Sidebilder
PDF
ePub

visions of the statutes, while a contrary doctrine might in some instances work injustice and oppression. We are not inclined either to limit the scope of the Vannoy case or to modify it, and certainly not to overrule it, for it still meets the approval of our judgments. The law of this State recognizes the sale by retail of intoxicating liquors as a lawful business, in which good and lawful men may lawfully engage. The business is however of such a nature that the law-making power has seen fit to provide by positive enactment that those persons who may engage therein shall pay a certain sum of money into the county treasury, for a license which will authorize them to pursue the business under certain specified restraints for a certain period of time. The statute regulating the sale of intoxicating liquors has placed the business of selling by retail under the power and control of the different officers of the county prescribing the duties of the several county officers, in connection with the business. The board of county commissioners may grant license to sell by retail intoxicating liquors, upon the applicant's giving bond to the approval of the county auditor, but after this grant the applicant "shall pay the treasurer of said county one hundred dollars, as a license fee for one year, before license shall issue to him." 1 R. S. 1876, p. 871, sec. 5. In section 8 of the statute it is provided that no license "shall be granted for a greater or less time than one year." It will be seen from these statutory provisions that the fee of $100 pays for one year's license, and that the license can not be granted for a greater or less time than one year. The license is issued as of the date of the grant, and runs for one year from that date. If the county officers receive the applicant's money and give his license two months, as in this case, or six months, as in the Vannoy case, after the date of the license and of the grant thereof, it seems to us he can not thereafter be prosecuted for a sale made after the grant but before the issue of such license as a sale made without license, without doing violence to the plainest principles of right and justice. If the appellee in this case could be indicted and convicted after the 7th. day of March, 1879, for a sale made before that day and after the 7th. day of January, 1879, as a sale made without license, the practical result would be that his license, though nominally issued for one year, would only cover a period of ten months, and the fee paid by him for one year's license and one year's immunity from criminal prosecution for sales without license, would actually afford him such license and immunity for the period of ten months only. Such a result, we think, would be manifestly wrong and unjust, and is not contemplated by any of the provisions of the statute.

In our opinion the facts offered in evidence by the State were immaterial and incompetent, and the court committed no error in excluding them. We are aware that the conclusion we have reached in this case is not in apparent harmony with the cases of Houser v. State, 18 Ind. 106; Schliet v. State, 31 Ind. 246; and Miles v. State,

33 Ind. 206. These cases were decided when other statutes were in force regulating the sale of intoxicating liquors, but in so far as the questions involved in this case are concerned, these other statutes did not differ substantially from the act now in force on the same subject. To the extent of any actual conflict between our decision in the case at bar and the decisions in the cases cited, the latter are overruled. The appeal of the State in this case is not sustained. NIBLACK, J.

As the facts agreed upon in this case entitled the appellee to an acquittal, I concur with my associates in holding that the additional evidence offered by the prosecuting attorney was inadmissible, but I do not wish to be understood as agreeing that a party can enjoy the immunity which a license to sell intoxicating liquors affords until he has fully complied with all the conditions entitling him to receive a license, and has actually received his license. See Vannoy v. State, supra.

NOTE. The decision of the court in the case above reported, is not only in conflict with the previous decisions of the same court, as therein cited, but with those of several other States.

The case of Houser v. State, 18 Ind. 106, was a prosecution for selling liquor without a license. The sale was shown to have been made on the 22d of October, 1861, and on the 29th of the same month the defendant paid his license fee and received a license to sell for one year from the 4th day of June, 1861, at which date the county authorities had authorized a license to be issued to him. In answer to the question whether the license shielded him from punishment for the sale so made, the court said: "As the proper steps had been taken by the defendant to procure an order for a license to issue, and such order had been made, we do not think the bare fact of a failure to procure, or of the officer to issue such license, would subject him to prosecutions for making sales, if all he was required to do had been performed. But in this instance all had not been done. The sum that he was required to pay for the privilege of making such sales had not been placed in the treasury, nor are we informed whether he had filed the requisite bond." The case was reversed, however, because of the failure of proof on certain points.

In Schlict v. State, 31 Ind. 246, the court said: "It is the license so issued and not the order of the board granting a license that authorizes the applicant to sell by retail. A license may be authorized by the board and yet not to be taken out, and hence the order of such grant does not of itself prove that a license was issued." Wiles v. State, 33 Ind. 206, was also a prosecution for selling without license. The sale was made in the latter part of December, 1869, while the license was not taken out until January 7th, 1870, though it ran from December 7, 1869, to December 7, 1870, the order of the board granting the license having been made December 7th, 1869. The court say: "The order of the county board is not the license, nor does it alone confer the power to retail. It is but one of the preliminary steps in procuring the license. The order may be made, but the applicant may refuse to pay the fee or execute the bond, without which he is not entitled to the license. It is the license itself, properly procured, that confers the right to retail under the statute, and until it is issued no such right is conferred. It is made a penal offense to sell intoxicating liquors without such license,

it is not in the power of the county board or the auditor to grant a license extending back to a prior date, so as to cover offenses already committed. The license can only take effect from the date it is issued." These decisions would appear to be in harmony with those of other States.

The case of Bolduc v. Randall, 107 Mass. 121, was an action for the price of liquors sold, and it was proved that the seller was not licensed in fact until sometime after the sales were made, which fact under the law of that State would render the sales illegal. The Supreme Court say it is no answer to this that a petition for a license had been filed by the seller before the first sale was made. "The license takes effect from its date. It can not protect sales previously made. Nor does the fact that at the time of these sales no commissioners had been elected from the county of Suffolk render these sales valid. It is the seller's misfortune that he could not comply with the only condition by which the sales could be made legally. By the provisions of the statute all licenses are required to bear date of the day when issued, and expire on the first day of May. And although the seller in this instance paid the fee which is in all cases required, yet we can not from this construe the statute as intending to legalize the sales of the whole year, without regard to the time when the license issued. It must take effect from its date."

The same doctrine is held in State v. Hughes, 24 Mo. 147, where the court say: "The order is not the license; and when the license is obtained and dated it looks forward, not backward. It can have no relation back so as to cover the intermediate space. The order for a license would not protect him if he sold liquors before he thought proper to obtain his license; if so, he would not trouble himself to get a license. But it is the license to sell which gives the seller the protection under the law, and this court can not sanction the doctrine of relation back in such cases. The clerk of the county court very properly dated his license when it was issued; he referred to the previous order of the county court, thereby showing his authority to issue the license-not that the license was to have operation and vitality so long before it was in being." In this case, the order granting the license having been made in July, and the license having issued in October, the defendant contended that it must relate back to the date of the order and cover all the intervening time.

In Edwards v. State, 22 Ark. 253, it appeared that the county court, at its [July term, 1860, had granted to the defendant a license to retail liquors for the term of six months from May 13, 1860, and that defendant had retailed between the dates mentioned. In affirming the judgment of conviction the court say: "By retailing without a license the appellant was indictable under the statute; and though jurisdiction is conferred on the county court to grant a license in such cases to operate prospectively, yet it has no jurisdiction or power to make the license operate retrospectively; or, in other words, to cure a past offense or legalize a crime."

In Brown v. State, 27 Texas, 335, the defendant was indicted for selling without a license. The offense was charged to have beeu committed on the 21st day of August, 1863, and the defendant's license bore date of August 25th, 1863, but covering a term of four months from May 20th, 1863. The Supreme Court, on appeal, held that the license should have been made to take effect from the date of its issuance and not from the time when the county court acted upon the application. "Any other practice, "" say the court, "would enable the applicant who had taken the preliminary steps in the county court to obtain license, to

take the chances of violating the law with impunity, reserving to himself the means of defending himself successfully against a prosecution, if it became apparent that one was about to be instituted." H.

RIPARIAN PROPRIETORS.

PROVIDENCE STEAM-ENGINE CO. v. PROVIDENCE, ETC. STEAMSHIP CO.

Supreme Court of Rhode Island, July, 1879.

A riparian owner platted his land into streets, lots, and a square, and made on the plat a declaration, sealed and acknowledged, that the square, streets and gangways were equally appurtenant to each of the lots, and that the grantees of the lots were equally entitled to use and occupy the square, streets and gangways. When platted one of the streets was below high-water mark. It was subsequently filled out and made, and afterwards closed by B, who had purchased all the lots adjoining this street. A, owning by purchase other lots on the plat, filed a bill in equity against B to compel him to reopen the street. B objected to the bill: 1. That the platted lay out of the street being over tide-water was invalid. 2. That owning all the adjoining lots he was entitled to close the street. Held, that neither of these defenses could avail. Held, further, that B, holding under conveyances made with reference to the plat, was estopped from denying the validity of the lay out. Held, further, that the street being appurtenant to the lots of the complainant, as well as to those of the respondent, and leading to tide-water, the respondent could not deny the complainant's interest in the street.

Bill in equity praying for the removal of an obstruction in an alleged street, and for an injunction.

Charles H. Parkhurst, for complainant. Thurston, Ripley & Co., for respondents. DURFEE, C. J., delivered the opinion of the court:

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 highwater mark out to the harbor line and dividing the entire tract into lots, squares, streets, and gangways, designating the lots, upwards 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 hand, 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 square, 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 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 grantees of lot number twentytwo, 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 afterward 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 is an interruption of its right of way and has brought this suit to get the fence removed.

The defendants interpose among other defenses 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; and second, 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 defenses, or either of them, is valid.

We think the first defense, to wit, that the way or street was never lawfully created, can not be maintained; for though it may be true that the way or street had no actual existance 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 became capable of supporting it. The ground of the estoppel is. that the covenants and servitudes indicated by the plat constitute a part of the considerations 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 made 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 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 11 Pet. 420.

The second defense is, that the way, if 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 defense 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 can not 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.

POTTER, J., concurring:

I concur generally in the result at which the majority of the court has arrived. The facts necessary to the decision of the questions now before us can be stated very briefly.

The trustees of the Fox Point Association, claiming to own certain land and adjoining shore rights and water lots, caused the same to be platted in 1816 in lots for sale and with certain streets laid out thereon. The complainants own lots A and 56 on said plat; the respondents now hold lots 13 to 22 inclusive. The complainants claim that the respondents have without right shut up a certain street upon said plat. It is agreed that said street and all the lots held by the respondents

were at the time under water and were not filled up until 1820, and then by the purchasers of said lots and not by said trustees.

Did said street ever have a lawful existence, and if so, has it become extinguished by unity of possession? It is contended by the respondents that the said platting and conveyance of lots and of any rights in any supposed streets was totally invalid as to that portion of the platted land then under water.

In all questions relating to our shores a very important preliminary consideration is, whether the English common law upon this subject was ever adopted here in its full extent. By the patent of 1643, the laws were to be "comformable to the laws of England so far as the nature and constitution of the place will admit." By the code of 1647, it was voted to "receive and be governed by the laws of England, together with the way of administering of them so far as the nature and constitution of this plantation will permit." The laws of Oleron were adopted, and the recorder was required to keep the general purchases, which are all we can show for our rights to our lands,” and the charter which gave a right to exercise authority. It is well known that our ancestors claimed to hold their lands by purchase from the native proprietors and not by grant from the crown. The charter of 1663 used substantially the same language as the patent of 1643. It is very evident that however as a matter of policy, they may have adopted the usual langauge of charters, they really considered it as a charter of government only, for they had already purchased nearly all the land before. and the remainder they purchased of Ninigret afterwards, and did not claim to hold it of the king.

There is a great difference in the character of the shores of the two countries. And as to the rivers, there are but few rivers in England which would be navigable but for act of parliament, and the repair of their banks and their navigation are regulated by statute. So also in many cases as to marshes. See Ball v. Herbert, 3 Term Rep. 253; and as to Rumney Marsh, see 4 Inst. 276, 277.

To apply the common law doctrine strictly would require us to hold that all the marshes in the State belong to the State: yet from the very first settlement, although flowed by the tide, they have always been recognized as private property, platted and sold as such, taxed as such, and the State has made provisions by statute for exempting them from the fence laws, for the very reason that they are overflowed by the tides. See also as to sedge flats in Connecticut, Church v. Meeker, 34 Conn. 421.

Again it is important to inquire into the nature and extent of the right, formerly of the Crown, now of the State, in the shores. The shore in the common law includes only the space between ordinary high and ordinary low-water mark. The true doctrine seems to be, as the result of the decisions, that the State has the governmental control of the shores and tide-waters for the benefit of the public, in order to protect the public rights

of passage or other rights on the shore, and to protect the navigation. Angell on Tide Waters, 27, and cases cited.

It was the policy of the English law, and especially of the feudal system. to consider the king as the original owner of all the lands ete.. in the kingdom. Hence he was the owner of all the vacant lands, derelict, etc. All was held of him and escheated to him. So he is spoken of as the owner of the shore. But the king of England held the shores only as trustee for the public. That he had undertaken to grant away portions of the shore as private property, and to exclude the general publie from their rights in it, was one of the grievances complained of and attempted to be redressed by Magna Charta. Parliament, according to the theory of the English Constitution, was omnipotent, but the king was not. The king's right of soil was subject to public right, and any grantee of the crown held subject to that. Mayor of Colchester v. Brooke, 7 Q. B. 339, 374; 9 Jur. 1090. Hale distinguishes three sorts of rights in ports and shores: first, the "jus privatum," or right of property or franchise, which was always subject to, second, the "jus publicum," or public right of passage and navigation; and third, the "jus regium,” or governmental right, the right of superintendence and control.

It has been very common to speak of the right of the State in the shores as a fee. This is proper only by analogy. To hold that the State owns the shore in fee in the same sense in which it owns a court house or a prison, or in which the United States own public lands, or citizens may own land in fee, would lead to consequences which need only to be considered in order to show that such can never have been the nature of the right. Angell on Tide Waters, 24.

During our revolutionary war and the distressful times which followed it, if the State had owned the fee of this valuable property it could not have escaped a sale. Town treasurers were committed to jail for the non-payment of nearly every State tax that was ordered, and yet no town nor person ever thought of this as a property which the State owned in fee, or could sell to lessen taxation. To hold that the State holds the fee of the shore in such a sense that it can sell the shores would deprive nearly half of the land in this small State of a large portion of its value derived from bounding on the shore. The city of Newport is the owner of Easton's Beach. For the State to sell its shore would take away almost its whole value.

As there is no statute of limitations against the State, especially so far as public rights are concerned, the State would still own large tracts of filled lands in Providence, Newport. and other towns, unless the State had done some act which would justify the courts in holding it to be private. And even if the private title to land so filled should be held good, the State might still sell out a strip of land at the head of any wharf and so cut off the owner from navigation. It might sell off the whole shore so as to cut off the present owners from access to the water. The monstrous injustice that would result if such a doctrine was

established as law, is enough to show that it ought not to be recognized as law.

And such I think is not the meaning of the courts. They have often enough held that the property of the king, and with us of the State, is a trust for the public, a power to control and regulate, to subserve the good of the public, and not a private property. Says Kent, the King in England, and here the State, is trustee for the public; 3 Kent Comm. *427; and the Supreme Court of the United States has on several occasions held the same language. Layor, etc. of Carlisle v. Graham, 18 W. R. 318; Commonwealth v. City of Roxbury, 9 Gray, 451, 482, 483: Commonwealth v. Alger, 9 Cush. 53, 65: New Orleans v. United States, 10 Pet. 662, 699, 702; Simons v. French, 25 Conn. 346, 352; Church v. Meeker, 34 Conn. 421, 427, 428; Clement v. Burns, 43 N. H. 609, 620. In the last -case the court says that the doctrine that the title is exclusively in the sovereign has never been fully received in the American courts. And so in Scotch law. Bell's Principles. §642.

The language of the English decisions to the effect that the king holds as trustee for the public is very strong. Company of Free Fishers v. Gann, 20 C. B. N. S. 1, 115 Eng. Com. Law, 803; Gann v. Free Fishers of Whitstable, 11 H. L. 192; Mayor of Colchester v. Brooke, 7 Q. B. 339. The king's right of soil is "subject to the public right of passage, however acquired, and any grantee of the crown must of course take subject to such right," says Lord Denman in the last cited case, p. 374. Blundell v. Catterall, 5 B. & A. 268, 287, 294, 304-9. Duke of Buccleuch v. Metropolitan Board of Works, L. R. 5 H. L. 418. The form of an information by the Attorney General of England is given in Attorney General v. Richard, 2 Anst. 603. It alleges that the shore belongs to the king, and ought to be preserved for the public use, and that the king has the right of superintendency for that purpose. It is true that in arguing the case the attorney general used the usual arguments as to the rights of the crown in the shore.

་་

In Commonwealth v. City of Roxbury, 9 Gray, 451, 482, 483, the court recognizes and approves the rule it had before laid down in Commonwealth v. Alger, 7 Cush. 53, 65, that the title to the flats was in the king, and "that it was so held by him for public uses. This rule, apparently so well :settled and established both in England and this country, seems to us not to have been shaken or doubted in any recent English case,' &c., &c. The king held the sea-shores as well as the land under the sea; he held the same publici juris for the use and benefit of all the subjects for all useful purposes, etc. In Smith v. State of Maryland, 18 How. 71, 74, which was a case of oyster laws, the United States Supreme Court says the right of soil is in the State. "But this soil is held by the State, not only subject to, but in some sense in trust for, the enjoyment of certain public rights," etc. See also Barney v. Keokuk, 4 Otto, 324; Martin v. Waddell, 16 Pet. 367, 410, 423. When it is said that the sovereign is the owner of the sea-shore it is meant that the legal .title is in him, not for his exclusive use and pro

fit, but in trust for the common benefit of all his subjects," per Thatcher, J., charging the jury in Commonwealth v. Wright; Angell on Tide Waters, 207; 3 Amer. Jurist, 185. And in the great case of Arnold v. Mundy, 6 N. J. (Law,) 1, 71, 77, the court fully discusses the English cases. And it holds that while the title to the common property must be considered as vested in the sovereign, it is to be "held, protected and regulated for the common benefit. The property indeed, strictly speaking, is vested in the sovereign; but it is vested in him "not for his own use, but for the use of the citizens,etc. This case was for an oyster fishery. See Bell v. Gough, 23 N. J. Law, 624. And in Gough v. Bell, 22 N. J. Law, 441, the Supreme Court of New Jersey, by Greene, C. J., lays down the same doctrine that the king held as trustee, and that his grants were subject to all public rights.

The language of many of the decisions can be reconciled by holding that while the State does not own the shore in fee, properly speaking, and therefore can not sell the shore to be held as private property, and so cut off the riparian owner from the water, it has the complete regulation and control of it for public purposes.

In several cases very strong language has been used, to the effect that there can be no private riparian right in tide-flowed land, and that if a railroad cuts off the riparian owner entirely from the water, he has no remedy and no claim to compensation. Most of these decisions, and those going the greatest length, have been made in States peculiarly situated as to railroad corporations. See Gould v. Hudson River R. Co. 6 N. Y. 522; Stevens v. Paterson & Newark R. Co. 20 N. J. Eq. 126; 34 N. J. Law, 532, 544, 566; to the same effect is Tomlin v. Dubuque, Bellevue & Miss. R. Co. 32 Iowa, 106, which relies on the last two cases. Some of these cases have been severely criticised. Cooley Constit. Limit. 544, note 1, remarks of them: "So far as these cases hold it competent to cut off a riparian proprietor from access to the navigable water, they seem to us to justify an appropriation of his property without compensation; for even those courts which hold the fee in the soil under navigable waters to be in the State admit valuable riparian rights in the adjacent proprietor;" and see also 11 Albany Law Journal, 19. And I think the extreme rights claimed for the State by these decisions are in conflict with the general course of decisions in other States and with many cases in New Jersey itself. See, besides those before referred to, Stockham v. Browning, 18 N. J. Eq. 390, where it was held that the riparian owner could not maintain ejectment, but that nevertheless he had an inchoate right in the shore which equity would protect.

Before the decisions in New Jersey in the several cases of Gough v. Bell, it had been the common notion in New Jersey that through the grant from the king to the Duke of York aud from him to the first proprietors, the land under tide water and under Raritan Bay had been conveyed, and through them to the riparian owners, and this .act is necessary to the proper understanding of

« ForrigeFortsett »