UNITED STATES SUPREME COURT DECISIONS ON-LINE

By the old laws of Massachusetts, a littoral proprietor of land owned down to low water mark, subject, however, to the condition that until he occupied the space between high and low water mark, the public had a right to use it for the purposes of navigation.

The City of Boston had the same right as other littoral proprietors, and consequently had the control over a dock which was situated between two wharves, one end of the dock being at high water mark and the other at low water mark. It had, therefore, the right to construct a sewer for the purpose of carrying off the drainage from the high water to the low water end of the dock.

The city had not dedicated the dock to public uses by merely abstaining from any control over it. The principles which regulate a dedication to public uses examined.

Although the presumption of such a dedication is a question of fact for the jury, yet it is for the court to instruct them what facts, if proved, will justify such a presumption.

This was a suit originally commenced in the Circuit Court of the United States for the District of Massachusetts and removed into the Circuit Court of Rhode Island upon the ground that MR. JUSTICE CURTIS was so connected with the plaintiff as to render it, in his opinion, improper for him to sit in the trial of the suit, and that Judge Sprague was an inhabitant of Boston, and concerned in interest in this cause, so as to render it, in his opinion, improper for him to sit in the trial thereof. It was therefore ordered, both judges concurring, that an authenticated copy of the record and all proceedings in the suit, should be certified to the Circuit Court of Rhode Island.

Lecraw, a citizen of New Hampshire, as surviving partner of the firm of Lecraw & Perkins, brought an action on the case against the City of Boston for erecting a public nuisance, which was specially injurious to the plaintiff.

Lecraw was in possession of a wharf estate situated in the southerly side of Boston. His wharf extended to the sea, and was entirely unobstructed at the end seaward. Along the southerly side of the wharf there was a dock about thirty feet wide, extending from the end of Summer Street to the sea. In July, 1849, the board of health ordered a drain or sewer to be constructed from one end of the dock to the other so as to carry the drainage out to deep water. It was constructed as follows:

The obstruction complained of, as appeared by the evidence, was a drain composed of plank and timber 460 feet long, eight feet wide, and eleven feet high to top of piles, and resting upon the surface of the mud in the dock, which extended clubjuris

Page 58 U. S. 427

from the head of the dock to within __ feet of the foot of the same, and at the end of said drain was seventeen feet from the plaintiff's wharf on the north and thirty-two feet from the other wharf on the south.

For this obstruction to the approach of vessels to his wharf, Lecraw brought his action, and upon the trial of the cause the jury found a verdict in his favor, assessing the damages at $9,280.

The bill of exceptions taken by the defendant included all the evidence and the numerous prayers offered to the court, which are sufficiently noticed in the opinion of this Court. clubjuris

Page 58 U. S. 431