Assuming that, if the defendant is constructing his wharf below low water in front of the plaintiff’s lot in a manner to obstruct or impair access to his lot by water, the plaintiff may maintain his bill in equity for the injunction prayed for, (but on this point we express no opinion) still, the facts being in issue it is incumbent upon the plaintiff to prove them. The plaintiif alleges in his bill, that all of the wharf below low ■water mark, if completed, would lay directly in front of his lot. The defendant, in his answer, denies this allegation. The burden is on the plaintiff to prove it.
*286
*287The only evidence in the case is the deeds to the parties, and the plan, which are made a part of the case.
The construction of the defendant’s deed was before this court in Dillingham v. Roberts, 75 Maine, 469, and it was held that it embraced the flats in front of the upland, extending the land conveyed to low water mark. The lines across the flats must be located by the rules laid down in Emerson v. Taylor, 9 Maine, 42. The plaintiff’s deed, by its terms, extends his west line, without an angle, to low water mark, but the defendant’s deed was prior to the plaintiff’s, and when the plaintiff’s line called lor by his deed strikes the (defendant’s line on the flats it must stop ; and from that point to low water, his line is co-incident with the defendant’s.
Applying these rules to the plan, we are not satisfied that any portion of the wharf can be said to be in front of the plaintiff’s land. The location of the lines across the flats cannot be determined by the plan with accuracy, but may be approximately, and thus determined, if the defendant’s line across the flats should be extended below low water as far as the wharf extends, it does not appear that any material portion of the wharf will extend over that line.
Nor does it appear, by any evidence in the case, that the wharf will materially affect the access by water to the plaintiff’s land.
The decree must be,
Bill dismissed without prejudice.
Costs for defendant.
Peters, C. J., Walton, Virgin and Haskell, JJ., concurred. Emery, J., did not sit.