjoyed. Neither party can destroy, or unreasonably and unnecessarily impair the rights and privileges of the other. The purpose of the defendants’ erection under the statute is substantially accomplished by the discharge of the deposits at the outlet of the sewer. It cannot be presumed or implied that the statute contemplated the erection of a public nuisance below low water mark, by allowing the deposits from the outlet of the sewer to accumulate and remain there in such quantities as to menace the public health, obstruct navigation and seriously to impair, if not entirely to destroy, the plaintiffs’ erections, previously made under an act of the legislature of equal authority with that under which the defendants made their erection. Nor is it reasonable to conclude that the grant under which the plaintiffs extended their wharf into tide waters, implies the right thereby to create a public or private nuisance either in the manner of using their wharf or by its disuse and allowing it to go to decay.

The purpose of the legislative grant to the wharf company was, not to destroy or obstruct navigation and commerce but to facilitate them. So the purpose of the statute under which the city acted was not to authorize it to transfer a nuisance from the city to low water mark, or to create one there, but to enable’it to conduct the rubbish and impurities from a particular portion of the city to a point in the sea where they would ordinarily be so distributed and dissipated as not to create a nuisance. If, however, this resuit is not produced either by reason of the action of the elements- or from some other cause than the fault of the plaintiffs, it is the duty of the city to remove those deposits within a reasonable time and in such a manner as to prevent their becoming a nuisance to the public or a private nuisance to the wharf company. The right of the defendants to construct an outfall for their sewer in the sea does not include the right to create a nuisance, public or private,1 it is aright to make deposits temporarily, and not a right to obstruct navigation permanently.

The legal status of the defendants is analogous to that of persons using a public highway, whether upon the land or water, who have a right to the reasonable use thereof, for all legitimate purposes of travel and transportation, though this not unfrequently involves the necessity of a temporary obstruction of the highway. In Davis v. Winslow, 51 Maine, 264, 297, the court use this language : “Firemen in extinguishing fires, builders in erecting or removing buildings, teamsters in hauling logs or masts to market, truckmen in loading or delivering merchandise, shipmasters and boatmen in receiving, transporting and delivering their cargoes, raftsmen in managing their rafts, river drivers in running logs, and mill owners in securing them, oftentimes, of necessity, require so much of a highway as temporarily to obstruct it; but, in such cases, they must so conduct themselves as to discommode others as little as is reasonably practicable, and remove the obstruction or impediment within a reasonable time, having regard to the circumstances of the case; and when they have done this, the law-holds them harmless.”

The view we have taken of this case corresponds with the recent decisions upon this important subject, as the cases cited by the counsel for the plaintiff abundantly show. Haskell v. New Bedford, 108 Mass. 208, 214, is directly in point. In that case the court say: “The owner of any lands bordering upon the sea. may lawfully throw refuse matter into it, provided he does not create a nuisance to others. And there can be no doubt but public bodies and officers, charged by law with the power and duty of constructing and maintaining sewers and drains for the benefit of the public health, have an equal right. But it by no means follows that either the city or any private person has the right to deposit filth upon the sea-shore in such quantities as to create a nuisance to health or navigation. . . . The right conferred upon the city of New Bedford to lay out common sewers through any streets or private lands, does not include the right to create a nuisance, public or private, upon the property of the commonwealth or of an individual, within tide water.”

A more recent case in Massachusetts, that of Brayton v. Fall River, 113 Mass. 218, 230, is substantially a duplicate of the present case in its facts and legal status. The court there held that the plaintiff could maintain an action of tort against the defendants for obstructing his wharf erected upon a tide water creek, with the rubbish from their sewer. “An individual,” say the court in that case, “cannot maintain a private action for a public nuisance, by reason of any injury which he suffers in common with the public. The only remedy is by indictment or other public prosecution. But if by reason of a public nuisance, an individual sustains peculiar injury differing in kind, and not merely in degree and extent, from that which the general public sustains from the same cause, he may recover damages in a private suit for such peculiar injury.

. . . We are of opinion that this was an injury, special and peculiar to him, for which he may maintain this action. He has a right to the water at his wharf at its natural depth. By the filling up of the dock, his use of his wharf for the purposes for which it had been constructed and actually used, were impaired, and he was subject to an inconvenience and injury which,was not common to the public.”

We understand that this is precisely what the plaintiff's complain of in this case, the diminution of the depth of water about their wharf by deposits from the defendants’ sewer, so as materially to interfere with vessels taking in and discharging cargoes there, as they had been accustomed to do. The report of the case sets forth that these deposits had accumulated to such depth as to render “the upper portion of the dock wholly unnavigable, and the _ower portion unnavigable for vessels of large tonnage, and that the plaintiffs have been obliged in order to use their wharf to dredge the dock at large expense.” This would undoubtedly bring the case within Brayton v. Fall River, unless the alleged obstruction was in some part of the dock, not adjoining the plaintiffs’ wharf, and did not diminish the natural depth of the water about their wharf. In that case the injury would be to the public right of navigation which the plaintiffs enjoy in common with the public, and the remedy would be by indictment as the counsel for the defendants contends: their injury, though perhaps differing in degree, would not be special and peculiar to them, but would be the same in kind as that of the public, in which case the private remedy by action would be merged in the public remedy by indictment.

Taking the view of the purport of the report of the case, as before stated, we have come to the conclusion that the defendants under the statute have the right to construct sewers opening into the public docks of the city, and to use them in a reasonable manner for conducting and depositing therein, refuse matter and impurities, but that it is their duty to cause such docks to be cleared of such deposits, whenever they become an obstruction to navigation, or injurious to the public health. If they neglect to do this within a reasonable time, they are guilty of creating a public nuisance and are liable to an indictment; and if such obstruction cause damage to the owners of wharves by diminishing the depth of water about them and thereby impair their use for the purposes for which they were constructed and have been used, causing inconvenience and injury not common to the public, they are guilty of imposing a nuisance upon the wharf-owners, and become liable to an action of tort therefor. If the injury to the wharf owners is merely an injury to the right of navigation in common with the public, the defendants will not be liable in a civil suit. With these qualifications and limitations we answer both of the questions submitted, in the affirmative. Action to stand for trial.

Appleton, C. J., Barrows, Danforth, Virgin and Libbey, JJ., concurred.