# Dutton v. Strong

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United States Supreme Court
66 U.S. 23
Dutton v. Strong
THIS case came before the Supreme Court upon a writ of error to the District Court of the United States for the district of Wisconsin. It was, in its origin, an action of trespass on the case brought by H. Norton Strong and William H. Goodnow against Achas P. Dutton and Cyrus Hines.
In 1855, Messrs. Dutton and Hines, the plaintiffs in error, owned a pier situated at Racine, upon Lake Michigan, and extending into the lake, which served the purposes both of a landing place for freight and for its stowage. This pier was private property, and although its owners, who were forwarding merchants, sometimes moored vessels, which came there upon their own business, to its timbers, it does not appear that they ever suffered anybody else to do so, or that any other person claimed the right. On the sixth of May, 1855, the ship Homer Ramsdell, owned by the defendants in error, Messrs. Strong and Goodnow, was driven by stress of weather to the neighborhood of this pier, and the captain, fearful of going ashore, made his vessel fast to it. The violence of the gale increased the pull on the hawser, by which the ship was moored, to such a degree that the piles began to give way under the strain, whereupon one of the owners of the pier warned the master to cut loose, or they would themselves set him adrift. The master did not heed this warning, and the defendants, after waiting to see if he meant to obey it, cut the hawser. The vessel, as soon as set loose, was driven upon another pier, and to prevent her utter destruction was scuttled and sunk.
The court below was requested by the defendants in error to instruct the jury that if the evidence satisfied them that it was material for the preservation of the pier to cut the vessel loose from it, the person in charge of the pier had a right to do so, as against all rights of property in the vessel, after reasonable notice given and request made and refused for the vessel to leave. This instruction the court refused to give, and charged the jury, that the pier was run out into the lake for the accommodation of commerce, and was used as private property in public business; that the vessel was liable for such damage as she was doing the pier, and that the owners of the pier were not justifiable or excusable in cutting the vessel loose, if it was material for the safety or protection of the pier. To this portion of the court's charge, and to its refusal to grant two other prayers of the defendant, not necessary to be noticed here, because not considered in this court, the defendants excepted. The verdict of the jury and the judgment of the District Court were in favor of the plaintiffs; whereupon the defendants took this writ of error.
Mr. Doolittle, of Wisconsin, for plaintiffs in error, argued that the court below erred in affirming the proposition that the owners of a private pier had no right to cut away a vessel which was fastened to it without their consent, and contended that the acts of the plaintiffs in error, being justified by law, did not subject them to any damages in an action like this.
Mr. Hibbard, of Wisconsin, for defendants in error. After the vessel had been moored to the pier under the circumstances, the plaintiff in error had no right to cast her off. The pier was an unauthorized nuisance in the lake. The commercial and legal character of the Western lakes is so fixed that those waters must be considered, commercially and legally, seas. Ordinance 1787, (1 Stat. at L. 52, N.;) Fitzhugh vs. Genesee Chief, (12 How., 443;) Moore vs. The Am. Trans. Co., (24 How., 1.)
The evidence was sufficient to permit the jury to find, as a matter of fact, that the pier was a nuisance. (3 Kent's Com., 427;) Lord Hale, (De Portibus Maris, Harg. Ed., 85;) Lord Hale, (De Jure Maris, Harg. Ed., 8, 9;) Rex vs. Lord Grosvenor, (2 Starkie, 511;) Blundell vs. Cutterall, (5 Barn. & Ald., 268, 7 Eng. C. L., 88, 108;) Rex vs. Ward, (4 Adol. & El., 384, 31 E. C. L., 92;) Reg. vs. Randall, (1 Car. & Marsh., 496, 41 E. C. L., 272;) Simpson vs. Scales, (2 Bos. & Pul., 496;) The Mayor, &c., vs. Brooke, (7 Adol. & E., 339, 53 E. C. L., 339;) Hart vs. The Mayor of Albany, (9 Wend., 571;) The People vs. Platt, (17 John., 195, 209;) The United States vs. The New Bedford Bridge Co., (1 Wood & Minot, 401, 411;) Rex vs. Caldwell, (1 Dallas, 150;) Martin vs. Waddell's Lessee, (16 Peters, 367, 421.)
This must be especially so when there is no proof that the plaintiff in error owned the soil along the shore. The presumption, besides, is, that he has no right thus to occupy, but is a mere wrong-doer.
Of course, (irrespective of the right of any one to abate a nuisance,) it cannot be claimed that the plaintiffs in error had any right in the nuisance which would permit him to cast off the vessel, thus exposing it to peril, under any circumstances. Most certainly not when the vessel was forced there by stress of weather, as the jury had a right to find she was. The Schooner Mary, (1 Gallison, 206;) Peisch vs. Ware, (4 Cranch, 347;) The Frances and Eliza, (8 Wheat., 398;) The Gertrude, (3 Story, 68.)
The plaintiff in error, by building his pier in the lake, invited, and, at least impliedly, licensed vessels, in pursuit of their business, to approach and moor to the pier. Balt. vs. Stennett, (8 T. R., 606;) Bradslee vs. French, (7 Conn. 125;) Heaney vs. Heeney, (2 Denio, 625.) This license, of necessity, included the right to use the dock according to the exigencies of the case. Necessarily, therefore, when those exigencies required that the vessel should hold to the pier after once mooring there, the plaintiffs in error had no right to revoke the license, and cast off the vessel, thus causing her injury.
Mr. Justice CLIFFORD.

## Notes

* ↑ The reader of these Reports will understand that an opinion delivered by one judge is the opinion of the court in that case; and it is the opinion of the whole court, unless a dissent be reported.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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