Robert Cooper Grier

“ The public right has existed and been exercised for thousands of years, but is not hostile to the defendants, though defeasible at their will. It reasonables the case of Rex v. Hudson, 2 Strange, 909, where a dedication of land as a public highway was claimed by proof of sixty years' use; but the defendant produced a lease of the way for fifty-six years, and the court decided that no presumption of a dedication could arise during the lease, for the owner could not deny their right to use it, and there could be no presumption from his acquiescence. ”

“ If the city had the right to build a street, it would be because the public convenience and necessity required a public street for travel.
The orders of the mayor and aldermen to make a drain through the dock, cannot be justified on the ground that the city had the right to make a different structure, namely, a street.
Mr. Justice GRIER delivered the opinion of the court.
The defendant in error, a citizen of New Hampshire, instituted this suit against the city of Boston, charging it with the erection of a public nuisance which was specially injurious to the plaintiff. ”

“ Those under whom the plaintiff claims, as owners of the property adjoining Summer-street, have exercised their right of dominion over the land to low-water mark by covering it with a wharf, many years ago, which is called Bull's wharf. And those who adjoin the street on the other side, have in the same manner exercised their right by erecting a wharf called Price's wharf. ”

“ It is true that the presumption of a dedication is one of fact, and not an artificial inference of mere law, to be made by the court, yet it is an inference which the court advise the jury to make upon proof of certain facts. ”

“ The powers given to the city, (Rev. Stat. ch. 21, § 9,) are 'to destroy, remove, or prevent nuisances.' Under this delegated authority to exercise the sovereign right of the State to regulate by health and police measures the use of property, the city seek to exercise another sovereign right of the State, namely, the power to authorize erections within navigable waters.
3. No such power as is claimed was ever intended to be given to the board of health, or to be exercised in the manner in which it was exercised. ”

“ That the dock had been laid out as a street, and the city, therefore, had right to put a drain there, although they had never made the street.
Upon the question of a right to place a drain in the dock.
1. The rights of drainage claimed by the city cannot be maintained, because, if any right of drainage into the dock existed before 1834, it was a right of individuals, not of the town or city. Before 1834, the town or city had no rights in, or control over, the sewers and drains. They were wholly built and owned by individuals. For the history of the legislation upon this subject, see Boston v. ”