Richardson v. The City of Boston.

Parks v. Ross, (11 How., 393,) to prove the averments of the declaration, it is the duty of the court to give such peremptory instruction. But if there be some evidence tending to support the averment, its value must be submitted to the jury with proper instructions from the court. If this were not so, the court might usurp the decision of facts altogether, and make the verdict but an echo of their opinions.

The court below seem to have considered the decision of this court, in the case of Boston v. Lecraw, as requiring them to give the instruction demanded by the defendant. The action in that case was for the same alleged nuisance by a tenant of the present plaintiff. But the plaintiff in that case claimed no other right of way over the lands of defendant, save the public right of navigation; and this court decided that the public right of navigation, between high and low-water mark, was defeasible at any time by the owner of the subjacent land. That, as the space between the plaintiff's wharves had been converted into a dock by the accident of its position, so long as it remained unreclaimed, every person had a right to pass and repass over it. The exercise of this public right, for any length of time whatever, would therefore form no grounds of presumption either of a public dedication or a private grant to the owners of the adjoining wharves. While it remains unreclaimed, it is a public highway or dock, by a paramount but defeasible title. The adjoining wharves may receive much more advantage than others from the use of it, but they cannot convert it to a private use, under color of a public right.

The public officers of a town have no right to lay out a town way between high water and the channel of a navigable river, or appropriate the shore or flats to the use of the inhabitants of a town in the form of a way or road. (1 Pick., 179; 5 Pick., 494.) But in the present case the city of Boston is owner of the land, and has the same right to reclaim their flats which other owners have. Before they are so reclaimed, the public and the adjoiners may exercise their paramount right of navigation. But if the city elects to reclaim its portion of the shore, and extend Summer street to low water, it has a right so to do. And if the street should be less beneficial to the adjoiners in this form, than when they could use it as a dock under the public right of navigation, they cannot complain. The absence of these advantages may be a loss to them, but if incurred by the defendants' exercise of their own rights, it is no wrong to them.

But if the city has determined to reclaim this land, and has laid out a street thereon, or continued Summer street to lowwater mark, the right to use it as a street or highway on land

Richardson v. The City of Boston.

becomes appurtenant to the property of the adjoiners. It may be the duty of the city to make drains along or under the streets, but they cannot construct them so as to hinder the public use of them as streets, or erect thereon a nuisance to the adjoiners. If Summer street be extended to low water, the plaintiff has a right to pass along and across the same, and anything which obstructs such passage is a nuisance, and injurious to his rights.

The seventh count of plaintiff's declaration claims a right of way as appurtenant to his land or wharves, on the ground that Summer street extends to low water. In support of this allegation, the following entry in the town records was given in evidence: "October 31, 1683. The selectmen all met this day, staked out a highway for the town's use, on the southerly side of the land belonging to the late John Gill, deceased, being thirty foot in breadth from the lower corner of said Gill's wharf next the sea."

It is the duty of the court to construe written instruments; but the application of their provisions to external objects described therein is the peculiar province of the jury. Whether this document describes Summer street as it was afterwards laid out from high-water mark; whether "the lower corner of Gill's wharf next the sea" was at that time (in 1683) at lowwater mark; whether this street was staked out to low water, were questions which should have been submitted to the jury. The fact that the learned counsel differ so widely as to the situation of the points called for as the boundary of the street next the sea, shows conclusively that it is a question for the jury, and not for the court.

Moreover, the court were requested by plaintiff's counsel to instruct the jury, "that if the jury shall find that, by reason of the acts of defendants complained of in the declaration, that part of plaintiff's wharf below low-water mark, held by him under a grant of the Legislature, has been injured in the manner set forth in the declaration, then the plaintiff is entitled to recover."

There was some evidence that the drain constructed by defendant was not carried out sufficiently to discharge its contents so as to be swept off by the tides; but that it caused an accumulation of matter at the outer end of the plaintiff's wharves, insomuch that vessels could not approach them with the same depth of water as formerly. If this be so, it was an injury to the plaintiff, for which he was entitled to recover damages.

This question should have been submitted to the jury, and this instruction given, as requested by plaintiff's counsel. The

Hipp et al. v. Babin et al.

others are disposed of by the opinion of this court in Boston v. Lecraw.

For these reasons, the judgment is reversed, and venire de novo awarded.

FELICITÉ FLETCHER HIPP, AND MARIA ANTONIO FLETCHER HIPP, ALIENS, AND RESIDING, THE FORMER IN VERA CRUZ, MEXICO, THE LATTER IN THE CITY OF MADRID, SPAIN, FOR THEMSELVES AND ON BEHALF AND FOR THE USE OF AUGUSTIN CUESTA, JAVIERA CUESTA, AND FELICITAS CUESTA, ALIENS, THE FORCED HEIRS OF ADELAIDE FLETCHER HIPP, DECEASED, v. CELINE BABIN, WIDOW OF URSIN JOLY, AND OTHERS.

A court of equity will not entertain a bill, where the complainants seek to enforce a merely legal title to land; and in the present case, in the absence of allegations that the plaintiffs are seeking a partition, or a discovery, or an account, or to avoid a multiplicity of suits, the bill cannot be maintained.

THIS was an appeal from the Circuit Court of the United States for the eastern district of Louisiana, sitting in equity. The facts of the case are stated in the opinion.

It was argued by Mr. Smiley and Mr. Perin in a printed argument for the appellants, and orally by Mr. Taylor for the appellees.

The manner in which the counsel for the appellants sought to sustain the equity jurisdiction of the court in the case was as follows:

In the opinion of the judge of the Circuit Court, the cause was not one over which the equity side of the court had any jurisdiction. The title being merely legal, and the documents upon which the title rested being accessible to all parties, there was "a case where plain; adequate, and complete remedy may be had at law." Several cases were cited and relied upon to sustain this opinion. But without referring to them, we may observe that this case is distinguished from all those cited, in this: that no objection is raised in this case by the defendants to the jurisdiction, neither in the pleadings nor upon the argument. It was not raised in the Circuit Court, and we are assured by the opposite counsel that it will not be in this. The objection was raised in some form, either by demurrer or in argument upon final hearing in all the others.

In the case of United States v. Sturges et al., (1 Paine C. C. ́R., 525,) it was objected, at the hearing for the first time, (not

Hipp et al. v. Babin et al.

by the court, but by the party,) "that there was a want of equity apparent on the face of the bill in two particulars," &c. The court observes:

"There are several answers to be given to these objections. If, admitting the charges or facts stated in the bill to be true, there is no foundation in equity for the relief prayed, it was a proper cause for a demurrer, and the objection comes now with less weight than it would at an earlier stage of the proceedings." (See p. 581.)

The case of Pierepont v. Towle (2 W. and M., 24) we conceive to be quite as far from establishing the doctrine upon which this bill was dismissed. After a thorough examination of a great many authorities on the point, the judge says, (p. 35:) "But the correct rule probably is, that a respondent may and usually should demur, if it appears, on the face of the bill, that nothing is sought which might not be had at law."

Without pursuing the authorities further, and even admitting, for the sake of the argument, that the judge was correct in his views of the authorities relied upon as a matter of law and practice, still we contend, and will endeavor to show to your honors, that he has fallen into an error on the facts exhibited in the record. He observes:

"The bill in the present case furnishes no reason for an application to the court of chancery, arising out of any particular condition of the parties; nor that a court of chancery is possessed of means to render a relief better suited to the claims of the case."

Now, with all deference, we conceive there are many distinct and separate grounds of chancery jurisdiction in the record. Although no ground for the interference of a court of chancery is shown by the bill, yet, if it appear in a supplemental bill, replication, answer, or any subsequent proceeding, the jurisdiction will be maintained. (Craft v. Bullard, 1 Smedes and M. Ch. R., 373; Lafayette Ins. Co. v. French et al., 18 How., 404.)

In the former case, the chancellor stated that he would have dismissed the bill, had not the answer disclosed the only ground upon which equity could take jurisdiction.

Among the undoubted grounds of jurisdiction presented by the record, are:

First. To avoid a multiplicity of suits. It appears in the original bill that five persons, and others, were sued in the State court in 1824. On filing the record from that court, it is shown that five separate suits at law were brought for the land included in the bill. The fact is admitted in the plea, and also in the answers of the defendants, by setting out the

Hipp et al. v. Babin et al.

subdivisions of the lands, and the parcels held by them, respectively.

This is one of the exceptions, in the case of Welby v. Duke of Rutland, to the general rule that chancery will not entertain suits upon legal titles merely. In that case, none but the appellant and respondent were concerned in the question, and there was no pretence for avoiding vexation or a multiplicity of suits at law. But why mention this circumstance at all, if it was not intended to recognise the right of going into chancery where five suits at law, or even a less number, could be united in one bill in equity? It appears clear, that if your honors acknowledge the principle above stated, that the jurisdiction may be shown by any part of the record, you will entertain this cause upon this ground, if upon no other. Whatever may be said of the facility afforded by the civil-law practice of the courts of Louisiana, to give relief in cases where, in the common-law States, the equity jurisdiction is undoubted, the expense and "other vexations" of a multiplicity of suits cannot be avoided there, any more than in Massachusetts or Mississippi.

The remedy, then, as it appears by this view of the case, not being as full and complete at law, the court would entertain jurisdiction on the rule established in Boice's Ex. v. Grundy, (3 Pet., 215; 9 Wheat., 842; 4 Wash., 202, 205.)

Second. Another class of cases, in which chancery will lend its aid for relief, is in matters of trust.

Thus, "if a man intrudes upon the estate of an infant, and takes the profits thereof, he will be treated as a guardian, and held responsible therefor to the infant in a suit in equity. (2 Story Eq., sec. 1,356; Ibid., sec. 511; 1 Mad. Ch., 91; Carmichael v. Hunter, 4 How., Miss., 315; Nelson v. Allan, 1 Yerger, 360; 8 Beaven, 159.)

In the last case, the equity jurisdiction was maintained upon a suit, by a person of full age, for mesne profits, accruing while he was a minor; "such disseizor being viewed in chancery as guardian, bailiff, or trustee." In Carmichael v. Hunter, it was admitted that this circumstance was the only ground of jurisdiction; as the title set up by complainant was legal, and an action for rents and profits a legal remedy.

Third. For discovery.

The discovery by defendants of their titles, the particular portions of the plantation claimed by them, and the time their possession and liability for rents and profits commenced, was material to complainants in making out their case.

Fourth. For partition.

"The necessity for a discovery of the titles, the inadequacy