Sherman v. Sherman

The bill proceeds on the theory that the waters of the cove and of Point Judith Pond are public navigable waters. It is averred in the bill and appears in proof that the complainant, at the May term, 1889, of the Court of Common Pleas for Washington County, recovered a judgment on the verdict of a jury assessing damages in the sum of five dollars against George P. Sherman, Sr., the predecessor in title of the present respondents, for the continuance and maintenance of the causeway southerly from Gooseberry Island into the waters of the cove, between September 20, 1886, and April 3, 1889. The jury, in returning this verdict, must necessarily have found as a fact that the waters of the cove and of Point Judith Pond were public navigable waters. That fact, therefore, is res judicata, and no longer open to controversy between the parties. Moreover, the establishment of the harbor line referred to in the pleadings is averred in the bill, and not denied in the answer, to have been on the application of the said George P. Sherman, Sr., and his children, the latter being the present respondents. The establishment of a harbor line presupposes that the waters in which it is established are public navigable waters, since unless such the Harbor Commissioners would have no authority to establish such a line. For the purpose of the present suit, we must assume that the waters in question are public navigable waters, and, consequently, that the Harbor Commissioners had jurisdiction to establish said harbor line.

The complainant contends that the action of the Harbor Commissioners in establishing this harbor line was unconstitutional and void, because the effect of filling out to it, as he contends, will be to deprive him of access to his land; that the right of access to his land by a riparian proprietor is property which cannot be taken from him without compensation; and that the statute conferring on the Harbor Commissioners authority to establish a harbor line makes no provision for compensation for the taking of such a right. The effect, however, of the establishment of a harbor line, if the line is properly run, is not, to deprive a riparian proprietor of access to his land, but merely to determine a line to which he may fill without encroaching on public rights. If the line is so run as to protect the rights of all riparian owners, or, in other words, in such manner that each may receive the proportionate share of the frontage on the line to which his land is entitled, such owner is not deprived of access to his land, and the action of the Harbor Commissioners cannot be impugned as unconstitutional and void. We cannot say on the proof before us that the action of the Harbor Commissioners in establishing the line in question was not a valid exercise of authority.

We will grant the complainant relief to the extent of appointing commissioners to settle and determine the lines and boundaries of the complainant's interest, and the interests of the respondents and others in the land covered by public tide water in said cove and Point Judith Pond within said harbor line, as provided in Pub. Laws R.I. cap. 510.