COLBERG INC v. STATE

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Court of Appeal, Third District, California.

COLBERG, INC., a California corporation, Wilton Colberg, Jack Colberg and Gordon Colberg, copartners, doing business as Colberg Boat Works, Plaintiffs and Appellants, v. The STATE of California etc., Defendant and Respondent.

STEPHENS MARINE, INC., a California corporation, Plaintiff and Appellant, v. The STATE of California etc., Defendant and Respondent.

Civ. 11259.

Decided: December 01, 1966

Richard B. Daley, of Daley, Patridge & Garrett, Stockton for plaintiffs-appellants Colberg. James C. Van Dyke, of Van Dyke & Shaw, Stockton, for plaintiff-appellant Stephens Marine, Inc. Harry S. Fenton, Robert F. Carlson, Marc Sandstrom, by Marc Sandstrom, Sacramento, for respondent.

This declaratory relief action poses the question whether shipyard owners are entitled to eminent domain damages caused by the erection of a low-level, state highway bridge across a navigable waterway, curtailing ship access to their yards.

The appeal embraces two consolidated actions.   For 60 years or more plaintiffs Colberg, Inc., and Stephens Marine, Inc., have conducted neighboring shipyards in the City of Stockton, building and repairing ships, yachts and small boats.   The Colberg yard occupies about 8 acres, the Stephens yard about 6.   Both yards are situated on the Upper Stockton Channel, a natural, navigable waterway extending easterly from the turning basin of the Port of Stockton.   The channel comes to a dead end about 5,000 feet east of the turning basin.   Oceangoing and smaller vessels use the Upper Stockton Channel to pass between plaintiffs' yards and the turning basin, from which they may navigate to the sea by way of the Stockton Deep Water Channel, Carquinez Straits and San Francisco Bay.   Both yards are improved with marine ways, buildings, docks and allied facilities.   Both are riparian to the Upper Stockton Channel.

The State Division of Highways proposes to construct twin freeway bridges across the Upper Stockton Channel, between plaintiffs' shipyards and the turning basin.   These will be stationary bridges with a vertical clearance of 45 feet above water level.   In conformity with federal law the state applied for and received a permit from the Secretary of the Army and the Chief of the Corps of Engineers, specifying the 45–foot clearance.   The bridge will prevent ships over 45 feet in height from passing through the channel to plaintiffs' yards.   Colberg alleges that 81 percent of its current business involves ships which will be unable to reach its yard after the bridges are installed.   Stephens declares that curtailment of marine access to its yard will cost it 35 percent of its business.   Both declare that the impairment of access will substantially diminish the value of their yards.   The present height restriction between these shipyards and the world's oceans is 135 feet, established by the twin bridges of Interstate Highway 80 over the Carquinez Straits.

At oral argument counsel for the State Division of Highways explained that a bridge high enough to accommodate plaintiffs' shipyard traffic would require elevated and extended approaches through the heart of the City of Stockton, producing a variety of adverse effects;  that draw or swing bridges are unsuitable for a freeway.   Such conditions necessitated selection of the low level, stationary bridge design.

The trial court held that financial injury caused by the bridge project would not be compensable as a taking or damaging of private property under the eminent domain provisions of the California Constitution; 1  that construction of these interstate freeway bridges pursuant to a federal permit is an exercise of the State's inherent power to control the use of its navigable waters.   Accordingly, it ordered entry of judgments on the pleadings in favor of the State.   The shipyard owners appeal.

 The parties apparently agree that adjudication of the compensability question should not await conventional condemnation or inverse damage suits.   The complaints declare that the shipyard owners have substantial investments in their yards;  that damage litigation after construction of the bridge project will occupy much time, during which their business operations will be cut back or cut off;  that a declaratory judgment establishing compensability will enable them to relocate their respective operations with a minimum interruption of business;  that the state rejects the plaintiffs' claim of compensability under existing eminent domain law.   These conditions make declaratory relief appropriate.

The appeal presents two major questions:  First, since the state proposes no physical taking of private lands but only an offsite obstruction to access by water, is there a taking or damaging of private property within the scope of article I, section 14, of the California Constitution?   Second, is the state acting under its sovereign power over navigable water, a power to which private water rights are usually subordinate?

Initially, a line must be drawn between two kinds of rights enjoyed by the owner of property abutting on public, navigable water.   One is the right of access from the upland to his own waterfront, a private right.2  The other is the right of navigation, a right which—generally speaking—the owner shares with the public.   We are here concerned with a physical impairment of the latter right, not the former.  Article I, section 14 of the California Constitution declares compensability for the taking or damaging of “private property” only.   If, as many of the authorities hold, the littoral owner's right of navigation is purely public and not at all private, he has no compensable interest, though he suffers economic loss from the obstruction to navigation.

According to the weight of authority, a littoral owner's right to navigate between his land and the world's oceans is not a private right, but one which he shares with the general public;  hence he has no constitutional right of eminent domain compensation when a downstream bridge ‘without draws‘ cuts him off from the outside world.3  The holding is consistent with cases denying the upstream owner injunctive relief against the obstruction of navigation by a downstream bridge built in compliance with public laws controlling navigability.4

The rule against compensation for interferences with navigation is just as fixed or malleable as the concept of private property embodied in the eminent domain provision of a state's constitution.   Mr. Justice Jackson once warned:  ‘But that a closed catalogue of abstract and absolute 'property rights' in water hovers over a given piece of shore land, good against all the world, is not in this day a permissible assumption.   We cannot start the process of decision by calling such a claim as we have here a 'property right;’  whether it is a property right is really the question to be answered. ‘  (United States v. Willow River Power Co., 324 U.S. 499, 502–503, 65 S.Ct. 761, 764, 89 L.Ed. 1101.)

 The amendment of state constitutions, including California's, to provide compensation when private property is “damaged” as well as “taken” for public use, indicates an intent to expand the area of compensability, requiring the courts to fix its limits by placing the economic interests of the public in balance against the sacrifices imposed on the landowner.  (Bacich v. Board of Control, 23 Cal.2d 343, 350–351, 144 P.2d 818;  concurring opinion of Edmonds, J. ibid., pp. 358–360, 144 P.2d pp. 826–832;  see Albers v. County of Los Angeles, 62 Cal.2d 250, 262–263, 42 Cal.Rptr. 89, 398 P.2d 129.)   The case-by-case balancing of these competing interests results in judicial expansion or contraction of a group of intangible rights recognized as compensable “private property.”   Compensable property, it is now recognized, includes not only the physical land and improvements but certain intangible rights of access between the land and the outside world.   Thus, although the owner uses the streets in common with the rest of the public, he owns a private easement of access which consists of the right to get into the street abutting his property and thence to the general system of public streets and highways.   (Valenta v. County of Los Angeles, 61 Cal.2d 669, 671, 39 Cal.Rptr. 909, 394 P.2d 725;  Breidert v. Southern Pac. Co., 61 Cal.2d 659, 663, 39 Cal.Rptr. 903, 394 P.2d 719, citing preceding California decisions;  cf. Sneed v. County of Riverside, 218 Cal.App.2d 205, 32 Cal.Rptr. 318, re airspace invasion.)   Not every impairment of access to the general system of public streets is compensable in eminent domain.   Compensability, rather, requires an individualized finding of substantial impairment, a finding of fact delegated to the trial court and not the jury.  (Breidert v. Southern Pac. Co., supra, 61 Cal.2d at pp. 663–665, 39 Cal.Rptr. 903, 394 P.2d 719;  People v. Ricciardi, 23 Cal.2d 390, 402–403, 144 P.2d 799.)

The central problem is to locate a line between compensable damage to private property and disadvantages of the kind called “consequential.”   Of the latter sort are such elements as loss of business and diminution of traffic caused by diversion of traffic and circuity of travel.  (People ex rel. Department of Public Works v. Symons, 54 Cal.2d 855, 860, 9 Cal.Rptr. 363, 357 P.2d 451.)   Applying the economic balancing test, the Supreme Court points out that awards of the latter sort would severely burden the public treasury and produce ‘  'an embargo upon the creation of new and desirable roads.’ ‘  (Ibid., p. 862, 9 Cal.Rptr. p. 367, 357 P.2d p. 455.)

 The street access doctrine represents an expanded notion of the constitutional concept of private property whose invasion or damage is compensable in eminent domain.   It means that “property” in an eminent domain sense includes not only a piece of the earth's surface but an intangible right of movement between it and the outside world;  that, although the channels of movement are shared with the public, they are “private” and compensable when a public improvement devalues a particular piece of land by substantially impairing these channels.   Navigable waterways are channels of movement no less than streets and highways.  (See Chicago, M. & St. P. Ry. Co. v. City of Minneapolis, 232 U.S. 430, 442, 34 S.Ct. 400, 58 L.Ed. 671;  Wattson v. Eldridge, 207 Cal. 314, 320, 278 P. 236;  People v. Gold Run D. & M. Co., 66Cal. 138, 147, 4 P. 1152.)   There is no difference in principle or policy between land and sea access which affirms an easement of access by land and denies it by water.   If a public project obstructs the owner's access to the outside world, he is equally hurt whether the barrier blocks him by land or by sea.   A littoral property owner's easement of access includes both media of movement.

Claims for loss of street access often arise because the public improvement places private property on a cul-de-sac, restricting accessability to one direction only, e.g., Valenta v. County of Los Angeles, supra;  Bacich v. Board of Control, supra.   The Colberg and Stephens shipyards are situated on a natural cul-de-sac.   Without the intervention of the public improvement, they have marine access to the outside world in one direction only.   According to the complaints, construction of the public project will obstruct much of the single marine route between their property and the outside world.   Their private right of access to the navigable water in front of their property has little value if that is as far as they can go.5  Location on a partially blocked, marine cul-de-sac is one element in the group of circumstances indicating the occurrence or absence of a substantial impairment of the easement of access.

Doubtless these shipyards have street access on the landward side.   Shoreline properties have obvious economic attributes resulting from their accessibility by water.   Residual access by land may supply scant economic solace when marine access beyond the immediate waterfront is obstructed or destroyed.   The substantial impairment rule supplies a criterion for determining whether the retention of land access and the destruction or obstruction of marine access result in compensable damage.

The state contends that the street access doctrine is only an analogy.   It suggests that the public policy of the street access cases, where economic balancing is possible, does not apply to loss of marine access;  that the public can supply economical alternative routes to compensate for closed streets but not for closed waterways;  further, that a bridge of limited clearance across a busy waterway may elicit damage claims so heavy and widespread as to prevent the project.   These factors evoke no policy considerations excluding access by water from the general easement of access recognized in eminent domain.   The balancing approach is much broader than the street access cases.   It is employed to measure the reach of the policy underlying the eminent domain provision of the State Constitution, laying down a line which separates compensable injuries from noncompensable disadvantages.   In Albers v. County of Los Angeles, supra, it is used in the context of a landslide damage claim;  in Clement v. State Reclamation Board, 35 Cal.2d 628, 642, 220 P.2d 897, to determine compensability of flood damage.   In the course of the latter decision the court states:  “The decisive consideration is whether the owner of the damaged property if uncompensated would contribute more than his proper share to the public undertaking.”  (Clement v. State Reclamation Board, supra, 35 Cal.2d at p. 642, 220 P.2d at p. 905.)

Viewed in the light of the economic balancing criterion, the present injuries are sharply focused on two properties.   They arouse no concern for the public purse beyond that involved in any eminent domain proceeding.   While shared with the general public, marine passage along Upper Stockon Channel without a height restriction is a unique economic attribute of two commercial shipyards located on a marine cul-de-sac.6  The prospect of damage claims from the two owners is not so monumental as to discourage the freeway project of which the bridges are a part.   The taxpayers can absorb the cost with far less hardship than the owners.  (Albers v. County of Los Angeles, supra, 62 Cal.2d at p. 263, 42 Cal.Rptr. 89, 398 P.2d 129.)

The selection between a low level bridge and reasonable alternatives is essentially a budgetary and planning choice by the administrator.   Potential damage to the littoral owners may approach the cost of raising the bridge level.   At that point the administrator starts thinking of an acceptable alternative, for example, a higher bridge.   Intangible community values imperiled by the extended ramps of a high bridge may impel his return to the low level design.   Whatever motivates the administrator to choose a low level bridge, dollars or intangible community values, the individual property owner ‘if uncompensated would contribute more than his proper share to the public undertaking.‘  (Clement v. State Reclamation Board, supra, 35 Cal.2d at p. 642, 220 P.2d at p. 905.)

The specter of widespread damage claims caused by a bridge athwart a busy artery of marine commerce arouses no policy tremors.   Potential economic injuries from obstructions to navigation are limited by federal statutes investing the Chief of Engineers and the Secretary of the Army with discretionary permit powers in the interest of protecting navigation.  (See 33 U.S.C. §§ 401, 403;  Ryan v. Chicago, B. & Q. R. Co., 7 Cir., 59 F.2d 137, 142.)   Unless the federal officials abdicate their responsibilities, a low level, drawless bridge across the Carquinez Straits or the mouth of the Mississippi is a theoretical but not practical possibility.   It is reasonable to suggest that the present bridge project merited a federal permit only because the 45–foot limitation on navigation had narrow economic impact on two shipyards located on a marine cul-de-sac;  that at some point potential injury to additional maritime interests would provoke denial of a federal permit.   Injury claims remaining after the federal screening must then pass a second screening, that imposed by the economic balancing test, which measures the limit of compensability under the California Constitution.   Finally, the claim must pass the substantial impairment test.   These successive filters prevent compensable injuries to navigation so widely diffused that they are more public than private.

We resist the invitation to follow the nuisance and equity decisions which deny upstream owners relief against downstream bridges which obstruct navigation.  (See cases cited fn. 4, supra.)   Such decisions turn largely on the ‘public‘ character of the right of navigation and the private plaintiff's lack of standing to seek relief against a public nuisance not peculiar to himself.   In the search for an eminent domain concept of ‘private property,‘ equity and nuisance decisions are not a trustworthy guide (see Clement v. State Reclamation Board, supra, 35 Cal.2d at p. 641, 220 P.2d 897).   Preferable to analogies drawn from other branches of the law is the self-contained ‘easement of access‘ doctrine developed as part of the California law of eminent domain.

Eminent domain decisions in other states on compensability of obstructions to navigation vary.   The variation is often prompted by the language of the particular state's constitutional provision.   In Pennsylvania, where the constitution was amended to provide compensation for property “injured” as well as taken, a wharf owner was awarded damages when a city bridge prevented vessels from passing upstream to his wharf.  (In re Construction of Walnut St. Bridge, 191 Pa. 153, reported sub nom. Gumbes v. City of Philadelphia, 43 A. 88.)   In State v. Masheter, supra, where the Ohio constitution limited compensation to a “taking,” the court denied recovery under similar facts.   One of the Ohio judges dissented, believing that the riparian terminal operator had developed a private right of navigation which was separate from that of the public and was “taken” from him by the bridge.7  In New York a similar claim was denied on the theory (imported from the equity and nuisance decisions) that the right of navigation is “exclusively a public right.”  (Marine Air Ways v. State, supra, 201 Misc. 349, 104 N.Y.S.2d at p. 967, affd. 280 App.Div. 1021, 116 NY.S.2d 778.)   The Florida courts have adopted the same rationale.  (Moore v. State Road Dept., supra (Fla.App.) 171 So.2d 25;  Carmazi v. Board of County Com'rs of Dade Co., supra, Fla.App., 108 So.2d 318.)   None of these decisions considered the easement of access doctrine evolved as part of the California law of eminent domain.   None of them considered the balancing of policies implicit in the easement of access doctrine.

Both sides seek support in City of Los Angeles v. Aitken, 10 Cal.App.2d 460, 52 P.2d 585.   The action was one to condemn littoral rights on a navigable lake whose level would be lowered by the condemning agency's diversion of tributary streams.   The defendant owned shoreline resort property.   According to the opinion, the marginal owner's privilege of boating was not itself compensable, but constituted an element in the valuation of his shoreline property.   The case supplies no precedent here, since it involves a destruction of the littoral owner's private right of access to navigable water directly fronting on his property.

The second major question is posed by the doctrine denying compensation when a littoral owner's interests in navigable water are damaged through the exercise of the “navigation servitude,” that is, through the public's paramount power to control navigable waters in the interest of navigation and commerce.  (See generally Miramar Co. v. City of Santa Barbara, supra, 23 Cal.2d 170, 143 P.2d 1;  2 Nichols, op. cit., pp. 247–258.)   The state relies upon cases which seemingly extend the doctrine to public improvements which aid commerce as well as those aiding navigation.  (Henry Dalton & Sons Co. v. Oakland, supra, 168 Cal. 463, 467, 143 P. 721;  City of Newport Beach v. Fager, supra, 39 Cal.App.2d at p. 28, 102 P.2d 438.)   It points out that the proposed bridges are part of an interstate freeway project which will improve access to Stockton harbor and benefit land and water transportation.

 Broad dicta in some of the decisions permit identification of the navigation servitude with the promotion of “commerce” without express restriction to waterborne commerce.   Such statements should not be taken out of context.   Decisional law rejects the notion that any project facilitating commerce is ipso facto within the sovereign power over waterways.   Nor do the parallel powers of the federal and state governments over navigation include every public project affecting the navigable capacity of water.   Although most generalizations entail some peril, the general tenor of the decisions is that the navigation servitude is limited to public works designed to aid or control navigation, excluding projects for other purposes.8  A leading case refers to the navigation servitude as one embracing “such use of the submerged lands and of the waters flowing over them as may be consistent with or demanded by the public right of navigation.”  (Scranton v. Wheeler, 179 U.S. 141, 21 S.Ct. 48, 57, 45 L.Ed. 126.)   Freeways and streets along the waterfront are outside the scope of the navigation servitude (In re City of New York, 168 N.Y. 134, 61 N.E. 158, 56 L.R.A. 500;  In re Jamaica Bay in City of New York, etc., 256 NY. 382, 176 N.E. 539;  Crance v. State, supra, 205 Misc. 590, 128 N.Y.S.2d 479) although there is contrary authority (Crary v. State Highway Comm., 219 Miss. 284, 68 So.2d 468).   Deepening the channel of a stream to prevent overflows harmful to roads and bridges is not an exercise of navigation power.  (Conger v. Pierce Co., 116Wash. 27, 198 P. 377, 18 A.L.R. 393.)   The proposed freeway bridges across the Upper Stockton Channel will not aid its development as a medium of commerce.   Rather they will obstruct its navigability, albeit the obstruction will be sanctioned by federal law.  (See Southlands Co. v. City of San Diego, 211 Cal. 646, 297 P. 521.)

The state seeks to extend the navigation servitude on the strength of decisions permitting improvements on publicly owned tidelands without compensation for the upland owner's loss of access, e.g., Miramar Co. v. City of Santa Barbara, supra, 23 Cal.2d 170, 143 P.2d 1;  Henry Dalton & Sons Co. v. Oakland, supra, 168 Cal. 463, 143 P. 721;  City of Newport Beach v. Fager, supra, 39 Cal.App.2d 23, 102 P.2d 438.   In those cases the public's immunity is said to extend not only to tideland projects promoting navigation but to any “lawful use or purpose.”  (People v. Hecker, 179 Cal.App. 2d 823, 840, 4 Cal.Rptr. 334;  City of Newport Beach v. Fager, supra, 39 Cal.App.2d at p. 28, 102 P.2d 438.)   The tideland cases turn upon the principle that the littoral rights of an owner whose land adjoins publicly owned tidelands may be terminated by whatever disposition of the tidelands the public chooses to make.  (Miramar Co. v. City of Santa Barbara, supra, 23 Cal.2d at p. 174, 143 P.2d 1.)   Although public tidelands are held in trust for commerce, navigation and fishery, projects on tidelands may have nothing to do with navigation.   Subject to the restrictions in statutory grants, public tidelands may be devoted to any use which does not prejudice the public rights of navigation and fishing.  (Mallon v. City of Long Beach, 44 Cal.2d 199, 206, 282 P.2d 481;  Boone v. Kingsbury, 206 Cal. 148, 183, 189, 273 P. 797.)   Thus the public's power to improve its tidelands without compensating littoral owners is not a measure of the navigation servitude when tideland use is not involved.

 Finally, the state urges that the federal permit to construct the low level bridge project across Upper Stockton Channel is “conclusive.”   Perhaps it is, in the limited sense that a court may not restrain an obstruction to navigation permitted by federal law.  (See cases cited fn. 4, supra.)   The permit is only a declaration of federal assent, not a delegation of power.9  Federal assent to the project does not shield the state from the eminent domain provision of its own constitution.  “It must be remembered * * * that damage may be inflicted within the meaning of such a constitutional provision by the mere exercise of unquestioned public rights.”   (2 Nichols, op. cit., p. 265.)

 We conclude that the bridge project is not an exercise of the state's navigation servitude;  that the project will cause compensable damage to plaintiffs' private properties if, in an appropriate proceeding, a court finds substantial impairment of their respective easements of access.   The judgments are reversed and the proceedings remanded with directions to enter declaratory judgments consistent with this opinion.

FOOTNOTES

1.   Article 1, section 14, of the State Constitution declares:  “Private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for, the owner * * *.”  Article XV section 1 of the State Constitution provides:  “The right of eminent domain is hereby declared to exist in the State to all frontages on the navigable waters of this State.”

2.   See, for example, United States v. River Rouge Improvement Co., 269 U.S. 411, 418, 46 S.Ct. 144, 70 L.Ed. 339;  San Francisco Savings Union v. R.G.R. Petroleum Co., 144 Cal. 134, 137–139, 77 P. 823, 66 L.R.A. 242;  Shirley v. Bishop, 67 Cal. 643, 8 P. 82.   The “private” right of access to the waterfront may nevertheless be subordinate to the public easement of navigation, hence not compensable in eminent domain.  (Henry Dalton & Sons Co. v. Oakland, 168 Cal. 463, 466–468, 143 P. 721;  City of Newport Beach v. Fager, 39 Cal.App.2d 23, 28, 102 P.2d 438;  2 Nichols on Eminent Domain (3d ed.) 258–260.

3.   Moore v. State Road Dept. (Fla.App.) 171 So.2d 25;  Carmazi v. Board of County Com'rs. of Dade Co. (Fla.App.) 108 So.2d 318;  Marine Air Ways v. State, 201 Misc. 349, 104 N.Y.S.2d 964, affd. 116 N.Y.S.. 2d 778;  State v. Masheter (Ohio) 203 N.E.2d 325;  2 Nichols, op. cit., p. 264, cases cited at fn. 16.

4.   Gilman v. City of Philadelphia, 3 Wall. 713, 70 U.S. 713, 18 L.Ed. 96;  Miller v. Mayor, etc., of City of New York, 109 U.S. 385, 3 S.Ct. 228, 27 L.Ed. 971;  Cardwell v. American River Bridge Co., 113 U.S. 205, 5 S.Ct. 423, 28 L.Ed. 959;  Pacific Inter–Club Yacht Assn. v. Morris, D.C., 197 F.Supp. 218;  Jarvis v. Sanata Clara Valley R.R. Co., 52 Cal. 438;  People v. Potrero and Bay View R.R. Co., 67 Cal. 166, 7 P. 445;  cfr. Hickok et al. v. Hine, 23 Ohio St. 523;  see also Sound Marine & Machine Corp. v. Westchester County, 2 Cir., 100 F.2d 360.

5.   At this point we paraphrase the majority opinion in Bacich v. Board of Control, supra, 23 Cal.2d at p. 354, 144 P.2d at p. 825, which states:  ‘To be able to get onto the street immediately in front of the property is of little value if that is as far as [the owner] can go.‘

6.   At this point we refrain from anticipating the computation of damage and from indicating the relationship between loss of business and devaluation of property.

7.   Cf. Miramar Co. v. City of Santa Barbara, 23 Cal.2d 170, 183, 143 P.2d 1, dissent of Carter, J.

8.   United States v. River Rouge Imp. Co., supra, 269 U.S. at p. 419, 46 S.Ct. 144, 70 L.Ed. 339;  United States v. 50 Foot Right of Way in Bayonne, N.J., 337 F.2d 956, 959;  United States v. 412.715 Acres of Land etc., 53 F.Supp. 143, 149;  City of Los Angeles v. Aitken, supra, 10 Cal.App.2d at p. 470, 52 P.2d 585;  Crance v. State, 205 Misc. 590, 128 N.Y.S.2d 479, 481, reversed on other grounds 309 N.Y. 680, 128 N.E.2d 324;  26 Am.Jur.2d, Eminent Domain, § 191, p. 870;  Note:  18 A.L.R. 403.

9.   Cummings v. City of Chicago, 188 U.S. 410, 430–431, 23 S.Ct. 472, 47 L.Ed. 525;  Pembroke v. Peninsular Terminal Co., 108 Fla. 46, 46 So. 249, 255;  Cobb v. Lincoln Park Com'rs., 202 Ill. 427, 67 N.E. 5, 9, 63 L.R.A. 264;  Wilson v. Hudson County Water Co., 76 N.J.Eq. 543, 76 A. 560, 565–566;  Sullivan v. Booth & Finn, 210 App.Div. 347, 206 N.Y.S. 360, 363.

FRIEDMAN, Justice.

PIERCE, P.J., and REGAN, J., concur.