This is a bill in equity to abate a nuisance or obstruction to an alleged street or right of way at India Point in the city of Providence. In 1811 the land on India Point belonged to the Fox Point Association, so called, being vested in trustees for the association. In 1815 the harbor line in front of it was established. In 1816 the trustees caused a plat to be made embracing the upland and the land below high-water mark out to the harbor line, and dividing the entire tract into lots, squares, streets, and gangways, designating the lots, upward of one hundred and sixty in number, by letters A to K and by numbers 1 to 153. The trustees inscribed on the plat, under their hands, seals, and acknowledgment, the following declaration, to wit:
"Know all men whom it may concern, that all and singular the within numbered lots are sold and conveyed by us, the undersigned, trustees of the Fox Point Association, in manner following, that is to say: All the squares, streets, and gangways are equally appurtenant to each and every of said lots, and each and every the grantees of the same are equally entitled to use and occupy *Page 354 said square, streets, and gangways as such at all times, excepting that the grantees of all and singular the water lots, their heirs and assigns forever, shall have the exclusive right to demand and receive wharfage for all the streets and gangways adjoining to their several lots respectively, and each and every the grantees of the water lots, on the west and south sides of said plat, beginning at lot number one and ending at lot number twenty-two, inclusively, their heirs and assigns forever, shall have the sole right to use and occupy the several pieces of land west of the street, adjoining their several lots respectively, for all purposes, excepting that they nor either of them shall not, at any time ever hereafter, have the right to erect any permanent building on said pieces of land or either of them, and the grantee of lot number twenty-two, his heirs and assigns forever, shall have the same right to use and occupy the land south of said lot adjoining said street, subjected to the same restriction as aforesaid."
The plat was afterwards recorded, and all the lots designated on it were sold from time to time. The lot designated as lot A, and a portion of the lot designated as lot 56, became the property of the complainant, which continues to own them. Lots 13 to 22, inclusive, became the property of the defendants, who continue to own them.
The bill does not expressly allege that the lots were conveyed under and by reference to the plat, nor does it anywhere appear that such was the fact. We infer, however, from the manner in which the case was submitted to us, that it was supposed we would take it for granted that the conveyances were so made, and accordingly we shall do so.
The alleged street or way here in controversy was among the streets or ways designated on the plat. It was, when platted, below high-water mark, and of course existed at that time only on paper. The land over which it was delineated has since then, and after conveyance, been reclaimed from tide-water by filling out the upland. It lies over or along the front of lots 13 to 22, conveyed to the defendants, said lots being situated at the extremity of India Point, on or near the side of the harbor. The defendants have erected a fence across it, thereby obstructing access to and travel over it. The complainant contends that this *Page 355 is an interruption of its right of way and has brought this suit to get the fence removed.
The defendants interpose among other defences the two following, to wit: first, that the street or way was never lawfully created, because at the time of its alleged creation the land over which it was laid was flowed by tide-water; andsecond, that if it was lawfully created, the part of it lying along or over lots from 13 to 22, inclusive, has become extinguished by unity of title or ownership of these lots. The only question now submitted to us is whether these two defences, or either of them, is valid.
We think the first defence, to wit, that the way or street was never lawfully created, cannot be maintained; for though it may be true that the way or street had no actual existence when the conveyances under which it is claimed were made, we think it had nevertheless what may be called a potential or prospective existence, which would become actual whenever the place for it should be filled and incorporated with the upland, and though the conveyances when executed may have been ineffectual to create the way or street, because the site of it was flowed by tide-water, yet we think they were binding by way of estoppel on parties and privies, so that in equity, at least, the said parties and privies could not refuse to allow the way or street as soon as the land designated for it because capable of supporting it. The ground of the estoppel is, that the easements and servitudes indicated by the plat constitute a part of the consideration for which all conveyances referring to the plat are made, and therefore no person, while claiming under the conveyances, can be permitted to repudiate them or to deny that they exist where they are capable of existing.
In coming to this conclusion we make little account of the Harbor Line Act. The ostensible purpose of that act is not to confer any new right, title, or interest on the riparian proprietor, but only to prevent his encroaching too far on the space required for the harbor. It amounts simply to a license to him to fill out to the harbor line, or to an implied declaration that in filling out to it he will commit no encroachment. To hold that it amounts to more would be doing violence to the act, especially in view of the rule that such acts are to be strictly construed, or are to be construed *Page 356 most liberally in favor of the State. See the decision of the Supreme Court of the United States in Charles River Bridge v.Warren Bridge et als. 11 Peters, 420.
The second defence is, that the way, if ever lawfully created, has become extinct, the title to the several lots over which it is laid having become vested in the same owner. We do not think the defence can avail. The way is appurtenant to other lots than those over which it is laid, and among them to the lots belonging to the complainant. The way over the lots belonging to the defendants connects with tide-water, and therefore it cannot be said that the complainant has no interest in the way because the lots over which it is laid all belong to the defendants; for the complainant may want to use it as a way to tide-water, which belongs to everybody.