Argued Dec. 6, 1861. Decided Dec. 9, 1861.

APPEAL from the District Courts of the

United States for the Northern District of California.

This action was commenced by the petition of Hensley, the present appellee, to the California Land Commissioners, for a tract of land known as Aguas Nieves. The commissioners confirmed his claim to the extent of six leagues, provided that quantity was contained in the boundaries called for by the grant. The United States District Court affirmed this decree, on appeal, and the United States appealed to this court.

The case is sufficiently stated by the court.

Plffs. in Err.,

v.

H. NORTON STRONG and Wm. H. Goodnow. (See S. C. 1 Black, 23-35.)

Wharves and piers, when a nuisance-on rivers and lakes may be private or public-when private, may be exclusive vessels tied thereto, without license-injury by, to pier— right of owners to untie her.

the riparian proprietor on the shore of navigable Wharves and permanent piers, constructed by rivers, bays and arms of the sea, as well as on the lakes, where they conform to the regulations of the state and do not extend below low-water mark, are not a nuisance unless they are an obstruction to navigation.

Whether a nuisance or not is a question of fact, and where they are confined to the shore, and no

Mr. M. Blair, for appellee.

Mr. Justice Grier delivered the opinion of the court:

The claim of the appellee in this case is under the deed of Micheltorena, dated the 22d of December. 1844, commonly called the Sutter General Title. It differs in no material respect from the other titles or claims already adjudged by this court, in which this grant was in question. The cases of U. S. v. Nye, 21 How. 409; U. S. v. Bassett, 21 How. 412; U. 8. v. Bennitz, 23 How. 255; U. S. v. Rose, 23 How. 262, settle the question that the claim of the appellee is invalid. The decree of the 38] district court is, therefore reversed, *and the cause remanded, with directions to that court to dismiss the petition.

Decree accordingly.

Subsequently, on Jan. 9, 1862, Mr. Blair moved that the order of Dec. 9 be rescinded. This motion was denied; and again on March

tion, the presumption is that they are not an obstruction, and he who alleges the contrary must prove it.

The same general principle is applicable to the lakes. Wherever the water of the shore is too shoal to be navigable there is the same necessity for

such erections as in the bays and arms of the sea. The right to erect the same must be understood as terminating at the point of navigability, where the necessity for such erections ordinarily ceases. be private or they may be, in their nature, public; Piers or landing places, and even whårves, may although the property may be in an individual

owner.

The owner may have the right to the exclusive

enjoyment of the structure, and to exclude all other persons from its use; or he may be under obligation to concede to others the privilege of landing their goods, or of mooring their vessels there, upon the payment of a reasonable compensation as wharfage.

A riparian proprietor may construct any one of these improvements, for his own exclusive use and benefit.

If not located in a harbor, or other usual resting place for vessels, and if confined within the shore of the sea or the unnavigable waters of a lake, and NOTE. Right to crect wharves-see note, 40 L. R. A. 635.

Racine, or to put out into the lake, as she otherwise might and would have done; and, in consequence of the obstruction, was by the wind and waves, ( driven on the shore, and against a cer28] tain dock, and greatly damaged as *alleged in the other counts of the declaration. To the whole declaration, as more fully set forth in the transcript, the defendants pleaded that they were not guilty, and on that issue the parties went to trial. None of the evidence given by the defendants is reported in the bill of exceptions; but it appears, from that introduced by the plaintiffs, that the schooner was bound from Chicago, in the State of Illinois, to Racine, in the State of Wisconsin, and that she was sailing in ballast. Assuming the testimony of the master to be correct, she left Chicago on the 6th day of May, 1855, and arrived off the harbor of Racine between twelve and one o'clock at night, in perfect safety. When she was about one fourth of a mile from the harbor, the wind suddenly changed from south to northeast, and blew hard. Those in charge of the vessel state that they could see but one light at the time; and, supposing it to be the light on the northern pier in the harbor to which they were bound, they headed the vessel for that light. Contrary, however, to what they supposed, there was no light on either of the harbor piers, and, in point of fact, it was a light on the bridge pier of the defendants. Heading for that light, the vessel, as she advanced, was approaching the shore, and she soon passed between the two bridge piers, already described as situated southerly of the harbor. When they got close to the light they discovered the mistake; but instead of changing the course of the vessel, they took in sail and let go the anchor to prevent her from going on to the beach. Whether these precautions were the best that could have been adopted, or not, they had the effect to check the speed of the vessel, and, as she ceased to make headway, she sagged over against the southern bridge pier without receiving any injury. Their next step was to get out lines on to the bridge pier of the defendants, in order to work the vessel away from the southern pier, and prevent. her from pounding. Finding that the lines were insufficient, they got out the large hawser and two other lines, and finally, with the aid of six additional men, and after getting out another hawser belonging to the vessel, and purchasing a new one for the purpose, they succeeded in getting the vessel up to the bridge 29] pier of the defendants, or near it, at four o'clock in the morning. Her bow, as the master states, was still thirty or forty feet from the pier and he says he bought the new line and employed the additional help to heave the vessel up to the pier, which was not fully accomplished until ten o'clock in the forenoon. Seeing that the wind and sea had increased in the meantime, they then concluded to make her fast to the pier; and, accordingly, got out the chain and fastened it to a pile on the opposite side of the pier, using, for that purpose, the hawsers and lines previously got out to work the vessel up to the pier. About twelve o'clock the vessel commenced pounding, and the pile to which the chain was attached started and passed through the pier eight or ten feet, and the clear inference

from the testimony is, that all the fastenings gave way, except the new line and the chain. Another witness, examined by the plaintiff, states that when the vessel commenced pounding, the pier began to start; and he says it was two o'clock in the afternoon when the pile to which the chain was attached gave way. Although it gave way, it did not then pass entirely through the bridge pier, but lodged against other piles on which the pier was built and, consequently, the chain, would still assist in holding the vessel, unless the pile broke, or that part of the pier was carried away. At this juncture, one of the defendants came upon the pier and directed the master to get the vessel away from the pier, informing him that if he did not he would cast her adrift; to which the master replied, that he would leave, if possible; and if not, he would continue to hold on to the bridge pier. But he did not make any attempt to leave, and a person in the employment of the defendants cut the hawser. When the hawser was severed, and the strain came upon the chain, the second mate of the vessel says the rest of the piles gave way, and the vessel went over to the south bridge pier, carrying away her stanchions and bulwarks on her larboard side; and, to prevent further damage, she was scuttled, by the order of the master, and presently sunk. Such is the substance of the testimony introduced by the plaintiffs, as reported in the bill of exceptions. Several prayers for instructions to the jury *were pre- [*30 sented by the defendants, but, in the view we have taken of the case, it will only become necessary to refer to the second, and to the response given thereto by the court. By the second prayer of the defendants, the court was requested to instruct the jury, that if they believed, from the evidence, that it was material for the preservation of the pier to cut the vessel loose from it, the persons in charge of the pier had a right to do so, as against all rights of property in the vessel, after reasonable notice given, and request made and refused for the vessel to leave. But the court refused to give the instruction, as requested, and charged the jury, in substance, as follows: that if the vessel was attached to the pier towards its outer end, and was in peril, the owner of the pier could not put the vessel in greater peril by cutting her loose for the safety or protection of the pier. He also told the jury that the pier was run out into the lake for the accommodation of commerce, and was used as private property in public business; that the vessel was liable for such damage as she was doing the pier; and that the owners of the pier were not justifiable or excusable for cutting the vessel loose, even if it was material for them to do so for the safety or protection of the pier, or of that part to which the vessel was attached. Under the instructions of the court, the jury returned their verdict in favor of the plaintiffs, and the defendants excepted to the instructions given, and to the refusal of the court to instruct the jury as requested.

It is insisted by the defendants, that the District Judge erred, as well in his refusal to instruct the jury as requested, as in the instructions given.

On the part of the plaintiffs, both of those propositions are controverted; and they contend, in the first place, that the bridge pier was a nuisance, because, as they insist, it was an obstruction to the public right of navigation; and, secondly, they contend that the defendants had no right to cut the hawser, and cast the vessel adrift, however necessary it was for them to do so, for the safety and protection of the bridge pier, because, as they insist, the defendants, by erecting the pier in the waters of the lake, had impliedly licensed the plaintiffs, 31*] and all others navigating those waters, to come there with their vessels, and moor them to the pier; and that the license, of necessity, includes the right to use the pier, according to the exigencies of the case.

1. Unless it be true, that every landing place and bridge pier erected on the shore of navigable waters, without a special authority from the legislature, is necessarily a nuisance, it is a sufficient answer to the first position of the plaintiffs, to say, that there was not a particle of evidence in the case to support the theory of fact on which the proposition is based. All that appeared upon the subject in the court below was, that the bridge pier in question extended several hundred feet into the waters of the lake; but it was not even suggested that any less extension would have answered the purpose for which the pier was constructed; or that it was any greater than is usual in similar erections on that shore of the lake or that the pier, as constructed, constituted any obstruction whatever to the public right of navigation. On the contrary, the court adopted the theory that the vessel or her owners would be liable for the damage done to the pier, and sustained the right of the plaintiffs to recover, entirely upon the ground that the peril of the vessel justified the master in refusing to leave; and that the defendants, whatever might be the consequences to the pier if the vessel remained, had no right to cut the hawser, and thereby expose her to greater danger, notwithstanding they were in the possession of the pier, and it was admitted that it was their private property. Bridge piers and landing places, as well as wharves and permanent piers, are frequently constructed by the riparian proprietor on the shores of navigable rivers, bays and arms of the sea, as well as on the lakes; and where they conform to the regulations of the state, and do not extend below low water mark, it has never been held that they were a nuisance, unless it appeared that they were an obstruction to the paramount right of navigation. Whether a nuisance or not is a question of fact; and where they are confined to the shore, and no positive law or regulation was violated in their erection, the presumption is that they are not an obstruction, and he who alleges the contrary must 32*] prove it. Wharves, *quays, piers, and landing places, for the loading and unloading of vessels, were constructed in the navigable waters of the Atlantic States by riparian proprietors at a very early period in colonial times; and, in point of fact, the right to build such erections, subject to the limitations before mentioned, has been claimed and exercised by the owner of the adjacent land from the first settlement of the country to the present time. Ang. Tide Wat. p. 196.

Our ancestors, when they immigrated here, undoubtedly brought the common law with them, as part of their inheritance; but they soon found it indispensable, in order to secure these conveniences, to sanction the appropriation of the soil between high and low water mark to the accomplishment of these objects. Different states adopted different regulations upon the subject; and, in some, the right of the riparian proprietor rests upon immemorial local usage. No reason is perceived why the same general principle should not be applicable to the lakes, although those waters are not affected by the ebb and flow of the tide; and, consequently, the terms "high and low water mark” are not strictly applicable. But the lakes are not navigable, in any proper sense, at least in certain places, for a considerable distance from the margin of the water. Wherever the water of the shore, so to speak, is too shoal to be navigable, there is the same necessity for such erections as in the bays and arms of the sea; and where that necessity exists, it is difficult to see any reason for denying to the adjacent owner the right to supply it; but the right must be understood as terminating at the point of navigability, where the necessity for such erections ordinarily ceases.

2. Piers or landing places and even wharves, may be private, or they may be in their nature public, although the property may be in an individual owner; 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; or he may be under obligation to concede to others the privilege of landing their goods, or of mooring their vessels there, upon the payment of a reasonable compensation as wharfage; and whether they are the one or the other may depend, in case of [*33 dispute, 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. Undoubtedly, a riparian proprietor may construct any one of these improvements for his own exclusive use and benefit, and, if not located in a harbor, or other usual resting place for vessels, and if confined within the shore of the sea, or the unnavigable waters of a lake, and it had not been used by others, or held out as intended for such use, no implication would arise, in a case like the present that the owner had consented to the mooring of the vessel to the bridge pier.

Looking at the statement of the facts, as derived from the evidence reported in the bill of exceptions, it is obvious, that every one of the foregoing conditions substantially concur in this case; and, consequently, it must be assumed that the master attached the vessel to the pier without any authority from the defendants, either express or implied. He had no business to transact with the plaintiff, and the vessel was not going to the pier for freight; so that all pretense of a license utterly fails.

That fact alone, however, under the circumstances of this case, might not perhaps be sufficient to justify or excuse the defendants for cutting the hawser. Every man is bound by law so to use his own property as not to injure the property of another; and, unless the defendants are brought within the fair operation of