The complainant is the owner of an ancient wharf in Newport, called the Cahoone Wharf. The respondents are owners of the wharf next south, called the Freebody Wharf. There is a dock or open space of water between the two wharves, which has been long used for access to both wharves, and especially for access to the Cahoone Wharf, which, on account of its narrowness, does not furnish convenient facilities on its front for lading and unlading vessels. The respondents own the land at the head of this dock or open space of water. An act establishing a harbor line in the public waters of Newport was passed in 1873. Since the establishment of the harbor line, which runs in front of the dock and wharves, the respondents, claiming the right so to do, have commenced to fill the dock. The complainant brings this bill to have the respondents enjoined from so doing, and to have them ordered to remove the obstructions already placed in the dock, and for general relief.
Evidence adduced at the hearing shows that the Cahoone Wharf has existed from a period beyond the memory of living witnesses. It is mentioned in a deed of the date of 1782. It was conveyed to George Engs in 1842. Benjamin Finch testifies that he has known it for fifty years; that when he first knew it the front end was broken down and dilapidated, and landing was effected on the south side; that Engs fitted it up and landed on the south side, end, and north side; that the owners of the *Page 222 wharf used the dock at pleasure, their right to use it being until recently undisputed. He also testifies that thirty years ago, Newport wharves were of little value, most of them being down. Similar testimony is given by other witnesses. George B. Hazard testifies that the end of the wharf was too narrow to land at. Samuel Engs, the complainant, testifies that he understood the dock was a part of the public waters and he had a right to use it. Evidence for the respondents shows that many years ago the dock was in use as a landing-place for a horse- or ferry-boat.
The counsel for the complainant contends, that we ought, on this evidence, to presume a grant from the town of Newport, as the agent of the state, or under the act of 1707, to the complainant's predecessors in title, of a right to build and maintain the wharf, and to use the dock in connection with it. He contends that we can so presume in the absence of any record, upon the supposition that the record has been lost, and that the supposition of loss can be readily made, because the records of Newport were totally destroyed in 1779.
We do not care to speculate in regard to the origin of the Cahoone Wharf. We will assume that it has always rightfully existed. The difficulty is in the complainant's claim to the adjoining dock. His counsel contends that a grant of the wharf would carry a right in the dock, because, without the dock, the wharf would be valueless. There would be force in this argument if the dock were the private property of the grantor of the wharf. The dock was a part of the public waters of the state. The grantee of the wharf would have a right to use the dock without any grant. It is not necessary, therefore, to imply, as incident to a grant of the wharf, the grant of any private right to use the waters adjoining the wharf, and without necessity the implication will not be made. Indeed, the complainant says he understood the dock was a part of the public waters, and he had a right to use it.
It is equally difficult to support the complainant's claim as a claim by prescription, even if we may admit his claim could be so established. The dock, we repeat, is a part of the public waters. As such the complainant and his predecessors have always had a right to use it. Mere use of it, therefore, however long continued, *Page 223 is no evidence of any right to use it beyond the right belonging to them in common with the rest of the public. To establish a private or peculiar right in them, it would be necessary to show a use to the exclusion of the public, or in derogation of the public right, or, in other words, a long continued or immemorial use enjoyed under circumstances implying a grant of some private or peculiar right to use it. There is no evidence which satisfies us that there has been such a use. Indeed, as we have seen, the complainant himself understood the dock was a part of the public waters and he had a right to use it, meaning, as we understand the implication, he had a right to use it because it was a part of the public waters.
The complainant claims a right to maintain his bill, even if he has no private easement in the dock, because as owner of the Cahoone Wharf he will suffer a special injury by the filling up of the dock. The complainant would be entitled to relief on this ground, if the filling up of the dock were a public nuisance. The respondents contend that it is not a public nuisance, but that under the Harbor Line Act they have the right to fill and occupy the water in front of their land out to the harbor line. The complainant replies that the Harbor Line Act contains no grant of the soil between the shore and harbor line, and that its only effect is to abolish the remedy by indictment for obstructions placed within the line. The act does not contain any word of grant. It establishes and defines the line, and prescribes a penalty or forfeiture, to be recovered by indictment, for obstructions created outside of it. It does not in terms abolish any of the common law remedies for obstructions created within the line. It is not claimed, however, that the act has no other effect than to prescribe a statutory penalty for obstructions committed outside the line established by it. The simple establishment of the line has a meaning of itself, and would still have a meaning, even if the provision in respect to obstructions committed outside the line were totally omitted. The question, then, is, What does it mean? At common law the erection of a wharf in tide waters is not indictable as a nuisance unless it obstructs navigation. In this state this doctrine has been liberally applied for the benefit of riparian proprietors. Such proprietors have been very freely permitted to erect wharves, and even to make new *Page 224 land by filling the flats in front of their land. We are not aware that the state has ever laid claim to any wharf so built, or any land so made, unless the cove lands filled by the city of Providence can be considered an exception. Our harbor line acts are to be construed in the light of this doctrine and practice. The establishment of a harbor line, when so construed, means that riparian proprietors within the line are at liberty to fill and extend their land out to the line. A harbor line is in fact what it purports to be, the line of a harbor. It marks the boundary of a certain part of the public waters which is reserved for a harbor. The part so reserved is to be protected from encroachments. The rest is to be left to be filled and occupied by the riparian proprietors. Its establishment is equivalent to a legislative declaration that navigation will not be straitened or obstructed by any such filling out.
The counsel for the respondents refers to the case ofManchester v. Hudson,1 and says Chief Justice Bradley in that case instructed the jury as the decision of the full bench, that where a harbor line is established, the title of the riparian proprietor extends to the harbor line, and he has a right to occupy and fill up at his pleasure. Upon this point the case never came before the court in banc. We presume Bradley, C.J., may have conferred with his associates, and that he gave instructions appropriate to the trial. We think, however, it would be going too far to hold that the mere establishment of a harbor line conveys all within the line absolutely to the riparian proprietors. This would make all within the line private property, and extinguish the public rights of navigation and fishery. We think the establishment of a harbor line, if it is to be construed as a conveyance, is to be construed as a conveyance which at least is subject to those rights, until they are excluded by filling or wharfing out. But it is not necessary for us to go even so far as that in the case at bar. It is enough for the respondents if we hold that the establishment of a harbor line operates as a license or invitation to the riparian proprietor to fill or wharf out to that line. We think it *Page 225 has at least such an effect. Whether the riparian proprietor, who has filled or wharfed out, has as against the state the same absolute dominion over the wharf and new-made land as over his upland, is a question which we need not now determine.
We have said that in our opinion the Harbor Line Act is a good defence to the complainant's bill if it can be construed as a license or invitation to the riparian proprietors to fill or wharf out to the harbor line. We think so for this reason. The complainant seeks to maintain his bill on two grounds: 1st. Because he has a private right or easement in the dock which will be destroyed by filling it. 2d. Because the fee of the dock is in the state, and filling it, if not a public nuisance, is an unlawful intrusion or purpresture which will be especially injurious to him. We cannot maintain the bill on the first ground, because we do not find that the complainant has any private right or easement in the dock. And we cannot maintain the bill on the second ground, because if the respondents have the license or invitation of the state to fill or wharf out, it will be no nuisance and no unlawful intrusion or purpresture for them to accept the license or invitation and fill the dock. The complainant can no more complain of an act done in the dock by the respondents under the license or upon the invitation of the state, than he could complain of the same act if done by the state itself. Indeed, we do not very well perceive how any party except the state could proceed against a mere purpresture either for the purpose of abating or preventing it.
The complainant claims a partial relief on still another ground. He says the respondents purpose filling out at greater width than they are entitled to fill out upon a just apportionment, the harbor line being shorter than the shore line. This claim, if it can be made on the bill as framed, raises a question which we prefer not to dispose of without further hearing. We will let the case stand for further hearing if the parties desire it.
1 See Records Supreme Court, Providence Co. vol. 22, pp. 19, 14. Declarations, No. 1899. Exceptions, No. 245. Oct. Term, 1867. See also ante, p. 214. *Page 226