New York, N. H. H.R. Co. v. Long , 72 Conn. 10 ( 1899 )

The first two assignments of error are general; but taken in connection with the claims of law appearing of record in the defendants' request for a finding, which claims the trial judge refused to state in the finding of the court, we think they are sufficiently specific. Counsel are entitled to have their claims of law, for a proper presentation of which a finding is asked, stated in the finding substantially as made upon the trial. A failure to do this may justify a correction of the finding, or may serve to excuse the general assignment of error that the facts found do not support the judgment rendered.

The material issues in this action are clearly defined and limited by the complaint and answer. They are: 1. A threat by the defendants to create a public nuisance by erecting in navigable waters a structure which will be an unlawful obstruction to navigation. 2. Injury resulting from the nuisance to the plaintiff of a kind peculiar to him and different from that suffered in common with the public.

The court has found the second issue for the plaintiff; but has not, unless by implication, made a finding in respect to the first issue. The claim of the defendants is that the facts which the court has found as the basis of its judgment, justify and legally require a finding of the first issue for the defendants.

The alleged nuisance consists in the extension of an existing wharf within the lines of the wharfing easement. This easement is owned by the city of New London, and the fee of the upland to which the easement is incident is in the city of New London. So far as public rights in navigable waters are affected, it is immaterial whether the city owns this upland solely in its corporate capacity, or as trustee for the inhabitants of New London, or in part as legal custodian of the highways and public places established for the use of those inhabitants; in any event the full ownership and control with all the riparian rights attached to that ownership, is in the city. The city therefore has the right to build the wharf structure.

The lease which the court finds the city has given to the defendants, confers upon them all the powers of the city in respect to this wharf and its extension, for a term of ten years. The defendants, therefore, in building the threatened wharf, act under authority of the city, the owner of the wharfing easement.

We do not understand these conclusions to be seriously questioned; we do not doubt that they result from the facts found by the court, and we think they are inconsistent with the judgment rendered.

The conclusions of the court that a public highway has been laid out to navigable waters, that the existing wharf at the foot of this highway and any extension of the same must be a public wharf or landing place, and that the defendants threatened to obstruct the use of such public wharf or landing so as to create a public nuisance, — are without the issues raised by the allegations of the complaint and the denials of the answer, and cannot affect the judgment in this action.

The court has failed to distinguish between a public nuisance consisting in an unlawful structure in navigable waters, and a public nuisance consisting in an unlawful use of a lawful structure in such waters. The two are clearly distinct; they depend on different conditions and affect different interests.

Any structure in navigable waters affecting the free passage of vessels is a public nuisance, unless erected in the exercise of rights of private property or in pursuance of public authority. The owner of land abutting on navigable water has authority, in the exercise of rights of property, to build a wharf to the channel, unless restrained by peculiar conditions of navigation or by public regulations. (Such restraints do not affect the present case.) A riparian proprietor whose land is bounded by a navigable stream has certain rights, as such, among which, in the language of MR. JUSTICE MILLER, are "access to the navigable part of the river from the front of his lot, the right to make a landing, wharf or pier for his own use or for the use of the public, subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public, whatever those rights may be." Yates v. Milwaukee, 10 Wall. 497, 504. The right is, to build a structure in the water for more convenient access to and from the channel. This structure is a wharf, pier or landing. Its use may be confined to the owner, or shared with the public; but its use, whether public or private, has no relation to the fact of its being a legal structure; that depends on the ownership of the upland, and is in no way affected by the character of its use as a wharf. The status of the wharf as a legal structure is controlled by the ownership of the upland; the right of the owner to exclude the public from its use is controlled by other and different considerations. "Piers or landing places, and even wharves, may be private, . . . or, in other words, the owner may have the right to the exclusive enjoyment of the structure, and to exclude all other persons from its use." The question whether they are so, or are open to public use on payment of reasonable compensation as wharfage, depends in such cases "upon several considerations, involving the purpose for which they were built, the uses to which they have been applied, the place where located, and the nature and character of the structure." Dutton v. Strong, 1 Black, 23, 32.

But whether the wharf be public or private, the structure is legal if built in pursuance of riparian right. It cannot be abated as a nuisance interfering with free navigation, because of conflicting claims as to its use. Being a public wharf, the owner or other person may, by placing upon it buildings, or in other ways, so appropriate it to his exclusive use as to obstruct its use by the public; and these acts may constitute a public nuisance which may be abated or restrained on application of the State, or of an individual who suffers a special or peculiar injury by this exclusion of the public from the use of the wharf. But such nuisance is not an obstruction to the free use of navigable waters; the wharf structure cannot be abated because of such nuisance; and the actual nuisance cannot be restrained at the suit of an individual whose special injury results wholly from the existence of the wharf structure and not at all from its misuse. So in this case, the public who may be entitled to compel these defendants to remove the house now on their wharf and to have them enjoined from obstructing the public in the use of the existing wharf or any extension thereof, must found the right to such remedy upon the legality of the existing wharf and its extension, and its beneficial use to the public; while the public who may be entitled to have the existing wharf abated as a nuisance in navigable water and the defendants enjoined against its extension, must found the right to such remedy on the illegality of the existing wharf and the injury to the public of its use and extension. It is difficult to fancy two public nuisances more distinct and even antagonistic in their nature than these two, i.e. the one which the plaintiff has alleged in its complaint and the one which the court has found as the basis of its judgment.

The fact that the defendants are guilty of a nuisance in the use of their wharf as found, and intend to use its extension in the same manner, does not authorize the court to abate the existing wharf nor to enjoin its extension; and the fact that this plaintiff may suffer a special injury from the existence and extension of the present wharf, does not entitle it to apply for an injunction against a nuisance consisting in obstructing the public use of the wharf, when he neither alleges nor proves special damage by reason of such nuisance.

These considerations dispose of the case and render it unnecessary to discuss other questions that have been argued. The defendants claim that the conclusions of the court as to the public highway and landing are not supported by the facts found, and that admitted and undisputed facts have been improperly omitted from the finding as drawn. These claims may or may not be true. Some of the deductions of the court may invite argument; and the law in respect to the controlling principle affecting the riparian rights of the owner of the fee and of the public, when a highway adjoins navigable water, is neither clearly defined nor well settled. These questions may affect important interests of the public and of the city of New London, which should not be passed upon incidentally. It is sufficient for the determination of this case that, whether the conclusions of the court as to a highway and public landing be right or wrong, the facts found by the court demand a denial of the injunction.

There is error and the judgment of the Superior Court is reversed.

In this opinion the other judges concurred.