Edwin S. Thayer & others vs. New Bedford Railroad Company.
Bristol.
Jan. 28.
Aug. 31, 1878.
Endicott & Soule, JJ., absent.
A person cannot, by any use of a navigable dock, gain such a right of way therein as will enable him to maintain a claim for damages for its obstruction by a railroad built across it on piles without a draw, whereby vessels are prevented from coming up to his own private dock and wharf.
Petition to the county commissioners for a jury to assess damages occasioned to “ certain real estate, easements and privileges ” in New Bedford, by the location and construction of its railroad by the respondent.
At the trial before a sheriff’s jury, it appeared that the petitioners’ property was included between the letters A, B, C and *254D on the plan, a copy of which is printed in the margin,* and was between Clark’s Point and the head of navigation on the Acushnet River, in New Bedford,- and west of the channel. The petitioners’ dock is the space included between the letters C, D, E, F. The dotted line represents the centre of the dock, which extends to the open water of the river, and the dotted line through the centre of the dock east of D represents the boundary line between the property of Rotch’s Wharf Company and that of one Hazzard.
On June 8,1873, the railroad, as shown on the plan, was built by the respondent, by authority of law, on piles, and in such a manner as to cut off all access by water to the petitioners’ wharf and dock, which was navigable water, and had been used for more than forty years, before such obstruction, for vessels to come and go there and land and take merchandise upon and from the petitioners’ wharf, south of the west part of the dock.
*255The petitioners contended that by long, adverse, continuous and public use, and under claim of right, exceeding twenty years, they had acquired a right of way and passage through the easterly docks to their dock and wharf, and that they had a right in law to recover damages for the obstruction by the respondent. They offered evidence tending to show such use of the docks by them, and the evidence was admitted against the respondent’s objection.
The petitioners also put in evidence the Sts. of 1806, c. 18, and 1831, e. 88 ; and a deed of William Botch, Jr., and others to the Botch’s Wharf Company.
The respondent asked the sheriff to rule that the claim of the petitioners that the dock in question, and the docks between it and the open river, were private property, under the provisions of the statutes and deed above referred to, and were not, by force of the statutes, public navigable waters, was not jus*256tified in law; and that the petitioners could not recover damages.
The sheriff refused to give this instruction; and the jury returned a verdict for the petitioners in the sum of $8245. The Superior Court accepted the verdict; and the respondent appealed to this court.
G. Marston & C. W. Clifford, for the respondent.
T. M. Stetson, for the petitioners.
The evidence in this case showed that, from the petitioners’ dock to the channel of the river, there was a dock, the title to which, as well as the title to the wharves themselves, was, by virtue of the Sts. of 1806, o. 18, and 1831, e. 88, and by grant, in private persons and a corporation ; that, as against such owners, the petitioner had acquired a right of way, by adverse use for over twenty years, to their dock; and that this right was interfered with by the respondent by the right of eminent domain.
It is well settled that a title to flats below high-water mark may be acquired by grant or by adverse possession. Nichols v. Boston, 98 Mass. 39. Haskell v. New Bedford, 108 Mass. 208. Tufts v. Charlestown, 117 Mass. 401. The evidence objected to tended to show such adverse possession in the petitioners; and nothing appears to render it incompetent. That it was inadmissible cannot therefore be asserted as a matter of law. Putnam, v. Bowker, 11 Cush. 542. The certificate of the sheriff does not undertake to set out all the evidence of the private nature of the dock; it does n£>t state the details of the evidence, such as the forcible removal of spars, jib-booms and of vessels loading in this private dock. Upon all questions of fact, the finding of the jury is conclusive. The fact that the dock was navigable is immaterial. Every dock, whether public or private, is navigable; but this fact does not make it the less private property, if it is otherwise so.
Lord, J.
When the facts upon which the petitioners rely are understood, we do not apprehend that there is any difficulty in arriving at a correct result. No land of the petitioners was taken by the respondent. The petitioners own a dock, and, as we assume, the land described in the petition; and the railroad is constructed at a distance from the petitioners’ property, not stated; the plan accompanying the papers having no scale upon *257it, that distance is not made known. Tlie land between the petitioners’ dock and the railroad is covered by navigable water. In that land the petitioners have and claim no interest or estate. Access to the petitioners’ dock from any point beyond the railroad, which is built upon piles, without a draw, is prevented by the railroad.
The claim of the petitioners is that they have a private right of way, for boats and vessels, over and through such navigable water, from some place beyond the railroad to their dock. We are not aware that there is any such estate known to the law of Massachusetts. Each individual, as one of the general public, has a right to use navigable waters with his boats and vessels at pleasure, but it is in the exercise of a public, and not of a private right. He cannot thereby acquire a private right; for his use cannot, in law, be adverse. Navigable waters are great highways, and no individual, by use, can acquire a private right therein, any more than a continuous use of a street by a man, from his home to his place of business, for any term of years, gives him a private right of way over the soil of the street. In Davidson v. Boston & Maine Railroad, 3 Cush. 91, 106, Chief Justice Shaw uses this language : “ The public have a right to regulate the use of public navigable waters for purposes of passage ; and the erection of a bridge, with or without a draw, by the authority of the Legislature, is the regulation of a public right, and not the deprivation of any private right, which can be a ground for damages. So far, therefore, as the railroad erected by authority of the Legislature affected the right of the petitioners to pass or repass to and from their lands and wharves with vessels, it was a mere regulation of a public right, and not a taking of private property for a public use, and gave the petitioners no claim for damages.” Verdict set aside.