O'Fallon exr. of Mullanphy v. Daggett and Price, 4 Mo. 343

Opinion delivered by McGirk J. ' The claim of the defendants to use this ground as they did, rests on this principle, that the navigable rivers’in this State, and the banks thereof, below high water mark, and of right out to be public highways, for the pur-°f navigation. This principle is conceded by the for the plaintiff, to be correct so far only as the exigencies of navigation may require; and the argument *s5 that here, there was no exigency of navigation exis-tingto justify the acts of the defendants. To sustain this point for the plaintiff, Mr.

Spalding cites and relies 1st Partidas, 337; 4 Hall’s law journal; 2Louisiana 200, and the revised cede of 1825, sec. 12, p. 201.— J/[r, Geyer, for the defendants, also relies on the above quotation from the Partidas. The first question will be, whether the city could lawfully lay out a street on pri-property, this being the property of Mullanphy by grant of the Spanish Government. It is most clear, and not at all disputed by the defendants’ counsel, that if the property whs in law the private property of the plaintiff, then the city cannot use the same for publie uses, without making just compensation therefor.

It is clear from the record, that no attempt has, on the part the city, been made to make any compensation for the use of the land as a public street; nothing therefore can be claimed on this ground. The Spanish Government, granted the land to the water’s edge. This grant must be interpreted, understood, limited and restrained, to the law of the country, in force at the time when the grant was made.

By reference to that portion of the Par-tidas, before cited, it will be seen that “rivers, ports and public roads, belong to all men in common, so that strangers coming from foreign countries, may make use them in the same manner, as the inhabitants of the place where they are might do, and though the dominion property of banks of rivers, belongs to the owner of adjoining estate, nevertheless, every man may make use of them to fasten his vessel to the trees that girow thereon, or to refit his vessel or to put his sails or merchandise there.

So fishermen may put and expose their fish sale there, and dry their nets, or make use of the banks for all like purposes which appertain to the art or trade by which they live.” The author then goes on to say, that “all the trees growing on the banks of rivers, belong to the owners of the adjoining estate, who may cut cause them to be cut down, or do with them whatever they think fit; yet if at the time they are about to be down, they find any vessel fastened to them or about be fastened to them, they cannot immediately cut them down; otherwise they would interfere with the right every man has to use tho banks of rivers; but if there no vessel fastened or about to be fastened to them, they may be cut down and converted to the owner’s use.” Thus stood the law at the time the grant of this land made to Yosti, under whom Mulianphy holds.

It seems then, that when this grant was made by the King Spain to Yosti, there existed a public standing law of country, that whenever the banks of rivers were granted to subjects, such grants were understood as reserving certain common rights to fishermen and navigators. first right reserved to navigators, was to touch the or land and fasten their vessels there to the trees growing-on the land. The second right reserved, is to on the shore, and refit their vessels; and the third, is put their sails or merchandise on the bank.

These are enumerated by the author, with regard to rights reserved to navigators; they of course are to be considered as so much subtracted from the right of the owner of the bank for public uses. When this grant was made to Yos-ti, we are to understand that the absolute dominion was granted to him, with these exceptipns only. It is on the s*^e arguech that the defendant’s case comes exactly "withinthe privilege to repair.

Orí the other side,it is insisted, that this privilege to repair, must be understood' with several restrictions and qualifications; one of which is, th at unless the vessel was on a voyage and needed repairs, to enable her to proceed, thq, owners had no right to select the place they did to repair; and in this case the vessel was in the public port and left the same by the direction of the city authorities, to repair in this place.

It seems to us, this qualification of the privilege to occupy the bank, when the property is in a private person, is reasonable the general interests of navigation have been anxiously guarded by most commercial nations, and so they are with us, but it does not follow that the private rights of the people who own the land, are for that rea-' son, to be disregarded. When .a vessel is on a voyage and meets with any accident, which makes it necessary to touch the bank, she has a right to do so, leaving the bank, when private property, as soon as practicable.

We cannot see why it is, that the vessel can seize on private property, in the possession and enjoyment of the owner, when other places might do as well. The owner of the tree when a vessel is tied to it or about to be tied to it cannot then exercise his general right to use the tree; it would seem reasonable therefore, that the use of thebank, in a case like this, should be-restrained to cases of some sort of necessity, and should be founded on some better reason than.the mere convenience of the owners of the boat.

To tie a vessel to a tree temporarily, is one thing, but to moor the same permanently at the bank, when the property in the same, belongs to a private person, and there to.submit the vessel to thorough repairs, is another thing; this requires much time, a large number of men with materials; it requires also the action very often of wag-gons and teams, and sometimes even houses to be built, for the convenience of the workmen.- It is asked by the counsel, if it were lawful to invade the right of Mullan-phy, in the way it was done, for one day, why would it not be lawful to do so for a whole year, and even for ten years, if the defendants should choose to be that long in repairing their vessel?

No answer was given to this, and we think none founded in justice, can be given. to it. The right to repair must, therefore, be limited to cases of emergency, and not extended to cases of mere convenience. Thorough repairs can seldom be made except in public harbors, where materials and workmen can be had; and for this reason, it is reasonable for the public to provide public docks, there every vessel has a right to go to make all sorts of repairs.

Why should the owners be at liberty to select my bank, merely because they think that place will suit them best, when the public docks are open to them, and if they are not they are at liberty to purchase the privilege, and when not on a voyage they are supposed to have full time to do so? — that every one should so use his rights as not to injure or molest others in the enjoyment of theirs, is a maxim that well applies in this case. The law of the Partidas, that the owner of the tree on the bank cannot use his right when the same is in the lawful use of the navigator, seems to be an exemplification of the maxim.

The King ofSpain granted the bank to Yosti, and Mullanphy under him is the owner, he must not for that, obstruct the navigation of the river; he cannot project piers into the river, nor build houses on the bank, so as to injure the navigation of the same. So on the other hand the navigator cannot obstruct the owner’s enjoyment of the same beyond the reasonable limits of necessity imposed on him at the time.

In the case before us, the land was occupied about six weeks under pretence, of repairing, and to repair it became necessary to build a house and fix therein blacksmith’s tools, to employ men and beasts, in considerable numbers, and all for no other reason than this place suited the defendants better than any other place. allow a navigator land for several pretence of re”^ mg, build hous^sj employ teams &c. the owner’s erS joyment of his I>ropeity‘ We are for these reasons, of opinion that the circuit Ícourt] erred in deciding the law to be with the defendants. lhe judgment is reversed with costs; the cause is remanded for a new trial.