The case of Church v. Mecker, 34 Conn. R. 421, is relied upon by both parties. We think the opinion of Judge Butler in that case must be construed as applicable solely to sea-weed found as it there was above high-water mark.
In the case of Peck v. Lockwood, 5 Day, 22, the plaintiff owned a portion of the shore below ordinary high-water mark, and it was held that he could not maintain trespass against the defendant, who entered the premises when the tide was out and dug for shellfish and carried the fish away. That is a strong case in favor of the common right of fishing.
But the right of taking sea-weed would seem to stand on the same ground as the right of taking fish. We see no reason for making a distinction between the vegetable and animal products of the ocean. Neither in the state of nature is the property of any one; the title to both depends upon the first occupancy. It is agreed that while afloat both are alike common; why, when the tide recedes and leaves shellfish and sea-weed on the shore, should the sea-weed belong to the riparian proprietor when confessedly the shellfish remains common property?
We think the charge of the judge in regard to the first count was correct.
13 Pickering (Mass.), 255. - 1832.
Trespass for taking and carrying away a stick of timber from plaintiff's land.
Shaw, C. J., delivered the opinion of the court. The sole and single question in the present case is, which of these parties has the preferable claim, by mere naked possession, without other title, to a stick of timber, driven ashore under such circumstances as lead to a belief that it was thrown overboard or washed out of some vessel in distress, and never reclaimed by the owner. It does not involve any question of the right of the original owner to regain his property, in the timber, with or without salvage, or the right of the sovereign to claim title to property as wreck, or of the power and jurisdiction of the governments, either of the commonwealth or of the United States, to pass such laws and adopt such regulations on the subject of wreck, as justice and public policy may require.1 * * *
Considering it as thus established, that the place upon which this timber was thrown up and had lodged, was the soil and freehold of the plaintiff, that the defendants cannot justify their entry, for the purpose of taking away or marking the timber, we are of opinion that such entry was a trespass, and that as between the plaintiff and the defendants, neither of whom had or claimed any title except by-mere possession, the plaintiff had, in virtue of his title to the soil, the preferable right of possession, and therefore that the plaintiff has a right to recover the agreed value of the timber, in his claim of damages.
1The place where the stick of timber was found by defendant was "on the sea-shore, between high and low-water mark " in front of plaintiff's beach. It was contended, on the one hand, that by the common-law rule plaintiff's land extended only to high-water mark. On the other it was insisted that an early Massachusetts ordinance applied, in accordance with which the proprietor of lands adjoining salt water owns to the low-water mark " where the sea does not ebb and flow above a hundred rods." The court held the ordinance applicable. - Ed.
42 New York, 484. - 1870.
Hunt, J. - There is a large class of cases, in which injury is suffered by a party, where the law gives no redress. If a tree growing upon the land of one is blown down upon the premises of another, and in its fall injures his shrubbery, or his house, or his person, he has no redress against him upon whose land the tree grew. If one builds a dam of such strength that it will give protection against all ordinary floods the occurrence of an extraordinary flood by which it is carried away, and its remains are lodged upon the premises of the owner below, or by means whereof the dam below is carried away, or the mill building is destroyed, gives no claim against the builder of the dam. If the house of A. accidentally take fire, and the flames spread and consume the house of B., the latter has no claim of indemnity upon A. If the horses of A., being properly equipped and driven, become unmanageable, without fault or negligence, run away and injure the property or the person of his neighbor, the latter must suffer the loss. In these cases the injury arises from a fortuitous occurrence beyond the control of man. It is termed " the act of God." The party through whom it occurs is not responsible for it. The party suffering must submit to it, as a providential dispensation. Ryan v. N. Cen. R. R. Co., 35 N. Y. 210; Anthony v. Harvey, 8 Bing. 191; Storey on Bail., § 83a, and the learned note. Auth. post.
In all these cases, there is no liability on the part of him through whose innocent instrumentality the injury occurs, and his promise to respond to the damages would be without consideration and void.
In the instance before us, the logs were carried down the river and deposited upon the plaintiff's land, without fault on the part of the defendants or of those building or having charge of the boom. The defendants were not responsible for an injury arising from their being thus deposited, and a promise to make it good would be without consideration, and not obligatory. Neither were the defendants unconditionally liable for the injury arising from allowing the logs to remain where deposited. If they chose to abandon their property thus cast on shore, they had the right so to do, and no one could call them to account. They were not compelled, however, to abandon it, but had the right to reclaim it; like one whose fruit falls or is blown upon his neighbor's ground, the ownership is not thereby lost, but the owner may lawfully enter upon the premises to recapture his property. When he does so reclaim or recapture, his liability to make good the damage done by his property arises. He then becomes responsible. Before he can reclaim or recapture the property thus astray, justice and equity demand that he should make good the injury caused by its deposit and its continuance.