THIS case was brought up, by writ of error, from the circuit court of the United States for the district of Rhode Island.
It 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 and 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 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.
The case was argued by Mr. Ames and Mr. Chandler, for the plaintiff in error, and by Mr. Tilton and Mr. Durant, for the defendant.
The briefs on both sides were very voluminous, and it is not possible to do more than state the positions assumed by the counsel respectively.
The counsel for the plaintiff in error endeavored to establish these positions as matters of law, or matters of fact deduced from the evidence. Each one of them was sustained by numerous references.
1. The whole territory of Boston was originally granted to and held by the town, which made grants thereof from time to time to such persons and on such conditions as it deemed expedient.
2. The city of Boston as successor of the town, now owns the fee in this dock, and the title to the estates on each side of it is derived from the town.
The wharf in possession of the plaintiff as lessee, is known as the Bull wharf.
The wharf on the other side of the dock is known as the Price wharf.
The title of both wharves is derived from the town of Boston.
3. It thus appears, that the dock between these wharves has been recognized by all parties, including the plaintiff's lessor, as the property of, and under the control of, the city of Boston.
4. This place has been used for the purposes of drainage beyond the memory of man, the common sewer in Summerstreet entering at the head of it, and emptying its contents therein.
5. The town has always exercised control over this dock.
Upon these positions the counsel for the plaintiff in error made the following points:--
1. It was error in the court below, to rule that the plaintiff was entitled to recover of the city of Boston, damage for the act of the board of health of said eity. The action was not properly brought, and cannot be maintained against the defendant corporation.