Levi Woodbury

“ Thus, though there is much evidence, that, from the warehouse eastward to the river and wharf, the land has been open or uninclosed for twenty or thirty years, and that people and carriages have usually travelled over it in going to and from the warehouse and wharf, yet during that time, till the sale of the warehouse to the plaintiffs, that and the open space and wharf have all been owned by one person, and he has used them in any manner deemed by him most proper. ”

“ It will be seen that the decree below proceeds chiefly on the ground, that a legal public highway exists, running nineteen feet wide east of the warehouse and immediately contiguous to the same, and that a wrong has been done by the respondent by obstructing that highway. It is true, that the decree speaks also of the obstruction being injurious to the warehouse and private rights of the plaintiffs, and so does the bill. But the gravamen of both is the existence of a public highway where the fence runs. ”

“ We assume that we have shown a highway, and the right of the Dixions to a 'front' on that highway, and to ancient windows looking out upon it. It is beyond dispute, that W. H. Irwin, by the fence and building complained of, obstructed the highway, impaired that front, and injured those ancient lights. This gives the right to a remedy by injunction, at the instance of the party thus injured. It is a public nuisance, by which also private parties are directly injured, and an injunction is the proper remedy. ”

“ The complainant's evidence does not prove a dedication. No witness testifies to an actual dedication. Nor is any such uninterrupted user as of right by the public, and acquiescence by the owners proved, as justifies the inference of a dedication.
All the answers to this point not excepted to state in general and stereotyped phrase that the wharf lot 'has been used as a common and public highway,' &c. ”

“ Under the grant of the warehouse and lot to the Dixions, there passed whatever was necessary to its beneficial use and enjoyment. The rule of law is well settled, that a right of way, or other appurtenant to land, will pass by a grant of the land, without any mention being made of the easement or appurtenant. ”

“ The ground claimed as a highway is no part of the wharf alleged to belong to the heirs of Thomas Irwin, but an open strand, or slip of ground, between the first range of warehouses and the wharves. The paper referred to as defendant's exhibit five gives, and can give, no authority to create a public unisance. The highest legislative power can confer no such right. ”

“ That he acted as agent of the owners in erecting the fence.
That an agreement, referred to in and virtually forming part of the deed of partition, expressly stipulates for the building on the open space by any two of the owners.
If any right be invaded, he denies that it causes such irreparable injury to complainants as entitles them to relief in equity, and avers that the remedy at law is adequate.
He suggests that 'fronting the river' is matter of description, to distinguish the warehouse given to James Irwin from others, not giving it any right beyond the limits granted. ”

“ In cases of injury to individual rights by obstructions or supposed unisances, an injunction is still less favored, and does not lie at all permanently, in England and most of the States, unless the injury is not only greater to the complainant than to others, and of a character urgent and otherwise irremediable at law, but the right or title to raise the obstruction is not in controversy, or is first settled at law. ”

“ The right to a free passage over the highway is all the public acquires; the fee remains in the original grantor, and he may necessarily use it, and exercise every right and control over it not inconsistent with the free passage given to the public. ”

“ That the wharf lot and pier-the whole designated as the wharf-was rented to vessels and steamboats, at the customary wharfage, for landing goods and passengers, who necessarily passed over said space to reach the streets, thus giving it the appearance of being a public thoroughfare, when in reality people only exercised a privilege paid for, implying no public right.
10. That the Dixions' house fronts on King Street, and so does not require a right of way over this lot; and the wharf being private property, they could not reach the river over it but by defendant's permission. ”

“ But more especially is this form of remedy not expedient to be adopted, unless indispensable from the character of the damage, as an individual is not in point of law allowed at first any thing but a temporary injunction to preserve the property uninjured till an answer can be filed admitting or denying the right of the plaintiff, and, if doing the latter, till a trial at law can be had of that right, when desired by the defendant or deemed proper by the court. ”

“ Thomas Irwin was in under his purchase in the year 1802, and continued so to his death, which happened in the month of January, 1827. By his will, he directed that all his estate should be equally divided between his children, when his son William (the appellant) should arrive at the age of twenty-one; in the mean time to be managed for their benefit, by his sons Thomas, James, and William.
A division of the estate was made on the 15th of January, 1835, by which there was assigned to James Irwin a warehouse, on the south side of King Street, and fronting the river ”

“ Thus, it has been presumed, if one makes a plan of his land in a city with certain streets laid down between certain lots, and sells the lots accordingly, that he thus means to dedicate those streets to the public. ”

“ The whole property on which the buildings stand forms nearly a square, the west side of which is on Union Street, the north on King Street, the south on a public alley, called Fitzgerald's Alley, and on the east was an open space running along the front of the buildings from King Street to, and passing beyond, this alley. ”

“ The Dixions filed their bill to restrain Irwin, and prevent his erecting this inclosure, and put their right on the ground of his darkening their ancient lights; and, also, that he was obstructing a public highway. The injunction was ordered and served. ”

“ The acts of ownership supposed to have been proved on the part of Thomas Irwin and his heirs, and as negativing this right of way, if consistent with the public use to which it was dedicated, do not in any degree impair that public right. They are, he used it 'as any and every other person'; 'kept it in repair at his own cost'; would not let cartmen and draymen stand their drays and carts on the ground, being unwilling to have the ground stamped and trodden into holes; 'drove off persons with their drays or carts'; 'horses standing there with drays or carts stamped the ground into holes ”

“ That, to form a sufficient foundation for that inference, it must have been uninterrupted, peaceable, with the knowledge and acquiescence of the fee-simple owner, and as of right.
5. And that any fact, act, or public declaration, showing that the owner did not acquiesce in the user by the public as of right,-did not mean to abandon his right to the public,-is sufficient to prevent the acquisition, by virtue of the user, of a right of way. ”

“ This space is formed artificially, and made solid, and is upwards of forth feet in breadth before the wharves which project into the river, or the docks running by the side of the wharves to this open space, are reached. ”

“ This dedication may be inferred from notorious acts of user, with the knowledge of the owner of the fee. Valentine v. Boston, 22 Pick. 75. The enjoyment of such use by the public for a period beyond the statute of limitations creates a right in the public. Valentine v. Boston, 22 Pick. 75, 80; Barclay v. Howell, 6 Peters, 513. And the breadth or extent of the highway is a question of fact, to be collected from the circumstances of the case. ”