Page:Federal Reporter, 1st Series, Volume 6.djvu/646

634 being being about 33 feet below the south end of the wharf, and opposite the land of said Hinman. The Niantic was 100 feet long, and drew, when loaded, eight feet of water. The Florence was about 75 feet long and 27 feet broad. The Niantic had not previously lain so far below the end of the wharf by eight feet. Captain Beebe did not know that any dredging had taken place. He asked nobody where he should moor his vessel. No officer or agent of the defendant was present when he moored, and there is no evidence that any such officer or agent knew that he had moored, or was at the wharf. Apparently there is no wharf master or other person in charge of either of these wharves. It was low water at about 8 o'clock in the evening. The captain knew nothing of any injury to his vessel during low water, or during the night, but when he came on deck the next morning, about 6 o'clock, he found that she was leaking, and soon after that she was strained and broken amidships. She filled with water and sank. Afterwards the cargo was discharged, and she was raised and repaired with considerable expense and delay. At low water there were two and one-half feet of water under her stern. From that point the water increased in depth until it was six and one-half feet deep abreast of the main rigging. At the forward rigging there were four and one-half feet. There was a gradual slope from the main rigging to this point. It did not appear that the Niantic could not have lain safely at the upper wharf. If the captain had known of the uneven character of the bottom, there is no question that he could have found a safe place to lie in. The accident was caused by the fact that she was lying too far below the wharf, so that her stern was in shallow water, where there had been no dredging. When she grounded she lay unevenly, her stem and stern being upon elevations, and she became strained amidships, At low water the fact is apparent that the dredging had not been continued far enough to make a good berth at that point.

The foregoing facts do not, in my opinion, make the defendant liable for the injury. The defendant is a riparian proprietor upon a navigable stream, and has a right by the