The plaintiffs have amended their bill since the former hearing, so as to present more clearly a ground of relief which was not expressly passed upon by the court at that hearing. They allege that the proposed wharf, if built as the defendants are proceeding to build it, will occupy a portion of their water front, and they claim that, if this be so, they are entitled to an injunction to prevent it. We agree with them in this view. The ground upon which we refused to continue the injunction at the former hearing was that the defendants were wharfing out in front of their own land, and that the evidence did not show that the wharf, when completed, would materially impair or obstruct the public right of navigation. If, however, the defendants are wharfing out not only in front of their own, but also in front of *Page 488 the plaintiffs' land, then the case presents a different question, which we are not prepared to decide in favor of the defendants. If they propose to occupy with their wharf any portion of the water in front of the plaintiff's land, we will have the injunction so framed as expressly to forbid the encroachment. See Rose v. Graves, 6 Scott N.R. 645.
Are the defendants proceeding to construct their wharf in such a manner that it will encroach upon the water front of the plaintiffs? The plaintiffs do not claim that they are so constructing it that it would extend across the division line between them and the defendants, if that line were prolonged; but they claim that that line prolonged, owing to the conformation of the shore, is not the proper limit of their water front. They claim that their water front covers an extent which can be ascertained only by the application of a rule which has been frequently applied in Massachusetts in the division of tide flowed flats. The rule is this: Where the flats lie in a cove or recess, a front line is to be drawn from headland to headland, and from the front line so drawn division lines are to be drawn through the flats to meet the division lines of the upland at their intersection with the shore, and are to be so drawn as to give to each proprietor a length of the front line proportionate to the length of his shore line at ordinary high-water mark.Rust v. Boston Mill Corporation, 6 Pick. 158; Deerfield v.Ames, 17 Pick. 41; Hopkins Academy v. Ames, 9 Cush. 544;Wonson v. Wonson, 14 Allen, 71. This rule has been approved in other states, and in the Supreme Court of the United States.O'Donnell v. Kelsey, 10 N.Y. 415; Miller v. Hepburn, 8 Barb. 332; Johnson v. Jones, 1 Black, 209. The rule, when applied to a cove or inlet of regular outline, is probably as just as any which can be devised. But it is easy to conceive a shore so irregular in its outline that the rule, if applied without modification, would be very unsatisfactory in its results. Indeed Chief Justice Shaw admits, in Deerfield v.Ames, that, where the shore line is elongated by deep indentations or sharp projections, its length should be reduced by equitable and judicious estimate, before it is employed in making the apportionment. In Maine, a rule has been devised which is quite different from the Massachusetts rule, but which has not been so favorably regarded, because it is too complicated for every application. Emerson v. Taylor, 8 Greenl. 42; and seeNott v. Thayer, 2 Bosw. 10. Even in Massachusetts *Page 489 the rule has not been invariably applied. In Gray v. Deluce others, 5 Cush. 9, flats lying on a curving shore were divided by drawing parallel lines from the ends of the division lines of the upland to low-water mark in such a manner that they would intersect a line drawn from headland to headland of the shore at right angles. And this rule seems to have met the approval of Chancellor Zabriskie in Stockham v. Browning, 18 N.J. Eq. 391.
In the case before us we are not called upon to partition alluvion or flats, but to determine the extent of the plaintiffs' water front. The principle involved, however, is very much the same in the one case as in the other; and we are therefore not insensible to the guidance to be derived from the decisions cited. But those decisions do not establish any one invariable rule, and it is quite evident that no one of the several rules which they do suggest could be applied in all cases without sometimes working serious injustice. In the case at bar a solid rock projecting out to the main channel has preserved the shore of the plaintiffs from detrition at that point, but has allowed quite a deep inward curve beyond that point, while the shore of the defendants, having no such protection, has conformed more to the course of the river. The consequence is, that if we draw a front line from headland to headland, and then draw the division line so as to give to each set of proprietors a length of front line proportionate to the length of their original shore, the division line will pass diagonally across what would ordinarily be regarded as the water in front of the defendants' land. This is a result which does not commend itself to us as either reasonable or just. We have decided upon another rule, which to us seems equitable, and which for our present purpose, in the circumstances of this case, leads to a pretty satisfactory result. The rule is this: Draw a line along the main channel in the direction of the general course of the current in front of the two estates, and from the line so drawn, and at right angles with it, draw a line to meet the original division line on the shore. This rule is not unlike the rule adopted in Gray v.Deluce. It will give the plaintiffs as large an extent of water front as we are disposed to allow them; and upon the front so defined we will grant them an injunction to prevent the defendants from encroachment.
Decree accordingly. *Page 490